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Kilby v. CVS Pharmacy, Inc.

United States District Court, S.D. California

April 26, 2017

NYKEYA KILBY, Plaintiff,
v.
CVS PHARMACY, INC., Defendant

          ORDER RE JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE (RULE 30(B)(6) TOPICS) [DOC. NO. 173]

          HON. KAREN S. CRAWFORD, UNITED STATES MAGISTRATE JUDGE

         Before the Court is the parties' Joint Motion for Determination of Discovery Dispute. [Doc. No. 173.] In the Joint Motion, plaintiff seeks an order compelling defendant to make witnesses available for deposition pursuant to Federal Rule of Civil Procedure 30(b)(6) to testify about six different topics. [Doc. No. 173, at p. 4.] For the reasons outlined below, the Court finds that plaintiffs request for an order compelling defendant to make Rule 30(b)(6) witnesses available for deposition must be DENIED.

         Discussion

         A. Timeliness of Plaintiff's Fourth 30(b)(6) Notice of Deposition.

         “A party may, by oral questions, depose any person, including a party, without leave of court....” Fed.R.Civ.P. 30(a)(1). “In its notice or subpoena, a party may name as the deponent a... corporation, ... or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.” Fed.R.Civ.P. 30(b)(6). “A party who wants to depose a person by oral questions must give reasonable written notice to every other party....” Fed.R.Civ.P. 30(b)(1) (emphasis added).

         The parties' papers indicate plaintiff served defendant with her “Fourth 30(b)(6) Notice of Deposition” on February 17, 2017, just ten calendar days before the February 27, 2017 deadline for completing class-related discovery. [Doc. No. 159; Doc. No. 173, at p. 10; Doc. No. 173-2 (Exh. 1), at pp. 1-6; Doc. No. 173-7, at p. 3.] Based on the number and scope of topics included in the February 17, 2017 Notice and the February 27, 2017 deadline for completing class-related discovery, the Court finds that plaintiff failed to provide defendant with “reasonable written notice” as required by Federal Rule 30(b)(1).

         For the same reasons, the Court also finds that plaintiffs Notice was untimely under the Court's Scheduling Order of September 13, 2016. [Doc. No. 159.] The Scheduling Order provides that discovery under Rule 30 “must be initiated a sufficient period of time in advance of the cut-off date, taking into account the times for service, notice and response as set forth in the Federal Rules of Civil Procedure.” [Doc. No. 159, at p. 1.] As defendant explains in the Joint Motion, it was unreasonable for plaintiff to expect defendant to compile all of the necessary data, locate and prepare competent witnesses, and then appear for depositions of the scope requested in just ten calendar days before the expiration of the deadline for completing class discovery. [Doc. No. 173, at pp. 10, 15-17, et seq.]

         B. Scone of Discovery Requested in Plaintiff's Fourth 30(b)(6) Notice of Deposition.

         1. Tonic Nos. 37, 38, 39, and 41

         Topic Nos. 37, 38, 39 and 41 in plaintiffs Deposition Notice seek information about employees who work or have worked in six different CVS stores located in San Diego County during the class period (June 9, 2008 to the present). [Doc. No. 173, at p. 4.] At plaintiffs request and by agreement of the parties, plaintiff conducted a physical inspection of these CVS stores on February 24, 2017. [Doc. No. 173, at p. 14; Doc. No. 173-1, at pp. 4-5; Doc. No. 173-7, at p. 2.]

         Specifically, Topic Nos. 37, 38, 39, and 41 seek an order compelling defendant to make a witness or witnesses available to testify about the following: (1) the identities of each clerk/cashier, store manager, store manager in training, operations manager, or shift supervisor [Topic Nos. 37, 38]; (2) the identities of each clerk/cashier who used a seat while working at the check stands; (3) the nature of any criticism of clerk/cashiers about their performance while using a seat [Topic No. 39]; and (4) the identity of any clerk/cashier who requested to use a seat [Topic No. 41]. [Doc. No. 173, at p. 5.]

         Defendant argues, and the Court agrees, that the discovery plaintiff seeks is overly burdensome. Defendant represents that identifying employees and former employees who worked at the six stores would first require database searches. Then, to obtain the remaining information that plaintiff seeks, defendant would need to: (1) interview about 331 current and former clerk/cashiers; (2) interview about 56 store managers; (3) review each individual's personnel file; and (4) possibly search and review numerous e-mails. Many of the employees no longer work for defendant and may be difficult to contact. Records do not exist to separate clerk/cashiers who operated cash registers from those who did not. [Doc. No.173, at pp.16-23.]

         Most of the information plaintiff seeks by way of the Deposition Notice is also duplicate of other discovery that has already been produced or is in the process of being produced. At this late date in the class discovery process, the Deposition Notice further reveals an attempt by plaintiff to implement a whole new discovery strategy. In a prior Joint Motion, plaintiff sought an order compelling defendant to provide further responses to a number of very broadly worded discovery requests seeking the same or similar documents and information as to all 9, 600 CVS stores in the United States and/or all 940 CVS stores in California. [Doc. No. 160, at pp. 1-48.] For example, plaintiffs Interrogatory No. 23 sought the identity of “each Clerk/Cashier who was employed in California at any time between June 9, 2008 and the present who operated a front-end cash register for at least one pay period during that time.” [Doc. No. 182, at p. 8.] For the reasons outlined in the Court's Order of April 19, 2017, defendant was ordered to update a list of putative class members that was previously produced to plaintiff in 2011 by providing plaintiff with a representative list of clerk/cashiers employed by defendant in its California stores any time after the prior production; in 2011. [Doc. No. 182, at pp. 9-10.]

         Plaintiffs Interrogatory No. 25 additionally sought the identity of “each Clerk/Cashier anywhere in the United States who, at any time between June 9, 2008 and the present, used a seat or stool while operating the cash register.” [Doc. No. 182, at p. 11 (emphasis added).] Subject to the confidentiality provisions of the Protective Order [Doc. No. 62], the Court ordered defendant to identify all clerk/cashiers in its California stores that have used or are using a seat or stool while operating a cash register from June 9, 2008 to the present. [Doc. No. 182, at p. 12.] In addition, as outlined in the parties' prior Joint Motion [Doc. No. 160] and in the Court's Order of April 19, 2017 [Doc. No. 182], defendant has already provided plaintiff with other discovery on this topic. Defendant produced records from a Human Resources database showing requests for seat accommodations and describing instances where California retail employees requested the use of ...


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