Tattersalls LTD. v. Wiener

Opinion

6 6 □□□□ □□ □□□ 1 Te | FEB 14-2020 - | sou RESORT □□□□ 3 a BY ? □□ 4 : 8 oe UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 11 || TATTERSALLS LTD, incorporated in Case No.: 17cv1125-BTM(KSC) _ i 3 England, . . Plaintiff ORDER OF CLARIFICATION 13 FOLLOWING DISCOVERY 14 CONFERENCE HELD ON 15 || GERALD WIENER, aka GERALD H. JANUARY 31, 2020 ~ || WIENER, et al., 16 Defendants. □ 17 — . . 18 19 On January 31, 2020, the Court held an on-the-record Discovery Conference 30 regarding pending merits discovery obligations and the timing and scope of discovery 41 regarding the statute of limitations. As background, the District Court issued an Order on || January 14, 2020: (1) granting in part defendants’ Motion to Bifurcate; (2) staying merits 73 discovery from February 1, 2020 to May 1, 2020 with the exception of merits discovery 5 4 obligations incurred prior to February 1, 2020; and (3) directing the parties to engage in 95 expedited discovery limited to the statute of limitations issue. [Doc. No. 128, at p. 2.] 26 The following is a summary of matters resolved as a result of the Discovery Conference _ 27 on January 31, 2020. / .

1 i Pending Discovery Obligations Ordered/nitiated Prior to January 14, 2020, 2 A. Depositions, — . 3 i. Rule 30(b)(6) Depositions by Defendants. 4 Defendants noticed the deposition of David Anderson, a sales accountant 5 ||employed by plaintiff who was involved in the sale of the racehorse to DeHaven. This 6 || Court ordered plaintiff to make Mr. Anderson available for deposition in San Diego. | 7 || {Doc. No. 105, at p. 6.] As directed by the District Court, Mr. Anderson’s deposition 8 |! took place in the courthouse on January 27, 2020. Mr. Anderson’s deposition was taken 9 || in his individual capacity. 10 Defendants also served plaintiff with a deposition notice seeking testimony from a 11 30(b)(6) witness. Plaintiff did not designate Mr. Anderson as a Rule 30(b)(6) 12 || witness but indicated to defendants in its “objections” that Mr. Anderson may testify 13 || about some of defendants’ Rule 30(b\6) topics. However, defendants reported - 14 || Mr. Anderson was not prepared to offer testimony on most of defendants’ Rule 30(b)(6) 15 ||topics during his deposition on J anuary 27, 2010. Defendants did acknowledge during. 16 || the January 31, 2020 Discovery Conference that Mr. Anderson may have offered 17 significant testimony on at least one Rule 30(b)(6) topic. Therefore, defense counsel ‘18 |/agreed to provide plaintiffs counsel with a rough copy of the transcript of 19 || Mr. Anderson’s deposition. Within three (3) court days of receiving a rough copy of the 20 transcript of Mr. Anderson’s deposition, plaintiff's counsel was to notify defendants’ 21 counsel about whether plaintiff is willing to stipulate that a certain portion or portions of 22 Anderson’s testimony on a particular topic or topics can be considered binding, 23 || Rule 30(b)(6) testimony on behalf of plaintiff. 24 As to any remaining topics in defendants’ Rule 30(b)(6) notice, plaintiff must 25 || designate an appropriate witness or witnesses no later than February 21, 2020. Plaintiff 26 ||must make any such witness or witnesses available for deposition in San Diego as soon 27 possible and must meet and confer with defendants’ counsel about the date(s) for any 28 || Rule 30(b)(6) deposition to proceed.

Ll. 2. Depositions of Defendants Wiener and Finance California. 2 Pursuant to the District Court’s Order of January 30, 2020 (Doc. No. 140), plaintiff 3 make its Rule 30(b)(6) witness or witnesses available to be deposed in San Diego 4 defendants’ remaining Rule 30(b)(6) topics before defendants are obligated to make 5 defendant Wiener available, either individually or as a Rule 30(b)(6) witness on behalf of 6 defendant Finance California, for the purpose of completing merits and/or statute of 7 || limitations discovery. The depositions of defendants Wiener and Finance California are □ 8 discussed more fully below. 9 . B. ‘Plaintiff’s Responses to Defendants’ Written Discovery Reg uests. 10 On December 20, 2019, during a Discovery Conference, this Court concluded 11 || plaintiff did not provide satisfactory responses to any of defendants’ written discovery 12 ||requests. [Doc. No. 114, at p. 1.] Therefore, plaintiff was ordered by this Court to 13 || provide defendants with supplemental responses to all defendants’ interrogatories and to 14 || produce all documents résponsive to each of defendants’ document requests. [Doc. No. 15 |[114,atp.2] 16 During the Discovery Conference on January 31, 2020, defense counsel informed 17 ||the Court that he believes plaintiffs supplemental responses to defendants’ written 18 || discovery. requests are inadequate. Plaintiff's counsel conversely believes the responses 19 adequate. Defense counsel agreed to provide plaintiff's counsel with a letter detailing 20 deficiencies in the responses on or about February 3, 2020. Defendants need not 21 {complete another meet and confer by telephone as to these responses, because they. 22 || previously satisfied this requirement and the parties then had an exhaustive Discovery 23 Conference with the Court about plaintiff's responses on December 20,2019. 24 Plaintiff's counsel was advised that she has one last chance, namely until 25 February 7, 2020 or seven (7) days after receipt of defense counsel’s letter, to □ 26 supplement/update the responses to address any inadequacies identified by defendants’ 27 counsel and provide another set of supplemental responses. If the responses are still 28 inadequate, defendants may then elect to file and serve a motion for sanctions no greater 1 {| than ten (10) pages in length for consideration by Judge Crawford. Such motion must be 2 || filed on or before March 6, 2020. If defendants file and serve a motion for sanctions as 3 plaintiffs written discovery responses, plaintiff may file and serve an opposition no 4 than 14 days after defendants’ motion is filed, and the opposition may not be □□□□ 5 || greater than ten (10) pages in length. Within three (3) days thereafter, defendants may 6 || file and serve a reply of five (5) pages or less. □ 7 || Statute of Limitations Discovery to be Completed by May I, 2020. 8 A, Written Discovery. 9 In their Motion to Bifurcate, defendants indicated they wished to serve seven (7) 10 |j interrogatories and seven (7) documents requests. [Doc. No. 87, at p. 11.] Currently, it 11 unclear what written discovery plaintiff intends to serve on statute of limitations issues. 12 || However, unless leave is requested and granted, plaintiff is limited to seven (7) each of 13 || the following, which rust be served on defendants Weiner and Finance California 14 || collectively no later than February 21, 2020: seven (7) interrogatories; seven □□□ 15 || documents requests; and seven (7) requests for admissions. Any such requests may not 16 || be repetitive of written discovery that defendants have already answered. 17 Because the parties have been ordered by the District Court to complete statute of 18 || limitations discovery on an expedited basis on or before May 1, 2020 [Doc. No. 128], the 19 || time for the parties to respond to written discovery requests is reduced to twenty (20) 20 || days. 21 BR. Deposition Guidelines and Procedures for Future Depositions. — 22 Defense counsel seeks guidance from the Court going forward to avoid problems 23 delays that occurred before and during Mr. Anderson’s deposition. Because of these 24 || problems and delays, defense counsel is considering a motion for a protective order and 25 ||sanctions, Plaintiffs counsel was forewarned that speaking objections are not permitted; 26 || counsel and the deponent may not leave the deposition while a question is pending; 27 || coaching of witnesses is not permitted; and witnesses may not be instructed not to answer 28 question unless it is necessary to preserve a privilege. Plaintiff's counsel was also - 1 |; forewarned that: (1) fact discovery is broad; (2) the deposing attorney may ask a witness 2 ||to read a document, even if the witness has not previously seen the document; and 3 || (3) thereafter ask the witness questions about the document. With these warnings;a _ 4 ||defense motion for a protective order should not be necessary unless problems that 5 ||occurred during Mr. Anderson’s deposition continue into the next deposition, or □□□□□ 6 ||difficulties arise. 7 Counsel must meet and confer to schedule depositions on mutually convenient 8 |{dates. The parties are to provide ten (10) days’ notice for all depositions. Depositions 9 ||may be scheduled to take place in the courthouse by contacting Judge Crawford’s 10 || chambers at least five (5) days in advance. As discussed more fully below, the parties 11 seek leave of court before noticing any depositions on statute of limitations issues 12 || that have not been addressed herein. 13 C. Pending Depositions re: Statute of Limitations Issues. 14 1. Depositions of Defendants Weiner and Finance Calif ornia, 15 4]. ‘Plaintiff previously noticed the depositions of defendants Weiner and Finance 16 || California on merits issues for some time in J anuary, but they did not proceed. Plaintiff 17. re-noticed these depositions for February 10 and 11, 2020, purportedly on statute of 18 || limitations issues. However, plaintiff's counsel was advised during the Discovery 19 || Conference that the depositions re-noticed for February 10, and 11,2020 may not 20 proceed as scheduled. As noted above, plaintiff must make a Rule 30(b)(6) witness or 21 || witnesses available to be deposed in San Diego on defendants’ remaining Rule 30(b)(6) 22 topics before defendants are obligated to make defendant Wiener available individually 23 |land asa Rule 30(b)(6) witness on behalf of defendant Finance California to be questioned 24 || on merits and/or statute of limitations issues. - 25 When Mr. Wiener is deposed (i. é., after plaintiff's Rule 30(b)(6) witness(es) have □ 26 been deposed by defendants), the time limitations in Federal Rule 30(d)(1) shall apply 27 7 hours as to Wiener individually and 7 hours as to Wiener as a Rule 30(b)(6) 28 || witness for defendant Finance California). Merits depositions of defendants Wiener and .

1 || Finance California were previously noticed to proceed in J anuary prior to the District 2 }|Court’s Order narrowing discovery to statute of limitations issues. Therefore, plaintiff 3 may choose to depose defendant Wiener individually and as a Rule 30(b)(6) for Finance 4 || California on both the merits and on statute of limitations issues at the same time, so that 5 will not be necessary to depose defendant Wiener a second time after the completion of 6 || statute. of limitations discovery. Whenever Mr. Wiener is deposed on the merits and/or 7 statute of limitations issues, documents and questions must be organized and 8 streamlined for efficiency so that it is not necessary for defendant Wiener to respond to 9 || the same questions more than once. 10 Counsel must meet and confer to set appropriate dates, times, and locations for 11 ||Mr. Wiener’s deposition, and the dates, times, and locations must take Mr, Wiener’s 12 || health into consideration. For example, if necessary for health reasons, Mr. Wiener’s 13 deposition may be taken at a location near his home for a few hours at a time over several 14 || consecutive days. 15 2 Defendants’ Statute of Limitations Depositions. 16 In their Motion to Bifurcate, defendants estimated they would need to take one. 17 || four-hour Rule 30(b)(6) deposition and up to two (2) other depositions of about 6 hours 18 on statute of limitations issues, [Doc. No. 87, at p. 11.] However, defendants have 19 ||reserved the right to seek additional time for depositions if necessary. [Doc. No. 87, at 20 11.] In a separate Order, the Court granted in part and denied in part without prejudice □ 21 defendants’ Motion to Compel Attorney Depositions. [Doc. No. 145.] As outlined in 22 separate Order, it appears that plaintiff's former counsel, Neil Katsuyama, is 23 || defendants’ key witness on statute of limitations issues, and defendants’ request to 24 || depose him was granted. [Doc. No. 145, at p. 12.] However, defendants’ request to 25 || depose plaintiff current counsel, Ms. Courteau, was denied without prejudice. 26 || Defendants may renew their motion as to Ms, Courteau after Mr. Katsuyama’s deposition 27 they can present additional evidence to establish the importance for taking 28 ||Ms. Courteau’s deposition on statute of limitations issues. [Doc. No. 145, at p. 12.] To po □ 1 j|/renew their motion, defendants must contact Judge Crawford’s chambers for a briefing 2 ||schedule. _ . 3 3. Plaintiff's Statute of Limitations Depositions. 4 During the Discovery Conference on January 31, 2020, plaintiff's counsel 5 || indicated she would like to conduct about twelve (12) depositions on statute of □ 6 || limitations issues to show defendants prevented plaintiff from learning about different |lacts of fraud over an extended period. Plaintiff's counsel was advised that she needs to 8 |} narrow her list of potential deponents and the time and scope of statute of limitations 9 || discovery to matters put at issue by defendants’ proposed motion for sumamary: judgment 10 |/or adjudication. Regardless, during the Discovery Conference, plaintiff’s counsel 11 persisted in her desire to broaden statute of limitations discovery to include alleged acts 12 || of fraud. or concealment by defendants through late 2016 and beyond (i.e., when plaintiff ‘13 |faileges it had enough information to file the claims at issue in the First Amended . 14 || Complaint). Defendants contend that this proposed scope of discovery will defeat the 15 || purpose of the District Court’s order partially granting their Motion to Bifurcate. 16 Specifically, defendants claim they have discovered evidence that “plaintiff had 17 || sufficient facts to allow it [to] plead claims against defendants by mid-2011, and actually 18 || drafted such claims. ve ” [Doc. No. 87, atp.4. See also Doc. No. 99, at pp. 3-8.] From 19 || the results of their investigation, defendants believe they can show plaintiff did not need 20 || the facts it allegedly obtained later in 2016 or 2017 to pursue its current claims against 21 ||defendants. [Doc. No. 87, at pp. 5-6.] See, e.g., Snyder v. Boy Scouts of Am., Inc., 205 22 App. 3d 1318, 1323 (Ct. App. 1988) (“Where fraud is established the statute is tolled 23 || only for so long as the plaintiff remains justifiably ignorant of the facts upon which the 24 || cause of action depends; discovery or inquiry notice of the facts terminates the tolling.”).! 05 ©. 27 ||! In the First Amended Complaint, under the heading “Reasonable Diligence,” 28 plaintiff alleges the dockets in the US. District Courts for the Central District of . || California and the Southern District of California show “massive efforts by plaintiff to | As indicated in their Motion to Compel Attorney Depositions, the Court’s 2 || understanding is that defendants intend to file a potentially dispositive motion for 3 ||summary judgment or adjudication on the following issues: (1) whether investigations 4 || conducted by plaintiff's counsel in 2011 uncovered enough facts to put plaintiff on notice 5 of its claims against defendants by and through its counsel; and (2) whether the 6 || circumstances in 2011 were such that a competent attorney should have known or should 7 discovered its claims against defendants in 2011, even if such facts were not □ 8 || discovered at that time. [Doc. No. 127, at p. 2.] Thus, the period currently at issue for’ 9 || statute of limitations discovery is 2011, and, without more, facts discovered at some 10 || later time are not now relevant. In other words, there is nothing to indicate discovery 11 |/related to continuing acts of alleged fraud or concealment through and including 2016 or 12 ||2017 are within the limited scope of statute of limitations issues defendants intendto 13 ||raise in the motion for summary judgment or adjudication. For this reason, statute of 14 || limitations discovery at this time should be focused on what was known or should have 15 known by plaintiffin2011. © 16 Following the Discovery Conference, plaintiff's counsel indicated by telephone 17 || that she believes she can justify taking at least three depositions on statute of limitations 18 j/issues. Accordingly, at this time, plaintiff's counsel should identify three witnesses 19 || believed to have material information necessary for plaintiff to meet its burden of proof 20 || in response to defendants’ proposed motion for summary adjudication.” No later than 21 22 23 || discover defendants’ wrongful acts from the outset in 2011” and “multiple actions by defendants to obstruct plaintiff from discovering enterprise, conspiracy and relationship of multiple [acts] by defendants and [a] pattern of racketeering.” [Doc. No. 11, at pp. 16- 25 ||17.] Under the heading “Injury Discovery Rule,” the First Amended Complaint alleges 26 plaintiff “did not have actual, or constructive knowledge of the racketeering pattern, or multiple predicate acts, until, at the earliest, late 2016....” [Doc. No. 11, at p. 16.] 27 II" Rule 56(a) provides that a court “shall grant summary judgment if the movant 28 shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary □ 1 || February 28, 2020, plaintiff's counsel shall file a motion for leave to take three 2 depositions. The motion must be five (5) pages or less in length and must: (1) identify 3 three witnesses plaintiff's counsel wishes to depose on statute of limitations issues as 4 described in this Order; (2) explain how each of the three witnesses is related to the case; _5 (4) explain why she believes each witness can offer testimony to rebut the issues defendants intend to raise in their summary adjudication motion on the statute of || limitations. 8 Once again, defendants intend to file a potentially dispositive motion for. — 9 ||summary judgment or adjudication on the following issues: (1) whether 10 |!investigations conducted by plaintiff’s counsel in 2011 uncovered enough facts □□ 11 || put plaintiff on notice of its claims against defendants by and through its counsel; 12 (2) whether the circumstances in 2011 were such that a competent attorney 13 ||should have known or should have discovered its claims against defendants in 2011, 14 || even if such facts were not discovered at that time. [Doc. No. 127, at p. 2.] Thus, the 15 : □□ 17 || —————___- □ 18 judgment always bears the initial responsibility of informing the district court of the basis 19 |} for its motion, and identifying those portions of “the pleadings, depositions, answers to □ 20 interrogatories, and admissions on file, together with the affidavits, if any,” which it □ believes demonstrate the absence of a genuine issue of material fact. Celotex Corp.v. 21 || Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). If the moving party - 59 meets its initial responsibility, the burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial. /d. at 324. To avoid 23 ||summary judgment, the non-moving party is “required to present significant, probative evidence tending to support [its] allegations.” Bias v. Moynihan, 508 F.3d 1212, 1218 □ Cir. 2007) (citations omitted). “To rebut the motion for summary judgment 25 || successfully, the plaintiffs must point to some facts in the record that demonstrate a 26 genuine issue of material fact and, with all reasonable inferences made in the plaintiff □□□□ favor, could convince a reasonable jury to find for the plaintiff[].” Reese v. Jefferson 27 Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000). As the party opposing summary judgment, the plaintiff cannot rest solely on conclusory allegations of fact or law. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir, 1986). .

1 || time currently at issue is 2011, and, without more, facts discovered at some later 2 || time and any discovery related thereto are not now relevant. 3 No later than March 6, 2020 or seven (7) days after plaintiff's motion for leave 4 || to take depositions is filed, defendants may file an opposition to plaintiff's motion that is 5 five (5) pages or less in length. Because the matters to be raised in this motion were. 6 || discussed at length during the Discovery Conference on January 31, 2020, it is not 7 |inecessary for the parties to meet and confer before this motion is filed. Following the 8 resolution of this motion, plaintiffs counsel will be given an opportunity to identify other 9 || proposed deponents on statute of limitations issues, 1f necessary. 10 D. Any Further Depositions on Statute of Limitations Issues, 11 _ To the extent the parties intend to take any further depositions on statute of 12 || limitations issue that have not been discussed in this Order, they must first seek leave of 13 |) court by calling Judge Crawford’s chambers to request a briefing schedule. 14 E. Next Discovery Conference on Statute of Limitations Issues, 15 A further on-the-record, in person Discovery Conference has been scheduled for 16 February 28, 2020 at 10:00 a.m. The purpose of the conference will be to discuss the - ||status of statute of limitations discovery. __ __ □ □ □ 18 IT IS SO ORDERED. : Vid 2 19 ||Dated: February // _, 2020 ft it if, 20 Mijf22- 1 Hon. Kargit'S. Crawford . United States Magistrate Judge | 22 . . 23 24 25 26 | □ 28 ||