United States v. K.O.O. Construction

• Court: District Court, S.D. California
• Decided: May 8, 2020
• Docket: 3:19-cv-01535
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, for Case No.: 19cv1535-JAH-LL the use and benefit of ANDREW C. 12 CHEN, an individual, doing business as ORDER GRANTING IN PART AND 13 TECTONICS, DENYING IN PART JOINT MOTION TO CONTINUE FACT 14 Plaintiff, DISCOVERY 15 v.

16 K.O.O. CONSTRUCTION, INC., a [ECF No. 30] California corporation, 17 Defendant. 18

19 K.O.O. CONSTRUCTION, INC., a 20 California corporation, 21 Counter Claimant, 22 v. 23 ANDREW C. CHEN, an individual, doing 24 business as TECTONICS, 25 Counter Defendant. 26 / / / 27 / / / 28 / / / 1 Currently before the Court is the parties’ joint motion requesting that the Court 2 continue the deadline to complete fact discovery from June 10, 2020 to August 10, 2020. 3 ECF No. 30. The parties state that this is their first request to modify the Scheduling Order, 4 they have been working diligently to complete discovery, and they only require additional 5 time for depositions to be taken. Id. at 2–3. The parties contend that some depositions need 6 to be taken in person because (1) some depositions will include reference and review of 7 extremely voluminous project plans, which “would be nearly impossible to reference” and 8 “use them effectively as exhibits via a teleconference deposition”; and (2) the “architectural 9 plans are far too detailed to be referenced and followed remotely” even if videoconference 10 is used. Id. at 3; ECF No. 30-1, Declaration of Lauren B. Stec (“Stec Decl.”), ¶ 6. The 11 parties further claim that of the eleven witnesses who need to be deposed, six are 12 Defendant’s former employees and serving subpoenas “is expected to be difficult” during 13 “the Coronavirus lockdown and the requirement to maintain social distancing.” 14 ECF No. 30 at 3; Stec Decl. ¶ 7. 15 “The district court has wide discretion in controlling discovery.” Little v. City of 16 Seattle, 863 F.2d 681, 685 (9th Cir. 1988). In employing the Federal Rules of Civil 17 Procedure, courts and parties are required “to secure the just, speedy, and inexpensive 18 determination of every action and proceeding.” Fed. R. Civ. P. 1. Pursuant to Rule 16, the 19 Court is required to issue a scheduling order that “must limit the time to join other parties, 20 amend the pleadings, complete discovery, and file motions.”1 See Fed. R. Civ. P. 21 16(b)(3)(A). “A schedule may be modified only for good cause and with the judge's 22 consent.” Fed. R. Civ. P. 16(b)(4). "Rule 16(b)'s 'good cause' standard primarily considers 23 the diligence of the party seeking the amendment." Johnson v. Mammoth Recreations, Inc., 24 975 F.2d 604, 609 (9th Cir. 1992). If the moving party fails to demonstrate diligence, "the 25 inquiry should end." Id. 26 27 1 The word “Rule” in this order refers to the Federal Rules of Civil Procedure, unless 28 1 The Court fails to find good cause to extend the fact discovery deadline for sixty 2 days. One reason for the requested extension is that serving subpoenas to six deponents 3 will be difficult at this time, but the Court is not convinced by this vague and 4 unsubstantiated claim. The primary reason the parties seek the continuance is because they 5 hope the physical distancing and stay-at-home orders required by the current pandemic will 6 be lessened to allow for in-person depositions in the near future. This, however, is pure 7 speculation. It is not feasible for the Court to extend deposition deadlines until a time when 8 they can be safely conducted in person because no one knows when that will occur and 9 there are alternatives. Rule 30(b)(4) allows depositions to “be taken by telephone or other 10 remote means.” Fed. R. Civ. P. 30(b)(4). The Court authorizes the use of remote 11 depositions by videoconference in this action, which will help secure a “just, speedy, and 12 inexpensive determination.” Fed. R. Civ. P. 1; see also Velicer v. Falconhead Capital LLC, 13 No. C19-1505 JLR, 2020 WL 1847773, at *2 (W.D. Wash. Apr. 13, 2020) (finding no 14 good cause to extend scheduling order deadlines by ninety days and urging the parties to 15 consider remote depositions); Sinceno v. Riverside Church in City of New York, 16 No. 18-CV-2156 (LJL), 2020 WL 1302053, at *1 (S.D.N.Y. Mar. 18, 2020) (authorizing 17 remote depositions “[i]n order to protect public health while promoting the ‘just, speedy, 18 and inexpensive determination of every action and proceeding’” (citation omitted)). 19 The Court is not convinced that voluminous and highly detailed exhibits are a bar to 20 remote videoconference depositions. Other courts have found that exhibits can be managed 21 in remote depositions by sending Bates-stamped exhibits to deponents prior to the 22 depositions or using modern videoconference technology to share documents and images 23 quickly and conveniently. See Kaseberg v. Conaco, LLC, No. 15cv01637-JLS-DHB, 24 2016 WL 8729927, at *6 (S.D. Cal. Aug. 19, 2016) (requiring a copy of exhibits intended 25 to be used at a remote deposition to be sent to deponent’s attorney at least twenty-four 26 hours in advance of the deposition); Carrico v. Samsung Elecs. Co., 27 No. 15-CV-02087-DMR, 2016 WL 1265854, at *2 (N.D. Cal. Apr. 1, 2016) (approving 28 methods such as exchanging Bates-stamped documents in advance of a remote deposition 1 using modern videoconference software to share documents and images); 2 || Lopez v. CIT Bank, N.A., No. 1SCV00759BLFHRL, 2015 WL 10374104, at *2 (N.D. Cal. 3 ||Dec. 18, 2015) (disagreeing that reviewing complicated exhibits remotely would be 4 ||impracticable because exhibits can be shared with modern videoconference software or by 5 distributing Bates-stamped copies); Lott_v. United States, No. C-07-3530 PJH (EMC), 6 || 2008 WL 2923437, at *1 (N.D. Cal. July 25, 2008) (finding no prejudice incurred in remote 7 || depositions that require reference to critical exhibits such as photographs, diagrams, and 8 || drawings because the exhibits may be sent to the deponent in advance of the deposition). 9 While the Court is sympathetic to the challenges to the legal community during this 10 pandemic, attorneys and litigants are adapting to new ways to practice law, including 11 preparing for and conducting depositions remotely. Grano v. Sodexo Mgmt., Inc., No. 12 |} 18cv1818-GPC(BLM), 2020 WL 1975057, at *3 & n.5 (S.D. Cal. Apr. 24, 2020) 13 (collecting cases). In addition to finding no good cause to extend fact discovery for sixty 14 days, the Court also finds the parties have not diligently sought to complete depositions 15 || because they are rejecting the use of remote videoconference depositions for reasons of 16 || convenience and not true prejudice. However, the Court, in its discretion, will allow a short 17 continuance for the parties to complete depositions remotely “to secure the just, speedy, 18 ||and inexpensive determination” of this action. See Fed. R. Civ. P. 1; Little v. City of 19 ||Seattle, 863 F.2d at 685. Accordingly, the Court GRANTS IN PART AND DENIES IN 20 || PART the joint motion as follows: 21 The fact discovery deadline of June 10, 2020 will be extended to July 10, 2020 for 22 sole purpose of completing depositions remotely. 23 IT IS SO ORDERED. 24 Dated: May 8, 2020 XO 25 QF 26 Honorable Linda Lopez United States Magistrate Judge 28