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Samuel Brandon Kress, et al v. Price Waterhouse Coopers

September 25, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Previously pending on this court's law and motion calendar for August 16, 2012, was defendant's motion to compel depositions of 75 additional fact witnesses (opt-in class members and perhaps others), filed July 19, 2012. Daniel Thomasch represented defendant. Peter Muhic appeared for plaintiffs. After hearing oral argument and reviewing the joint statement, the court now issues the following order.


This case involves a proposed nationwide class action concerning overtime compensation and other wages. The discovery motion at issue seeks depositions of current or former PwC employees who have information concerning the work of Associates in the Attest division of the Assurance Line of Service or who have knowledge of the exemption status of these associates under the Fair Labor Standards Act ("FLSA"). PwC indicates that the number of opt-in plaintiffs in the class of unlicensed Attest Associates is 1,709. PwC anticipates filing motions to decertify the conditionally certified FLSA Attest Associate class. There is no discovery deadline; nor has the court set a schedule for the second stage collective action motion practice. (Jt. Stmt. at 12.) Thus far, PwC has taken the ten depositions permitted under Fed. R. Civ. P. 30(a)(2). Five fact witnesses, consisting of named plaintiff*fn1 and class representative Le and four others who had submitted declarations in support of the motion to certify, were deposed in regard to the FLSA Attest Associate class; three fact witnesses, who had previously submitted declarations in support of motion to certify, have been deposed in regard to the putative Attest Senior Associate class; and two fact witnesses, named plaintiffs Kress and Kenny, have been deposed in regard to both the FLSA Attest Associate class and the putative Attest Senior Associate class.


Scheduling/Case Management Conference

PwC claims to need 75 more depositions to prepare for its motion to decertify the class to show that the named plaintiffs are not similarly situated to the other employees they seek to represent. PwC seeks this many depositions to demonstrate how the work of different Attest associates varies according to skill level, experience and initiative, industry sectors in which they work, and staffing model employed on the various engagements. For example, PwC will attempt to show that the nature of the work on large and small audits is different, that audits of public companies is different than audits of private companies and governmental bodies, and that the work of those associates who have met PwC's reasonable performance expectations is different from those associates who have not.

Plaintiffs, in resisting the taking of 75 depositions at this time, point out that PwC has refused to disclose the identities, job titles and locations of these individuals, as well as failed to provide a method for selecting the additional deponents or discuss the location and timing of the depositions. Furthermore, plaintiffs assert that any additional depositions should be part of a broader case management order which should be issued by Judge Karlton after he addresses these issues in a conference which results in an comprehensive schedule for the case.

Because the extent to which PwC's intentions to seek additional depositions after this round, which may include current and former employees who were putative class members but chose not to opt into the class, and other percipient witnesses who have direct knowledge of the work performed by class members, as well as plaintiffs' concern that PwC may seek to depose every single opt-in plaintiff prior to trial, and because the extent to which "class decertification depositions" may overlap with the merits of the case (assuming that the class is not decertified), the undersigned agrees that a case management conference and order may be very helpful. Such a schedule may be especially instructive in light of plaintiffs' suggestion that PwC seeks to depose associates who may be class members in the Campbell case (California plaintiffs), which would be in violation of Judge Karlton's orders prohibiting certain discovery affecting Campbell class members. If PwC succeeds, it could introduce this evidence in the Campbell case even though it has been prohibited and discovery is closed in that case.

All of the above statements lead to the instruction to the party(ies) seeking a scheduling/case management conference: ask Judge Karlton and you might receive. The undersigned is not going to adjudicate in this discovery dispute, and for the trial judge, the necessity of such a conference, nor will the undersigned ascertain whether a party initially avoided the idea of such a conference, and now wants one, or the inference to be drawn from that fact, if it is a fact.

The Number of Depositions to Be Permitted

Turning to PwC's request for 75 depositions, the determination of whether unlicensed Attest Associates meet overtime exemptions requires an "intensely factual" analysis of their actual job duties and responsibilities, at least initially. See Campbell v. PricewaterhouseCoopers, LLP, 642 F.3d 820, 833 (9th Cir. 2011).*fn2 However, the undersigned is also cognizant that discovery, especially far-flung depositions, has the potential to be oppressive to the point of wiping out the ability of one party or another to continue a litigation. The issue here involves drawing the proper balance and is determined by looking at other cases in similar situations as well as the ability of the party seeking depositions to obtain substantially the same information from a collective source.

PwC's cited cases permit the type, and to some extent the number, of depositions that are requested here in class actions where defendants were seeking discovery for the purpose of class decertification. In Williams v. Sprint/United Management Co., 2006 WL 1867471 (D. Kan. Jun. 30, 2006), the court permitted further depositions to go forward (after 300 had been taken) because plaintiffs did not contend that the opt-in plaintiffs to be deposed did not have information concerning pattern and practice which was at issue there. Although the court had previously permitted the depositions of 300 opt-in plaintiffs, plaintiffs had not objected to that previous ruling, and they did not currently object to the recently permitted depositions on the basis that defendants had exceeded the number of depositions contemplated by the court and the parties. Id. at n. 1. Rather, plaintiffs had objected to depositions of individuals not listed as witnesses on this issue. The court found that defendant could properly depose these individuals because they were plaintiffs in the action seeking damages regarding pattern and practice issues. Plaintiffs here attempt to distinguish the Williams case on this last point, it is actually similar in some respects in that there has been no case management or other order limiting the number of depositions in this case.

Other class action cases cited by PwC likewise allowed numerous depositions. See Renfro v. Spartan Computer Services, Inc., 2008 WL 474253 (D. Kan. Feb. 19, 2008) (permitting 27 depositions, and potential individualized discovery for all 100 opt-in plaintiffs) because plaintiffs had failed to show undue burden with particularized facts and because each plaintiff to be deposed had consented to participate in the lawsuit); Krueger v. N.Y. Tel. Co., 163 F.R.D. 446 (S.D.N.Y. 1995) (allowing 14 additional depositions in addition to the 19 depositions to which plaintiffs had agreed). The court distinguished that small number of class plaintiffs (162) from other class actions involving thousands of absent class members scattered around the country and perhaps unaware of the litigation. In Ingersoll v. Royal & Sunalliance USA, Inc., 2006 WL 2091097 (W.D. Wash. Jul. 25, 2006), the class consisted of 34 opt-in plaintiffs, "each of whom has freely chosen to participate and each of whom has relevant information ...

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