Hamby

ORDER RE EX PARTE APPLICATION FOR DISCOVERY AND STAY OF MOTION TO COMPEL ARBITRATION

Plaintiff moves ex parte for an order permitting him to conduct discovery on the issue of whether the arbitration clause and class action waiver are unconscionable and an order continuing the hearing date for Defendant’s motion to compel arbitration.

Plaintiff asserts that under California Civil Code section 1670.5(b), he is entitled to discovery on this issue. This section confers Plaintiff with “ ‘a reasonable opportunity to present evidence as to [a contract’s] commercial setting, purpose, and effect’ to aid the court in determining if the contract or any clause thereof is unconscionable.” § 1670.5(b). Although it is less than clear that this right “to present evidence” is equivalent to a right to obtain discovery materials to be used to argue that a contract or clause is unconscionable, there is limited authority for Plaintiffs position. See Wobb v. Ford Motor Co., 76 F.R.D. 452, 458 (W.D.Pa.1977); Carlson v. General Motors Corp., 883 F.2d 287, 293 (4th Cir.1989). Additionally, although neither side addresses this case, at least one court applying Ninth Circuit precedent has held that a…