Dysthe v. Basic Research, L.L.C.

273 F.R.D. 625, 2011 U.S. Dist. LEXIS 80374, 2011 WL 1350409
CourtDistrict Court, C.D. California
DecidedApril 8, 2011
DocketNo. CV 09-08013 AG (SSx)
StatusPublished
Cited by12 cases

This text of 273 F.R.D. 625 (Dysthe v. Basic Research, L.L.C.) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dysthe v. Basic Research, L.L.C., 273 F.R.D. 625, 2011 U.S. Dist. LEXIS 80374, 2011 WL 1350409 (C.D. Cal. 2011).

Opinion

MEMORANDUM AND ORDER GRANTING DEFENDANTS’ MOTION TO COMPEL DEPOSITION OF PLAINTIFF ERIC HALL

SUZANNE H. SEGAL, United States Magistrate Judge.

On March 22, 2011, defendants Basic Research, LLC and The Carter-Reed Company, LLC (collectively, “Defendants”) filed a “Notice of Motion and Motion to Compel Deposition of Plaintiff Eric Hall” (the “Motion to Compel” or “MTC”). The parties [627]*627submitted a Joint Stipulation (“Jt. Stip.”) with the Motion to Compel reflecting their respective positions. Defendants also submitted the Declaration of Michael L. Reseh in support of the Motion to Compel (“Resch Deel.”), including four exhibits (“Resch Decl. Exhs. 1-4”). Plaintiffs submitted the Declaration of Karen Liao in opposition to the Motion to Compel (“Liao Decl.”). Because Hall is currently a named plaintiff and is not a putative class member, and because he has information relevant to the class certification issues, the Motion to Compel is GRANTED.

I. Summary Of The Discovery Dispute

On November 2, 2009, named plaintiffs Shalena Dysthe, Eric Hall and Chaunte Weiss filed a class action complaint alleging that various defendants made purportedly false claims concerning the efficacy of Relacore weight-loss products. (Complaint at 2). On February 16, 2010, named plaintiffs Shalena Dysthe, Eric Hall, Kelly Fortin and Gene Cisneros (collectively, “Plaintiffs”) filed a First Amended Complaint (“FAC”). On June 1, 2010, the same four named plaintiffs, including Hall, filed the operative Second Amended Complaint (“SAC”). According to the SAC, Hall purchased a product called “Relaeore Extra” in July 2009 in reliance on representations made on the product’s packaging and used it. (SAC at 9). The SAC further alleges that Hall took Relaeore Extra Tablets and “they were ineffective.” (Id.). Hall alleges that the representations that Relaeore Extra “‘[h]elps prevent stress-related abdominal fat’ ” were false. (Id.).

In February 2011, Defendants requested deposition dates for the named Plaintiffs after the parties met to discuss the schedule for the anticipated motion for class certification. (Resch Deel. at 1-2; Reseh Decl. Exh. 1 at 1; id. Exh. 2 at 1-2). On February 14, 2011, plaintiff Fortin filed a Motion to Certify Class (“Mot. Class Cert.”) seeking to be certified as the class representative. (Mot. Class Cert, at 1). On February 23, 2011, not having received a response from Plaintiffs regarding proposed deposition dates, Defendants noticed Hall’s deposition for March 9, 2011 and requested confirmation that he would appear on that date. (Resch Decl. at 3; Resch Decl. Exh. 2 at 1).

On March 2, 2011, Plaintiffs notified Defendants that Hall was not available on March 9, 2011. In addition, Plaintiffs notified Defendants that Hall intended to dismiss his claims from the Second Amended Complaint with prejudice. (Resch Decl. at 3; Liao Decl. at 2). On March 6, 2011, Defendants informed Plaintiffs that they would stipulate to the dismissal of Hall after his deposition was taken. (Resch Decl. at 3). Plaintiffs discussed the voluntary dismissal of Hall’s claims with Defendants on March 11, 17, and 18, 2011. (Liao Decl. at 2). On March 21, 2011, plaintiffs Hall and Cisneros filed a Motion for an Order of Voluntary Dismissal (“Dismissal Mot.”) seeking an order dismissing their claims with prejudice. (Dismissal Mot. at 1-2). The hearing on that motion is scheduled for April 18, 2011. (Jt. Stip. at 14). In the interim, Defendants seek an order compelling Hall to appear for deposition on April 12, 2011 at 1:00 p.m. (Id.).

Defendants contend that even though Hall is attempting to dismiss his claims, Defendants are entitled to take his deposition because (1) Hall is and has been a named plaintiff since the inception of this litigation in November 2009, (2) his deposition was properly noticed, and (3) his testimony is expected to be relevant to issues pertaining to class certification. (Jt. Stip. at 4-6). Specifically, Defendants argue that whether or not Hall remains a named plaintiff, his experience as a purchaser and consumer of Relacore products “would directly bear on the typicality of the claims of the proposed class representative, i.e., Plaintiff Kelly Fortin.” (Id. at 6). According to Defendants, shielding Hall from deposition “at this late stage of this litigation” will “potentially prejudice Defendants with respect to their ability to marshal evidence in opposition to the pending Motion for Class Certification.” (Id. at 8).

According to Plaintiffs, Hall has determined that he does not wish to subject himself to the “rigor of litigation,” including discovery requests involving personal information, and has “other personal reasons” to seek dismissal of his claims at this time. (Jt. Stip. at 8-9). Plaintiffs contend that “if [628]*628and when Hall’s motion for voluntary dismissal is granted,” Hall’s testimony will not be relevant because the dismissal of his claims with prejudice means that Hall will “not even be a putative class member in this lawsuit.” (Id. at 2). Plaintiffs argue that Defendants have failed to show that Hall’s testimony as a non-putative class member is relevant to the issue of class certification or that the information Hall possesses is otherwise unavailable from the representative parties. (Id. at 9-10). Plaintiffs maintain that since Defendants will not be prejudiced if they are unable to depose Hall, compelling Hall “to submit to a deposition would be unduly burdensome and harassing.” (Id. at 11).

II. Defendants Are Entitled To Take Hall’s Deposition

Pursuant to the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense” and this “[rjelevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). Ninth Circuit law generally favors a broad scope of discovery. “[W]ide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for truth.” Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9th Cir.1995).

At the pre-class certification stage, discovery in a putative class action is generally limited to certification issues: e.g., the number of class members, the existence of common questions, the typicality of claims, and the representative’s ability to represent the class. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 359, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). In keeping with the nature of class action suits, “class members and parties are not treated identically.” In re Cement Antitrust Litigation, 688 F.2d 1297, 1309 (9th Cir.1982). Therefore, many courts hold that discovery from putative or absent class members may be allowed only in special circumstances:

The taking of depositions of absent class members is—as is true of written interrogatories—appropriate [only] in special circumstances.

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Bluebook (online)
273 F.R.D. 625, 2011 U.S. Dist. LEXIS 80374, 2011 WL 1350409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dysthe-v-basic-research-llc-cacd-2011.