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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
JOYCE WALKER, ET AL.,
PLAINTIFFS, VS. CASE NO. CV 10-9198-JVS (RNBX) SANTA ANA, CALIFORNIA SEPTEMBER 14, 2011 LIFE INSURANCE COMPANY OF THE SOUTHWEST, (9:36 A.M. TO 10:07 A.M.) (1:02 P.M. TO 1:20 P.M.) (1:29 P.M. TO 1:36 P.M.) DEFENDANT.
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DISCOVERY CONFERENCE
BEFORE THE HONORABLE ROBERT N. BLOCK UNITED STATES MAGISTRATE JUDGE
APPEARANCES: SEE NEXT PAGE
COURT REPORTER: RECORDED; COURT SMART COURTROOM DEPUTY: K. HAYS
TRANSCRIBER: DOROTHY BABYKIN
COURTHOUSE SERVICES
1218 VALEBROOK PLACE GLENDORA, CALIFORNIA 91740 (626) 963-0566
PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING; TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE.
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APPEARANCES: (CONTINUED) FOR THE PLAINTIFFS: KASOWITZ BENSON TORRES & FRIEDMAN BY: JACOB N. FOSTER ATTORNEY AT LAW 101 CALIFORNIA STREET SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111
FOR THE DEFENDANT: WILMER CUTLER PICKERING HALE & DOOR BY: JONATHAN A. SHAPIRO MICHAEL NORMAN ATTORNEYS AT LAW 950 PAGE MILL ROAD PALO ALTO, CALIFORNIA 94304
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11 MEANT DIFFERENTIATE. AND IF YOU THINK YOU'VE DONE THAT -- YOU DON'T EVEN HAVE TO RESPOND TO MY COMMENTS BECAUSE I'M GOING TO MAKE YOU MEET AND CONFER FURTHER. BUT WHAT I MEANT BY PRIORITIZE IS DIFFERENTIATE BETWEEN DISCOVERY THAT IS MOST IMPORTANT TO YOU FOR CLASS CERTIFICATION AND DISCOVERY THAT MIGHT BE IMPORTANT FOR CLASS CERTIFICATION BUT IS LESS IMPORTANT THAN OTHER DISCOVERY AND CERTAINLY GOES TO THE ISSUE OF THE MERITS THAT YOU'RE NOT GOING TO GET BEFORE THE CLASS CERTIFICATION MOTION. SIMPLE.
FOR EXAMPLE, ON THE ELECTRONIC DISCOVERY YOU'RE NOT GETTING IT ALL BY THE CLASS CERTIFICATION MOTION.
NOW, WHAT WAS YOUR DATE? MAY 2ND, MAY 12TH OR SOMETHING --
MR. SHAPIRO: YOUR HONOR, WE WERE -- WE THINK WE COULD DO IT TWO MONTHS AHEAD OF THE DEADLINE.
THE COURT: YES. ALL RIGHT.
MR. SHAPIRO: AND WE'RE HAPPY TO TAKE IT IN ANY ORDER THEY WANT.
THE COURT: WELL --
MR. FOSTER: IF I MAY, YOUR HONOR.
THE COURT: -- I MEAN, LET'S ASSUME FOR THE SAKE OF DISCUSSION THAT -- BECAUSE I'M NOT SURE THAT TWO MONTHS -- I AGREE WITH PLAINTIFF. TWO MONTHS IS NOT NECESSARILY A SUFFICIENT AMOUNT OF TIME TO REVIEW, SCHEDULE DEPOSITIONS OF
PEOPLE WHO ARE WHO KNOWS WHERE, CONDUCT THE DEPOSITIONS, MAKE
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12
MOTIONS TO COMPEL.
LET'S ASSUME FOR THE SAKE OF DISCUSSION I'M GOING TO SAY I DON'T AGREE WITH MAY 12TH.
WAS IT MAY 4TH OR MAY 12TH?
MR. SHAPIRO: I THINK IT WAS MAY -- MAY 4TH. WE --
THE COURT: SEE, I DON'T AGREE WITH MAY 4TH. I'LL BACK IT UP, BUT I'M NOT GOING TO BACK IT UP BEFORE THE CLASS CERTIFICATION MOTION NEEDS TO BE FILED OR EVEN BEFORE THE CLASS CERTIFICATION MOTION HAS TO BE DECIDED. BECAUSE TO ME IF HE DENIES CLASS CERTIFICATION, THAT'S GOING TO REDUCE THE BURDEN OF PRODUCTION --
MR. SHAPIRO: EFFECTIVELY -- EFFECTIVELY THE CASE ECONOMICALLY IS VERY DIFFERENT.
THE COURT: YES.
SO, I MIGHT PICK A DATE MARCH 31ST, AND THAT'S ABOUT THE MOST I'D BE WILLING TO ACCOMMODATE PLAINTIFF. NOT MAY 4TH. MARCH 31ST, SOMETHING LIKE THAT. YOU CAN MEET AND CONFER. I'VE GIVEN YOU SORT OF MY THOUGHTS.
AS. =>
MR. FOSTER: IF I MAY, YOUR HONOR.
THE COURT: YES.
MR. FOSTER: WE DID CONSISTENT WITH YOUR ORDER GIVE A LOT OF THOUGHT TO SEQUENCING THE PRODUCTION BY DOCUMENT REQUESTS. AND, INDEED, THAT WAS THE THRUST OF OUR SEPTEMBER
1ST LETTER TO LSW.
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AND WHAT LSW HAS MAINTAINED IS THAT IT IS NOT PRODUCTIVE TO PRODUCE DOCUMENTS THAT WAY BECAUSE THERE'S FREQUENTLY OVERLAP IN CATEGORIES. AND, INSTEAD, THEY PROPOSED PRODUCING A ROLLING PRODUCTION BASED ON CUSTODIAN.
AND UPON RECEIPT OF THAT, WE THOUGHT THAT THAT SUGGESTION IS VERY HELPFUL BECAUSE WE CAN PRIORITIZE CUSTODIANS. WE CAN --
THE COURT: BUT SOME -- WHEN YOU SAY PRIORITIZE, CAN YOU DISTINGUISH BETWEEN CUSTODIANS WHO YOU WANT PRODUCTION COMPLETED IN ADVANCE FOR USE IN CLASS CERTIFICATION VERSUS OTHERS WHO YOU'D LIKE TO HAVE BUT BASED ON MY COMMENTS YOU KNOW I'M NOT GOING TO REQUIRE THEM TO COMPLETE PRIOR TO CLASS CERTIFICATION.
HAVE YOU DONE THAT?
MR. FOSTER: WELL, YOUR HONOR, WE HAVE GIVEN SOME THOUGHT TO PRODUCING IT AND ORDERING.
BUT THE PROBLEM WITH THAT, OF COURSE, IS THAT WE'VE ONLY RECEIVED VERY MINIMAL DOCUMENTS FROM LSW TO DATE. AND, SO, ALL WE KNOW ARE THESE INDIVIDUALS' TITLES. SO, COULD WE PRODUCE A COMPLETE ORDERING OF THE 23 CUSTODIANS, I DON'T KNOW WE'RE PREPARED TODAY TO DO THAT. BUT WE COULD --
THE COURT: WELL, BUT --
MR. FOSTER: -—-- ORDER THE —--
THE COURT: -- I'M NOT GOING TO ISSUE AN ORDER OR A
SCHEDULE UNTIL YOU'RE PREPARED TO MAKE A PROPOSAL THAT
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14 ENCOMPASSES THE POINTS I'M MAKING, WHICH IS THEY DO NOT HAVE TO COMPLETE THEIR E-PRODUCTION IN ADVANCE OF THE CLASS CERTIFICATION MOTION. PERIOD.
SO, YOU COME UP WITH SOMETHING THAT'S CONSISTENT WITH WHAT I JUST SAID. YOU KNOW, IF THEY DON'T LIKE IT, MAYBE I'LL REJECT THEIR POSITION. BUT YOU HAVE TO PROPOSE SOMETHING THAT'S CONSISTENT WITH WHAT I JUST SAID.
MR. FOSTER: YES, YOUR HONOR. I UNDERSTAND THAT. AND LET ME CLARIFY. WE DO NOT BY ANY STRETCH OF THE IMAGINATION THINK THAT DISCOVERY HAS TO BE DONE BEFORE THE CLASS CERTIFICATION MOTION. WE DO, HOWEVER, THINK THAT THERE'S BEEN UNDUE DELAY IN RESPONDING TO OUR FIRST SET OF REQUESTS FOR PRODUCTION. AND WE FREQUENTLY --
THE COURT: I HAVEN'T TALKED ABOUT -- YOU KNOW, IF WE'RE TALKING ABOUT HARD COPY STUFF, THEY SAID THEY HAD AGREED TO PRODUCE. I HAVEN'T ADDRESSED THAT YET. I'LL COME BACK TO THAT. I PROBABLY AM CLOSER TO YOUR POSITION ON THAT THAN THEY ARE.
BUT IF YOU'RE TALKING ABOUT E- -- I MEAN, E-PRODUCTION IS VERY COMPLICATED. AND IT REQUIRES THE PARTIES, WHICH I DON'T THINK YOU DID, TO REALLY MAKE A CONCERTED EFFORT TO COME UP WITH -- I MEAN, IN FACT, THE FEDERAL RULES NOW REQUIRE THAT YOU MEET AND CONFER ABOUT THAT —-- TO COME UP WITH A GAME PLAN FOR THE PRODUCTION OF
E-DISCOVERY THAT BOTH SIDES AGREE WILL WORK AND WILL ADDRESS
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15 THE DEFENDANT'S CONCERNS ABOUT UNDUE EXPENSE AND RESOURCES BUT ADDRESS YOUR NEED FOR THE INFORMATION.
AND -- BECAUSE YOU DIDN'T KNOW WHAT I WAS GOING TO SAY I GUESS PRIOR TO AUGUST WHEN THESE ISSUES WERE RAISED BEFORE ME ACCOUNTED FOR MY POSITION ON WHAT HAS TO BE ACCOMPLISHED OVER WHAT PERIOD OF TIME. IF YOU HAD MET AND CONFERRED AND RESOLVED THAT, YOU WOULDN'T BE HERE TODAY HAVING THIS DISCUSSION WITH ME, WOULD YOU?
MR. FOSTER: IF I MAY, YOUR HONOR. I AGREE THAT THE PARTIES ARE REQUIRED TO MEET AND CONFER ABOUT ELECTRONIC DISCOVERY. AND IF YOU LOOK AT THE EXHIBITS TO THE DECLARATION WE SUBMITTED, WE SOUGHT AT THE EARLIEST POSSIBLE DATE TO MEET AND CONFER WITH LSW ABOUT THESE ISSUES, INCLUDING SEARCH TERMS AND CUSTODIANS.
THEY INITIALLY TOOK THE POSITION THAT THEY HAD NO OBLIGATION UNDER THE FEDERAL RULES TO MEET AND CONFER ABOUT THESE ISSUES. THEY SUBSEQUENTLY TOOK A POSITION THAT THEY WERE NOT GOING TO MEET AND CONFER ABOUT THESE ISSUES --
THE COURT: AND WHEN WAS THAT?
MR. FOSTER: THAT WAS IN MAY, BEGINNING IN MAY.
THE COURT: ALL YOU HAD TO DO WAS BRING A MOTION.
MR. FOSTER: WELL —-- WELL, LET ME -- LET ME GIVE YOU --
THE COURT: AND YOU WOULD HAVE BEEN HERE IN THE
COURTHOUSE, AND YOU WOULDN'T HAVE BEEN EXCUSED.