Stoba v. Saveology.com, LLC

          ORDER: (1) DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION OF MAGISTRATE JUDGE’S ORDER DENYING ADDITIONAL DISCOVERY RE: DOMAIN NAME AGREEMENT [DOC. NO. 179]; AND (2) SETTING ORAL ARGUMENT ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [DOC. NOS. 99, 190, 191, & 192]

          HON. CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE

         Plaintiffs George and Daphne Stoba filed a “motion for reconsideration” of the Magistrate Judge’s June 3, 2016 Order denying their ex parte application to conduct further discovery. Plaintiffs requested an un-redacted copy of the Domain Name Ownership Agreement and a deposition regarding the document to prepare for their pending class certification motion. The Court treats the filing as an objection pursuant to Federal Rule of Civil Procedure 72(a). The Court affirms the Magistrate Judge’s Order, which held that the material is not relevant to the class certification phase, but allowed Plaintiffs to renew their request during merits discovery.

         The Court will hear oral argument on the motion for class certification on Wednesday, August 31, 2016 at 2:30 p.m. Plaintiffs must file their reply brief, if any, on or before August 10, 2016.

         Background

         Plaintiffs allege that Defendants Saveology.com, LLC, Elephant Group, Inc., and Time Warner Cable Inc. violated California’s privacy laws by recording their telephone calls without their consent. Plaintiffs testified that they called a toll-free number that they found on the website www.timewarnercablespecial.com. Defendants moved for summary judgment, in part, on the ground that they did not “own” that website. Plaintiffs contended this was a false statement and sought sanctions. In response, Defendants amended their brief to state they did not “operate” the website, submitted supplemental declarations, and attached a redacted copy of the Domain Name Ownership Agreement. Defendants argued that Bridgevine, Inc., a non-party, operated the web page. Plaintiffs argued that certain terms of the Agreement granted a license to Defendant Time Warner Cable that essentially established an ownership interest in the webpage.

         On May 9, 2016, the Court denied Defendants’ motions for summary judgment and denied Plaintiffs’ motion for sanctions.

         The governing schedule had required Defendants to oppose the class certification motion thirty days after the summary judgment ruling. At the May 9 hearing, Defendants requested more time to address discovery matters, and the Court amended the schedule to allow Defendants sixty days to file their brief. Pursuant to the Local Rules, the reply brief would have been due seven days later. Civ. L.R. 7.1(e); Judge Bashant’s Standing Order for Civil Cases ¶ 4B.

         On May 27, 2016, Plaintiffs filed an ex parte motion for an order allowing them to conduct discovery on the new evidence before the hearing on their motion for class certification. Plaintiffs sought an un-redacted copy of the Domain Name Ownership Agreement. They noted that Defendants had not disclosed it until after the deadline for class discovery and that Defendants had blacked out information identifying names and contact information of Bridgevine’s employees.

         The Magistrate Judge held the request was improper procedurally and substantively. First, “they filed it ex parte with no meet and confer and no prior notice to Defendants.” Second, “it seeks discovery that is not relevant to class certification.” [Doc. No. 178 at 7] The Magistrate Judge denied Plaintiffs’ discovery motion without prejudice to renewal during the merits phase of discovery.

         Plaintiffs contend the Order is “clearly erroneous” and “contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. Pro. 72(a).

         A. Meet and Confer Requirement

         Plaintiffs object to the Magistrate Judge’s fact finding that they did not comply with the meet and confer requirement.

         Counsel must attempt to resolve a dispute before filing a discovery motion. Civ. L.R. 26.1(a); see Fed. R. Civ. P. 37(a) (a party may move for discovery if “movant has in good faith conferred” with opponent to obtain it). The meet and confer requirement is specific. “If counsel have offices in different counties, they are to confer by telephone. Under no circumstances may the parties satisfy the meet and confer requirement by exchanging written correspondence.” Civ. L.R. 26.1(a); accord Judge Stormes’ Chambers Rules § VI(A) (“If counsel are located in different districts, then telephone or video conference may be used. In no event will meet and confer letters, facsimiles or emails satisfy this requirement.”).

         Plaintiffs argue they satisfied this requirement during the May 16, 2016 telephone ...