Frieri v. Sysco Corporation et al

Filing 51

ORDER on 48 Joint Motion for Determination of Discovery Dispute No. 3. Plaintiff's motion to compel is denied in part and granted in part. Plaintiff's request for sanctions is denied. Plaintiff is granted leave to conduct Mr. Petrossian& #039;s second deposition. The deposition must be completed by 11/17/2017, may proceed for no more than 2 hours of on-the-record testimony, and the scope of questioning must be limited to the questions previously asked and follow up questions arising directly therefrom. Signed by Magistrate Judge Nita L. Stormes on 11/9/2017. (Main Document 51 replaced on 11/9/2017) (mpl).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 RICK FRIERI, on behalf of himself and all others similarly situated, and on behalf of the general public, 13 14 15 16 Case No.: 3:16-cv-01432-JLS-NLS ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE NO. 3 Plaintiff, v. [ECF No. 48] SYSCO CORPORATION; SYSCO SAN DIEGO, INC.; AND DOES 1-100, Defendants. 17 18 19 20 Before the Court is the parties’ Joint Motion for Determination of Discovery 21 Dispute No. 3. ECF No. 48. Having considered the arguments presented by both parties 22 and for the reasons set forth herein and as detailed below, the Court GRANTS IN PART 23 and DENIES IN PART the Plaintiff’s motion to compel further responses to questions 24 posed in deposition. 25 26 I. DISCOVERY DISPUTE The parties and the Court have extensive familiarity with the factual and 27 procedural background of this case. Relevant to this dispute, the case presents a putative 28 class action of truck drivers for alleged wage and hour violations while employed as 1 3:16-cv-01432-JLS-NLS 1 drivers for defendants Sysco San Diego, Inc. and/or Sysco Corporation. See ECF No. 15. 2 Following a lengthy class discovery period, eight months total, during which the parties 3 were unable to coordinate deposition dates, the parties moved for and were granted leave 4 to conduct three depositions—(1) Plaintiff, (2) 30(b)(6) representative of Sysco San 5 Diego, and (3) 30(b)(6) representative of Sysco Corporation—after the class discovery 6 cut-off. ECF No. 42. The dispute before the Court arises from questions posed at the 7 deposition of the 30(b)(6) representative of Sysco San Diego, Mr. John Petrossian. ECF 8 No. 48. 9 During the deposition of Mr. Petrossian, counsel for Plaintiff inquired about the 10 number of non-driver employees employed by Sysco San Diego. ECF No. 48 at 1. 11 Counsel for the Defendants instructed the witness not to answer on the grounds that the 12 question exceeded the scope of the deposition notice.1 Id. 13 Similarly, when questioned regarding emails and phone calls exchanged between 14 Mr. Petrossian and the Vice President of Operations for the Pacific Market at Sysco 15 Corporation, Scott McKay, to whom Mr. Petrossian reports, counsel for the Defendants 16 also objected as beyond the scope of the deposition notice and overbroad. 17 The parties have agreed to the further deposition of Mr. Petrossian, but disagree as 18 to the appropriate scope. Defendants argue that questioning should be limited to the 19 questions the witness was instructed not to answer and immediate follow up questions. 20 Plaintiff argues that his questioning was limited because it was clear that counsel would 21 object, and so the entire lines of inquiry should permitted. 22 II. 23 DISCUSSION A. Non Driver Employees 24 Central to that dispute and to Plaintiff’s request for an extension, is the ability of 25 Plaintiff to question Mr. Petrossian on the number of “non-driver” employees of Sysco 26 27 28 1 The parties did not provide a copy of the deposition notice to the Court for review. 2 3:16-cv-01432-JLS-NLS 1 San Diego—a category of potential class members which Plaintiff has never previously 2 identified in connection with the pending action. Plaintiff’s first foray into this area of 3 questioning occurs following the close of class discovery, at a deposition Plaintiff was 4 granted leave to conduct beyond the discovery cut-off due to scheduling conflicts of the 5 parties. Plaintiff may not re-open class discovery and fails to present good cause to do 6 so. Plaintiff offers no basis for the relevance of this line of questioning, or its failure to 7 inquire into non-driver employees at any prior point in the nine months discovery has 8 been pending. “Taken together, [Federal] Rules [of Civil Procedure] 26(f), 30, and 37(a), 9 along with Rule 16, … vest the court with broad authority and discretion to control 10 discovery, including the conduct of depositions.” Hall v. Clifton Precision, a Div. of 11 Litton Sys., Inc., 150 F.R.D. 525, 527 (E.D. Pa. 1993). Under the circumstances 12 presented, the Court will exercise its discretion to limit questioning on this previously un- 13 explored topic. 14 Plaintiff’s motion to compel is DENIED IN PART and GRANTED IN PART. 15 Plaintiff may re-ask the question and any specific and limited follow up questions arising 16 directly therefrom because the Court does find that defense counsel’s instruction not to 17 answer was improper. See Detoy v. City and County of San Francisco, 196 F.R.D. 362, 18 366-67 (N.D. Cal. 2000). However, Plaintiff’s lack of diligence in the pursuit of 19 discovery as to any non-drivers precludes any further questioning as to non-driver 20 employees of Sysco San Diego as an improper attempt to re-open discovery and 21 disproportionate to the needs of the case. Fed. R. Civ. P. 26; Johnson v. Mammoth 22 Recreations, 975 F.2d 604, 609 (9th Cir. 1992); see also, Fed. R. Civ. P. 30(d)(3)(B); 23 Detoy v. City and County of San Francisco, 196 F.R.D. at 366 (“A party may instruct a 24 deponent not to answer … to enforce a limitation on evidence directed by the court.”) 25 26 B. Communications with Sysco Corporation Defendants argue that the “relationship between Sysco San Diego and Sysco 27 Corporation is a subject matter in Plaintiff’s deposition notice of the Sysco Corporation 28 PMK,” rendering further inquiry into Mr. Petrossian’s communications with Sysco 3 3:16-cv-01432-JLS-NLS 1 Corporation representatives improper as beyond the scope of his deposition notice and 2 converting his deposition to that of an individual percipient witness. ECF No. 48 at 10. 3 The court in Detoy v. City and County of San Francisco, addressed similar 4 5 6 7 8 9 10 11 12 13 14 15 16 17 concerns and noted that: The option to adjourn the 30(b)(6) deposition and demand that the deposition be re-noticed, for the witness to appear on his or her own behalf seems artificial and wasteful of both the parties' resources and the witness's time. Presumably, if the witness is capable of testifying on behalf of the designated entity, the witness is also capable of testifying as an individual, at the same deposition. Nor should one witness count as two depositions for purposes of the Local Rules' limit on the number of depositions to be taken by each party. Such a rule would encourage defending counsel to take a hard line and force an opponent to expend its deposition allotment. [¶] If Defendants have objections to either questions outside the scope of the 30(b)(6) designation or a question whether certain conduct falls inside or outside Departmental policy, counsel shall state the objection on the record and the witness shall answer the question, to the best of the witness's ability. … Detoy v. City and County of San Francisco, 196 F.R.D. at 367. The Court agrees with this analysis. The extent of Mr. Petrossian’s 18 communications with Mr. McKay, the Sysco Corporation VP to whom Mr. Petrossian 19 reports, may be properly answered by Mr. Petrossian without re-noticing his deposition 20 or converting it to an individual percipient deposition. However, because Plaintiff has 21 noticed and identified the topic of relationship between Sysco San Diego and Sysco 22 Corporation as a topic for the 30(b)(6) witness of the Sysco Corporation, the Court finds 23 it appropriate to limit Mr. Petrossian’s second deposition to the questions asked and any 24 follow up questions arising directly therefrom. 25 26 27 C. Sanctions The Court does not find that sanctions are warranted. Both parties appear to have been acting in good faith, and in particular, Defendants offered to re-produce Mr. 28 4 3:16-cv-01432-JLS-NLS 1 Petrossian at a time and location when all parties were scheduled to present and Plaintiff 2 declined. Plaintiff’s request for sanctions is DENIED. 3 4 III. CONCLUSION Plaintiff is GRANTED leave to conduct Mr. Petrossian’s second deposition. The 5 deposition must be completed by November 17, 2017, may proceed for no more than 2 6 hours of on-the-record testimony, and the scope of questioning must be limited to the 7 questions previously asked and follow up questions arising directly therefrom. 8 9 IT IS SO ORDERED. Dated: November 9, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 3:16-cv-01432-JLS-NLS

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