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Cannon v. Austal USA LLC

United States District Court, S.D. California

July 7, 2017



          Hon. Barbara L. Major United States Magistrate Judge.

         Currently before the Court is Plaintiff's May 30, 2017 motion to compel depositions or, in the alternative, increase number of depositions by a party to twenty and to award reasonable attorneys' fees [ECF No. 85-1 (“MTC”)], Defendant USA's June 2, 2017 opposition to the motion [ECF No. 87 (“USA Oppo.”)], Defendant Austal's June 6, 2017 opposition to the motion [ECF No. 90 (“Austal Oppo.”)], Plaintiff's June 6, 2017 Reply [ECF No. 89 (“Reply”)], and Plaintiff's June 8, 2017 Reply [ECF No. 91 (“Reply 2”)]. For the reasons set forth below, Plaintiff's motion is GRANTED IN PART AND DENIED IN PART.


         On April 3, 2017, Plaintiff filed a motion to amend the scheduling order which was granted on April 25, 2017. ECF Nos. 62, 72. In the motion, Plaintiff sought to amend the scheduling order and reopen discovery. ECF No. 72 at 3. Plaintiff wanted to depose nine additional witnesses[1] based on the signed affidavit of one of the witnesses, Ms. Felicia London, and be given the “opportunity to discover the identities of any and all SUPSHIP personnel who may have any knowledge of Mr. Cannon's accident and accordingly conduct their depositions.” Id. at 4 (citing ECF No. 62 at 15). The Court granted Plaintiff's motion on April 25, 2017 despite finding that he “was not diligent in seeking a continuance of the discovery deadline” because the motion may not have been necessary if Defendant Austal had timely supplemented its initial disclosures, and because of Plaintiff's allegations regarding the failure of either Defendant to disclose the identity of Ms. London or the involvement of the SUPSHIP office and/or personnel. Id. at 6-7.

         On May 16, 2017, Plaintiff deposed Ms. London. ECF No. 87-1, Declaration of Frank J. Anders (“Anders Decl.”) at 2, Exh. B.

         On May 26, 2017, counsel for Plaintiff, Mr. Thomas Discon and Mr. Robert Lansden, counsel for Defendant Austal USA LLC, Mr. Douglas Lee Brown, and counsel for Defendant USA, Mr. Frank Anders, jointly contacted the court regarding issues related to depositions. ECF No. 84. Regarding the dispute, the Court found it appropriate to issue a briefing schedule. Id. The parties timely filed their motion, oppositions, and reply. MTC, USA Oppo., Austal Oppo., Reply and Reply 2.


         The scope of discovery under the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) is defined as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

         District courts have broad discretion to determine relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). District courts also have broad discretion to limit discovery to prevent its abuse. See Fed.R.Civ.P. 26(b)(2)(c)(i-iii)(instructing that courts must limit discovery where the party seeking the discovery “has had ample opportunity to obtain the information by discovery in the action” or where the proposed discovery is “unreasonably cumulative or duplicative, ” “obtain[able] from some other source that is more convenient, less burdensome, or less expensive, ” or where it “is outside the scope permitted by Rule 26(b)(1)”).



         1. Legal Standard

         Fed. R. Civ. P. 30(a)(1) provides that “[a] party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2).” Fed.R.Civ.P. 30 states that a “party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2) if the parties have not stipulated to the deposition and the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants.” Fed.R.Civ.P. 30(a)(2)(A)(ii).

         2. Joint Discovery Plan Language

         The Court's Notice and Order for Early Neutral Evaluation Conference and Case Management Conference states that “[a]greements made in the Joint Discovery Plan will be treated as binding stipulations that are effectively incorporated into the Court's Case Management Order.” ECF No. 23 at 4. Here, the parties' Joint Discovery Plan confirms that the parties (Plaintiff and Defendant USA) contemplated extending the ten deposition limit to fifteen. ECF No. 34. However, it is unclear if the parties agreed that more than ten depositions could be taken as a matter of course or if it would only be permitted “should it become necessary.” Id. at 4. If it is the later, the parties failed to define or explain under what circumstances additional depositions would be considered necessary. Specifically, page four of the parties' Joint Discovery Plan states:

Plaintiff and the United States have agreed to extend the limit of depositions to 15 per party should it ...

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