Cefalu v. Holder

Filing 47

ORDER RE: DEFENDANT'S MOTION FOR ADDITIONAL DEPOSITION TIME re 45 First Discovery Letter Brief (Issue One letter, refiled per Dkt. 42). Signed by Judge Jacqueline Scott Corley on November 26, 2012. (wsn, COURT STAFF) (Filed on 11/26/2012)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 Northern District of California United States District Court 11 12 13 VINCENT CEFALU, Plaintiff, v. 14 15 16 Case No. 12-0303 TEH (JSC) ORDER RE: DEFENDANT’S MOTION FOR ADDITIONAL DEPOSITION TIME (DKT. NO. 45) ERIC HOLDER, Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, a former employee of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), makes age and disability discrimination claims, as well as claims alleging retaliation. Now pending before the Court is Defendant’s motion to take 11 hours of Plaintiff’s deposition in addition to the 6.5 hours taken in September 2012. (Dkt. No. 45.) After carefully considering the parties’ written arguments, and having reviewed the pleadings in the case, the Court concludes that oral argument is not necessary, see Civ. L. R. 7-1(b), and grants Defendant an additional day (7 hours) of deposition time. BACKGROUND In connection with the allegations in this action, Plaintiff filed three EEO complaints: a February 2, 2006 complaint, an August 4, 2008 complaint, and a January 30, 2012 complaint. According to Defendant, the EEO investigative report itself is several hundred pages. In 2007, 1 in connection with the EEOC proceedings, Defendant deposed Plaintiff. Plaintiff subsequently 2 filed this action in 2012. Plaintiff’s Second Amended Complaint contains 176 paragraphs and 3 challenges conduct from 2006 through Plaintiff’s termination in October 2012. He alleges 4 discrimination based on age and disability, as well as retaliation and contends that 5 Defendant’s conduct has led to severe psychological and emotional distress. 6 Defendant took Plaintiff’s deposition on September 20, 2012 for 6.5 hours. Defendant 7 seeks an additional 11 hours of deposition time based on the breadth of the allegations in this 8 case, the production of documents since his deposition, and the addition of new allegations in 9 the Second Amended Complaint. Plaintiff has offered to sit for an additional one hour of 10 Northern District of California United States District Court 11 deposition time to cover the additional allegations in the Second Amended Complaint. DISCUSSION 12 Federal Rule of Civil Procedure 30(d) limits depositions to 1 day of 7 hours. Fed. R. 13 Civ. P. 30(d)(1). Upon request, however, a “court must allow additional time consistent with 14 Rule 26(b)(2) if needed to fairly examine the deponent.” Id. The Court finds that additional 15 time is required. This case is not a typical employment discrimination lawsuit with a single 16 adverse employment action during a limited time period; instead, Plaintiff alleges multiple 17 adverse employment actions and a plethora of retaliatory actions, in addition to failures to 18 accommodate alleged disabilities and age discrimination. Additional time is warranted based 19 on the sheer volume and nature of Plaintiff’s allegations. Plaintiff offers no support for his 20 assertion that Defendant is not entitled to additional time merely because Defendant deposed 21 Plaintiff as part of the EEO proceedings in 2007. In any event, many of the allegations in the 22 Second Amended Complaint, including Plaintiff’s termination, occurred after Plaintiff’s 2007 23 deposition which is why Plaintiff needed to file EEO complaints in 2008 and 2012. 24 In addition, Plaintiff produced scores of documents, including his medical records, 25 after his September 20 deposition and Defendant must be given the opportunity to question 26 Plaintiff about these documents. Plaintiff’s insistence that Defendant should have waited to 27 depose him until after the document production is not persuasive; since Defendant used 6.5 28 hours of deposition time without the documents he could not have adequately deposed 2 1 Plaintiff about the documents during a single 7 hour deposition. Given the breadth and time 2 span of Plaintiff’s allegations, it is not reasonable to expect that Defendant could have 3 completed Plaintiff’s deposition in one day. 4 Finally, Plaintiff concedes that Defendant should be allowed to depose him on the new 5 allegations in the Second Amended Complaint. Thus, the dispute is not whether Plaintiff 6 should have to sit for another deposition; the dispute is about how long. 7 Plaintiff’s reliance on Somersest Studios, LLC v. School Specialty, Inc., 2011 WL 8 4344596 (N.D. Cal. Sep. 14, 2011) is unavailing. The court noted that “the better practice is 9 for the deposition to go forward to determine how much is able to be covered in the seven Northern District of California hours and, then, if additional time is needed, for counsel to stipulate to extend the deposition 11 United States District Court 10 for a specific additional time period. If the parties cannot reach a stipulation, then Court 12 intervention may be sought.” Id. at *5 (internal quotation marks and citation omitted). That 13 practice was followed here. Having taken Plaintiff’s deposition, Defendant seeks additional 14 time to depose Plaintiff on issues not covered in the September deposition. 15 16 CONCLUSION For the reasons explained above, the Court finds that Defendant requires more time to 17 fairly examine Plaintiff. While Defendant seeks 11 hours, he does not explain how he 18 derived that number. He also does not explain why he did not use the full seven hours in 19 Plaintiff’s first deposition if, as he contends, seven hours was not even enough time to 20 depose Plaintiff on the allegations in the First Amended Complaint. The Court finds that two 21 full days of deposition, for a total of 14 hours, is sufficient to fairly examine Plaintiff, 22 especially in light of the previous EEO deposition. While Defendant may not be able to ask 23 Plaintiff every question of which he could imagine, it is enough time to develop a record 24 such that Defendant can fairly defend himself. Accordingly, Defendant is entitled to one 25 additional day of 7.5 hours, unless the parties agree otherwise. 26 This Order disposes of Docket No. 45. 27 28 3 1 2 IT IS SO ORDERED. Dated: Nov. 26, 2012 _________________________________ JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE 3 4 5 6 7 8 9 10 Northern District of California United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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