Brewer v. General Nutrition Corporation

Filing 330

PRETRIAL ORDER No. 3 Re: Discovery Designations In Dispute (Dkt. No. 304 ). Signed by Judge Gonzalez Rogers on 12/21/2015. (ygrlc1, COURT STAFF) (Filed on 12/21/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARLES BREWER, individually and on
behalf of all other similarly situated current
and former employees of Defendant,

United States District Court
Northern District of California

Plaintiffs,
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Dkt. No. 304

v.
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Case No. 11-cv-3587 YGR
PRETRIAL ORDER NO. 3
RE: DISCOVERY DESIGNATIONS
IN DISPUTE

GENERAL NUTRITION CORPORATION,
Defendant.

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Plaintiffs Charles Brewer, Jessica Bruns, Michael Mitchell, Michael Murphy, and Wayne

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Neal (“Named Plaintiffs”), on behalf of themselves and all others similarly situated (collectively,

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“Plaintiffs”) and Defendant General Nutrition Corporation (“Defendant” or “GNC”), pursuant to

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this Court’s Pretrial Instructions in Civil Cases Standing Order, have submitted their disputed

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discovery excerpts for decision by the Court. The Court having carefully considered the matters at

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issue, and for good cause show, ORDERS as follows:

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As a general matter, where the Court has indicated that additional information is needed in

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order for it to rule, such additional designation, exhibit, or other information shall be submitted to

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the Court no later than JANUARY 8, 2016.

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Further, where Defendant has offered designations of testimony given by absent class

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members, either in the present litigation or in the Abad and Naranja actions, the Court finds that

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Defendant has not demonstrated that such persons should be treated as “parties” for purposes of

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Federal Rule of Evidence 801(d)(2)(A), admissions of a party-opponent. Absent class members

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are considered “parties for some purposes and not for others.” Devlin v. Scardelletti, 536 U.S. 1,

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10 (2002). In order for an absent class member to be treated as a party, or party-representative, for

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purposes of FRE 801, there must be “some mechanism to ensure that he or she will represent the

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interests of the class.” Pierce v. County of Orange, 526 F.3d 1190, 1202 (9th Cir. 2008).

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Consistent with Pierce, in order for Defendant to introduce absent class member testimony under

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Rule 801(d)(2)(A)’s “party-opponent” exception, Plaintiffs would have had to disclose these

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persons as individuals they expected to testify. Plaintiffs have not so identified these individuals.

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That Plaintiffs’ supplemental disclosures under Rule 26 generally identified persons who had

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testified in the other litigation as “likely to have discoverable information…that the disclosing

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party may use to support its claims or defenses” does not, standing alone, meet the prerequisite set

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United States District Court
Northern District of California

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forth in Pierce for finding all such persons to be “parties” here.
Further, GNC has not made a showing that these persons are unavailable, i.e. that GNC

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attempted but was unable to procure their attendance by process or other reasonable means, and

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that plaintiffs in the earlier litigation “had an opportunity and similar motive to develop the

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testimony by direct, cross, or redirect examination” compared to Plaintiffs here. FRE 804(b)(1).

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As Plaintiffs note, Abad was an individual lawsuit and Naranjo involved different class members

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and a different time period than the instant litigation.

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Thus, the Court sustains Plaintiffs’ objections to GNC’s discovery designations for

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testimony obtained in this case and in the Abad and Naranjo cases in the absence of a further

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proffer establishing their admissibility under some hearsay exception other than FRE

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801(d)(2)(A). Should Defendant wish to make some additional proffer with respect to the affected

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designations, it shall file such proffer no later than JANUARY 8, 2016.

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Set forth below are the Court’s rulings on the objections to specific designations:

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//

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//

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PLAINTIFFS’ LIST OF DISCOVERY EXCERPTS

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No.
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P. 1

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P. 2

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Form of Excerpt

Designation
in Dispute

Thomas Scott Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)
Jeffrey Emerick Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)

p. 7:5-10:3

OVERRULED.

p. 17:2-17:10
----------------p. 17:12-18
----------------p. 7:5-10:3

Ron Hallock Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)
James Inlow Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)

None.

OVERRULED.
-------------------OVERRULED.
------------------OVERRULED, except that ruling is
RESERVED as to 9:1-10:3 which
requires additional context for the
Court to rule.
--

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United States District Court
Northern District of California

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P. 3

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P. 4

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Court’s Ruling

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p. 12:19-21
--------------p. 69:3-71:8
--------------p. 34:6-17

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--------------p. 54:1-5
------------------p. 54:6-25

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RESERVED – Requires additional
showing of foundation
-------------------OVERRULED.
-------------------RESERVED -- Requires additional
showing of foundation
-------------------OVERRULED.
-------------------OVERRULED.

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P. 5
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P. 6

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P. 7

Paul Katz Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)
Shannen Sternerson
Deposition Transcript (Brewer
et al., v. GNC, Inc. Case No.
11-cv-03587)

p. 55:4-13

RESERVED. Court requires copy of
exhibit referenced.

p. 102:13-104:1

SUSTAINED as to 102:24-103:14 only.
Otherwise OVERRULED.
--------------OVERRULED.

Lona Toffolo Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)

p. 69:3-9
p. 9:11-17 &
10:21-11:5
p. 11:6-25 &
16:4-17:5

--------------p. 97:21-98:8

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OVERRULED as to all.

No.

Form of Excerpt

Designation
in Dispute

P. 8

Kenneth Wunschel Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)

p. 112:15113:21
--------------p. 247:14-248:1

OVERRULED.

p. 132:3-8

OVERRULED.

No. 26
No. 27
No. 28
No. 29
No. 34

OVERRULED as to all, and objections
therein are likewise overruled.

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Court’s Ruling

-------------OVERRULED.

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P. 9

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United States District Court
Northern District of California

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Anthony Masztak Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)
P. 10 GNC’s First Supplemental
Responses to Plaintiffs’
Special Interrogatories, Set
Three

P. 11 GNC’s Responses to Plaintiffs’ No. 5
Request for Admissions, Set
No. 6
Two
No. 12
No. 13

OVERRULED as to all.

P. 12 GNC’s Responses to Plaintiffs’ No. 48
Special Interrogatories, Set
----------Five
No. 49
----------No. 50
----------No. 51
----------No. 65
No. 66
No. 72
No. 73
P. 13 GNC’s Responses to Plaintiffs’ No. 43
Special Interrogatories, Set
No. 46
Four
No. 47
P. 14 GNC’s Responses to Plaintiffs’ No. 33
Special Interrogatories, Set
No. 36
Three
No. 37
P. 15 GNC’s Responses to Plaintiffs’ No. 1
Request for Admissions, Set
No. 2
One

SUSTAINED.
-------------SUSTAINED.
-------------SUSTAINED.
-------------SUSTAINED.
-------------As to 65, 66, 72, and 73, RESERVED.
Evidence of remedial action would be
inadmissible.

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RESERVED as to all.

RESERVED as to all.

OVERRULED as to all.

DEFENDANT’S LIST OF DISCOVERY EXCERPTS

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No.
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Form of Excerpt

D.1

Charles Brewer Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)

D.2

Wayne Neal Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)
Michael Mitchell Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)

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D.3

United States District Court
Northern District of California

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D.4

Matthew Testa Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)

D.5

Richard Doan Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)

D.6

Naim Deghany Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)

D.7

Leandro Fusco Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)

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Court’s Ruling

p. 29:6-25
p.30:15-17
p. 31:24-33:3
p. 50:22-51:4
p. 97:17-98:1
p. 102:8-103:10
p. 12:9-10; 19-20
p. 23:3- 24:5

OVERRULED as to all, and
objections therein are likewise
overruled.

p. 11:24 – 12:2

OVERRULED, and objections
therein are likewise overruled.
-------------OVERRULED, and objections
therein are likewise overruled.
----------------RESERVED.

-------------p. 22:10 – 23:1
------------p. 59:20 – 60:11

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Designation
in Dispute

OVERRULED as to all, and
objections therein are likewise
overruled.

p. 4:10-5:4
p. 5:5-22
p. 13:1- 14:15
p. 26:4-13
p. 45:6-46:15
p. 49:1-4
p. 5:7-6:20
p. 18:3-19-16
p. 23:10-19
p. 28:24-29:9
p. 29:13-30:16
p. 31:8-32:2
p. 32:25-33:14
p. 8:10-24
p. 56:7-58:8
p. 58:16- 60:12

SUSTAINED as to all. As stated
above, no showing that individual
is a party.

p. 5:14-17
p. 6:20-21
p. 7:2-3
p. 30:22- 31:6
p. 31:22-25
p. 41:14-20

SUSTAINED as to all. As stated
above, no showing that individual
is a party.

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SUSTAINED as to all. As stated
above, no showing that individual
is a party.

SUSTAINED as to all. As stated
above, no showing that individual
is a party.

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No.
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p. 9:22-10:1
p. 10:22-25
p. 14:9-15:8
p. 32:14-22

OVERRULED as to all.

D.9

Christopher Gregory
Deposition Transcript (Brewer
et al., v. GNC, Inc. Case No.
11-cv-03587)
Houman Nayebi Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)
Anthony Lozano Deposition
Transcript (Naranjo et al. v.
GNC, Case no. RG12619626)

p. 4:10-5:2
p. 35:13-16
p. 35:18-25

SUSTAINED as to all. As stated
above, no showing that individual
is a party.

p. 6:3-21
p .35:4-18
p. 35: 23- 36:6

SUSTAINED as to all. As stated
above, no showing that individual
is a party.

p. 11:13-21
p. 14:2-12
p. 88:17-89:24
p. 92:13-92:22
p.93:14- 94:9

SUSTAINED as to all. As stated
above, no showing that individual
is a party.

D.12

Cassandra Draeger Deposition
Transcript (Naranjo et al. v.
GNC, Case no. RG12619626)

p. 23:24-25:13
p. 36:1-37:3
p. 45:6-22
p. 63:24-64:12
p. 64:21-65:12
p. 91:6-10
p. 93:9-94:8

SUSTAINED as to all. As stated
above, no showing that individual
is a party.

D.13

Stephen Hermanson
Deposition Transcript
(Naranjo et al. v. GNC, Case
no. RG12619626)

p. 11:16-13:18
p. 22:2-4
p. 22:24-25:4
p. 33:11-25
p. 71:3-20

SUSTAINED as to all. As stated
above, no showing that individual
is a party.

D.14

Christopher Schafer
Deposition Transcript
(Naranjo et al. v. GNC, Case
no. RG12619626)

SUSTAINED as to all. As stated
above, no showing that individual
is a party.

D.15

Grant Thomas Deposition
Transcript (Naranjo et al. v.
GNC, Case no. RG12619626)

p. 8:12-9:21
p. 20:21- 21:13
p. 21:24- 22:5
p. 23:17- 25:19
p. 65:6 - 67:2
p. 67:10- 68:2
p. 11:7-12:6
p. 45:3-24
p. 79:1-24
p. 86:5-87:4

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D.10

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D.11

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United States District Court
Northern District of California

Court’s Ruling

Jessica Bruns Deposition
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv03587)

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Designation
in Dispute

D.8

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Form of Excerpt

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SUSTAINED as to all. As stated
above, no showing that individual
is a party.

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No.
2

Form of Excerpt

Designation
in Dispute

Court’s Ruling

D.16

Viviana Armenta Deposition
Transcript (Naranjo et al. v.
GNC, Case no. RG12619626)

p. 20:7-21:25
p. 40:22-24
p. 41:8-42:8

SUSTAINED as to all. As stated
above, no showing that individual
is a party.

D.17

Matt Cappadonna Deposition
Transcript (Naranjo et al. v.
GNC, Case no. RG12619626)

SUSTAINED as to all. As stated
above, no showing that individual
is a party.

D.18

Perelandra Harris Deposition
Transcript (Naranjo et al. v.
GNC, Case no. RG12619626)

D.19

Ben Ramey Deposition
Transcript (Naranjo et al. v.
GNC, Case no. RG12619626)

D.20

Misty Fair Deposition
Transcript (Naranjo et al. v.
GNC, Case no. RG12619626)

D.21

6/12/13 Transcript, Vol. 1 –
Abad (Abad)

D.22

6/13/13 Transcript, Vol. 1 –
Abramson (Abad)

D.23

6/12/13 Transcript, Vol. 1 –
Ansine (Abad)

D.24

6/12/13 Transcript, Vol. 2 –
Ansine (Abad)

p. 8:10-9:9
p. 43:21-44:12
p. 46:9-48:21
p. 55:13-56:2
p. 16:5-8
p. 31:9-21
p. 62:18-64:24
p. 65:5-23
p. 68:5-23
p. 88:2-89-8
p.12:15-13-24
p.16:20-17:16
p. 35: 14-24
p. 118:3-118-17
p. 16:20-18:23
p. 38:8-18
p. 61:24-62:19
p. 75:10-77:2
p. 40:18-21
p. 57:12-58:11
p. 59:3-21
p. 61:25-62:5
p. 70:19-71:3
p. 71:10-13
p. 79:22-80:6
p. 5:24-6:6
p. 6:19-7:1
p. 26:13-19
p. 27:15-17
p. 31:1-25
p. 33:19-34:17
p. 35:8-36:11
p. 36:22-37:10
p. 42:17-44:6
p. 69:23-72:22
p. 85:10-86:14
p. 87:6-88:2
p. 7:7-15
p. 14:25-16:4
p. 26:12-25

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United States District Court
Northern District of California

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SUSTAINED as to all. As stated
above, no showing that individual
is a party.

SUSTAINED as to all. As stated
above, no showing that individual
is a party.
SUSTAINED as to all. As stated
above, no showing that individual
is a party.
SUSTAINED as to all. As stated
above, no showing that individual
is a party.

SUSTAINED as to all. As stated
above, no showing that individual
is a party.

SUSTAINED as to all. As stated
above, no showing that individual
is a party.
SUSTAINED as to all. As stated
above, no showing that individual
is a party.

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No.
2

Form of Excerpt

D.25

Robino Abad Deposition
Transcript (Abad et al., v.
GNC, Inc. Case No. 8:09-cv00190)
Isaac Bailey Deposition
Exhibits (Abad et al., v. GNC,
Inc. Case No. 8:09-cv-00190)

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D.26

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United States District Court
Northern District of California

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D.27

Ashley Abramson Deposition
Transcript (Abad et al., v.
GNC, Inc. Case No. 8:09-cv00190)

D.28

Greta Ansine Deposition
Transcript (Abad et al., v.
GNC, Inc. Case No. 8:09-cv00190)

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Designation
in Dispute
p. 7:13-17
p. 7:25-9:15
p. 19:3-8
p. 29:16-31:1
p. 6:22-23
p. 8:19-11:6
p. 19:3-11
p. 21:6-7
p. 22:20-24
p. 24:5-13
p. 29:4-16
p. 33:9-34:11
p. 34:25-35:19
p. 38:12-16
p. 41:24-42:4
p. 51:4-52:20
p. 55:21-24
p. 59:12-23
p. 62:5-9
p. 62:21-63:13
p. 6:11-12; 19-24
p. 10:13-11:2
p. 11:19-24
p. 13:8-14:19
p. 15:12-16:9
p. 17:6-19
p. 21:21-23:16
p. 25:4-13
p. 31:9-35:18
p. 41:25-42:10
p. 43-8:16
p. 44:9-46:12
p. 54:17-56:9
p. 56:19-58:23
p. 64:15-65:11
p. 66:17-67:12
p. 68:8-70:13
p. 4:6-7
p. 9:12-10:1
p. 10:6-12:17
p. 17:19-18:15
p. 40:3-15
p. 45:3-46:4
p. 47:20-24
p. 48:21-49:16
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Court’s Ruling

SUSTAINED as to all. As stated
above, no showing that individual
is a party.
SUSTAINED as to all. As stated
above, no showing that individual
is a party.

SUSTAINED as to all. As stated
above, no showing that individual
is a party.

SUSTAINED as to all. As stated
above, no showing that individual
is a party.

1
No.

Form of Excerpt

2

Court’s Ruling

p. 51:19-52:4
p. 52:10-16
p. 53:7-9
p. 56:13-57:11
p. 58:9-14
p. 59:4-12
p. 62:7-9
p. 68:1-69:1
p. 75:12-77:1
p. 79:1-25
p. 80:9-17

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IT IS SO ORDERED.

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Dated: December 21, 2015

11
United States District Court
Northern District of California

Designation
in Dispute

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______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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