Klein et al v. Facebook, Inc.

Filing 149

ORDER Partially Resolving 132 August 20, 2021 Discovery Dispute re Deposition Protocol. Signed by Magistrate Judge Virginia K. DeMarchi on 9/13/2021. (vkdlc2S, COURT STAFF) (Filed on 9/13/2021)

Case 5:20-cv-08570-LHK Document 149 Filed 09/13/21 Page 1 of 2

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

SAN JOSE DIVISION

7
8

MAXIMILIAN KLEIN, et al.,
Plaintiffs,

9
v.

10

United States District Court
Northern District of California

11

Case No. 20-cv-08570-LHK (VKD)

FACEBOOK, INC.,
Defendant.

12

ORDER PARTIALLY RESOLVING
AUGUST 20, 2021 DISCOVERY
DISPUTE RE DEPOSITION
PROTOCOL
Re: Dkt. No. 132

13
14

The parties ask the Court to resolve several disputes concerning the conduct of depositions

15

in this case. Dkt. No. 132. The Court held a hearing on these disputes on August 31, 2021. Dkt.

16

Nos. 144, 146. Thereafter, the Court issued an interim order requiring the parties to confer further

17

and to make a further submission regarding several issues relating to the depositions of current and

18

former Facebook employees. Dkt. No. 145. This order resolves two remaining disputes

19

concerning the conduct of depositions.

20

1.

21

The parties disagree regarding whether there should be a presumption that depositions will

22

be conducted by remote means. Dkt. No. 132 at 5-6. Facebook advocates for such a presumption;

23

plaintiffs oppose it. Id.

24

Remote v. in person depositions

The Court declines to set a presumption of remote depositions. However, while public

25

health conditions and travel restrictions make it difficult or impossible for depositions to be

26

conducted safely in person, the Court encourages the parties to conduct depositions by remote

27

means. The presiding judge has set deadlines for the completion of discovery, and the parties are

28

well-advised not to delay taking depositions in the hope that circumstances will eventually permit

Case 5:20-cv-08570-LHK Document 149 Filed 09/13/21 Page 2 of 2

1

normal litigation to proceed. If the parties cannot agree regarding the means for taking a particular

2

deposition, they must submit the issue to the Court for resolution using the discovery dispute

3

resolution procedure.

4

2.

5

The parties disagree regarding whether counsel defending a deposition should be able to be

Presence of counsel in same room as deponent

6

in the same room as the witness during an otherwise remote deposition. Dkt. No. 132 at 6-7.

7

Plaintiffs ask for an order excluding defending counsel unless opposing counsel is also present.

8

Facebook argue there is no need to exclude defending counsel. Id.

9

The Court agrees with Facebook that there is no justification here for excluding counsel
defending the witness from being physically present in the same room as the witness, and the

11

United States District Court
Northern District of California

10

Court adopts Facebook’s proposal. The Court expects all counsel to behave ethically and

12

professionally. In particular, defending counsel must avoid improper coaching or other

13

communication with the witness. Any party may ask the Court to revisit this issue if

14

circumstances warrant.

15
16

IT IS SO ORDERED.
Dated: September 13, 2021

17
18
VIRGINIA K. DEMARCHI
United States Magistrate Judge

19
20
21
22
23
24
25
26
27
28
2