United States District Court, S.D. California
SYLVESTER OWINO, JONATHAN GOMEZ, on behalf of themselves, and all other similarly situated, Plaintiff,
CORECIVIC, INC., a Maryland corporation, Defendant. AND RELATED CROSS ACTION
ORDER ON DISCOVERY DISPUTE NO. 3 [ECF NO.
Nita L. Stormes, United States Magistrate Judge
the Court is the parties' Joint Motion for Determination
of Discovery Dispute No. 3. ECF No. 102. Defendant also filed
a Notice of Supplemental Authority, to which Plaintiffs
submitted a response. ECF Nos. 108, 109. In sum, Plaintiffs
request leave to proceed with and/or an order compelling a
second deposition of Defendant pursuant to Rule 30(b)(6). For
the reasons explained below, the court will deny
without prejudice Plaintiffs' motion.
RELEVANT BACKGROUND AND SUMMARY OF DISPUTE
case presents a putative class action regarding
Defendant's use of civil immigration detainees for labor
at their facilities, either unpaid entirely or underpaid in
the “one dollar a day” program. See ECF
No. 67. Plaintiffs timely filed a motion to certify five
proposed classes: (1) a California Labor Law Class; (2) a
California Forced Labor Class; (3) a California Basic
Necessities Class; (4) a National Forced Labor class; and (5)
a National Basic Necessities Class. ECF No. 84.
the motion to certify the classes is pending before the
District Judge, the parties have reached disagreement on the
continued scope of discovery, specifically 30(b)(6)
depositions of Defendant while the parties await a decision
on class certification. Plaintiffs argue that because
discovery was not bifurcated, following the conclusion of
class discovery they have turned to merits discovery. ECF No.
102 at 2-3; see also, ECF No. 57 (“Fact and
class discovery are not bifurcated but class discovery must
be completed by March 15, 2019”). Plaintiffs seek to
depose Defendant regarding its negotiations and other
“financial considerations and profitability of
Defendant's contracts with I.C.E.” ECF No. 102 at 3.
Plaintiffs assert that this topic was not previously covered
because the deposition that occurred was focused on class
discovery. Id. at 4. Thus, Plaintiffs seek, to the
extent necessary, leave of court to conduct a second
deposition of a 30(b)(6) witness regarding financial
information relevant to Defendant's unjust enrichment
defense. Id. at 4-7.
counters that Plaintiff already deposed its 30(b)(6)
representative and did so for an extended period of time as
permitted by this Court in response to Discovery Dispute No.
2. ECF No. 102 at 13; see also, ECF No. 80
(“there are sufficient documents, topics, and issues to
present good cause to grant the request to extend the
deposition time to the requested 11 hours over two days. This
also promotes the conservation of resources and costs
preventing a second deposition with additional travel,
scheduling or need for judicial
intervention….”). Defendant submits that leave
is required to take a second deposition under these
circumstances, and that the Court should not permit any
further deposition to proceed because the discovery would be
cumulative, duplicative, available via other less burdensome
means of discovery, and should have been pursued in the prior
deposition. ECF No. 102 at 11-13. Defendant also avers that
the deposition notice topics are overbroad, vague, and fail
to identify relevant information. Id. at 14-15.
party must obtain leave of court, and the court must grant
leave to the extent consistent with Rule 26(b)(2): (A) if the
parties have not stipulated to the deposition and ... the
deponent has already been deposed in the case.”
Fed.R.Civ.P. 30(b)(2). It is undisputed that Plaintiffs have
already deposed Defendant's corporate representative
once. In reviewing Plaintiffs' representations in seeking
extended time for that deposition, it also appears that
Plaintiffs intended to complete all discovery from
Defendant's 30(b)(6) witness in one sitting.
See, ECF No. 78 at 5 (arguing extended deposition
time would “promote efficiency and conserve party
resources so that the deposition may be completed on March
4-5, 2019 without counsel for the parties undertaking a
second trip to Nashville to complete the deposition at a
later date.”) (emphasis added). Plaintiffs acknowledge
that the first deposition “did elicit some testimony
regarding contracts between I.C.E. and Defendant” but
argue testimony on that topic was limited. ECF No. 102 at 7.
Thus, Plaintiffs concede they had some opportunity to obtain
the information they now seek. See also, ECF No.
102-4 at 7, ¶ 11 (topic for first deposition:
“YOUR budgeting process as it related to the use of
detainee labor”). Under these circumstances, the Court
agrees that leave is required to conduct a second deposition
under Rule 30(a)(2)(A)(ii).
should be granted under Rule 26(b)(2)(C) unless the discovery
sought is unreasonably cumulative or duplicative or can be
obtained from a more convenient, less burdensome or less
expensive source; the party seeking the discovery has had
ample opportunity to obtain the information through
discovery; or the burden or expense of the proposed discovery
outweighs its likely benefit. Fed. R. Civ P. 26(b)(2)(C);
Zamora v. D'Arrigo Brother Co., 2006 U.S. Dist.
LEXIS 83106 *3-*4 (N.D. Cal. 2006). Whether to allow a second
deposition is a discretionary decision. FCC v. Mizuho
Medy Co. Ltd., 07CV189 JAH (NLS), 2009 WL 10672927, at
*3 (S.D. Cal. Sept. 24, 2009) (objections overruled sub
nom. FCC, LLC v. Mizuho Medy Co. Ltd., 07CV00189-MMA
(NLS), 2009 WL 10672944 (S.D. Cal. Dec. 17, 2009)) (citing
Tramm v. Porter Memorial Hosp., 128 F.R.D. 666, 668
(N.D. Ind. 1989)).
seek an order permitting the second deposition of
Defendant's corporate representative regarding budgeting
and financial considerations. Plaintiffs argue that the prior
deposition focused on class discovery and this deposition
would turn towards merits discovery, testing the veracity of
the counter-claims and defenses asserted by Defendant, and is
permissible because discovery was not bifurcated. Defendant
counters that the information sought is beyond the bounds of
Rule 26, irrelevant, cumulative and duplicative, and can be
obtained from other sources. In addition, Defendant argues
the topics as listed in the deposition notice are overbroad.
federal policy generally favors a party's right to
discovery, special considerations apply to discovery during
the pre-certification stage of a putative class action.
Francisco v. Emeritus Corp., CV 17-2871 BRO (SSX),
2017 WL 11036693, at *1-2 (C.D. Cal. Sept. 5, 2017).
Generally, discovery in a putative class action at the
pre-certification stage is limited to such certification
issues as the number of class members, the existence of
common questions, typicality of claims, and the
representative's ability to represent the class. Shaw
v. Experian Info. Sols., Inc., 306 F.R.D. 293, 297 (S.D.
Cal. 2015); Gusman v. Comcast Corp., 298 F.R.D. 592,
595 (S.D. Cal. 2014). “Although discovery on the merits
is usually deferred until it is certain that the case will
proceed as a class action, the merits/certification
distinction is not always clear, ” because the facts
that are relevant to the class determination frequently
overlap with the facts that are relevant to the merits of the
case. Gusman, 298 F.R.D. at 595 (citing Wal-Mart
Stores Inc. v. Dukes, 564 U.S. 338, 351 (2011)
(explaining that often the “rigorous analysis”
under Rule 23(a) “will entail some overlap with the
merits of the plaintiff's underlying claim. That cannot
the discovery sought is relevant to “a claim or
defense, ” specifically the counterclaims and
affirmative defenses alleged. However, the scope of these
claims may change depending upon the outcome of the class
certification motion. Defendant is also correct that, to some
extent, a deposition is cumulative and/or duplicative of the
contracts produced and budgeting questions already asked. ECF
No. 102 at 12. In addition, the topics listed in the notice
do not have date limitations or a tailored, limited scope.
Defendants also represent that responses to pending written
discovery will address some of the listed topics.
these circumstances, the Court will exercise its discretion
to deny without prejudice a second
deposition at this pre-certification juncture as not
proportional to the needs of the case at this time. Shaw
v. Experian Information Solutions, Inc., 306 F.R.D. 293,
297 (S.D. Cal. 2015) (“District courts have broad
discretion to control the class certification process, and
‘[w]hether or not discovery will be permitted ... lies
within the sound discretion of the trial court.'”)
(quoting Vinole v. Countrywide Home Loans, Inc., 571
F.3d 935, 942 (9th Cir. 2009)). The Court does not foreclose
the possibility of a second deposition in the future, which
may be appropriate if the first deposition was primarily
focused on class discovery and to ask follow-up questions
that are not available via written discovery. See FCC v.
Mizuho Medy, 2009 WL 10672927, at *3 (“Allowing
only written discovery of these subjects would deprive [the
party of] the opportunity to ask reasonable follow-up
questions.”). However, the scope of any second
deposition is likely to be affected by the decision on class
certification; for instance, only the contracts and financial
information for the facilities where named plaintiffs stayed
would fall within Rule 26. In ...