Espinoza et al v. C & C Security Patrol, Inc. et al

Filing 76

ORDER by Magistrate Judge Howard R. Lloyd granting 63 defendants' motion to compel plaintiffs' depositions. (hrllc2, COURT STAFF) (Filed on 12/14/2009)

1 2 3 4 5 6 7 8 9 10 NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION LEONARDO ESPINOZA and SERGIO ROQUE, v. Plaintiffs, No. C08-01522 JW (HRL) ORDER GRANTING DEFENDANTS' MOTION TO COMPEL PLAINTIFFS' DEPOSITIONS [Docket No. 63] *E-FILED 12-14-2009*

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

C&C SECURITY PATROL, INC. HERMENEGILDO COUGH, MARCEL LOPEZ, GILBERT MARTINEZ, Defendants. /

Plaintiffs sue for alleged wage and hour violations under federal and state law. Presently before this court is defendants' motion to compel plaintiffs to appear for their depositions. Plaintiffs oppose the motion.1 Pursuant to this court's November 19, 2009 order (Docket No. 70), the matter was deemed submitted without oral argument. See Civ. L.R. 71(b). Upon consideration of the moving and responding papers, this court grants the motion as follows: Plaintiff Espinoza reportedly is incarcerated in Florida. "The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes." Williams v. Greenlee, 210 F.R.D. 577, 578 (N.D. Tex. 2002); FED. R. CIV. P. 30(a)(2)(B).

Plaintiffs belatedly filed their opposition papers in contravention of this court's November 19, 2009 order, without any explanation for the delay. This court has accepted and considered the belated filing, but it does not condone plaintiffs' failure to adhere to the orders of this court and warns against future non-compliance.
1

1 2 3 4 5 6 7 8 9 10

Additionally, upon a showing of "good cause," Fed. R. Civ. P. 26(c) authorizes courts to "protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense" in discovery by "prescribing a discovery method other than the one selected by the party seeking discovery." FED. R. CIV. P. 26(c)(1)(C). The party seeking an order limiting the manner, terms, or method of discovery has the burden of showing that such relief is warranted under Fed. R. Civ. P. 26(c). Here, plaintiffs offer no explanation why defendants should be precluded from deposing Espinoza in person. Accordingly, defendants' motion as to Espinoza is granted. Pursuant to Fed. R. Civ. P. 30(a)(2)(B), defendants are given leave to depose Espinoza in person, subject to the relevant policies and procedures of the penal institution. The deposition shall take place on a date mutually agreeable to the parties and which is acceptable to the personnel of the subject penal institution. The deposition shall, in any event, be completed within thirty days from the date of this order. The parties shall cooperate with one another in making all necessary arrangements with prison officials. Each party shall bear its own fees and costs incurred in connection with the examination. As for plaintiff Roque, defendants' motion is granted. However, defendants shall reimburse Roque for the one day's wages he says he lost in connection with the original October 19, 2009 deposition date, which had to be re-set at defense counsel's request. The deposition shall be completed within thirty days from the date of this order on mutually agreeable date(s). SO ORDERED. Dated: December 14, 2009 HOWARD R. LLOYD

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES MAGISTRATE JUDGE

2

1 2 3 4 5 6 7 8 9 10

5:08-cv-01522-JW Notice has been electronically mailed to: Adam Wang [e-mail], [e-mail], [e-mail] Mark A. Hagopian [e-mail] Sejal Thakkar [e-mail] Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3