United States District Court, N.D. California
ORDER REGARDING MAY 2017 DISCOVERY FILINGS RE: DKT.
NOS. 222, 226, 227, 228, 229, 233, 234, 235, 236
A. WESTMORE United States Magistrate Judge.
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).)
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.
May 3, 2017 Discovery Letter (Dkt. Nos. 222, 226)
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.)
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.
May 11, 2017 Request for Hearing (Dkt. No. 227)
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.
May 16, 2017 Filing (Dkt. No. 228)
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.
May 18, 2017 Filing (Dkt. No. 229)
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.)
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