Pesch v. Independent Brewers United Corporation et al

Filing 46

Order by Magistrate Judge Donna M. Ryu denying 35 Discovery Letter Brief.(dmrlc2, COURT STAFF) (Filed on 10/10/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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SIMON PESCH,

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No. C-13-05317 DMR

Plaintiff(s),

ORDER RE: JOINT DISCOVERY
LETTER [DOCKET NO. 35]

v.
INDEPENDENT BREWERS UNITED
CORPORATION AND NORTH AMERICAN
BREWERIES INC,
Defendant(s).
___________________________________/

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Before the court is a joint discovery letter filed by Plaintiff Simon Pesch and Defendants

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Independent Brewers United Corporation and North American Breweries, Inc. [Docket No. 35.] In

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the letter, Defendants request that the court issue a letter rogatory to obtain the deposition testimony

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of the director of Plaintiff’s current employer, as well as documents that may be in his possession,

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custody, or control. Plaintiff opposes the request and seeks a protective order prohibiting the

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requested discovery.

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The court held a hearing on the matter on October 9, 2014. For the reasons stated below and
at the hearing, Defendants’s request is denied.
I. BACKGROUND
The parties provided a joint summary of the factual background of this case. See Letter at 1.
Defendants employed Plaintiff as Head Brewer (among other positions) until June 2013. Defendants

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treated Plaintiff as exempt from California’s overtime pay requirements while he held that position.

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Following his termination in June 2013, Plaintiff filed suit against Defendants. Plaintiff alleges that

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notwithstanding his title, Defendants cannot prove he spent the majority of his time performing

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exempt managerial tasks. Instead, he alleges that he performed line brewing tasks alongside his

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hourly subordinates as well as other non-managerial tasks, such as sweeping, loading sacks of raw

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materials, and pumping thousands of gallons of water and beer between the different areas of the

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brewery. Plaintiff claims that Defendants wrongly failed to pay him overtime from June 2009 to

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June 2013 resulted in various violations of California Industrial Welfare Commission Wage Orders

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and Labor Code sections.

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For the Northern District of California

United States District Court

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Several months after Defendants terminated Plaintiff’s employment, he was hired by Hong
Kong Beer Co. Ltd., located in Hong Kong, where he remains employed today.

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II. LEGAL STANDARDS
A. General Discovery Standards
Federal Rule of Civil Procedure 26 provides that a party may obtain discovery “regarding

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any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1).

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“Relevant information need not be admissible at the trial if the discovery appears reasonably

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calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). A court “must

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limit the frequency or extent of discovery otherwise allowed by [the Federal] rules” if “(i) the

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discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other

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source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery

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has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or

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expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the

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amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and

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the importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C).

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“The court may, for good cause, issue an order to protect a party or person from annoyance,

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embarrassment, oppression, or undue burden or expense,” including by (1) prohibiting disclosure or

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discovery; (2) conditioning disclosure or discovery on specified terms; (3) preventing inquiry into

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certain matters; or (4) limiting the scope of disclosure or discovery to certain matters. Fed. R. Civ.

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P. 26(c)(1). “Rule 26(c) confers broad discretion on the trial court to decide when a protective order

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is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S.

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20, 36 (1984).

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B. Letter Rogatory

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“A letter rogatory is a formal written request sent by a court to a foreign court asking that the

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testimony of a witness residing within that foreign court’s jurisdiction be taken pursuant to the

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direction of that foreign court and transmitted to the requesting court for use in a pending action.”

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Asis Internet Servs. v. Optin Global, Inc., No. 05-cv-5124 JCS, 2007 WL 1880369 at *3 (N.D. Cal.

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June 29, 2007) (citing Marroquin-Manriquez v. I.N.S., 699 F.2d 129 (3rd Cir. 1983) and Wright,
Miller, & Marcus, Federal Practice and Procedure (2007) § 2083). A letter rogatory can also include

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For the Northern District of California

United States District Court

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requests for the production of documents. Id. (citing United States v. Reagan, 453 F.2d 165, 168

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(6th Cir. 1971) (affirming district court’s issuance of letters rogatory seeking documents from

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investigation conducted by German authorities)). Federal Rule of Civil Procedure 28(b) provides

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that a deposition may be taken in a foreign country “pursuant to a letter of request (whether or not

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captioned a ‘letter rogatory’).” Fed. R. Civ. P. 28(b)(2).

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“A court is inherently vested with the authority to issue letters rogatory.” Asis, 2007 WL

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1880369 at *3 (citing United States v. Staples, 256 F.2d 290, 292 (9th Cir. 1958) and Reagan, 453

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F.2d at 172). See also 28 U.S.C. § 1781(a)(2) (providing the State Department with the power “to

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receive a letter rogatory issued, or request made, by a tribunal in the United States, to transmit it to

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the foreign or international tribunal, officer, or agency to whom it is addressed, and to receive and

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return it after execution.”). “Whether to issue such a letter is a matter of discretion for the court.”

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Asis, 2007 WL 1880369 at *3 (citations omitted). “When determining whether to exercise its

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discretion, a court will generally not weigh the evidence sought from the discovery request nor will

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it attempt to predict whether that evidence will actually be obtained. Ultimately, a court’s decision

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whether to issue a letter rogatory requires an application of Rule 28(b) in light of the scope of

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discovery provided for by the Federal Rules of Civil Procedure.” Id.

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III. DISCUSSION

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Defendants describe the possible relevance of evidence from Plaintiff’s current employer as

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follows: the current employer “may be able to provide admissible evidence regarding Plaintiff’s job

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responsibilities and duties while employed by Defendants” because “Plaintiff likely discussed with

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[the current employer] his job responsibilities and duties while employed by Defendants. If in those

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discussions Plaintiff stated that he performed mostly managerial tasks while employed as Head

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Brewer for Defendants, and discussed how many hours he worked for Defendants, this would raise

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considerable doubt regarding Plaintiff’s credibility and allegations and would go directly to

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Plaintiff’s alleged damages.” Letter at 2.

speculation. The court agrees. Defendants have little basis for their assertions that Plaintiff “may”

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For the Northern District of California

Plaintiff contends that Defendants’ discovery request is a fishing expedition based on

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United States District Court

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be able to provide admissible evidence and that Plaintiff “likely” discussed his tasks from a previous

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job with his current employer. Defendants do not point to any statements made by Plaintiff or any

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other witness, nor any documentary evidence, demonstrating that Plaintiff’s current employer would

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have significant pertinent information about Plaintiff’s previous job. At the hearing, Defendants

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counsel admitted that no evidence demonstrated that Plaintiff had discussed his previous job with his

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current employer, but argued that it could be inferred simply from the fact that Plaintiff listed

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himself as a “manager” on the resume that he submitted to his current employer. But even assuming

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that this inference is properly made, it merely leads to the possibility that Plaintiff informed his

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current employer of his prior job title, which is of marginal relevance to this case; Defendants do not

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point to any evidence that could raise a plausible, non-speculative inference that Plaintiff actually

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discussed his prior job duties in any meaningful detail with his current employer.

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Furthermore, the information Defendants seek “can be obtained from some other source that

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is more convenient or less burdensome.” Fed. R. Civ. P. 26(b)(2)(C). Plaintiff notes that in his

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initial disclosures, he identified 8 co-workers who worked alongside Plaintiff while he was

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employed by defendants, and that he identified an additional 7 co-workers during his deposition. At

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the hearing, Plaintiff’s counsel stated that between 15 and 20 percipient witnesses have been

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identified who could testify regarding the tasks Plaintiff performed in the course of his employment

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with Defendants. To date, only two or three of these witnesses have been deposed. Among those

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deposed is Eduardo Perez, Plaintiff’s direct supervisor during Plaintiff’s employment with

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Defendants, who was able to provide percipient testimony about Plaintiff’s job duties. Plaintiff also

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contends that Defendants have brew sheets, which would show the tasks to which Plaintiff was

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assigned. Defendants do not make any argument that these sources of information are unlikely to

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have information about the tasks performed by Plaintiff while he was employed by Defendants.

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Instead, Defendants contend that deposing Plaintiff’s currrent employer would not be too

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burdensome because the deposition would be taken by videoconference and costs will be borne by

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Defendants. This misses the point. Discovery in the United States, pursuant to the Federal Rules

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and under the jurisdiction of this court, will certainly be less burdensome than executing a
deposition and document production in a foreign jurisdiction pursuant to a letter rogatory against a

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For the Northern District of California

United States District Court

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non-party who may be required to hire counsel and respond to discovery requests despite having no

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relation to the claims at issue.

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Finally, according to Plaintiff, his current employer does not know of his dispute with his

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former employer. Plaintiff raises a valid concern that informing his current employer of prior work

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conflicts could damage Plaintiff’s standing at his current job, especially because Plaintiff’s Hong

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Kong employer is not subject to American laws prohibiting retaliation against workers for pursuing

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their workplace rights.

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IV. CONCLUSION

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For the above reasons, the court finds that the discovery sought by Defendants can be

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obtained from a source that is more convenient or less burdensome, and that the burden of producing

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the requested discovery outweighs its speculative benefit. Defendants’s request is denied,1 and

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Plaintiff’s request for a protective order prohibiting the requested discovery is granted.

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IT IS SO ORDERED.
Dated: October 10, 2014
DONNA M. RYU
United States Magistrate Judge

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Because the request is denied for these reasons, the court need not reach Plaintiff’s additional
argument that California privacy laws require the court to deny the request.

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