United States District Court, S.D. California
ORDER DENYING EX PARTE MOTION [ECF No. 26]
JILL L. BURKHARDT, Magistrate Judge.
The parties in this action have a discovery dispute. The Court issued an order that the parties meet and confer and then file a Joint Statement for Determination of Discovery Dispute. Plaintiff BB Online UK Limited objects to this order and has filed and Ex Parte Application for the Court to Vacate, Modify and/or Clarify the Court's Minute Order of November 24, 2014. (ECF No. 26.) For the reasons set forth below, this application is DENIED.
I. Procedural Background
On Monday, November 24, 2014 counsel for defendant 101 Domain, Inc. called chambers and left a voicemail message. This message was listened to by chambers staff, who report that the short message notified the Court that the parties had a discovery dispute related to requests for production, the parties had met and conferred over the course of a number of weeks, and defendant was seeking an informal discovery conference. Although defendant indicates in its opposition to this application that two calls were placed to chambers, the Court is only aware of the single message that was left on November 24.
On Tuesday, November 25, 2014, the Court issued a minute order, which first addressed the ex parte nature of the call from defense counsel:
On November 24, 2014, counsel for Defendant contacted Magistrate Judge Burkhardt's chambers to schedule a discovery conference to resolve discovery disputes concerning responses to Defendant's first set of requests for production. Defense counsel represented that the parties satisfied their meet and confer obligations.
The Court reminds counsel that its Civil Chambers Rules contemplate that discovery disputes be raised by placing a joint call with opposing counsel to chambers to either schedule a discovery conference, or notify the Court of an anticipated ex parte motion (when the urgency of the matter requires such a motion). Thus, counsel are cautioned that future telephone calls should be placed in compliance with the Court's Local and Chambers Rules.
(ECF No. 25.) The order then directed: "The parties are to meet and confer and file a Joint Statement for Determination of Discovery Dispute on or before December 3, 2014 at 5:00 p.m. addressing any outstanding disputes." ( Id. ) Although the Court's Chambers Rules contemplate that the parties will engage in an informal dispute resolution process before filing discovery motions, the Court, sua sponte, determined that proceeding directly to motion filing in the form of a joint statement, after meeting and conferring, was the most appropriate and expeditious course of action in this matter.
On Tuesday, December 2, 2014, and Wednesday, December 3, 2014, Joel Weinstein, counsel for plaintiff BB Online UK Limited, left two extended voicemail messages with chambers, objecting to the November 25 order, asserting that the parties had not concluded their meet and confer process, demanding his "right" to engage in the Court's informal discovery dispute resolution process, and (ironically) complaining about defense counsel's allegedly improper ex parte communication with the Court that resulted in the order. In the second call, Mr. Weinstein also advised the Court that plaintiff would be filing an ex parte application regarding the order.
On Wednesday, December 3, 2014, plaintiff filed the instant ex parte Application for the Court to Vacate, Modify and/or Clarify the Court's Minute Order Dated November 24, 2014. (ECF No. 26.) Also on December 3, 2014, the parties filed a Joint Statement for Determination of Discovery Dispute, but plaintiff's portions of the joint statement were almost exclusively limited to objections to the process, and did little to address the substance of the discovery dispute. (ECF No. 27.) On Thursday, December 4, plaintiff filed a supplemental declaration by Joel Weinstein. (ECF No. 30). Also on December 4, defendant filed its opposition to plaintiff's ex parte application. (ECF No. 31.)
Plaintiff complains about issuance of the November 24 order on multiple bases, none of which have merit.
Ex parte communication. Plaintiff objects to the order on the basis that defendant's call to the Court seeking the Court's involvement in this discovery dispute was an improper ex parte communication, and plaintiff was not given an opportunity to be on the call. Plaintiff insists that the Court's Chamber Rules require that both parties be on the call, and further suggests that the ex parte communication constitutes a violation of the Rules of Professional Responsibility by defense counsel and an "unintentional" violation of the Cannons of Ethics by the Court. (ECF No. 26, p. 3.)
It is apparent to the Court that defense counsel gave plaintiff's counsel a full and fair opportunity to participate in her call to the Court in an effort to comply with the directive of the Court's Chambers Rules that all parties "should" be included on such ...