Century Aluminum Company et al v. AGCS Marine Insurance Co.

Filing 108

ORDER GRANTING IN PART AND DENYING IN PART Motion for Leave to Take Additional Depositions 107 . Signed by Judge Nathanael M. Cousins on 06/14/2012. (nclc2, COURT STAFF) (Filed on 6/14/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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CENTURY ALUMINUM COMPANY, et al.,

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Case No. 11-cv-02514 YGR (NC)

Plaintiffs,

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ORDER GRANTING IN PART
AND DENYING IN PART
MOTION FOR LEAVE TO TAKE
ADDITIONAL DEPOSITIONS

v.
AGCS MARINE INSURANCE CO.,

Re: Dkt. No. 107

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Defendant.

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AGCS moves for leave to depose six additional witnesses in excess of the

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presumptive 10-deposition limit under Federal Rule of Civil Procedure 30(a)(2)(A).

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Century/Nordural opposes the motion asserting that it is premature and that AGCS has

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made no particularized showing of necessity for the additional depositions. The Court

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finds that the motion is appropriate for determination without oral argument. See Civil

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L.R. 7-1(b).

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As an initial matter, the Court finds that AGCS’ motion for leave to take

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additional depositions is timely. The Court also finds that AGCS has made a

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particularized showing of the need for certain proposed depositions, but not others.

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Accordingly, AGCS’ motion for additional depositions is GRANTED in part and

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DENIED in part.

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//
Case No. 11-cv-02514 YGR (NC)
ORDER RE MOTION FOR
ADDITIONAL DEPOSITIONS

I. BACKGROUND

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AGCS has conducted the following depositions: (1) Virginia Lawson, Century’s

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risk manager that arranged the relevant insurance; (2) Donna Chan of WS, an account

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manager for the Century/Nordural account who dealt with AGCS respecting placement

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of the insurance and the terms of coverage; (3) Noelle Rodier of WS, an account

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executive for the Century/Nordural account who dealt with Lawson and AGCS with

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respect to placement of the insurance; (4) Guomundur Jonsson, Nordural employee

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involved in re-securing and inspecting the subject transformer; (5) Orvar Armannsson,

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Nordural employee involved in repairs and testing of the transformer as well as meeting

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with ABB respecting the internal securing of the transformer for the July, 2010 voyage;

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(6) Sandra Sigurjonsdottir, involved with the transformer shipment and the repair and

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business interruption claims; and (7) the 30(b)(6) deposition of the Century/Nordural

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representative relating to the shipment of the transformer, the insurance claim,

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allegations made against AGCS in this action, and the alleged damages incurred by

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plaintiffs. Joint Letter Brief at 2. AGCS contends that these deponents have information

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pertaining to the following subject matters: procurement and placement of the insurance

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policy; inspection, repairs, and testing of the subject transformer; transportation of the

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subject transformer; conditions encountered during transportation of the subject

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transformer; and the current disputed insurance claim. See Joint Letter Brief at 2.

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AGCS has also scheduled the following depositions to occur before June 30,

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2012: (1) ABB witnesses who will testify about repairs to the transformer, securing the

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internals of the transformer for voyages from Norway to Iceland, instructions concerning

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“re-securing the internals of the transformer,” and the costs of repair and the payment by

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Nordural; and (2) Statnett witnesses who will testify on issues regarding the three ocean

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voyages including noises heard from inside the transformer on those voyages and sea

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conditions encountered on the voyages. Joint Letter Brief at 2.

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AGCS now moves for leave to take additional depositions of: (1) Gerhard Haas,
the designated claims representative at WS who interacted with AGCS respecting the
Case No. 11-cv-02514 YGR (NC)
ORDER RE MOTION FOR
ADDITIONAL DEPOSITIONS

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claim from its first submission; (2) Zac Overbay, Haas’ supervisor who interacted with

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Haas regarding progression of the claim; (3) Shelly Lair, a Century employee involved

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with the presentation of the Nordural claim to AGCS, including the consequential loss

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and repairs, the determination of the end date for the business interruption claim, and

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alleged collateral damage to be included in the property damage claim; (4) Wayne Hale,

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a Century employee “also involved with the preparation and presentation of

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Century/Nordural’s claim to AGCS respecting which Plaintiffs now allege AGCS acted

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in bad faith as well as the determination of the end date for the BI claim, and the alleged

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collateral damage to be included in the property damage claim”; (5) Bergbor

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Guomundsson, the Nordural accounting manager that processed invoices respecting the

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repair of the transformer and arranged payments of invoices while Sigurjonsdottir was on

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leave; and (6) Magnus Valsson, the Nordural purchasing/shipping coordinator respecting

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sea transport, who coordinated arrangements for the loading of the transformer in Iceland

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and who participated in plaintiffs’ property damage claims. Joint Letter Brief at 2-3.

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AGCS states that the additional depositions are necessary for AGCS to adequately

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prepare for trial. Id. at 3.

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II. DISCUSSION

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A. AGCS’ Request to Take Additional Depositions

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1. Exhaustion Requirement

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Generally, courts do not grant leave for a party to take additional depositions until

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the moving party has exhausted the 10-deposition limit imposed by Rule 30(a)(2). See

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Authentec, Inc. v. Atura Tech, No. 08-cv-1423 PJH, 2008 WL 5120767, at *2 (N.D. Cal.

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Dec. 4, 2008) (denying motion for leave to take additional depositions before plaintiff

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had taken a single deposition). Courts have departed from this “exhaustion rule” where

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there are multiple plaintiffs and defendants, and the complexity of the case clearly

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warrants more than ten depositions. See, e.g., Del Campo v. American Corrective

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Counseling Servs., Inc., No. 01-cv-21151 JW (PVT), 2007 WL 3306496, at *6 (N.D.

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Cal. Nov. 6, 2007) (complex case involving five plaintiffs and eleven defendants, court
Case No. 11-cv-02514 YGR (NC)
ORDER RE MOTION FOR
ADDITIONAL DEPOSITIONS

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found that it would be prejudicial to require plaintiffs to choose to take ten depositions

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before they knew whether they would be granted more).

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Here, AGCS has completed seven fact depositions and has an additional three to

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five depositions scheduled to be completed by June 30, 2012. Joint Letter Brief at 1.

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Though only three parties are involved in this litigation, discovery has been sought from

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“various entities and witnesses in Northern Europe, including AGCS, Century and/or

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Nordural personnel and certain third parties such as representatives of the vessel owner,

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the repair facility, insurance adjusters and various surveyors and inspectors in Iceland

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and/or Norway.” Joint Case Management Statement at 6, Dkt. No. 56. As AGCS has

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scheduled 10 depositions, and in light of the large number of percipient witnesses and

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the numerous factual issues involved, the Court finds AGCS has met the “exhaustion”

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requirement. See Del Campo, Inc., 2007 WL 3306496 at *6.

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2. Necessity of Additional Depositions

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Under Federal Rule of Civil Procedure 30(a)(2)(A), “a party must obtain leave of

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

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the parties have not stipulated to the deposition and . . . the deposition would result in

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more than 10 depositions being taken under this rule.” FED. R. CIV. P. 30(a)(2)(A). The

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party must also make a “particularized showing” of the need for the additional

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depositions. See C & C Jewelry Mfg., Inc. v. West, No. 09-cv-01303 JF (HRL), 2011

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WL 767839, at *1 (N.D. Cal. Feb. 28, 2011).

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Although the scope of discovery is broad under the Federal Rules, a court must

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limit the frequency or extent of discovery otherwise allowed if it determines that “(i) the

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discovery is cumulative or duplicative, or can better be obtained from some other source;

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(ii) the party seeking discovery has had ample opportunity to obtain the information by

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discovery in the action; and (iii) the burden or expense of the proposed discovery

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outweighs its likely benefit.” FED. R. CIV. P. 26(b)(2)(C)(i)-(iii); .

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While additional depositions may be necessary for AGCS to prepare effectively
for trial, the Court limits the additional depositions as follows:
Case No. 11-cv-02514 YGR (NC)
ORDER RE MOTION FOR
ADDITIONAL DEPOSITIONS

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1. WS Employees Gerhard Haas and Zac Overbay

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AGCS seeks the depositions of Gerhard Haas, the designated claims

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representative at WS who interacted with AGCS respecting the insurance claim, and Zac

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Overbay, Haas’ supervisor. Letter Brief at 1-2. In the letter brief, AGCS referenced two

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e-mail communications stating that Haas and Overbay will be “handling” the loss. See

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Joint Letter Brief at 3 n.4. The Court finds AGCS has shown a particularized need for

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the deposition of a WS claims representative that handled the loss. The Haas and

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Overbay depositions, however, will likely be duplicative. Accordingly, AGCS is

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ordered to depose either Haas or Overbay and must inform Century/Nordural on or

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before June 22, 2012 whether it intends to depose Haas or Overbay.

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2. Century Employees Lair and Hale

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As to Century employees Lair and Hale, the Court notes that AGCS has already

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sought a 30(b)(6) deposition regarding Century/Nordural’s insurance claim to AGCS.

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AGCS states that Lair and Hale will be deposed on the “presentation of the

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Century/Nordural claim to AGCS.” See Joint Letter Brief at 2. While the Court finds

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AGCS has shown a particularized need to depose a Century representative regarding

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presentation of the Century/Nordural claim to AGCS, deposing both Lair and Hale

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would likely be duplicative. Accordingly, AGCS is to depose either Lair or Hale, but

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not both. AGCS must inform Century/Nordural on or before June 22, 2012 of its intent

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to depose either Lair or Hale.

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3. Guomundsson and Valsson Depositions

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Finally, AGCS seeks to depose Nordural accounting manager, Bergbor

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Guomundsson, as he apparently processed invoices respecting the repair of the

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transformer and oversaw invoice payments in Sigurjonsdottir’s absence. Joint Letter

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Brief at 2. AGCS also seeks to depose Magnus Valsson, a Nordural purchasing/shipping

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coordinator. As the payment of invoices and the making of shipping arrangements are

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not at issue in this case, the Court finds AGCS has failed to make a particularized

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showing of why these extra depositions are necessary. In addition, as the proposed
Case No. 11-cv-02514 YGR (NC)
ORDER RE MOTION FOR
ADDITIONAL DEPOSITIONS

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deponents are located in Iceland, the burden and expense of the proposed discovery

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outweighs its likely benefit. See FED. R. CIV. P. 26(b)(2)(C). The Court therefore denies

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AGCS’ motion to depose Guomundsson and Valsson.

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B. AGCS’ Request for Leave to File Motion to Compel 30(b)(6) Deposition
In footnote 3 to the joint letter brief, AGCS states that “the 30(b)(6) witness

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presented by Century/Nordural . . . was unprepared and unable to testify to the

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corporation’s knowledge respecting these and other issues enumerated in the 30(b)(6)

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notice.” Joint Letter Brief at 2. AGCS contends that Century/Nordural effectively

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“defaulted” respecting the 30(b)(6) deposition. Id. AGCS states that the parties are

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likely to file a separate letter brief addressing this issue after review of the deposition

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transcript. Joint Letter Brief at 2.
If the parties are unable to resolve the matter after further meeting and conferring,

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the Court grants AGCS leave to file a motion pertaining to the alleged “default”

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respecting the 30(b)(6) deposition. AGCS must file its motion on or before June 22,

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2012.

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//

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Case No. 11-cv-02514 YGR (NC)
ORDER RE MOTION FOR
ADDITIONAL DEPOSITIONS

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III. ORDER

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For the reasons discussed above, AGCS’ motion for leave to take additional

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depositions is GRANTED in part and DENIED in part. AGCS may take two depositions

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in excess of the 10 scheduled under Rule 30(a)(2)(A).

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In equity, the Court GRANTS Century/Nordural’s request for additional

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depositions, permitting an additional two depositions of AGCS or third party witnesses.

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Each side is to pay its own costs and attorney’s fees in connection with the additional

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depositions.

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As to the 30(b)(6) deposition, AGCS is granted leave to file a motion pertaining
to the alleged “default” on or before June 22, 2012.
Finally, on or before June 21, 2012 the parties are ordered to meet and confer

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further on how to accomplish the additional depositions expeditiously, such as taking the

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depositions of any foreign witnesses by telephone or video. If the parties are unable to

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agree on a schedule and method for taking the additional depositions, they are to contact

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courtroom deputy, Lili Harrell, by June 22, 2012, and the Court will schedule a

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discovery status conference for June 27, 2012 at 2:00 p.m.

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IT IS SO ORDERED.

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DATED: June 14, 2012
____________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 11-cv-02514 YGR (NC)
ORDER RE MOTION FOR
ADDITIONAL DEPOSITIONS

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