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Vasquez v. Leprino Foods Co.

United States District Court, E.D. California

September 25, 2019

ISAIAS VASQUEZ and LINDA HEFKE on behalf of all other similarly situated individuals, Plaintiffs,
LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1-50, inclusive, Defendants.



         Currently before the Court is the motion for leave to take additional depositions filed by Plaintiffs Isaias Vasquez and Linda Hefke (“Plaintiffs”) on September 9, 2019. (Doc. No. 123.) The motion presents two issues: (1) whether Plaintiffs should be granted leave to exceed the ten-deposition limit of Federal Rule of Civil Procedure 30 in order to depose the putative class members who submitted declarations in support of Defendants’ Opposition to Plaintiffs’ Motion for Class Certification; and (2) whether Defendants Leprino Foods Company and Leprino Foods Dairy Productions Company should be compelled to produce certain personnel data for these individuals prior to their depositions. The parties submitted a Joint Statement Re Discovery Disagreement on September 20, 2019. (Doc. No. 132.)

         The Court found the matter suitable for decision without the need for oral argument and vacated the hearing set for September 27, 2019. The matter is deemed submitted. Local Rule 230(g).

         Having considered the Joint Statement Re Discovery Disagreement, the parties’ arguments and the record on file, Plaintiffs’ motion for leave to take additional depositions shall be granted in part and denied in part.


         Plaintiffs filed a wage-and-hour class action against Leprino Foods Company and Leprino Foods Dairy Products Company. The action stems from Defendants’ alleged custom and policy to “de crew, ” i.e., sending workers home prior to the start of their scheduled shift without pay because Defendants reportedly misjudged its production or labor needs and from Defendants’ alleged policy of requiring Plaintiffs and workers to remain on call and subject to return to discuss business matters and/or return to their work stations during their rest and meal breaks if called upon to do so by supervisory personnel. (Doc. No. 61, Third Amended Complaint at ¶¶ 5, 7.)

         On June 6, 2019, Plaintiffs filed their motion for class certification. (Doc. No. 116.) Defendants opposed the motion on August 30, 2019. (Doc. No. 120.) Plaintiffs’ reply deadline is November 19, 2019, and a hearing is scheduled for December 9, 2019, before Senior District Judge Anthony W. Ishii. In anticipation of filing their reply, Plaintiffs now seek leave to exceed Rule 30’s ten-deposition limit to depose the putative class members who submitted declarations in support of Defendants’ opposition to the motion for class certification. (Doc. No. 132 at 3.)

         Prior to filing the motion, the parties engaged in unsuccessful meet-and-confer efforts. Specifically, on August 20, 3019, after Defendants filed their opposition to the motion for class certification, Plaintiffs requested that Defendants stipulate to Plaintiffs taking the depositions of the 56 individuals whose declarations Defendants had submitted with their opposition to Plaintiffs' class certification motion. (Doc. No. 133, Declaration of Lisa Pooley (“Pooley Decl.”) at ¶ 2.)

         On September 4, 2019, Plaintiffs served written discovery on Defendants, which included demands for production of documents and special interrogatories related to the declarants’ personnel records. (Doc. No. 132-1, Ex. C to Declaration of Ryan Crist.) These requests seek the declarants’ personnel files, time records, work schedules, time off request forms, payroll variance forms, pay records, and any records of phone calls Defendants made to their cell phones. Plaintiffs also seek the employee ID number corresponding to each declarant in Defendants’ prior time sheet productions. (Doc. No. 132 at 4.)

         On September 9, 2019, Defendants advised that they would not stipulate to Plaintiffs taking 56 depositions. (Pooley Decl. at ¶ 4.) In response, on September 13, 2019, Plaintiffs proposed 20 depositions. (Id. at ¶ 6.) On September 17, 2019, Defendants rejected the proposal for 20 depositions and advised that they would agree to a total of 15 depositions, including the 8 that Plaintiff had already taken and 7 additional depositions. Defendants’ proposal was conditioned upon the additional depositions being scheduled for mutually agreeable dates and upon Plaintiffs’ agreement not to seek an extension of time to file their reply to the class certification motion. (Id. at ¶ 7.)

         Following additional email exchanges, Plaintiffs stated that they must first know when Defendants would be available for the depositions before agreeing not to seek an extension of the reply deadline. Plaintiffs also indicated that any agreement reached would be contingent on Defendants producing electronically all responsive documents for the 7 deponents at least 1 week before their depositions and without Plaintiffs waiving their right to seek additional depositions from the Court after taking the additional 7 depositions and without waiving their right to compel all responsive documents for all remaining declarants. (Id. at ¶ 10.) Defendants did not agree to the proposal. In particular, Defendants did not agree with the parts: (1) where Plaintiffs did not agree to limit their total depositions to 15, (2) where Plaintiffs insisted that Defendant do more in response to Plaintiffs’ discovery requests than required by the Federal Rules of Civil Procedure; and (3) where Plaintiffs insisted on locking down dates at this juncture, without knowing who Plaintiffs seek to depose. (Id. at ¶ 11.)


         Pursuant to Rule 30 of the Federal Rules of Civil Procedure, absent a stipulation, a party must obtain leave of the court to obtain more than ten depositions. Fed.R.Civ.P. 30(a)(2)(A)(i). “[T]he court must grant leave to the extent consistent with Rule 26(b)(1) and (2).” Id. This presumptive limit of ten depositions per side is intended to “promote cost-effective discovery and promote the federal rules’ policy of minimizing ‘unreasonably cumulative or duplicative’ discovery.” Thykkuttathil v. Keese, 294 F.R.D. 597, 599 (W.D. Wash. 2013) (quoting Fed.R.Civ.P. 26(b)(2)(C); Fed.R.Civ.P. 30 Advisory Committee’s Note (1993)). “A party seeking to exceed the presumptive limit bears the burden of making a ‘particularized showing’ of the need for additional depositions.” Thykkuttathil, 294 F.R.D. at 600; Kaseberg v. Conaco, LLC, No. 15-cv-0163-7JLS (DHB), 2016 WL 8729927, at *3 (S.D. Cal. Aug. 19, 2016); see also Nat. Res. Def. Council, Inc. v. Winter, No. CV 05-7513 FMC (FMOx), 2008 WL 11338647, at *2 (C.D. Cal. July 11, 2008); but see Pitkin v. Corizon Health, Inc., No. 3:16-CV-02235-AA, 2018 WL 1336047, at *2 (D. Or. Mar. 13, 2018) (“the Federal Rules of Civil Procedure do not require a moving party to make a particularized showing of necessity when seeking leave to take additional depositions.”). Generally, courts require a party to exhaust their allowed number of depositions before moving to conduct additional depositions. ...

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