Lakes v. Bath & Body Works, LLC

Filing 100

ORDER signed by Magistrate Judge Gregory G. Hollows on 8/14/2018 ORDERING 86 Plaintiff's motion for leave of court to take two additional depositions after the presumptive ten permitted by Rule have been taken is DENIED; to the extent not alre ady taken, the one remaining corporate personnel deposition must be taken by 9/15/2018; the parties may take consumer depositions as they have agreed regardless of whether these depositions would exceed ten depositions in the entire case; However, these depositions must be taken by 9/15/2018; as previously provided, this order does not affect the commencement and running of other dates in the pretrial scheduling order. 72 (Reader, L)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

CRYSTAL LAKES,

12
13
14

No. 2:16-cv-2989 MCE GGH

Plaintiff,
v.

ORDER

BATH AND BODY WORLS, LLC,

15

Defendant.

16
17
18
19

Introduction and Summary
Several orders have issued in this case; there is no need to describe the context of the

20

action with particularity. The undersigned simply repeats, in part, the case context from a

21

previous order.

22

Plaintiff sues for damages arising from an incident in which a candle sold by Defendant

23

“exploded” when she attempted to put it out, splashing and burning her with the melted, molten

24

wax, inflicting what she characterizes as significant injuries and permanent scarring. ECF No. 2 at

25

9. In an action originally filed in Sacramento Superior Court which was removed to this court on

26

diversity jurisdiction, 28 U.S.C. section 1332, id. at 2, she states claims for general negligence, id.

27

at 9, and product liability, id. at 10, and seeks recovery of general and exemplary damages.

28
1

1

Id. at 11. Plaintiff does not specifically allege whether her claims are based upon a theory of

2

product design or product manufacture, but she does claim failure to warn of the potential danger

3

in the use of the candle. Id. at 12-13. The specific product at issue is described as “a three-wick

4

Bath & Body Works Aromatherapy – Eucalyptus Spearmint scented candle purchased through

5

Amazon.com. ECF 2 at 18.

6

Discovery thus far has revealed a significant number of “flashover” candle incidents

7

throughout the years, as well as attempts by defendant to study, investigate, and/or remediate such

8

problems. Plaintiff’s injuries, from all appearances in the case thus far, were fairly modest. It

9

may be that the claim herein for punitive damages has overshadowed plaintiff’s own personal

10

case.

11

The present motion involves, in part, plaintiff’s request to take 2 depositions of employees

12

of the defendant in addition to the 10 deposition putative limit set forth in the civil discovery

13

rules. For the reasons that follow, that part of plaintiff’s motion is denied.

14

The parties have agreed to take certain consumer depositions prior to September 15, 2018.

15

To the extent not already taken, the “consumer” depositions must be taken by September 15,

16

2018. These depositions are in addition to the presently disputed corporate personnel depositions,

17

and the parties have stipulated, in essence, that the 10 deposition limit does not apply to such

18

depositions.

19

Discussion

20

Plaintiff asserts that the deponent (Steven Smith) proffered by defendant for Fed. R. Civ.

21

P. 30(b)(6) depositions (deposition of a person who speaks for the defendant entity in designated

22

areas) was not prepared to discuss all areas of designation because he had not spoken to other

23

presumably knowledgeable employees associated with the deposition topics. Plaintiff does not

24

assert by way of deposition attachment that the deponent was ignorant of the designated topics—

25

just that the deponent would have been better informed if he had spoken to other people in

26

preparation for the deposition.1 Therefore, plaintiff desires to take deposition of defendant

27
28

1

In one attachment, the deponent, Steven Smith, did not know who had collected certain
documents for a report. However, not knowing who had performed administrative homework
2

1

employees -- presumably the “knowledgeable ones” -- in excess of the 10 normally permitted per

2

case. Plaintiff has taken nine depositions thus far.

3

Rule 30(b)(6) permits a party to depose an entity defendant in designated areas, and the

4

person proffered by the party to be deposed binds the entity, here the corporate defendant, to the

5

answers given. Great American Ins. Co. v. Vegas Const., 251 F.R.D. 534, 538 (D. Nev. 2008).

6

The proffered deponent must have knowledge, i.e. he must have prepared him or herself when

7

necessary in order to respond to questions in the designated subject areas for which the deponent

8

was proffered and failure to do so is tantamount to a failure to appear. Id.; Lofton v. Verizon

9

Wireless (VAW) LLC, 308 F.R.D. 276, 289 (N.D. Cal. 2015). Rule 37(d) permits imposition of

10

sanctions for such a failure to appear up to and including default or evidence preclusion. Evasive

11

or “I’ll get back to you when I know what I was supposed to know if I had only prepared,”

12

answers are not to be countenanced. On the other hand, the Rule 30(b)(6) deponents are not

13

expected to be clairvoyant or encyclopedic in their knowledge; questions or sub-questions can be

14

asked by an adverse party on specific or complex matters within larger designated issues for

15

which the deponent could not have reasonably anticipated the need to develop knowledge.

16

Reasonableness of pre-existing knowledge and/or preparation is the touchstone inquiry here. But

17

plaintiff does not seek sanctions; rather her counsel uses the backdrop of the Smith deposition as

18

a means to support the request for additional depositions.

19

Fed. R. Civ. P. 30(a)(2)(A)(i) sets a limit of 10 depositions in a case that can be taken

20

without leave of court to permit additional depositions. The reasons for granting additional

21

depositions mirror the same proportionality concepts discussed in Rule 26.

22
23
24
25
26
27
28

Rule 30(a) (2)(A)(i) provides that no party may take more than ten depositions
without leave of court or stipulation of the parties. A party seeking leave of court
must make a “particularized showing” why the discovery is necessary. C & C
Jewelry Mfg., Inc. v. West, 2011 WL 767839, * 1 (N.D.Cal.2011) (citing Archer
Danield Midland Co. v. Aon Risk Servs., Inc., 187 F.R.D. 578, 586
(D.Minn.1999)). Rule 30(a)(2) provides that, when a party seeks leave to take
more than ten depositions, the Court must grant leave to the extent consistent with
Rule 26(b)(2). Under Rule 26(b)(2) (C), a court must limit discovery if it
determines (1) the discovery sought is cumulative or duplicative, or can better be
obtained from some other source; (2) the party seeking discovery has had ample
was not a substantial part of the corporate deposition.
3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

opportunity to obtain the information by discovery in the action; and (3) the
burden or expense of the proposed discovery outweighs its likely benefit.
Fed.R.Civ.P. 26(b)(2)(C)(i)-(iii); Lehman Bros. Holdings, Inc. v. CMG Mortg.,
Inc., 2011 WL 203675, *2 (N.D.Cal.2011).
Couch v. Wan, 2011 WL 4499976 *1 (E.D. Cal. 2011).See also Acosta v. Southwest Fuel
Management, Inc., 2017 WL 8941165 *5 (C.D. Cal. 2017).
Therefore, in determining whether to permit additional depositions, the undersigned looks
to the complexity of a case, the injury to plaintiff, whether the issues in the case transcend
plaintiff’s particular injury, the extent of discovery already taken on particular issues, whether the
requested discovery is simply more of the same, and whether the party complaining about “too
much discovery,” has been obstreperous or hiding the ball, the burdens and costs that will result,
and so forth. Of course, if a party has been obstreperous during discovery, i.e., deliberately
slowing the pace or purposefully hiding the facts, or failing to present knowledgeable person(s) in
Rule 30(b)(6) depositions, such a factor might well weigh in favor of additional depositions.
No one doubts the potential relevance (in a broad sense) of the potential testimony of the
corporate defendant employees plaintiff desires to depose in addition to the ten permitted. Each
had some association with the testing of candles, investigating flashover incidents, and/or
monitoring the safety of defendant’s candles. But, as defendant points out, the depositions of
other corporate defendant employees have been taken on these subjects, including at least one
Rule 30(b)(6 ) deposition.
Here, as set forth above, the only apparent flaw in the Smith deposition is that he did not
talk to a person or persons in the corporation relevant to the areas of inquiry designated by
plaintiff, and for which Smith was proffered. However, as defendant points out, conversations
with subsidiary employees with knowledge is not an absolute prerequisite for Rule 30(b)(6)
deposition preparation. By way of analogy, if the undersigned were being “Rule 30(b)(6)
deposed” on an area of Clerk’s Office’s practices with which he had experience or felt familiar,
he might not need to discuss the issue with personnel in the Clerk’s office prior to deposition.
Such a “failure” on the undersigned’s part would not per se necessitate depositions of Clerk’s
office personnel. Rather, in seeking more depositions than presumptively permitted by the Rules,

28
4

1

the deposing party would need to make a particularized showing that the undersigned’s answer

2

was not knowledgeable—for example, the existence of a Clerk’s Office memorandum of policy

3

on the designated issue at odds with the undersigned’s understanding, and of which the

4

undersigned was apparently ignorant.

5

Rule 30(b)(6) depositions are a powerful tool in the discovery arsenal because they

6

preclude a corporate defendant from playing hide-the-ball on matters of which the corporate

7

defendant should be definitively cognizant. On the other hand, depositions of subsidiary

8

corporate defendant employees should not be permitted after a Rule 30(b)(6) deposition, at least

9

when the further depositions would be otherwise precluded, simply because the deposing party is

10

speculating about a smoking gun, or hopeful in getting some impeachment of the “binding”

11

corporate answer.

12

In addition, the issues here are not complex—do defendant’s candles have an undue

13

propensity to flashover. The liability issues will be decided primarily based upon the views of the

14

experts on both sides, albeit with reference to the factual discovery taken thus far. Taking

15

additional percipient depositions are unlikely to add much to the truth-of-the-matter equation.

16

Plaintiff has one deposition left before she reaches the presumptive ten. The undersigned

17

will not order depositions in addition to the presumptive number of 10.

18

Conclusion

19

1.

Plaintiff’s motion for leave of court to take two additional depositions after the

20

presumptive ten permitted by Rule have been taken is DENIED; to the extent not already taken,

21

the one remaining corporate personnel deposition must be taken by September 15, 2018;

22

2.

The parties may take consumer depositions as they have agreed regardless of

23

whether these depositions would exceed ten depositions in the entire case; However, these

24

depositions must be taken by September 15, 2018.

25

3.

As previously provided, this order does not affect the commencement and running

26

of other dates in the pretrial scheduling order. See ECF. No. 72.

27

DATED: August 14, 2018

28

/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
5