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Colibri Heart Valve LLC v. Medtronic CoreValve LLC

2021 WL 4893358 (C.D. Cal. 2021)

June 11, 2021

Early, John D., United States Magistrate Judge

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Summary

The Motion to Compel Disclosure of Privilege Log Concerning Expert Testing by Defendant was denied without prejudice due to the Motion not complying with the Local Rules' requirements. The Court noted that the Motion did not contain a joint stipulation or a declaration from counsel for Plaintiff establishing that counsel for Defendant failed to confer in a timely manner. The Motion was denied without prejudice to refiling in compliance with the Local Rules.

Additional Decisions

Colibri Heart Valve LLC
v.
Medtronic CoreValve LLC, et al

Case No. 8:20-cv-00847-DOC (JDEx)

United States District Court, C.D. California

Filed June 11, 2021

Counsel

Adam K. Mortara, Pro Hac Vice, Mortara Law, Matthew R. Ford, Pro Hac Vice, Bartlit Beck LLP, Chicago, IL, John M. Hughes, Pro Hac Vice, John S. Phillips, Pro Hac Vice, Joseph C. Smith, Jr., Pro Hac Vice, Katherine E. Rhoades, Pro Hac Vice, Meg E. Fasulo, Pro Hac Vice, Bartlit Beck LLP, Denver, CO, Mieke K. Malmberg, Skiermont Derby LLP, Los Angeles, CA, Theodore D. Kwong, Pro Hac Vice, Hilgers Graben PLLC, Dallas, TX, for Colibri Heart Valve LLC.
Catherine Huang, Kathryn Bridget Riley, DLA Piper LLP, Stanley J. Panikowski, III San Diego, CA, Mark D. Fowler, DLA Piper LLP, East Palo Alto, CA, James M. Heintz, Pro Hac Vice, DLA Piper LLP, Reston, VA, Martin M. Ellison, DLA Piper LLP, Los Angeles, CA, Matthew Ganas, Pro Hac Vice, DLA Piper LLP, New York, NY, Safraz Ishmael, Pro Hac Vice, DLA Piper LLP US, Boston, MA, for Medtronic CoreValve LLC, et al.

Early, John D., United States Magistrate Judge

Proceedings: (In Chambers): Order re: Plaintiff's Motion for Disclosure of Privilege Log (Dkt. 130)

INTRODUCTION

*1 On May 4, 2020, Plaintiff Colibri Heart Valve LLC (“Plaintiff” or “Colibri”) filed this patent infringement action against Medtronic CoreValve LLC and Medtronic PLC. See Dkt. 1. After Medtronic PLC was dismissed as a defendant (see Dkt. 28, 29), Plaintiff filed a First Amended Complaint on June 12, 2020, naming Medtronic CoreValve LLC (“Defendant” or “Medtronic”) as the only defendant. See Dkt. 30.

On June 10, 2021, Plaintiff filed a Motion to Compel Disclosure of Privilege Log Concerning Expert Testing by Defendant (Dkt. 130, “Motion”), with a supporting Memorandum of Points and Authorities and evidence, partially redacted, with a request to file unredacted versions under seal (see Dkt. 130-1 (“Mem.”) to 130-5, 129-1 to 129-4). The Motion seeks an order compelling Defendant to produce a privilege log “related to the submission of certain opinions in” a report prepared by Defendant's rebuttal expert (Motion at 2), the need for which, Plaintiff asserts, arose based on objections asserted by Defendant's counsel at a deposition on May 19, 2021 and a subsequent deposition of the expert. See Mem. at 1-6. The Motion is not supported by a Local Rule 37-2 Joint Stipulation.

The Motion states that it is noticed for “July 8, 2021, in a remote hearing before Technical Special Master Mr. David Keyzer” (Motion at 2), but the Proposed Order filed with the Motion is for signature by the Honorable David O. Carter, United States District Judge (see Dkt. 130-6 at 2).

Discovery disputes in this action have been referred to the assigned Magistrate Judge. See Dkt. 7; Dkt. 12 (“All discovery matters are transferred to Magistrate Judge John D. Early”). Judge Carter issued an order appointing a Technical Special Master on November 24, 2020, with an amended order issued on May 19, 2021. See Dkt. 75, 118. Neither order appears to expressly include discovery disputes within the Technical Special Master's referral, although the Amended Order includes authority for the Technical Special Master to hear “any other pretrial motions as the Court may direct.” Dkt. 118, ¶ 7.

The Motion, which relies on discovery provisions of the Federal Rules of Civil Procedure, specifically, Rules 26, 30, and 37, in seeking to compel disclosure of a privilege log, is a discovery motion. As noted, discovery disputes have been referred to the assigned Magistrate Judge, and the parties herein have previously filed and briefed a discovery motion to be heard by the assigned Magistrate Judge. See Dkt. 102, 103, 108, 109, 111. Although the Motion purports to notice the Motion for hearing before the Technical Special Master, it appears it should have been noticed before the assigned Magistrate Judge pursuant to the general discovery referral.

So interpreted, the Court finds the Motion may properly be decided without further briefing or oral argument and DENIES the Motion (Dkt. 130), without prejudice, for the reasons stated below.

II.

LEGAL STANDARDS

Regarding motions relating to discovery filed in this district, Local Rule 37-1 instructs:

*2 Before filing any motion relating to discovery under F.Rs.Civ.P. 26-37, counsel for the parties must confer in a good-faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible. It is the responsibility of counsel for the moving party to arrange for this conference. If both counsel are located in the same county, the conference must take place in person at the office of the moving party's counsel unless the parties agree to meet someplace else. If both counsel are not located in the same county, the conference may take place telephonically. Unless relieved by written order of the Court upon good cause shown, counsel for the opposing party must confer with counsel for the moving party within ten days after the moving party serves a letter requesting such conference. The moving party's letter must identify each issue and/or discovery request in dispute, state briefly as to each such issue/request the moving party's position (and provide any legal authority the moving party believes is dispositive of the dispute as to that issue/request), and specify the terms of the discovery order to be sought.

Local Rule 37-2 directs that if, after meeting and conferring under the procedures described in Local Rule 37-1, counsel “are unable to settle their differences, they must formulate a written stipulation unless otherwise ordered by the Court,” which must be filed and served with any subsequent motion, in the form required under Local Rule 37-2.1 and under the timing mandated by Local Rule 37-2.2. L.R. 37-2.

Local Rule 37-2.4, titled “Failure to File Joint Stipulation,” provides:

The Court will not consider any discovery motion in the absence of a joint stipulation or a declaration from counsel for the moving party establishing that opposing counsel (a) failed to confer in a timely manner under L.R. 37-1; (b) failed to provide the opposing party's portion of the joint stipulation in a timely manner under L.R. 37-2.2; or (c) refused to sign and return the joint stipulation after the opposing party's portion was added. If such declaration accompanies the motion, then L.Rs. 6-1, 7-9 and 7-10 apply.

Courts may deny discovery motions for failure to comply with the Local Rules' requirements for such motions. See Pina v. Lewis, 717 F. App'x 739, 740 (9th Cir. 2018) (holding district court may properly deny “a motion to compel for failing to comply with local rules”); see also Tri-Valley CARES v. U.S. Dep't of Energy, 671 F.3d 1113, 1131 (9th Cir. 2012) (“Denial of a motion as the result of a failure to comply with local rules is well within a district court's discretion.”); Lumber Liquidators, Inc. v. Sullivan, 2012 WL 4464867, at *4 (C.D. Cal. Aug. 31, 2012) (denying discovery motion for failure to comply with L.R. 37-2); So v. Land Base, LLC, 2009 WL 2407954, at *2 (C.D. Cal. Aug. 4, 2009) (same).

III.

DISCUSSION

Here, the Motion is a discovery-related motion but it contains neither a Local Rule 37-2 joint stipulation nor a declaration from counsel for Plaintiff under Local Rule 37-2.4 establishing that counsel for Defendant: (a) failed to confer in a timely manner under Local Rule 37-1; (b) failed to provide Defendant's portion of the joint stipulation in a timely manner under Local Rule 37-2.2; or (c) refused to sign and return the joint stipulation after the Plaintiff's portion was added. In fact, neither the Motion nor counsel's declaration in support of the Motion makes no reference to Local Rule 37; rather, the Motion instead refers to a conference of counsel under Local Rule 7-3. See Motion at 2.

The Court “will not consider” a motion relating to discovery without a Local Rule 37-2 joint stipulation or a declaration of counsel “establishing” one of the three grounds for proceeding outside of Local Rule 37. As Plaintiff provided neither, the Motion is denied. See Pina, 717 F. App'x at 740; see also Tri-Valley CARES, 671 F.3d at 1131; Lumber Liquidators, 2012 WL 4464867, at *4; So, 2009 WL 2407954, at *2.

IV.

CONCLUSION

Interpreting the Motion as a discovery motion that has not been referred to the Technical Special Master under the operative Special Master Referral Order, Plaintiff's Motion (Dkt. 130) is DENIED without prejudice to refiling in compliance with the Local Rules, subject to the operative Scheduling Order. Nothing in this Order limits the Technical Special Master's ability to consider any matter within the scope of the Technical Special Master's referral as it now exists or in the future.

*3 IT IS SO ORDERED.