Boxabl Inc. v. Tassev

Opinion

3 Boxabl Inc., 2:23-cv-00760-CDS-MDC 4 Plaintiff(s), ORDER GRANTING MOTIONS (ECF Nos. 5 vs. 56, 57) IN PART 6 Yanni Tassev., 7 Defendant(s). 8 Pending before the Court are non-parties’ Motions for Protective Order (ECF No. 56, 57). For 9 the reasons stated below, the Court GRANTS the Motions in PART. 12 This is a case arising from an alleged “breach of contraction; violation of the Computer Fraud 13 and Abuse Act (“CFAA”), 18 U.S.C. §§ 1030, et seq.; the Defend Trade Secrets Act (“DTSA”), 18 14 U.S.C. §§ 1831, et seq.; conversion; unjust enrichment; and breach of the covenant of good faith and fair 15 dealing.” ECF No. 15 at ¶ 9. 16 This case was originally filed in the Southern District of New York on April 27, 2023. See ECF 17 No. 1. Thereafter, the case was transferred into this District of Nevada. See ECF Nos. 12, 13. An 18 Amended Complaint was filed on July 5, 2023. ECF No. 15. Plaintiff moved for a series of extensions to 19 serve defendants and ultimately moved for service by publication. See ECF No. 47. The Court granted 20 the motion for service by publication, and plaintiff subsequently filed a declaration of service. See ECF 21 Nos. 48, 50. Defendant did not respond or otherwise file an answer to the Amended Complaint. 22 Consequently, the Court ordered plaintiff to move for default against defendant or otherwise show cause 23 why it has not done so. ECF No. 51. On July 11, 2024, plaintiff filed a response to the order to show 24 cause and moved for an entry of default against defendant. ECF Nos. 52, 53. Thereafter, the Clerk 25 1 entered a Clerk’s Entry of Default against defendant for failing to plead or otherwise defendant in this 2 action. ECF No. 54. 3 Now pending before the Court are two Motions for Protective Order (ECF Nos. 56, 57). Non- 4 parties Gregory Ehlers and Jonathan Garman seek a protective order under Rules 26(c) and 45(d)(3) of 5 the Federal Rules of Civil Procedure and precluding or limiting the discovery plaintiff may pursue. Both 6 non-parties’ arguments are based in part on (1) the Clerk’s entry of default against defendant and (2) the 7 fact that there is a separate pending litigation between plaintiff and non-party.1 9 A. Rule 26 – Discovery In General 10 Discovery is governed by Rule 26 of the Federal Rules of Civil Procedure, which reads in 11 relevant part that:

12 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the 13 importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the 14 discovery in resolving the issues, and whether the burden or expense of the proposed 15 discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 16 Fed. R. Civ. P. 26(b)(1). 17 “A party may not seek discovery from any source before the parties have conferred as required 18 by Rule 26(f), except…when authorized by these rules, by stipulation, or by court order.” Fed. R. Civ. P. 19 26(d)(1). “Courts apply a good cause standard in considering motions to expedite discovery.” Twitch 20 interactive, Inc. v. Johnston, 2017 U.S. Dist. LEXIS 44863, at *5 (N.D. Cal. March 27, 2017) (internal 21 citations and quotations omitted). 22 // 23 24

1 Mr. Ehlers claims that there is a pending matter in state court against Boxabl that is set to go to trial on November 12, 2024. 25 ECF No. 56 at 1. Mr. Garman similarly argues that there is a pending litigation between Garman and Boxabl in an unrelated case where discovery is currently stayed pending a motion to compel arbitration. ECF No. 57. 2 Rule 26 of the Federal Rules of Procedure are clear. “A party may not seek discovery from any 3 source before the parties have conferred as required by Rule 26(f), except…when authorized by these 4 rules, by stipulation, or by court order.” Fed. R. Civ. P. 26(d)(1) (emphasis added). Rule 30(b) is also 5 clear. A party must obtain leave of court to take a deposition if the parties have not stipulated to the 6 deposition and the parties have not met and conferred regarding the case scheduling. See Fed. R. Civ. P. 7 30(b). Because defendant Tassev defaulted under Rule 55(a), there has been no stipulation regarding 8 depositions nor a meet and confer regarding case scheduling. Plaintiff did not seek leave of court to 9 conduct discovery prior to a Rule 26(f) conference. Therefore, plaintiff’s subpoenas seeking third-party 10 discovery from Gregory Ehlers and Jonathan Garman are procedurally improper. See i.e., Alstom Power, 11 Inc. v. Graham, Case No. 3:15cv174, 2016 U.S. Dist. LEXIS 10112, at *5 (E.D. Va. Jan. 27, 2016) 12 (“Here, because Graham has defaulted, the parties have not conferred as required by Rule 26(f). 13 Accordingly, unless this Court allows Alstom Power to conduct discovery, none can be sought.”); 14 Intouch Mktg. Inc. v. Anzaldua, 2024 U.S. Dist. LEXIS 78064 (C.D. Cal. March 1, 2024) (“Because 15 Defendants have not appeared, the parties have neither stipulated to any depositions nor met and 16 conferred regarding case scheduling. Plaintiffs' motion for leave to conduct third-party discovery is 17 therefore GRANTED.”). 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 1 Accordingly, the Court grants the nonparties’ Motions for Protective Orders (ECF Nos. 56, 57) 2 part. The protective orders are granted to the extent that plaintiff's subpoenas are procedurally 3 |/improper. The Court does not address the substantive merits of the matters raised by the motions (ECF 4 || Nos. 56, 57) at this time. 5 7 IT IS ORDERED that: 8 1. The Motions for Protective Orders (ECF No. 56, 57) are GRANTED IN PART, as outlined 9 below: 10 a. Nonparties are not required to answer any subpoenas at this time. However, this does not preclude plaintiff from serving future subpoenas after plaintiff has sought and been granted leave of court to conduct such discovery. 2. If plaintiff wishes to conduct limited discovery, it must seek leave of court by no later than

January 31, 2025.

DATED this 10 day of December 2024. Z Ze 4 - IT IS SO ORDERED. OK / Hg. Maximijfano I). Couvillier III 19 United ag Judge 20 21 22 23 24 25