Frieri v. Sysco Corporation et al
Filing
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ORDER Granting in Part and Denying in Part Plaintiff's #46 Ex Parte Application to Extend Deadlines to Complete Depositions and Motion for Class Certification Filing. Plaintiff's request to continue the discovery deadline to complete depositions is denied, except as to a second deposition of Mr. Petrossian and a 30(b)(6) representative of Sysco Corporation. Both of these depositions must be completed by 11/17/2017. Plaintiff's request to extend the deadline to file the motion for class certification is granted in part, and must be filed by 12/1/2017. Signed by Magistrate Judge Nita L. Stormes on 11/9/2017. (mpl) (jao).
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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RICK FRIERI, on behalf of himself and
all others similarly situated, and on behalf
of the general public,
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Case No.: 3:16-cv-01432-JLS-NLS
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
EX PARTE APPLICATION TO
EXTEND DEADLINES TO
COMPLETE DEPOSITIONS AND
MOTION FOR CLASS
CERTIFICATION FILING
Plaintiff,
v.
SYSCO CORPORATION; SYSCO SAN
DIEGO, INC.; AND DOES 1-100,
Defendants.
(ECF No. 46)
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Before the Court is Plaintiff’s ex parte application to extend the deadline to
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complete depositions and the deadline for filing Plaintiff’s motion for class certification.
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ECF No. 46. Plaintiff argues that a sixty day extension of deadlines is warranted and
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supported by good cause based largely on two factors (1) delayed email production and
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(2) instructions not to answer regarding certain topics at a deposition of the 30(b)(6)
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representative for Sysco San Diego. Id at 7-9. Defendant opposes the application. ECF
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No. 47. Defendants argue a sixty day extension as disproportionate and unwarranted
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based upon (1) the recent production of the remaining emails and (2) Plaintiff’s lack of
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diligence in the pursuit of discovery. Id. As discussed, the Court will GRANT IN
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PART and DENY IN PART Plaintiff’s application.
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I.
Relevant Procedural Background
Due to the number of prior requests for extension and discovery disputes raised by
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the parties, a brief review of the procedural background of this case is appropriate. This
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case was originally filed in Superior Court and removed on June 9, 2016. ECF No. 1.
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Following a motion to dismiss that was granted in part and denied in part, the operative
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amended complaint was filed on December 21, 2016. ECF No. 15. Following an answer
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and Early Neutral Evaluation, on February 2, 2017 the Court issued a Scheduling Order
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setting the original close of class discovery for July 12, 2017, providing five months for
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class discovery; and a deadline for Plaintiff’s to file their motion for class certification for
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August 7, 2017, six months out. ECF No. 20.
Near the close of initial fact discovery period, on June 28, 2017, Plaintiff requested
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a continuance of the discovery and motion filing deadlines. ECF No. 25. The Court
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granted an extension of 90 days, to October 13 and November 10, 2017, based in part on
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the parties representations that discovery was ongoing, a pending discovery dispute and
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the likelihood of a second dispute, for which the Court also granted an extension of time
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to file. ECF Nos. 30, 31. This extension brought the total time allotted for class
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discovery to eight months, and provided nine months for Plaintiff to file a motion for
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class certification.
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The parties continued to have various discovery disputes which the Court
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adjudicated. ECF Nos. 32, 34. In September, Plaintiff again moved for an extension of
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90 days to the discovery and motion filing deadlines. ECF No. 35. The Court denied
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without prejudice Plaintiff’s request, due in part to the ongoing nature of document
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production, and issued an order to show cause as to why documents were not timely
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produced. ECF No. 38. In subsequent reports, the Defendants represented they
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anticipated production to be complete by October 23, 2017. ECF No. 45.
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On October 6, one week prior to the close of fact discovery, the parties jointly
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sought leave to continue the “the current deadline for the parties to complete class
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discovery as it related to only to depositions….” ECF No. 41 at 2:6. The parties
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identified three depositions and four dates (plaintiff’s deposition to occur over two days)
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and did not request any modification of the class certification deadline. Id. The Court
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granted leave to complete only those three depositions beyond the discovery cut-off date,
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all of which were to be complete by November 7, 2017. ECF No. 42.
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II.
Ex Parte Application to Extend Deadline to Complete Depositions and Motion
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for Class Certification
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The Plaintiff now moves for an extension of time, 60 days, to complete depositions
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and move to certify a class. ECF No. 46. Plaintiff represents that, as of the time of filing,
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no further emails/document production had been produced and the parties disagreed upon
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the re-production for deposition of the 30(b)(6) representative. Id. at 2, 7-8. Plaintiff
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asserts that as of October 31, defense counsel represented that review of the emails
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remained ongoing, and that it was unclear if additional emails would be produced in
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response to Requests for Production, Set 4 propounded by Plaintiff. Id. at 5. Plaintiff
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also takes issue with instructions given at deposition to the representative of Sysco San
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Diego “relating to the size and scope of the class, which is inclusive of non-exempt
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industrial workers….” Id. Plaintiff avers the parties have been “actively meeting and
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conferring over reproducing Defendant Sysco San Diego, Inc.’s 30(b)(6) representative”
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but there is a “fundamental disagreement” on the extent of the questioning to be allowed
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and that the parties are in the midst of drafting Discovery Dispute No. 3. Id. at 6.
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Plaintiff also seeks permission to conduct additional depositions. See ECF No. 46 at 9
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(“Plaintiff may also wish to pursue depositions from witnesses identified for the first time
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through Plaintiff’s questioning”).
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Defendants’ opposition paints a somewhat different picture. Defendants do admit
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that production of emails was not completed until November 3 (the same date that
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Plaintiff filed his ex parte application), and total 346 pages. ECF No. 47 at 1, 6.
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However, Defendants argue that Plaintiff failed to, and continues to fail to, exercise
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diligence in discovery. Id. Defendants explain that Plaintiff cancelled the deposition of
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Sysco Corporation’s 30(b)(6) witness—previously agreed upon and for which the parties
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sought and were granted leave of court to conduct beyond the discovery cut off—due to
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unspecified “scheduling conflicts.” Id. at 2, 4; ECF No. 42. Defendants also explain that
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the questions which Mr. Petrossian, Sysco San Diego’s 30(b)(6) witness, were instructed
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not to answer were beyond the scope of the topics identified in Plaintiff’s deposition
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notice and regarding “non-driver” employees, which Defendants argue are not part of the
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class. ECF No. 47 at 2. Nonetheless, Defendants agreed to re-produce Mr. Petrossian on
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November 2, a date when the parties were already scheduled to be together for Plaintiff’s
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deposition. Id. at 3. Plaintiff declined. Id. Defendants indicate there has been no
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response to requests for the next available date to conduct the continued deposition in
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person or via phone or video conference. Id. at 4.
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III.
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Discussion
A party seeking to extend time, either under Rule 6(b) or by seeking to modify the
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scheduling order under Rule 16(b), must demonstrate good cause. Fed. R. Civ. P 6(b)
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(“When an act may or must be done within a specified time, the court may, for good
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cause, extend the time”); 16(b)(4) (“A schedule may be modified only for good cause and
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with the judge’s consent.”).
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“Good cause” is a non-rigorous standard that has been construed broadly across
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procedural and statutory contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,
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1259 (9th Cir. 2010). The good cause standard articulated in Rule 16 focuses on the
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diligence of the party seeking to amend the scheduling order, and the reasons for seeking
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modification. Johnson v. Mammoth Recreations, Inc. 975 F.2d 604, 609 (9th Cir. 1992)
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(“[T]he focus of the inquiry is upon the moving party's reasons for seeking modification.
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... If that party was not diligent, the inquiry should end.”) (citing Gestetner Corp. v. Case
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Equip. Co., 108 F.R.D. 138, 141 (D.Me.1985)). The district court may amend the
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scheduling order if it “cannot be met despite the diligence of the party seeking the
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extension.” Id. (citing Fed. R. Civ. P. 16 Advisory Committee Notes).
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A. Deposition Deadline
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Plaintiff seeks to extend the deposition deadline by 60 days. Plaintiff proffers
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there is good cause based upon the instruction for Defendant’s witness not to answer
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questions “relating to the size and scope of the class” and “Defendant Sysco
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Corporation’s involvement in controlling the wages, hours, and working conditions of
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Sysco San Diego, Inc.” ECF No. 46 at 8. Plaintiff’s application is silent as to the
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cancellation of the deposition of the Sysco Corporation deponent, and implicitly seeks to
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re-open discovery to take additional depositions. Id. at 9.
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The Court first notes that class discovery is closed. ECF No. 30 (Discovery Cut
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Off of October 13). After multiple discovery disputes, an extension of time, and several
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additional requests for extension, the parties were granted leave of the discovery deadline
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to conduct “depositions only” on “the dates as represented by the parties, up to and
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including November 7, 2017.” ECF No. 42. This leave was limited to the three
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depositions identified by the parties and did not alter the fact that discovery was closed.
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The Court will not grant leave to conduct depositions of “witnesses identified for the first
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time through Plaintiff’s questioning.” ECF No. 46 at 9. Plaintiff’s failure to conduct
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depositions sufficient to identify additional parties within the extended discovery period
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does not present good cause or diligence. Plaintiff’s ex parte application to extend the
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deposition deadline in this regard is DENIED.
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As to the continued deposition of Mr. Petrossian, the 30(b)(6) deponent for Sysco
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San Diego, Inc., the parties filed a Joint Motion for Determination of Discovery Dispute
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No. 3 regarding the deposition questioning. ECF No. 48. The Court will review and
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address that Joint Motion separately to address the scope of deposition questioning as to
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Mr. Petrossian. Plaintiff’s request to for leave to conduct a further deposition of Mr.
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Petrossian and the 30(b)(6) representative of Sysco Corporation is GRANTED IN
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PART. Plaintiff must complete these two depositions by November 17, 2017, and Mr.
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Petrossian’s deposition is limited to no more than 2 hours of on the record testimony.
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B. Motion to File Class Certification Deadline
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Plaintiff proffers that a combination of the delayed email production and
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instructions not to answer in deposition present good cause to extend the motion deadline
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for class certification. The Court disagrees. Discovery is closed. Plaintiff may not re-
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open discovery at this juncture to seek discovery to expand the class to include persons
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never before identified as relevant or in contention. Plaintiff’s late attempt at expansion
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does not present good cause to extend the motion filing deadline. Similarly, the emails at
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issue in the discovery disputes before the Court are largely directed at merits discovery
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and thus, are unlikely to have bearing on the Plaintiff’s ability to move to certify a class,
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i.e., to demonstrate numerousity, commonality, and typicality of claims, an adequate
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representative, predominance, and superiority. Fed. R. Civ. P. 23. Defendant has had
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nine months to prepare its motion, the Court believes this is more than adequate.
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Nonetheless, in light of the late nature of this request, the thanksgiving holiday, and
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because the motion would otherwise be due within one business days of this order, the
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Court will grant some limited relief. Plaintiff’s motion to extend the class certification
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deadline is GRANTED IN PART. Plaintiff’s motion must be filed by December 1,
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2017.
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C. Other Issues Raised
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Defendants were initially ordered to produce documents by September 1. In
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response to an order to show cause and subsequent order to submit a joint status report
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regarding the email production, Defendants represented that production would be
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complete by October 23. ECF No. 45. Defendants now state that production is
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“complete” as of November 3, 2017 – but simultaneously seek clarification as to the
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custodians to which Requests 48 and 49 are applicable. ECF No. 47.
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Defendants represent the parties met and conferred, and agreed to limit the list of
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custodians whose mailboxes were collected. ECF No. 47 at 7. Defendants counsel
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proposed limiting production to only two custodians most likely to have information on
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the day-to-day operations. Id. There is no indication that Plaintiff responded, either to
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accept or to object that additional directors and officers should be added to the list. It
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appears that collection of emails from the identified custodians, review, and production is
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now otherwise complete. Plaintiff’s failure to object to the custodians identified prior to
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collection and review, coupled with the time, costs, and Defendant’s representation that
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other custodians are unlikely to have responsive information make further collection,
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review, and production disproportionate to the needs of the case.
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IV.
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Conclusion
Plaintiff’s request to continue the discovery deadline to complete depositions is
DENIED, except as to a second deposition of Mr. Petrossian and a 30(b)(6)
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representative of Sysco Corporation. Both of these depositions must be completed by
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November 17, 2017. Plaintiff’s request to extend the deadline to file the motion for
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class certification is GRANTED IN PART, and must be filed by December 1, 2017.
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IT IS SO ORDERED.
Dated: November 9, 2017
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