1 ROBERT W. FREEMAN Nevada Bar No. 03062 2 Email: Robert.Freeman@lewisbrisbois.com PRISCILLA L. O’BRIANT 3 Nevada Bar No. 10171 4 Email: Priscilla.Obriant@lewisbrisbois.com TARA U. TEEGARDEN 5 Nevada Bar No. 15344 Email: Tara.Teegarden@lewisbrisbois.com 6 LEWIS BRISBOIS BISGAARD & SMITH LLP 7 6385 South Rainbow Blvd., Suite 600 8 Las Vegas, NV 89118 (702) 693-4388 / FAX (702) 893-3789 9 DAVID M. KRUEGER (Pro Hac Vice) 10 Ohio Bar No.: 0085072 11 Email: dkrueger@beneschlaw.com NORA K. COOK (Pro Hac Vice) 12 Ohio Bar No.: 0086399 Email: ncook@beneschlaw.com 13 BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP 14 200 Public Square, Suite 2300 15 Cleveland, Ohio 44114 (216) 363-4500 / FAX (216) 363-4588 16 Attorneys for Defendant USAA Savings Bank
17 UNITED STATES DISTRICT COURT 18 DISTRICT OF NEVADA
19 LANCE MANCUSO, Case No. 2:20-cv-01656-RFB-BNW 20
21 Plaintiff, EMERGENCY MOTION
22 v. DEFENDANT USAA SAVINGS BANK’S EMERGENCY MOTION FOR 23 USAA SAVINGS BANK, et al. PROTECTIVE ORDER 24 Defendants.
25 Defendant USAA Savings Bank (“USAA SB”) submits this Emergency Motion for 26 Protective Order (“Motion). Pursuant to LR 7-4, the Declaration of USAA SB’s counsel, David M. 27 Krueger, is attached as “Exhibit A.” 1 I. FACTS AND PROCEDURAL POSTURE 2 On Monday, March 15, 2020, at 6:04 p.m. ET, Plaintiff issued a Notice of Deposition for 3 USAA SB’s Rule 30(b)(6) deposition to occur next week, on Monday, March 22, 2020, in Phoenix, 4 Arizona (“Notice”). (Exhibit A at ¶ 2; Exhibit B.) USAA SB has conferred and Plaintiff will not 5 move the deposition date. (Exhibit A ¶ 5.) USAA SB seeks emergency relief because normal 6 briefing would not allow this Motion to be decided before the Noticed date and the parties have 7 8 been unsuccessful in resolving the dispute or reaching the Court telephonically. (Id.) 9 II. LAW & ARGUMENT 10 a. Standard for a Protective Order. 11 Rule 26(c)(1) of the Federal Rules of Civil Procedure permits courts to enter protective 12 orders “for good cause.” The party seeking protection bears the burden of showing good cause, that 13 is, specific prejudice or harm that will result if no protective order is granted. Phillips ex rel. 14 15 Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-1211 (9th Cir. 2002). With respect to 16 depositions, “[a] party who wants to depose a person by oral questions must give reasonable 17 written notice to every other party.” Fed. R. Civ. P. 30(b)(1) (emphasis added). 18 b. Seven days is not reasonable notice to identify and prepare up to three 19 corporate representatives (in potentially two different states).1
20 Simply put, seven days is not reasonable notice for a deposition. See, e.g., Gulf Production 21 Co., Inc. v. Hoover Oilfield Supply, Inc., No. 08-5016, 2011 U.S. Dist. LEXIS, *10 (E.D. La. Mar. 22 23
1 USAA SB also objected on the grounds that Plaintiff is not entitled to take the depositions in 24 Phoenix, Arizona, but rather in San Antonio, Texas, where USAA’s principal place of business and representatives may be situated. See, e.g., Merianos v. Merry Chance Indus., No. CV 10-2357, 25 2011 U.S. Dist. LEXIS 163921, *4 (C.D. Cal. Aug. 8, 2011) (“The general rule for setting the location of a corporate party’s deposition is … at its principal place of business.’”). While Plaintiff 26 has not yet issued a new Notice, Plaintiff has represented that he will conduct the deposition in San Antonio if the representatives are located there. The parties have also discussed doing remote 27 depositions if the witnesses had a genuine concern regarding COVID exposure. While not subject 1 11, 2011) (“[C]ourts have ruled that a week or less is not sufficient notice pursuant to the rules.”). 2 This is particularly the case for a Rule 30(b)(6) deposition that will require USAA SB to identify 3 and prepare up to three witnesses (in potentially two different states) to testify to over 30 different 4 topics. See, e.g., Holloway v. 3M Co., No. 19-708, 2019 U.S. Dist. LEXIS 222001, *74 (C.D. Cal. 5 Oct. 31, 2019) (“[N]ine days’ notice is not reasonable for a Rule 30(b)(6) deposition[.]”). 6 Plaintiff’s Notice, generally speaking, seeks detailed information on Plaintiff’s account with 7 8 USAA SB, fraud investigations, credit reporting, collections efforts, and credit reporting disputes 9 over almost a three-year timespan, as well as policies and procedures regarding the same. (Exhibit 10 A ¶ 3.) The parties have produced almost 600 pages of documents to date, on which the corporate 11 representatives must also be prepared to testify. (Id.); see, e.g., Elan Microelectronics Corp. v. 12 Pixcir Microelectronics Co., No. 2:10-cv-00014, 2013 U.S. Dist. LEXIS 114164, *15-17 (D. Nev. 13 Aug. 7, 2013) (discussing duty of defendant to prepare Rule 30(b)(6) witnesses). Even if USAA SB 14 15 could offer its witnesses on March 22, 2020—USAA SB is still trying to determine who the 16 appropriate representatives will be in the less than 48-hours since Plaintiff issued the Notice—it 17 would consume several combined days of USAA SB’s counsel and USAA SB’s witnesses time to 18 prepare for and attend these depositions, causing significant unplanned business interruption.2 19 USAA SB is obviously willing to offer its representatives for deposition at a mutually 20 agreeable time and place, and prepare them as it is required to do. But Plaintiff’s demand that 21 22 USAA SB, its counsel, and its witnesses drop everything they are doing this week to prepare for a 23 deposition this upcoming Monday is prejudicial, simply not reasonable, and cannot be practically 24 done. See Engage Healthcare Communs., LLC v. Intellisphere, LLC, No. 12-cv-00787, 2017 U.S. 25
26 2 The timing is also unreasonable given that Plaintiff has included TCPA deposition topics in the Notice, (Exhibit B at ¶¶ 23-31), when those claims are not even in the case. (See Docs. 36, 40, 41, 27 and 44.) To the extent such claims were allowed, additional discovery and preparation would be 1 Dist. LEXIS 214569, *7 (D.N.J. Nov. 1, 2017) (“[P]revailing practice dictates that counsel should 2 notice depositions at least 14 days — not counting mail time — in advance.”) (citation omitted). 3 c. Plaintiff has not acted diligently in seeking to schedule USAA SB’s deposition. 4 Finally, the Court may also consider whether a defendant has been uncooperative in 5 scheduling depositions. See Bresk v. Unimerica Ins. Co., No. 16-8893, 2017 U.S. Dist. LEXIS 6 225217, *21-24 (C.D. Cal. Nov. 16, 2017). Discovery has been open for almost five months, since 7 8 October 28, 2020. (See Exhibit A at ¶ 3.d.) Plaintiff has never previously sought or requested 9 deposition dates from USAA SB, instead simply issuing the Notice on March 15, 2020.3 (Id.) 10 During the meet and confer process, Plaintiff expressed that he would not agree to move the 11 deposition because of his upcoming expert deadline of March 30, 2020. (See Docs. 32 and 34.) Yet, 12 Plaintiff waited until this afternoon to file his motion to extend expert discovery. Regardless of 13 14 whether that motion should ultimately be granted and whether Plaintiff can show good cause for it, 15 whether Plaintiff has acted diligently in procuring expert testimony is unrelated to whether seven 16 days is reasonable time for USAA SB to identify and prepare its corporate representatives. Had 17 Plaintiff genuinely needed USAA SB’s Rule 30(b)(6) deposition to obtain expert testimony, he has 18 had since October of last year to seek it.
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1 ROBERT W. FREEMAN Nevada Bar No. 03062 2 Email: Robert.Freeman@lewisbrisbois.com PRISCILLA L. O’BRIANT 3 Nevada Bar No. 10171 4 Email: Priscilla.Obriant@lewisbrisbois.com TARA U. TEEGARDEN 5 Nevada Bar No. 15344 Email: Tara.Teegarden@lewisbrisbois.com 6 LEWIS BRISBOIS BISGAARD & SMITH LLP 7 6385 South Rainbow Blvd., Suite 600 8 Las Vegas, NV 89118 (702) 693-4388 / FAX (702) 893-3789 9 DAVID M. KRUEGER (Pro Hac Vice) 10 Ohio Bar No.: 0085072 11 Email: dkrueger@beneschlaw.com NORA K. COOK (Pro Hac Vice) 12 Ohio Bar No.: 0086399 Email: ncook@beneschlaw.com 13 BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP 14 200 Public Square, Suite 2300 15 Cleveland, Ohio 44114 (216) 363-4500 / FAX (216) 363-4588 16 Attorneys for Defendant USAA Savings Bank
17 UNITED STATES DISTRICT COURT 18 DISTRICT OF NEVADA
19 LANCE MANCUSO, Case No. 2:20-cv-01656-RFB-BNW 20
21 Plaintiff, EMERGENCY MOTION
22 v. DEFENDANT USAA SAVINGS BANK’S EMERGENCY MOTION FOR 23 USAA SAVINGS BANK, et al. PROTECTIVE ORDER 24 Defendants.
25 Defendant USAA Savings Bank (“USAA SB”) submits this Emergency Motion for 26 Protective Order (“Motion). Pursuant to LR 7-4, the Declaration of USAA SB’s counsel, David M. 27 Krueger, is attached as “Exhibit A.” 1 I. FACTS AND PROCEDURAL POSTURE 2 On Monday, March 15, 2020, at 6:04 p.m. ET, Plaintiff issued a Notice of Deposition for 3 USAA SB’s Rule 30(b)(6) deposition to occur next week, on Monday, March 22, 2020, in Phoenix, 4 Arizona (“Notice”). (Exhibit A at ¶ 2; Exhibit B.) USAA SB has conferred and Plaintiff will not 5 move the deposition date. (Exhibit A ¶ 5.) USAA SB seeks emergency relief because normal 6 briefing would not allow this Motion to be decided before the Noticed date and the parties have 7 8 been unsuccessful in resolving the dispute or reaching the Court telephonically. (Id.) 9 II. LAW & ARGUMENT 10 a. Standard for a Protective Order. 11 Rule 26(c)(1) of the Federal Rules of Civil Procedure permits courts to enter protective 12 orders “for good cause.” The party seeking protection bears the burden of showing good cause, that 13 is, specific prejudice or harm that will result if no protective order is granted. Phillips ex rel. 14 15 Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-1211 (9th Cir. 2002). With respect to 16 depositions, “[a] party who wants to depose a person by oral questions must give reasonable 17 written notice to every other party.” Fed. R. Civ. P. 30(b)(1) (emphasis added). 18 b. Seven days is not reasonable notice to identify and prepare up to three 19 corporate representatives (in potentially two different states).1
20 Simply put, seven days is not reasonable notice for a deposition. See, e.g., Gulf Production 21 Co., Inc. v. Hoover Oilfield Supply, Inc., No. 08-5016, 2011 U.S. Dist. LEXIS, *10 (E.D. La. Mar. 22 23
1 USAA SB also objected on the grounds that Plaintiff is not entitled to take the depositions in 24 Phoenix, Arizona, but rather in San Antonio, Texas, where USAA’s principal place of business and representatives may be situated. See, e.g., Merianos v. Merry Chance Indus., No. CV 10-2357, 25 2011 U.S. Dist. LEXIS 163921, *4 (C.D. Cal. Aug. 8, 2011) (“The general rule for setting the location of a corporate party’s deposition is … at its principal place of business.’”). While Plaintiff 26 has not yet issued a new Notice, Plaintiff has represented that he will conduct the deposition in San Antonio if the representatives are located there. The parties have also discussed doing remote 27 depositions if the witnesses had a genuine concern regarding COVID exposure. While not subject 1 11, 2011) (“[C]ourts have ruled that a week or less is not sufficient notice pursuant to the rules.”). 2 This is particularly the case for a Rule 30(b)(6) deposition that will require USAA SB to identify 3 and prepare up to three witnesses (in potentially two different states) to testify to over 30 different 4 topics. See, e.g., Holloway v. 3M Co., No. 19-708, 2019 U.S. Dist. LEXIS 222001, *74 (C.D. Cal. 5 Oct. 31, 2019) (“[N]ine days’ notice is not reasonable for a Rule 30(b)(6) deposition[.]”). 6 Plaintiff’s Notice, generally speaking, seeks detailed information on Plaintiff’s account with 7 8 USAA SB, fraud investigations, credit reporting, collections efforts, and credit reporting disputes 9 over almost a three-year timespan, as well as policies and procedures regarding the same. (Exhibit 10 A ¶ 3.) The parties have produced almost 600 pages of documents to date, on which the corporate 11 representatives must also be prepared to testify. (Id.); see, e.g., Elan Microelectronics Corp. v. 12 Pixcir Microelectronics Co., No. 2:10-cv-00014, 2013 U.S. Dist. LEXIS 114164, *15-17 (D. Nev. 13 Aug. 7, 2013) (discussing duty of defendant to prepare Rule 30(b)(6) witnesses). Even if USAA SB 14 15 could offer its witnesses on March 22, 2020—USAA SB is still trying to determine who the 16 appropriate representatives will be in the less than 48-hours since Plaintiff issued the Notice—it 17 would consume several combined days of USAA SB’s counsel and USAA SB’s witnesses time to 18 prepare for and attend these depositions, causing significant unplanned business interruption.2 19 USAA SB is obviously willing to offer its representatives for deposition at a mutually 20 agreeable time and place, and prepare them as it is required to do. But Plaintiff’s demand that 21 22 USAA SB, its counsel, and its witnesses drop everything they are doing this week to prepare for a 23 deposition this upcoming Monday is prejudicial, simply not reasonable, and cannot be practically 24 done. See Engage Healthcare Communs., LLC v. Intellisphere, LLC, No. 12-cv-00787, 2017 U.S. 25
26 2 The timing is also unreasonable given that Plaintiff has included TCPA deposition topics in the Notice, (Exhibit B at ¶¶ 23-31), when those claims are not even in the case. (See Docs. 36, 40, 41, 27 and 44.) To the extent such claims were allowed, additional discovery and preparation would be 1 Dist. LEXIS 214569, *7 (D.N.J. Nov. 1, 2017) (“[P]revailing practice dictates that counsel should 2 notice depositions at least 14 days — not counting mail time — in advance.”) (citation omitted). 3 c. Plaintiff has not acted diligently in seeking to schedule USAA SB’s deposition. 4 Finally, the Court may also consider whether a defendant has been uncooperative in 5 scheduling depositions. See Bresk v. Unimerica Ins. Co., No. 16-8893, 2017 U.S. Dist. LEXIS 6 225217, *21-24 (C.D. Cal. Nov. 16, 2017). Discovery has been open for almost five months, since 7 8 October 28, 2020. (See Exhibit A at ¶ 3.d.) Plaintiff has never previously sought or requested 9 deposition dates from USAA SB, instead simply issuing the Notice on March 15, 2020.3 (Id.) 10 During the meet and confer process, Plaintiff expressed that he would not agree to move the 11 deposition because of his upcoming expert deadline of March 30, 2020. (See Docs. 32 and 34.) Yet, 12 Plaintiff waited until this afternoon to file his motion to extend expert discovery. Regardless of 13 14 whether that motion should ultimately be granted and whether Plaintiff can show good cause for it, 15 whether Plaintiff has acted diligently in procuring expert testimony is unrelated to whether seven 16 days is reasonable time for USAA SB to identify and prepare its corporate representatives. Had 17 Plaintiff genuinely needed USAA SB’s Rule 30(b)(6) deposition to obtain expert testimony, he has 18 had since October of last year to seek it. 19 As respectfully as can be stated, that Plaintiff only thought to depose USAA SB one week 20 before his expert deadline does not somehow make seven days’ notice practical or reasonable. 21 22 “[T]his is a problem of their own creation and one which could easily have been avoided.” 23 Ransburg Corp. v. Champion Spark Plug Co., 648 F. Supp. 1040, 1047 (N.D. Ill. 1986). 24
26 3 In full candor, two days prior to the Notice, on Saturday, March 13, Plaintiff originally demanded a deposition from USAA SB this week on even shorter notice. Before USAA SB could even 27 respond, Plaintiff then issued the Notice for March 22. But this is essentially a distinction without a 2|| Il. CONCLUSION 3 USAA SB respectfully requests emergency relief from this Court in the form of a □□□□□□□□□□ 4 Order precluding the Noticed deposition on March 22, 2020 from going forward, and order 5 Plaintiff to confer with USAA SB on a mutually agreeable date and time for a Rule 30(b)(6) 7 deposition. 8 || ORDERED that ECF No. 46 is Dated this 17 day of March, 2021 GRANTED under the Court's broad 9]! discretion to control discovery. Respectfully submitted, 10 IT IS FURTHER ORDERED that the Tara U. Teegarden || parties are to meet and confer ona ROBERT W. FREEMAN mutually agreeable date and time for a Nevada Bar No. 03062 12 Rule 30(b)(6) deposition. PRISCILLA L. O’BRIANT 43 Nevada Bar No. 10171 IT IS FURTHER ORDERED that in Net Ne ts344 14 || light of this order allowing Defendant evaca mar Ne: USAA SB ws . 6385 South Rainbow Blvd., Suite 600 additional time to prepare for 15}! a Rule 30(b)(6) deposition, the parties Las Vegas, NV 89118 P 7 ine Pane 702-693-4388 / FAX 702-893-3789 || are to meet and confer again regarding Plaintiff's requested extension at ECF DAVID M. KRUEGER No. 45. Ohio Bar No. 0085072 18 NORA K. COOK IT ISSO ORDERED Ohio Bar No. 0086399 19 □ 17: 200 Public Square, Suite 2300 DATED: 10:53 am, March 18, 2021 Cleveland, Ohio 44114-2378 20 216-363-4500 / FAX: 216-363-4588 Attorneys for Defendant USAA Savings Bank 22 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27
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1 CERTIFICATE OF SERVICE 2 Pursuant to FRCP 5(b), I certify that I am an employee of, and that on this 17th day of 3 MARCH, 2021, I did cause a true copy of EMERGENCY MOTION FOR A PROTECTIVE 4 ORDER to be served via electronic service by the U.S. District Court CM/ECF system to the parties 5 on the Electronic Filing System. 6 7 Continuation on next page 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 CERTIFICATE OF SERVICE CONTINUATION: 2
3 Steven A. Alpert kbonds@alversontaylor.com 4 PRINCE LAW GROUP, APC twaite@alversontaylor.com 5940 S. Rainbow Blvd. Counsel for Trans Union LLC 5 Suite 3014 Las Vegas, NV 89118 Jeremy J. Thompson 6 P: (702) 794.2008 Clark Hill PLLC alpert@pricelawgroup.com 7 Attorney for Plaintiff 3800 Howard Hughes Pkwy, Suite 500 Lance Mancuso Las Vegas, NV 89169 8 jthompson@clarkhill.com Robert M. Tzall Attorney for Equifax Information 9 Law Offices of Robert M. Tzall Services, LLC 1481 Warm Springs Rd., Suite 135 10 Henderson, NV 89014 Jennifer L. Braster office@tzalllegal.com 11 Attorneys for Plaintiffs Andrew J. Sharples Naylor & Braster 12 Price Law Group, APC 1050 Indigo Drive, Suite 200 David Chami, Esq. Las Vegas, NV 89145 13 8245 North 85th Way T: 702-420-7000/ F: 702-420-70001 Scottsdale, AZ 85258 jbraster@nblawnv.com 14 Phone (818) 600-5515 asharples@nblawnv.com david@pricelawgroup.com 15 Attorney for Plaintiff Katherine A. Neben 16 Alverson Taylor & Sanders Jones Day Kurt Bonds, Esq. 3161 Michelson Drive, Suite 800 17 Trevor Waite, Esq. Irvine, CA 92612 6605 Grand Montecito Parkway, Suite 200 T: 949-851-3939 /F: 949-553-7539 18 Las Vegas, NV 89149 kneben@jonesday.com 19 P: (702) 384-7000/F: (702) 385-7000 Attorneys for Experian efile@alversontaylor.com Information Solutions, Inc. 20
21 BY: /s/Anne Cordell 22 An Employee of 23 Lewis Brisbois Bisgaard & Smith LLP 24 25 26 27 28