8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 SACRAMENTO DIVISION 11 12 EXAMWORKS, LLC, a Delaware limited Case No. 2:20-CV-00920-KJM-DB liability company, 13 THIRD STIPULATION/ STATEMENT Plaintiff, OF NON-OPPOSITION AND ORDER 14 TO AMEND RULE 16 SCHEDULING v. 15 ORDER DUE TO THIRD PARTY TODD BALDINI, an individual, ABYGAIL DISCOVERY 16 BIRD, an individual, LAWRENCE STUART GIRARD, an individual, PAMELLA TEJADA, 17 an individual, ROE CORPORATION, and DOES 1 through 10, 18 Defendants. 19
20 21 22 23 24 25 26 27 28 1 Plaintiff ExamWorks, LLC (“ExamWorks”) respectfully submits the following third 2 stipulation and proposed order, requesting the Court continue the deadline for joinder of third- 3 parties Dr. Steven Feinberg, James Tuthill, and Dunamis Alliance, LLC (“Dunamis”) (Mr. Tuthill 4 and Dunamis are collectively “Dunamis Third Parties”) from December 10, 2020 to December 5 21, 2020 so that the parties may finish their settlement negotiations and hopefully resolve their 6 disputes without ExamWorks filing suit against Dr. Feinberg and the Dunamis Third Parties. 7 ExamWorks and Dr. Feinberg and the Dunamis Third Parties are currently in the middle of 8 settlement negotiations; the parties are making good progress and anticipate that resolution can 9 likely be reached with additional time. However, Mr. Tuthill is dealing with a family medical 10 emergency that requires him to be at the hospital most of the day and Dr. Feinberg’s counsel is 11 currently on vacation this week. Therefore, there is some delay associated with responding to 12 ExamWorks’ settlement proposal and the parties require a short continuance to finalize the 13 settlement negotiations. The parties also request a short two-week continuance as to fact 14 discovery cut-off from December 28, 2020 to January 11, 2020 to address pending discovery 15 requests from ExamWorks to Defendants. 16 Defendants Todd Baldini, L. Stuart Girard, and Abygail Bird stipulate to the relief 17 requested regarding the joinder deadline in exchange for a two-week extension of written 18 discovery responses to ExamWorks’ pending discovery requests that are currently due on 19 December 28, 2020, which is the current discovery fact cut-off. The requested continuance as to 20 fact discovery would only allow for Defendants Baldini and Girard’s responses to the pending 21 written discovery requests from ExamWorks, and no other fact discovery besides the pending 22 discovery requests will be permitted as to the parties after the December 28 cut-off. Besides the 23 limited continuance of fact discovery for these discovery requests, no other deadlines will be 24 impacted by the request herein. 25 Defendant Pamella Tejada does not oppose ExamWorks’ requested relief and also seeks 26 the two-week fact discovery continuance so that she has an additional two weeks to respond to 27 ExamWorks’ written discovery requests to Tejada (her current deadline is to respond by 28 December 28, 2020), but takes no position with respect to the contents of this motion or the 1 representations made herein. 2 The parties agree that this two-week extension will not impact ExamWorks’ right to meet 3 and confer with Defendants Baldini, Girard, and Tejada on those responses (i.e., this extension 4 will not put ExamWorks in a worse or better position had Defendants responded on December 28, 5 2020). 6 In addition, the Feinberg and Dunamis Parties do not object to the request for continuance 7 as to the joinder deadline. 8 A. Background 9 This action arises out of Defendants’ prior employment with ExamWorks. In Spring 10 2020, Defendants Girard and Tejada resigned from ExamWorks. In the course of investigating 11 their departures, ExamWorks came to believe that they had taken significant information related 12 to ExamWorks’ business, including information that ExamWorks considers to be its trade secrets. 13 Defendants Baldini’s and Bird’s employment was terminated shortly thereafter. This action was 14 filed on May 4, 2020 (ECF No. 1), and on May 8, 2020, the Court granted ExamWorks’ motion 15 and issued a Temporary Restraining Order and Order to Show Cause and ordered expedited 16 discovery (ECF No. 17). On June 3, 2020, the Court granted ExamWorks’ motion for 17 Preliminary Injunction. ECF No. 45. 18 In connection with the Rule 16 scheduling conference held on August 20, 2020, 19 ExamWorks alerted the Court that ExamWorks planned to take third-party discovery of certain 20 business entities affiliated with Defendants. ECF No. 86 (Jnt. Rpt.) at 8. ExamWorks contends 21 that the relevant third parties, including Steven Feinberg, James Tuthill, William George, Trisha 22 Tuthill, Dunamis Alliance LLC (“Dunamis”), and/or Integrated Pain Management (“IPM”) were 23 all connected in one way or another with Defendants’ departure from ExamWorks and were 24 connected to a scheme to misappropriate ExamWorks’ trade secrets. See also ECF No. 39 (Supp. 25 Br.) at 2–5 (setting forth ExamWork’s position and evidence that the identified third parties were 26 connected with a venture planned by Defendants). A significant purpose of taking third-party 27 discovery was to determine what, if any, ExamWorks information was misappropriated by third 28 parties so that it could be returned to ExamWorks. ECF No. 112-1, ¶ 2. 1 B. ExamWorks Diligently Pursued Information from Third Parties. 2 ExamWorks previously filed a Stipulation and Proposed Order to Amend Scheduling 3 Order (hereinafter “First Stipulation”), ECF No. 100, and a Second Stipulation and Proposed 4 Order to Amend Scheduling Order (hereinafter “Second Stipulation”), ECF No. 112.1 The First 5 Stipulation requested additional time for the joinder of all third parties so that the parties could 6 finish discovery of the third parties and the Second Stipulation requested additional joinder time 7 for third parties IPM and Bill George (“IPM Parties”) only so that ExamWorks could complete a 8 forensic inspection protocol with the IPM Parties. As discussed in both the First and Second 9 Stipulations, ExamWorks has been pursuing third party discovery with diligence so that it has 10 enough information to make the informed decision whether it needs to sue third parties in this 11 litigation. The Court granted both stipulations. See ECF No. 104, ECF No. 113. 12 At the time of the filing of the Second Stipulation, Exam Works had deposed Dr. Feinberg 13 on November 24, 2020, and was going to depose Mr. Tuthill and Dunamis on December 1, 2020. 14 Second Suppl. Lui Decl., filed concurrently herewith, ¶ 2. At the time of the filing of the Second 15 Stipulation, ExamWorks anticipated it could make the December 10 joinder deadline as to the 16 Dr. Feinberg and the Dunamis Third Parties, which is why ExamWorks requested a continuance 17 as to the joinder deadline of the IPM Parties only. After the depositions, ExamWorks began 18 documenting a settlement agreement with Dr. Feinberg and with Mr. Tuthill and Dunamis. Id. ¶ 19 3. However, the parties need more time to finish the settlement discussions due to a couple of 20 unexpected events. Id. ¶ 3. First, Mr. Tuthill is dealing with a family medical emergency that 21 requires him to be in the hospital most of the day; this will necessarily slow down the pace of the 22 settlement negotiations. ExamWorks is still waiting for a response from the Dunamis Third 23 Parties due to Mr. Tuthill’s personal situation. Id. ¶ 3. Second, Dr. Feinberg’s counsel is on 24 vacation this week, which will also delay the speed with which settlement negotiations may 25 occur. Id. ¶ 3. ExamWorks is also waiting for a response as to certain aspects of its proposal. Id. 26 ¶ 3. ExamWorks and the third parties are negotiating in good faith and wish to reach a settlement 27 1 ExamWorks incorporates by reference as if stated herein the facts and arguments set forth in ECF Nos. 100 and 28 1 to avoid litigation, if at all possible. Id. ¶ 3.
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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 SACRAMENTO DIVISION 11 12 EXAMWORKS, LLC, a Delaware limited Case No. 2:20-CV-00920-KJM-DB liability company, 13 THIRD STIPULATION/ STATEMENT Plaintiff, OF NON-OPPOSITION AND ORDER 14 TO AMEND RULE 16 SCHEDULING v. 15 ORDER DUE TO THIRD PARTY TODD BALDINI, an individual, ABYGAIL DISCOVERY 16 BIRD, an individual, LAWRENCE STUART GIRARD, an individual, PAMELLA TEJADA, 17 an individual, ROE CORPORATION, and DOES 1 through 10, 18 Defendants. 19
20 21 22 23 24 25 26 27 28 1 Plaintiff ExamWorks, LLC (“ExamWorks”) respectfully submits the following third 2 stipulation and proposed order, requesting the Court continue the deadline for joinder of third- 3 parties Dr. Steven Feinberg, James Tuthill, and Dunamis Alliance, LLC (“Dunamis”) (Mr. Tuthill 4 and Dunamis are collectively “Dunamis Third Parties”) from December 10, 2020 to December 5 21, 2020 so that the parties may finish their settlement negotiations and hopefully resolve their 6 disputes without ExamWorks filing suit against Dr. Feinberg and the Dunamis Third Parties. 7 ExamWorks and Dr. Feinberg and the Dunamis Third Parties are currently in the middle of 8 settlement negotiations; the parties are making good progress and anticipate that resolution can 9 likely be reached with additional time. However, Mr. Tuthill is dealing with a family medical 10 emergency that requires him to be at the hospital most of the day and Dr. Feinberg’s counsel is 11 currently on vacation this week. Therefore, there is some delay associated with responding to 12 ExamWorks’ settlement proposal and the parties require a short continuance to finalize the 13 settlement negotiations. The parties also request a short two-week continuance as to fact 14 discovery cut-off from December 28, 2020 to January 11, 2020 to address pending discovery 15 requests from ExamWorks to Defendants. 16 Defendants Todd Baldini, L. Stuart Girard, and Abygail Bird stipulate to the relief 17 requested regarding the joinder deadline in exchange for a two-week extension of written 18 discovery responses to ExamWorks’ pending discovery requests that are currently due on 19 December 28, 2020, which is the current discovery fact cut-off. The requested continuance as to 20 fact discovery would only allow for Defendants Baldini and Girard’s responses to the pending 21 written discovery requests from ExamWorks, and no other fact discovery besides the pending 22 discovery requests will be permitted as to the parties after the December 28 cut-off. Besides the 23 limited continuance of fact discovery for these discovery requests, no other deadlines will be 24 impacted by the request herein. 25 Defendant Pamella Tejada does not oppose ExamWorks’ requested relief and also seeks 26 the two-week fact discovery continuance so that she has an additional two weeks to respond to 27 ExamWorks’ written discovery requests to Tejada (her current deadline is to respond by 28 December 28, 2020), but takes no position with respect to the contents of this motion or the 1 representations made herein. 2 The parties agree that this two-week extension will not impact ExamWorks’ right to meet 3 and confer with Defendants Baldini, Girard, and Tejada on those responses (i.e., this extension 4 will not put ExamWorks in a worse or better position had Defendants responded on December 28, 5 2020). 6 In addition, the Feinberg and Dunamis Parties do not object to the request for continuance 7 as to the joinder deadline. 8 A. Background 9 This action arises out of Defendants’ prior employment with ExamWorks. In Spring 10 2020, Defendants Girard and Tejada resigned from ExamWorks. In the course of investigating 11 their departures, ExamWorks came to believe that they had taken significant information related 12 to ExamWorks’ business, including information that ExamWorks considers to be its trade secrets. 13 Defendants Baldini’s and Bird’s employment was terminated shortly thereafter. This action was 14 filed on May 4, 2020 (ECF No. 1), and on May 8, 2020, the Court granted ExamWorks’ motion 15 and issued a Temporary Restraining Order and Order to Show Cause and ordered expedited 16 discovery (ECF No. 17). On June 3, 2020, the Court granted ExamWorks’ motion for 17 Preliminary Injunction. ECF No. 45. 18 In connection with the Rule 16 scheduling conference held on August 20, 2020, 19 ExamWorks alerted the Court that ExamWorks planned to take third-party discovery of certain 20 business entities affiliated with Defendants. ECF No. 86 (Jnt. Rpt.) at 8. ExamWorks contends 21 that the relevant third parties, including Steven Feinberg, James Tuthill, William George, Trisha 22 Tuthill, Dunamis Alliance LLC (“Dunamis”), and/or Integrated Pain Management (“IPM”) were 23 all connected in one way or another with Defendants’ departure from ExamWorks and were 24 connected to a scheme to misappropriate ExamWorks’ trade secrets. See also ECF No. 39 (Supp. 25 Br.) at 2–5 (setting forth ExamWork’s position and evidence that the identified third parties were 26 connected with a venture planned by Defendants). A significant purpose of taking third-party 27 discovery was to determine what, if any, ExamWorks information was misappropriated by third 28 parties so that it could be returned to ExamWorks. ECF No. 112-1, ¶ 2. 1 B. ExamWorks Diligently Pursued Information from Third Parties. 2 ExamWorks previously filed a Stipulation and Proposed Order to Amend Scheduling 3 Order (hereinafter “First Stipulation”), ECF No. 100, and a Second Stipulation and Proposed 4 Order to Amend Scheduling Order (hereinafter “Second Stipulation”), ECF No. 112.1 The First 5 Stipulation requested additional time for the joinder of all third parties so that the parties could 6 finish discovery of the third parties and the Second Stipulation requested additional joinder time 7 for third parties IPM and Bill George (“IPM Parties”) only so that ExamWorks could complete a 8 forensic inspection protocol with the IPM Parties. As discussed in both the First and Second 9 Stipulations, ExamWorks has been pursuing third party discovery with diligence so that it has 10 enough information to make the informed decision whether it needs to sue third parties in this 11 litigation. The Court granted both stipulations. See ECF No. 104, ECF No. 113. 12 At the time of the filing of the Second Stipulation, Exam Works had deposed Dr. Feinberg 13 on November 24, 2020, and was going to depose Mr. Tuthill and Dunamis on December 1, 2020. 14 Second Suppl. Lui Decl., filed concurrently herewith, ¶ 2. At the time of the filing of the Second 15 Stipulation, ExamWorks anticipated it could make the December 10 joinder deadline as to the 16 Dr. Feinberg and the Dunamis Third Parties, which is why ExamWorks requested a continuance 17 as to the joinder deadline of the IPM Parties only. After the depositions, ExamWorks began 18 documenting a settlement agreement with Dr. Feinberg and with Mr. Tuthill and Dunamis. Id. ¶ 19 3. However, the parties need more time to finish the settlement discussions due to a couple of 20 unexpected events. Id. ¶ 3. First, Mr. Tuthill is dealing with a family medical emergency that 21 requires him to be in the hospital most of the day; this will necessarily slow down the pace of the 22 settlement negotiations. ExamWorks is still waiting for a response from the Dunamis Third 23 Parties due to Mr. Tuthill’s personal situation. Id. ¶ 3. Second, Dr. Feinberg’s counsel is on 24 vacation this week, which will also delay the speed with which settlement negotiations may 25 occur. Id. ¶ 3. ExamWorks is also waiting for a response as to certain aspects of its proposal. Id. 26 ¶ 3. ExamWorks and the third parties are negotiating in good faith and wish to reach a settlement 27 1 ExamWorks incorporates by reference as if stated herein the facts and arguments set forth in ECF Nos. 100 and 28 1 to avoid litigation, if at all possible. Id. ¶ 3. ExamWorks believe the matters can be resolved 2 without litigation with sufficient time. Id. ¶ 3. 3 As outlined above, ExamWorks has diligently sought information and discovery necessary 4 to determine whether Dr. Feinberg and Dunamis Third Parties need to be added to the litigation. 5 ExamWorks is hopeful that a settlement agreement can be reached with these third parties to 6 avoid adding them to the litigation. However, ExamWorks requires a short continuance to 7 finalize those negotiations. 8 In addition, the parties seek a two-week continuance of fact discovery to permit 9 Defendants Baldini, Girard, and Tejada two additional weeks to respond to ExamWorks’ written 10 discovery requests. The fact discovery continuance is to allow additional time for the written 11 discovery only and does not impact any other party discovery. 12 II. LEGAL STANDARD 13 The Court may upon a showing of good cause amend a Rule 16(b) scheduling order. Fed. 14 R. Civ. P. 16(b)(4). “Good cause may be found to exist where the moving party shows that it 15 diligently assisted the court with creating a workable scheduling order, that it is unable to comply 16 with the scheduling order's deadlines due to matters that could not have reasonably been foreseen 17 at the time of the issuance of the scheduling order, and that it was diligent in seeking an 18 amendment once it became apparent that the party could not comply with the scheduling order.” 19 Kuschner v. Nationwide Credit, Inc., 256 F.R.D. 684, 687 (E.D. Cal. 2009). 20 III. GOOD CAUSE EXISTS TO MODIFY THE RULE 16 ORDER 21 ExamWorks participated in the initial case management conference and proposed a 22 schedule jointly with Defendants that the Court largely adopted. ECF No. 86 (Jnt. Rpt.) at 11–12; 23 ECF No. 87 (Scheduling Order). Kuschner, 256 F.R.D. at 688 (finding that participation in the 24 scheduling conference and proposal of a schedule satisfies the first prong of the good cause 25 inquiry). As discussed in the First and Second Stipulation, ExamWorks has pursued third party 26 discovery diligently. ExamWorks is now engaged in settlement negotiations with both 27 Dr. Feinberg and the Dunamis Third Parties. However, ExamWorks requires a short 11-day 28 continuance to finalize settlement negotiations with these third parties to account for Mr. Tuthill’s 1 family medical emergency and that Dr. Feinberg’s counsel is on vacation. On December 8, 2020, 2 ExamWorks spoke with Dr. Feinberg’s counsel and Mr. Tuthill’s and Dunamis’ counsel 3 separately. Both counsel expressed that the short continuance would allow the parties sufficient 4 time to finish settlement negotiations and that they had no objection to the requested continuance. 5 Second Suppl. Lui Decl. ¶ 3, Exs. A and B. ExamWorks anticipates that resolution can occur 6 with these third parties with this short continuance and would like to avoid burdening the Court 7 with an unnecessary amended complaint on December 10 if it receives this continuance. Second 8 Suppl. Lui Decl. ¶ 3. When it became clear that ExamWorks required more time for third party 9 discovery due to a number of unforeseen circumstances, ExamWorks promptly sought this relief. 10 Id. ¶ 4. Both the third parties and the Defendants do not object to this requested continuance. Id. 11 ¶¶ 3-4. In addition, Defendants request two additional weeks to respond to ExamWorks’ pending 12 written discovery requests The requested continuance as to the fact discovery cut-off for the 13 parties only applies to the pending written discovery requests from ExamWorks to the 14 Defendants; the parties do not contemplate any other discovery beyond December 28 besides the 15 written discovery requests. The requested continuance of the joinder and fact discovery deadline 16 will not impact any other deadlines. 17 IV. CONCLUSION 18 For the foregoing reasons, ExamWorks respectfully requests that the Court extend the 19 deadline to join Dr. Feinberg, James Tuthill, and Dunamis Alliance, LLC from December 10, 20 2020 to December 21, 2021. In addition, the parties request the Court continue the fact discovery 21 cut-off from December 28, 2020 to January 11, 2021 to allow additional time for Defendants to 22 provide responses to the pending discovery requests only; no other fact discovery as to the parties 23 is contemplated with the fact discovery continuance. 24 /// 25 /// 26 /// 27 /// 28 /// 1 Dated: December 9, 2020 ORRICK, HERRINGTON & SUTCLIFFE LLP 2
3 By: /s/ Robert S. Shwarts ROBERT S. SHWARTS 4 Attorneys for Plaintiff ExamWorks, LLC 5 STIPULATED AS TO THE RELIEF REQUESTED: 6 Dated: December 9, 2020 FORD HARRISON LLP 7 8 By: /s/ Daniel C. Chammas (as authorized on 12/9/2020) 9 DANIEL C. CHAMMAS Attorneys for Defendants Todd Baldini, L. 10 Stuart Girard, and Abygail Bird
11 STATEMENT OF NON-OPPOSITION AS TO THE RELIEF REQUESTED 12 Dated: December 9, 2020 DOWNEY BRAND LLP 13 By: /s/ Annie S. Amaral 14 (as authorized on 12/9/2020) ANNIE S. AMARAL 15 Attorneys for Defendant Pamella Tejada
16 17 18 19 20 21 22 23 24 25 26 27 28 1 ORDER 2 After considering the foregoing stipulated request to modify the scheduling order in this 3 case, and good cause appearing, the court grants the request to modify the scheduling order as 4 follows: 5 (1) The deadline for joinder of additional parties as is continued from December 10, 2020 6 to January 14, 2021 as to third parties Dr. Steven Feinberg, James Tuthill, and Dunamis Alliance, 7 LLC. 8 (2) The deadline for fact discovery cut-off is continued from December 28, 2020 to 9 January 11, 2021 as to the pending written discovery requests from ExamWorks to Defendants 10 Baldini, Girard, and Tejada only. 11 (3) No other fact discovery as to the parties besides the pending written discovery requests 12 will be permitted beyond the original December 28, 2020 deadline. This two-week extension will 13 not impact ExamWorks’ right to meet and confer with Defendants Baldini, Girard, and Tejada on 14 those responses (i.e., this extension will not put ExamWorks in a worse or better position had 15 Defendants responded on December 28, 2020). 16 (4) All other deadlines previously ordered by the court besides the above remain in effect. 17 See ECF No. 87. 18 IT IS SO ORDERED. This order resolves ECF No. 115. 19 DATED: December 14, 2020. 20 21 22 23 24 25 26 27 28