United States District Court, D. Nevada
ORDER [DOCKET NOS. 27, 33]
J. KOPPE, UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff's motion for expedited
discovery to take the deposition of nonparty John Knott prior
to the Rule 26(f) conference, which Plaintiff filed on an
emergency basis. Docket No. 34. Defendants filed a response
in opposition. Docket Nos. 32, 34 (joinder), 35 (joinder).
Plaintiff filed a reply. Docket No. 39. Defendants also filed
a counter-motion for protective order. Docket Nos. 33, 34
(joinder), 35 (joinder). Plaintiff filed a response in
opposition. Docket No. 40. These motions are properly
resolved without a hearing. See Local Rule 72-1. For
the reasons discussed below, the motion for expedited
discovery is hereby DENIED and the
counter-motion for protective order is
DENIED as unnecessary.
a civil case arising out of loan agreements for the
now-defunct Lucky Dragon Hotel and Casino. Docket No. 1.
Plaintiff is seeking to recover from Lucky Dragon and
individual guarantors for losses associated with a loan
default. The complaint was filed on April 8, 2019. Defendants
answered the complaint on June 18 and June 19, 2019. Docket
Nos. 19, 21, 22. Given that recent appearance, no discovery
conference has taken place pursuant to Rule 26(f) of the
Federal Rules of Civil Procedure.
Knott is not a party to this action, but he participated in
the marketing of the Lucky Dragon before and after the
foreclosure of the property. He has been diagnosed with Stage
IV pancreatic cancer and has approximately one month before
he passes away. Knott Decl. (Docket No. 29) ¶ 7. He has
already hosted a “final going away party.”
Id. at ¶ 8. Mr. Knott is preparing to enter
hospice care. Id. He has been prescribed medications
to help manage his anticipated pain and to provide him
comfort, medications that will interfere with his ability to
testify. Id. at ¶ 9. Notwithstanding the above,
Plaintiff obtained a declaration from Mr. Knott that he is
available on a few dates to be deposed “[a]ssuming that
[his] medical condition permits.” Id. at
instant dispute centers on whether the Court should allow
early discovery for that deposition.
party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f), except in a
proceeding exempted from initial disclosures under Rule
26(a)(1)(B), or when authorized by these rules, by
stipulation, or by court order.” Fed.R.Civ.P. 26(d);
see also Fed. R. Civ. P. 30(a)(2)(A)(iii)
(addressing the need to obtain leave of court for depositions
taken before the Rule 26(d) timeframe). Early discovery may
be permitted by court order upon a showing of good cause.
Am. LegalNet, Inc. v. Davis, 673 F.Supp.2d 1063,
1066 (C.D. Cal. 2009). The party seeking expedited
discovery bears the burden of making that showing.
Id. Because expedited discovery is not the norm, the
movant must make a prima facie showing of the
need for that expedited discovery. Id. A
finding of good cause may be made where the need for
expedited discovery, in consideration of the administration
of justice, outweighs the prejudice to the responding party.
Id. Court engage in that balancing analysis by
evaluating the reasonableness of the request in light of all
the surrounding circumstances. Id. at
1067. At bottom, courts have “wide
discretion” in determining whether the circumstances
justify expedited discovery. Semitool, Inc. v. Tokyo
Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002)
(citing Little v. City of Seattle, 863 F.2d 681, 685
(9th Cir. 1988)).
courts always maintain the discretion, in the interests of
justice, to prevent excessive or burdensome discovery.
American LegalNet, 673 F.Supp.2d at 1067; see
also Fed. R. Civ. P. 30(a)(2)(A)(iii) (incorporating
limitations on discovery in Rule 26(b)). Courts are more
likely to authorize expedited discovery on specific, limited
topics. See 8A Wright, Miller & Marcus, Federal
Practice and Procedure, § 2046.1 at p. 291 (2019
suppl.). On the other hand, courts generally eschew requests
for open-ended discovery at this stage, such as “a free
ranging deposition” for which there is not sufficient
time or information to prepare. Semitool, 208 F.R.D.
motion fails to show good cause for the relief requested. As
a threshold matter, Plaintiff's highlight that Mr. Knott
“generous[ly] offer[ed] to testify” and
“volunteered to give his deposition.”
See Docket No. 43 at 1. The Court is not privy to
Mr. Knott's beliefs other than understanding them from
his attestations in his declaration that he “could
attend a deposition” and would be
“available” if his medical condition permits.
See Knott Decl. at ¶ 10. These statements do
not strike the Court as someone excited about spending his
precious remaining time being deposed in a civil suit about a
loan agreement. At any rate, the Court is aware that Mr.
Knott himself has not objected to the deposition.
the remaining circumstances make clear that allowing
expedited discovery to conduct this deposition is not
justified. Most significantly, there has been no showing that
there is any need for the deposition testimony. The motion
identifies certain issues related to affirmative defenses on
which Mr. Knott may have relevant knowledge. See
Docket No. 27 at 5-6. The motion also indicates that his
testimony “may be relevant” to expert witness
opinions. See Id. at 6. Problematically, the motion
does not identify any facts or subjects that are uniquely
known to Mr. Knott and cannot be attested to by other
employees or a Rule 30(b)(6) deponent. To the contrary,
Plaintiff conceded during the meet-and-confer process that
“[m]ost if not all of what [Mr. Knott] can
testify to can be covered by other CBRE marketing team
members.” Docket No. 32-3 at 2 (emphasis
added). Given this concession that deposition
testimony can be obtained from other witnesses, there is no
need to proceed with Mr. Knott's deposition now. See,
e.g., Fed.R.Civ.P. 26(b)(2)(C)(i) (courts should not
permit discovery that “can be obtained from some other
source that is more convenient, less burdensome, or less
Court is also persuaded by Defendants' argument that
allowing a free-wheeling deposition would be prejudicial.
See, e.g., Resp. at 4, 7-8. Plaintiff contends that
it is proper to conduct this deposition now so that Mr.
Knott's deposition testimony can be preserved and the
other parties have their own opportunity to examine Mr.
Knott. See Docket No. 27 at 5. At the same time,
Plaintiff has not clearly identified what ground this
deposition will cover. Indeed, Plaintiff represents amazingly
in reply that it still does not know what information it will
seek at the deposition. Docket No. 39 at 5 (“SCC is
still determining how to use its thirty minutes of
testimony”). For depositions taken outside the normal
course of discovery, this alone is highly problematic.
Cf. Fed. R. Civ. P. 27(a)(1)(C) (to obtain an order
to allow a pre-litigation deposition to preserve testimony,
the movant must identify “the facts that the petitioner
wants to establish by the proposed testimony and the reasons
to perpetuate it”). The prejudice from conducting a
blind deposition is heightened by the shortened notice to
opposing counsel of the deposition and the very limited time
for the deposition itself. Moreover, no discovery has been
conducted in this case, so the parties are unaware what
documentary evidence may bear on the issues that will in fact
be discussed. Defendants cannot examine (or cross-examine)
Mr. Knott effectively without an understanding of the issues
that will be discussed and how discovery that is obtained
bears on the answers provided.
short, this case involves a nonparty in his final days. No.
showing has been made that he has unique knowledge or that
his testimony will not be duplicative of other deposition
testimony. In fact, Plaintiff's counsel acknowledges the
contrary. No. guidance has been provided as to the testimony
that would be covered, and no discovery has been conducted
that would enable effective examination by ...