Basich v. Patenaude and Felix, APC et al

Filing 64

ORDER by Magistrate Judge Howard R. Lloyd re 58 Discovery Dispute Joint Report #4. (hrllc2, COURT STAFF) (Filed on 6/1/2012)

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*E-FILED: June 1, 2012*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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No. C11-04406 EJD (HRL)

MARY BASICH,

ORDER RE DISCOVERY DISPUTE
JOINT REPORT #4

Plaintiff,
v.

[Re: Docket No. 58]
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PATENAUDE & FELIX, APC. and CAPITAL
ONE BANK, (USA), N.A.; DOES 1-10,
inclusive,

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Defendants.
/

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Plaintiff Mary Basich sues for alleged violations of the Fair Debt Collection Practices

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Act, 15 U.S.C. § 1692, et seq., the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., and the

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California Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788, et seq. She

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claims that defendants improperly attempted to collect a debt from her with respect to a Capital

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One credit card and invaded her privacy by obtaining her credit report without her permission.

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Plaintiff says that this is a case of mistaken identity and that she is not the debtor. Reportedly,

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the debt is owed by one Mary Ryals, who used the alias “Mary Basich.” Plaintiff initially

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thought Ryals had stolen her identity, but plaintiff says that she no longer believes that to be the

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case.

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Thus far, defendants have taken a total of three depositions—namely, those of plaintiff’s
husband, son, and son-in-law. In the parties’ Discovery Dispute Joint Report (DDJR) #4,

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defendants advise that they wish to depose 21 other individuals, i.e., 14 depositions over the

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presumptive 10-deposition limit. Most of the would-be deponents are those who are, or were at

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some point, identified by plaintiff in her initial disclosures as witnesses she intended to use to

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support her claims. Of those, roughly half are individuals who reportedly have information

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about her claimed emotional distress; others are individuals with the FBI, the Social Security

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Administration, and the police. Defendants also want to depose plaintiff’s physician with

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respect to plaintiff’s claimed distress. Basich did not identify her physician as a potential

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witness; and, plaintiff contends that such a deposition is unwarranted inasmuch as she says she

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claims only garden-variety distress.
The court deems the matter suitable for determination without oral argument. Civ. L.R.

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For the Northern District of California

United States District Court

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7-1(b). Upon consideration of the parties’ respective positions, the court denies defendants’

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request without prejudice.

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Absent leave of court or stipulation of the parties, a party may not take more than 10

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depositions. FED. R. CIV. P. 30(a)(2)(A)(i). A party seeking leave to take more depositions

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must make a “particularized showing” why the discovery is necessary. See Archer Daniels

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Midland Co. v. Aon Risk Services, Inc. of Minnesota, 187 F.R.D. 578, 586 (D. Minn. 1999);

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see also Authentic, Inc. v. Atrua Technologies, Inc., No. C08-1423PJH, 2008 WL 5120767 * 1

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(N.D. Cal., Dec. 4, 2008) (“A party seeking to exceed the presumptive number of depositions

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must make a particularized showing of the need for the additional discovery.”). Courts

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ordinarily will not grant leave to take more depositions unless a party has first exhausted the 10-

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deposition limit. Exceptions to the exhaustion requirement have been made, however, when it

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is shown that additional depositions are warranted by the complexity of the case. See, e.g.,

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Authentic, Inc., 2008 WL 5120767 at *2. Although the scope of discovery under the Federal

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Rules is broad, it is not unfettered. A court must limit the extent or frequency of discovery if it

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finds that (a) the discovery sought is unreasonably cumulative or duplicative or can be obtained

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from a source that is more convenient, less burdensome or less expensive, (b) the party seeking

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discovery has had ample opportunity to obtain the information through discovery; or (c) the

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burden or expense of the discovery sought outweighs its likely benefit, considering the needs of
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the case, the amount in controversy, the parties’ resources, the importance of the issues at stake,

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and the importance of the discovery in resolving those issues. FED. R. CIV. P. 26(b)(2)(C)(i)-

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(iii).

depositions over and above the 10-deposition limit. This not complex litigation. Moreover, it

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appears that many of the identified deponents have information that may be cumulative or

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duplicative with respect to plaintiff’s emotional distress claims. Plaintiff says she dropped

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several of these witnesses in her amended disclosures for that very reason. She offered to

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further narrow her list of witnesses to 10 that she will call at trial. Defendants believe that the

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alleged emotional distress constitutes the bulk of plaintiff’s claimed damages; and, they suspect

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For the Northern District of California

On the record presented, this court is unpersuaded that defendants truly need 14

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United States District Court

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that the only reason witnesses have been dropped from plaintiff’s disclosures is because those

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individuals may have information damaging to plaintiff’s case. Defendants skepticism,

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however, does not justify the considerable number of depositions being sought over the

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presumptive limit. Moreover, plaintiff points out that defendants are free to interview non-party

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witnesses informally to learn what information they might have before deciding whether their

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depositions are necessary. Accordingly, defendants’ request for leave to conduct more

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depositions is denied without prejudice to defendants to renew the request after they have

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exhausted the 10-deposition limit and upon a particularized showing that additional depositions

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really are needed.

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SO ORDERED.
Dated: June 1, 2012

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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE

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5:11-cv-04406-EJD Notice has been electronically mailed to:

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Balam Osberto Letona

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Candice Lynn Fields [e-mail], [e-mail], [e-mail],
[e-mail]

[e-mail]

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Danielle Renee Teeters

[e-mail], [e-mail]

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June D. Coleman

[e-mail], [e-mail], [e-mail]

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Lucius Wallace

[e-mail], [e-mail]

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Robert David Humphreys

[e-mail], [e-mail]

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For the Northern District of California

United States District Court

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