In re Banc of California Securities Litigation,

MEMORANDUM in Opposition to EX PARTE APPLICATION for Leave to Take Deposition and Serve Discovery After the Fact Discovery Cutoff 537

C.D. Cal.March 5, 2019

1539254_1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBBINS GELLER RUDMAN & DOWD LLP SPENCER A. BURKHOLZ (147029) LAURIE L. LARGENT (153493) ROBERT R. HENSSLER JR. (216165) MATTHEW I. ALPERT (238024) ERIKA OLIVER (306614) 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) spenceb@rgrdlaw.com llargent@rgrdlaw.com bhenssler@rgrdlaw.com malpert@rgrdlaw.com eoliver@rgrdlaw.com Lead Counsel for Plaintiff UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION In re BANC OF CALIFORNIA SECURITIES LITIGATION This Document Relates To: ALL ACTIONS. ) ) ) ) ) ) ) ) ) ) No. SACV 17-00118 AG (DFMx) consolidated with SACV 17-00138 AG (DFMx) CLASS ACTION LEAD PLAINTIFF’S OPPOSITION TO DEFENDANT STEVEN A. SUGARMAN’S EX PARTE MOTION FOR RELIEF TO TAKE DEPOSITION AND SERVE DISCOVERY AFTER THE FACT DISCOVERY CUTOFF Judge: Honorable Douglas F. McCormick Case 8:17-cv-00118-AG-DFM Document 547 Filed 03/05/19 Page 1 of 12 Page ID #:23296 - 1 - 1539254_1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lead Plaintiff Iron Workers Local No. 25 Pension Fund (“Plaintiff”) submits this Opposition to Defendant Steven A. Sugarman’s (“Sugarman”) Ex Parte Application for Relief to Take Deposition and Serve Discovery After the Fact Discovery Cutoff (the “Motion”) (ECF No. 537). I. INTRODUCTION The parties are once again before the Court over the propriety of conducting discovery after the February 1, 2019 fact discovery cutoff. Sugarman requests permission to notice the deposition of Richard Lashley and to serve a discovery request on Aurelius. Motion at 7-8. He also requests an open-ended order allowing him to “petition the Court for relief to pursue follow-up discovery, as needed,” following production by the short sellers. Id. at 8. Plaintiff opposes Sugarman’s request. If this dispute sounds familiar to the Court, that’s because it is. Over a month ago, and before the discovery cutoff, Banc moved ex parte for the Court’s permission to depose Cynthia Abercrombie after the cutoff. ECF No. 487. In opposing Banc’s application, Sugarman requested “reciprocal” relief – namely, if the Court permitted Banc to depose Ms. Abercrombie after the cutoff, the Court should likewise permit Sugarman to depose after the cutoff multiple non-party witnesses whose depositions he noticed days before the cutoff. ECF No. 488 at 3. For its part, Plaintiff did not object to Ms. Abercrombie’s deposition proceeding after the cutoff because the scope of her deposition was dependent on a motion then pending before the Court. ECF No. 489 at 1. Plaintiff, however, opposed Sugarman’s request for leave to take the depositions of Francisco Turner, Richard Lashley and Keefe, Bruyette & Woods, Inc. post-cutoff because of Sugarman’s failure to establish good cause to depose individuals and entities after the cutoff that he had known of since this case’s inception. Id. at 1-4. Case 8:17-cv-00118-AG-DFM Document 547 Filed 03/05/19 Page 2 of 12 Page ID #:23297 - 2 - 1539254_1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Agreeing with Plaintiff and Banc, the Court granted Banc’s application on January 31, 2019. ECF No. 496. In that order, the Court acknowledged Sugarman’s request, stating that “[i]f Sugarman wants to take depositions after the February 1, 2019 cutoff date, he should seek separate relief and demonstrate good cause to do so.” Id. at 1. Despite the Court’s invitation, Sugarman has waited over one month to move for relief in seeking additional discovery, which should by itself be sufficient grounds to deny his Motion. Sugarman’s request is also unsupportable and should be denied on other grounds. First, Sugarman’s Motion is nothing more than an attempt to modify the Scheduling Order, for which he has already filed a motion set to be heard on April 1, 2019 before Judge Guilford. ECF No. 530. In that motion, Sugarman seeks to continue certain pretrial dates and the trial date to accommodate ongoing discovery that was initiated before the discovery cutoff. Because Sugarman’s motion here essentially seeks to extend the discovery cutoff, it should also be determined as part of the motion currently pending before Judge Guilford. Second, Sugarman falls woefully short of establishing his diligence in pursuing the discovery he is seeking. For instance, Sugarman has not been diligent in deposing Mr. Lashley since Sugarman has admittedly known about him since the inception of this case, but it wasn’t until the eve of the fact discovery cutoff that Sugarman first noticed his deposition. Sugarman fails to give any explanation for his lack of diligence here. Last, Sugarman’s request for discovery relating to Aurelius and the short sellers is baseless given that Sugarman has not identified Aurelius or the additional discovery he is seeking from the short sellers. For any of these reasons, Sugarman’s Motion should be denied. II. ARGUMENT A. Sugarman’s Motion Should Be Denied Because Only Judge Guilford May Modify the Scheduling Order The relief sought by Sugarman should be included in the motion he has pending before Judge Guilford because he is essentially seeking to modify the Scheduling Case 8:17-cv-00118-AG-DFM Document 547 Filed 03/05/19 Page 3 of 12 Page ID #:23298 - 3 - 1539254_1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order.1 By way of this Motion, Sugarman is requesting from the Court: (1) permission to depose Mr. Lashley; (2) an order to serve a document subpoena on the SeekingAlpha Blog’s author Aurelius; and (3) open-ended permission to petition the Court for relief to serve additional fact discovery after production is made by the short sellers as Sugarman sees fit. Motion at 1. Regardless of its formal title, Sugarman’s Motion can only be construed as a request to modify Judge Guilford’s Scheduling Order. The Scheduling Order was originally entered in this case on October 16, 2017 (ECF No. 79) and modified pursuant to the parties’ stipulation on August 16, 2018 (ECF Nos. 337, 339). As modified, the Scheduling Order set a fact discovery cutoff of February 1, 2019 and provides, in relevant part, the following: 1.1 Depositions. All non-expert depositions shall occur on or before the discovery cutoff date . . . ; and 1.2 Other Discovery. All interrogatories, requests for admission, requests for production, or the like, shall be served at least forty-five days before the discovery cutoff date. The Court will not approve stipulations between counsel that permit discovery responses to be served after the cutoff date except in unusual circumstances and upon a showing of good cause. Oliver Decl., Ex. C at 2; ECF No. 339. 1 While Sugarman filed a Motion to Continue the Trial Date and Extend Certain Pretrial Deadlines (“Motion to Continue”) with Judge Guilford on March 1, 2019, his motion inexplicably does not mention that Sugarman will seek to serve additional discovery requests. See ECF No. 530. Indeed, when counsel for Sugarman met and conferred with counsel for Plaintiff and Banc about the Motion to Continue on February 18, 2019, counsel for Sugarman represented that Sugarman did not intend to issue additional discovery. Declaration of Erika Oliver in Support of Plaintiff’s Opposition to Steven A. Sugarman’s Ex Parte Motion for Relief to Take Deposition and Serve Discovery After the Fact Discovery Cutoff (“Oliver Decl.”), ¶3, filed concurrently herewith. Thus, Sugarman’s pending Motion to Continue lends no support to his current request. Case 8:17-cv-00118-AG-DFM Document 547 Filed 03/05/19 Page 4 of 12 Page ID #:23299 - 4 - 1539254_1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Under the Scheduling Order’s plain terms, any discovery should have been served, let alone completed, well before the February 1, 2019 fact discovery cutoff.2 Accordingly, Sugarman’s requested relief cannot be granted absent a modification of the Scheduling Order and should be denied accordingly. See MQVP, Inc. v. Pac. Best Inc., No. CV 06-0860 AG (RCx), 2008 WL 11338510, at *1 (C.D. Cal. May 19, 2008) (Guilford, J.) (“Plaintiff’s request for relief from the discovery cut-off would require a modification of the scheduling order in this case, which established the discovery cut- off date of June 22, 2007.”).3 B. Sugarman’s Motion Should Be Denied Because He Has Not Demonstrated Good Cause to Proceed with Discovery that Was Not Served Before the Fact Discovery Cutoff Alternatively, Sugarman’s Motion should be denied because he has not demonstrated good cause to proceed with discovery that was not served before the fact discovery cutoff. Modification of a scheduling order requires a showing of good cause, which in turn requires a showing of due diligence. See MQVP, 2008 WL 11338510, at *1. In this case, Judge Guilford admonished that the parties must make a “VERY STRONG SHOWING OF GOOD CAUSE” to justify an additional modification of the Scheduling Order. ECF No. 339 at 2 (emphasis in original). Sugarman has not made this showing. Nor can he. Richard Lashley. With respect to Mr. Lashley, Sugarman has been aware of Mr. Lashley’s purported relevance since this case’s inception and has failed to give 2 At the very least, discovery should have been started before the cutoff. The Scheduling Order permits depositions “started on or before the discovery cutoff date [to] continue beyond the cutoff . . . .” Oliver Decl., Ex. C at 2. Because none of Sugarman’s requested discovery was even served before the cutoff, this provision is irrelevant to the instant Motion. 3 The Court can also summarily deny Sugarman’s request under Civ. L.R. 16-14, which provides that “[a]ny application to modify an order entered pursuant to F.R.Civ.P. 16 shall be made to the judicial officer who entered the order.” See also Jang v. Sagicor Life Ins. Co., No. EDCV 17-1563-JGB (KKx), 2019 WL 109442, at *2 (C.D. Cal. Jan. 3, 2019) (magistrate judge “is without authority to order discovery after the discovery cut-off set by the District Judge or to continue the discovery cut- off”); Ins. Co. of Pa. v. Cty. of San Bernardino, No. EDCV 16-0128 PSG (SS), 2017 WL 5957730, at *1 (C.D. Cal. Aug. 4, 2017) (same). Case 8:17-cv-00118-AG-DFM Document 547 Filed 03/05/19 Page 5 of 12 Page ID #:23300 - 5 - 1539254_1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 any substantive explanation as to why his deposition was initially noticed on the eve of the discovery cutoff, then without explanation withdrawn, and now requested again.4 Indeed, Sugarman identified PL Capital – the investment firm for which Mr. Lashley is a principal – well over a year ago in his initial disclosures served on the parties on October 10, 2017. Oliver Decl., Ex. D at 6. In his initial disclosures, Sugarman identified PL Capital as having information relevant to “[t]he Blog [and] trading in Banc stock.” Id. Thus, any claim by Sugarman that Mr. Lashley’s deposition was delayed because of the short seller subpoenas is disingenuous. Sugarman also posits that good cause exists because Mr. Lashley has testimony “relevant to . . . Sugarman’s argument that he resigned due to concerns about certain other directors’ conflicts of interest.” Motion at 7. However, as this Court knows, these issues are nothing new, and Sugarman offers no explanation as to why Mr. Lashley’s deposition could not have been taken before the discovery cutoff with regard to these issues. Under Judge Guilford’s decision in St. Paul Mercury Ins. Co. v. Hahn, No. SACV 13- 0424 AG (RNBx), 2014 WL 12791262 (C.D. Cal. Apr. 28, 2014), Sugarman has unequivocally not been diligent. There, the moving party requested a modification of the scheduling order to pursue additional discovery after the fact discovery cutoff. Id. at *1-*2. Judge Guilford readily denied this request, noting that “[t]he Court held a scheduling conference in this case on August 12, 2013,” but the depositions were not noticed until February 24, 2014, i.e., six months later. Id. at *2. In stark contrast, Sugarman has offered no explanation for the 17- month delay in noticing the deposition of Mr. Lashley. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“Rule 16(b)’s ‘good cause’ 4 Sugarman originally noticed Mr. Lashley’s deposition on January 28, 2019 (four days before the cutoff), but withdrew that subpoena on February 6, 2019. Oliver Decl., Exs. A and B. Even if the January 28th subpoena had not been withdrawn, “[w]aiting until the eve of discovery to notice depositions does not demonstrate a party pursued the discovery with diligence, and courts have denied modifying scheduling orders to extend the discovery period on such grounds.” Lucas v. Breg, Inc., No. 3:15-CV-00258-BAS-NLS, 2015 WL 8328696, at *3 (S.D. Cal. Dec. 8, 2015). Case 8:17-cv-00118-AG-DFM Document 547 Filed 03/05/19 Page 6 of 12 Page ID #:23301 - 6 - 1539254_1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 standard primarily considers the diligence of the party seeking the amendment.”) (citation omitted). Aurelius and Short Sellers. As to Aurelius and the short sellers, Sugarman’s Motion is superficially more credible, but no less specious. Sugarman claims he “had no way to subpoena Aurelius until it appeared for the first time through counsel on February 19” following the Court’s order requiring Muddy Waters to produce documents. Motion at 5, 8. However, according to Sugarman, he has yet to identify Aurelius; thus, any subpoena would be baseless at this point. Indeed, Sugarman offers no explanation as to how the identity of Aurelius’s attorney would enable him to subpoena the documents he is seeking. Likewise, Sugarman has failed to identify what additional discovery he needs from the short sellers, thereby making his request an open-ended request to keep discovery open. Sugarman’s claims that he could not obtain discovery from the short sellers due to delays in transferring his motions to compel against them from various district courts to this Court is without merit. Motion at 3-4. Sugarman did not begin his discovery into short-selling activity until March 13, 2018 – six months after the scheduling conference – when he issued subpoenas to, among others, the Financial Industry Regulatory Authority, Inc. (“FINRA”). See ECF No. 530-1. Sugarman offers no explanation for the delay in issuing that subpoena. And given his representation in his Motion to Continue that he issued the subpoena to FINRA after identifying “suspicious trading patterns” from “publicly available market data,” he can’t. ECF No. 534-1 at 5. Under St. Paul, that initial delay is sufficient by itself to deny Sugarman’s request as to Aurelius and the short sellers. 2014 WL 12791262, at *2 (“The Court held a scheduling conference in this case on August 12, 2013. Thus, diligent discovery could have begun last summer.”) (emphasis added). In sum, Sugarman has not established good cause to issue additional discovery after the cutoff. His aggressive discovery tactics do not absolve his failure to complete discovery in the generous time allotted by Judge Guilford. This is Case 8:17-cv-00118-AG-DFM Document 547 Filed 03/05/19 Page 7 of 12 Page ID #:23302 - 7 - 1539254_1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 particularly true given that Plaintiff has prosecuted this action with no less zeal, having had issued 100 requests for production, 109 requests for admission and 40 interrogatories to defendants; issued 75 third-party subpoenas; and noticed and took 12 depositions. Oliver Decl., ¶7. The difference, however, is that Plaintiff was able to complete its discovery before the February 1, 2019 cutoff. Sugarman’s Motion should be denied in its entirety. III. CONCLUSION At some point, the service of discovery must come to an end, and under the Scheduling Order, that point was February 1, 2019. “A scheduling order ‘is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.’” Johnson, 975 F.2d at 610 (citation omitted). Disregarding it would “undermine the court’s ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier.” Id. For all the reasons set forth above, Sugarman’s Motion should be denied. DATED: March 5, 2019 Respectfully submitted, ROBBINS GELLER RUDMAN & DOWD LLP SPENCER A. BURKHOLZ LAURIE L. LARGENT ROBERT R. HENSSLER JR. MATTHEW I. ALPERT ERIKA OLIVER s/ ERIKA OLIVER ERIKA OLIVER 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) Lead Counsel for Plaintiff Case 8:17-cv-00118-AG-DFM Document 547 Filed 03/05/19 Page 8 of 12 Page ID #:23303 1539254_1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on March 5, 2019, I authorized the electronic filing of the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses on the attached Electronic Mail Notice List, and I hereby certify that I caused the mailing of the foregoing via the United States Postal Service to the non-CM/ECF participants indicated on the attached Manual Notice List. s/ ERIKA OLIVER ERIKA OLIVER ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Telephone: 619/231-1058 619/231-7423 (fax) E-mail: eoliver@rgrdlaw.com Case 8:17-cv-00118-AG-DFM Document 547 Filed 03/05/19 Page 9 of 12 Page ID #:23304 ! 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" #$%&'(%(&(% #)) *+,-./.0123145+,/145.-65.72,840+.67,9:;.25+,/1455.7,<,1=,,>?61/2.51<,4-.75+14<64,@0+.5+,7,-.7,7,AB17,?62B6/2.51<123CDE.B?68014+5.B4,8.B7?.B4,5.4,/,<562F<.G85+14/145125.8.B70.7FG7.<,44123G7.376?12.7F,75.<7,65,2.51<,4.7/6H,/4-.75+,4,7,<1G1,254DIJKLMNOMPQRSTUTRNVWXCase 8:17-cv-00118-AG-DFM Document 547 Filed 03/05/19 Page 12 of 12 Page ID #:23307