Lopez v. Smiths Detection, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALBERTO LOPEZ, Case No.: 20-CV-1453-JLS-WVG

12 Plaintiff, ORDER FOLLOWING 13 v. TELEPHONIC DISCOVERY CONFERENCE ON SECOND AND 14 SMITHS DETECTION, INC., et al., THIRD OF THREE DISCOVERY 15 Defendants. DISPUTES 16 17 On September 27, 2021, this Court convened a telephonic discovery conference 18 pursuant to its September 24, 2021 Order. (Doc. No. 33.) Justin Walker appeared for 19 Plaintiff. Carmen Cole and Lilah Sutphen appeared for Defendant. The Court heard 20 argument from the Parties concerning three ongoing discovery disputes: whether (1) 21 Defendant should produce to Plaintiff data indicating total gross margins of profit as 22 memorialized in certain documents referred to as “program packs;” (2) Plaintiff’s counsel 23 may take the deposition of a Person Most Knowledgeable (“PMK”) regarding the entry 24 and removal of certain orders in Defendant’s order entry system; and (3) Plaintiff’s counsel 25 may take the deposition of a PMK regarding Defendant’s process of gathering and 26 producing documents to Plaintiff throughout discovery. The Court addresses the second 27 and third disputes and follows the Court’s September 27, 2021 Order addressing the first 28 dispute. (Doc. No. 36.) 1 Regarding whether Plaintiff’s counsel may take the deposition of a PMK from the 2 Order-To-Invoice (“OTI”) department concerning the entry and removal of certain orders 3 in Defendant’s order entry system, the Court answers affirmatively. Defendant argues 4 Plaintiff took the deposition of three witnesses, whose testimony implicated this issue and, 5 therefore, any further testimony would be duplicative and a waste of party resources. 6 Plaintiff disagrees on the basis that none of those deponents were able to address questions 7 concerning the technical features of the order entry system, the procedures associated with 8 entering and removing orders in the order entry system, and the consequences of entering 9 and removing orders in varying ways1. The Court overrules Defendant’s objections and 10 agrees with Plaintiff. The particular information Plaintiff seeks here is relevant to 11 Plaintiff’s wrongful termination claim, related defenses, and the Parties’ respective 12 positions on whether Defendant’s termination of Plaintiff’s employment was pretextual. In 13 so finding, the Court limits the time Plaintiff’s counsel may take to explore this topic in 14 deposition to two hours. 15 Regarding whether Plaintiff’s counsel may take the deposition of a PMK regarding 16 Defendant’s process of gathering and producing documents to Plaintiff throughout 17 discovery, the Court also answers affirmatively. During the September 27, 2021 discovery 18 conference, defense counsel noted Defendant provided verifications for all written 19 discovery responses and its witness, Sherry Wiseman, was deposed by Plaintiff’s counsel 20 concerning, in part, this very topic. Defendant thus argued any additional deposition on 21

22 1 During the September 27, 2021 discovery conference, Plaintiff’s counsel also noted 23 defense counsel served objections to most categories of deposition topics but entirely failed to object to the two categories at issue here. Notwithstanding Defendant’s failure to object 24 to the two disputed categories of inquiry, the Court finds Defendant has not waived 25 objections because Rule 30(c)(2) of the Federal Rules of Civil Procedure reference objections only in the context of a deposition in progress rather than a written notice of 26 deposition served in advance of the actual deposition. See Rembrant Diagnostics, LP v. 27 Innovacon, Inc., 2018 WL 692259, at *3 (S.D. Cal. Feb. 2, 2018) (“Here, as the Rule does not require objections, the Defendant has not waived its objections to the topics identified 28 1 || this line of inquiry would be duplicative and unnecessary. Plaintiff’s counsel replied Ms. 2 Wiseman was not knowledgeable about foundational matters involving Defendant’s 3 document preservation and production efforts. In doing so, Plaintiff’s counsel emphasized 4 ||his concerns over whether Defendant has engaged in dilatory and/or malicious discovery 5 || practices after (1) Defendant produced a second document production late in discovery and 6 after Plaintiff’s counsel persisted in his efforts to obtain such discovery and (2) 7 || Plaintiff’s former supervisor, Javier Rivera, revealed in deposition the existence of a draft 8 ||email referencing Mr. Rivera’s proposal to place Plaintiff on a performance improvement 9 || plan (“PIP”) rather than recommending to terminate Plaintiff’s employment, a document 10 || which Defendant failed to previously produce in response to written discovery requests. 11 || Plaintiff’s counsel argued clarifying Defendant’s document preservation and production 12 || practices would be directly relevant to a factfinder’s assessment of Defendant’s credibility 13 lack thereof. Again, the Court agrees with Plaintiff within the following limitation: 14 || Plaintiff’s counsel shall have no more than two hours to depose a PMK on this topic. 15 Given the above, the Court CONTINUES the fact discovery cut-off to Wednesday, 16 || October 13, 2021, for the limited and exclusive purpose of permitting Plaintiff’s counsel 17 || to take the depositions of the PMKs regarding (1) the entry and removal of certain orders 18 Defendant’s order entry system and (2) Defendant’s process of gathering and producing 19 ||documents to Plaintiff throughout discovery. A two-hour time limit shall be imposed on 20 of the depositions. 21 IT IS SO ORDERED. 22 || Dated: September 29, 2021 Se LA Ss Hon. William V. Gallo 24 United States Magistrate Judge 25 26 27 28