The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING DEFENDANT'S EX PARTE APPLICATION FOR ORDER AUTHORIZING DEPOSITION
[Motion filed on 1/8/12 ]
On Wednesday, January 8, 2013, Defendant Aeropostale, Inc. filed an ex parte Application for Order Authorizing Deposition of Lindsay Friedman Sword. Defendant asks that the court rule on its ex parte application within two days, by Friday, January 11, 2013, and to allow Defendant to depose Ms. Sword in New York on the following Monday, January 14, 2013.
Ex parte relief is generally disfavored when relief may be had through a regularly noticed motion. It will be granted only upon an adequate showing of good cause or irreparable injury to the party seeking relief. Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F.Supp. 488, 492 (C.D. Cal. 1995). The applicant must also show that it is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect. Id.
Aeropostale has not demonstrated that ex parte relief is warranted. This court, following a joint request by counsel, set pre-trial and trial dates approximately three months ago, on October 9, 2012. (Dkt. No. 127.) At no time during the intervening period did Defendant seek the relief it now requests on an ex parte basis. Nowhere in its application does Aeropostale provide any explanation why it waited until three business days before the relevant deadline to seek this court's authorization.
Furthermore, it does not appear that Aeropostale would be prejudiced by the denial of this application. Defendant acknowledges that it identified Ms. Sword's predecessor as an expert on April 19, 2010 (App. at 5), after the close of discovery. Aeropostale also argues that Ms. Sword's expert testimony "will cover the same topics [for which her predecessor] was designated." (App. at 6.) Aeropostale specifically identifies these topics as "branding, design and design apportionment related issues." (App. at 5.) Defendant's April 19 designation, however, identifies Ms. Sword's predecessor as an expert on "branding, business model, market appeal, and customer base." (Declaration of Cory A. Baskin in Support of Application, Ex. 1 p. 3:2.) Aeropostale appears to seek authorization for Ms. Sword to testify to matters beyond those identified in its designation of her predecessor. Fed. R. Civ. P. 26, 37.
For these reasons, Defendant's ex parte application is DENIED.
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