1 Jonathan M. Cohen (SBN: 168207)
Martin Sabelli (SBN: 164772)
2 Robyn T. Callahan (SBN: 225472) ·
WINSTON & STRAWN LLP .
- 3 101 California Street
San Francisco, CA 94111-5894
4 Telephone: 415-591-1000
5 Email: email@example.com J
Attorneys for Plaintiff
7 FRANK NEMIROF SKY
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
¤. é FRANK NEMIROFSKY, ) Case N0. 3:07-CV-02769 — JL
j E j 12 ) Hon. Magistrate James Larson
g gs} E Plaintiff, )
E .e Qc 13 ) PLAINTIFF FRANK NEMIROFSKY'S EX
E § Q vs. ) PART E APPLICATION FOR AN ORDER
°?$ § 14 ) SHORTENING TIME REGARDING
§ 3 E SEOK KI KIM; STV ASIA, LTD. a British ) MOTION FOR EARLY DISCOVERY
_§ 2 E 15 Virgin Islands corporation; and DOES 1 )
B g through 20, inclusive, )
<¤ 16 )
19 Plaintiff FRANK NEMIROFSKY ("Plaintiff" or "Mr. Nemirofsky") brings this Ex Parte
2() Application for an Order Shortening Time regarding his Motion for Leave of Court Regarding Early
2] Discovery. Specifically, Plaintiff seeks to take the depositions of Deborah Bailey-Wells, Seok Ki A
22 Kim and Jim Smith prior to the Rule 26(f) initial meeting and preferably before the hearing on
23 Plaintiffs Motion to Extend the Temporary Protective Orders.
25 /// 1
PLAINTIFF FRANK NEMIROFSKY'S EX PART E APPLICATION RE: MOTION FOR EARLY DISCOVERY
Case No. 3:07-CV-02769 — JL . in
Case 3:07-cv-02769-JL Document 60 Filed 07/06/2007 Page 2 of 4
3 A. Ex Parte Relief Is Proper.
4 Ex parte orders are proper in situations such as for emergencies and for scheduling matters
5 "such as motions to shorten time for hearing or to regulate the order of discovery procedures." The
6 Rutter Group, Cal. Prac. Guide Fed. Civ. Pro. Before Trial Ch. 12-F, 12:162.
7 B. Leave of Court Shall be Granted Under Rule 30(a)(2)(C) for Permissible
9 "A party must obtain leave of court, which shall be granted to the extent consistent with the
10 principles stated in Rule 26(b)(2), if . . .a party seeks to take a deposition before the time specified in
gx 11 Rule 26(d)." ·
E E 12 Leave to take a deposition before the 26(i) meeting may be granted because of an urgent
ig is 13 need for discovery in connection with an application for a TRO or preliminary injunction. Stanley v.
E 14 University ofSo. Calhf, 13 F.3d 1313, 1326 (9th Cir. 1994).
E § § 15 11.
3 5 16 GOOD CAUSE EXISTS JU STIFYING EX PART E RELIEF FOR EARLY DISCOVERY.
17 Good cause for ex parte relief exists because the relief requested by way of this ex parte
18 application pertains to the scheduling of discovery which is one of the situations for which expedited
19 relief is proper. See The Rutter Group, Cal. Prac. Guide Fed. Civ. Pro. Before Trial Ch. 12-F,
20 12: 1 62.
21 In the process of preparing Plaintiffs Motion to Extend the Temporary Protective Orders, it
22 became clear that there are a number of factual disputes between the parties which are germane to
23 the underlying substantive issue regarding whether an attachment of the settlement proceeds is
24 proper and what amount should be attached. In order to properly and completely address Plaintiffs
25 Motion to Extend the TPOs, the Court should grant leave for early discovery, which must be done on
26 shortened time. In addition, given the nature of the dispute, taking early depositions of integral
27 witnesses is prudent to maintaining judicial efficiency. V
28 2 l
PLAINTIFF FRANK NEMIROFSKY'S EX PARTE APPLICATION RE: MOTION FOR EARLY DISCOVERY _
Case NO. 3:07-cv-02769 - JL
Case 3:07-cv-02769-JL Document 60 Filed 07/06/2007 Page 3 of 4
1 Prior to filing the Ex Parte Motion to Extend the Temporary Protective Orders, Plaintiffs
2 counsel contacted Defense counsel in an attempt to obtain a stipulation for early discovery, or at the
3 very least meet and confer regarding any objections Defendants may have to early discovery.
4 (Declaration of Jonathan M. Cohen ("Cohen Decl."), 1]*112-5 and Exb. A). Before filing this Ex Parte
5 Motion, Plaintiffs counsel again contacted Defendants' counsel in order to get a stipulation in place
6 but to no avail. (Cohen Decl., 116 and Exb. B). To date, and despite the several attempts to meet and
7 confer with Defendants' counsel regarding proposed early discovery, Defendants have failed to
8 respond to Plaintiffs numerous communications on this issue. (Cohen Decl., 117). Because
9 Defendants have not responded to Plaintiffs communications, Plaintiff has been unable to conduct a
10 26(f) conferencel as is required before discovery can commence. As such, Plaintiff is left with no
,, 11 alternative but to seek leave of court for early discovery.
j *2)-; 12 As set forth fully in Plaintiffs Ex Parte Motion for Leave of Court for Early Discovery, filed
¤ ,5 ;·
§ 2 13 herewith, the depositions which Plaintiff seeks will lead to the discovery of admissible and relevant
Q E 0
°; §; 14 evidence regarding Plaintiffs Motion to Extend the Temporary Protective Orders, which is currently
Q 0 ·a
_§ E 5 15 pending and scheduled to be heard on July 25, 2007.
B = _
g 16 Further, there are several factual disputes which exist regarding the agreement made between
17 Plaintiff and Defendants about the division of the PRN Litigation proceeds which need to be
18 addresses early in this litigation in order to proceed efficiently. In fact, in Defendants' Opposition to
19 Plaintiffs Motion to Extend the TPOs, Defendants also raised defenses based upon facts which are A
20 contested by Plaintiff. (i.e. Defendants claim that that Mr. Nemirofsky was not available and did
21 perform his duties tmder the agreement regarding the PRN Litigation.) (See Defendants' Opposition
22 to Plaintiffs Ex Parte Motion to Extend the TPOs, page 2, lines 3-5). One of the central issues being
23 contested by Defendants is the modification to their initial agreement whereby Plaintiffs share of the
25 1 As the Court knows, Rule 26(f) directs that the parties confer "as soon as practicable and in any event at least 21 days (
before a scheduling conference us held or a scheduling order is due tmder Rule 16(b)." In this case, the last day for the
26 26(f) conference is August 15. However, Plaintiff has made a concerted effort to conduct the 26(f) meeting "as soon as
practicable" so as to open discovery. Unfortunately, Defendants' lack of communication on this issue is effectively
27 stalling the discovery process. I
PLAINTIFF FRANK NEMIROFSKY'S EX PARTE APPLICATION RE: MOTION FOR EARLY DISCOVERY
Case No. 3 :07-CV-02769 — JL "
Case 3:07-cv-02769-JL Document 60 Filed 07/06/2007 Page 4 of 4 -
1 PRN Litigation proceeds was increased from 15% to 50%. It is imperative that discovery as to these
2 integral issues be conducted in a timely and expedited marmer so as to provide the Court, as well as
3 the parties, with necessary evidence to address the underlying issues.
5 CONCLUSION I
6 For the reasons set forth herein, Plaintiff respectfully requests that this Court grant his Ex
7 Porte Application for an Order Shortening Time on Plaintiffs Motion for Leave for Early Discovery.
9 Dated: July 6, 2007 WINSTON & STRAWN LLP
,, 11 onathan M. Cohen .
5 Q Robyn T. Callahan
Q tg j 12 WINSTON & STRAWN LLP
§ gg g' Attorneys for Plaintiff
g E < 13 FRANK NEM1Ro1¤s1
as E é 14
2 § 2 15
28 4 l
PLAINTIFF FRANK NEMIROFSKY‘S EX PART E APPLICATION RE: MOTION FOR EARLY DISCOVERY
Case No. 3:07-CV-02769 — JL _`
Page 1 of 4
Page 2 of 4
Page 3 of 4
Page 4 of 4