United States District Court, D. Nevada
JOHN E. ASHCRAFT, Plaintiffs,
WELK RESORT GROUP, CORP., et al., Defendants.
before the Court is Defendant Experian's motion to
consolidate Rule 30(b)(6) depositions in five cases. Docket
No. 15. Because the deposition in this case is scheduled to
proceed on May 3, 2017, the Court agreed to expedite briefing
and resolution of that motion. See Docket No. 18.
Plaintiff filed a response in opposition, and Experian filed
a reply. Docket Nos. 20, 21. The Court has also listened to
the hearing held by United States Magistrate Judge Carl W.
Hoffman on April 27, 2017, on the same motion filed in
Uehara v. TD Bank, Case No. 2:17-cv-00190-GMN-CWH.
The Court finds the motion properly decided without a hearing
held in this case. See Local Rule 78-1.
Court first addresses the deteriorating relationship between
counsel, evidenced both by the tone of the briefing and their
inability to compromise to avoid motion-work.
“Obstructive refusal to make reasonable accommodation .
. . not only impairs the civility of our profession and the
pleasures of the practice of law, but also needlessly
increases litigation expense to clients.” Hauser v.
Farrell, 14 F.3d 1338, 1344 (9th Cir. 1994).
“Counsel should strive to be cooperative, practical and
sensible, and should seek judicial intervention ‘only
in extraordinary situations that implicate truly significant
interests.'” Cardoza v. Bloomin' Brands,
Inc., 141 F.Supp.3d 1137, 1145 (D. Nev. 2015) (quoting
In re Convergent Techs. Securities Litig.,
108 F.R.D. 328, 331 (N.D. Cal. 1985)). The recent amendments
to the Federal Rules of Civil Procedure were intended to
emphasize the importance of common sense cooperation between
counsel, and to curb the culture of scorched earth litigation
tactics. See Nationstar Mtg., LLC v. Flamingo Trails No.
7 Landscape Maintenance Assoc., 316 F.R.D 327, 330 (D.
Nev. 2016). This is most obviously evident in the amendment
to Rule 1 of the Federal Rules of Civil Procedure, which now
expressly requires parties (in addition to courts)
to strive for the just, speedy, and inexpensive resolution of
cases. See Roberts v. Clark County School Dist., 312
F.R.D. 594, 603 (D. Nev. 2016). This Court's local rules
were also amended in 2016 to make plain that “[t]he
court expects a high degree of professionalism and civility
from attorneys.” Local Rule 1-1(c).
need for compliance with these obligations is especially
important when a case is complex or hundreds of substantially
similar cases are pending with the same attorneys. Common
sense and practicality should be at the forefront of
counsel's discussions.” The Bank of N.Y. Mellon
v. Paradise Court Homeowners Assoc., 2016 U.S. Dist.
Lexis 103384, at *3 (D. Nev. Aug. 5, 2016). The need for
cooperation is also heightened when the dispute that has
arisen would require emergency treatment if presented to the
Court, such that the parties must file briefs with limited
time and the Court must resolve the dispute with limited
time. Cf. Cardoza, 141 F.Supp.3d at 1142 (“a
good faith and thorough attempt to resolve the dispute
without Court intervention is even more critical when time is
of the essence”); see also Id. at 1140-41
(outlining the reasons why emergency motions are disfavored).
In addition to the basic need for civility and cooperation in
even the most routine case, this matter involves both of the
extenuating circumstances regarding a high case volume of
similar cases between counsel and the need to resolve the
dispute on an emergency basis. Nonetheless, counsel have
fallen below the level of cooperation and civility required
of them. The Court urges counsel to reset their
relationship so that they can work together more
cooperatively moving forward.
to the substance of the pending motion, it will be denied.
Both sides agree that it would be beneficial to streamline
the Rule 30(b)(6) depositions to avoid duplication and
unnecessary expenditure of resources in the similar cases
that are pending. The Court wholeheartedly agrees that it is
preferable to not conduct a full Rule 30(b)(6) deposition in
every one of these cases. The problem is that the parties
cannot agree on the mechanism to achieve that end. The gist
of the dispute is that Plaintiff would like to use the
testimony obtained in previous cases in these cases, while
Experian would like to conduct a consolidated deposition for
these cases. Compare, e.g., Docket No. 15 at 7
with Docket No. 20 at 3. As both sides point out in
countering the other's proposal, however, there are
logistical and legal complications with each proposal. By way
of example, Plaintiffs proposal may enable him to cherry-pick
testimony to bolster his case; Experian's proposal may
hinder Plaintiffs ability to elicit testimony that fits the
specific circumstances of each case. While the parties have
identified such problems, they have not presented the Court
with concrete, workable solutions that can be implemented. It
is the burden of attorneys to propose solutions to the
difficulties they are facing, first through the
meet-and-confer process and then to the Court if necessary.
The Court declines to engage in the undertaking of
formulating a solution for the attorneys.
short, the Court agrees with both parties that streamlining
the Rule 30(b)(6) depositions would be beneficial for
everyone involved. Ultimately, however, neither side has
persuaded the Court that its proposal is legally sound and
logistically practical. Because neither party provided the
Court with a workable plan to obtain the laudable objective
of avoiding duplicative discovery, the Court declines to
grant relief to either party. The parties' competing
requests are both DENIED.
shall continue to meet-and-confer to find a mutually
agreeable solution to their predicament. The Court is
confident that the counsel can find common ground to further
both of their clients' interests. In the meantime,
counsel will have to continue with the case-by-case
 Plaintiff s proposal is not properly
before the Court, as he did not file a motion seeking that
 To be clear, this is by no means an
exhaustive list of the problems the parties have identified
with the opposing ...