United States District Court, N.D. California
ORDER REGARDING JOINT DISCOVERY LETTER RE: DKT. NO.
A. WESTMORE UNITED STATES MAGISTRATE JUDGE.
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.)
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
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.)
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. ¶¶
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.
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).
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);
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)).
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 ...