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'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). (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 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.

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Before the Court is the parties’ Joint Motion for Determination of Discovery

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Dispute No. 3. ECF No. 48. Having considered the arguments presented by both parties

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and for the reasons set forth herein and as detailed below, the Court GRANTS IN PART

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and DENIES IN PART the Plaintiff’s motion to compel further responses to questions

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posed in deposition.

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I.

DISCOVERY DISPUTE
The parties and the Court have extensive familiarity with the factual and

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procedural background of this case. Relevant to this dispute, the case presents a putative

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class action of truck drivers for alleged wage and hour violations while employed as
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drivers for defendants Sysco San Diego, Inc. and/or Sysco Corporation. See ECF No. 15.

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Following a lengthy class discovery period, eight months total, during which the parties

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were unable to coordinate deposition dates, the parties moved for and were granted leave

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to conduct three depositions—(1) Plaintiff, (2) 30(b)(6) representative of Sysco San

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Diego, and (3) 30(b)(6) representative of Sysco Corporation—after the class discovery

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cut-off. ECF No. 42. The dispute before the Court arises from questions posed at the

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deposition of the 30(b)(6) representative of Sysco San Diego, Mr. John Petrossian. ECF

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No. 48.

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During the deposition of Mr. Petrossian, counsel for Plaintiff inquired about the

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number of non-driver employees employed by Sysco San Diego. ECF No. 48 at 1.

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Counsel for the Defendants instructed the witness not to answer on the grounds that the

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question exceeded the scope of the deposition notice.1 Id.

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Similarly, when questioned regarding emails and phone calls exchanged between

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Mr. Petrossian and the Vice President of Operations for the Pacific Market at Sysco

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Corporation, Scott McKay, to whom Mr. Petrossian reports, counsel for the Defendants

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also objected as beyond the scope of the deposition notice and overbroad.

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The parties have agreed to the further deposition of Mr. Petrossian, but disagree as

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to the appropriate scope. Defendants argue that questioning should be limited to the

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questions the witness was instructed not to answer and immediate follow up questions.

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Plaintiff argues that his questioning was limited because it was clear that counsel would

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object, and so the entire lines of inquiry should permitted.

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II.

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DISCUSSION
A. Non Driver Employees

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Central to that dispute and to Plaintiff’s request for an extension, is the ability of

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Plaintiff to question Mr. Petrossian on the number of “non-driver” employees of Sysco

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The parties did not provide a copy of the deposition notice to the Court for review.
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San Diego—a category of potential class members which Plaintiff has never previously

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identified in connection with the pending action. Plaintiff’s first foray into this area of

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questioning occurs following the close of class discovery, at a deposition Plaintiff was

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granted leave to conduct beyond the discovery cut-off due to scheduling conflicts of the

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parties. Plaintiff may not re-open class discovery and fails to present good cause to do

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so. Plaintiff offers no basis for the relevance of this line of questioning, or its failure to

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inquire into non-driver employees at any prior point in the nine months discovery has

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been pending. “Taken together, [Federal] Rules [of Civil Procedure] 26(f), 30, and 37(a),

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along with Rule 16, … vest the court with broad authority and discretion to control

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discovery, including the conduct of depositions.” Hall v. Clifton Precision, a Div. of

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Litton Sys., Inc., 150 F.R.D. 525, 527 (E.D. Pa. 1993). Under the circumstances

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presented, the Court will exercise its discretion to limit questioning on this previously un-

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explored topic.

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Plaintiff’s motion to compel is DENIED IN PART and GRANTED IN PART.

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Plaintiff may re-ask the question and any specific and limited follow up questions arising

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directly therefrom because the Court does find that defense counsel’s instruction not to

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answer was improper. See Detoy v. City and County of San Francisco, 196 F.R.D. 362,

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366-67 (N.D. Cal. 2000). However, Plaintiff’s lack of diligence in the pursuit of

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discovery as to any non-drivers precludes any further questioning as to non-driver

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employees of Sysco San Diego as an improper attempt to re-open discovery and

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disproportionate to the needs of the case. Fed. R. Civ. P. 26; Johnson v. Mammoth

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Recreations, 975 F.2d 604, 609 (9th Cir. 1992); see also, Fed. R. Civ. P. 30(d)(3)(B);

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Detoy v. City and County of San Francisco, 196 F.R.D. at 366 (“A party may instruct a

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deponent not to answer … to enforce a limitation on evidence directed by the court.”)

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B. Communications with Sysco Corporation
Defendants argue that the “relationship between Sysco San Diego and Sysco

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Corporation is a subject matter in Plaintiff’s deposition notice of the Sysco Corporation

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PMK,” rendering further inquiry into Mr. Petrossian’s communications with Sysco
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Corporation representatives improper as beyond the scope of his deposition notice and

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converting his deposition to that of an individual percipient witness. ECF No. 48 at 10.

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The court in Detoy v. City and County of San Francisco, addressed similar

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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

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communications with Mr. McKay, the Sysco Corporation VP to whom Mr. Petrossian

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reports, may be properly answered by Mr. Petrossian without re-noticing his deposition

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or converting it to an individual percipient deposition. However, because Plaintiff has

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noticed and identified the topic of relationship between Sysco San Diego and Sysco

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Corporation as a topic for the 30(b)(6) witness of the Sysco Corporation, the Court finds

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it appropriate to limit Mr. Petrossian’s second deposition to the questions asked and any

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follow up questions arising directly therefrom.

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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.

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Petrossian at a time and location when all parties were scheduled to present and Plaintiff

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declined. Plaintiff’s request for sanctions is DENIED.

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III.

CONCLUSION

Plaintiff is GRANTED leave to conduct Mr. Petrossian’s second deposition. The

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deposition must be completed by November 17, 2017, may proceed for no more than 2

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hours of on-the-record testimony, and the scope of questioning must be limited to the

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questions previously asked and follow up questions arising directly therefrom.

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IT IS SO ORDERED.
Dated: November 9, 2017

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