United States District Court, N.D. California
DISCOVERY ORDER RE: DKT. NOS. 78, 79
MARIA-ELENA JAMES UNITED STATES MAGISTRATE JUDGE.
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.
Cell Phone Records
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. 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
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.
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.
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.
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.
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,
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.
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 ...