The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. Magistrate Judge United States District Court
ORDER DENYING EX PARTE APPLICATION [Doc. No. 75] AND RELATED COUNTER-CLAIMS.
On January 14, 2011, Plaintiff's counsel filed an ex parte application seeking leave to file a motion to compel. Defendants filed an opposition on January 18, 2011 and the Plaintiff filed a reply on January 19, 2011. For the reasons set forth below, the Plaintiff's Ex Parte Application is hereby DENIED.
Plaintiff's counsel contacted the Court on November 18, 2010 regarding a discovery dispute involving between 15-18 Interrogatories and between 80-100 Requests for Production of Documents and requested a hearing date for a motion to compel.*fn1 Since Plaintiff's counsel represented to the Court's law clerk that the parties had not met and conferred in compliance with Civil Local Rule 26.1, Plaintiff's counsel was instructed to telephonically meet and confer with Defendants' counsel regarding all disputed discovery and then jointly contact the Court thereafter to address any remaining disputes.
The parties agreed to meet and confer telephonically on November 23, 2010 and then contacted the Court's law clerk at the conclusion of their meet and confer efforts. During the discovery conference call with the Court's law clerk on November 23, 2010, the parties stated that all of the disputed discovery, which would be the subject of the Plaintiff's motion to compel, involved two products which the Plaintiff openly admitted were not identified in the Plaintiff's complaint or preliminary infringement contentions (hereinafter "PICs"). Defendants' stated that they produced photos and schematics and would permit additional access to product samples to provide sufficient information for Plaintiff to see that the asserted claims do not cover these products,*fn2 but refused to provide the requested sales information for the two products because they were not identified in the complaint or PICs. Judge Battaglia informed the parties through the law clerk that he would not compel production with regard to products outside the scope of the pleadings since the PICs had already been exchanged.
The Plaintiff's ex parte application for leave to file a motion to compel presents numerous timeliness, compliance and scope issues.
I. Compliance With Federal Rules, Local Civil Rules and Chambers Rules
A. Compliance With Federal Rules
First the Court notes that Rule 16(b) of the Federal Rules of Civil Procedure, requires a showing of good cause and leave of the Court to amend scheduling orders. Per this Court's June 30, 2010 Scheduling Order, [Doc. No. 17], all claims construction discovery was to be completed on or before December 15, 2010. Plaintiff did not file the instant ex parte application until January 14, 2011. As such, no showing of good cause has been made and no motion to modify the scheduling order has been filed by the Plaintiff.
In the instant ex parte application, [Doc No. 75], and proposed motion to compel under Rule 37, [Doc. No. 75-3], the Plaintiff must demonstrate good faith efforts to confer with defense counsel to obtain the requested discovery. Fed. R. Civ. P. 37(a)(2)(B). Plaintiff refers the Court to document demands and follow up letters and emails seeking the requested discovery,*fn3 however, the Defendant responded to these requests with the same objections. During each letter or email exchange, the Plaintiff failed to address the relevancy objections raised by the Defendant and merely reiterated its earlier request (either by letter or email) without any attempt to confer to avoid this motion. The Plaintiff only conferred with Defendant after being instructed by the Court's law clerk on November 18, 2010 to do so. The Plaintiff does not discuss further conversations or other efforts to obtain these documents short of this motion, other than repeatedly asking for them. As an ex parte application to file a Rule 37 motion, it should be denied for failing to satisfactorily certify Plaintiff's good faith efforts to resolve this dispute short of motion practice.
B. Compliance With Local Civil Rules and Chambers Rules
The Plaintiff's counsel is, and was at all relevant times, aware of 1) chamber's rules requiring parties to first contact the Court's law clerk to discuss discovery disputes before filing any documents with the Court;*fn4 2) Local Civil Rule 5.1.J.4, which requires a date and time to appear in the caption of any motion filed with the court; and 3) Local Civil Rule 7.1.b, which requires the moving party obtain a hearing date and time from the clerk of the judge to whom the case is assigned. Plaintiff's use of an ex parte application in this instance is not appropriate because Plaintiff's counsel was fully informed by the Court's law clerk of the above requirements on November 18, 2010, which was 57 daysbefore the Plaintiff's filing of the ex parte application and 27 days before the close of claims construction discovery. The Plaintiff's overall lack of diligence in pursuing the disputed discovery ...