EpicentRx, Inc. v. Carter

• Court: District Court, S.D. California
• Decided: January 6, 2022
• Docket: 3:20-cv-01058
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 EPICENTRX, INC., Case No.: 20cv1058-JO (MSB)

12 Plaintiff, ORDER DENYING WITHOUT 13 v. PREJUDICE EPICENTRX’S MOTION FOR LEAVE TO TAKE 14 COREY A. CARTER, M.D., AN ADDITIONAL TWENTY 15 Defendant. DEPOSITIONS

16 [ECF No. 133] 17

18 Currently before this Court is Plaintiff’s “Motion for Leave to Take an Additional 19 Twenty Depositions Under Fed. R. Civ. Proc. 30(a)(2)(A)(i), Pursuant to December 1, 20 2021 Court Order.” ECF No. 133. The December 1, 2021 Court Order is this Court’s Order 21 setting the briefing schedule for multiple discovery disputes. ECF No. 128. Defendant filed 22 a Response in Opposition. ECF No. 135. For the below reasons, the Motion is DENIED 23 without prejudice. 24 Under the Federal Rules of Civil Procedure, “[a] party must obtain leave of court, 25 and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2) . . . . if 26 the parties have not stipulated to the deposition and . . . . the deposition would result in 27 more than 10 depositions being taken[.]” Fed. R. Civ. P. 30(a)(2)(A)(i). Under Rule 28 16(b)(1), discovery is limited to “any nonprivileged matter that is relevant to any party’s 1 claim or defense and proportional to the needs of the case, considering the importance of 2 the issues at stake in the action, the amount in controversy, the parties’ relative access to 3 relevant information, the parties’ resources, the importance of the discovery in resolving 4 the issues, and whether the burden or expense of the proposed discovery outweighs its 5 likely benefit.” Additionally, Rule 26(b)(2) requires the court to limit discovery when: 6 (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, 7 or less expensive; (ii) the party seeking discovery has had ample opportunity 8 to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering 9 the needs of the case, the amount in controversy, the parties’ resources, the 10 importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. 11

12 Fed. R. Civ. P. 26(b)(2)(C). 13 “A party seeking to exceed the presumptive limit [of ten depositions] bears the 14 burden of making a ‘particularized showing’ of the need for additional depositions.” Acosta 15 v. Sw. Fuel Mgmt., Inc., No. 2:16-CV-4547-FMO (AGRx), 2017 WL 8941165, at *7 (C.D. 16 Cal. Sept. 19, 2017) (citing Thykkuttathil v. Keese, 294 F.R.D. 597, 600 (W.D. Wash. 17 2013)). To make a particularized showing, the party must ordinarily exhaust their allowed 18 number of depositions before making a request for additional depositions. See Acosta, 19 2017 WL 8941165, at *7. Multiple district courts have concluded that a request for leave 20 to take more than ten depositions is premature before a party has exhausted the ten 21 permitted under Rule 30(a)(2). See Agne v. Rain City Pizza LLC, Case No. C10-1139- 22 JCC, 2012 WL 12882906, at *1 (W.D. Wash. Nov. 13, 2012). “If the motion is made before 23 ten depositions are completed, the moving party must show, among other things, that there 24 are multiple parties and that the complexity of the case warrants more than ten 25 depositions.” Mintz v. Mark Bartelstein & Assocs., Inc., No. CV 12-3055 SVW (SSx), 26 2012 WL 12886492, at *1 (C.D. Cal. Sept. 14, 2012). Additionally, before taking a 27 deposition, the party must also “assess whether or not a deposition of that witness is truly 28 necessary . . . . tak[ing] into account the standard ten deposition limit in making the 1 ||assessment. Only after that process is finished will the parties truly appreciate whether 2 || additional discovery .... will be absolutely necessary to justify a motion for leave under 3 || Rule 30(a)(2)(A).” Acosta, 2017 WL 8941165, at *7. To justify more than ten depositions, 4 ||the court will examine the necessity of depositions already taken. Bamdad v. Gavin, No. 5 ||CV 1300296-PSG (DFM), 2016 WL 11520812, at *2 (C.D. Cal. Aug. 26, 2016). 6 In its motion, Plaintiff primarily argues it should be allowed to depose additional 7 || witnesses because in Defendant’s initial disclosures on August 24, 2020, he listed 126 8 || witnesses, and Defendant has since refused to meaningfully narrow the list. ECF No. 133 9 2. Plaintiff contends that Defendant’s “bloated witness list is an abuse of the discovery 10 || process and was not provided in good faith.” Id. at 3. However, the number of witnesses 11 |/identified in Defendant’s initial disclosure is not, by itself, sufficient grounds to find that 12 ||the additional requested depositions comport with Rules 26(b)(1) and (2). See 13 || Thykkuttathil, 294 F.R.D. at 600 (rejecting similar argument). Moreover, at the time 14 || Plaintiff filed the instant motion, it appears as if it had not yet scheduled any of its own 15 || depositions, let alone exhausted the ten depositions to which it is entitled. At this stage, 16 || Plaintiff has not made a particularized showing of the need for additional depositions. 17 || Accordingly, Plaintiff’s Motion [ECF No. 133] is DENIED without prejudice. 18 IT IS SO ORDERED. 19 ||Dated: January 6, 2022 - SAL 20 4 L <—{—— 71 Honorable Michael S. Berg United States Magistrate Judge 22 23 24 25 26 27 28