Wixon et al v. Wyndham Resort Development Corp., et al

Filing 1372

ORDER by Magistrate Judge Bernard Zimmerman denying #1355 Motion for Leave to File and denying as moot #1370 Motion for Leave to File a Supplemental Opposition. (bzsec, COURT STAFF) (Filed on 10/4/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CLARKE and REBECCA WIXON,

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Plaintiff(s),
v.
WYNDHAM RESORT DEVELOPMENT
CORP., et al.,

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Defendant(s).
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No. C 07-2361 JSW (BZ)
ORDER DENYING PLAINTIFFS’
MOTION TO COMPEL DEPOSITION
OF OBJECTOR-APPELLANTS

Plaintiffs have moved to compel the depositions of two

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objector-appellants pursuant to Rule 27(b) of the Federal

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Rules of Civil Procedure, which authorizes the Court to permit

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a party to depose witnesses pending appeal in order “to

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perpetuate their testimony for use in the event of further

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proceedings in that court.”

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Depositions pending appeal are allowed only on a showing of

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the expected substance of the testimony of each deponent and

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the reasons for perpetuating testimony.

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27(b)(2).

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evidence it seeks.

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(D.C. Cir. 1989) (“this rule requires a real showing of the

Fed. R. Civ. Proc. 27(b).

Fed. R. Civ. P.

The movant must show the need for preserving the
In re City of El Paso, 887 F.2d 1103, 1105

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need for the preservation of the evidence”).

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reason to perpetuate testimony is to avoid possible loss of

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testimony in any future proceedings in the district court

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after the appeal – due to the passage of time or the

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unavailability of witnesses – that would cause injustice.

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See, e.g., Central Bank of Tampa v. Transamerica Ins. Group,

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128 F.R.D. 285, 286 (M.D. Fla. 1989) (when the passage of time

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or the unavailability of witnesses would cause injustice, the

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court may allow the perpetuation of testimony pending appeal).

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The primary

Here, rather than using Rule 27 to perpetuate testimony,

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Plaintiffs are attempting to utilize it as a substitute for

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discovery.

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in order to learn whether these individuals have standing or

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would be appropriate class representatives in the event that a

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new class action suit commences.

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Rule 27.

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Church, 190 F.R.D. 345, 348 (E.D. Pa. 2000) (Rule 27(b) is not

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a substitute for discovery and its application must be

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grounded primarily in the need to avoid any failure or delay

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of justice.); Windsor v. Federal Executive Agency, 614 F.

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Supp. 1255, 1264-65 (D. Tenn. 1984) (Rule 27(b) “applies only

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in that special category of cases where it is necessary to

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prevent testimony from being lost.”) (quoting In re Ferkauf, 3

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F.R.D. 89 (D.N.Y. 1943)).

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there is a risk that certain information will be destroyed or

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lost unless the objector-appellants are deposed pending the

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Plaintiffs seek to depose the objector-appellants

This is not a proper use of

See 19th St. Baptist Church v. St. Peters Episcopal

Plaintiffs make no argument that

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appeal1, and Plaintiffs cite to no authority to support their

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proposition that Rule 27(b) can be invoked in the manner they

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set forth.

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the District Court of Maryland in In re Tyson Foods Inc.,

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Chicken Raised Without Antibiotics Consumer Litigation, Case

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No. 08-1982, for the proposition that Rule 27(b) permits

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extraordinary discovery pending appeal. (Pl.’s Mot. P. 5.)

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That order is less than one page in length and contains no

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substantive or legal analysis.

Plaintiffs rely primarily on a decision issued by

Although Plaintiffs did not

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provide the Court with a copy of that unpublished decision,

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the Court reviewed both the parties’ briefs as well as the

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court’s order.

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Tyson specifically contemplated that the parties would be

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permitted to depose any objectors to the settlement – a fact

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Plaintiffs failed to disclose.

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the depositions in Tyson made a specific showing that certain

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evidence would in fact be lost if the objectors were not

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deposed.

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Moreover, the party seeking

No such showing has been made in this case.

For the foregoing reasons, Plaintiffs’ motion is DENIED.2
Dated: October 4, 2011

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It appears that the settlement agreement in

Bernard Zimmerman
United States Magistrate Judge
G:\BZALL\-REFS\WIXON V. TRENDWEST\ORD ON PL'S MOT TO DEPOSE OBJECTOR APPELLANTS.FINAL VERSION BZ.wpd

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Plaintiffs assert that Mr. Willett, counsel for the
objector-appellants, allegedly deleted certain discussion
threads on various websites pertaining to the class settlement
reached in this case. (Pl.’s Mot. P. 7.) To the extent that
this information has already been deleted, there is no way
that it can possibly now be preserved. Moreover, Plaintiffs
are not attempting to depose Mr. Willet.
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Plaintiffs’ Motion for Leave to File a Supplemental
Opposition (Docket No. 1370) is DENIED as moot.
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