Case 3:22-cv-03074-CRB Document 26 Filed 08/12/22 Page 1 of 14
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`COTCHETT, PITRE & MCCARTHY, LLP
`Joseph W. Cotchett (SBN 36324)
`jcotchett@cpmlegal.com
`Mark C. Molumphy (SBN 168009)
`mmolumphy@cpmlegal.com
`Anne Marie Murphy (SBN 202540)
`ammurphy@cpmlegal.com
`Tyson C. Redenbarger (SBN 294424)
`tredenbarger@cpmlegal.com
`Julia Q. Peng (SBN 318396)
`jpeng@cpmlegal.com
`San Francisco Airport Office Center
`840 Malcolm Road, Suite 200
`Burlingame, California 94010
`Telephone: (650) 697-6000
`
`BOTTINI & BOTTINI, INC.
`Francis A. Bottini, Jr. (SBN: 175783)
`fbottini@bottinilaw.com
`Anne B. Beste (SBN 326881)
`abeste@bottinilaw.com
`Albert Y. Chang (SBN 296065)
`achang@bottinilaw.com
`Yury A. Kolesnikov (SBN 271173)
`ykolesnikov@bottinilaw.com
`Nicholas H. Woltering (SBN 337193)
`nwoltering@bottinilaw.com
`7817 Ivanhoe Avenue, Suite 102
`La Jolla, California 92037
`Telephone: (858) 914-2001
`
`Counsel for Plaintiff
`
`
`WILLIAM HERESNIAK, on behalf of
`himself and all others similarly situated,
`
`
`Plaintiff,
`
`
`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
`
`Case No.: 3:22-CV-03074-CRB
`
`PLAINTIFF’S NOTICE OF MOTION
`AND MOTION TO EXPEDITE AND
`COORDINATE DISCOVERY
`
`
`Date:
`Time:
`Crtrm:
`Judge:
`
`vs.
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`
`
`
`
`
`ELON R. MUSK, X HOLDINGS I, INC., X
`HOLDING II, INC., and TWITTER, INC.,
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`
`September 16, 2022
`10:00 a.m.
`6, 17th Floor
`Hon. Charles R. Breyer
`
`Defendants,
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`
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` Notice of Motion and Motion to Expedite and Coordinate Discovery
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`Case 3:22-cv-03074-CRB Document 26 Filed 08/12/22 Page 2 of 14
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`NOTICE OF MOTION AND MOTION
`TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
` PLEASE TAKE NOTICE that on September 16, 2022, at 10:00 a.m. or as soon thereafter
`as it may be heard, in the above-entitled court, located at 450 Golden Gate Avenue, San Francisco,
`CA 94102, Plaintiff will and does move this Court for an Order granting Plaintiff’s Motion to
`Expedite and Coordinate Discovery (“Motion”). Please also take notice that Plaintiff intends to
`request an expedited briefing schedule and hearing date for this Motion, subject to the Court’s
`approval.
` As set forth in the accompanying Memorandum of Points and Authorities, good cause
`exists for the relief requested. This Motion is based upon this Notice of Motion; the supporting
`Memorandum of Points and Authorities; the supporting declaration of Tyson Redenbarger filed
`herewith; all documents and pleadings on file in this action; and such other argument or evidence as
`may be presented in reply or at the hearing on this motion.
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`Case 3:22-cv-03074-CRB Document 26 Filed 08/12/22 Page 3 of 14
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`TABLE OF CONTENTS
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`Page
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`2.
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`NOTICE OF MOTION AND MOTION .......................................................................................... i
`MEMORANDUM OF POINTS AND AUTHORITIES ................................................................. 1
`I.
`INTRODUCTION.................................................................................................................. 1
`II.
`FACTUAL BACKGROUND ................................................................................................ 2
`III. ARGUMENT .......................................................................................................................... 6
`A.
`Expedited and Coordinated Discovery is Warranted in this Case ............................... 6
`1.
`Good Cause Exists to Compel Defendants to Produce the Discovery from the
`Delaware Action in an Expedited Manner ....................................................... 6
`Expedited Discovery is Appropriate As Plaintiff Anticipates Filing a Motion
`for Injunction or Declaratory Relief ................................................................ 8
`Defendants Should be Ordered to Promptly Confer on Discovery and to Submit a
`Discovery Plan ............................................................................................................. 9
`Alternatively, If the Court Does Not Order Coordination, Defendants Should be
`Ordered to Produce to Plaintiff all Documents and Deposition Transcripts from the
`Delaware Action ........................................................................................................ 10
`IV. CONCLUSION .................................................................................................................... 10
`
`B.
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`C.
`
`ii
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`Case 3:22-cv-03074-CRB Document 26 Filed 08/12/22 Page 4 of 14
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
`INTRODUCTION
`Plaintiff respectfully moves this Court pursuant to Federal Rule of Civil Procedure 26(d)(1)
`
`to compel Defendants to coordinate the discovery taking place in the related Delaware Action1
`where discovery has already been expedited, and to compel Defendants to promptly schedule a Rule
`26(f) conference. The Delaware Action seeks only specific performance, asking the court there to
`require Defendant Elon Musk (“Musk”) to honor his contract to buy Twitter for $54.20 per share, or
`approximately $44 billion (the “Merger” or “Buyout”). The present action concerns the same
`Buyout but seeks monetary damages and declaratory relief on behalf of Twitter’s stockholders.
`Those damages are significant as Twitter’s stock price has declined by over 25% (more than $8
`billion in market capitalization) due to the wrongful conduct alleged in Plaintiff’s complaint.
`
`The Merger has a closing Deadline of October 24, 2022, and the Delaware Action, though
`filed after this case on July 12, 2022, is set for Trial on October 17, 2022. Discovery in that action
`has already commenced, with all document production and depositions to be completed by
`September 12, 2022. Because the imminent discovery in the Delaware Action is directly relevant to
`this case, Plaintiff asked Defendants to coordinate discovery so that duplicative and potentially
`inconsistent discovery could be avoided. Defendants refused. Defendants also declined to schedule
`a Rule 26(f) conference despite Plaintiff’s requests. The Rule 26(f) report in this case, originally
`due August 22, 2022, is currently due September 16, 2022. Waiting until that time to begin
`discovery will likely result in duplicated efforts as fact discovery will be completed in the Delaware
`Action by September 12, 2022.
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`Given the quickly approaching deadlines that impact the Delaware Action, the Merger, and
`ultimately Plaintiff and the class, there is good cause to expedite and coordinate discovery in this
`case. If discovery is not coordinated now, many of the same people will have to be deposed twice,
`or Plaintiff will be forced to brief Defendants’ inevitable future arguments that the individuals
`
`1 “Delaware Action” refers to Twitter, Inc. v. Musk, et al., C.A. No. 2022-0613-KSJM, filed in
`Delaware Chancery Court.
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`Case 3:22-cv-03074-CRB Document 26 Filed 08/12/22 Page 5 of 14
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`should not have to be deposed twice, or that Plaintiff should be relegated to a copy of the transcript
`from the earlier depositions, or should not be able to ask similar questions, etc. It is far easier and
`more efficient for the parties to simply coordinate discovery now.
`
`The urgency for such discovery is self-evident given the nature of Plaintiff’s claims,
`including Plaintiff’s anticipated motions for declaratory and injunctive relief relating to the Merger.
`Additionally, producing the documents from the Delaware Action involves few burdens, as the
`documents are likely already gathered, reviewed, and presumably available in digital form (or will
`be in short order). Conversely, failing to coordinate discovery will create unnecessary duplication
`and will potentially prevent Plaintiff from seeking declaratory and injunctive relief before the
`Merger closes.
`
`Accordingly, Plaintiff respectfully requests that the Court order the Defendants to coordinate
`discovery in the Delaware Action with Plaintiff in this case, and to promptly participate in a Rule
`26(f) conference.
`II.
`FACTUAL BACKGROUND
`
`On April 4, 2022, Musk publicly disclosed his ownership of approximately 9.2% of
`Twitter’s common stock. However, Musk’s disclosure was 11 days late. Musk became a 5%
`stockholder on March 14, 2022, according to the SEC filings, but failed to file his Form 13G until
`April 4, 2022. FAC2 ¶63. Musk’s Schedule 13G also failed to disclose his intent to join the Twitter
`Board or that he was contemplating buying Twitter. FAC ¶62. Both disclosures would have caused
`Twitter’s stock to increase more than it did when his filing was made. Musk was later forced to file
`an amended 13D on April 5, 2022. Musk benefitted himself by approximately $156 million by
`failing to timely file the Form 13G. FAC ¶63.
`
`On April 25, 2022, Elon Musk entered into the Merger agreement to purchase Twitter for
`$54.20 per share, or $44 billion. Redenbarger Decl.,3 Ex. A,4 at ⁋3. Shortly thereafter, Musk began
`
`
`2 “FAC” refers to Plaintiff’s First Amended Complaint. Dkt. 7.
`3 “Redenbarger Decl.” refers to the Declaration of Tyson Redenbarger filed in support of this Motion.
`4 “Ex. __” refers to the Exhibits attached to the Redenbarger Decl.
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`Case 3:22-cv-03074-CRB Document 26 Filed 08/12/22 Page 6 of 14
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`denigrating Twitter in contravention of the “anti-disparagement” clause of the merger agreement,
`stating he needed more information about Twitter’s user base and suggesting that Twitter’s
`estimates of “bot” accounts on its platform were inaccurate. However, Musk was well aware that
`there were bots on Twitter, having publicly stated before the Merger that he would fix the bot
`problem once he owned Twitter:
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`See FAC ¶76.
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`Moreover, Musk had specifically waived due diligence, and thus his protestations about
`needing more information about the bots were bogus. FAC ¶¶4,14.5 Indeed, commentators have
`widely noted that it was the falling share prices of Twitter and Tesla, Inc. that motivated Musk to
`back out of the deal, and it is undisputed that Musk had to cancel a $12.5 billion loan collateralized
`by Tesla stock which was to finance part of the purchase price after Tesla stock plummeted by 37%.
`Id. at FAC ⁋⁋5-8, 90-104, 137.
`
`Musk continued to make disparaging statements about Twitter, and on May 13, 2022, issued
`a statement indicating “Twitter deal temporarily on hold,” a statement Twitter disputed but which
`nonetheless caused Twitter’s stock price to decline. FAC ¶13. Then, approximately two months
`later, on July 8, 2022, Musk notified Twitter that he was “terminating” the Merger. All told,
`Musk’s wrongful conduct caused Twitter’s stock price to decline by more than 25%, or over $8
`billion in market capitalization. Ex. A, at ⁋9. Twitter then sued Musk in the Delaware Court of
`Chancery on July 12, 2022, alleging breach of contract and seeking specific performance. Id. at
`
`5 Musk negotiated the Buyout over the weekend of April 23-24, 2022, without carrying out any due
`diligence. FAC ¶3.
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`Case 3:22-cv-03074-CRB Document 26 Filed 08/12/22 Page 7 of 14
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`⁋⁋148-155.
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`On May 25, 2022, six weeks before Twitter filed its case, Plaintiff filed suit here. See Dkt.
`1. On May 26, 2022, the Court issued an order scheduling the initial case management conference
`and setting August 8, 2022, as the deadline to meet and confer regarding Rule 26(f) initial
`disclosures. See Dkt. 5. On July 1, 2022, Plaintiff filed his First Amended Complaint. Dkt. 7.
`
`Plaintiff seeks monetary damages in addition to declaratory and injunctive relief and alleges
`that two specific Twitter directors share the blame for the substantial harm to Twitter and its
`shareholders. Those two Twitter directors – Egon Durban and Jack Dorsey – were loyal to Musk
`and catered to his desires. Durban is a principal at Silverlake, which invested $100 million in
`Musk’s SolarCity company. FAC ¶¶37-39. Dorsey is good friends with Musk—in 2020, Musk
`came to Dorsey’s defense after Elliot Management attempted to knock Dorsey out of his position as
`CEO of Twitter. FAC ¶41.
`
`Plaintiff alleges that Dorsey and Durban, eager to please Musk, failed to engage in adequate
`due diligence regarding Musk’s sources of equity financing. FAC ¶105. Dorsey and Durban also
`breached their fiduciary duties by failing to engage in a market check, failing to shop the Company
`to other potential suitors, and providing Musk with a no-shop agreement. FAC ¶107. The Merger
`Proxy admits that “The Twitter Board determined not to contact other parties” before agreeing to
`accept Musk’s first and only offer. FAC ⁋107. A mere ten days elapsed between the time Musk’s
`offer was publicly announced on April 14, 2022, and when the Twitter Board accepted his offer on
`April 24, 2022. Id. At Twitter’s recent Annual Meeting on May 25, 2022, Twitter’s stockholders
`voted Durban off the Board, but the Board refused to remove him. FAC ¶¶136-38.
`
`On July 19, 2022, Delaware Chancery Court Judge Kathaleen St. J. McCormick granted
`Twitter’s motion to expedite the proceedings, and set the Delaware Action for trial, starting on
`October 17, 2022. Ex. C, at 4. Discovery began immediately as Defendants’ deadline to serve
`discovery requests in the Delaware Action was July 29, 2022. Id. at 1. In addition to party
`discovery, Twitter sent dozens of third-party subpoenas, including subpoenas to Musk’s “circle of
`Silicon Valley investors, friends and financial backers” who were familiar with the Merger. See
`Wall Street Journal, “What Twitter’s Subpoenas to Elon Musk’s Inner Circle Could Yield.” Ex. D.
`4
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`Case 3:22-cv-03074-CRB Document 26 Filed 08/12/22 Page 8 of 14
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`On July 19, Plaintiff’s Counsel contacted counsel for Musk and X Holdings I & II and
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`requested that the parties conduct a Rule 26(f) conference. Redenbarger Decl. at ⁋6. On July 22,
`2022, Plaintiff’s Counsel asked counsel for Twitter when they were available to hold a Rule 26(f)
`conference. Id. The Defendants did not provide any dates. Id. The parties then held telephone
`calls with all counsel on July 27, 2022, and August 2, 2022. Id. at ⁋7. During both calls, Plaintiff’s
`Counsel requested that discovery proceed and be coordinated with the Delaware Action. Id.
`Plaintiff also requested during both calls that the parties conduct a Rule 26(f) conference. Id.
`Defendants again refused to schedule the conference. Id. Additionally, Plaintiff explained that his
`claims needed to be resolved timely and that a motion for declaratory relief would need to be filed
`promptly. Plaintiff again reiterated why coordination of discovery with the Delaware Action would
`save the parties time and effort. Id. On August 3, 2022, Plaintiff’s counsel emailed Defense
`counsel once again requesting that discovery proceed and be coordinated with the Delaware Action
`and that the parties conduct a Rule 26(f) conference promptly. Id. at ⁋8, Ex. E. On August 5, 2022,
`Defendants declined the offer to coordinate discovery and declined to schedule a Rule 26(f)
`conference. Id. at ⁋9. On August 11, 2022, counsel spoke again to discuss the relief sought in this
`Motion and discussed a potential expedited briefing schedule in an attempt to stipulate to such a
`briefing schedule, though no agreements were reached. Id. at ⁋10. These meet and confer
`discussions were conducted to “resolve a disclosure or discovery dispute pursuant to Fed. R. Civ. P.
`37.” See N.D. Cal. Local Rule 37-1. However, as explained herein, those discussions did not
`resolve the dispute. Id. at ⁋11.
`
`In the meantime, on July 28, 2022, Chancery Court Judge Kathaleen St. J. McCormick,
`entered an order establishing the expedited schedule in the Delaware Action, which included the
`following relevant deadlines: by August 4, 2022, each side shall produce readily available
`information; by August 29, 2022, the parties shall substantially complete document production; and
`by September 12, 2022, parties must complete fact discovery, including depositions. See Ex. C.
`
`On September 13, 2022, Twitter will hold a special meeting for shareholders to vote on the
`Merger, but shareholders have already been encouraged to start casting their votes. See Ex. B. The
`Merger is scheduled to close on October 24, 2022. Ex A at ⁋53.
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`Case 3:22-cv-03074-CRB Document 26 Filed 08/12/22 Page 9 of 14
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`III. ARGUMENT
`A.
`Expedited and Coordinated Discovery is Warranted in this Case
`District Courts are empowered to order expedited discovery prior to the Rule 26(f) discovery
`
`planning conference. Fed. R. Civ. P. 26(d)(1). Courts in the Ninth Circuit generally use the “good
`cause” standard to determine whether to permit discovery prior to a Rule 26(f) conference.
`Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause
`may be found where the need for expedited discovery, in consideration of the administration of
`justice, outweighs the prejudice to the responding party.” Id. at 276. In determining whether good
`cause justifies expedited discovery, courts commonly consider factors including: “(1) whether a
`preliminary injunction is pending; (2) the breadth of the discovery requests; (3) the purpose for
`requesting the expedited discovery; (4) the burden on the defendants to comply with the requests;
`and (5) how far in advance of the typical discovery process the request was made.” American
`LegalNet, Inc. v. Davis, 673 F.Supp.2d 1063, 1067 (C.D. Cal. 2009); see also Apple Inc. v. Samsung
`Electronics Co., Ltd., 768 F.Supp.2d 1040, 1044 (N.D. Cal. 2011).
`
`1.
`
`Good Cause Exists to Compel Defendants to Produce the Discovery from
`the Delaware Action in an Expedited Manner
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`The expedition of this case is essential so that Twitter shareholders can obtain discovery in
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`aid of their anticipated motions for declaratory and injunctive relief. The discovery will also be
`relevant to Plaintiff’s claim for monetary damages after the resolution of the motion for
`declaratory/injunctive relief. Twitter’s stockholders face continuing market risk and operational
`harm from Musk’s public denigration of Twitter and wrongful attempt to back out of the Buyout,
`which has a closing date of October 24, 2022. Immediate discovery on these issues is warranted as
`the Merger deadlines directly impact Plaintiff’s claims, i.e., if Plaintiff moves for injunctive or
`declaratory relief after the Merger has closed, those claims could be moot. See Payment Logistics
`Ltd. v. Lighthouse Network, LLC, No. 18-CV-0786-L-AGS, 2018 WL 3869956, at *3 (S.D. Cal.
`Aug. 14, 2018) (permitting expedited discovery in relation to a merger, noting “due diligence
`inquiries are vital to merger and acquisition transactions, and it can be presumed that some
`information gathered for this purpose is responsive and readily available.”); United States v. BNS
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`Inc., 858 F.2d 456, 461-66 (9th Cir. 1988) (The public interest “could be harmed irreparably by
`permitting a merger to become a fait accompli ... [because] the unwinding of a completed merger
`would present mammoth obstacles.”); Fed. Trade Comm’n v. Staples, Inc., 970 F. Supp. 1066,
`1091 (D.C. Cir. 1997) (“‘Unscrambling the eggs’ after the fact is not a realistic option in [some]
`case[s].”)
`
`Good cause is also present as Plaintiff’s requested discovery is not overly broad, nor is there
`any burden on the Defendants. See Ex. G. Plaintiff presently seeks coordination with the discovery
`already being conducted in the Delaware Action, which (presumably) can easily take place, as the
`documents are likely already being collected, reviewed, and will be produced shortly. Regarding
`depositions, “it is best to coordinate discovery plans to avoid conflicts and duplication. If the cases
`are pending before different judges, the judges should attempt to coordinate the depositions of
`common witnesses and other common discovery. Examination regarding subjects of interest only
`to a particular case may be deferred until the conclusion of direct and cross-examination on matters
`of common interest.” MANUAL FOR COMPLEX LITIG. (4th) §11.455, at p. 89. Plaintiff has requested
`that he be permitted to participate in order to avoid the need to take the same deposition twice,
`including depositions of third parties. Accordingly, the benefits of coordinating discovery in these
`cases are clear and the burdens are low.
`
`Courts commonly require the early production of documents already exchanged in parallel
`matters because the burdens associated are so low. See Apple Inc. v. Samsung Elecs. Co., No. 11-
`CV-01846-LHK, 2011 WL 1938154, at *2-3 (N.D. Cal. May 18, 2011) (ordering production of
`expedited discovery two-and-a-half months before discovery would ordinarily begin, including the
`production of discovery that had already disseminated); In re High-Tech Emp. Antitrust Litig., 856
`F. Supp. 2d 1103, 1113 (N.D. Cal. 2012) (court ordered early production of responsive, non-
`privileged documents already produced to the Department of Justice); In re Lithium Ion Batteries
`Antitrust Litig., No. 13-MD-02420 YGR, 2013 WL 2237887, at *1 (N.D. Cal. May 21, 2013) (court
`ordered production of documents that had already been produced to the Department of Justice or
`any Grand Jury before the plaintiffs’ deadline to file the consolidated complaint); see also MANUAL
`FOR COMPLEX LITIG. (4th) (Excerpt), Multidistrict Lit Man Appendix E (coordinating discovery is
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`common and serves to “minimize duplicative discovery activity”.)
`
`Finally, without an expedited schedule, the necessary discovery on a typical schedule would
`occur too late. Presently, Defendants are taking the position that the Rule 26(f) conference should
`be held on or before September 9, but have refused to schedule a date. Redenbarger Decl. at ⁋9. If
`the parties wait until September 9, 2022, to commence discovery, there is simply not enough time to
`serve document requests, conduct depositions, and file motions (including a motion for summary
`judgment on the declaratory relief cause of action) in the few weeks left before the Merger is
`scheduled to close in October. Such a delay is prejudicial to Plaintiff.
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`2.
`
`Expedited Discovery is Appropriate As Plaintiff Anticipates Filing a
`Motion for Injunction or Declaratory Relief
`
`“[C]ourts have found that expedited discovery may be justified to allow a plaintiff to
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`determine whether to seek an early injunction.” Apple Inc. v. Samsung Elecs. Co., supra, 2011 WL
`1938154, at *2; see also Interserve, Inc. v. Fusion Garage PTE, Ltd., No. C 09-05812 JW (PVT),
`2010 WL 143665, at *2 (N.D. Cal. Jan. 7, 2010) (“[e]xpedited discovery will allow plaintiff to
`determine whether to seek an early injunction.”) In matters concerning mergers, “a plaintiff’s fate
`often rests on the outcome of a motion for preliminary injunction.” See Payment Logistics, supra,
`2018 WL 3869956 at *3; Fed. Trade Comm’n, supra, 970 F. Supp. at 1091.
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`Moreover, Delaware courts routinely find that expedition is appropriate in cases involving
`mergers and an anticipated motion for injunctive relief. See Cnty. of York Emps. Ret. Plan v.
`Merrill Lynch & Co., No. CIV.A. 4066-VCN, 2008 WL 4824053, at *8 (Del. Ch. Oct. 28, 2008)
`(expedited discovery granted in merger case involving anticipated preliminary injunction); In re
`H.F. Ahmanson & Co. v. Great W. Fin. Corp., No. CIV. A. 15650, 1997 WL 225696 (Del. Ch. Apr.
`25, 1997) (expedited discovery permitted to explore scope of injunctive relief); Raymond
`Revocable Tr. v. MAT Five LLC, No. CIV.A. 3843-VCL, 2008 WL 2673341 (Del. Ch. June 26,
`2008) (expedited discovery granted for preliminary injunction.)
`
`Here, imminent and critical events justify expedited discovery – shareholders are already
`voting on the Merger, and on October 24, 2022, the deal is scheduled to close. Expedited discovery
`is necessary to support Plaintiff’s anticipated motion for preliminary injunction or motion for
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`summary judgment on his declaratory relief cause of action before the Merger closes. These
`motions are important to Twitter’s shareholders since the Delaware Action does not assert any
`claims on behalf of Twitter’s shareholders (instead only seeking specific performance) and because
`the Delaware Action may not achieve the relief sought, or it may result in a negotiated resolution
`that creates substantial damages to Twitter’s shareholders. If so, shareholders will have suffered
`damages but will not be able to pursue them in Delaware, where they are not parties. Declaratory
`relief in this case, which must be filed as a motion for summary judgment supported by evidence,6
`would serve to define shareholders’ legal rights, including whether Musk improperly terminated the
`Merger, whether Musk aided, and abetted breaches committed by Twitter’s directors, and whether
`shareholders are entitled to damages. Such a determination will aid the parties regardless of the
`ultimate outcome of the Delaware Action.
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`B.
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`Defendants Should be Ordered to Promptly Confer on Discovery and to Submit
`a Discovery Plan
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`By its plain meaning, Rule 26(f) requires the parties to start formal discovery planning “as
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`soon as practicable” and “in any event at least 21 days before a scheduling conference is to be held”
`pursuant to Rule 16. See Fed. R. Civ. P. 26(f)(1). Absent Court order or agreement of the parties,
`discovery cannot commence until the parties first hold a formal Rule 26(f) discovery planning
`conference. See Fed. R. Civ. P. 26(d). When this case was first filed, the scheduling conference
`was set for August 29, 2022, and the parties had a deadline of August 8, 2022, to discuss a
`discovery plan and August 22, 2022 to submit a Rule 26(f) report. Dkt 5. The Defendants’ filing of
`a declination form delayed those dates. See Dkt. 21.
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`Here, the Defendants’ continued refusal to confer functions as a discovery stay during a
`critical period in this case. Like the Delaware Action, this case should be operating on an expedited
`basis. Shareholders are already voting on the Merger and the Merger is set to close in October –
`waiting to commence discovery until September 9, 2022, is not practical. Moreover, as explained
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`6 See Kam-Ko Bio-Pharm Trading Co. Ltd-Australasia v. Mayne Pharma (USA) Inc., 560 F.3d 935,
`943 (9th Cir. 2009).
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` Notice of Motion and Motion to Expedite and Coordinate Discovery
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`Case 3:22-cv-03074-CRB Document 26 Filed 08/12/22 Page 13 of 14
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`above, proceeding with discovery in this case is not burdensome, as Defendants are already
`conducting similar discovery in the Delaware Action. Accordingly, Plaintiffs respectfully request
`an expedited Order compelling Defendant to participate in a Rule 26(f) discovery planning
`conference on or before August 30, 2022, and setting September 2, 2022, as the deadline to submit a
`Joint Discovery Plan.
`C.
`Alternatively, If the Court Does Not Order Coordination, Defendants Should be
`Ordered to Produce to Plaintiff all Documents and Deposition Transcripts from
`the Delaware Action
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`Alternatively, if the Court does not order expedition or coordination at this point, Plaintiff
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`requests that Defendants be ordered to provide Plaintiff with all documents and deposition
`transcripts from the Delaware Action. Given the overlapping factual issues in the cases, the
`production of such discovery will help avoid duplication and expedite the discovery process. See
`MANUAL FOR COMPLEX LITIG. (4th) §11.455, at p. 89 (noting that “It may also be economical for the
`judges to afford parties in the present litigation access to depositions previously taken in other
`litigation (see section 11.423)—the judges can deem depositions of opposing parties and their
`employees admissible against parties involved in related litigation under Federal Rule of Evidence
`801(d)(2). Depositions of other witnesses may be usable for impeachment under Federal Rule of
`Evidence 801(d)(1)(A). In other situations, such as those involving nonparties or a party’s own
`witnesses, a new deposition may be necessary, but (with advance notice) the answers given at the
`earlier deposition may be adopted as the current testimony of the witness, subject to
`supplementation.”).
`IV. CONCLUSION
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`Plaintiff respectfully requests an order compelling Defendants to coordinate the discovery
`taking place in the related Delaware Action. Alternatively, or at a minimum (and in light of the fact
`that depositions are scheduled to conclude by September 12, 2022, in the Delaware Action),
`Plaintiff requests that the Court order Defendants to promptly produce to Plaintiff all documents
`and deposition transcripts from the Delaware Action. Plaintiff further requests the Court order
`Defendants to participate in a Rule 26(f) discovery planning conference on or before August 30,
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`Case 3:22-cv-03074-CRB Document 26 Filed 08/12/22 Page 14 of 14
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`2022, and set September 2, 2022, as the deadline to submit a Joint Discovery Plan.
`Dated: August 12, 2022
`Respectfully submitted,
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`COTCHETT, PITRE & MCCARTHY, LLP
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`/s/ Tyson C. Redenbarger
`
`Tyson C. Redenbarger
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`Joseph W. Cotchett (SBN 36324)
`Mark C. Molumphy (SBN 168009)
`Anne Marie Murphy (SBN 202540)
`Tyson C. Redenbarger (SBN 294424)
`Julia Q. Peng (SBN 318396)
`San Francisco Airport Office Center
`840 Malcolm Road, Suite 200
`Burlingame, California 94010
`Telephone:
`(650) 697-6000
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`BOTTINI & BOTTINI, INC.
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`/s/ Francis A. Bottini
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`Francis A. Bottini, Jr.
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`Francis A. Bottini, Jr. (SBN 175783)
`Anne B. Beste (SBN 326881)
`Albert Y. Chang (SBN 296065)
`Yury A. Kolesnikov (SBN 271173)
`Nicholas H. Woltering (SBN 337193)
`7817 Ivanhoe Avenue, Suite 102
`La Jolla, California 92037
`Telephone:
`(858) 914-2001
`Facsimile:
`(858) 914-2002
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`Counsel for Plaintiff
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