1 2 3 4 5 6 7 10 11 JAE PROPERTIES, INC., Case No.: 19cv2075-JAH-LL
12 Plaintiff, ORDER DENYING JOINT MOTION 13 v. FOR SHORT CONTINUANCE OF DEADLINE TO COMPLETE 14 AMTAX HOLDINGS 2001-XX, LLC, SPECIFIED DEPOSITIONS AND 15 Defendant OTHER SCHEDULING DATES
16 _________________________________ [ECF No. 49] 17 AND RELATED COUNTERCLAIMS. 18 19 20 Currently before the Court is the parties’ joint motion requesting that the Court 21 continue the currently June 1, 2020 deadline by 30-45 days to complete certain specified 22 depositions.1 ECF No. 49. The parties state that there is good cause for the continuance 23 because of “the COVID-19 pandemic, the location of the witnesses, many of whom are 24 third parties, the location of the attorneys, and travel and other restrictions imposed by the 25 federal, state, and local governments.” Id. at 2. Specifically, the parties state that “most of 26
27 1 The parties also later state in their Joint Motion that they are also seeking to “continue the remaining 28 1 the depositions in this case will be document intensive” and “the Parties are jointly 2 concerned that remote video depositions could be difficult and inefficient (at best) and 3 prejudicial (at worst).” Id. The parties state that they are “prepared to complete certain 4 depositions remotely on or before the current June 1, 2020 deadline, but that other 5 depositions require in-person attendance by the witnesses, attorneys, and court reporters 6 due to the volume of documents and exhibits that will be used.” Id. 7 The parties acknowledge that the Court has already granted a previous request by 8 the parties to complete depositions in this case. ECF No. 34. The parties contend that they 9 have met and conferred and the only deposition that they have determined can be conducted 10 remotely is Amtax’s deposition of Central Valley Coalition for Affordable Housing. Id. at 11 6. The parties state that they are “working cooperatively to determine whether the 12 components of the Rule 30(b)(6) deposition topics noticed by JAE can be conducted 13 remotely.” Id. However, the parties contend that the remainder of the depositions2 “cannot 14 be conducted remotely without prejudice to the Parties.” Id. In support, the parties state as 15 follows: 16 Conducting remote depositions involving numerous documents creates 17 various challenges and impediments. Counsel concede that if there were only a handful of document exhibits, they could be handled in a remote deposition. 18 But sorting through and retrieving the right documents or reviewing an exhibit 19 electronically can be very time intensive and inefficient. Additionally, in person depositions give counsel much more control over what the witness is 20 viewing at any given time. The witness has in front of him/her exactly what 21 is necessary. If a witness cannot find something on a document, either counsel 22 can reach over and point to the exact spot on the document that the witness needs to be looking. This is impossible in a remote deposition. In person 23 depositions also allow more efficient and controlled examination of witnesses, 24 especially when many documents are involved. 25
26 27 2 Specifically, the parties request that they be given additional time to complete the following depositions in person: JAE, AMTAX, Alden Torch and Mr. Blake, Ms. Arthur and Novogradac, Mr. Doyle and Mr. 28 1 Id. at 6-7. 2 “The district court has wide discretion in controlling discovery.” Little v. City of 3 Seattle, 863 F.2d 681, 685 (9th Cir. 1988). In employing the Federal Rules of Civil 4 Procedure, courts and parties are required “to secure the just, speedy, and inexpensive 5 determination of every action and proceeding.” Fed. R. Civ. P. 1. Pursuant to Rule 16, the 6 Court is required to issue a scheduling order that “must limit the time to join other parties, 7 amend the pleadings, complete discovery, and file motions.”3 See Fed. R. Civ. P. 8 16(b)(3)(A). “A schedule may be modified only for good cause and with the judge's 9 consent.” Fed. R. Civ. P. 16(b)(4). "Rule 16(b)'s 'good cause' standard primarily considers 10 the diligence of the party seeking the amendment." Johnson v. Mammoth Recreations, Inc., 11 975 F.2d 604, 609 (9th Cir. 1992). If the moving party fails to demonstrate diligence, "the 12 inquiry should end." Id. 13 The Court fails to find good cause to extend the deadline for the parties to complete 14 the specified depositions for 30-45 days, and also to continue the remaining pretrial 15 deadlines in the case for a similar amount of time. The primary reason the parties seek the 16 continuance is because they hope the physical distancing and stay-at-home orders required 17 by the current pandemic will be lessened to allow for in-person depositions in the near 18 future. This, however, is pure speculation. It is not feasible for the Court to extend 19 deposition deadlines until a time when they can be safely conducted in person because no 20 one knows when that will occur and there are alternatives. Rule 30(b)(4) allows depositions 21 to “be taken by telephone or other remote means.” Fed. R. Civ. P. 30(b)(4). The Court 22 authorizes the use of remote depositions by videoconference in this action, which will help 23 secure a “just, speedy, and inexpensive determination.” Fed. R. Civ. P. 1; see also Velicer 24 v. Falconhead Capital LLC, No. C19-1505 JLR, 2020 WL 1847773, at *2 (W.D. Wash. 25 Apr. 13, 2020) (finding no good cause to extend scheduling order deadlines by ninety days 26 27 28 3 1 and urging the parties to consider remote depositions); Sinceno v. Riverside Church in City 2 of New York, No. 18-CV-2156 (LJL), 2020 WL 1302053, at *1 (S.D.N.Y. Mar. 18, 2020) 3 (authorizing remote depositions “[i]n order to protect public health while promoting the 4 ‘just, speedy, and inexpensive determination of every action and proceeding’” (citation 5 omitted)). 6 The Court is not convinced that document intensive depositions are a bar to remote 7 videoconference depositions. Other courts have found that exhibits can be managed in 8 remote depositions by sending Bates-stamped exhibits to deponents prior to the depositions 9 or using modern videoconference technology to share documents and images quickly and 10 conveniently. See Kaseberg v. Conaco, LLC, No. 15cv01637-JLS-DHB, 11 2016 WL 8729927, at *6 (S.D. Cal. Aug. 19, 2016) (requiring a copy of exhibits intended 12 to be used at a remote deposition to be sent to deponent’s attorney at least twenty-four 13 hours in advance of the deposition); Carrico v. Samsung Elecs. Co., 14 No. 15-CV-02087-DMR, 2016 WL 1265854, at *2 (N.D. Cal. Apr. 1, 2016) (approving 15 methods such as exchanging Bates-stamped documents in advance of a remote deposition 16 or using modern videoconference software to share documents and images); 17 Lopez v. CIT Bank, N.A., No. 15CV00759BLFHRL, 2015 WL 10374104, at *2 (N.D. Cal. 18 Dec. 18, 2015) (disagreeing that reviewing complicated exhibits remotely would be 19 impracticable because exhibits can be shared with modern videoconference software or by 20 distributing Bates-stamped copies); Lott v. United States, No. C-07-3530 PJH (EMC), 21 2008 WL 2923437, at *1 (N.D. Cal.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 10 11 JAE PROPERTIES, INC., Case No.: 19cv2075-JAH-LL
12 Plaintiff, ORDER DENYING JOINT MOTION 13 v. FOR SHORT CONTINUANCE OF DEADLINE TO COMPLETE 14 AMTAX HOLDINGS 2001-XX, LLC, SPECIFIED DEPOSITIONS AND 15 Defendant OTHER SCHEDULING DATES
16 _________________________________ [ECF No. 49] 17 AND RELATED COUNTERCLAIMS. 18 19 20 Currently before the Court is the parties’ joint motion requesting that the Court 21 continue the currently June 1, 2020 deadline by 30-45 days to complete certain specified 22 depositions.1 ECF No. 49. The parties state that there is good cause for the continuance 23 because of “the COVID-19 pandemic, the location of the witnesses, many of whom are 24 third parties, the location of the attorneys, and travel and other restrictions imposed by the 25 federal, state, and local governments.” Id. at 2. Specifically, the parties state that “most of 26
27 1 The parties also later state in their Joint Motion that they are also seeking to “continue the remaining 28 1 the depositions in this case will be document intensive” and “the Parties are jointly 2 concerned that remote video depositions could be difficult and inefficient (at best) and 3 prejudicial (at worst).” Id. The parties state that they are “prepared to complete certain 4 depositions remotely on or before the current June 1, 2020 deadline, but that other 5 depositions require in-person attendance by the witnesses, attorneys, and court reporters 6 due to the volume of documents and exhibits that will be used.” Id. 7 The parties acknowledge that the Court has already granted a previous request by 8 the parties to complete depositions in this case. ECF No. 34. The parties contend that they 9 have met and conferred and the only deposition that they have determined can be conducted 10 remotely is Amtax’s deposition of Central Valley Coalition for Affordable Housing. Id. at 11 6. The parties state that they are “working cooperatively to determine whether the 12 components of the Rule 30(b)(6) deposition topics noticed by JAE can be conducted 13 remotely.” Id. However, the parties contend that the remainder of the depositions2 “cannot 14 be conducted remotely without prejudice to the Parties.” Id. In support, the parties state as 15 follows: 16 Conducting remote depositions involving numerous documents creates 17 various challenges and impediments. Counsel concede that if there were only a handful of document exhibits, they could be handled in a remote deposition. 18 But sorting through and retrieving the right documents or reviewing an exhibit 19 electronically can be very time intensive and inefficient. Additionally, in person depositions give counsel much more control over what the witness is 20 viewing at any given time. The witness has in front of him/her exactly what 21 is necessary. If a witness cannot find something on a document, either counsel 22 can reach over and point to the exact spot on the document that the witness needs to be looking. This is impossible in a remote deposition. In person 23 depositions also allow more efficient and controlled examination of witnesses, 24 especially when many documents are involved. 25
26 27 2 Specifically, the parties request that they be given additional time to complete the following depositions in person: JAE, AMTAX, Alden Torch and Mr. Blake, Ms. Arthur and Novogradac, Mr. Doyle and Mr. 28 1 Id. at 6-7. 2 “The district court has wide discretion in controlling discovery.” Little v. City of 3 Seattle, 863 F.2d 681, 685 (9th Cir. 1988). In employing the Federal Rules of Civil 4 Procedure, courts and parties are required “to secure the just, speedy, and inexpensive 5 determination of every action and proceeding.” Fed. R. Civ. P. 1. Pursuant to Rule 16, the 6 Court is required to issue a scheduling order that “must limit the time to join other parties, 7 amend the pleadings, complete discovery, and file motions.”3 See Fed. R. Civ. P. 8 16(b)(3)(A). “A schedule may be modified only for good cause and with the judge's 9 consent.” Fed. R. Civ. P. 16(b)(4). "Rule 16(b)'s 'good cause' standard primarily considers 10 the diligence of the party seeking the amendment." Johnson v. Mammoth Recreations, Inc., 11 975 F.2d 604, 609 (9th Cir. 1992). If the moving party fails to demonstrate diligence, "the 12 inquiry should end." Id. 13 The Court fails to find good cause to extend the deadline for the parties to complete 14 the specified depositions for 30-45 days, and also to continue the remaining pretrial 15 deadlines in the case for a similar amount of time. The primary reason the parties seek the 16 continuance is because they hope the physical distancing and stay-at-home orders required 17 by the current pandemic will be lessened to allow for in-person depositions in the near 18 future. This, however, is pure speculation. It is not feasible for the Court to extend 19 deposition deadlines until a time when they can be safely conducted in person because no 20 one knows when that will occur and there are alternatives. Rule 30(b)(4) allows depositions 21 to “be taken by telephone or other remote means.” Fed. R. Civ. P. 30(b)(4). The Court 22 authorizes the use of remote depositions by videoconference in this action, which will help 23 secure a “just, speedy, and inexpensive determination.” Fed. R. Civ. P. 1; see also Velicer 24 v. Falconhead Capital LLC, No. C19-1505 JLR, 2020 WL 1847773, at *2 (W.D. Wash. 25 Apr. 13, 2020) (finding no good cause to extend scheduling order deadlines by ninety days 26 27 28 3 1 and urging the parties to consider remote depositions); Sinceno v. Riverside Church in City 2 of New York, No. 18-CV-2156 (LJL), 2020 WL 1302053, at *1 (S.D.N.Y. Mar. 18, 2020) 3 (authorizing remote depositions “[i]n order to protect public health while promoting the 4 ‘just, speedy, and inexpensive determination of every action and proceeding’” (citation 5 omitted)). 6 The Court is not convinced that document intensive depositions are a bar to remote 7 videoconference depositions. Other courts have found that exhibits can be managed in 8 remote depositions by sending Bates-stamped exhibits to deponents prior to the depositions 9 or using modern videoconference technology to share documents and images quickly and 10 conveniently. See Kaseberg v. Conaco, LLC, No. 15cv01637-JLS-DHB, 11 2016 WL 8729927, at *6 (S.D. Cal. Aug. 19, 2016) (requiring a copy of exhibits intended 12 to be used at a remote deposition to be sent to deponent’s attorney at least twenty-four 13 hours in advance of the deposition); Carrico v. Samsung Elecs. Co., 14 No. 15-CV-02087-DMR, 2016 WL 1265854, at *2 (N.D. Cal. Apr. 1, 2016) (approving 15 methods such as exchanging Bates-stamped documents in advance of a remote deposition 16 or using modern videoconference software to share documents and images); 17 Lopez v. CIT Bank, N.A., No. 15CV00759BLFHRL, 2015 WL 10374104, at *2 (N.D. Cal. 18 Dec. 18, 2015) (disagreeing that reviewing complicated exhibits remotely would be 19 impracticable because exhibits can be shared with modern videoconference software or by 20 distributing Bates-stamped copies); Lott v. United States, No. C-07-3530 PJH (EMC), 21 2008 WL 2923437, at *1 (N.D. Cal. July 25, 2008) (finding no prejudice incurred in remote 22 depositions that require reference to critical exhibits such as photographs, diagrams, and 23 drawings because the exhibits may be sent to the deponent in advance of the deposition). 24 While the Court is sympathetic to the challenges to the legal community during this 25 pandemic, attorneys and litigants are adapting to new ways to practice law, including 26 preparing for and conducting depositions remotely. Grano v. Sodexo Mgmt., Inc., No. 27 18cv1818-GPC(BLM), 2020 WL 1975057, at *3 & n.5 (S.D. Cal. Apr. 24, 2020) 28 (collecting cases). In addition to finding no good cause to extend fact discovery for 30-45 1 days, the Court also finds the parties have not diligently sought to complete depositions 2 || because they are rejecting the use of remote videoconference depositions for reasons of 3 ||convenience and not true prejudice. Accordingly, the Court DENIES the parties’ joint 4 || motion. 6 Dated: May 12, 2020 NO 7 Qe F | g Honorable Linda Lopez 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
«