United States District Court, S.D. California
GEORGE STOBA and DAPHNE STOBA, on behalf of themselves and others similarly situated, Plaintiffs,
SAVEOLOGY.COM, LLC; ELEPHANT GROUP, INC, and TIME WARNER CABLE INC., Defendants.
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, &
CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE
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.
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.
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.
9, 2016, the Court denied Defendants’ motions for
summary judgment and denied Plaintiffs’ motion for
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.
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.
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
contend the Order is “clearly erroneous” and
“contrary to law.” 28 U.S.C. § 636(b)(1)(A);
Fed. R. Civ. Pro. 72(a).
Meet and Confer Requirement
object to the Magistrate Judge’s fact finding that they
did not comply with the meet and confer requirement.
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
argue they satisfied this requirement during the May 16, 2016