Electric Mirror, LLC v. Avalon Glass and Mirror Company et al

Filing 98

ORDER granting Defendants' 87 Motion to Compel, signed by Judge Richard A. Jones. (SWT)

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THE HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ELECTRIC MIRROR, LLC,

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Plaintiff,

Case No. 16-0665-RAJ

v.
AVALON GLASS AND MIRROR CO.
and GLASSWERKS LA, INC.,

ORDER

Defendants.

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This comes before the Court on Defendants’ Motion to Compel. Dkt. # 87.
Plaintiff opposes the Motion. Dkt. # 90.

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I.

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Plaintiff Electric Mirror, LLC (“Electric Mirror” or “Plaintiff”) filed a Complaint

BACKGROUND

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against Defendants, Avalon Glass and Mirror Co. and Glasswerks LA, Inc., on May 9,

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2016. Dkt. # 1. On March 8, 2018, Avalon deposed James “Doc” Mischel. Dkt. # 94.

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The parties dispute almost every fact related to this deposition, including whether James

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“Doc” Mischel was or is the owner of Electric Mirror. Dkt. #87 at 1; Dkt. # 90 at 2.

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Mischel’s deposition was conducted at an Electric Mirror facility and was one of five

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depositions scheduled for that day. Dkt. # 91 Ex. A. The deposition began at 3:12 p.m.

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and ended at 4:01 p.m., when the facility closed for the night. Dkt. # 94 Ex. B.

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Defendants allege that Electric Mirror agreed that the deposition would be completed on
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a later date, prior to starting the deposition. Plaintiff contends that the parties never

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agreed to continue Mischel’s deposition, and that Defendants’ attempt to depose

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Mischel is a second deposition and not a continuation of the first one. Plaintiff further

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contends that they offered to start Mischel’s deposition on a different day or move it to a

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different locations after the facility closed, but Defendants declined. The parties submit

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opposing declarations to support their contentions, as well as emails and the deposition

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transcript.

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II.

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The Court has broad discretion to control discovery. Avila v. Willits Envtl.

DISCUSSION

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Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011). The Court, however, must limit

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discovery where it can be obtained from some other source that is more convenient, less

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burdensome, or less expensive, or where its “burden or expense . . . outweighs its likely

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benefit, considering the needs of the case, the amount in controversy, the parties’

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resources, the importance of the issues at stake in the action, and the importance of the

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discovery in resolving these issues.” Fed. R. Civ. P. 26(b)(2)(C)(i), (iii).

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Defendant argues that Plaintiff failed to comply with the meet-and-confer

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requirements of LCR 37(a)(1). Local Rule 37(a)(1) provides that, “[a]ny motion for an

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order compelling disclosure or discovery must include a certification, in the motion or

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in a declaration or affidavit, that the movant has in good faith conferred or attempted to

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confer with the person or party failing to make disclosure or discovery in an effort to

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resolve the dispute without court action.” W.D. Wash. Local Civ. R. 37(a)(1). The

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Court finds that the emails submitted by Defendants evidence an effort to discuss the

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deposition at issue and their disagreement regarding the facts relevant to this Motion.

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Dkt. # 89 Ex. A. The emails specifically reference the deposition in question, the

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parties’ disagreement regarding that deposition, and a possible motion to compel.

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Therefore, the meet-and-confer requirement of the Local Rules has been met.

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Plaintiff’s other arguments in response to Defendants’ motion rely mainly on

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their contention that Mischel’s deposition would constitute a second deposition and not

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a continuation of the initial deposition, specifically arguing that Defendants fail to make

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the required showing that a second deposition is necessary or proportional. However,

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this argument requires a finding that there was no agreement between the parties to

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continue Mischel’s deposition at a later date.

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The Court finds that the evidence indicates that some sort of agreement regarding

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the continuation of Mischel’s deposition and that the deposition sought by Defendants

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would not constitute a second deposition. Plaintiff’s arguments regarding the

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implications of Defendants’ actions are unpersuasive. There is no support for Plaintiff’s

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contention Defendants intentionally began Mischel’s deposition without intending to

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finish it at a later date just because they did not agree to reconvene the same day or

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because they knowingly scheduled five depositions for one day. Is it clear from the

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transcript that the deposition was not yet complete, in fact, it was stopped at Plaintiff’s

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request in the middle of Defendants’ question. Dkt. # 94 Ex. B (“At least two? Okay.

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Would – ” “Can we go off the record for just a second?”). It is also reasonable to

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assume that Defendants scheduled five deposition in one day for logistical reasons due

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to an impending discovery deadline. Plaintiff’s arguments regarding proportionality are

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similarly unpersuasive. Plaintiff argues that it would be unfair for Mischel to sit for a

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“second deposition” because he has already been examined on the “material issues”.

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The Court makes no ruling on what issues are material to this case, but even a cursory

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read of the transcript shows no indication that Mischel’s examination was either

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thorough or complete.

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For the foregoing reasons, the Court GRANTS Defendants’ Motion to Compel.

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Dkt. # 87. Plaintiff is ORDERED to produce James “Doc” Mischel for the completion

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of his deposition within seven days of the entry of this Order, at a time and location that

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is mutually agreeable to both parties. The Court acknowledges Plaintiff’s desire to
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avoid retracing ground covered in the first deposition, especially considering that

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discovery is now closed. As such, Defendants are ORDERED not to repeat topics

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covered in the first deposition unless the questions are directed toward follow-up of

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questions already asked and answered.

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Dated this 23rd day of July, 2018.

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A

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The Honorable Richard A. Jones
United States District Judge

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