No. C11-00379 EJD (HRL).


United States District Court, N.D. California, San Jose Division.

August 18, 2014.

Attorney(s) appearing for the Case

Jeff Milans, Plaintiff, represented by Ari Jonathan Scharg , Edelson P.C., Benjamin Harris Richman , Edelson PC, Chandler Randolph Givens , Edelson McGuire, LLC, Jay Edelson , Edelson PC, Rafey S. Balabanian , Edelson PC, William Charles Gray , James Dominick Larry , Edelson P.C. & Mark Stephen Eisen , Edelson PC.

Jason Bernal, Consol Plaintiff, represented by David Eldridge Bower , Law Office of David E. Bower.

Michael Rura, Consol Plaintiff, represented by David Eldridge Bower , Law Office of David E. Bower.

Peter Comstock, Consol Plaintiff, represented by David Christopher Parisi , Parisi & Havens LLP, James Dominick Larry , Edelson P.C., Mark Stephen Eisen , Edelson PC, Rafey S. Balabanian , Edelson PC & Sean Patrick Reis , Edelson P.C..

Michael Sevy, Consol Plaintiff, represented by Marc Lawrence Godino , Glancy Binkow & Goldberg LLP & Joseph Jeremy Siprut , Siprut PC.

Eric Wizenberg, Consol Plaintiff, represented by Marc Lawrence Godino , Glancy Binkow & Goldberg LLP.

Netflix, Inc., a Delaware corporation, Defendant, represented by Keith E. Eggleton , Wilson Sonsini Goodrich & Rosati & Rodney Grant Strickland, Jr. , Wilson Sonsini Goodrich & Rosati.


HOWARD R. LLOYD, Magistrate Judge.

This is a consolidated class action brought against Netflix, Inc., on the grounds that Netflix unlawfully retained and disclosed customers' personally identifiable information in violation of the Video Privacy Protection Act, 18 U.S.C. § 2710. Plaintiffs Jeff Milans and Peter Comstock, individually and on behalf of the Class, filed an unopposed Motion for Preliminary Approval of Class Action Settlement, which Judge Edward J. Davila granted. Bradley Schulz, among others, filed an objection to the Settlement. Judge Davila granted final approval of the Settlement. Schulz appealed to the Ninth Circuit Court of Appeals.

Plaintiffs filed a motion for additional discovery concerning the merits of the Objectors' appeals, their motivations, and their financial arrangements with their attorneys. Judge Davila granted the motion. Plaintiffs attempted to schedule a deposition for Schulz several times, but Christopher A. Bandas, counsel for Schulz, failed to respond. After Plaintiffs served Schulz with a notice of deposition, Bandas informed Plaintiffs' counsel that he believed that Schulz could not be compelled to appear for a deposition absent service of a subpoena to appear because he was a non-party. Plaintiffs' numerous attempts to serve Schulz with a subpoena to appear at a deposition and a subpoena to produce documents were unsuccessful. On April 28, 2014, Plaintiffs filed a motion to compel the deposition of and the production of documents by Schulz, which was referred to the undersigned. Docket Nos. 352, 354.

Under Rule 37(a)(1) of the Federal Rules of Civil Procedure, Civil Local Rule 37-1(a), and the undersigned's Standing Order re: Civil Discovery Disputes ("Standing Order"), parties must meet and confer in an effort to resolve any discovery disputes prior to seeking judicial intervention. The Standing Order generally provides that parties may seek judicial intervention only after an in-person meeting between lead counsel fails to resolve the discovery dispute, in which case the parties shall file a Discovery Dispute Joint Report. "[R]efusal to attend or to participate meaningfully will be grounds for sanctions and/or for entry of an order in favor of the other side." Standing Order § 2.C.i.

Through email, Plaintiffs' counsel informed Bandas of Plaintiffs' intent to file a motion to compel Schulz's deposition and asked for Bandas's availability to meet and confer regarding their positions. Plaintiffs' counsel attempted to schedule a meet and confer three times by email and letter and three times by telephone. Bandas failed to respond. Because Bandas has refused to meet and confer with Plaintiffs' counsel, Plaintiffs' motion to compel the deposition of and the production of documents by Schulz is granted. Schulz is ordered to appear and testify at deposition and produce documents in accordance with Judge Davila's Order Granting Plaintiffs' Motion for Appeal Bonds and Granting Plaintiffs' Motion for Additional Discovery, Docket No. 307, within thirty (30) days of the date this Order is filed.



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