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Romero v. Securus Technologies, Inc.

United States District Court, S.D. California

April 17, 2017

JUAN ROMERO, FRANK TISCARENO, and KENNETH ELLIOTT, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
SECURUS TECHNOLOGIES, INC., Defendant.

          ORDER DENYING PLAINTIFFS' MOTION TO EXPEDITE DISCOVERY AND FOR A PRESERVATION ORDER [ECF NO. 32]

          Mitchell D. Dembin United States Magistrate Judge

         Plaintiffs are two former inmates and a criminal defense attorney, all of whom used Defendant's telephone systems to make calls to and from certain correctional facilities in California. Plaintiffs allege that Defendant recorded a number of attorney-client calls in violation of California law. On May 27, 2016, Plaintiffs filed their class action Complaint in this Court asserting federal jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d). (ECF No. 1). A first amended complaint (“FAC”) was filed on July 26, 2016. (Doc. No. 8.) On October 24, 2016, the Court issued an Order granting in part and denying in part Defendant's Motion to Dismiss. (ECF No. 21). A second amended complaint (“SAC”) was filed on November 7, 2016. (ECF No. 22). On January 26, 2017, the Court again granted in part and denied in part Defendant's Motion to Dismiss. (ECF No. 29). A third amended complaint (“TAC”) was filed on February 8, 2017. (ECF No. 30). Another Motion to Dismiss was filed by Defendant and granted by the Court on March 29, 2017. (ECF No. 37). The TAC is now the operative pleading and was answered by Defendant on April 12, 2017. (ECF No. 41).

         Before the Court is Plaintiffs' Motion to Expedite Discovery and for a Preservation Order, filed on March 10, 2017, some ten months after this action was initiated. (ECF No. 32). Defendant responded in opposition on March 31, 2017. (ECF No. 38). Plaintiffs replied on April 7, 2017. (ECF No. 39). As provided herein, Plaintiffs' motion is DENIED.

         DISCUSSION

         A. Motion for Preservation Order

         In considering a motion for an order preserving evidence, the court is to consider:

1) The level of concern the court has for the continuing existence and maintenance of the integrity of the evidence in question in the absence of an order directing preservation of the evidence;
2) Any irreparable harm likely to result to the party seeking the preservation of the evidence absent an order directing preservation; and
3) The capability of an individual, entity, or party to maintain the evidence sought to be preserved.

Jardin v. Datallegro, Inc., et al, No. 08-cv-1462, 2008 WL 4104473 *1 (September 3, 2008, S.D. Cal.) (citations omitted).

         Plaintiffs support their motion by referring to an alleged “purge” of certain recordings by Defendant in 2014 at the request of the San Diego Sheriff. The alleged purge occurred years before this case was filed. The Court is satisfied with Defendant's assertion that it recognizes and will abide by its preservation obligations. The Court has no concern, based upon this record, for the continuing existence and maintenance of the integrity of the evidence in question. The Motion for an Order of Preservation is DENIED.

         B. Motion for Expedited Discovery

         Federal Rule of Civil Procedure 26(d) states:

A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by ...

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