Smallman v. MGM Resorts International

Opinion

4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6

7 IN RE: MGM RESORTS Case No. 2:20-cv-00376-GMN-NJK 8 INTERNATIONAL DATA BREACH LITIGATION Order 9 [Docket No. 156] 10 11 Pending before the Court is Plaintiffs’ motion regarding a discovery dispute. Docket No. 12 156. Defendants filed a response in opposition. Docket No. 158. The motion is properly resolved 13 without a hearing. See Local Rule 78-1. 14 The dispute in question relates to the procedures for motion practice regarding a privilege 15 challenge for documents that have been clawed back. See Docket No. 156 at 3. There is currently 16 no such scenario before the Court, but rather the parties seek to iron out procedures in their 17 stipulated protective order in the unlikely event such a challenge arises in the future.1 In seeking 18 judicial intervention now, Defendants cite to an unpublished decision from the Northern District 19 of California in which the magistrate judge issued a detailed ruling given that the parties could not 20 agree in a stipulated protective order on this procedure as to future motion practice. See in re 21 Google RTB Consumer Privacy Litig., 2022 WL 1316586 (N.D. Cal. May 3, 2022). Other courts 22 have addressed this issue after there has been a clawback request and there is a live dispute as to 23 how the subject information can be used in briefing a privilege challenge. See, e.g., Stinson v. City 24 of New York, 2014 WL 5090031, at *1-2 (S.D.N.Y. Oct. 10, 2014). That is the better approach. 25 At bottom, parties should rarely seek judicial resolution of discovery disputes and should do so 26 “only in extraordinary situations that implicate truly significant interests.” Cardoza v. Bloomin’ 27

28 1 In this Court’s experience, such motion practice is very uncommon. Brands, Inc., 141 F. Supp. 3d 1137, 1145 (D. Nev. 2015) (quoting in re Convergent Techs. 2|| Securities Litig., 108 F.R.D. 328, 331 (N.D. Cal. 1985)). Courts should also avoid addressing 3| hypothetical issues that may never arise. See, e.g., Flast v. Cohen, 392 U.S. 83, 96 (1968). Such restraint is particularly warranted when, as is the case here, there is no controlling legal authority 5] and a split in the sparce case law that exists. See Google RTB, 2022 WL 1316586, at *2. In short, 6] the Court is not persuaded that it should wade into this dispute regarding hypothetical future 7|| motion practice that is unlikely to ever be filed. 8 Accordingly, the motion is DENIED without prejudice. The parties must file their 9| stipulated protective order by April 7, 2023. That stipulated protective order must indicate that 10] the parties will confer on this clawback issue in the event it ever becomes pertinent to the case. 1] IT IS SO ORDERED. 12 Dated: March 31, 2023 13 EX Nancy J. K 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28