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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Alyssa Jones,

Plaintiff,

v. 

Riot Hospitality Group LLC, et al.,

Defendants.

No. CV-17-04612-PHX-GMS

ORDER 

The following motions are pending before the Court: (1) Plaintiff Alyssa Jones’ 

Motion to Stay this Court’s March 4, 2020 Order Pending Interlocutory Appeal (Doc. 313); 

(2) Plaintiff’s Motion to Supplement Corrected Declarations Submitted in Support of 

Motion to Stay (Doc. 314); (3) Plaintiff’s Motion to Extend Time to Videotape Doctor 

Greenman’s Trial Testimony (Doc. 317); (4) Defendants’1 Cross-Motion to Exclude or 

Limit Dr. Greenman’s Testimony (Doc. 320); and (5) Defendants’ Motion for Contempt 

and/or Other Sanctions (Doc. 323).

Plaintiff’s Motion to Supplement is granted. Plaintiff’s Motion to Stay and Motion 

to Extend Time to Videotape Doctor Greenman’s Trial Testimony are denied. Defendants’ 

Cross-Motion to Exclude or Limit Dr. Greenman’s Testimony is granted in part and denied

in part and Defendants’ Motion for Contempt and/or Other Sanctions is taken under 

advisement.

1 Riot Hospitality Group, LLC, RHG Ventures, LLC, 4425 Saddlebag, LLC, 4425 

Saddlebag 2, LLC, Rooke, LLC, Ryan Hibbert, and Milo Companies, LLC (collectively 

“Defendants”).

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BACKGROUND

The pending motions concern two discovery disputes that have persisted throughout 

this litigation. The first concerns the production of communications between Plaintiff and 

three non-party witnesses; the second concerns the deposition of Plaintiff’s treating 

physician Dr. Greenman. 

A. Plaintiff’s Communications with Non-Party Witnesses

On January 10, 2020 the Court held an in-person hearing to address various 

discovery disputes between the parties. One of the disputes concerned the production of 

recent2text messages and “direct messages” between Plaintiff and her three fact 

witnesses—Chelsea Meyers, Elle Foster, and Shea Watson—whom Defendants claim are 

also represented by Plaintiff’s counsel. Despite Plaintiff’s counsel’s claim that his 

representation of the fact witnesses was limited to their depositions, he agreed to produce 

the documents. During a subsequent hearing, Plaintiff’s counsel recanted his agreement to 

produce these documents, claiming that he thought he was referring to a different 

production dispute. Finding the record from January 10 hearing clear, the Court ordered 

Plaintiff’s counsel to produce the documents, as he agreed, to the extent he possessed them.

Plaintiff produced a PDF of undated screenshots of text messages that were not responsive 

to Defendants’ request or compliant with the parties’ ESI protocol. Defendants again raised 

Plaintiff’s failure to comply with the Court’s orders during the March 4 teleconference, at 

which point the Court ordered Plaintiff and her three fact witnesses to produce their cell 

phones to a third-party forensic search specialist for forensic imaging. In lieu of complying

with the Order, Plaintiff filed a notice of appeal and moved to stay the Order’s enforcement 

pending the appeal. Despite not yet being granted a stay, Plaintiff and the three witnesses 

still refused to comply with the Order. Defendants now move that Plaintiff and Plaintiff’s 

counsel be held in contempt and that additional appropriate sanctions be ordered for 

Plaintiff’s persistent failure to produce the communications.

2 Plaintiff’s production of communications with these witnesses is only current through fall 

of 2018. According to Defendants, during their depositions, each witness testified to 

engaging in more recent communications about the case and their involvement. These more 

recent communications that post-date those already produced are at issue.

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B. Dr. Greenman Deposition

Plaintiff disclosed Dr. Greenman as her witness that would render “expert medical 

opinions arising out of his treatment of Plaintiff.” (Doc. 317 at 2.) Before Dr. Greenman 

could be deposed, he closed his Arizona practice and moved to Washington. The Court 

granted Plaintiff her first extension to depose Dr. Greenman on November 5. The issue was 

raised again at the January 31 hearing. By this time, Plaintiff had still not noticed the 

deposition. The delay was due, in part, to Defendants’ counsel’s unavailability and 

unwillingness to meet Dr. Greenman’s limitations of a two-hour deposition outside of 

normal business hours. During the January 31 hearing, the Court again extended the 

discovery deadline to obtain Dr. Greenman’s deposition until March 20. The Court also 

advised Plaintiff’s counsel that if he wanted to compel Dr. Greenman to sit for a deposition

with appropriate time constraints, he would need to apply to the federal court in the district 

in which Dr. Greenman lives. Plaintiff chose not to apply to the appropriate court and again 

failed to timely depose Dr. Greenman. Plaintiff now requests a third extension, or in the 

alternative to exclude Defendants from cross examining Dr. Greenman should he testify at 

trial. Defendants, on the other hand, move to exclude Dr. Greenman’s testimony altogether 

or limit his trial testimony to authenticating the medical records heretofore produced. 

DISCUSSION

I. Plaintiff’s Motion to Stay

Plaintiff requests a stay from enforcement of the March 4 Order pending the 

resolution of her appeal to the Ninth Circuit Court of Appeals.3In considering whether to 

grant a stay pending appeal, the Court considers the following four factors: “(1) whether 

the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) 

whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the 

stay will substantially injure the other parties interested in the proceeding; and (4) where 

the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. 

3 Preceding this Order, the Ninth Circuit requested that Plaintiff (Appellee) show cause as 

to why her appeal should not be dismissed for lack of jurisdiction. Plaintiff and Defendants 

filed briefing on the issue. As of the date of this Order, the parties are waiting for the Circuit 

Court’s response. 

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Braunskill, 481 U.S. 770, 776 (1987)). However, “a stay is not a matter of right, even if 

irreparable injury might result.” Id. at 433. “The party requesting a stay bears the burden 

of showing that the circumstances justify an exercise of that discretion.” Id. at 433–34.

A. Likelihood of Success on the Merits

Plaintiff asserts that her appeal is likely to succeed because the March 4 Order is, or 

has the practical effect of, a mandatory injunction that was entered as an abuse of 

discretion. However, despite Plaintiff’s mischaracterization of the March 4 Order as a sua

sponte expansion of Defendants’ original request for tailored communications to a global 

production of Plaintiff and the witnesses’ phones, the March 4 Order is nothing more than 

a discovery order deemed necessary by Plaintiff’s consistent failure to comply with this 

Court’s prior orders. Discovery orders are interlocutory and non-appealable before a final 

judgment. See Gon v. First State Ins. Co., 871 F.2d 863, 865–66 (9th Cir. 1989) (orders 

that regulate the course of litigation, such as discovery orders, are not immediately 

appealable as injunctions); see also Bank of Am. v. Nat’l Mortg. Equity Corp., 857 F.2d 

1238, 1240 (9th Cir. 1988) (order compelling discovery, whether issued against party or 

non-party to proceedings, is not immediately appealable by party); David v. Hooker, Ltd., 

560 F.2d 412, 415–16 (9th Cir. 1977) (order compelling discovery issued against non-party 

is not appealable by non-party, immediately or otherwise). Because Plaintiff’s appeal lacks 

appellate jurisdiction it is not likely to succeed. 

B. Irreparable Injury

Plaintiff and the three witnesses provided declarations detailing their concerns about 

being away from their cell phones. Their concerns include needing to stay in contact with 

kids or sick family members, needing to be responsive for work, and personal safety. While

the Court sympathizes with the fear of being without one’s cell phone for a few hours, 

Plaintiff has not explained how these concerns constitute irreparable harm. See Nken, 566 

U.S. at 434–35 (explaining that simply showing some possibility of irreparable injury is 

not enough to satisfy the second stay factor). Moreover, to the extent Plaintiff argues that 

the production of irrelevant private communications is irreparable, this Circuit disagrees. 

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See In re Nat. Mortgage Equity Corp., 857 F.2d at 1240 (“[A]ny unfair use of the 

information or documents produced as a result of an improper order can be corrected on 

appeal from final judgment in the case.”) It is also worth reminding the parties that the 

March 4 Order clearly instructed Plaintiff’s counsel to review the communications 

recovered by the neutral third party before any communications are produced to 

Defendants. Thus, Plaintiff has failed to establish irreparable harm will result absent a stay.

C. Prejudice to Other Parties

While no substantial harm will occur to Defendants if the March 4 Order is first 

subject to appellate review before its enforcement, this action has been consistently delayed 

by the parties’ failure to cooperate throughout discovery. This factor may not go against 

granting the stay, but it does not support a stay either. 

D. Public Interest

Plaintiff cites the privacy interests unique to cell phones recognized by the Supreme 

Court in Riley v. California, 573 U.S. 373 (2014), to suggest that the public interest 

supports staying enforcement of the March 4 Order. However, Riley concerned the search 

of a cell phone incident to a lawful arrest; it has little application to the rights of parties or 

non-parties involved in a civil action where only those communications that are relevant to 

the action need be produced after review by Plaintiff’s counsel. The public’s interests in 

fair play and efficient resolution of litigation are more pertinent to this matter; these 

interests would be served by denying the stay. 

Because Plaintiff has failed to show that the circumstances of this case warrant a 

stay of the March 4 Order pending her appeal, her request for a stay is denied. 

II. Defendants’ Motion for Contempt and Other Sanctions

“[A]ll orders and judgments of courts must be complied with promptly. If a person 

to whom a court directs an order believes that order is incorrect the remedy is to appeal, 

but, absent a stay, he must comply promptly with the order pending appeal.” Maness v. 

Meyers, 419 U.S. 449, 458 (1975); see also Nascimento v. Dummer, 508 F.3d 905, 910 

(9th Cir. 2007) (“No stay of the district court proceedings pending resolution of the appeal 

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had been sought or granted, and so [the plaintiff] remained under an obligation to comply 

with the district court’s orders and pretrial timetable notwithstanding his appeal. His failure 

to comply with court orders was properly sanctionable . . .”). Plaintiff claims her notice of 

appeal and motion for stay relieved her of her obligation to comply with this Court’s March 

4 Order. Plaintiff’s argument, however, is not supported by the law of this Circuit. 

Nonetheless, based on the parties’ briefing, the Court concludes some clarification

and amendment of the March 4 Order is warranted before contempt or other sanctions are 

appropriate.4 Plaintiff is, and has been, under an obligation to produce her cell phone to a 

third-party forensic search specialist (“Specialist”). Any communications recovered from

Plaintiff’s phone will first be provided to Plaintiff’s counsel for review; Plaintiff’s counsel 

may make detailed objections at that time. If Plaintiff’s counsel determines that he is going 

to withhold documents that result from the search terms, he must provide Defendants a 

complete privilege log indicating the specific document withheld, who it was to and from, 

the date of the communication, its general topic to the extent not otherwise privileged, and 

the basis for the invocation of privilege. Plaintiff, however, should be keenly aware by this 

point that any recent5communications between herself and the three witnesses regarding 

this action or the witnesses’ involvement in this action are discoverable. In turn, Defendants 

would be wise to amend their search terms accordingly. With respect to the fact witnesses, 

the March 4 Order was issued with the understanding that they are also represented by 

Plaintiff’s counsel in connection with this action. If they are not so represented, the Court 

agrees that Plaintiff is not responsible for their refusal to produce their cell phones or 

communications. The Court will, however, grant Defendants leave to issue subpoenas to 

obtain the communications from the witnesses’ phones. The only communications 

4 The pending appeal does not divest this Court of its jurisdiction to modify the March 4 

Order. See Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007) (“When a Notice of 

Appeal is defective in that it refers to a non-appealable interlocutory order, it does not 

transfer jurisdiction to the appellate court, and so the ordinary rule that the district court 

cannot act until the mandate has issued on the appeal does not apply.”) (citing Ruby v. 

Secretary of the United States Navy, 365 F.2d 385, 389 (9th Cir. 1966)); Estate of Conners 

by Meredith v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993) (same). 

5 See supra n.2.

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Defendants may seek to obtain from the fact witnesses are similarly limited to those recent 

communications relating to this action or the witnesses’ involvement in this action. If 

Defendants choose to pursue this discovery they will do so entirely at their own expense. 

Plaintiff has seven days from the date of this Order to produce her cell phone to the 

previously agreed upon Specialist. Once the recovered communications are provided to 

Plaintiff, she will have seven days to review them and produce the relevant 

communications to Defendants. As stated in the March 4 Order, Defendants shall pay the 

initial cost for the Specialist, but should additional documents be located in this search that 

are discoverable, Plaintiff shall promptly reimburse the entire cost of the Specialist to the 

Defendants. Defendants, if they choose to do so, similarly have seven days from the date 

of this order to issue subpoenas to Elle Foster, Chelsea Meyers, and/or Shea Watson for 

the limited scope discussed in this Order. 

Defendants’ Motion for Contempt and Other Sanctions is taken under advisement

until the parties are given an opportunity to comply with the above. 

III. Dr. Greenman 

Plaintiff fails to demonstrate good cause warranting a third extension to obtain the 

deposition of her own witness. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified 

only for good cause and with the judge’s consent.”). When this Court granted the most 

recent extension, it explained, “I am going to leave it up to you [Plaintiff’s counsel] to 

either obtain through cooperation the limited deposition of Dr. Greenman or to apply to the 

court, the appropriate court, in a miscellaneous matter, to obtain the deposition of Dr. 

Greenman. And you have until March 20th to do so. And I will not, absent the most unusual 

circumstances in the world, extend discovery for any other purpose and for any other 

length.” (Doc. 313-7 at 56; Doc. 320-1 at 34.) While the Court agrees that Defendants’ 

counsel may have been uncooperative in scheduling the deposition, this Court advised 

Plaintiff to take further action in the appropriate court and Plaintiff made no effort to do 

so. Plaintiff attempts to blame the global pandemic for this failure. However, Plaintiff had 

ample time to at least file a miscellaneous action seeking Dr. Greenman’s deposition in the 

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appropriate court and she simply chose not to do so. As a result, Plaintiff’s request for a 

third extension is denied. Plaintiff similarly fails to provide any basis to prevent Defendants 

from cross examining Dr. Greenman in the event he testifies at trial. Consequently, that 

request is also denied. 

With respect to Defendants’ cross motion, in the event Dr. Greenman testifies at 

trial, his testimony will be subject to the Federal Rules of Evidence and Civil Procedure. 

While his testimony will not be excluded, Dr. Greenman will not be permitted to testify 

about any information or documents that have not been produced in this action. See Fed. 

R. Civ. P. 37(c)(1) (“If a party fails to provide information . . . the party is not allowed to 

use that information . . . to supply evidence on a motion, at a hearing, or at a trail unless 

the failure was substantially justified or harmless.”). 

CONCLUSION

The Court, one last time, urges the parties to be reasonable and act professionally to 

resolve these disputes. 

IT IS HEREBY ORDERED that:

1. Plaintiff Alyssa Jones’ Motion to Stay this Court’s March 4, 2020 Order 

Pending Interlocutory Appeal (Doc. 313) is DENIED.

2. Plaintiff’s Motion to Supplement Corrected Declarations Submitted in 

Support of Motion to Stay (Doc. 314) is GRANTED.

3. Plaintiff’s Motion to Extend Time to Videotape Doctor Greenman’s Trial 

Testimony (Doc. 317) is DENIED.

4. Defendants’ Cross-Motion to Exclude or Limit Dr. Greenman’s Testimony 

(Doc. 320) is GRANTED in part and DENIED in part.

5. Defendants’ Motion for Contempt and/or Other Sanctions (Doc. 323) is taken 

under advisement. Defendants are GRANTED leave to subpoena Chelsea Meyers, Elle 

Foster, and Shea Watson to produce their recent communications regarding Plaintiff’s 

claims at Defendants’ expense. Any such subpoena must be issued within seven days of 

the date of this order.

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IT IS FURTHER ORDERED that:

1. Plaintiff shall produce her cell phone to the previously agreed upon Specialist 

for imaging no later than August 17, 2020.

2. The Specialist shall provide any recovered communications to Plaintiff for 

review and Plaintiff will produce the relevant communications, if any, to Defendants within 

seven days of receiving the recovered data from the Specialist. If Plaintiff withholds any 

communications from Defendants, she will provide a complete privilege log as detailed in 

this Order. (the privilege log should be produced at the same time as any communications)

IT IS FURTHER ORDERED that Defendants shall pay the initial cost for the 

Specialist, but should additional documents be located in this search that are discoverable, 

Plaintiff shall promptly reimburse the entire cost of the Specialist to the Defendants. 

IT IS FURTHER ORDERED that the March 4 Order (Doc. 308) is amended by 

this Order as indicated and/or modified above. 

IT IS FURTHER ORDERED that the deadlines set forth in the December 14, 

2018 Case Management Order (Doc. 62), as modified by the Court's June 24, 2019, 

September 10, 2019, October 1, 2019, January 31, 2020, and April 29, 2020 Orders (Docs. 

126, 158, 176, 296, 332) amending certain deadlines are extended as follows: 

1. The deadline for the parties to file their respective two-page letters regarding 

anticipated summary judgment motions shall be September 11, 2020, and the parties shall 

call the Court the same day to schedule a time for a pre-motion conference.

2. The deadline for filing of dispositive motions shall be October 9, 2020. 

These extensions apply only to Plaintiff, and 4425 Saddlebag, LLC, 4425 Saddlebag 2, 

LLC, Milo Companies, LLC, RHG Ventures, LLC, Riot Hospitality Group, LLC, Rooke, 

LLC, and Ryan Hibbert. JW Bar, LLC and MRM Hospitality, LLC remain authorized to 

file a motion for summary judgment as established during the June 16, 2020 Status 

Conference.

Dated this 10th day of August, 2020.

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