Young v. Russell et al

Filing 60

The Court ORDERS defendants' counsel to contact plaintiff and arrange a conference. The Court orders the parties to confer on or before August 29, 2013. The conference may take place face to face or telephonically. If plaintiff chooses to file a motion to compel after the conference, then plaintiff must re-file his motion in the format required by Local Rule 37. Signed by Magistrate Judge J Richard Creatura.(CMG; cc to Plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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RICKY ANTHONY YOUNG,

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Plaintiff,

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SCOTT RUSSELL et al.
Defendants.

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ORDER

v.

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CASE NO. C13-5079 BHS-JRC

The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States
Magistrate Judge J. Richard Creatura. The Court’s authority for the referral is 28 U.S.C. §
636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4.
Plaintiff has filed a motion to compel discovery, but he has not documented whether or
not he has met and conferred with opposing counsel as required by Local Rule 37. Further,
plaintiff’s motion is not in the format required by Local Rule 37.
Because plaintiff is an inmate, the Court orders defendants’ counsel to contact plaintiff
and arrange a conference. The Court orders the parties to confer on or before August 29, 2013.
The conference may take place face to face or telephonically. If plaintiff chooses to file a motion

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ORDER - 1

1 to compel after the conference, then plaintiff must re-file his motion in the format required by
2 Local Rule 37. The Court has attached the complete text of Local Rule 37 and Local Rule 37,
3 Appendix B to this order. Because plaintiff is an inmate, plaintiff is excused from complying
4 with the portions of the Local Rule that requires plaintiff to “make the submission available in
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Dated this 6th day of August, 2013.

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A
J. Richard Creatura
United States Magistrate Judge

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Local Rule 37.
FAILURE TO MAKE DISCLOSURE OR COOPERATE IN DISCOVERY;
SANCTIONS
(a) Motion for Order Compelling Disclosure or Discovery
(1) Meet and Confer Requirement. Any motion for an order compelling disclosure or
discovery must include a certification, in the motion or in a declaration or affidavit,
that the movant has in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to resolve the dispute without
court action. The certification must list the date, manner, and participants to the
conference. If the movant fails to include such a certification, the court may deny the
motion without addressing the merits of the dispute. A good faith effort to confer with
a party or person not making a disclosure or discovery requires a face-to-face meeting
or a telephone conference. If the court finds that counsel for any party, or a party
proceeding pro se, willfully refused to confer, failed to confer in good faith, or failed
to respond on a timely basis to a request to confer, the court may take action as stated
in CR 11 of these rules.
(2) Expedited Joint Motion Procedure. A motion for an order compelling disclosure or
discovery may be filed and noted in the manner prescribed in LCR 7(d)(3).
Alternatively, the parties may, by agreement, utilize the expedited procedure set forth
in this subsection. If the parties utilize this procedure, the motion may be noted for
consideration for the day the motion is filed. After the parties have conferred, a party
may submit any unresolved discovery dispute to the court through the following

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ORDER - 2

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procedure:
(A) The moving party shall be responsible for preparing and filing a joint LCR
37 submission to the court. An example of an LCR 37 submission is attached as
Appendix B.

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(B) The moving party may draft an introductory statement, setting forth the
context in which the dispute arose and the relief requested. Each disputed
discovery request and the opposing party’s objection/response thereto shall be
set forth in the submission. Immediately below that, the moving party shall
describe its position and the legal authority which supports the requested relief.

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The moving party shall provide the opposing party with a draft of the LCR 37
submission and shall also make the submission available in computer-readable
format.

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(C) Within seven days of receipt of the LCR 37 submission from the moving
party, the opposing party shall serve a rebuttal to the moving party’s position for
each of the disputed discovery requests identified in the motion. The opposing
party may also include its own introductory statement. The opposing party's
rebuttal for each disputed discovery request shall be made in the same document
and immediately following the moving party’s statement in support of the relief
requested. If the opposing party no longer objects to the relief requested, it shall
so state and respond as requested within seven days from the date the party
received the draft LCR 37 submission. If the opposing party fails to respond, the
moving party may file the LCR 37 submission with the court and state that no
response was received.

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(D) The moving party’s reply, if any, in support of a disputed discovery request
shall follow the opposing party's rebuttal for such request in the joint
submission and shall not exceed one half page for each reply.

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(E) The total text that each side may contribute to a joint LCR 37 submission
shall not exceed twelve pages. This limit shall include all introductory or
position statements, and statements in support of, or in opposition to, a
particular request, but shall not include the discovery request itself.

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(F) Each party may submit declarations for the purpose of attaching documents
to be considered in connection with the submission and to provide sufficient
information to permit the court to assess expenses and sanctions, if appropriate.
If a party fails to include information sufficient to justify an award of fees, it
shall be presumed that any request for fees has been waived. A declaration shall
not contain any argument.

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(G) The moving party shall prepare a proposed order that identifies each of the
discovery requests at issue, with space following each of the requests for the
court's decision. This proposed order shall be attached as a Word or Word
Perfect compatible file to an e-mail sent to the e-mail orders address of the

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ORDER - 3

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assigned judge pursuant to the court’s Electronic Filing Procedures.

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(H) The moving party shall be responsible for filing the motion containing both
parties' positions on the discovery disputes, any declarations submitted by the
parties, and the proposed form of order. The moving party shall certify in the
motion that it has complied with these requirements. The submission shall be
noted for consideration on the date of filing and shall be described as a "LCR 37
Joint Submission."

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(I) If all parties agree to do so, they may use the expedited joint motion
procedure for other types of motions, including but not limited to motions to
seal, motions for relief from a deadline, and motions in limine. The timing and
procedure shall be the same as set forth above except that (1) instead of setting
forth the disputed discovery request and the opposing party's objection/response
thereto, the moving party should set forth the relief requested and the legal
authority that supports the requested relief, and (2) the moving party must
submit a proposed order that sets forth the relief requested.

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Sample form Appendix B.

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CIVIL RULES

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APPENDIX B. SUBMISSION REGARDING REQUEST FOR PRODUCTION

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See LCR 37

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The Honorable Robert S. Lasnik
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JONES ACTOR,
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Plaintiff,
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v.

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COMPANY,
Defendant.
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No. C01-9999RSL

LCR 37 SUBMISSION REGARDING
REQUEST FOR PRODUCTION
NO. 17
NOTE ON MOTION CALENDAR:
[insert date]

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I. MOVING PARTY'S INTRODUCTORY STATEMENT

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ORDER - 4

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Defendant Big Rose Flower Company is the moving party for this submission. Plaintiff
Jones Actor is seeking more than $2.5 million in damages, claiming that at the time he
purchased Big Rose stock, Big Rose allegedly failed to disclose that the property owned by
Big Rose for growing flowers would be unable to produce a suitable crop in 2000. It is
claimed that these alleged misstatements violated Section 10(b) of the 1934 Securities
Exchange Act and the Washington Securities Act.

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These allegations are untrue. Further, Actor is a director of a company that is also in the
flower business, Fleurs 'R' Nous Company, and he was undoubtedly aware of the problems
caused by the 1999 drought, which affected all flower producing companies in the Northwest.
II. RESPONDING PARTY'S STATEMENT
Jones Actor purchased nearly $3 million of stock in Big Rose--stock that is worth less
than $500,000 today. He purchased this substantial amount of stock because of glowing
reports from Big Rose regarding its prospects for future profits.
However, things were not as rosy as they seemed. All of Big Rose's land holdings
used to produce flowers were not only severely parched by the 1999 drought, but also
contaminated with chemicals because of a mistake in choosing fertilizers. Big Rose knew
that it was unlikely that these chemicals could be removed from the soil in time to produce
a profitable crop for 2000. When this information was finally disclosed to the public, Big
Rose stock plummeted in value.
III. DISPUTED DISCOVERY REQUESTS
REQUEST FOR PRODUCTION 17: Please produce all income tax returns for 1995
through 2000 for the Fleurs 'R' Nous Company.
RESPONSE: Actor objects to this request on the grounds that it calls for information
neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.
Further, the information sought is confidential.
Moving Party's Argument
Actor claims that he was deceived by the alleged omissions of information from Big
Rose's public statements. To defend against this claim, Big Rose will show that Actor is a
sophisticated individual, who was aware of the risks in the flower business and who also
had information obtained by Fleurs 'R' Nous regarding the problems that Big Rose was
having with its land at the time he was buying Big Rose stock. Defendants in security
cases are properly allowed to obtain tax returns, because they help show the plaintiff's
degree of sophistication and understanding of the risks of investment. Davis v. Big Co.,
123 F.3d 777, 788 (9th Cir. 1999). Further, the tax return may identify individuals with
knowledge of Actor's understanding of the industry.
Responding Party's Response

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ORDER - 5

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While it is true that tax returns may be produced to show the degree of sophistication
of a securities plaintiff, the tax returns sought here are not Actor's personal tax returns, but
rather the tax returns for a company in which he is a director and part owner. That
company is not a party to these proceedings. Non-parties should not be forced to produce
their tax returns absent very compelling reasons. Westminster v. Abbey, 867 F.3d 309, 312
(9th Cir. 1999). No compelling reasons have been presented. Fleurs 'R' Nous is not a
publicly traded company, and its financial and other information is maintained as
confidential. It is a competitor of Big Rose, and disclosure of this information through
discovery could be harmful.
Moving Party's Reply
Actor's supposed concern about Fleurs 'R' Nous' confidential information can be
addressed through a protective order. Big Rose will agree not to disclose this information
to persons other than counsel and experts absent agreement of the parties or further order
of the court. While Fleurs 'R' Nous is not a party, its tax returns may contain information
about money spent addressing the drought problem that was common to several floral
companies. Thus, the information could lead to the discovery of admissible evidence.

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CERTIFICATION
I certify that the full response by the responding party has been included in this
submission, and that prior to making this submission the parties conferred to attempt to
resolve this discovery dispute in accordance with LCR 37(a).
DATED:

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Ira Just (WSBA #1234) Attorneys for Big Rose Company Moving Party

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LCR 37 SUBMISSION
(C01-9999RSL)

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ORDER - 6

Law Firm of Lawyers
10,000 Fifth Avenue
Seattle, Washington 98104