Electronically FILED by Superior Court of California, County of Los Angeles on 04/08/2020 06:48 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk 1 QUINN EMANUEL URQUHART & SULLIVAN, LLP James R. Asperger (Bar No. 83188) 2 jimasperger@quinnemanuel.com Stephen A. Broome (Bar No. 314605) 3 stephenbroome@quinnemanuel.com Lauren B. Lindsay (Bar No. 280516) 4 laurenlindsay@quinnemanuel.com 865 South Figueroa Street, 10th Floor 5 Los Angeles, California 90017-2543 Telephone: (213) 443-3000 6 Facsimile: (213) 443-3100 7 Attorneys for Defendant TWC PRODUCT AND 8 TECHNOLOGY, LLC and INTERNATIONAL BUSINESS MACHINES CORPORATION 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF LOS ANGELES 11 12 THE PEOPLE OF THE STATE OF 13 CALIFORNIA, 14 15 Plaintiff, vs. 16 TWC PRODUCT AND TECHNOLOGY, LLC, a Delaware corporation; 17 INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York Corporation, 18 Defendants. 19 20 21 22 23 24 CASE NO. 19STCV00605 MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY USING REMOTE SOLUTIONS, OR IN THE ALTERNATIVE, FOR THE COURT’S GUIDANCE ON HOW TO MOVE THE CASE FORWARD [Declarations of Lauren B. Lindsay and Michael Rixon filed concurrently] Assigned for All Purposes to The Hon. Mark V. Mooney Dept.: 68 Hearing Date: June 25, 2020 Hearing Time: 8:30 a.m. Reservation ID: 138445489256 Action Filed: Trial Date: January 3, 2019 January 25, 2021 25 26 27 28 Case No. 19STCV00605 MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE THAT on June 25, at 8:30 A.M., or as soon as this matter may be 3 heard, in Department 68 of the Los Angeles Superior Court, located at 111 N. Hill Street, Los 4 Angeles, California 90012, Defendants TWC Product And Technology, LLC (“TWC”) and 5 International Business Machines Corporation (“IBM”) (collectively, “Defendants”) will, and hereby 6 do, move for an order compelling Plaintiff The People of the State of California, (“Plaintiff”) to 7 begin deposition discovery using the remote deposition technology solution of its choice. In the 8 alternative, Defendants seek guidance from the Court on whether and how to move this case 9 forward. 10 This motion is made under California Code of Civil Procedure sections 2025.310, 128(a)(8), 11 & 187, Government Code section 68070, Executive Order N-38-20 (March 27, 2020), Statewide 12 Emergency Order by Hon. Tani G. Cantil-Sakauye (March 30, 2020), and the Court’s “inherent 13 power to control litigation” before it (Cottle v. Superior Court, 3 Cal. App. 4th 1367, 1377 (1992)), 14 on the grounds that deposition discovery should proceed remotely, as scheduled, due to the COVID15 19 emergency, rather than be subject to an indefinite delay. 16 This motion is based on this Notice of Motion, the attached Memorandum of Points and 17 Authorities, the concurrently filed Declarations of Lauren B. Lindsay and Michael Rixon, and all 18 other pleadings and papers filed in this action, and such other evidence or argument as may be 19 presented at or before the hearing. 20 21 22 23 24 25 26 27 28 Case No. 19STCV00605 MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 DATED: April 8, 2020 2 QUINN EMANUEL URQUHART & SULLIVAN, LLP 3 4 5 6 7 8 9 By /s/ Stephen A. Broome James R. Asperger Stephen A. Broome Lauren B. Lindsay Attorneys for Defendants TWC PRODUCT AND TECHNOLOGY, LLC INTERNATIONAL BUSINESS MACHINES CORPORATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 19STCV00605 MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 TABLE OF CONTENTS 2 Page 3 PRELIMINARY STATEMENT ........................................................................................................6 4 BACKGROUND ................................................................................................................................7 5 ARGUMENT .....................................................................................................................................9 6 I. 7 8 9 II. Remote Depositions Are Appropriate And Necessary To Move The Case Forward Efficiently And To Avoid Undue Delay And Other Prejudice ..............................................9 Plaintiff’s Objections Do Not Justify Putting The Entire Case On Hold .............................13 CONCLUSION ................................................................................................................................15 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 19STCV00605 -3MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 TABLE OF AUTHORITIES 2 3 4 5 Page Cases Apple Inc. v. Corellium, LLC, 19-cv-81160-RS, Dkt. No. 248 (Mar. 18, 2020) ................................................................. 13 6 Carrico v. Samsung Elecs. Co., 2016 WL 1265854 (N.D. Cal. Apr. 1, 2016) ................................................................ 11, 14 7 Cottle v. Superior Court, 8 3 Cal. App. 4th 1367, 1377 (1992) ...................................................................................... 11 9 Gee v. Suntrust Mortg., Inc., 2011 WL 5597124 (N.D. Cal. Nov. 15, 2011) .................................................................... 11 10 Guillen v. Bank of Am. Corp., 11 2011 WL 3939690 (N.D. Cal. Aug. 31, 2011) .................................................................... 15 12 In re RFC and ResCap Liquidating Tr. Action, 2020 WL 1280931 (D. Minn. Mar. 13, 2020) ....................................................................... 9 13 Jarrell v. Wright Nat’l Flood Ins. Co., 14 2020 WL 1472909 (M.D. La. Mar. 26, 2020) ....................................................................... 9 15 Kaseberg v. Conaco, 2016 WL 8729927 (S.D. Cal. Aug. 19, 2016) .................................................................... 14 16 Lopez v. CIT Bank, N.A., 17 2015 WL 10374104 (N.D. Cal. Dec. 18, 2015) .................................................................. 11 18 Sinceno v. Riverside Church in City of N.Y., 2020 WL 1302053 (S.D.N.Y. Mar. 18, 2020) ...................................................................... 9 19 Uni-Systems, LLC v. U.S. Tennis Ass’n, 20 2018 WL 1335354 (E.D.N.Y. Mar. 15, 2018) .................................................................... 11 21 22 Statutes 23 Cal. Bus. & Prof. Code § 17200 ........................................................................................................ 6 24 Cal. Code Civ. Proc. § 128(a)(8) ......................................................................................................11 25 Cal. Code Civ. Proc. § 187 ...............................................................................................................11 26 Cal. Code Civ. Proc. § 2025.310 ..................................................................................................... 11 27 Cal. Government Code § 68070 ...................................................................................................... 11 28 Case No. 19STCV00605 -4MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 Other Authorities 2 Executive Order N-38-20 (Mar. 27, 2020) ...................................................................................... 10 3 Statewide Emergency Order by Hon. Tani G. Cantil-Sakauye (Mar. 30, 2020) .............................10 4 Nueces County Order Regarding Remote Participation In Videoconferenced Depositions And/Or Those Telephonically Recorded (March 18, 2020) ................................................. 9 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 19STCV00605 -5MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 2 PRELIMINARY STATEMENT Defendants IBM and TWC bring this motion to compel Plaintiff, the City Attorney of Los 3 Angeles, to proceed with remote deposition discovery of Defendants’ own witnesses (or in the 4 alternative, for the Court to provide guidance on how to move this case forward). Defendants 5 recognize that this is an unusual motion, and that the parties—like litigants nationwide—are facing 6 extraordinary circumstances. But Plaintiff has taken an unworkable position that will inevitably 7 (though unnecessarily) result in undue delay and other consequences. Plaintiff refuses to proceed 8 with depositions of Defendants’ witnesses—who are located in New York and Atlanta—until, at a 9 minimum, California’s current “stay-at-home” order is lifted. Plaintiff has also made clear that, 10 even when the stay-at-home order is lifted, Plaintiff refuses to commit to moving forward with 11 remote depositions until the technology improves to Plaintiff’s satisfaction. If countries such as 12 China and Italy are any measure, the lifting of the stay-at-home order might not happen for months. 13 And there is no telling when Plaintiff will get “comfortable” with the state of remote deposition 14 technology. Plaintiff’s position would thus require the parties to put deposition discovery—and 15 likely all ensuing deadlines, including those for expert discovery and the trial scheduled for January 16 2021—on hold indefinitely. This risks derailing the entire case schedule and prejudicing 17 Defendants, who have a legitimate interest in resolving this high-profile lawsuit on the merits and 18 vindicating themselves. 19 Postponing this case for months, as Plaintiff suggests, is not a pragmatic solution to the 20 COVID-19 pandemic, and it is entirely unnecessary. Courts around the country have recognized 21 that civil litigation should move forward, and are encouraging parties to use measures such as remote 22 deposition technology to progress with discovery where feasible. Indeed, because it is impossible 23 to predict how long the current crisis will last, it is all the more important for parties to adopt 24 constructive solutions that allow cases to progress even under current conditions. That is what 25 Defendants are proposing here, and Defendants have already committed to working with Plaintiff 26 in good faith to provide additional time for each deposition, among other accommodations to address 27 Plaintiff’s purported concerns. 28 Case No. 19STCV00605 -6MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 Defendants thus respectfully request that the Court order Plaintiff to begin taking depositions 2 remotely until circumstances change and the parties are again able to take in-person depositions.1 3 BACKGROUND 4 Plaintiff filed this action over a year ago—on January 3, 2019—alleging that TWC’s 5 disclosure practices relating to a free weather application called The Weather Channel App 6 constitute “unfair” and “deceptive” practices under California’s Unfair Competition Law, Cal. Bus. 7 & Prof. Code §§ 17200, et seq. (“UCL”). Defendants strongly dispute Plaintiff’s claims and plan 8 to move for summary judgment, as described in more detail below. Defendants are eager to resolve 9 this lawsuit because it has generated a significant amount of (unwarranted) bad publicity for 10 Defendants—due in no small part to Plaintiff’s own public statements.2 The case has also caused 11 Defendants a significant economic burden and consumed inordinate amounts of Defendants’ 12 employees’ time, including at senior levels of management. 13 For the last sixteen months, Defendants have worked expeditiously to bring the case to a 14 close. Defendants have produced every document that Plaintiff has asked for (assuming it exists 15 and is not privileged), and have responded to eighty-seven special interrogatories (many more if 16 sub-parts are counted), as well as numerous form interrogatories and requests for admission. 17 Document discovery is now complete, and the parties are ready to proceed with deposition discovery 18 19 1 Defendants are filing this request for relief as an ordinary Motion, as opposed to ex parte, in 20 light of the March 31, 2020 Los Angeles Superior Court COVID-19 Update Frequently Asked Questions, (Lindsay Decl., Ex. E), advising all parties that discovery-related motions should not be 21 brought ex parte. Defendants have noticed this Motion for a hearing on June 25, 2020, because that 22 is the first available date on the Court’s calendar. Defendants will continue to monitor the Court’s website, and will seek to re-notice this motion for an earlier date if that becomes a possibility. In 23 addition, if the circumstances justifying this Motion change before June 25, 2020—e.g., the COVID19 pandemic is resolved, the stay-at-home order is lifted, and/or Plaintiff otherwise agrees to 24 proceed with remote depositions—Defendants may seek to withdraw the Motion as moot. Defendants are filing this Motion now to secure the June 25, 2020 hearing date as (hopefully) the 25 latest date that this dispute will be resolved, and to avoid the possibility that, by June 2020, Plaintiff 26 is still refusing to proceed with remote depositions and the next available hearing date is not for several months. 27 2 See Press Release, City Attorney Mike Feuer Files Lawsuit Against Weather Channel App 28 Over Privacy Concerns, (Jan. 4, 2019), https://www.lacityattorney.org/post/2019/01/04/cityattorney-mike-feuer-files-lawsuit-alleging-the-weather-channel-app-mines-users-priv. Case No. 19STCV00605 -7MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 (to be followed by expert discovery beginning August 10, 2020). Because Plaintiff is the City 2 Attorney, the vast majority of the witnesses to be deposed are Defendants’ employees, along with a 3 handful of third-party witnesses. 4 On March 5, 2020, Plaintiff noticed Person Most Qualified (“PMQ”) depositions on twenty- 5 two broad topics, for April 7, 2020 (though Plaintiff noted in its cover email that this was a 6 placeholder date). Lindsay Decl. ¶ 10. Defendants, on the assumption that depositions would 7 proceed in early April, then spent a significant amount of time preparing numerous witnesses to 8 testify on Plaintiff’s topics, as well as in their individual capacities. Id. ¶ 11. As the COVID-19 9 pandemic unfolded, the parties recognized that in-person depositions might not be possible. 10 Accordingly, on March 17, 18, and 19, 2020, and at Defendants’ suggestion, the parties jointly 11 participated in demonstrations of three remote deposition technology solutions. Id. ¶ 12. On March 12 19, 2020, Plaintiff informed Defendants that it had chosen not to proceed with remote depositions 13 “for the time being, with the plan of re-evaluating the situation in several weeks (during which time 14 the COVID 19 situation may have changed and/or additional remote depo products may be 15 developed or improved).” Id. ¶ 13 & Ex. A. Later that same day, Governor Newsom issued a state16 wide stay-at-home order.3 Plaintiff subsequently advised Defendants that Plaintiff was “even more 17 pessimistic that depositions are workable in the near future considering this evening’s stay at home 18 order.” Lindsay Decl. ¶ 13 & Ex. A. 19 On March 23, 2020, during a telephonic meet and confer, Defendants stated their position 20 that—given the fact that there is no telling when the COVID-19 situation may change or remote 21 deposition technology will improve—depositions should proceed remotely using available 22 technology. Id. ¶ 14. Defendants also requested that Plaintiff itemize its specific concerns with 23 remote depositions. Id. On March 25, 2020, Plaintiff provided Defendants with Plaintiff’s list of 24 purported concerns, and reiterated that Plaintiff was “presently unwilling to proceed with [] 25 depositions, particularly in the current environment of strict quarantines under which each 26 participant . . . would need to be in separate rooms and connecting to the deposition remotely.” Id. 27 28 3 See Governor Gavin Newsom Issues Stay at Home Order, https://www.gov.ca.gov/2020/03/19/governor-gavin-newsom-issues-stay-at-home-order/. Case No. 19STCV00605 -8MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 ¶ 14 & Ex. B. On March 27, 2020, Defendants responded by addressing each purported concern— 2 e.g., by agreeing to allow for additional time to account for delays caused by technological issues 3 that arise during the depositions—and making clear that none of Plaintiff’s concerns warrants a de 4 facto stay of the case pending resolution of the COVID-19 pandemic. Id. ¶ 15 & Ex. H. 5 Subsequently, Defendants advised Plaintiff of Governor Newsom’s Executive Order that 6 specifically “allows the Judicial Branch to allow for remote depositions in every case.” Id. ¶ 16 & 7 Ex. A. Nevertheless, on March 31, 2020, Plaintiff made clear that it refuses to proceed with 8 deposition discovery for the time being. Id. ¶ 17 & Ex. C. In subsequent correspondence, Plaintiff 9 refused to commit to proceeding with remote depositions by any particular date; Plaintiff agreed 10 only to “re-evaluate [its] options” as the situation unfolds. Id. ¶ 18 & Ex. A. 11 ARGUMENT 12 I. Remote Depositions Are Appropriate And Necessary To Move The Case Forward 13 Efficiently And To Avoid Undue Delay And Other Prejudice 14 Courts around the country have recognized that the COVID-19 pandemic will cause civil 15 litigation to come to a grinding halt if litigants do not make use of remote deposition/examination 16 technology. See, e.g., In re RFC and ResCap Liquidating Tr. Action, 2020 WL 1280931, at *4 (D. 17 Minn. Mar. 13, 2020) (allowing witnesses to testify via videoconference at trial in light of COVID18 19; “the use of ‘[c]ontemporaneous transmission’ for remote testimony is absolutely preferable over 19 ‘an attempt to reschedule the trial’”); Jarrell v. Wright Nat’l Flood Ins. Co., 2020 WL 1472909, at 20 *1 (M.D. La. Mar. 26, 2020) (allowing parties to conduct depositions remotely in response to 21 government-mandated quarantines due to COVID-19; “the Court hereby explicitly authorizes the 22 taking of depositions by remote means” ); Sinceno v. Riverside Church in City of N.Y., 2020 WL 23 1302053, at *1 (S.D.N.Y. Mar. 18, 2020) (allowing parties to conduct depositions remotely in 24 response to COVID-19; “all depositions in this action may be taken via telephone, videoconference, 25 or other remote means, and may be recorded by any reliable audio or audiovisual means”); Nueces 26 County Order Regarding Remote Participation In Videoconferenced Depositions And/Or Those 27 Telephonically Recorded (March 18, 2020) (disallowing parties to opt out of depositions simply 28 because they would prefer to appear in person, referencing Sup. Ct. of Texas and the Ct. of Crim. Case No. 19STCV00605 -9MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 App. Misc. Docket No. 20-007; “…it shall not be grounds for a motion to quash that a witness, the 2 court reporter, the plaintiff's lawyer, the defense lawyer or any other person wishes to attend in 3 person, and such a motion shall not stay the deposition”). Lindsay Decl., Ex. F at 2. 4 Governor Newsom’s recent Executive Order N-38-20 similarly encourages California courts 5 to adopt such measures where feasible: it emphasizes that California courts have the authority to 6 “allow for remote depositions in every case.” (Cal. Exec. Order No. 38-20) (emphasis added). In 7 response, on March 30, 2020, the Judicial Council of California issued a statewide emergency order, 8 adopted by this Court on April 2, 2020, suspending any rules that would not allow judicial 9 proceedings and operations to be conducted remotely, as the Court will be closed for in-person 10 hearings until June 22, at the earliest. (Judicial Council Of Cal. Statewide Emergency Order By 11 Hon. Tani G. Cantil-Sakauye, C.J. Of Cal. And Chair Of The Judicial Council, (March 30, 2020, 12 adopted by Presiding Judge Brazile on April 2, 2020 in General Order 007 (2020-GEN-007-00))4 13 (allowing court proceedings and operations to be conducted remotely, “to support courts in making 14 use of available technology, when possible, to conduct judicial proceedings and court operations 15 remotely, suspend any rule in the California Rules of Court to the extent such rule would prevent a 16 court from using technology to conduct judicial proceedings and court operations remotely, in order 17 to protect the health and safety of the public, court personnel, judicial officers, litigants, and 18 witnesses.”). Lindsay Decl., Ex. D at 3 ¶ C.5 19 Deposition reporting vendors—like TSG Reporting, Inc.—have experienced a significant 20 uptick in demand for remote depositions as litigants around the country recognize the practical 21 reality that remote depositions are the only way to prevent the wheels of justice falling off 22 completely. As explained in the attached Declaration of Michael Rixon, Chief Executive Officer of 23 TSG: “Parties are increasingly seeking remote deposition solutions in the wake of COVID-19. TSG 24 25 26 4 http://www.lacourt.org/newsmedia/uploads/14202042192242NR_GO_4_2_2020.pdf 5 See also Resources for Plaintiffs’ Lawyers Facing Deposition Obstruction During COVID27 19, https://www.publicjustice.net/what-we-do/access-to-justice/resources-for-plaintiffs-lawyers28 during-covid-19/ (identifying numerous court and other government orders requiring or encouraging parties to move forward with discovery using remote technology). Case No. 19STCV00605 -10- MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 has been retained to facilitate over 100 remote depositions and hearings since March 11, 2020 (when 2 COVID-19 was officially declared a pandemic).” Rixon Decl. ¶ 4. 3 Even before COVID-19, courts “universally recognized that depositions conducted remotely 4 are a valid, reliable, efficient, and cost-effective method of obtaining required discovery without 5 needless expense.” Uni-Systems, LLC v. U.S. Tennis Ass’n, 2018 WL 1335354, at *4 (E.D.N.Y. 6 Mar. 15, 2018) (citations omitted); Carrico v. Samsung Elecs. Co., 2016 WL 1265854, at *1 (N.D. 7 Cal. Apr. 1, 2016) (explaining that “remote videoconference depositions can be an effective and 8 efficient means of reducing costs” and that “courts have noted that leave to conduct depositions by 9 telephone should be liberally granted”); Lopez v. CIT Bank, N.A., 2015 WL 10374104, at *2 (N.D. 10 Cal. Dec. 18, 2015) (“remote videoconference depositions . . . tend to be an effective and efficient 11 means of reducing costs”); Gee v. Suntrust Mortg., Inc., 2011 WL 5597124, at *3 (N.D. Cal. Nov. 12 15, 2011) (rejecting defendant’s “argument that conducting the depositions via videoconference 13 would be detrimental to [defendant’s] ability to question and observe the deponents” and noting that 14 “[p]arties routinely conduct depositions via videoconference, and courts encourage the same”). 15 As Mr. Rixon explains: “Remote solutions for depositions are not new. We have been 16 handling them for years both nationally and internationally in part because they are less expensive 17 than the travel charges that may be associated with in-person depositions. We have been handling 18 remote work since 2011 and have facilitated thousands of videostream connections across thousands 19 of jobs.” Rixon Decl. ¶ 3. Consistent with these well-known benefits, the California Code of Civil 20 Procedure has long allowed parties to “take . . . a deposition by telephone or other remote electronic 21 means.” Cal. Code Civ. Proc. § 2025.310.6 22 Meanwhile, the consequences of not proceeding with any depositions for some indefinite 23 period of time—as Plaintiff proposes—are significant. While deposition discovery is effectively 24 stayed, as a practical matter Defendants are hindered in filing their forthcoming motion for summary 25 26 6 The Court also has the “inherent power to control litigation” before it, including by issuing 27 discovery-related Orders such as the one requested here. E.g., Cottle v. Superior Court, 3 Cal. App. 28 4th 1367, 1377 (1992) (citing Cal. Code Civ. Proc. §§ 128(a)(8) & 187, and California Government Code § 68070, as examples of “statutory provisions [that] give courts broad and inherent powers”). Case No. 19STCV00605 -11- MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 judgement because Plaintiff no doubt will invoke its purported “inability” to take depositions as a 2 basis for adjourning or dismissing Defendants’ motion. This is significant because Defendants’ 3 summary judgment motion has the potential to fully resolve this case. Defendants intend to raise 4 serious legal defects with Plaintiff’s UCL claims, including that Plaintiff has failed to establish the 5 “substantial injury” required for Plaintiff’s “unfairness” claim, and that Defendants’ conduct was 6 not “fraudulent” or “deceptive” as a matter of law. Defendants will also argue that the Court should 7 abstain from resolving this dispute due to the complex and evolving regulatory scheme governing 8 the content and placement of the very type of disclosures at issue in this case (i.e., disclosures 9 regarding the collection and use of user data). These dispositive legal issues should be resolved as 10 soon as possible, both to conserve resources and to give Defendants an opportunity to lift the cloud 11 this lawsuit has cast over them. 12 Putting this case on hold indefinitely also risks upsetting the entire case schedule—including 13 the January 25, 2021 trial date. No one knows when the stay-at-home order will be lifted. The 14 President has requested that Americans engage in social distancing through April, and the Los 15 Angeles Police Chief recently stated that Los Angeles’ stay-at-home order “could remain in place 16 well into May.”7 According to the New York Times, there are 316 million people in at least 42 17 states, the District of Columbia, and Puerto Rico who are being urged to stay home, indefinitely.8 18 Thus, it certainly is conceivable that the stay-at-home order will not be lifted for months. Even 19 under a relatively optimistic scenario in which the stay-at-home order is lifted in May and 20 depositions begin promptly in June, it is not realistic to assume that the current schedule will hold. 21 Expert reports are due on August 10, and both sides’ experts will doubtless want time to consider 22 any testimonial evidence in the record. That leaves only two months to complete all deposition 23 24 7 See, e.g., N.Y. Times, Trump Extends Social Distancing Guidelines to April 30 as U.S. Cases Top 140,000 (Mar. 30, 2020), https://www.nytimes.com/2020/03/29/world/coronavirus-live-news25 updates.html; see also L.A. Times, L.A. coronavirus stay-at-home order could last well into May, 26 LAPD chief says (Mar. 31, 2020), https://www.latimes.com/california/story/2020-03-31/l-acoronavirus-stay-at-home-order-could-last-well-into-mid-may-lapd-chief-says. 27 8 See, e.g., N.Y. Times, See Which States and Cities Have Told Residents to Stay at Home 3, 28 (April order.html. 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home- Case No. 19STCV00605 -12MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 discovery. Moreover, attempting to cram all of deposition discovery into June and July, at a time 2 when workers across the country (including Defendants’ employees) will be going back into work 3 for the first time in months—and attempting to revive their businesses in the midst of one of the 4 worst economic crises in history—is not realistic or practical. Once depositions begin, the parties 5 may learn new facts that result in additional depositions being noticed, which could push the 6 schedule out still further. There is no reason to put such enormous pressure on the schedule when 7 at least some depositions could begin now using remote technology. 8 Other well-recognized problems associated with delay also will arise the longer this case 9 lingers. Witnesses’ memories fade. Employee turnover is inevitable to some extent—particularly 10 during economic turmoil—and may make it more difficult to locate or prepare witnesses months in 11 the future. And it is extremely inefficient to create a months-long gap between the close of document 12 discovery and depositions. Defendants should not have to re-prepare the same witnesses months 13 from now when those witnesses could be deposed remotely in the coming weeks. 14 In short, pegging the beginning of depositions to an uncertain and potentially shifting future 15 date is not a practical solution to a real problem that litigants everywhere must find ways to resolve. 16 See Apple Inc. v. Corellium, LLC, 19-cv-81160-RS, Dkt. No. 248 (Mar. 18, 2020) (“In today’s 17 highly technological world, restrictions on movement and in-person interactions do not 18 automatically preclude the parties from litigating their case. For depositions, for example, as 19 needed, the parties shall utilize video conferencing or other remote means.”). Lindsay Decl., Ex. G. 20 The only practical solution at this point is for the parties to move forward with deposition discovery 21 remotely. 22 II. Plaintiff’s Objections Do Not Justify Putting The Entire Case On Hold 23 In correspondence with Defendants, Plaintiff has explained that its primary objection to 24 remote depositions is that Plaintiff’s office “just recently transitioned to telecommuting in light of 25 this crisis, and we do not have the proper resources or equipment to take depositions from our 26 homes.” Lindsay Decl., Ex. C at 1. Defendants are of course sensitive to any genuine cost concerns, 27 but the issues raised by Plaintiff are not insurmountable. A remote deposition “simply require[s] 28 internet access (hardline or wireless) and a device (desktop computer, laptop, tablet, iPhone, etc.) Case No. 19STCV00605 -13MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 with a camera,” none of which is cost prohibitive. Rixon Decl. ¶ 6. And the alternative— 2 depositions in New York and Atlanta, months in the future—will necessarily entail expenses (e.g., 3 airfare, hotels) that will be avoided entirely if depositions are conducted remotely. E.g., Kaseberg 4 v. Conaco, 2016 WL 8729927, at *6 (S.D. Cal. Aug. 19, 2016) (granting motion to take deposition 5 “remotely to save expense on travel costs”); Rixon Decl. ¶ 5 (explaining that remote deposition 6 “costs are far less than the travel, lodging, parking, and other costs associated with in-person 7 depositions, which increase with every additional person that attends the deposition”). It also should 8 not be lost on the Court that Defendants are expending significant resources on a daily basis to 9 defend against this lawsuit; any minor costs associated with remote depositions should not dislodge 10 the entire case schedule. 11 Plaintiff has also speculated that unspecified technological issues may arise during remote 12 depositions. But Defendants have agreed to be flexible on the amount of time for each deposition, 13 which fully resolves this speculative concern. See Carrico, 2016 WL 1265854, at *2 (finding that 14 “concerns that remote depositions will be ineffective or inaccurate are too speculative” and ordering 15 remote deposition where “Plaintiffs have proposed a number of compromises to address SEC’s 16 concerns about difficulties with the remote deposition”). 17 To the extent Plaintiff argues that it will somehow be prejudiced substantively by taking 18 depositions remotely—as opposed to in-person—this argument fails as well. Kaseberg, 2016 WL 19 8729927, at *6 (ordering remote deposition; “Defendants will not be prejudiced by a 20 videoconference deposition, and [] there is no suggestion that such a method is inaccurate or 21 untrustworthy”). The witnesses’ answers to Plaintiff’s questions will be the same regardless of 22 whether those questions are asked in-person or by remote means. Moreover, any “prejudice” 23 argument cuts both ways. Just as Plaintiff would prefer to take depositions in person, Defendants 24 would prefer to prepare their witnesses and defend the depositions in person. But the perfect cannot 25 be the enemy of the good in situations like this, and because remote depositions provide a workable 26 solution that does not unfairly favor either side, the parties should move forward with them. 27 Finally, in recent correspondence with Defendants, Plaintiff attempted to sidestep these 28 issues entirely by claiming that it was “formally withdraw[ing]” its deposition notices. Lindsay Case No. 19STCV00605 -14MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 Decl., Ex. C at 1. But in the same letter, Plaintiff also stated that it intended “to re-notice those 2 depositions at the appropriate time, and [] to notice the exact same topics included in the previous 3 notice.” Id., Ex. C at 2. This formalistic maneuver only confirms that postponing depositions will 4 set the case schedule back by months, as Plaintiff apparently now plans to “notice the exact same 5 topics” for which Defendants already began preparing their witnesses at some unspecified point in 6 the future. 7 At bottom, the COVID-19 pandemic requires parties to work together to adopt innovative 8 solutions to an unparalleled crisis, and remote depositions are an appropriate solution during these 9 trying times. Cf. Guillen v. Bank of Am. Corp., 2011 WL 3939690, at *1 (N.D. Cal. Aug. 31, 2011) 10 (explaining that “experimentation in new methods of recording depositions should be encouraged” 11 and granting request for remote deposition). If and when the COVID-19 pandemic is resolved and 12 in-person depositions become a possibility, the parties can consider conducting any remaining 13 depositions in-person. 14 15 CONCLUSION For the foregoing reasons, Plaintiff should be ordered to proceed with deposition discovery 16 remotely, using its preferred technology provider; in the alternative, Defendants request the Court’s 17 guidance on this issue. 18 19 20 DATED: April 8, 2020 21 QUINN EMANUEL URQUHART & SULLIVAN, LLP 22 23 24 25 26 27 28 By /s/ Stephen A. Broome James R. Asperger Stephen A. Broome Lauren B. Lindsay Attorneys for Defendants TWC PRODUCT AND TECHNOLOGY, LLC INTERNATIONAL BUSINESS MACHINES CORPORATION Case No. 19STCV00605 -15MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 865 South 4 Figueroa Street, 10th Floor, Los Angeles, CA 90017-2543. 5 On April 8, 2020, I served true copies of the following document(s) described as MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY USING 6 REMOTE SOLUTIONS, OR IN THE ALTERNATIVE, FOR THE COURT’S GUIDANCE ON HOW TO MOVE THE CASE FORWARD on the interested parties in this action as follows: 7 OFFICE OF THE LOS ANGELES CITY ATTORNEY 8 Michael N. Feuer Thomas H. Peters 9 Michael J. Bostrom Adam R. Teitelbaum 10 adam.teitelbaum@lacity.org 200 North Spring Street, 14th Floor 11 Los Angeles, CA 90012-4131 12 Attorneys for Plaintiff 13 BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an 14 agreement of the parties to accept service by e-mail or electronic transmission, I caused the document(s) to be sent from e-mail address laurenlindsay@quinnemanuel.com to the persons at the 15 e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 16 I declare under penalty of perjury under the laws of the State of California that the foregoing 17 is true and correct. 18 Executed on April 8, 2020, at Los Angeles, California. 19 20 21 /s/ Lauren B. Lindsay Lauren B. Lindsay 22 23 24 25 26 27 28 Case No. 19STCV00605 -16MOTION TO COMPEL PLAINTIFF TO PROCEED WITH DEPOSITION DISCOVERY, OR IN THE ALTERNATIVE, FOR GUIDANCE ON HOW TO MOVE THE CASE FORWARD From: Sent: To: Subject: noreply@ecourt.com Tuesday, April 7, 2020 8:46 AM Rob McCarthy Reservation: 19STCV00605 - 138445489256 [EXTERNAL EMAIL] The following reservation has been made by the REQUESTOR. Event: Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion Reservation ID: 138445489256 PIN: 95RNQVASH9ME Status: RESERVED Case Number: 19STCV00605 Case Title: THE PEOPLE OF THE STATE OF CALIFORNIA vs TWC PRODUCT AND TECHNOLOGY, LLC, A DELAWARE CORPORATION, et al. Courthouse: Stanley Mosk Courthouse Dept: Department 68 Date: 06-25-2020 Time: 08:30:00 AM Parties: TWC Product and Technology, LLC. (Defendant) Motion Count: 1 Click the link below to view the reservation. You may need to supply your PIN number. From here you may print receipt and attach it to the corresponding motion/document as the last page. Indicate the Reservation ID on the motion/document face page. The document will not be accepted without the receipt page and the Reservation ID. https://portal-lasc.journaltech.com/public-portal//?q=calendar/search&crsNumber=138445489256 1