The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge
ORDER DENYING DEFENDANT'S MOTION FOR EXPEDITED DISCOVERY AND DENYING PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S REPLY [Doc. Nos. 12, 19.]
Before the Court is Defendant's ex parte application for expedited discovery. (Doc. 12.) Plaintiff's motion for a preliminary injunction is scheduled to be heard by the Honorable Irma E. Gonzalez on September 15, 2008. On August 21, 2008, Defendant filed its application, requesting expedited discovery that Defendant claims is necessary to oppose Plaintiff's motion for a preliminary injunction. In accordance with a briefing scheduled issued on August 22, 2008, Plaintiff filed an opposition to Defendant's motion for discovery on August 27, 2008 (Doc. 16). Also on August 27, 2008, Defendant filed a reply brief in support of the motion (Doc. 18), and Plaintiff filed a motion to strike the reply because it was not provided for in the Court's briefing schedule (Doc. 19).
Plaintiff's motion to strike Defendant's reply brief is hereby DENIED, and the reply is considered below.
Except in actions for review of an administrative record, and unless the parties stipulate to a commencement of discovery or the court orders discovery to begin, Federal Rule of Civil Procedure 26(d) permits parties to seek discovery only after they have met and conferred in compliance with Rule 26(f). When a party requests court-ordered expedited discovery prior to the Rule 26(f) conference, a "good cause" standard may be applied. Semitool, Inc. v. Tokyo Electron America, 208 F.R.D. 273 (N.D.Cal. 2002). "Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party." Id. at 276. A court also generally has the discretion, in the interests of justice, to prevent excessive or burdensome discovery. Fed. R. Civ. P. 26(b)(2).
Defendant's stated need for expedited discovery is the need to oppose Plaintiff's motion for a preliminary injunction. To obtain a preliminary injunction in the Ninth Circuit, a party must demonstrate either "(a) probable success on the merits combined with the possibility of irreparable injury or (b) that she has raised serious questions going to the merits, and that the balance of hardships tips sharply in her favor." Bernhardt v. County of Los Angeles, 339 F.3d 920, 925 (9th Cir. 2003). The movant carries the burden of persuasion and must ordinarily make a "clear showing" that the "drastic remedy" of a preliminary injunction is deserved. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
As amended by the reply brief, Defendant's request for expedited discovery seeks depositions of two witnesses whose declarations were submitted in support of Plaintiff's motion for preliminary injunction, as well as a deposition of Plaintiff's designee pursuant to Federal Rule of Civil Procedure 30(b)(6), and production of: all documents possessed by Plaintiff regarding Defendant, all documents regarding Plaintiff's "entry into the 2-3 ounce energy market," and "any internal scientific or marketing analysis concerning or discussing Hansen's energy drinks or Living Essentials 5 HOUR ENERGY product." (Doc. 18 at 4.)
Defendant's briefs in support of its request undermine the stated need for a deposition of Plaintiff's CEO to oppose Plaintiff's claim of possible irreparable injury. While claiming that a deposition of Plaintiff's CEO is needed to rebut his declaration, Defendant presents documents found on the internet which Defendant uses to argue against the facts stated in the CEO's declaration. (Doc. 18-4.)
Similarly, the reply brief represents that without expedited discovery Defendant was able to obtain evidence allegedly rebutting the testimony of Plaintiff's expert. (Doc. 18 at 2-3.) This evidence was obtained from Plaintiff's own public web site, without a deposition of Plaintiff's expert. Defendant fails to demonstrate an additional need for taking Plaintiff's expert's deposition in order oppose the motion for a preliminary injunction.
Defendant further argues that it is entitled to conduct expedited discovery in this matter due to the drastic remedy sought by Plaintiff, and because Plaintiff's delay in both bringing this lawsuit and in seeking the preliminary injunction mitigate against the burden to Plaintiff. Rather than establish good cause for expedited discovery, these arguments and the evidence presented in support of them, undermine Defendant's request for a 30(b)(6) deposition to provide evidence that Defendant claims is needed to argue the balance of the hardships presented by the preliminary injunction motion.
Plaintiff's opposition brief persuasively demonstrates that Plaintiff would be unduly prejudiced if Defendant is permitted to request document production in advance of the preliminary injunction hearing. Plaintiff contends that the document requests proposed by Defendant would entail an extensive search for electronically stored information which could be conducted more effectively after the parties hold their Rule 26(f) conference. (Doc. 16 at 8-9.)
Defendant fails to demonstrate a need for expedited discovery which will outweigh the prejudice to Plaintiff. Therefore Defendant's application for expedited discovery is hereby DENIED.
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