The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court
ORDER GRANTING CHIPOTLE'S MOTION TO COMPEL 20 DEPOSITIONS OF PUTATIVE CLASS MEMBERS
On April 18, 2011, Plaintiff filed a motion for class certification [Doc. No. 88]. Defendant, Chipotle Mexican Grill, Inc., (Chipotle) has not yet filed an opposition. Chipotle comes before the Court now to seek a discovery order to conduct depositions of individuals identified by Plaintiffs as witnesses who signed declarations as putative class members in support of Plaintiff's class certification motion.
Plaintiff's claims arise under the Americans with Disabilities Act (42 U.S.C. §12131, et seq.), along with certain other state law claims for relief. Jurisdiction is properly in this Court pursuant to 28 U.S.C. Sections 1331 and 1343.
A. Chipotle's Desired Discovery
Chipotle desires to conduct "short, one-hour depositions of 20 of the 41 individuals whom Plaintiffs identified as witnesses in their supplemental disclosures, and who then signed declarations as putative class members in support of Plaintiffs' class certification motion." (Chipotle's Letter Brief). The proposed deponents share two characteristics: (1) they were identified as witnesses in Plaintiff's supplemental disclosures and (2) they signed declarations as putative class members in support of Plaintiff's motion for class certification. At the Court's request, Chipotle submitted sample depositions questions to the Court and Plaintiff. Plaintiff has submitted specific objections to Chipotle's proposed questions.
B. Plaintiff's Opposition to the Proposed Discovery
Plaintiff contends this Court should not grant Chipotle leave to depose unnamed class members because: (1) Chipotle has failed to show the necessity of such discovery, (2) Chipotle has failed to show the relevance of such discovery, and (3) Chipotle's proposed deposition questions are designed to confuse, mislead and discourage class participation.
C. Is Discovery of Non-Class Plaintiffs Allowable?
Courts do not ordinarily permit discovery from absent class members. McPhail v. First Command Fin. Planning, Inc., 251 F.R.D. 514, 517 (S.D.Cal. 2008); see also Fischer v. Wolfinbarger, 55 F.R.D. 129, 132 (W.D.Ky.1971) ("It is not intended that members of the class should be treated as if they were parties plaintiff, subject to the normal discovery procedures, because if that were permitted, then the reason [behind Rule 23(a)(1) of the Federal Rules of Civil Procedure] would fail.").
Although Courts do not usually allow discovery from absent class members, the rules pertaining to such discovery are flexible, especially where the proposed deponents have been identified as potential witnesses or have otherwise "injected" themselves into the litigation. See Mas v. Cumulus Media Inc., 2010 WL 4916402, *3 (N.D.Cal. Nov. 22, 2010) and Moreno v. Autozone 2007 WL 2288165, *1 (N.D.Cal. August 3, 2007) (citations omitted). Therefore, such discovery may be taken even prior to certification where "the proponent of the deposition demonstrates discovery is not sought to take undue advantage of class members or to harass class members, and is necessary to the trial preparation (or in this instance for preparation of the opposition to class certification)." Moreno, 2007 WL 2288165 at *1.
Chipotle seeks to depose absent class members that have submitted
declarations in support
of Plaintiff's motion for class certification and
whom Plaintiff has identified as witnesses in Plaintiff's
supplemental disclosures. Thus, the proposed deponents have injected
themselves into the litigation on two fronts and cannot claim
noninvolvement as a means of avoiding discovery. In addition, the
court is satisfied Chipotle is not taking the proposed depositions in
order "to take undue advantage of class members or to harass class
members." Moreno, surpa, at *1 . Furthermore, the
proposed discovery is clearly relevant to the claims and defenses in
the instant case and calculated to lead to the discovery of admissible
evidence. Fed. R. Civ . Proc. 26(b)(1) .
The Court notes that under certain circumstances depositions of absent class members could have a chilling effect on their willingness to be part of the class. Tierno v. Rite Aid, 2008 WL 2705089, *3, fn. 2 (N.D.Cal. July 8, 2008) (Italics added). However, that concern has little impact in this case for several reasons. First, the proposed deponents are not employees of Chipotle; rather, they are customers. Therefore, they are not under the pressure employees would face being deposed by their employer. Chipotle cannot directly or impliedly threaten the putative class members with loss or reduction of employment or some other adverse action affecting the work environment. Indeed, a case can be made that Chipotle is more dependent on the putative class members than they are dependent on Chipotle. In fact, part of Chipotle's motivation is to maintain or restore its corporate image with the demographic represented by the putative class members. Second, an employer would have had ample opportunity to question the prospective class member employees. However, in this case, the most effective way for Chipotle to question these particular putative class members is by deposition. Third, because the non-employee putative class members have submitted declarations in support of Plaintiff's motion for class certification, their expectation of noninvolvement in the litigation is significantly less than the expectation of putative class members who have not affirmatively injected themselves into the litigation. Fourth, each deposition is limited to one hour and is appropriately focused. Furthermore, Chipotle has submitted its proposed questions in advance to the Court, thereby substantially reducing the likelihood of abuse. Please See Addendum A.
The court finds the Mas and Moreno cases persuasive. Chipotle is allowed to take the depositions of 20 of the potential class members who have submitted declarations in support of plaintiffs motion for class certification with the following limitations:
a. Each deposition is limited to one hour actual running time. Colloquy between counsel does not count toward the one hour limitation.
b. Each deposition must be videotaped, unless the deposition proceeds by telephone, in which case videotaping will not be necessary. Depositions by telephone must be audiotaped.
c. Chipotle will bear the full cost of taking and videotaping and audiotaping the depositions.
d. The depositions must be reasonably noticed. Notices of deposition must be personally served on plaintiff's counsel at least 10 days before any proposed deposition, unless there is written agreement to shorten the time.
e. If one party believes the other party is acting inappropriately at the deposition, the Court will review the videotapes and/or audiotapes of the contested depositions after all the depositions have been completed. The Court will consider an award of sanctions after the Court's review of the depositions.
f. Chipotle can only depose those potential class members who have submitted declarations in support of plaintiffs motion for class certification and who have also been identified by Plaintiff as witnesses in his initial disclosures.
Should Chipotle be allowed to ask the deponents whether Ms. Vandeveld has instructed them not to speak with Chipotle's representatives?
There is no need for Chipotle to ask questions designed to, or which have the effect of, invading the attorney-client or work product privileges that may obtain in order to discover the information Chipotle represented to the Court it needs to oppose Plaintiff's representations regarding numerosity in Plaintiff's motion for class certification. Chipotle can accomplish his goals without invading the privileges. Therefore, Chipotle needs to phrase its questions so as to avoid invading these privileges.
Addendum A provides the Court's rulings on the specific deposition questions Chipotle seeks to ask.
Chipotle Objections Table