Opinion
Case No.: 17-cv-0879-AJB-MDD
05-24-2017
GARFIELD BEACH CVS LLC, Plaintiff, v. MOLLISON PHARMACY and SAMERA YOKOUB, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO EXPEDITE DISCOVERY AND FOR A PRESERVATION ORDER
[ECF NO. 3]
In April 2017, CVS purchased El Cajon Express Pharmacy. (ECF No. 1 ¶ 3). Defendant Yokoub was a delivery driver for Express. (Id. ¶ 15). This case stems from allegations by CVS that Yokoub misappropriated customer lists, derived from her delivery logs, that Defendant Mollison Pharmacy has used to lure customers from CVS. (Id. ¶¶ 37, 38, 40).
Plaintiff, in its Complaint, also sued Palm Care Pharmacy but voluntarily dismissed Palm Care Pharmacy on May 10, 2017. (ECF No. 14).
On March 2, 2017, Plaintiff filed the instant motion seeking a temporary restraining order, a preservation order, and an order authorizing expedited discovery. (ECF No. 3). The motions for a preservation order and for expedited discovery were referred to this Court by the district judge. Defendants responded in opposition on May 15, 2017. (ECF No. 17). Plaintiff replied on May 17, 2017. (ECF No. 18).
As provided herein, Plaintiff's motion for a preservation order is GRANTED. Plaintiff's motion for expedited discovery is DENIED.
DISCUSSION
A. Motion for Preservation Order
In considering a motion for an order preserving evidence, the court is to consider:
1) The level of concern the court has for the continuing existence and maintenance of the integrity of the evidence in question in the absence of an order directing preservation of the evidence;Jardin v. Datallegro, Inc., et al, No. 08-cv-1462, 2008 WL 4104473 *1 (September 3, 2008, S.D. Cal.) (citations omitted).
2) Any irreparable harm likely to result to the party seeking the preservation of the evidence absent an order directing preservation; and
3) The capability of an individual, entity, or party to maintain the evidence sought to be preserved.
Although asserting that the facts in support of the motion presented by Plaintiff are not accurate, Defendants state that they "do not generally object" to the Court issuing a preservation order. (ECF No. 17 at 2). Although it is not quite clear what the lack of general objection means, the Court takes it that Defendants do not oppose. It is not for the Court to second guess that decision. Accordingly, Plaintiff's motion for a preservation order is GRANTED as requested by Plaintiff. (See ECF No. 3-1 at 18-19).
The Court will refer to ECF-generated pagination instead of original pagination herein. --------
B. Motion for Expedited Discovery
Federal Rule of Civil Procedure 26(d) states:
A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.
In the instant case, Plaintiff may only obtain early discovery by court order. In this Circuit, courts must find "good cause" to determine whether to permit discovery prior to the Rule 26(f) conference. Good cause exists where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party. See, e.g., Arista Records, LLC v. Does 1-43, 2007 WL 4538697 *1 (S.D. Cal. 2007).
Plaintiff asserts that expedited discovery is necessary to determine the extent to which Defendants have disclosed CVS' trade secrets and confidential information. (ECF No. 3-1 at 19). In support, Plaintiff claims that a number of customers have moved their business from Express to Mollison following the purchase and claims that this is likely a consequence of Defendant Yokoub taking the delivery log and Defendant Mollison Pharmacy using it to contact and divert customers. Defendants, on the other hand, assert that the delivery log, which was returned on April 13, 2017, to Plaintiff, does not contain the customers printed name, address or telephone number and was not used or copied by Defendants. Declaration of Samera Yokoub ¶¶ 9, 10 (ECF No. 15-9).
The Court finds that good cause is lacking for expedited discovery. The Court finds that Plaintiff has failed to demonstrate that the need for expedited discovery outweighs the prejudice to Defendants in having to respond to discovery at this stage of the case. The motion for expedited discovery is DENIED.
The Court declines to enter a protective order as suggested by Plaintiff at this time. The Court encourages the parties, at the appropriate time, to meet and confer for the purpose of presenting a stipulated protective order. In the event of a dispute over the terms, the Court will entertain a joint motion to resolve any issues.
CONCLUSION
For the foregoing reasons, Plaintiffs' Motion for a Preservation Order is GRANTED. Plaintiff's Motion for Expedited Discovery is DENIED.
Defendants are ORDERED to:
(1) Preserve all copies of CVS' confidential and proprietary business information, including but not limited to, Delivery Logs, list, or records and all copies;
(2) Preserve any communication(s) related to the use of CVS' confidential and proprietary business information; and
(3) Preserve any communications related to Mollison and/or Palm communicating with Yokoub about hiring her or paying her for any of CVS' confidential, trade secret or proprietary information, including the Delivery Logs.
IT IS SO ORDERED: Dated: May 24, 2017
/s/_________
Hon. Mitchell D. Dembin
United States Magistrate Judge