Makreas v. First National Bank of Northern California et al
Filing
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Order by Magistrate Judge Kandis A. Westmore granting in part and denying in part 108 Discovery Letter Brief.(kawlc2, COURT STAFF) (Filed on 2/25/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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NICK MAKREAS,
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Plaintiff,
Case No.: 11-cv-02234-JSW (KAW)
ORDER REGARDING DISCOVERY
DISPUTE
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Northern District of California
United States District Court
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vs.
FIRST NATIONAL BANK OF NORTHERN
CALIFORNIA, et al.,
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Defendants.
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Plaintiff and Defendant First National Bank of Northern California filed a joint letter
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regarding two discovery disputes on January 20, 2013. The first dispute is over FNBNC's Rule
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30(b)(6) deponent's response to a particular line of questioning. The second relates to the production
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of telephone records.
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I.
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Plaintiff's Rule 30(b)(6) deposition notice states that FNBNC's person most knowledgeable
PMK Deposition
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(PMK) will be expected to testify regarding "What YOU have told the subsequent purchasers of the
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PROPERTY about this lawsuit." FNBNC designated Kathy Castor as its PMK; she was deposed in
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this capacity and her individual capacity on January 3. Castor testified that she had no knowledge of
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what was told to the purchaser of the property, but that Randy Brugioni, another employee of
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FNBNC, would have knowledge. Brugioni was deposed on January 10. He testified that he had no
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knowledge of what was told to the subsequent purchasers of the property.
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Now, Plaintiff requests that FNBNC provide either 1) a declaration that binds the company
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stating that there is no one who has knowledge of this issue, or 2) testimony from Castor at her
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upcoming deposition stating whether anyone at the company has knowledge of this issue.
Pursuant to Rule 30(b)(6), a company “must make a conscientious good-faith endeavor to
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designate the persons having knowledge of the matters sought by the party noticing the deposition
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and to prepare those persons in order that they can answer fully, completely, unevasively, the
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questions posed . . . .The deponent must prepare the designee to the extent matters are reasonably
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available, whether from documents, past employees, or other sources.” In re JDS Uniphase Corp.
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Sec. Litig., C-02-1486 CW (EDL), 2007 WL 219857 (N.D. Cal. Jan. 29, 2007).
FNBNC takes the position that Brugioni has already testified at length about the property,
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"including what FNBNC told the purchasers regarding this lawsuit." The excerpts of Brugioni's
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United States District Court
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deposition attached to the parties' joint letter show that Brugioni testified that he did not know if the
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seller had disclosed the lawsuit to the purchasers, and that he himself had not spoken to the
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purchasers. Thus, contrary to FNBNC's argument, Brugioni's testimony did not give Plaintiff the
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information sought. Nor did Brugioni's testimony satisfy FNBNC's obligation to produce a PMK to
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answer the question on behalf of the company.
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FNBNC further argues that it told Plaintiff during the meet and confer process that it cannot
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produce a witness with knowledge of what was told to the purchaser, because it was not involved in
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the sale. But a representation by an attorney during the meet and confer process is not sworn
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testimony that is binding on the company.
Because FNBNC has not properly responded to Category 15 of the PMK notice, it must
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either produce a declaration on behalf of the company stating that no one at the company has
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knowledge of what was told to the purchaser, and explaining what steps the declarant took to
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establish this; or produce a PMK for deposition on this topic only.1
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It is not clear from the joint letter when Kathy Castor's second deposition will take place. If Castor
is sufficiently prepared, she may be able to satisfactorily testify on the subject.
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II.
Telephone Records
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Plaintiff asks that FNBNC be compelled to obtain certain telephone records from its carrier.
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In the alternative, Plaintiff seeks leave to subpoena the records. Fact discovery closed in this case
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on January 9, 2013. See Dkt # 105 (order granting stipulation to continue deadline for filing
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motions to compel fact discovery).
Plaintiff propounded requests for production of documents together with the notice of
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specifically asked Defense counsel to produce phone records showing that a Mr. Valencia spoke to
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someone at FNBNC on a particular day. At the PMK deposition, the phone records were not
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produced. FNBNC's counsel stated that FNBNC did not have the phone records, and that she
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believed that the carrier would not give the records to the company without a subpoena. She
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deposition of FNBNC's PMK. At a different deposition on December 17, 2012, Plaintiff's counsel
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United States District Court
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admitted that she had not asked the carrier for the records in this case.
In the joint letter, FNBNC's counsel now states that the company then tried to obtain the
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records from the carrier, but was informed that the records could only be obtained through a
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subpoena.
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Because FNBNC cannot obtain the records by asking the carrier for them, the records are not
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within FNBNC's possession, custody, or control. See Fed. R. Civ. P. 34(a)(1). Thus, FNBNC is not
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obligated to produce the records. As fact discovery is closed, the Court will not permit Plaintiff to
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subpoena the records. Plaintiff should not have assumed that FNBNC was going to produce the
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records, especially since FNBNC's counsel stated, before the close of discovery, that she believed
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that the company could not obtain the records. Plaintiff was not diligent in subpoenaing the
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documents before the discovery cutoff, and has not shown good cause to extend the fact discovery
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deadline.
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III.
Conclusion
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For the reasons explained above, it is hereby ORDERED that within 14 days of this order,
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FNBNC must either produce a declaration on behalf of the company stating that no one at the
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company has knowledge of Category 15 of the PMK notice, and explaining what steps the declarant
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took to establish this; or produce a PMK for deposition on this topic only. Plaintiff's request for
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leave to subpoena the telephone records after the close of discovery is denied.
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IT IS SO ORDERED.
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DATE: February 25, 2013
___________________________
KANDIS A. WESTMORE
UNITED STATES MAGISTRATE JUDGE
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Northern District of California
United States District Court
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