UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
July 29, 2010
BILLY DANIELS, PLAINTIFF,
LIFELOCK, INC. MARKETING AND SALES PRACTICES LITIGATION, DEFENDANT.
The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO QUASH DEPOSITION SUBPOENA [Doc. 1, 2]
On July 26, 2010, Plaintiff initiated the instant action by filing a Motion to Quash the Deposition Subpoena of Billy Daniels. [Docs. 1, 2.]*fn1 The underlying litigation is a multi-district class action lawsuit currently pending in the District of Arizona. (Case No. 08-MD-1977 (D. Az.).) In March 2010, the case settled, and shortly thereafter, District Judge Mary H. Murguia preliminarily approved the settlement agreement and corresponding plan for class action notice. (Id. at Doc. 159.) Furthermore, Judge Murguia scheduled the final approval hearing for August 10, 2010. (Id.) After receiving notice, class member Billy Daniels filed an Objection to the proposed settlement. (Id. at Doc. 187.) Counsel representing the class of Plaintiffs ("Class counsel") then noticed Daniels for a deposition to take place on July 30, 2010.
On July 29, 2010, the Honorable Louisa S Porter held a telephonic Discovery Conference in this matter. Appearing were: Darrell Palmer, Esq., and Janine Menhennet, Esq., counsel for Billy Daniels; Leonard Aragon, Esq., Class counsel; and Peter Antonucci, Esq., counsel for Defendants in the underlying class action. After consideration of the parties' oral argument, and based on a thorough review of the briefing and relevant case law, the Court hereby GRANTS Daniels' motion to quash the deposition subpoena for two reasons. First, Class counsel failed to seek permission of the district court to notice Daniels' deposition. Although a court may, in its discretion, grant discovery to "assist it in determining the fairness and adequacy of the settlement," there is no absolute right to such discovery. See, e.g., Jaffe v. Morgan Stanley & Co., Inc., 2008 WL 346417, at *2 (N.D. Cal. 2008). Thus, a litigant must request permission from the court before initiating the discovery. Furthermore, this request should be presented first to the court conducting the final approval hearing. However, Class counsel did not obtain, or even seek, permission from either this Court or the District of Arizona. Second, discovery is likely premature pending the final approval hearing. At this hearing, the court will evaluate the objections, and the litigants will have an opportunity to meaningfully participate and present argument. If, at that time, Judge Murguia finds there is a need for further development of the facts, Judge Murguia may allow discovery.
In light of the foregoing, the deposition subpoena is hereby QUASHED.
IT IS SO ORDERED.