*1 Before the Court is the parties' Joint Motion for Determination of Discovery Dispute No. 7 whereby Defendant BofI Holding Inc. (“BofI”) moves to compel Plaintiff Matthew Erhart (“Erhart”) to produce his text messages with several individuals. ECF No. 107. Having reviewed the briefing submitted and for the reasons set forth below, the Court DENIES BofI's motion to compel.

I. RELEVANT FACTUAL BACKGROUND

Erhart and BofI are involved in two separate consolidated actions. Erhart brings this action, alleging whistleblower retaliation against BofI for violations of the Sarbanes-Oxley Act of 2002, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and California state law. ECF No. 32. Erhart alleges that during the course of his employment with BofI as an internal auditor, he found and reported several violations to his superiors and eventually to the appropriate government agencies as a whistleblower. Id. at ¶¶ 9-46, 54-60. He alleges that in return, his superiors attempted to silence him by threatening him, giving him negative performance reviews, and eventually terminating him. Even after termination, Erhart alleges that BofI has continued to defame him, preventing him from obtaining subsequent employment. Erhart alleges that as a result, he has suffered loss in earnings and benefits and physical and emotional distress.

In the consolidated case, BofI brings a countersuit against Erhart, alleging that he stole and disseminated BofI's confidential information and documents. See generally BofI Federal Bank v. Erhart, Case No. 15cv02353-BAS (NLS), ECF No. 12. BofI alleges that Erhart engaged in investigations that exceeded the scope of the matters on which he was assigned during his employment and took BofI's confidential information by taking documents home or emailing them to his personal accounts. BofI alleges that Erhart publicly disclosed confidential information and caused BofI's stock price to plummet.

II. DISCUSSION

The present discovery dispute relates to production of text messages between Erhart and the following individuals: (1) Jacob Gantos; (2) Jeffrey Smith; (3) Elda Ponce; (4) Sabrina Koll; (5) Reymundo Castrejon; (6) Carlos Cesena; and (7) Sofia Cornell. BofI claims that the text messages it seeks are responsive to the following Requests for Production:

ECF No. 107-3 at 4-5. These requests were served on March 30, 2018 and Erhart served his responses on June 25, 2018. Id.; ECF No. 107-1 at 12. BofI acknowledges that Erhart produced some text messages between himself and these individuals but argues that the text messages produced were incomplete and cherry-picked by Erhart.

*2 Erhart argues, and BofI does not appear to dispute, that this request is untimely under the Court's Chambers Rules. Under those rules, the parties were required to file their joint motion for determination of discovery dispute within forty-five days of the service of Erhart's initial responses to BofI's document requests. Hon. Nita L. Stormes, Civil Case Procedures § VI(C)(2)(b). Erhart served his initial responses on June 25, 2018, making the deadline to file a timely discovery dispute August 9, 2018.

The Court's Scheduling Order entered in this case expressly warned the parties about the timing requirements for discovery disputes:

ECF No. 62 at ¶ 5 (emphasis in original). Moreover, BofI cannot claim ignorance of this rule. BofI itself argued against an extension requested by Erhart for bringing a discovery dispute, citing to these timing requirements, and the Court sided with BofI. See ECF Nos. 73, 74. Thus, by not bringing a timely motion to compel these documents or seeking an extension of time in which to do so, BofI waived its right to bring the motion to compel. See Guzman v. Bridgepoint Educ. Inc., No. CIV 11-0069-WQH WVG, 2014 WL 1057417, at *3 (S.D. Cal. Mar. 18, 2014) (denying motion to compel as untimely).

Since BofI seeks to extend a deadline that has already passed, it must show that missing the deadline was the result of excusable neglect and that good cause exists to continue it. See Fed. R. Civ. P. 6(b)(1); Hon. Nita L. Stormes, Civil Case Procedures §§ III(C) and VI(C)(2)(d)); LaNier, 2017 WL 951040, at *4 (requiring a showing of good cause and excusable neglect if request for extension is made after deadline passes); Herrera v. Hitman Fight Gear, LLC, No. CV 12-7927 AG (VBKX), 2013 WL 12138586, at *3 (C.D. Cal. Nov. 18, 2013) (same). In the context of schedules and deadlines set by courts, good cause requires a showing that the party seeking the continuance acted diligently. See Johnson v. Mammoth Recreations, 975 F.2d 604, 609 (9th Cir. 1992).

BofI argues that it could not have brought this issue up in a timely manner because it only recently was alerted to the missing text messages when conducting depositions. ECF No. 107-1 at 7-8. The Court is unpersuaded by this argument, however, in light of BofI's admission that the text messages on their face were at least missing date and time stamps. Id. at 9. BofI should have been able to tell—well before the recent depositions—that the date and time stamps were missing and this certainly should have raised a flag as to the possibility of incomplete message chains being produced. At that time, BofI should have diligently followed up with Erhart and started the meet and confer process.

Other than this argument, BofI does not attempt to otherwise show that it had good cause for failing to bring this motion sooner. In addition, BofI itself recognizes that it has an avenue to cure any potential prejudice from this issue by filing motions in limine at the appropriate time to exclude the incomplete text chains. ECF No. 107-1 at 12. Accordingly, the Court concludes that this motion is untimely and declines to address it on the merits.

*3 In the motion, Erhart also brings up a request for a protective order to prevent BofI from seeking this same information from the third parties directly if they are unable to obtain them from Erhart through this motion. ECF No. 107-1 at 16-17. To the extent that this request is as to discovery subpoenas, fact discovery closed on December 12, 2018, so the time to serve such subpoenas is now closed. It is not even clear whether there are such subpoenas at issue, and the Court declines to make any advisory rulings. Thus, this request is DENIED.

III. CONCLUSION

For the reasons as set forth above, the Court DENIES BofI's motion to compel further production of text messages from Erhart and DENIES Erhart's request for a protective order.

IT IS SO ORDERED.