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Stephanie Mlejnecky v. Olympus Imaging America

February 7, 2011

STEPHANIE MLEJNECKY, PLAINTIFF,
v.
OLYMPUS IMAGING AMERICA, INC., DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the undersigned is defendant's motion for a protective order seeking to stay the exchange of mandatory disclosures and discovery in this case on the basis that a potentially dispositive motion to dismiss plaintiff's First Amended Complaint is set to be heard by United States District Judge John A. Mendez on February 23, 2011.*fn1 Specifically, defendant requests a protective order to stay: (1) the requirement that defendant produce its initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1); and (2) defendant's obligation to respond to plaintiff's first set of interrogatories and requests for production, which plaintiff served on defendant on December 7, 2010.

The court heard this matter on its law and motion calendar on February 3, 2011.

(Minutes, Dkt. No. 27.) Attorney Christopher M. Young appeared on behalf of defendant. Attorney Beth E. Terrel appeared on behalf of plaintiff. The undersigned has fully considered the parties' submissions, oral arguments, and the record in this case and, for the reasons that follow, denies defendant's motion for a protective order. The parties shall exchange initial disclosures on or before March 7, 2011, and defendant shall respond to plaintiff's discovery requests, as narrowed by plaintiff, on or before March 21, 2011. The undersigned also denies plaintiff's request for attorney's fees and costs.

I. BACKGROUND

A. Procedural History and Plaintiff's First Amended Complaint On September 28, 2010, plaintiff filed a Class Action Complaint For Injunctive

Relief and Restitution "for herself and on behalf of similarly situated persons in California who purchased Olympus Stylus 1030 SW or Stylus 850 SW cameras manufactured and sold by" defendant. (Compl. ¶ 1, Dkt. No. 1.) On October 13, 2010, the parties filed an initial stipulation permitting defendant to respond to plaintiff's complaint on or before November 3, 2010. (Dkt. No. 10.) On November 3, 2010, defendant filed a motion to dismiss plaintiff's complaint, and noticed it for a hearing to take place on January 26, 2011, before Judge Mendez.*fn2 (Mot. to Dismiss Compl., Dkt. No. 12.)

In response to defendant's motion, plaintiff filed a First Amended Complaint on November 23, 2010. (First Am. Compl., Dkt. No. 16.) The First Amended Complaint is the operative complaint.

Generally, the First Amended Complaint alleges that defendant, which manufactures, markets, and sells the Olympus Stylus 1030 SW and Stylus 850 SW cameras, knowingly misrepresented in advertising and marketing materials that "the Stylus 1030 SW cameras withstand drops of up to 6.6 feet and function in water up to 33 feet deep," and that "the Stylus 850 SW withstand drops of 5 feet and function in water up to 10 feet deep." (See First Am. Compl. ¶¶ 3-5.) It alleges that defendant knowingly concealed common defects in these cameras relating to the "card cover and card cover latch" that cause the cameras to fail or malfunction when submerged in water or dropped. (See id. ¶¶ 4-5.) Plaintiff alleges that these defects exist despite the fact that defendant initially advertised these cameras using words such as "shockproof," "waterproof," "crushproof," "freezeproof," and "geronimoproof." (See id. ¶ 23.) Moreover, plaintiff alleges that the cameras come with a one-year limited warranty that only warrants that the cameras "will be free from defects in materials and workmanship under normal use and service," and that plaintiff and proposed class-members did not see this limited warranty until after they received their cameras. (See id. ¶¶ 32-33, 35.) Plaintiff alleges that "the warranty excludes 'defects or damage to the Products resulting from . . . liquid, impact, [and] battery leakage' (emphasis added)." (Id. ¶ 33.)

Specifically as to plaintiff, the First Amended Complaint alleges that plaintiff purchased a new Olympus Stylus 1030 SW camera on July 14, 2008, in reliance on defendant's advertising materials that made representations about the shockproof and waterproof aspects of Olympus Stylus SW cameras. (See First Am. Compl. ¶ 8.) Plaintiff alleges that she "did not see a copy of her camera's warranty or know of its provisions until after she received the camera and opened the package." (Id. ¶ 9.) Plaintiff further alleges that on September 2, 2010, after expiration of the limited warranty, she "dropped her camera while attempting to take a picture of her children inside her house." (Id. ¶ 10.) She alleges that "[a]lthough she dropped the camera from only about 3 feet above the ground, the plastic latch for the battery/card cover broke, preventing the cover from closing. The message 'card cover open' appeared, and the cover simply would not latch closed, resulting in the camera being useless." (Id.) When plaintiff contacted defendant about the incident, defendant allegedly told plaintiff to send the camera to defendant for repairs, with a "ball park" estimate of $150 for the cost of repairs to be paid by plaintiff. (Id. ¶ 11.) Defendant required plaintiff to pay for the repairs despite the fact that plaintiff had dropped the camera at a height of three feet, and defendant's advertisements stated that the camera could withstand a drop from 6.6 feet. (See id.)

The First Amended Complaint alleges claims for: (1) knowing and intentional concealment of defects pertaining to the shockproof and waterproof aspects of Stylus SW cameras in violation of California's Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code §§ 1750 et seq.; (2) unlawful business practices pertaining to disclosures or omissions in advertising and product warranties, in violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200 et seq.; (3) unfair business practices in violation of the UCL; (4) fraudulent business practices in violation of the UCL; and (5) false advertising in violation of the UCL. (See First Am. Compl. ¶¶ 45-111.)

On December 8, 2010, defendant filed a motion to dismiss the First Amended Complaint and noticed it for a hearing to take place on February 23, 2011.*fn3 (Mot. to Dismiss First Am. Compl., Dkt. No. 17.) Relevant to the pending discovery motion, defendant's motion to dismiss contends that plaintiff's First Amended Complaint should be dismissed in its entirety because plaintiff: (1) lacks standing to bring her claims because she has not alleged any injury caused by defendant; and (2) failed to plead all of her claims for relief with particularity, which was required because plaintiff's claims are premised on allegations of fraud.*fn4 (See Notice of Mot. and Mot. to Dismiss First Am. Compl. at 2; Joint Statement at 4-7, 10-11.)

Plaintiff has not yet filed a written opposition to defendant's motion to dismiss. Plaintiff must file a written opposition or statement of non-opposition on or before February 9, 2011. See E. Dist. Local Rule 230(c).

Of note, the parties filed a joint status report looking ahead to class certification and other matters. (Joint Status Report, Dec. 13, 2010, Dkt. No. 18.) On December 16, 2010, Judge Mendez entered an interim scheduling order that provides: (1) plaintiffs motion for class certification shall be filed on or before September 7, 2011; (2) defendant's opposition shall be filed on or before November 9, 2011; (3) plaintiff's reply shall be filed on or before November 23, 2011; and (4) the hearing on the motion for class certification is set for Wednesday, December 7, 2011. (Minute Order, Dec. 16, 2010, Dkt. No. 19.)

B. The Discovery at Issue and Defendant's Motion For A Protective Order While all of the pleading-related matters transpired, the discovery dispute underlying the pending motion for a protective order brewed. On December 6, 2010, the parties conducted a conference pursuant to Federal Rule of Civil Procedure 26(f). (Joint Status Report ¶ 7.) Plaintiff's portion of the Joint Status Report contends that initial disclosures should be exchanged within 14 days of the Rule 26(f) conference, or December 20, 2010, as provided by the Federal Rules of Civil Procedure. (Id. ¶ 7(a).) Defendant expressed the view that the exchange of initial disclosures and discovery was premature in light of the pending, potentially dispositive motion to dismiss the First Amended Complaint. (Id.)

On December 7, 2010, plaintiff served her First Set of Interrogatories and Requests for Production on defendant. (Joint Statement, Ex. A, Dkt. No. 24 at 41-69.) This discovery consisted of 17 interrogatories and 36 requests for production of documents.

Defendant did not serve objections or responses to this discovery. Instead, on December 9, 2010, defendant's counsel sent a letter to plaintiff's counsel via e-mail stating defendant's position that disclosures and discovery were premature and requesting that plaintiff stipulate to a brief stay of ...


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