Zoom Imaging Solutions, Inc. v. Roe ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ZOOM IMAGING SOLUTIONS, INC., No. 2:19–cv–1544–WBS–KJN 12 Plaintiff, ORDER DENYING PLAINTIFF’S EX PARTE APPLICATION 13 v. TO CONDUCT EXPEDITED DISCOVERY 14 EDWARD ROE, et al., (ECF No. 26) 15 Defendants. 16 17 This case concerns the alleged theft of confidential information by Defendant Edward Roe 18 and other ex–employees upon their exit from Plaintiff Zoom’s employ. (See ECF No. 1.) The 19 Complaint also names a number of “Doe” Defendants, who Plaintiff believes are more of Roe’s 20 co–conspirators. 21 Presently before the Court is Plaintiff’s ex parte application for leave to take expedited 22 discovery prior to the Rule 26(f) scheduling conference.1 (ECF No. 26.) Therein, Plaintiff asserts 23 that it needs the names of the “Doe Defendants”––Power’s current and former employees who 24 originally worked for Zoom and who may have participated in the alleged acts. Plaintiff did not 25 notice the ex parte application for hearing, nor did it follow the Local Rules governing the 26 procedure for discovery disputes. See Local Rule 251(c). 27 1 This case was referred to the undersigned pursuant to Eastern District of California Local Rule 28 302(c)(1) and 28 U.S.C. § 636(b) (1). 1 The Court observes no urgency as to warrant this matter being filed ex parte and in 2 | derogation of the local rules. Plaintiff asserts it needs the names of these ex—employees to 3 | “perfect” its complaint and serve the Doe Defendants within 120 days, per Rule 4(m). However, 4 | should Plaintiff find that it can state a claim against any additional defendants, Plaintiff will be 5 | able to amend its complaint after discovery has commenced (at which point it will have 120 days 6 | to serve them). Further, Plaintiff (somewhat contradictorily) states that it may in fact know the 7 | names of the Doe Defendants, and so fails to show need for early discovery. (See ECF No. 26 at 8 | 9:22-25, “Zoom has knowledge of which of former Zoom employees downloaded, transferred, 9 | and/or accessed confidential information and trade secrets information prior to their departure 10 | from Zoom.”) Given that Defendant appears open to confirming or denying whether any 11 individuals work (or worked) for Power, it appears Zoom may be able to obtain the information it 12 | seeks without Court intervention. (See ECF No. 28 at pp. 8-9.) Finally, although Zoom states it 13 || may seek a TRO, no such motion has been filed in the month—and—a-—half since Plaintiff filed its 14 | Complaint (after first discovering the alleged misappropriation in May of 2019). Thus, no 15 || exigency is apparent. See Millennium TGA, Inc. v. Doe, 2012 WL 219329, at *4 (E.D. Cal. Jan. 16 | 23, 2012) (denying ex parte application, as “procedural vehicles exist to later add and/or dismiss 17 || defendants based on additional facts discovered, if necessary.”). 18 The Court encourages the parties to continue their meet—and—confer efforts to resolve this 19 | dispute, as it appears a solution is well underway. Should these efforts fail, the Court is available 20 | for an informal telephonic conference. (See Chamber’s scheduling procedures for an informal 21 | conference at:_http://www.caed.uscourts.gov/caednew/index.cfm/judges/all-judges/5046/.) 22 | Alternatively, Plaintiffs may elect to file a formal discovery motion and notice it for a hearing, as 23 | guided by Local Rule 251. 24 For these reasons, Plaintiff's ex parte application for leave to conduct expedited discovery 25 | (ECF No. 26) is DENIED. 26 | Dated: October 2, 2019 a Frese Arn 28 KENDALL J. NE > UNITED STATES MAGISTRATE JUDGE