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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 ROY D NEWPORT, et al., 12 13 Plaintiffs, v. 14 ORDER RE JOINT DISCOVERY LETTER OF SEPTEMBER 6, 2011 [DOC. NO. 170] BURGER KING CORP., 15 No. C-10-04511-WHA (DMR) Defendant. ___________________________________/ 16 17 Before the court is the parties’ September 6, 2011 joint letter [Docket No. 170] in which 18 Counter-Defendants and Counter-Claimants Strategic Restaurants Acquisition Company II, LLC, 19 SRAC Holdings I., Inc., and Jerry M. Comstock (collectively, “Strategic”) seek additional time 20 beyond the presumptive seven-hour limit to depose Thomas Archer, James Carberry, and John 21 Salmen. Defendant Burger King Corporation (“BKC”) opposes the motion. This matter is suitable 22 for determination without oral argument. N.D. Cal. Civ. R. 7-1(b). 23 Rule 30(d)(1) of the Federal Rules of Civil Procedure states that a deposition is limited to 24 one day of seven hours, unless otherwise stipulated by the parties or by court order. Rule 30(d)(1) 25 requires the court to allow additional time “if needed to fairly examine the deponent or if the 26 deponent, another person, or any other circumstance impedes or delays the examination.” Rule 27 30(d)(1) also makes clear that when evaluating a party’s request to expand the presumptive seven 28 1 hour limit, the court should ensure that the discovery sought is not unreasonably cumulative, 2 duplicative, or burdensome. See also Fed. R. Civ. P. 26(b)(2). 3 Strategic seeks an additional three hours of deposition each for Archer and Salmen, and an 4 additional two hours for Carberry. All three previously were deposed for a full day. Archer is the 5 former BKC Assistant General Counsel who apparently managed the defense of BKC’s disability 6 litigation nationwide, including the Castaneda class action that underlies this indemnification case. 7 Carberry is a BKC Senior Construction Manager who inspects franchisee restaurants within the 8 geographic region covered by this case for a variety of issues, including accessibility of restaurants 9 to disabled patrons. Salmen is an architect and ADA consultant retained by BKC over the years, 11 For the Northern District of California United States District Court 10 including as a non-testifying expert in Castaneda. The parties do not dispute that the three deponents have knowledge of important issues in 12 this case. Strategic argues that it did not have an adequate opportunity to ask questions of each 13 witness, since the depositions principally were conducted by plaintiffs’ counsel, who represent the 14 approximately seventy-two plaintiffs in this case. Strategic also argues that there are unique issues 15 relating to its 2005 acquisition of franchises, including some purchased directly from BKC. In 16 response, BKC argues that the deponents already have been subject to extensive questioning on 17 topics common to all franchisees and that Strategic did not take steps to reserve adequate time to ask 18 questions of the deponents. 19 The court finds that Strategic has made a sufficient showing under Rule 30(d)(1) to justify 20 some additional deposition time of all three witnesses. Strategic may depose all three witnesses 21 each for an additional hour, exclusive of breaks. This provides adequate time to cover areas unique 22 to Strategic and also provides an incentive for Strategic to be appropriately selective when asking 23 questions in broad subject areas that already have been covered. 24 All parties should note that for depositions that currently are underway or have not yet been 25 taken in this case, the parties must meet and confer before the deposition session to coordinate how 26 much time should be allotted to each party counsel to conduct questioning. 27 28 2 1 2 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, 4 exclusive of breaks. H ER N F D S T IC O R M.IRYU T R NIA C DONNA United States Magistrate Judge 9 10 11 For the Northern District of California on Judge D FO RT Dated: September 12, 2011 8 United States District Court yu na M. R NO 7 IT IS SO ORDERED. A 6 ERED O ORD D IT IS S DIFIE AS MO LI UNIT ED 5 ISTRIC ES D TC AT T RT U O S 3 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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