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Somers v. Digital Realty Trust Inc.

United States District Court, N.D. California

May 31, 2017

PAUL SOMERS, Plaintiff,
v.
DIGITAL REALTY TRUST INC, et al., Defendants.

          ORDER REGARDING MAY 2017 DISCOVERY FILINGS RE: DKT. NOS. 222, 226, 227, 228, 229, 233, 234, 235, 236

          KANDIS A. WESTMORE United States Magistrate Judge.

         The discovery cut off in this case was April 6, 2017. (Dkt. No. 183.) Pursuant to Civil Local Rule 37-3, "no motion to compel discovery may be filed more than 7 days after the discovery cut-off." Further, on April 14, 2017, following an April 11, 2017 discovery hearing, the Court set a schedule for the parties to address all remaining disputes: Defendants were to file a letter addressing all their remaining discovery disputes by April 21, 2017, Plaintiff was to file a response and identify all his remaining discovery disputes by April 28, 2017, and Defendants were to file a reply by May 5, 2017. (Dkt. No. 212 at 1.) The April 14, 2017 order clearly stated: "All disputes not raised in these letters will be deemed waived; the letters must encompass all remaining disputes that the parties desire the Court to resolve." (Id. at 1-2 (original emphasis).)

         Despite Civil Local Rule 37-3 and the Court's April 14, 2017 order, the parties have filed numerous unpermitted discovery filings in the last month, which the Court addresses below.

         I. DISCUSSION

         A. May 3, 2017 Discovery Letter (Dkt. Nos. 222, 226)

         On May 3, 2017, Plaintiff filed a discovery letter titled: "Paul Somers v. Digital Realty Trust & Ellen Jacobs - Important Discovery Being Withheld by Defendant." (Dkt. No. 222.) The letter asserted that on April 20, 2017, Plaintiff had learned from "a former high level SVP" that Defendant Digital Realty had filed a lawsuit against Mr. Kumar after Mr. Kumar was forced to resign. (Id. at 1.) On May 10, 2017, Defendants requested that Plaintiff's May 3, 2017 letter be stricken as untimely. (Dkt. No. 226.)

         The Court GRANTS Defendants' request and STRIKES Plaintiff's May 3, 2017 letter as untimely. Plaintiff states that he learned of the lawsuit on April 20, 2017. Thus, if Plaintiff wanted discovery on this matter, Plaintiff should have raised the dispute in his April 28, 2017 response, as required by the Court's April 14, 2017 order. The Court will therefore only consider this matter to the extent it was raised in Plaintiff's April 28, 2017 filing; if the matter was not raised, it is waived.

         B. May 11, 2017 Request for Hearing (Dkt. No. 227)

         On May 11, 2017, Plaintiff filed a request for hearing, and "request[ed] that no further actions or orders be given until after this hearing occurs." (Dkt. No. 227.) The Court DENIES Plaintiff's request for a hearing. If the Court deems a hearing necessary to resolve the discovery matters raised in the parties' filings made pursuant to the April 14, 2017 order, it will set one.

         C. May 16, 2017 Filing (Dkt. No. 228)

         On May 16, 2017, Plaintiff filed what appears to be a sur-reply to Defendants' May 5, 2017 reply. (Dkt. No. 228 ("Attached is my line by line review of the Defendants [sic] May 5, 2017, [sic] letter").) The Court's April 28, 2017 order did not permit the filing of a sur-reply, nor did Plaintiff seek leave to file a sur-reply. The Court therefore STRIKES Plaintiff's May 16, 2017 filing. Should the May 16, 2017 letter request any relief, such relief is DENIED as untimely.

         D. May 18, 2017 Filing (Dkt. No. 229)

         On May 18, 2017, Defendants filed an ex parte administrative motion to remove Plaintiff's May 16, 2017 filing or, in the alternative, to seal Exhibits C, E, F, O, and T. (Dkt. No. 229.) On May 19, 2017, Plaintiff filed a response, stating that he would remove Exhibit T but opposing the remainder of the request to seal. (Dkt. No. 230.)

         The Court DENIES the request to seal Exhibit C. Defendants appear to assert attorney-client privilege. (Petersen Decl., Dkt. No. 229-1, Exh. 1.) While the original e-mail introduces Attorney Pedersen, the e-mail chain itself does not appear to include Attorney Pederson as a recipient or sender of any of the e-mails. Thus, it is not clear attorney-client privilege ...


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