Harris v. Vector Marketing Corporation

Filing 293

ORDER Re #292 Joint Letter of August 5, 2010. Signed by Judge Edward M. Chen on 8/9/2010. (emcsec, COURT STAFF) (Filed on 8/9/2010)

Harris v. Vector Marketing Corporation

Doc. 293

1 2 3 4 5 6 7 8 9 10 v. VECTOR MARKETING CORPORATION, Defendant. ___________________________________/ ALICIA HARRIS, Plaintiff, No. C-08-5198 EMC ORDER RE JOINT LETTER OF AUGUST 5, 2010 (Docket No. 292) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Currently pending before the Court is a discovery dispute between the parties as to whether Defendant should be permitted to take the deposition of Plaintiff a second time. Previously, Plaintiff was deposed in or about March 2009, prior to the filing of Defendant's early motion for summary judgment. Federal Rule of Civil Procedure 30(a) provides that, if a party seeks to take a second deposition of a witness, the "party must obtain leave of [the] court, and the court must grant leave to the extent consistent with Rule 26(b)(2)." Fed. R. Civ. P. 30(a)(2)(A)(ii). Rule 26(b)(2) in turn provides that a "court must limit the frequency or extent of discovery . . . if it determines that," e.g., "the party seeking discovery has had ample opportunity to obtain the information by discovery in the action" or "the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(2)(C). While the Court is not unsympathetic to Plaintiff's position, it ultimately concludes that a second deposition is appropriate. While Defendant did make the decision to depose Plaintiff early in the litigation, that was based on a not unjustified belief that the case could be resolved on the merits

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10

early in the proceedings so that neither side would have to incur substantial costs. Moreover, Plaintiff identifies no undue burden that she would suffer if she were to be deposed a second time, and Defendant has stated that it will limit the scope of the deposition to new evidence discovered since the first deposition. The Court also notes that the new evidence about which Defendant seeks to depose Plaintiff is not insignificant, particularly since this is a class action and the Court has an independent duty to protect the interests of the class. See Silber v. Mabon, 957 F.2d 697, 701 (9th Cir. 1992) ("Both the class representative and the courts have a duty to protect the interests of absent class members."). Plaintiff's reliance on Blackwell v. City & County of San Francisco, No. C-07-4629 SBA (EMC), 2010 U.S. Dist. LEXIS 75453 (N.D. Cal. June 25, 2010), is unavailing because, there, the plaintiff sought to take a second deposition not because of new evidence but rather because of his counsel's discovery of a case decided prior to the first deposition which suggested a new theory to support his claim for disability discrimination. See id. at *6. Accordingly, the Court GRANTS Defendant's request to take a second deposition of Plaintiff. The deposition shall be limited to new evidence discovered after the date of the first deposition. The deposition shall be limited to four hours. This order disposes of Docket No. 292.

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IT IS SO ORDERED.

Dated: August 9, 2010 _________________________ EDWARD M. CHEN United States Magistrate Judge

2