Wixon et al v. Trendwest Resorts, Inc.

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 CLARKE and REBECCA WIXON, 12 13 14 Plaintiff(s), v. WYNDHAM RESORT DEVELOPMENT CORP., et al., 15 Defendant(s). 16 17 ) ) ) ) ) ) ) ) ) ) ) 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 18 objector-appellants pursuant to Rule 27(b) of the Federal 19 Rules of Civil Procedure, which authorizes the Court to permit 20 a party to depose witnesses pending appeal in order “to 21 perpetuate their testimony for use in the event of further 22 proceedings in that court.” 23 Depositions pending appeal are allowed only on a showing of 24 the expected substance of the testimony of each deponent and 25 the reasons for perpetuating testimony. 26 27(b)(2). 27 evidence it seeks. 28 (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 1 1 need for the preservation of the evidence”). 2 reason to perpetuate testimony is to avoid possible loss of 3 testimony in any future proceedings in the district court 4 after the appeal – due to the passage of time or the 5 unavailability of witnesses – that would cause injustice. 6 See, e.g., Central Bank of Tampa v. Transamerica Ins. Group, 7 128 F.R.D. 285, 286 (M.D. Fla. 1989) (when the passage of time 8 or the unavailability of witnesses would cause injustice, the 9 court may allow the perpetuation of testimony pending appeal). 10 The primary Here, rather than using Rule 27 to perpetuate testimony, 11 Plaintiffs are attempting to utilize it as a substitute for 12 discovery. 13 in order to learn whether these individuals have standing or 14 would be appropriate class representatives in the event that a 15 new class action suit commences. 16 Rule 27. 17 Church, 190 F.R.D. 345, 348 (E.D. Pa. 2000) (Rule 27(b) is not 18 a substitute for discovery and its application must be 19 grounded primarily in the need to avoid any failure or delay 20 of justice.); Windsor v. Federal Executive Agency, 614 F. 21 Supp. 1255, 1264-65 (D. Tenn. 1984) (Rule 27(b) “applies only 22 in that special category of cases where it is necessary to 23 prevent testimony from being lost.”) (quoting In re Ferkauf, 3 24 F.R.D. 89 (D.N.Y. 1943)). 25 there is a risk that certain information will be destroyed or 26 lost unless the objector-appellants are deposed pending the 27 /// 28 /// 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 2 1 appeal1, and Plaintiffs cite to no authority to support their 2 proposition that Rule 27(b) can be invoked in the manner they 3 set forth. 4 the District Court of Maryland in In re Tyson Foods Inc., 5 Chicken Raised Without Antibiotics Consumer Litigation, Case 6 No. 08-1982, for the proposition that Rule 27(b) permits 7 extraordinary discovery pending appeal. (Pl.’s Mot. P. 5.) 8 That order is less than one page in length and contains no 9 substantive or legal analysis. Plaintiffs rely primarily on a decision issued by Although Plaintiffs did not 10 provide the Court with a copy of that unpublished decision, 11 the Court reviewed both the parties’ briefs as well as the 12 court’s order. 13 Tyson specifically contemplated that the parties would be 14 permitted to depose any objectors to the settlement – a fact 15 Plaintiffs failed to disclose. 16 the depositions in Tyson made a specific showing that certain 17 evidence would in fact be lost if the objectors were not 18 deposed. 19 20 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 21 22 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 23 24 25 26 27 28 1 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. 2 Plaintiffs’ Motion for Leave to File a Supplemental Opposition (Docket No. 1370) is DENIED as moot. 3

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