United States District Court, S.D. California
WILLIAM J. CANNON, Plaintiff,
AUSTAL USA LLC AND UNITED STATES OF AMERICA, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO COMPEL DEPOSITIONS OR INCREASE
NUMBER OF DEPOSITIONS TO TWENTY [ECF NO. 85]
Barbara L. Major United States Magistrate Judge.
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
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 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.
16, 2017, Plaintiff deposed Ms. London. ECF No. 87-1,
Declaration of Frank J. Anders (“Anders Decl.”)
at 2, Exh. B.
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.
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).
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)”).
TEN DEPOSITION LIMIT
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).
Joint Discovery Plan Language
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 ...