Martensen v. Koch

Filing 60

ORDER RE: JOINT DISCOVERY LETTER (Dkt. No. 59). Signed by Magistrate Judge Jacqueline Scott Corley on 6/19/2013. (ahm, COURT STAFF) (Filed on 6/19/2013)

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

KIRBY MARTENSEN,
Plaintiff,

14

Case No.: C-12-05257 JSC
ORDER RE: JOINT DISCOVERY
LETTER (Dkt. No. 59)

v.

15
16
17

WILLIAM KOCH, et al.,
Defendant.

18
19

Presently before the Court is the parties’ joint discovery letter concerning, among other

20
21

things, whether Plaintiff may exceed Rule 30’s 10-deposition limit. (Dkt. No. 59.) After carefully

22

considering the parties’ disputes, the Court concludes that oral argument is unnecessary,

23

see L.R. Civ. 7-1(b), and rules as set forth below.

24

A.

25

Plaintiff’s Request to Take 20 Percipient Witness Depositions
Federal Rule of Civil Procedure 30(a)(2) presumptively limits the number of depositions that

26

each side may take to ten depositions. See Fed. R. Civ. P. 30(a)(2) (“A party must obtain leave of

27

court, and the court must grant leave to the extent consistent with Rule 26(b)(2) . . . if the parties

28

have not stipulated to the deposition and . . . the deposition would result in more than 10 depositions

1

being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party

2

defendants . . . .”). Under Rule 26(b)(2), “the court may alter the limits in these rules on the number

3

of depositions and interrogatories or on the length of depositions and interrogatories or on the length

4

of depositions under Rule 30.” Fed. R. Civ. P. 26(b)(2)(A).

5

“A party seeking to exceed the presumptive number of depositions must make a

6

particularized showing of the need for the additional discovery.” Authentec, Inc. v. Atrua Techs.,

7

Inc., 2008 WL 5120767, at *1 (N.D. Cal. Dec. 4, 2008). “To that end, courts will generally not grant

8

leave to expand the number of depositions until the moving party has exhausted the ten depositions

9

permitted as of right under Rule 30(a)(2).” Id. “Moreover, in the court’s view, Rule 30(a)(2)

Northern District of California

contemplates that a party has already taken at least some of its ten depositions before a motion is

11
United States District Court

10

filed seeking leave of court for a proposed deposition that would result in more than ten depositions

12

being taken under this rule.” Id.

13

Plaintiff, who has not conducted a single deposition, argues that he should be granted leave

14

to take 20 depositions given the 40 identified percipient witnesses and the need to prevent multiple

15

trips to Florida and Colorado. The Court disagrees. Plaintiff fails to make a particularized showing

16

as to why he needs more than the 10 allotted depositions. Merely asserting that there are 40

17

identified percipient witness is insufficient since “[t]he number of potential witnesses does not

18

justify deposing every one.” In re At Home Corp., 2005 WL 289976, at *3 (N.D. Cal. Feb. 4, 2005).

19

In addition, the possibility that Plaintiff may have to make more than one trip to Florida and

20

Colorado to depose witnesses does not justify setting aside the requirements of the Federal Rules.

21

Plaintiff filed this action with full knowledge that many potential witnesses lived outside California.

22

Further, “[h]aving taken not a single deposition to date, [Plaintiff] cannot possibly know what

23

information [he] needs but cannot obtain from [his] 10 permitted depositions.” Authentec, Inc.,

24

2008 WL 5120767, at *2. Plaintiff’s request is accordingly denied. Plaintiff may renew his request

25

once he can make a particularized showing as to why additional depositions are necessary. This

26

requires that Plaintiff take “at least some” of his 10 depositions. Id. at *1.

27

//

28

//

2

1

B.

Deposition Dates

2

Plaintiff seeks “confirmation” of the dates for his proposed depositions. However, as made

3

clear in the joint letter, the parties are actively working to arrange depositions over the summer and

4

the early fall. The parties, not the Court, are in the best position to decide when the depositions will

5

occur. In addition, the parties’ dispute concerning a discovery cutoff extension is premature.

6

Because the timing of the depositions remains uncertain, it is not apparent that an extension is

7

necessary. Once it is known when the depositions will occur, the parties, and the Court, will be in a

8

better position to amend the case schedule if necessary.

9

C.

10

Deposition Subpoenas
Plaintiff also requests that Defendant be required to inform him of the witnesses for which

Northern District of California

United States District Court

11

Defendant will accept service. Defendant argues that he will provide Plaintiff such information once

12

Plaintiff identifies the 10 witnesses he intends to depose. The Court agrees with Defendant.

13

Defendant is not required to determine whether it is authorized to accept service for witnesses that

14

Plaintiff is not allowed to depose.

15
16

IT IS SO ORDERED.

17
18

Dated: June 19, 2013
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28

3