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Schneider v. Chipotle Mexican Grill, Inc.

United States District Court, N.D. California

July 24, 2017

MARTIN SCHNEIDER, et al., Plaintiffs,



         Plaintiffs Sarah Deigert, Martin Schneider, and Nadia Parikka were deposed regarding consumer protection claims brought against Defendant Chipotle Mexican Grill. Defendant then subpoenaed non-parties Paul Primozich, Kevin Cosgrove, and Sandra Coller for the stated purpose of corroborating testimony given by the above-mentioned Plaintiffs. (Joint Letter, Dkt. No. 66.)

         On June 26, 2017, the parties filed a joint letter regarding the depositions of the three non-parties. The court deems the matter suitable for disposition without a hearing pursuant to Civil Local Rule 7-1(b). Having considered the papers filed by the parties, and for the reasons set forth below, the Court GRANTS Plaintiffs' request to quash the subpoena concerning Paul Primozich and DENIES the request to quash the subpoena concerning Kevin Cosgrove. The Court also DENIES the request to quash the subpoena for Ms. Coller, but GRANTS a protective order limiting Defendant to taking the deposition within twenty (20) miles of Ms. Coller's residence at Defendant's expense.

         I. BACKGROUND

         On April 27, 2015, Defendant began its advertising campaign, "G-M-Over It." (Compl. ¶ 1.) In this campaign, Defendant represented that it was becoming the first fast food chain in the United States to have a "GMO free menu that uses 'only non-GMO ingredients.'" (Id.) Defendant produced ads stating, for example, that "'all' of [Defendant's] food is now non-GMO, " and that its foods have "No GMO" and were "made with no-GMO ingredients." (Compl. ¶¶ 35-36.) Defendant also advertised on its store fronts, stating "A Farewell to GMOs" and that "When it comes to our food, genetically modified ingredients don't make the cut;" similarly, Defendant's in-store signs stated: "Only non-GMO ingredients." (Compl. ¶¶ 37-38.)

         Plaintiffs allege that this campaign is misleading because Defendant: "(1) serves protein products such as beef, chicken, and pork from poultry and livestock that have been raised on GMO feed; (2) serves dairy products such as cheese and sour cream derived from cows raised on GMO feed; and (3) sells beverages such as Coca-Cola and Sprite that are loaded with corn-syrup derived from GMO corn." (Compl. ¶ 2; see also Compl. ¶¶ 41-43.) Plaintiffs now seek to represent four classes, made up of "All persons residing in California[, Maryland, Florida, and New York], during the period April 27, 2015 to the present, who purchased and/or paid for Chipotle Food Products." (Compl. ¶¶ 56-59.)

         On November 30, 2016, the case was assigned to the undersigned for discovery purposes. (Dkt. No. 39.) The parties have now submitted a joint discovery letter concerning Defendant's deposition subpoenas to non-parties.


         Under Rule 26, in a civil action, a party may obtain discovery “regarding any non-privileged 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.” Fed.R.Civ.P. 26(b)(1). Additionally, the court must limit the frequency or extent of discovery if it determines that: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C). Rule 45 also specifically provides that “the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A).

         Federal Rule of Civil Procedure 45 governs discovery of non-parties by subpoena. Rule 45 provides, among other things, that a party may command a non-party to testify at a deposition. Fed.R.Civ.P. 45(a)(1)(A)(iii). The scope of discovery through a Rule 45 subpoena is the same as the scope of discovery permitted under Rule 26(b). Beaver Cty. Employers Ret. Fund v. Tile Shop Holdings, Inc., No. 3:16-mc-80062-JSC, 2016 WL 3162218, at *2 (N.D. Cal. June 7, 2016) (citing Fed.R.Civ.P. 45 Advisory Comm.'s Note (1970); Fed.R.Civ.P. 34(a)).

         “The Ninth Circuit has long held that nonparties subject to discovery requests deserve extra protection from the courts.” Lemberg Law LLC v. Hussin, No. 3:16-mc-80066- JCS, 2016 WL 3231300, at *5 (N.D. Cal. June 13, 2016) (quotation omitted); see United States v. C.B.S., Inc., 666 F.2d 364, 371-72 (9th Cir. 1982) (“Nonparty witnesses are powerless to control the scope of litigation and discovery, and should not be forced to subsidize an unreasonable share of the costs of a litigation to which they are not a party”). Courts in this district have consequently held that “[o]n a motion to quash a subpoena, the moving party has the burden of persuasion . . ., but the party issuing the subpoena must demonstrate that the discovery sought is relevant.” Chevron Corp. v. Donziger, No. 3:12-mc-80237-CRB, 2013 WL 4536808, at *4 (N.D. Cal. Aug. 22, 2013) (citation omitted); see also Optimize Tech. Solutions, LLC v. Staples, Inc., No. 5:14-mc-80095-LHK, 2014 WL 1477651, at *2 (N.D. Cal. Apr. 14, 2014) (“The party issuing the subpoena must demonstrate that the information sought is relevant and material to the allegations and claims at issue in the proceedings.” (quotation omitted)).


         A. Paul Primozich

         Paul Primozich is a friend and former co-worker of Plaintiff Deigert. He is also the domestic partner of Plaintiffs' counsel, Matthew George. Defendant claims that the “primary thrust” of its reasoning for wanting to depose Mr. Primozich is that “he is a key percipient witness with respect to ...

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