Perez v. Austin Electric Services LLC et al

Filing 220

ORDER re: 217 Discovery Dispute: IT IS ORDERED Defendants' request to re-depose Mitch Wood and Nicholas Fiorello is GRANTED. Signed by Senior Judge Roslyn O Silver on 10/31/18. (CLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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R Alexander Acosta,

No. CV-16-02737-PHX-ROS

Plaintiff,

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ORDER

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v.

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Austin Electric Services LLC and Toby
Thomas,

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Defendants.

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Plaintiff Secretary of Labor (“the Secretary”) alleges Defendants Austin Electric

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Services LLC and Toby Thomas, Austin Electric’s president (collectively, “Defendants”),

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failed to pay employees overtime compensation and to keep employee records, in

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violation of the Fair Labor Standards Act (“FLSA”).

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October 2017, but limited discovery reopened for 15 days on October 15, 2018.

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Defendants now seek to re-depose two Department of Labor (“DOL”) investigators,

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whom Defendants initially deposed in September 2017. (Doc. 217.) For the foregoing

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reasons, Defendants’ request will be granted.

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Discovery initially closed in

BACKGROUND

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The Secretary alleges Defendants violated the FLSA by failing to pay employees

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overtime compensation and failing to keep employee records. The case proceeded to

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discovery, which, except as discussed below, ended in October 2017. In September

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2017, Defendants deposed DOL investigators Mitch Wood and Nicholas Fiorello.

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Approximately six months after the close of discovery, in April 2018, the Court allowed

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the Secretary to add 99 current or former employees to the Complaint. (Doc. 106.)

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Pursuant to this Court’s Order, discovery reopened for 15 days, beginning on

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October 15, 2018, to allow Defendants to depose the Secretary’s informer trial witnesses.

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(Doc. 102.) On the same day that discovery reopened, the Court allowed the Secretary to

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update damages calculations—which had previously encompassed damages only until

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July 2015—to include backwages for the 99 additional individuals and for allegedly

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ongoing violations. (Doc. 205.) Defendants now seek to re-depose Wood and Fiorello

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on the basis of newly disclosed information. (Doc. 217.) After meeting and conferring

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unsuccessfully about this discovery dispute, the parties filed a Joint Statement to the

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Court on October 30, 2018. (Doc. 217.)

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ANALYSIS

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A party must obtain leave of court in order to re-depose a witness already deposed

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in the case. Fed. R. Civ. P. 30(a)(2)(A)(ii). The Court has wide discretion to reopen

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depositions. Couch v. Wan, No. CV F08-1621 LJO DLB, 2012 WL 4433470, at *3 (E.D.

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Cal. Sept. 24, 2012) (“The propriety of a deponent’s reopened deposition lies in the

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court’s discretion.”).

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Bookhamer v. Sunbeam Prods. Inc., No. C 09–6023 EMC (DMR), 2012 WL 5188302, at

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*2 (N.D. Cal. Oct. 19, 2012). Courts will not find good need if: (i) the additional

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deposition is unreasonably cumulative or the information can be obtained from some

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other source that is less burdensome; (ii) the party had ample time to obtain the

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information through discovery; or (iii) the burden outweighs the likely benefit. Id. (citing

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Fed. R. Civ. P. 26(b)(2)(C).

“Good need” is generally required to reopen a deposition.

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Defendants now seek to re-depose Wood and Fiorello due to newly disclosed

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evidence. As DOL investigators, Wood and Fiorello prepared damages calculations and

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interviewed DOL’s trial witnesses. Defendants argue that when Wood and Fiorello were

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deposed in September 2017, Defendants did not know about (1) the Secretary’s updated

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damages calculations and (2) information about the investigators’ interactions with

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certain witnesses, which Defendants recently learned from depositions conducted during

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the reopening of discovery. (Doc. 217.) The Secretary argues that re-deposing the

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investigators would be cumulative because (1) the new damages calculations use the

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same methodology as the old ones and (2) Defendants have already spoken to the

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witnesses interviewed by the investigators. (Doc. 217.)

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Here, Defendants have demonstrated the “good need” required to reopen

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depositions. A long period of time—more than one year—has passed since Wood and

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Fiorello were deposed. In that time, several new developments have occurred in the case:

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The Secretary has added 99 new employees to the Complaint, the Secretary’s damages

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calculations have significantly increased to include back wages for additional employees

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as well as additional years of alleged violations, and Defendants have deposed the

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Secretary’s trial witnesses and learned new information about their interactions with the

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Wood and Fiorello. These new occurrences took place after the close of discovery in

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October 2017, so Defendants have never had the opportunity to depose the investigators

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about these topics.

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Since the “long passage of time with new evidence” is indicative of “good need,”

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Defendants have sufficiently demonstrated their need. Graebner v. James River Corp.,

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130 F.R.D. 440, 441 (N.D. Cal. 1989). Even if the Secretary’s methodology for

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calculating damages has remained the same, Defendants may wish to depose the

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investigators about additional employees and/or time periods that the Secretary now

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includes in the damages calculation. In addition, Defendants correctly argue that re-

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deposing the investigators would not be duplicative in light of new information that

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Defendants have learned since the reopening of discovery. Any burden to the Secretary,

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involving the preparation and defense of two additional depositions, is outweighed by

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Defendants’ need.

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……

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……

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……

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Accordingly,

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IT IS ORDERED Defendants’ request to re-depose Mitch Wood and Nicholas

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Fiorello is GRANTED.
Dated this 31st day of October, 2018.

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Honorable Roslyn O. Silver
Senior United States District Judge

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