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Carrera v. First American Home Buyers Protection Co.

United States District Court, S.D. California

July 23, 2014

Nancy Carrera, et al., Plaintiffs,
v.
First American Home Buyers Protection Company, et al., Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PROTECTIVE ORDER [ECF No. 100]

JILL L. BURKHARDT, Magistrate Judge.

Before the Court is Defendant First American Home Buyer Protection Company's motion seeking a protective order precluding the deposition of Ms. Maggi Havas, and a second Fed.R.Civ.P. 30(b)(6) deposition of First American. (ECF No. 100.) Plaintiffs filed their response in opposition to the motion on July 15, 2014. (ECF No. 101.) On July 17, 2014, Defendant filed its reply. (ECF No. 102.) On July 21, 2014, the Court held oral argument. (ECF No. 103.) The Court grants in part and denies in part the motion.

I. Legal Standard

"The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, " including forbidding a deposition, or limiting its scope. Fed.R.Civ.P. 26(c)(1)(A), (D). "The burden is upon the party seeking the [protective] order to show good cause' by demonstrating harm or prejudice that will result from the discovery." Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004). This burden can be met by showing that the sought after discovery is irrelevant. Fed.R.Civ.P. 26(b)(2)(C)(iii) ("the court must limit the frequency or extent of discovery... if it determines that... "the burden or expense of the proposed discovery outweighs its likely benefit"). "The compulsion of production of irrelevant information is an inherently undue burden" for which a protective order may issue. Jimenez v. City of Chicago, 733 F.Supp.2d 1268, 1273 (W.D. Wash. 2010) (citing Compaq Computer Corp. v. Packard Bell Elecs., 163 F.R.D. 329, 335-36 (N.D. Cal. 1995)); Monte H. Greenawalt Revocable Trust v. Brown, No. 12cv1983, 2013 WL 6844760, *3 (D. Nev. Dec. 19, 2013) ("Discovery requests seeking irrelevant information are inherently undue and burdensome"); Ginena v. Alaska Airlines, Inc., No. 04cv1304, 2011 WL 4749104, *1 (D. Nev. Oct. 6, 2011) ("If discovery sought is not relevant, the court should restrict discovery by issuing a protective order.").

As the United States Supreme Court has explained, district courts must safeguard against discovery that goes beyond the bounds of relevancy:

The Court has more than once declared that the deposition-discovery rules are to be accorded a broad and liberal treatment to effect their purpose of adequately informing the litigants in civil trials.... But the discovery provisions, like all of the Federal Rules of Civil Procedure, are subject to the injunction of Rule 1 that they "be construed to secure the just, speedy, and inexpensive determination of every action." [] To this end, the requirement of Rule 26(b)(1) that the material sought in discovery be "relevant" should be firmly applied, and the district courts should not neglect their power to restrict discovery where "justice requires [protection for] a party or person from annoyance, embarrassment, oppression, or undue burden or expense...."

Herbert v. Lando, 441 U.S. 153, 177 (1979) (internal citations omitted).

II. Analysis

A. Maggi Havas

Plaintiffs seek to depose Maggi Havas, a former First American marketing executive. Defendant argues that Ms. Havas' deposition should not go forward as it would be cumulative of its Rule 30(b)(6) witness' deposition testimony from 2013.[1] While there may be some overlap, Ms. Havas is a third party and may provide testimony that conflicts with or demonstrates knowledge superior to Defendant's Rule 30(b)(6) witness' testimony. Indeed, Defendant's Rule 30(b)(6) witness held Ms. Havas out as a person who has superior knowledge about Defendant's sales and marketing. The Court declines to preclude this deposition witness testimony on the ground that her anticipated testimony is cumulative and, thus, unnecessary.

Plaintiffs seek to depose Ms. Havas because she is "knowledgeable about Defendant's sales and marketing materials, including the advertisements that are a central focus of this case." (ECF No. 101 at 5.) Defendant requests that Plaintiffs be precluded from asking any "RESPA-related" questions.[2] Plaintiffs oppose this request because it is a vague and amorphous limitation. Plaintiffs further argue that questions regarding Defendant's use of real estate agents are not related to RESPA, but rather go to Defendant's false and misleading advertisements and Plaintiffs' claim that Defendants engaged in unfair competition in violation of the Unfair Trade Practices Act, Cal. Bus. & Prof. Code ยง 17200.

The Court agrees that the label "RESPA-related" is too amorphous of a limitation for a protective order. Questions about whether and how real estate agents were used to make or disseminate allegedly untrue or misleading statements would be relevant to the claims and defenses in this action. For this reason, Magistrate Judge McCurine held that "information as to whether First American [] utilized real estate agents to communicate misleading statements regarding its home warranty policies to home buyers is reasonably calculated to lead to the discovery of admissible evidence." (ECF No. 76 at 7-8.) Further, Magistrate Judge McCurine ordered Defendant to respond to discovery requests that sought "policies and procedures for utilizing real estate agents and brokers in any capacity relating to home warranty contracts" and "documents, including but not limited to scripts related to First American's training of persons utilizing to sell and/or market First American's home warranty contracts." ( Id. at 8.) The content of such written advertisements, marketing or training materials, and solicitations, including to whom and from whom they were sent or directed is relevant to this case.[3]

However, as explained below, Defendant has met its burden to show good cause exists for a protective order limiting the ...


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