United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S EX PARTE MOTION FOR
ADDITIONAL DEPOSITION TIME [ECF NO. 211]
MITCHELL D. DEMBIN, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Motion for additional deposition
time, filed ex parte on December 3, 2019. (ECF No.
211). Defendants responded in opposition on December 17,
2019. (ECF No. 237). Discovery is set to close in this case
on December 20, 2019. (ECF No. 183).
30, Fed. R. Civ. P., provides for a party to obtain up to ten
depositions without leave of court. Absent stipulation of the
parties, leave of court is required to take more than ten
depositions. Under Rule 30(a)(2), the court must grant leave
for a party to take a deposition beyond ten “to the
extent consistent with Rule 26(b)(1) and (2).”
Federal Rules of Civil Procedure authorize parties to obtain
discovery of “any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case....” Fed.R.Civ.P. 26(b)(1).
“Information within the scope of discovery need not be
admissible in evidence to be discoverable.”
Id. District courts have broad discretion to limit
discovery where 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.” Fed.R.Civ.P. 26(b)(2)(C).
seeking to exceed the presumptive limit of ten depositions
bears the burden of making a “particularized
showing” of the need for additional depositions.
See Jordan v. Wonderful Citrus Packing LLC, No.
1:18-cv-00401-AWI-SAB, 2019 WL 176264 *2 (E. D. Cal. Jan. 11,
2019)(collecting cases including Kaseberg v. Conaco,
LLC, No. 15-cv-1637-JLS-DHB, 2016 WL 8729927 *3 (S. D.
Cal. Aug. 19, 2016) from this District).
Rule 26(b)(2)(C), courts have found it proper to deny
additional depositions where they would be cumulative,
without proper purpose, e.g., there is no evidence they would
reveal anything other than what a party had already obtained,
the party had ample opportunity to obtain the information by
discovery in the action, or they would create an unreasonable
burden or expense. Kaseberg, 2016 WL 8729927 *3.
Parties should ordinarily exhaust their allowed number of
depositions before making a request for additional
opened on April 4, 2018, with the conclusion of the
parties' conference under Rule 26(f). (ECF No. 68).
Discovery continued for over nine months until the case was
stayed on February 6, 2019. (ECF No. 156). The stay was
lifted on August 6, 2019. (ECF No. 178). Following the
lifting of the stay, discovery was authorized for an
additional four months, until December 20, 2019. (ECF No.
NuVasive seeks permission to obtain up to five additional
depositions, beyond the ten allowed under Rule 30. (ECF No.
211 at 5).Plaintiff reports that as of the date of
the motion, December 11, 2019, it had taken but four of the
ten authorized depositions and had noticed five more, for a
total of nine depositions. (Id. at 10). Plaintiff
expressed its intention to obtain an additional deposition of
Defendants under Rule 30(b)(6), for its tenth deposition.
(Id. at 10-11). Plaintiff identifies seven
additional persons that it is “considering”
deposing many of whom are third-parties. (Id. at
11-12). Obtaining discovery from third-parties poses an
additional obstacle in that the party seeking the discovery
must “take reasonable steps to avoid imposing undue
burden or expense on a person subject to the subpoena.”
Rule 45(d)(1), Fed.R.Civ.P. For its eighth “person,
” Plaintiff identifies “additional current or
former surgeons who have the Accused Products….”
(ECF No. 211 at 12).
Court has reviewed the list of prospective deponents and the
reasons Plaintiff seeks their testimony. Plaintiff neither
avers that the requested testimony would not be cumulative or
duplicative, nor does Plaintiff address at all the
“particularized need” requirement established
firmly in case law. The Court agrees with Defendant that
Plaintiff has failed to meet its burden to obtain more than
the ten authorized depositions.
Motion for Additional ...