Allstate Insurance Company v. ASKO Appliances, Inc.

Filing 81

ORDER re: 77 October 19, 2011 Discovery Letter and Setting Telephonic Hearing. The parties are ordered to meet and confer within 7 days from the date of this order. If the parties are unable to resolve their dispute, they shall file a two-page jo int letter that outlines their proposed compromises within 3 days from the parties' meet-and-confer session. Further, a telephonic hearing to discuss the matter will be scheduled for November 17, 2011 at 11:00 a.m. Signed by Judge Laurel Beeler on 10/31/2011. (lblc2, COURT STAFF) (Filed on 10/31/2011)

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UNITED STATES DISTRICT COURT

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Northern District of California

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Oakland Division
ALLSTATE INSURANCE CO,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 10-01039 LB

Plaintiff(s),

ORDER RE: OCTOBER 19, 2011
DISCOVERY LETTER AND
SETTING TELEPHONIC HEARING

v.
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ASKO APPLIANCES INC,
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Defendant(s).
_____________________________________/

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I. INTRODUCTION
The parties in this insurance subrogation action were referred to this court for discovery

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purposes. Now, in accordance with this court’s Standing Order, defendant and third party plaintiff

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ASKO Appliances, Inc. (“ASKO Appliances”) and third-party defendant Eltek S.p.A. (“Eltek”) have

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submitted a joint letter regarding the deposition of Eltek’s designee under Federal Rule of Civil

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Procedure 30(b)(6). As explained below, the court (1) directs the parties to meet and confer once

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again and to submit a second joint letter and (2) sets a telephonic hearing on November 17, 2011 to

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discuss the matter with them.

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II. BACKGROUND

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On March 6, 2007, a fire erupted at real property located at 208 Fairmont St., San Francisco,

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California. Joint Letter, ECF No. 77 at 1.1 The property was insured by plaintiff Allstate Insurance

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page
number at the top of the document, not the pages at the bottom.
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Co. (“Allstate”), which paid the property owner $166,494.78 to cover the damages. Id. As a result,

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Allstate became subrogated to the rights of the property owner to pursue reimbursement from all

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parties responsible for the damages. See Allstate’s Motion for Summary Judgment, ECF No. 70-11

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at 2.2 Allstate’s subsequent investigation concluded that the fire originated inside of an Asko brand

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Model 1385 dishwasher that was installed in the kitchen of the property at the time of the fire. See

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id.

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Allstate then filed the instant product liability action against ASKO Appliances, the distributor

complaint against third-party defendants ASKO Cylinda A.B. (“ASKO Cylinda”), the manufacturer

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of the dishwasher, and Eltek, the manufacturer of a wax motor found within the dishwasher, seeking

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equitable indemnity, contribution, and declaratory relief.3 First Amended Third-Party Complaint,

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For the Northern District of California

of the dishwasher. Joint Letter, ECF No. 77. ASKO Appliances, in turn, filed a third-party

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UNITED STATES DISTRICT COURT

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ECF No. 13. ASKO Appliances alleges that the fire originated, at least in part, from Eltek’s wax

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motor. Id. ¶ 12. Eltek filed counterclaims against ASKO Appliances and ASKO Cylinda seeking

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equitable indemnification and contribution as well. Answer, ECF No. 25.

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On July 11, 2011, Judge Seeborg referred all discovery matters in this case to this court.

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Discovery Referral Order, ECF No. 58. In accordance with the procedures that are set forth in the

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court’s Standing Order, ASKO Appliances and Eltek submitted a joint letter seeking the court’s

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intervention in a discovery dispute. Joint Letter, ECF No. 77. The dispute, described below, is over

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the timing and scope of Eltek’s deposition.

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III. LEGAL STANDARD

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Federal Rule of Civil Procedure 30(a)(1) provides that, subject to certain limitations, “[a] party

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may, by oral questions, depose any person, including a party, without leave of court . . . .” “In its

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ASKO Appliance’s Notice of Removal, which should include the initial complaint, is not
available for download from the ECF system. See Notice of Removal, ECF No. 1. Thus, for some
basic background facts, the court will cite to Allstate’s motion for summary judgment.
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ASKO Appliances also sued Honeywell International, Inc. (“Honeywell”), the
manufacturer of a “door switch” found within the dishwasher and which ASKO Appliances also
alleged to have caused the fire. First Amended Third-Party Complaint, ECF No. 13. Honeywell
was later voluntarily dismissed and is no longer a party to this action. Voluntary Dismissal, ECF
No. 69.
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notice or subpoena, a party may name as the deponent a public or private corporation, a partnership,

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an association, a governmental agency, or other entity and must describe with reasonable

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particularity the matters for examination. The named organization must then designate one or more

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officers, directors, or managing agents, or designate other persons who consent to testify on its

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behalf; and it may set out the matters on which each person designated will testify.” Fed. R. Civ. P.

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30(b)(6).

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“On motion or on its own,” however, “the court must limit the frequency or extent of discovery

unreasonably cumulative or duplicative, or can be obtained from some other source that is more

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convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample

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opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the

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For the Northern District of California

otherwise allowed by these rules or by local rule if it determines that: (I) the discovery sought is

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UNITED STATES DISTRICT COURT

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proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in

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controversy, the parties’ resources, the importance of the issues at stake in the action, and the

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importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C).

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IV. DISCUSSION

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In this action, ASKO Appliances wants to take Eltek’s deposition pursuant to Federal Rule of

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Civil Procedure 30(b)(6). It is undisputed that ASKO Appliances is entitled to do so. Fed. R. Civ.

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P. 30(a)(1) & (b)(6); see also Joint Letter, ECF No. 77 at 4 (“Eltek in no way objects to Asko’s right

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to notice a deposition and has already designated a corporate witness from Eltek, Mr. Marco Moro,

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the Director of Business & Development for Eltek’s Appliance Unit.”). What is disputed, though, is

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how best to coordinate Eltek’s deposition in this case with Eltek’s certain-to-occur depositions in

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two other pending federal actions that involve nearly identical disputes between ASKO Appliances

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and Eltek. See Swenton, et al. v. Asko Applicances, Inc., No. 3:09-cv-01208 (D. Conn.); Automobile

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Inc. Co. of Hartford, CT a/s/o Jay Weinstein and Ellyne Weinstein v. Asko Appliances, Inc., et al.,

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No. 2:09-cv-05017 (E.D.N.Y.). The court notes that counsel for ASKO Appliances and Eltek

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represent their respective parties in all three actions.

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In short, ASKO Appliances wants to depose Eltek now and worry about the other depositions
later, while Eltek wants to have one deposition for all three cases. Eltek believes this makes sense

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because its designated witness, Marco Moro, will have to travel from Italy to attend the depositions.

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One deposition, it says, will conserve client, attorney, and judicial resources, especially because Mr.

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Moro will have to answer largely the same questions for each action.

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In support of its position, Eltek refers the court to In re Eli Lilly and Co. Patent Litig., 446

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F.Supp. 242 (J.P.M.L. 1978). In that case, the Judicial Panel on Multidistrict Litigation denied the

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defendants’ motion to transfer two federal actions pending in the Southern District of Florida and the

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Southern District of New York to the District of New Jersey, where a third federal action was

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pending, in part because the discovery accompanying the three actions would not be so time

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consuming as to justify transfer. Id. at 243-44. The Panel stated:

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For the Northern District of California

UNITED STATES DISTRICT COURT

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We observe that suitable alternatives to Section 1407 transfer are available in order to
minimize the possibility of duplicative discovery. For example, notices for a
particular deposition could be filed in all actions, thereby making the deposition
applicable in each action; the parties could seek to agree upon a stipulation that any
discovery relevant to more than one action may be used in all those actions; and any
party could seek orders from the three courts directing the parties to coordinate their
pretrial efforts. See In re Commercial Lighting Products, Inc. Contract Litigation,
415 F.Supp. 392, 393 (Jud.Pan.Mult.Lit.1976). See also Manual for Complex
Litigation, Parts I and II, § 3.11 (rev. ed. 1977). Moreover, the parties may seek stays
of two of the actions pending the outcome of the third.

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Id. at 244. Indeed, it appears that the court has many options when exercising its discretion to

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manage the discovery process when multiple, related cases are pending. See Federal Judicial Center,

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Manual for Complex Litigation (4th ed. 2004) §§ 11.423, 11:455, 20:14 (noting that courts should

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encourage techniques for coordinating discovery and avoiding duplication; discussing several

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options, including, for example, using joint deposition notices or agreements among the parties that

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discovery taken in one case can be used in related proceedings).

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ASKO Appliances suggests that coordination of discovery is unwarranted because the three

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federal actions have not been consolidated by the Judicial Panel on Multidistrict Litigation. See

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Joint Letter, ECF No. 77 at 3 (“If Eltek wanted to have its PMK deposed one time for multiple

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federal cases, then Eltek should have moved to consolidate or coordinate the cases in the Judicial

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Panel on Multi-District Litigation.”); id. (“Asko is entitled to depose Eltek’s PMK in the manner it

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has chosen. Asko is merely following established rules of procedure. The instant action, the

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Weinstein action, and the Swenton action are separate actions, in different District Courts.”). But the

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Federal Judicial Center’s Manual for Complex Litigation specifically contemplates coordinating

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discovery among similar – but unconsolidated – cases pending in different federal districts. See

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Federal Judicial Center, Manual for Complex Litigation (4th ed. 2004) § 20:14 (“Coordination

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Between Courts”). Moreover, the Federal Rules of Civil Procedure dictate that discovery should be

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a cooperative process and not an unreasonably burdensome one. See, e.g., Fed. R. Civ. P.

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26(b)(2)(C) & (f); see also “The Sedona Conference Cooperation Proclamation,” 10 SEDCJ 331,

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332 (2009) (The Sedona Conference, a nonprofit legal policy research and education organization

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comprised of judges, attorneys, and electronic discovery experts, states in “The Cooperation

Facebook PPC Advertising Litigation, No. C09–03043 JF (HRL), 2011 WL 1324516, at *1 n.1

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For the Northern District of California

Proclamation” that courts see discovery rules “as a mandate for counsel to act cooperatively.”); In re

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UNITED STATES DISTRICT COURT

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(N.D. Cal. Apr. 6, 2011) (citing The Sedona Conference’s guidance with approval); JSR Micro, Inc.

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v. QBE Ins. Corp., No. C-09-03044 PJH (EDL), 2010 WL 1338152, at *3 (N.D. Cal. Apr. 5, 2010)

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(same).

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Given this context, the court believes it would be worthwhile to require the parties to meet and

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confer once more to discuss an amicable solution to this problem. If they still are not able to come

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to one, the court will discuss the matter with them further.

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V. CONCLUSION

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The parties are ordered to meet and confer within 7 days from the date of this order. If the

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parties are unable to resolve their dispute, they shall file a two-page joint letter that outlines their

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proposed compromises within 3 days from the parties’ meet-and-confer session. Further, a

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telephonic hearing to discuss the matter will be scheduled for November 17, 2011 at 11:00 a.m. The

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parties shall contact the contact Courtroom Deputy Lashanda Scott ([phone]) no later than

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November 10, 2011 to make the necessary arrangements.

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IT IS SO ORDERED.
Dated: October 31, 2011
_______________________________
LAUREL BEELER
United States Magistrate Judge

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