Carroll v. Wells Fargo & Company et al

Filing 159

ORDER by Judge Edward M. Chen denying 153 Defendants' Motion for Relief From Nondispositive Pretrial Order of Magistrate Judge. (emclc2, COURT STAFF) (Filed on 1/3/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KELLY CARROLL, et al.,
Plaintiffs,

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Case No. 15-cv-02321-EMC

v.
WELLS FARGO & COMPANY, et al.,
Defendants.

ORDER DENYING DEFENDANTS’
MOTION FOR RELIEF FROM
NONDISPOSITIVE PRETRIAL ORDER
OF MAGISTRATE JUDGE, DATED
DECEMBER 9, 2016

For the Northern District of California

United States District Court

Docket Nos. 153, 156
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Judge Westmore issued a discovery order on December 9, 2016, in which she held, inter

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alia, that Plaintiffs could take the deposition of Ms. Tolstedt. See Docket No. 148 (discovery

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order). Defendants have now filed a motion seeking relief from that order. Defendants‟ motion is

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hereby DENIED. See Civ. L.R. 73-2 (providing that, unless ordered by the district judge, no

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response to the motion “need be filed and no hearing will be held concerning the motion”; also

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providing that the district judge “may deny the motion by written order at any time”).

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Under Federal Rule of Civil Procedure 72(a), a district judge “must consider timely

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objections” to a magistrate judge‟s nondispositive order and “modify or set aside any part of the

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order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). “Clear error exists

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when the district court is „left with the definite and firm conviction that a mistake has been

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committed.‟” Titus v. Humboldt Cnty. Fair Ass’n, No. C 14-01043 SBA, 2015 U.S. Dist. LEXIS

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162517, at *3 (N.D. Cal. Dec. 1, 2015).

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In their motion, Defendants argue that Judge Westmore‟s order is contrary to law because

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it failed to apply the apex doctrine to Ms. Tolstedt on the ground that she is no longer employed

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by Wells Fargo. Defendants, however, have mischaracterized Judge Westmore‟s order. Judge

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Westmore did not hold that the apex doctrine is not applicable. In fact, she indicated that, under

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the apex doctrine, there were grounds to depose Ms. Tolstedt because “Plaintiffs‟ representation

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regarding [her] prior positions in the company indicates that she may possess unique, first-hand

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knowledge of the corporate culture that allegedly led to off-the-clock work.” Docket No. 148

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(Order at 4). That Judge Westmore subsequently added that she did “not find the apex doctrine

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determinative . . . because Ms. Tolstedt is no longer employed by Wells Fargo,” Docket No. 148

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(Order at 4) (emphasis added), is not the same thing as holding that the apex doctrine has no

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applicability.

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Accordingly, the Court denies Defendants‟ request for relief from Judge Westmore‟s order
permitting the deposition of Ms. Tolstedt. To the extent Plaintiffs have now argued (in a letter

well as other witnesses, see Docket No. 156 (letter), the Court rules as follows. As to Ms.

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For the Northern District of California

brief to the Court) that Defendants have failed to provide contact information for Ms. Tolstedt as

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United States District Court

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Tolstedt, if she has authorized the attorney to accept service of the subpoena on her behalf, then

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there is no need for Plaintiffs to obtain (at this juncture) her personal contact information. But if

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the attorney is not authorized to accept service, then Defendants must provide the personal contact

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information for Ms. Tolstedt. As for the contact information of other witnesses, the Court orders

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the parties to meet and confer either in person or by telephone. If the parties are unable to reach

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agreement, then the discovery dispute(s) shall be taken to Judge Westmore consistent with the

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Court‟s prior discovery referral.

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This order disposes of Docket Nos. 153 and 156.

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IT IS SO ORDERED.

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Dated: January 3, 2017
______________________________________
EDWARD M. CHEN
United States District Judge

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