Ferris et al v. Wynn Resorts Limited et al, No. 2:2018cv00479 - Document 363 (D. Nev. 2024)
Court Description: ORDER Granting 362 Motion to Extend Time. Signed by Magistrate Judge Brenda Weksler on 3/26/2024. (Copies have been distributed pursuant to the NEF - RJDG)
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Ferris et al v. Wynn Resorts Limited et al Doc. 363 Case 2:18-cv-00479-APG-BNW Document 362 Filed 03/25/24 Page 1 of 8 1 2 3 4 5 ANDREW R. MUEHLBAUER, ESQ. Nevada Bar No. 10161 MUEHLBAUER LAW OFFICE, LTD. 7915 West Sahara Avenue, Suite 104 Las Vegas, Nevada 89117 Telephone: 702.330.4505 Facsimile: 702.825.0141 Email: andrew@mlolegal.com 12 POMERANTZ LLP Jeremy A. Lieberman (pro hac vice) Murielle J. Steven Walsh (pro hac vice) Emily C. Finestone (pro hac vice) Elina Rakhlin (pro hac vice) 600 Third Avenue, 20th Floor New York, New York 10016 Tel: (212) 661-1100 Fax: (917) 463-1044 Email: jalieberman@pomlaw.com mjsteven@pomlaw.com efinestone@pomlaw.com erakhlin@pomlaw.com 13 Attorneys for Class Representatives John V. and JoAnn M. Ferris 6 7 8 9 10 11 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 14 15 16 17 JOHN V. FERRIS and JOANN M. FERRIS, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, 18 v. 19 20 WYNN RESORTS LIMITED, et al., Case No. 2:18-CV-00479-APG-BNW CLASS REPRESENTATIVES’ MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT [FIRST REQUEST] Defendants. 21 22 23 24 25 26 27 28 {00599473;7 } MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES Dockets.Justia.com Case 2:18-cv-00479-APG-BNW Document 362 Filed 03/25/24 Page 2 of 8 1 Pursuant to LR IA 6-1 and LR 26-3 Class Representatives John V. Ferris, JoAnn M. Ferris, 2 and Jeffrey Larsen (“Plaintiffs”), by and through their attorneys of record, hereby respectfully 3 request that the Court: (a) extend the fact discovery deadline set forth in the Stipulated Discovery 4 Plan and Scheduling Order Pursuant to the Court’s April 6, 2023 Motion Hearing Order (ECF No. 5 302) (the “Scheduling Order”) to the later of (1) ninety (90) days after the Court’s ruling on 6 Plaintiffs’ Motion to Compel (ECF No. 327) (the “Motion to Compel”) and Defendants Wynn 7 Resorts Limited (“Wynn” or the “Company”) and Matthew Maddox’s (collectively, “Defendants”) 8 Motion for a Protective Order (ECF No. 329) (the “Motion for Protective Order”) (collectively, 9 the “Pending Motions”), or (2) ninety (90) days after the current fact discovery deadline, May 31, 10 2024; and (b) permit the parties to submit a proposed revised Scheduling Order within ten (10) 11 days of its ruling on the Pending Motions. This is the first request for an extension of the 12 Scheduling Order, this request is being made more than 21 days before the expiration of the 13 discovery deadlines that Plaintiffs seek to modify, and for the reasons set forth below, there is good 14 cause for the requested extension. INTRODUCTION 15 16 Plaintiffs’ requested extension is warranted because the discovery deadlines have been 17 impacted by the two Pending Motions: Plaintiffs’ Motion to Compel and Defendants’ related 18 Motion for Protective Order. 19 The Motion to Compel asks the Court to compel Defendants to apply Plaintiffs’ requested 20 search terms, produce pre-Class Period and post-Class Period discovery, produce documents from 21 twenty-six (26) additional custodians, 1 and produce documents responsive to certain disputed 22 requests for production. ECF No. 327 at 22.2 Defendants’ Motion for Protective Order asks the 23 1 24 25 26 27 28 Defendants originally only agreed to produce documents for seven (7) custodians. ECF No. 327 at 3. After Plaintiffs moved to compel, Defendants agreed to search the custodial files of twelve (12) additional custodians. ECF No. 328 at 20. Fourteen (14) custodians still remain in dispute. 2 Plaintiffs also opposed Defendants’ motion for partial summary judgment related to the February 12, 2018 corrective disclosures on the grounds that Defendants refused to produce documents from after February 12, 2018 and such documents are necessary to defend against the motion. ECF No. 335 at 22-28. {00599473;7 } 1 MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES Case 2:18-cv-00479-APG-BNW Document 362 Filed 03/25/24 Page 3 of 8 1 Court to deny the relief that Plaintiffs sought in the Motion to Compel, require Plaintiffs to 2 negotiate a fact stipulation, and permit Defendants to hide the identities of Mr. Wynn’s accusers 3 from Plaintiffs. ECF. No. 329 at 14-21. 4 The Court’s ruling on the Pending Motions could require Defendants to search for and 5 produce documents for over a dozen additional custodians, applying broader search terms, and for 6 a broader time period than the circumscribed period roughly mirroring the Class Period that 7 Defendants searched. Although Plaintiffs have diligently served notices of depositions while the 8 motions have been pending, multiple deponents have indicated their unavailability on the noticed 9 dates. See Declaration of Murielle J. Steven Walsh (“MJSW Decl.”), ¶ 18. Further, proceeding 10 with depositions before the Court rules on the Pending Motions would be inefficient because if 11 Defendants are ordered to produce these substantial additional documents, it could result in 12 Plaintiffs having to reexamine witnesses already deposed based on the new information and 13 documents available. Accordingly, good cause exists for the requested extension. DISCOVERY COMPLETED TO DATE 14 15 The Court bifurcated discovery into two phases: Phase One, involving class certification 16 issues, and Phase Two, involving merits and damages issues. ECF No. 184. The parties completed 17 Phase One discovery and the Court certified the Class on March 1, 2023. ECF No. 283. 18 Since then, the parties have been engaged in Phase Two discovery. Defendants served 19 amended responses to Plaintiffs’ first request for the production of documents, and the parties met 20 and conferred on several occasions regarding their responses, as well as the appropriate scope of 21 discovery. MJSW Decl. ¶¶4-5. Ultimately, Defendants produced a total of 3,896 documents. 22 Plaintiffs served document subpoenas on the Nevada Gaming Control Board (“NGCB”), 23 the Massachusetts Gaming Commission (“MGC”); Elaine Wynn; Joele Frank, Wilkinson Brimmer 24 Katcher (“Joele Frank”); and Kevin Tourek. MJSW Decl. ¶¶7-8, 10, 12, 14. The MGC and NGCB 25 collectively produced 357 documents. MJSW Decl. ¶9. Ms. Wynn objected and refused to 26 produce any documents. MJSW Decl. ¶¶11. Joele Frank served objections to the document 27 subpoena and has not produced any documents to date. MJSW Decl. ¶13. Mr. Tourek responded 28 {00599473;7 } 2 MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES Case 2:18-cv-00479-APG-BNW Document 362 Filed 03/25/24 Page 4 of 8 1 that he did not have any responsive materials in his possession, custody, or control. MJSW Decl. 2 ¶15. 3 Plaintiffs also served deposition subpoenas on Joele Frank and Kevin Tourek, but the 4 depositions have not yet been scheduled. MJSW Decl. ¶¶12, 14, 16. In addition, Plaintiffs served 5 notices of deposition on Michael Weaver and Defendants Matthew Maddox, Stephen Wynn, 6 Stephen Cootey, and Kimmarie Sinatra with tentative deposition dates, but counsel for Mr. Wynn, 7 Mr. Maddox, Mr. Weaver, Ms. Sinatra, and Mr. Cootey have indicated they are not available on 8 the noticed dates. 3 MJSW Decl. ¶18. Plaintiffs also notified Defendants that they anticipate 9 needing to take more than ten depositions, but Defendants were not willing to stipulate to Plaintiffs 10 taking additional depositions beyond the ten allotted to Plaintiffs until they have (1) taken 10 11 depositions, and (2) made a particularized showing of need for additional depositions. MJSW 12 Decl. ¶¶19-20. 13 In addition, Defendants produced a privilege log on January 31, 2024, a supplemental 14 privilege log on February 7, 2024, and a second supplemental privilege log on March 5, 2024 that 15 contains over 2,470 entries. MJSW Decl. ¶21. Plaintiffs wrote Defendants regarding certain 16 deficiencies with Defendants’ privilege log, and the parties met and conferred regarding the issues. 17 MJSW Decl. ¶¶22-23. REMAINING DISCOVERY TO BE COMPLETED 18 Insofar as the Court rules in Plaintiffs’ favor on the Pending Motions, Defendants will be 19 20 required to make additional document productions. 21 endeavoring to resolve the issues with Defendants’ privilege log without Court intervention, they 22 appear to be at an impasse on certain issues, and Plaintiffs anticipate filing a motion to compel the 23 production of documents improperly withheld as privileged. 4 Plaintiffs also intend to serve 24 additional deposition subpoenas and deposition notices – which may require Court approval 25 3 26 27 28 In addition, while the parties are still They did not propose any alternative dates when notifying Plaintiffs of their unavailability. MJSW Decl. ¶20. 4 Plaintiffs will likely need to seek another extension to allow for the adjudication of the parties’ privilege log disputes, given the substantial number of entries at issue. {00599473;7 } 3 MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES Case 2:18-cv-00479-APG-BNW Document 362 Filed 03/25/24 Page 5 of 8 1 insofar as Defendants refuse to stipulate to Plaintiffs exceeding the ten depositions allotted under 2 the federal rules – and intend to depose the witnesses already subpoenaed or served with deposition 3 notices. In addition, the parties may conduct other discovery permitted under Federal Rules of Civil 4 5 Procedure 26, 30, 33, 34, and 36. REASON FOR EXTENSION 6 7 A request for an extension “must . . . be supported by a showing of good cause for the 8 extension.” LR 26-3. “Good cause to extend a discovery deadline exists ‘if it cannot reasonably 9 be met despite the diligence of the party seeking the extension.’” Victor v. Walmart, Inc., 2021 10 WL 3745190, at *2 (D. Nev. Apr. 8, 2021) (quoting Johnson v. Mammoth Recreations, Inc., 975 11 F.2d 604, 609 (9th Cir. 1992)). 12 Here, as explained above, the extension is necessary to allow the parties sufficient time to 13 complete fact discovery following the Court’s ruling on the Pending Motions. Plaintiffs diligently 14 raised the issue of Defendants’ insufficient document production with the Court on November 23, 15 2023. 16 parallel with their Motion for Protective Order. ECF No. 329 at 4. The Pending Motions were 17 fully briefed as of January 5, 2024, and the Court held a hearing on February 12, 2024. ECF Nos. 18 354, 359. The Court has not yet ruled on the Pending Motions. ECF No. 327. Defendants then asked the Court to consider the Motion to Compel in 19 Based on Defendants’ own representations, a ruling in Plaintiffs’ favor could require them 20 to review over 870,000 additional documents. ECF No. 329 at 3. Defendants will presumably 21 need additional time to conduct their pre-production privilege and relevance review, and Plaintiffs 22 will need additional time to review any forthcoming productions and prepare for depositions. 23 Regardless of how the Court rules, depositions have been delayed during the pendency of the 24 motions. Plaintiffs served deposition notices, designating deposition dates in April and May. 25 Counsel for Defendants and for Mr. Weaver have indicated that they are unavailable on those dates 26 but have not proposed any alternative dates. 27 unwillingness to stipulate to additional depositions until Plaintiff has exhausted their ten (10) 28 {00599473;7 } Counsel for Defendants also expressed an 4 MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES Case 2:18-cv-00479-APG-BNW Document 362 Filed 03/25/24 Page 6 of 8 1 allotted depositions and shown a particularized need for additional depositions. Thus, the parties 2 will likely need additional time to meet and confer about this dispute. Further, the parties will 3 likely need additional time to resolve their disputes regarding Defendants’ privilege log. 4 Accordingly, despite Plaintiffs’ diligence in pursuing discovery, the current fact discovery 5 deadline cannot reasonably be met. PROPOSED REVISED DEADLINES 6 7 Plaintiffs propose that the fact discovery deadline set forth in the Scheduling Order be 8 extended from May 31, 2024 until the later of (1) ninety (90) days after the Court’s ruling on the 9 Pending Motions, or (2) ninety (90) days after the current fact discovery deadline, May 31, 2024. 10 In addition, Plaintiffs propose that the Court allow the parties to submit a proposed revised 11 Scheduling Order, resetting the remaining deadlines in the Scheduling Order, within ten (10) days 12 of its ruling on the Pending Motions. DEFENDANTS’ POSITION ON THE REQUESTED EXTENSION 13 14 On March 20, 2024, counsel for Plaintiffs emailed counsel for the Company, Mr. Maddox, 15 Mr. Wynn, Mr. Cootey, and Ms. Sinatra to ask their position on Plaintiffs’ requested extension. 16 MJSW Decl. ¶24. Plaintiffs requested a response by close of business on March 21, 2024. MJSW 17 Decl. ¶24. On March 21, 2024, counsel for Plaintiffs emailed counsel for the Company, Mr. 18 Maddox, Mr. Wynn, Mr. Cootey, and Ms. Sinatra to correct an omission in the original extension 19 proposal circulated. MJSW Decl. ¶25. Counsel for Mr. Cootey and counsel for Ms. Sinatra did 20 not respond on March 21, 2024, nor have they responded as of the time of filing this Motion. 21 MJSW Decl. ¶26. Counsel for Mr. Wynn responded that Mr. Wynn does not oppose the proposed 22 extension. MJSW Decl. ¶27. Counsel for the Company and Mr. Maddox responded on March 23 21, 2024, asking the basis for the Motion. MJSW Decl. ¶28. Counsel for Plaintiffs explained that 24 Plaintiffs are seeking an extension because Defendants have represented that they may have to 25 review over 800,000 documents if the Court grants the pending motion to compel, and in order to 26 avoid deposing the same witness multiple times, Plaintiffs cannot proceed with depositions until 27 document production is substantially complete. MJSW Decl. ¶29. On March 25, 2024, Counsel 28 {00599473;7 } 5 MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES Case 2:18-cv-00479-APG-BNW Document 362 Filed 03/25/24 Page 7 of 8 1 for the Company and Mr. Maddox responded that they “will agree to extend the fact deposition 2 deadline until August 31, in case the Court grants Plaintiffs’ pending motion to compel,” but “by 3 agreeing to extend the deadline, [they] are not in any way agreeing that Plaintiffs taking more than 4 10 depositions is appropriate.” MJSW Decl. ¶30. CONCLUSION 5 6 7 8 For the foregoing reasons, good cause exists for the requested extension, and Plaintiffs respectfully request that the Court grant the Motion. Dated: March 25, 2024 9 10 11 12 13 IT IS SO ORDERED 14 DATED: 10:58 am, March 26, 2024 15 16 17 18 19 POMERANTZ LLP By /s/ Murielle J. Steven Walsh Jeremy A. Lieberman (pro hac vice) Murielle J. Steven Walsh (pro hac vice) Emily C. Finestone (pro hac vice) Elina Rakhlin (pro hac vice) 600 Third Avenue, 20th Floor New York, New York 10016 Telephone: 212-661-1100 Facsimile: 917-463-1044 Email: jalieberman@pomlaw.com mjsteven@pomlaw.com efinestone@pomlaw.com erakhlin@pomlaw.com MUEHLBAUER LAW OFFICE, LTD. BRENDA WEKSLER Andrew R. Muehlbauer (Nevada Bar #10161) UNITED STATES MAGISTRATE JUDGE 7915 West Sahara Avenue, Suite 104 Las Vegas, Nevada 89117 Telephone: 702.330.4505 Facsimile: 702.825.0141 Email: andrew@mlolegal.com 20 Lead Counsel for Class Representatives 21 25 THE ROSEN LAW FIRM, P.A. Phillip Kim (pro hac vice) Daniel Tyre-Karp (pro hac vice) 275 Madison Ave., 40th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 Email: pkim@rosenlegal.com dtyrekarp@rosenlegal.com 26 Additional Counsel 22 23 24 27 28 {00599473;7 } 6 MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES Case 2:18-cv-00479-APG-BNW Document 362 Filed 03/25/24 Page 8 of 8 1 CERTIFICATE OF SERVICE 2 I hereby certify that on March 25, 2024, a copy of the foregoing was filed electronically 3 and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent 4 by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone 5 unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access 6 this filing through the Court’s CM/ECF System. 7 /s/ Murielle J. Steven Walsh Murielle J. Steven Walsh 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {00599473;7 } 7 MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES
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