KAREN S. CRAWFORD, Magistrate Judge.
On January 31, 2020, the Court held an on-the-record Discovery Conference regarding pending merits discovery obligations and the timing and scope of discovery regarding the statute of limitations. As background, the District Court issued an Order on January 14, 2020: (1) granting in part defendants' Motion to Bifurcate; (2) staying merits discovery from February 1, 2020 to May 1, 2020 with the exception of merits discovery obligations incurred prior to February 1, 2020; and (3) directing the parties to engage in expedited discovery limited to the statute of limitations issue. [Doc. No. 128, at p. 2.] The following is a summary of matters resolved as a result of the Discovery Conference on January 31, 2020.
Defendants noticed the deposition of David Anderson, a sales accountant employed by plaintiff who was involved in the sale of the racehorse to DeHaven. This Court ordered plaintiff to make Mr. Anderson available for deposition in San Diego. [Doc. No. 105, at p. 6.] As directed by the District Court, Mr. Anderson's deposition took place in the courthouse on January 27, 2020. Mr. Anderson's deposition was taken in his individual capacity.
Defendants also served plaintiff with a deposition notice seeking testimony from a Rule 30(b)(6) witness. Plaintiff did not designate Mr. Anderson as a Rule 30(b)(6) witness but indicated to defendants in its "objections" that Mr. Anderson may testify about some of defendants' Rule 30(b)(6) topics. However, defendants reported Mr. Anderson was not prepared to offer testimony on most of defendants' Rule 30(b)(6) topics during his deposition on January 27, 2010. Defendants did acknowledge during the January 31, 2020 Discovery Conference that Mr. Anderson may have offered significant testimony on at least one Rule 30(b)(6) topic. Therefore, defense counsel agreed to provide plaintiff's counsel with a rough copy of the transcript of Mr. Anderson's deposition. Within three (3) court days of receiving a rough copy of the transcript of Mr. Anderson's deposition, plaintiff's counsel was to notify defendants' counsel about whether plaintiff is willing to stipulate that a certain portion or portions of Mr. Anderson's testimony on a particular topic or topics can be considered binding, Rule 30(b)(6) testimony on behalf of plaintiff.
As to any remaining topics in defendants' Rule 30(b)(6) notice, plaintiff must designate an appropriate witness or witnesses
Pursuant to the District Court's Order of January 30, 2020 (Doc. No. 140), plaintiff must make its Rule 30(b)(6) witness or witnesses available to be deposed in San Diego on defendants' remaining Rule 30(b)(6) topics
On December 20, 2019, during a Discovery Conference, this Court concluded plaintiff did not provide satisfactory responses to any of defendants' written discovery requests. [Doc. No. 114, at p. 1.] Therefore, plaintiff was ordered by this Court to provide defendants with supplemental responses to all defendants' interrogatories and to produce all documents responsive to each of defendants' document requests. [Doc. No. 114, at p. 2.]
During the Discovery Conference on January 31, 2020, defense counsel informed the Court that he believes plaintiff's supplemental responses to defendants' written discovery requests are inadequate. Plaintiff's counsel conversely believes the responses are adequate. Defense counsel agreed to provide plaintiff's counsel with a letter detailing the deficiencies in the responses on or about February 3, 2020. Defendants need not complete another meet and confer by telephone as to these responses, because they previously satisfied this requirement and the parties then had an exhaustive Discovery Conference with the Court about plaintiff's responses on December 20, 2019.
Plaintiff's counsel was advised that she has one last chance, namely until February 7, 2020 or seven (7) days after receipt of defense counsel's letter, to supplement/update the responses to address any inadequacies identified by defendants' counsel and provide another set of supplemental responses. If the responses are still inadequate, defendants may then elect to file and serve a motion for sanctions no greater than ten (10) pages in length for consideration by Judge Crawford. Such motion must be filed
In their Motion to Bifurcate, defendants indicated they wished to serve seven (7) interrogatories and seven (7) documents requests. [Doc. No. 87, at p. 11.] Currently, it is unclear what written discovery plaintiff intends to serve on statute of limitations issues. However, unless leave is requested and granted, plaintiff is limited to seven (7) each of the following, which must be served on defendants Weiner and Finance California collectively
Because the parties have been ordered by the District Court to complete statute of limitations discovery on an expedited basis on or before May 1, 2020 [Doc. No. 128], the time for the parties to respond to written discovery requests is reduced to twenty (20) days.
Defense counsel seeks guidance from the Court going forward to avoid problems and delays that occurred before and during Mr. Anderson's deposition. Because of these problems and delays, defense counsel is considering a motion for a protective order and sanctions. Plaintiff's counsel was forewarned that speaking objections are not permitted; counsel and the deponent may not leave the deposition while a question is pending; coaching of witnesses is not permitted; and witnesses may not be instructed not to answer a question unless it is necessary to preserve a privilege. Plaintiff's counsel was also forewarned that: (1) fact discovery is broad; (2) the deposing attorney may ask a witness to read a document, even if the witness has not previously seen the document; and (3) thereafter ask the witness questions about the document. With these warnings, a defense motion for a protective order should not be necessary unless problems that occurred during Mr. Anderson's deposition continue into the next deposition, or other difficulties arise.
Counsel must meet and confer to schedule depositions on mutually convenient dates. The parties are to provide ten (10) days' notice for all depositions. Depositions may be scheduled to take place in the courthouse by contacting Judge Crawford's chambers at least five (5) days in advance. As discussed more fully below, the parties must seek leave of court before noticing any depositions on statute of limitations issues that have not been addressed herein.
Plaintiff previously noticed the depositions of defendants Weiner and Finance California on merits issues for some time in January, but they did not proceed. Plaintiff then re-noticed these depositions for February 10 and 11, 2020, purportedly on statute of limitations issues. However, plaintiff's counsel was advised during the Discovery Conference that the depositions re-noticed for February 10, and 11, 2020 may not proceed as scheduled. As noted above, plaintiff must make a Rule 30(b)(6) witness or witnesses available to be deposed in San Diego on defendants' remaining Rule 30(b)(6) topics
When Mr. Wiener is deposed (i.e., after plaintiff's Rule 30(b)(6) witness(es) have been deposed by defendants), the time limitations in Federal Rule 30(d)(1) shall apply (i.e., 7 hours as to Wiener individually and 7 hours as to Wiener as a Rule 30(b)(6) witness for defendant Finance California). Merits depositions of defendants Wiener and Finance California were previously noticed to proceed in January prior to the District Court's Order narrowing discovery to statute of limitations issues. Therefore, plaintiff
Counsel must meet and confer to set appropriate dates, times, and locations for Mr. Wiener's deposition, and the dates, times, and locations must take Mr. Wiener's health into consideration. For example, if necessary for health reasons, Mr. Wiener's deposition may be taken at a location near his home for a few hours at a time over several consecutive days.
In their Motion to Bifurcate, defendants estimated they would need to take one four-hour Rule 30(b)(6) deposition and up to two (2) other depositions of about 6 hours total on statute of limitations issues. [Doc. No. 87, at p. 11.] However, defendants have reserved the right to seek additional time for depositions if necessary. [Doc. No. 87, at p. 11.] In a separate Order, the Court granted in part and denied in part without prejudice defendants' Motion to Compel Attorney Depositions. [Doc. No. 145.] As outlined in this separate Order, it appears that plaintiff's former counsel, Neil Katsuyama, is defendants' key witness on statute of limitations issues, and defendants' request to depose him was granted. [Doc. No. 145, at p. 12.] However, defendants' request to depose plaintiff' current counsel, Ms. Courteau, was denied without prejudice. Defendants may renew their motion as to Ms. Courteau after Mr. Katsuyama's deposition if they can present additional evidence to establish the importance for taking Ms. Courteau's deposition on statute of limitations issues. [Doc. No. 145, at p. 12.] To renew their motion, defendants must contact Judge Crawford's chambers for a briefing schedule.
During the Discovery Conference on January 31, 2020, plaintiff's counsel indicated she would like to conduct about twelve (12) depositions on statute of limitations issues to show defendants prevented plaintiff from learning about different acts of fraud over an extended period. Plaintiff's counsel was advised that she needs to narrow her list of potential deponents and the time and scope of statute of limitations discovery to matters put at issue by defendants' proposed motion for summary judgment or adjudication. Regardless, during the Discovery Conference, plaintiff's counsel persisted in her desire to broaden statute of limitations discovery to include alleged acts of fraud or concealment by defendants through late 2016 and beyond (i.e., when plaintiff alleges it had enough information to file the claims at issue in the First Amended Complaint). Defendants contend that this proposed scope of discovery will defeat the purpose of the District Court's order partially granting their Motion to Bifurcate.
Specifically, defendants claim they have discovered evidence that "plaintiff had sufficient facts to allow it [to] plead claims against defendants by mid-2011, and actually drafted such claims...." [Doc. No. 87, at p. 4. See also Doc. No. 99, at pp. 3-8.] From the results of their investigation, defendants believe they can show plaintiff did not need the facts it allegedly obtained later in 2016 or 2017 to pursue its current claims against defendants. [Doc. No. 87, at pp. 5-6.] See, e.g., Snyder v. Boy Scouts of Am., Inc., 205 Cal.App.3d 1318, 1323 (Ct. App. 1988) ("Where fraud is established the statute is tolled only for so long as the plaintiff remains justifiably ignorant of the facts upon which the cause of action depends; discovery or inquiry notice of the facts terminates the tolling.").
As indicated in their Motion to Compel Attorney Depositions, the Court's understanding is that defendants intend to file a potentially dispositive motion for summary judgment or adjudication on the following issues: (1) whether investigations conducted by plaintiff's counsel in 2011 uncovered enough facts to put plaintiff on notice of its claims against defendants by and through its counsel; and (2) whether the circumstances in 2011 were such that a competent attorney should have known or should have discovered its claims against defendants in 2011, even if such facts were not discovered at that time. [Doc. No. 127, at p. 2.]
Following the Discovery Conference, plaintiff's counsel indicated by telephone that she believes she can justify taking at least three depositions on statute of limitations issues. Accordingly, at this time, plaintiff's counsel should identify three witnesses believed to have material information necessary for plaintiff to meet its burden of proof in response to defendants' proposed motion for summary adjudication.
To the extent the parties intend to take any further depositions on statute of limitations issue that have not been discussed in this Order, they must first seek leave of court by calling Judge Crawford's chambers to request a briefing schedule.
A further on-the-record, in person Discovery Conference has been scheduled for
IT IS SO ORDERED.