Newport et al v. Burger King Corporation

Filing 174

ORDER re #170 Letter filed by Strategic Restaurants Acquisition Company II, LLC, SRAC Holdings I, Inc., Jerry M. Comstock. Signed by Magistrate Judge Donna M. Ryu on 9/12/2011. (dmrlc2, COURT STAFF) (Filed on 9/12/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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ROY D NEWPORT, et al.,

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Plaintiffs,
v.

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ORDER RE JOINT DISCOVERY
LETTER OF SEPTEMBER 6, 2011
[DOC. NO. 170]

BURGER KING CORP.,

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No. C-10-04511-WHA (DMR)

Defendant.
___________________________________/

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Before the court is the parties’ September 6, 2011 joint letter [Docket No. 170] in which

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Counter-Defendants and Counter-Claimants Strategic Restaurants Acquisition Company II, LLC,

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SRAC Holdings I., Inc., and Jerry M. Comstock (collectively, “Strategic”) seek additional time

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beyond the presumptive seven-hour limit to depose Thomas Archer, James Carberry, and John

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Salmen. Defendant Burger King Corporation (“BKC”) opposes the motion. This matter is suitable

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for determination without oral argument. N.D. Cal. Civ. R. 7-1(b).

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Rule 30(d)(1) of the Federal Rules of Civil Procedure states that a deposition is limited to

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one day of seven hours, unless otherwise stipulated by the parties or by court order. Rule 30(d)(1)

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requires the court to allow additional time “if needed to fairly examine the deponent or if the

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deponent, another person, or any other circumstance impedes or delays the examination.” Rule

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30(d)(1) also makes clear that when evaluating a party’s request to expand the presumptive seven

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hour limit, the court should ensure that the discovery sought is not unreasonably cumulative,

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duplicative, or burdensome. See also Fed. R. Civ. P. 26(b)(2).

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Strategic seeks an additional three hours of deposition each for Archer and Salmen, and an

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additional two hours for Carberry. All three previously were deposed for a full day. Archer is the

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former BKC Assistant General Counsel who apparently managed the defense of BKC’s disability

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litigation nationwide, including the Castaneda class action that underlies this indemnification case.

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Carberry is a BKC Senior Construction Manager who inspects franchisee restaurants within the

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geographic region covered by this case for a variety of issues, including accessibility of restaurants

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to disabled patrons. Salmen is an architect and ADA consultant retained by BKC over the years,

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For the Northern District of California

United States District Court

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including as a non-testifying expert in Castaneda.
The parties do not dispute that the three deponents have knowledge of important issues in

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this case. Strategic argues that it did not have an adequate opportunity to ask questions of each

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witness, since the depositions principally were conducted by plaintiffs’ counsel, who represent the

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approximately seventy-two plaintiffs in this case. Strategic also argues that there are unique issues

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relating to its 2005 acquisition of franchises, including some purchased directly from BKC. In

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response, BKC argues that the deponents already have been subject to extensive questioning on

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topics common to all franchisees and that Strategic did not take steps to reserve adequate time to ask

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questions of the deponents.

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The court finds that Strategic has made a sufficient showing under Rule 30(d)(1) to justify

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some additional deposition time of all three witnesses. Strategic may depose all three witnesses

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each for an additional hour, exclusive of breaks. This provides adequate time to cover areas unique

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to Strategic and also provides an incentive for Strategic to be appropriately selective when asking

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questions in broad subject areas that already have been covered.

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All parties should note that for depositions that currently are underway or have not yet been

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taken in this case, the parties must meet and confer before the deposition session to coordinate how

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much time should be allotted to each party counsel to conduct questioning.

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Conclusion
Strategic's request for additional time to question deponents Archer, Carberry, and Salmen is
GRANTED IN PART. Strategic may depose each of the three witnesses for an additional hour,

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exclusive of breaks.

H

ER

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F
D S T IC O
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M.IRYU T

R NIA

C

DONNA
United States Magistrate Judge

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For the Northern District of California

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Judge D

FO

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Dated: September 12, 2011

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United States District Court

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na M. R

NO

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IT IS SO ORDERED.

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IT IS S
DIFIE
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UNIT
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