Herron v. Best Buy Co. Inc. et al

Filing 110

ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/4/2015 ORDERING that plaintiff's 97 Motion for Protective Order is GRANTED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHAD HERRON,

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No. 2:12-cv-2103 GEB CKD
Plaintiff,

v.

ORDER

BEST BUY CO. INC., et al.,
Defendants.

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Plaintiff’s motion for protective order came on for hearing at an informal discovery

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conference before the undersigned on May 1, 2015. Gene Stonebarger, Richard Lambert, Anne

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Murphy and Shawna Madison appeared telephonically for plaintiff. Michael Geibelson and Jill

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Casselman appeared telephonically for defendant Best Buy Stores, LP. Kevin McCormick

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appeared telephonically for proposed intervenor Dell, Inc. Upon review of the letter brief and the

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docket in this matter, upon hearing the arguments of counsel, and good cause appearing, THE

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COURT FINDS AS FOLLOWS:

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In this putative consumer class action, plaintiff alleges claims under the California

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Consumer Legal Remedies Act (“CLRA”). Plaintiff alleges that on product tags placed on

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merchandise, defendants misrepresented the battery life on laptop computers and notebooks.

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Defendant seeks to depose attorneys Stonebarger and Lambert, counsel for plaintiff in this action.

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Defendant contends these attorneys had knowledge of who the properly named defendant was in
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this action (Best Buy Stores, LP) prior to the filing of the second amended complaint on March 1,

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2013. Defendant contends these attorneys had the requisite knowledge because they were

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plaintiff’s counsel in another action, Wood v. Best Buy, Inc., in which plaintiff alleged violations

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of Cal. Civil Code § 1747.08, which prohibits retailers from requesting a credit card customer’s

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personal identification information at the point-of-sale. Because the second amended complaint

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in the pending action was filed after the three year statute of limitations provided under California

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Civil Code § 1783 had run, defendants contend the attorneys’ knowledge can be imputed to

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plaintiff and therefore the relation-back doctrine allowed under California law cannot overcome

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the bar of the statute of limitations.

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The statute of limitations issue has already been raised on a prior motion to dismiss, which

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the District Court denied. In opposition to the motion to dismiss, both attorneys filed affidavits

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explaining that they were never advised prior to the filing of the second amended complaint that

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Best Buy Stores, L.P. was the proper defendant in this action and that in the Wood case, the

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attorneys were only provided information that Best Buy Stores, LP was responsible for the policy

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and practices at issue in that case. See ECF Nos. 42-1, 42-3.

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Plaintiff relies on Shelton v. Am. Motors Corp., 805 F.2d 1232, 1237 (8th Cir. 1987) for

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the proposition that because the information sought here is protected work product, the

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depositions cannot proceed. Although defendant is correct that Shelton has not been adopted by

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the Ninth Circuit, the privileged nature of the information defendant seeks here by deposing

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plaintiff’s attorneys must be considered in determining whether a protective order should issue.

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Those courts which have not found Shelton to be persuasive take a more global approach in

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weighing the propriety of deposing counsel, but acknowledge that one factor that should be

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considered is the risk of encountering privilege and work-product issues. See, e.g. Younger Mfg.

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Co. v. Kaenon, Inc., 247 F.R.D. 586 588 (C.D. Cal. 2007) (court adopted reasoning of Second

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Circuit, concluding that multi-factor approach is appropriate in considering whether counsel

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should be deposed; factors include “the need to depose the lawyer, the lawyer’s role in connection

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with the matter on which discovery is sought and in relation to the pending litigation, the risk of

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encountering privilege and work-product issues, and the extent of discovery already conducted).
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Here, any deposition questions will inevitably tread on the attorneys’ mental impressions

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and investigation of the factual matters leading up to the filing of the original and amended

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complaints. The court notes that this action was initially filed in state court on June 28, 2012.

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Between August 10, 2012, the date the action was removed to federal court and March 1, 2013,

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the date the second amended complaint was filed, the case was actively litigated, with 20 entries

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on the docket. Despite the active litigation of this matter, it was not until February 28, 2013, after

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the statute of limitations had run, that defense counsel advised plaintiff’s counsel that the proper

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party defendant was Best Buy Stores, LP, and not the named defendant, Best Buy Co. Inc. See

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ECF No. 42-6. In the absence of attributing gamemanship to defendant, the court can only

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conclude from the sequence of events in this litigation that the identity of the proper defendant

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was not readily apparent, because if it were, it would have been a simple matter for defense

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counsel to so inform plaintiff’s counsel in the six months between the filing of the complaint and

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the expiration of the statute of limitations. Inquiry into the facts underlying plaintiff’s counsel’s

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decision to name Best Buy Co. Inc. as the defendant will breach protected work product. The

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attorneys that are the subject of the pending motion have submitted in this case affidavits on the

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statute of limitations issue. Further inquiry by deposition of plaintiff’s attorneys is not warranted.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for protective order (ECF

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No. 97) is granted.

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Dated: May 4, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 herron.oah

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