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Ortiz v. Amazon.Com LLC

United States District Court, N.D. California

May 25, 2018

AMAZON.COM LLC, et al., Defendants.

          DISCOVERY ORDER RE: DKT. NOS. 78, 79



         Plaintiff Michael Ortiz and Defendant Golden State FC LLC filed two joint discovery dispute letters. Records Ltr., Dkt. No. 78; Dep. Ltr., Dkt. No. 79. Having considered the parties‘ positions, the relevant legal authority, and the record in this case, the Court issues the following order.


         A. Cell Phone Records

         On March 7, 2018, the Court ordered Plaintiff to produce his cell phone records to Golden State no later than April 6, 2018. Disc. Order, Dkt. No. 70. As of May 23, 2018, Plaintiff has not done so. Records Ltr. at 1. Plaintiff states these records are not in his possession or control, as he is not the account holder for the phone records. Id. at 5. Rather, the account is in his non-party wife‘s name.[1] Id. Plaintiff ''has attempted to obtain the phone records by requesting them from the carrier, but was unable to do so because he is not authorized to obtain such records from the carrier.'' Id. ''Plaintiff also sought to obtain the records through his wife, but has been unable to do so.'' Id. Plaintiff does not explain why this is.

         Golden State represents, and Plaintiff does not dispute, that Plaintiff did not inform Golden State that the cell phone records were in his wife‘s name and thus unobtainable until April 27, 2018-three weeks after the Court-ordered deadline for production. Id. at 1. Indeed, the parties‘ prior discovery letter on this matter was silent as to this fact. See RFP Ltr., Dkt. No. 66. Plaintiff has also refused to provide his wife‘s name and address to allow Golden State to subpoena the records from her, despite Plaintiff‘s representations that he would do so by May 8 and 16. Records Ltr. at 1-2.

         Plaintiff does not explain his delay in informing Golden State that the cell phone records are not in his possession or control. Plaintiff knew or should have known who is named on the account; he offers no reason why this information was not available to him prior to April 27. Plaintiff has known as early as September 18, 2017, and at the very latest, as of March 7, 2018, that he had to produce his phone records. See Disc. Order; RFP Ltr. at 1 (Golden State served its Requests for Production, including its request for Plaintiff‘s cell phone records, on Plaintiff on September 18, 2017). Plaintiff nevertheless waited three weeks past the Court-ordered deadline to inform Golden State that he could not obtain the records and the reason therefor.

         Plaintiff states that, ''[f]or personal reasons, Plaintiff wishes to maintain the details of his relationship status, and interactions with his wife, private.'' Records Ltr. at 5. This argument is unpersuasive. By alleging Golden State failed to pay him for all hours worked and to provide him with meal and rest breaks, Plaintiff has placed his work day activities - including whether he made or received phone calls or text messages on his personal cell phone - at issue. Providing the account holder‘s name and address reveals minimal details, if any, about Plaintiff‘s marital status or interactions.

         Within two days of this Order, Plaintiff shall provide Golden State with his cell phone account holder‘s name and address. Plaintiff shall immediately file a declaration under penalty of perjury attesting that he has done so and stating the reasons why he cannot obtain the records himself.

         B. Plaintiff's Deposition

         ''Courts ordinarily presume that a plaintiff may be deposed in the judicial district where the action was brought, inasmuch as the plaintiff, in selecting the forum, has effectively consented to participation in legal proceedings there.'' Jones v. Nutiva, Inc., 2017 WL 3412302, at *1 (N.D. Cal. Aug. 9, 2017) (internal quotation marks omitted). To overcome this presumption, the plaintiff bears '''the burden of proving that undue hardship or exceptional or compelling circumstances justify his refusal to travel to his chosen forum.‘'' Id. (quoting Mullins v. Premier Nutrition Corp., 2014 WL 4058484, at *1 (N.D. Cal. Aug. 15, 2014)).

         On January 25, 2018, Golden State requested Plaintiff‘s availability for deposition. Dep. Ltr. at 1. Over a month later, on March 1, 2018, Plaintiff confirmed his deposition would take place on April 23, 2018. Id. On March 7, 2018, Golden State served a Notice of Deposition that Plaintiff‘s deposition would take place at defense counsel‘s San Francisco office. Id. On April 19, 2018, Plaintiff cancelled the deposition because he moved to Los Angeles. Id.

         Plaintiff‘s deposition shall take place in San Francisco. Plaintiff does not state when he moved to Los Angeles; presumably, he moved or knew he was moving prior to April 19, 2018. That he did not inform Golden State that his relocation would cause difficulties until the eve of the deposition is not well taken. Plaintiff argues Golden State appears to engage in ''dilatory tactics and gamesmanship to slow this litigation.'' Dep. Ltr. at 4. This argument ...

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