1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HELIX ELECTRIC, INC. Case No.: 20cv295-CAB-LL 12 Plaintiff, ORDER DENYING PLAINTIFF’S

MOTION RE: DISCOVERY

13 v.

DISPUTE AS UNTIMELY

14 QBE SPECIALTY INSURANCE COMPANY; and [ECF No. 24] 15 DOES 1 through 10, 16 Defendant. 17 18 19 Currently before the Court is Plaintiff’s Motion on the Timeliness of the Parties’ 20 Discovery Dispute [ECF No. 24 (“Mot.”)], and Defendant’s Opposition on the Timeliness 21 of the Discovery Dispute [ECF No. 25 (“Oppo.”)]. For the reasons set forth below, the 22 Court DENIES Plaintiff’s Motion as untimely. 23 I. RELEVANT BACKGROUND 24 On April 6, 2020, the Court issued a Scheduling Order which set September 4, 2020 25 as the deadline for completing fact discovery. ECF No. 12. On September 21, 2020, the 26 parties filed a joint motion to amend the Scheduling Order. ECF No. 17. The parties stated 27 that they needed additional time to complete the scheduled and anticipated depositions in 28 this case and stated that “it became clear that leave of the Court to modify the Scheduling 1 Order is needed at this time and could not be done by stipulation.” Id. at 2. The parties 2 requested that the Court continue the deadline for fact discovery to be continued to October 3 16, 2020. Id. On September 22, 2020, the Court granted the parties’ joint motion to amend 4 the Scheduling Order and continued the fact discovery deadline to October 16, 2020. ECF 5 No. 18. Expert discovery deadlines were also extended. Id. The Court stated in its 6 September 22, 2020 Order that “[a]ll other requirements and deadlines set forth in this 7 Court’s April 6, 2020 Scheduling Order shall remain, and no further extensions shall be 8 considered absent extraordinary circumstances.” Id. 9 Subsequently, counsel informally stipulated, without Court approval, to schedule the 10 depositions of two fact witnesses after the discovery cut-off, Mr. Gregory Stragier on 11 October 21, 2020, and Mr. Tony Holden on October 23, 2020. Motion at 2; Oppo. at 2. 12 Plaintiff states in the instant Motion that “[d]espite the extension, the earliest dates 13 depositions of QBE’s two key witnesses could be coordinated were after the new fact 14 discovery cut-off.” Motion at 2. The three emails that are the subject of the instant dispute 15 are communications between the two deponents whose depositions were held after the 16 discovery cut-off. Motion at 3; Oppo. at 4. 17 Counsel for Plaintiff first contacted the Court about the instant dispute on November 18 30, 2020. The Court set an informal discovery dispute conference with counsel for Plaintiff 19 Michael Pepe and Eric Clarkson, and counsel for Defendant, John Morning the next day, 20 on December 1, 2020. ECF No. 21. The Court subsequently issued a briefing schedule for 21 the parties to set forth their respective positions on whether the dispute is timely in light of 22 chambers rules, the Court’s April 6, 2020 Scheduling Order, and the closing of fact 23 discovery on October 16, 2020. See ECF Nos. 21; 12 at 3; 18 at 1. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 II. PARTIES’ ARGUMENTS 2 A. Plaintiff’s Argument 3 Plaintiff states that the three emails1 that are the subject of this dispute “were 4 produced in July, and again by Envista in October, but redacted under the guise of the 5 attorney-client privilege and attorney work product doctrine.” Motion at 3. Plaintiff took 6 the deposition of Mr. Stragier on October 21, 2020 and Mr. Holden on October 23, 2020. 7 Id. at 2. Plaintiff states that it received the transcripts of the depositions of Mr. Stragier 8 and Mr. Holden on November 6, 2020 and November 8, respectively. Id. Plaintiff argues 9 that the instant discovery dispute is timely under the Scheduling Order and Civil Chambers 10 Rules. Id. In support, Plaintiff states that “[w]hile the Scheduling Order states ‘fact 11 discovery shall be completed by’ October 16, 2020, it clarifies that this only means 12 discovery tools under Fed. R. Civ. Proc. 30-36, and 45, ‘must be initiated a sufficient period 13 of time in advance of the cut-off date, so that it may be completed by the cut-off date.’” Id. 14 Plaintiff further argues that “‘completion’ of fact discovery does not foreclose resolution 15 of disputes that may arise close to the deadline but where compliance with other rules 16 require the parties to delay bringing the issue to the Court’s attention, as is the case here.” 17 Id. at 3-4. 18 Plaintiff also argues that the instant “dispute was brought to chambers on November 19 30, only twenty-two days after the pertinent transcripts had been completed.” Id. at 4. 20 Plaintiff further argues that “[i]t would have been impossible to raise this issue before fact 21 discovery cut-off based on when these depositions took place and Helix’s duties under the 22 rules [described in Plaintiff’s Motion].” Id. 23 Finally, Plaintiff argues that “[e]ven if the Scheduling Order and Civil Chambers 24

25 26 1 Defendants state that two of the messages at issue were produced by QBE in redacted form in July 2020. Oppo. at 4. Defendants state that a third e-mail message, on August 12, 2019, was “first produced in 27 redacted form by Mr. Holden in connection with his October 23, 2020 deposition.” Id. Even if one of the documents at issue was produced for the first time in October 2020, the Court still finds the dispute is 28 1 Rules can be interpreted to mean this dispute is potentially untimely, the Court has broad 2 discretion over scheduling matters and the interests of justice are served by the minimal 3 accommodation Helix seeks.” Id. at 5 (internal citations omitted). Plaintiff states that “the 4 dispute is both narrow and critical to the case, making the accommodation of resolving it 5 at this stage a just and considered result.” Id. Plaintiff alleges that “QBE has – without 6 justification – impeded discovery of these communications” and that these “issues only 7 became clear upon the deposition of Mr. Stragier and document production from Mr. 8 Holden on October 21, 2020 and Mr. Holden’s deposition on October 23, 2020.” Id. 9 B. Defendant’s Argument 10 Defendant argues that: 11 [The instant discovery dispute] involves at least two documents (e-mail messages from June 25 and August 23, 2019) that were first produced by 12 defendant QBE Specialty Insurance Company in redacted form in March 2020 13 in connection with QBE’s initial Rule 26 disclosures. On July 8, 2020, QBE again produced the documents in response to Helix’s initial inspection 14 demands, also in redacted form, and with a privilege log which described the 15 participants to the communications and the bases for QBE’s assertion of the attorney-client privilege and attorney work product doctrine. Thus, by at least 16 July 2020, Helix was aware the redacted items included communications 17 among QBE’s in-house claim-handler, Greg Stragier and its outside counsel with the law firm Mound, Cotton, Wallan & Greengrass LLP, Jonathan Gross, 18 Esq. and Natalie Vu, Esq. as well as QBE’s retained third-party forensic 19 investigator, Tony Holden of Envista Forensics. Accordingly, by July 2020, Helix was alerted to the grounds for it to contest QBE’s assertion of privilege, 20 i.e., that QBE purportedly waived any applicable privilege, or none ever 21 existed, due to the inclusion of Mr. Holden in these communications.

22 Oppo. at 2. Defendant further argues “[n]otwithstanding Helix learning this information at 23 least by July, Helix did nothing to contest QBE’s assertion of privilege at the time or pursue 24 an order compelling production of the unredacted documents.” Id. Defendant states that 25 “[i]nstead, Helix waited until taking the depositions of Mr. Stragier and Mr. Holden in late 26 October to perform some cursory questioning regarding the content of the documents (to 27 which QBE again objected) and then pursue an informal discovery conference with the 28 1 Court regarding QBE’s failure to produce the unredacted documents.” Id. Defendant argues 2 in sum that “[b]ecause QBE first served its privilege objection in connection with the e- 3 mails on July 8, 2020, Helix’s current attempt to pursue a discovery motion concerning the 4 messages is plainly belated and runs afoul of the Court’s Scheduling Order.” Id. at 3. 5 Finally, Defendant argues that “there is no good cause for the Court to exercise its 6 discretion to allow Helix to pursue an untimely motion to compel.” Id. 7 III. LEGAL STANDARD 8 “The district court has wide discretion in controlling discovery.” Little v. City of 9 Seattle, 863 F.2d 681, 685 (9th Cir. 1988). Pursuant to Rule 16, the Court is required to 10 issue a scheduling order that “must limit the time to join other parties, amend the pleadings, 11 complete discovery, and file motions.” See Fed. R. Civ. P. 16(b)(3)(A). “A schedule may 12 be modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). 13 "Rule 16(b)'s 'good cause' standard primarily considers the diligence of the party seeking 14 the amendment." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 15 1992). If the moving party fails to demonstrate diligence, "the inquiry should end." Id. “A 16 scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly 17 disregarded by counsel without peril.” Id. at 610 (internal quotation marks and citation 18 omitted). “Disregard of the order would undermine the court's ability to control its docket, 19 disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier.” 20 Id. Further, Rule 29 provides that “a stipulation extending the time for any form of 21 discovery must have court approval if it would interfere with the time set for completing 22 discovery.” Fed. R. Civ. P. 29(b). 23 Rule 6 provides that “[w]hen an act may or must be done within a specified time, 24 the court may, for good cause, extend the time . . . on motion made after the time has 25 expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b). To 26 determine whether missing a deadline constitutes excusable neglect, the Ninth Circuit 27 applies the factors set forth by the United States Supreme Court in Pioneer Investment 28 Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993). Id. at 395; 1 Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997). The factors include: 2 (1) the danger of prejudice to the non-moving party, (2) the length of delay and its potential 3 impact on judicial proceedings, (3) the reason for the delay, including whether it was within 4 the reasonable control of the movant, and (4) whether the moving party acted in good faith. 5 Pioneer, 507 U.S. at 395. The weighing of Pioneer's equitable factors is left to the discretion 6 of the court. Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir.2004). 7 IV. DISCUSSION 8 As an initial matter, Plaintiff concedes that the three emails that are the subject of 9 this dispute were produced by QBE in July 2020, and again by Envista in October 2020, 10 but redacted on the basis of the attorney-client privilege and attorney work product 11 doctrine. Mot. at 3. As set forth in Judge Lopez’s Chambers Rules, “[a]ny motion related 12 to discovery disputes must be filed no later than thirty (30) days after the date upon which 13 the event giving rise to the dispute occurred. . . . For written discovery, the event giving 14 rise to the discovery dispute is the date of service of the response, or the passage of a 15 discovery due date without response or production, not the date on which counsel reach an 16 impasse in meet and confer efforts.” Judge Lopez’s Civil Chambers Rules, Section V.C. 17 Accordingly, by July 2020, Plaintiff was aware of Defendant’s claim of the attorney-client 18 privilege and attorney work product protection over the disputed communications, but did 19 not raise any such issue with the Court until November 30, 2020. Plaintiff argues that “[i]n 20 redacted form [the documents] appeared to be protected by privilege, but the depositions 21 of Mr. Stragier and Mr. Holden confirmed that there was no basis for QBE to assert a claim 22 of privilege as to those emails.” Motion at 3. Notably, Plaintiff fails to provide any 23 explanation or factual support of what additional information was allegedly gained during 24 the October depositions to support this broad conclusion. 25 Additionally, the Scheduling Order in this case set a fact discovery deadline of 26 October 16, 2020. ECF No. 18. As set forth in Rule 29, “a stipulation extending the time 27 for any form of discovery must have court approval if it would interfere with the time set 28 for completing discovery.” Fed. R. Civ. P. 29(b). Plaintiff’s argument that it deposed the 1 two witnesses at issue “on the earliest dates possible (on October 21, 2020 and October 23, 2 2020),” is unconvincing as Plaintiff fails to provide any factual support regarding why 3 these depositions were scheduled after the discovery cut-off set by the Court. In fact, in the 4 parties’ joint motion to amend the Scheduling Order filed on September 21, 2020, which 5 the Court granted, the parties stated that they needed additional time to complete the 6 scheduled and anticipated depositions in this case and stated that “it became clear that leave 7 of the Court to modify the Scheduling Order is needed at this time and could not be done 8 by stipulation.” ECF Nos. 17 at 2; ECF No. 18. Plaintiff could have reasonably filed a 9 motion for the appropriate extension for the remaining two depositions, but it did not. See 10 Rosado v. Alameida, No. CV 03-1110-J (POR), 2006 WL 8455351, at *2 (S.D. Cal. Dec. 11 18, 2006) (“[C]ounsel should have requested leave from the Court to seek discovery 12 beyond the discovery cut-off date.”). 13 The Court also finds that Plaintiff failed to diligently seek compliance with the 14 deposition notices served on Mr. Stragier and Mr. Holden even if they were issued prior to 15 the close of fact discovery. Assuming that Plaintiff served the subpoena on Mr. Stragier 16 and Mr. Holden before fact discovery ended, Plaintiff did not diligently seek to obtain 17 production or complete the depositions by October 16, 2020. After the discovery deadline 18 of October 16, 2020 came and went, Plaintiff states that in preparation for the late- 19 scheduled depositions of Mr. Stragier and Mr. Holden, “[n]either QBE nor Envista 20 produced documents in response to the subpoena issued to Mr. Holden until the evening of 21 October 21, 2020, after the deposition of Mr. Stragier.” Mot. at 3. Plaintiff further states 22 that “[n]o privilege or redaction log was provided, but documents including emails between 23 Mr. Stragier and Mr. Holden were redacted.” Id. Plaintiff was aware that the fact discovery 24 deadline had passed, but failed to raise the issue with the Court on that date. Plaintiff also 25 failed to raise the issue with the Court on the day of, or even a few days after the 26 depositions. Notwithstanding this failure, Plaintiff claims in the instant Motion that the 27 depositions “confirmed that there was no basis for QBE to assert a claim for privilege as 28 to those emails.” Motion at 3. Instead, Plaintiff concedes that it waited “twenty-two days 1 after the pertinent transcripts had been completed” to raise the issue with the Court. Motion 2 at 4. Plaintiff’s reliance on the Civil Chambers Rule V.C. which provides that motions 3 related to oral discovery disputes are to be filed within thirty days of the completion of the 4 transcript of the relevant portion of the deposition is without merit as that rule applies to 5 depositions held within the discovery deadline. Plaintiff’s argument completely ignores 6 that Plaintiff informally stipulated to hold depositions after the fact discovery deadline, and 7 then did not act diligently to raise the issue with the Court in a timely manner. Plaintiff’s 8 belated effort does not cure its lack of diligence before the fact discovery ended. See 9 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1027 (9th Cir. 2006) (“Attempting 10 to secure discovery after a discovery cutoff date does not cure a party’s failure to conduct 11 diligent discovery beforehand.”). 12 Because the Court finds that Plaintiff did not diligently seek Mr. Stragier and Mr. 13 Holden’s compliance before the fact discovery deadline and failed to obtain the Court’s 14 permission to pursue the compliance after fact discovery ended, any discovery motion 15 arising from the related production and deposition testimony is untimely. See Cornwell v. 16 Electra Cent. Credit Union, 439 F.3d at 1027 (“We decline to limit the district court's ability 17 to control its docket by enforcing a discovery termination date, even in the face of requested 18 supplemental discovery that might have revealed highly probative evidence, when the 19 plaintiff's prior discovery efforts were not diligent.”); Johnson v. Mammoth Recreations, 20 Inc., 975 F.2d at 610 (“A scheduling order is not a frivolous piece of paper, idly entered, 21 which can be cavalierly disregarded by counsel without peril.”). 22 Having found the discovery motion to be untimely, that would be sufficient to end 23 this inquiry because no motion has been made to amend the scheduling order with respect 24 to the depositions of Mr. Stragier and Mr. Holden. See Johnson v. Mammoth Recreations, 25 Inc., 975 F.2d at 608–09 (confirming that courts appropriately deny motions filed after a 26 scheduling order cut-off date solely on the ground of being untimely); U.S. Dominator, 27 Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1104 (9th Cir.1985), superseded by 28 statute on other grounds as recognized in MHC Fin. Ltd. P'ship v. City of San Rafael, 714 1 F.3d 1118, 1125 (9th Cir.2013) (affirming a district court’s denial of a late-filed motion for 2 summary judgment as untimely because the moving party never requested a modification 3 of the pretrial order to allow the filing of their motion). However, the Court finds that even 4 if Plaintiff had requested a modification of the scheduling order to allow the filing of an 5 untimely discovery motion, the result would not change because Plaintiff has not 6 demonstrated excusable neglect pursuant to the Pioneer factors. First, the Court finds that 7 Defendant would suffer some prejudice by Plaintiff’s untimely request for leave to file a 8 discovery motion in that it would be required to pivot time from the completion of expert 9 discovery and pretrial motion preparation, and spend time and resources on opposing a 10 discovery motion. This factor weighs against a finding of excusable neglect. Second, the 11 Court finds the length of delay and potential impact on judicial proceedings weighs against 12 a finding of excusable neglect because fact discovery ended over two months ago and 13 dispositive motions are coming due in March. Third, the reason for the delay weighs 14 against a finding of excusable neglect because first Plaintiff fails to explain why it did not 15 raise the issue with the court when the disputed emails were first produced in July. Also, 16 Plaintiff blames the delay on the late production of documents on October 21, 2020 in 17 response to the subpoena issued to Mr. Holden, but this fails to acknowledge Plaintiff’s 18 responsibility to ensure compliance to hold the depositions before fact discovery ended or 19 to seek assistance from this Court regarding the alleged late production in terms of the 20 scheduling order. Fourth, whether Plaintiff acted in good faith is a neutral factor because 21 the Court finds no indication that Plaintiff acted in bad faith. Weighing the factors together, 22 the Court finds Plaintiff’s untimely discovery motion is not the result of excusable neglect. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 || V. CONCLUSION 2 For the reasons cited above, the Court DENIES Plaintiff's Motion as untimely. 3 IT IS SO ORDERED. 4 ||Dated: December 16, 2020 NO 5 Qe J 6 Honorable Linda Lopez 4 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28