Brown et al v. Wal-Mart Store, Inc.

Filing 196

ORDER GRANTING 189 DEFENDANT'S REQUEST TO TAKE DEPOSITIONS. Signed by Magistrate Judge Susan van Keulen on 1/9/2018. (ofr, COURT STAFF) (Filed on 1/9/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NISHA BROWN, et al.,
Plaintiffs,

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United States District Court
Northern District of California

ORDER GRANTING DEFENDANT'S
REQUEST TO TAKE DEPOSITIONS

v.
WAL-MART STORE, INC.,

Re: Dkt. No. 189

Defendant.

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Case No.09-cv-03339-EJD (SVK)

Plaintiffs filed this class action on July 21, 2009 alleging, inter alia, Defendant violated

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Wage Order 7-2001 Section 14 by failing to provide seats to its cashiers. ECF 1. The Court

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certified the class on August 24, 2012. ECF 81. Fact discovery closed December 29, 2017. On

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December 13, 2017, Plaintiff served an amended Rule 26 disclosure that specifically identified for

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the first time eight individuals that were Wal-Mart cashiers who were granted the use of seats as

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accommodations in compliance with the Americans with Disabilities Act. ECF 189. On

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December 15, 2017, Defendant served a deposition notice for the newly identified witnesses.

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Plaintiffs’ counsel refused to produce the witnesses and instead offered to have the absent class

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members respond to written questions. ECF 189 at 2, 6. On December 28, 2017, the parties filed

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the joint statement presently before the Court wherein Defendant requests to take the deposition of

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the newly identified eight absent class members. ECF 189 at 2-4. Plaintiff objects on the basis

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that Defendant has not met its burden in justifying depositions of absent class members. ECF 189

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at 4-6. The Court grants Defendant’s request for the reasons set forth below.

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I.

LEGAL STANDARD AND ANALYSIS

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Although courts do not usually allow discovery from absent class members, the rules

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pertaining to such discovery are flexible, especially where the proposed deponents have been

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identified as potential witnesses or have otherwise “injected” themselves into the litigation. See

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Mas v. Cumulus Media Inc., No. C-10-1396 EMC, 2010 WL 4916402, *3 (N.D. Cal. Nov.22,

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2010); Moreno v. Autozone, No. C-05-4432 MJJ EMC, 2007 WL 2288165, *1 (N.D. Cal. August

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3, 2007) (citations omitted). The proponent of discovery must demonstrate three factors to justify

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discovery of absentee class members: (1) whether the information sought is relevant; (2) whether

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the information is not readily obtainable from the representative parties or other sources; and (3)

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whether the request is not unduly burdensome and made in good faith. Tierno v. Rite Aid Corp.,

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No. C–05–2520–TEH, 2008 WL 2705089 at *6 (N.D. Cal. July 8, 2008). See also Moreno, 2007

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WL 2288165 at *1 (discovery may be taken where “the proponent of the deposition demonstrates

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discovery is not sought to take undue advantage of class members or to harass class members, and

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is necessary to the trial preparation”).

United States District Court
Northern District of California

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Here, Plaintiffs have identified the eight absent class members as potential witnesses on

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their amended disclosures. Plaintiffs claim that their testimony would only be used for rebuttal

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purposes, but this does not change the fact that Plaintiffs may rely on the proposed deponents as

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witnesses. These members have thus been “injected” into the litigation. See Mas, 2010 WL

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4916402 at *3 (allowing discovery where Plaintiff identified witnesses in his initial disclosures).

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The information sought is certainly relevant. At issue in this case is whether Defendants failed to

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provide seats to its cashiers while checking out customers, in violation of Wage Order 7-2001

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Section 14. The eight proposed deponents are identified as persons for which Defendant did in

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fact provide seats. Thus, given Plaintiffs’ indication that Plaintiffs may rely on their testimony, it

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is pertinent to Defendant’s case to explore how the seats were used by the proposed deponents and

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the nature of their job functions. Such information is not available from the representative parties

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or other sources (see ECF 189 at 3), and the request, which limits the length of the depositions, is

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neither unduly burdensome nor made in bad faith.

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Nothing indicates this is an attempt to take undue advantage of or to harass absent class

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members. See Moreno, 2007 WL 2288165 at *1. Plaintiffs’ argument that Defendant knew of

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these witnesses prior to Plaintiffs including them on their disclosures is unpersuasive. The fact

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that persons were identified in Defendant’s documents would not, by itself, justify absent class

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member discovery. It is Plaintiffs’ selection of these individuals as persons with relevant
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information who may appear at trial that renders them immediately eligible for deposition.

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Defendant has therefore met its burden to obtain the discovery it seeks.

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II.

CONCLUSION

Defendant has met its burden to take the depositions of the eight absent class members

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identified for the first time in Plaintiffs’ December 13, 2017 Rule 26 disclosures. The parties shall

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meet and confer to determine a schedule and location for the depositions, to be completed by

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January 31, 2018. Each deposition shall last no more than two hours.

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SO ORDERED.
Dated: January 9, 2018

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United States District Court
Northern District of California

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SUSAN VAN KEULEN
United States Magistrate Judge

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