Rounds v. The Board of Trustees of the California State University

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 CARLA ROUNDS, Case No. 1:20-cv-00170-AWI-SAB

12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO CONDUCT ADDITIONAL 13 v. DEPOSITIONS AND VACATING FEBRUARY 8, 2023 HEARING 14 BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, (ECF Nos. 38, 40, 42) 15 Defendant. 16 17 I. 18 INTRODUCTION 19 Currently before the Court is Plaintiff’s motion for leave to allow the taking of more than 20 ten (10) depositions, filed on December 20, 2022. (ECF No. 38.) The motion is currently set for 21 hearing on February 8, 2022. (ECF No. 40.) On December 26, 2022, the parties filed a joint 22 statement regarding the motion. (Joint Statement Re: Discovery Disagreement (“JS”), ECF No. 23 42.) In consideration of the parties’ joint statement and the Court’s record, the Court finds this 24 matter suitable for decision without oral argument and the February 8, 2023 hearing shall be 25 vacated. See L.R. 230(g). For the reasons explained below, the Plaintiff’s motion shall be 26 denied. 27 / / / / / / 1 II. 2 LEGAL STANDARD 3 Pursuant to Federal Rule of Civil Procedure 30, absent a stipulation, a party must obtain 4 leave of the court to conduct more than ten depositions. Fed. R. Civ. P. 30(a)(2)(A)(i). “[T]he 5 court must grant leave to the extent consistent with Rule 26(b)(1) and (2).” (Id.) 6 Pursuant to Rule 26, a party “may obtain discovery regarding any nonprivileged matter 7 that is relevant to any party’s claim or defense and proportional to the needs of the case, 8 considering the importance of the issues at stake in the action, the amount in controversy, the 9 parties’ relative access to relevant information, the parties’ resources, the importance of the 10 discovery in resolving the issues, and whether the burden or expense of the proposed discovery 11 outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Rule 26(b)(2)(C) provides:

12 On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: 13 (i) the discovery sought is unreasonably cumulative or duplicative, or can be 14 obtained from some other source that is more convenient, less burdensome, or less expensive; 15 (ii) the party seeking discovery has had ample opportunity to obtain the 16 information by discovery in the action; or

17 (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1). 18 Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). 19 The presumptive limit of ten depositions per side is intended to “promote cost-effective 20 discovery and promote the federal rules’ policy of minimizing ‘unreasonably cumulative or 21 duplicative’ discovery.” Thykkuttathil v. Keese, 294 F.R.D. 597, 599 (W.D. Wash. 2013) 22 (quoting Fed. R. Civ. P. 26(b)(2)(C); Fed. R. Civ. P. 30 Advisory Committee’s Note (1993)). “A 23 party seeking to exceed the presumptive limit bears the burden of making a ‘particularized 24 showing’ of the need for additional depositions.” Thykkuttathil, 294 F.R.D. at 600 (citation 25 omitted); Kaseberg v. Conaco, LLC, No. 15CV01637JLSDHB, 2016 WL 8729927, at *3 (S.D. 26 Cal. Aug. 19, 2016) (citations omitted); Nat. Res. Def. Council, Inc. v. Winter, No. 27 CV057513FMCFMOX, 2008 WL 11338647, at *2 (C.D. Cal. July 11, 2008); but see Pitkin v. 1 (“the Federal Rules of Civil Procedure do not require a moving party to make a particularized 2 showing of necessity when seeking leave to take additional depositions.”).1 3 Further, courts generally require a party to exhaust their allowed number of depositions 4 before moving to conduct additional depositions. Kaseberg, 2016 WL 8729927, at *3 (citing 5 Thykkuttathil, 294 F.R.D. at 600); Aerojet Rocketydyne, Inc. v. Glob. Aerospace, Inc., No. 2:17- 6 CV-01515-KJM-AC, 2018 WL 5993585, at *1 (E.D. Cal. Nov. 6, 2018) (citing Couch v. Wan, 7 No. 1:08cv1621-LJO-DLB, 2011 WL 4499976, at *1 (E.D. Cal. Sept. 27, 2011)); Nat. Res. Def. 8 Council, Inc., 2008 WL 11338647, at *2; but see Aerojet Rocketydyne, 2018 WL 5993585, at *2 9 (“In a recent order in another case, District Judge Kimberly J. Muller explained that different 10 courts take different approaches to the rule that available depositions be exhausted before a party 11 seeks additional depositions: some do not apply or adopt the exhaustion rule at all, while others 12 deviate from it only where there is good cause, warranted by the complexity of the case.” (citing 13 City of Lincoln v. United States, No. 2:16-CV-01164-KJM-AC, 2018 WL 3917711, at *7 (E.D. 14 Cal. Aug. 16, 2018))). 15 Courts find that “allowing additional depositions without analyzing the need for the first 16 10 depositions would reward a party for taking superfluous depositions early in the course of 17 discovery.” Galajian v. Beard, No. C15-0955JLR, 2016 WL 5373116, at *2 n.3 (W.D. Wash. 18 Sept. 26, 2016). Courts also require the moving party to exhaust less expensive and burdensome 19 means of conducting discovery before resorting to a request for relief. Nat. Res. Def. Council, 20 Inc., 2008 WL 11338647, at *2. “Pursuant to Rule 26(b)(2)(C), courts have found it proper to 21 deny additional depositions where they would be cumulative, without proper purpose, e.g., there 22 is no evidence they would reveal anything other than what a party had already obtained, the party 23 had ample opportunity to obtain the information by discovery in the action, or they would create 24

25 1 This Court has previously considered the argument that a particularized showing of necessity is not required, and found in agreement with the majority of courts in this Circuit that such showing is necessary. See Jordan v. Wonderful Citrus Packing LLC, No. 118CV00401AWISAB, 2019 WL 176264, at *2 n.1 (E.D. Cal. Jan. 11, 2019) 26 (“The majority of courts in this circuit require the moving party to make a particularized showing of necessity in moving for additional depositions . . . The Court agrees with those courts that find that Plaintiff must make a 27 particularized showing of necessity to obtain additional depositions.”); see also NuVasive, Inc. v. Alphatec Holdings, Inc., No. 18-CV-0347-CAB-MDD, 2019 WL 6894074, at *1 (S.D. Cal. Dec. 18, 2019) (citing Jordan, 1 an unreasonable burden or expense.” Kaseberg, LLC, 2016 WL 8729927, at *3. On the other 2 hand, courts find “there is no reason to conclude that if the need for additional depositions is 3 clear from the outset the court must engage in arbitrary delay before entertaining a motion for 4 depositions in excess of the presumptive 10.” Aerojet, 2018 WL 5993585, at *2. 5 III. 6 DISCUSSION 7 The Court shall first summarize the parties’ respective positions as laid out in the parties’ 8 Joint Statement. 9 A. Plaintiff’s Position 10 “Plaintiff’s counsel believes that numerous depositions are required in this case, in part, 11 because the facts of the case entail multiple years, and because there have been numerous 12 perpetrators and witnesses of the facts in this case.” (JS at 2-3.) Plaintiff contends that the 13 presence of ten claims “also necessitates more depositions.” (Id. at 3.) Counsel proffers that in 14 “order to properly and diligently represent his client, Plaintiff’s counsel needs to depose all of the 15 witnesses listed in the Motion . . . [and] [t]he witnesses and rationale for deposing each witness 16 are listed in the Motion.” (JS at 3.)2 However, Plaintiff argues that “Defendant[’s] attorney has 17 attempted to limit Plaintiff’s depositions to seven (even though Defendant represents over ten 18 potential deposition witnesses), and informed Plaintiff that it will not allow any more depositions 19 until such time that Defendant attorney decides that more are necessary.” (Id.) Plaintiff proffers: 20 “Defendant[’s] attorney has also stated that some of the potential deposition witnesses do not 21 have material information, or might be cumulative [but] [o]f course, it is not for Defendant[’s] 22 counsel to decide who Plaintiff’s counsel deposes, when, in what order, and what information 23 that a witness may have that would necessitate a deposition.” (Id.) Plaintiff suggests her 24 “counsel also has the right to depose a witness to discover that the witness does not have 25 information related to the case.” (Id.) 26 Plaintiff highlights that Defendant has “conducted two long investigations of Plaintiff, 27 2 As discussed below, the Local Rule requires the Joint Statement to contain all arguments without reference to 1 and by doing so have taken statements from dozens of witnesses,” and argues Defendant’s 2 attempt to limit Plaintiff’s ability to depose these and other witnesses prejudices Plaintiff. (Id.) 3 Plaintiff notes that in contrast, Defendant’s counsel took three days to take the deposition of 4 Plaintiff, as ordered by the Court after Plaintiff’s counsel agreed to allow two full days. Plaintiff 5 argues that now Defendant is attempting to dictate which employees Plaintiff can depose, and 6 Defendant has allowed only seven Defendant employees to be deposed at this time, “excluding 7 numerous other employees who have pertinent information to this case.” (Id.) 8 Plaintiff additionally argues that Defendant’s “counsel has refused to set dates to depose 9 other, non Defendant witnesses, hampering Plaintiff’s ability to set depositions,” and that 10 “Plaintiff’s counsel has the right to set depositions in a preferred order, to depose witnesses, 11 whether Defendant witnesses or third parties – and has been thwarted by Defendant at every 12 step.” (Id. at 4 (emphasis in original).) As for order of depositions, “Plaintiff’s counsel does not 13 want to take the depositions of the seven offered by Defendant first [as] Plaintiff’s counsel wants 14 to take other depositions first.” (Id.) Plaintiff suggests that Defendant has only offered seven 15 depositions, where Defendant controls eleven witnesses; and that Defendant has also refused to 16 cooperate in the deposition testimony of seven non Defendant controlled witnesses and one 17 consultant – flatly refusing to set deposition dates for these witnesses. Plaintiff argues that while 18 Defendant cites to Couch, 2011 WL 4499976, at *1, the case is inapplicable, as Defendant has 19 never agreed to more than seven depositions. (Id.) Here, Plaintiff emphasizes that “[i]n light of 20 the fact that the deadline for depositions is coming up on March 31, 2023, and due to 21 Defendants’ unwillingness to cooperate with Plaintiff’s requests for depositions, it is imperative 22 that the Court order that Defendants cooperate in all depositions requested by Plaintiff.” (JS at 4 23 n.1.) 24 Plaintiff asks that the Court order Defendant to provide ten Defendant controlled 25 witnesses of Plaintiff’s choosing, and to cease obstructing the depositions of other, non- 26 Defendant witnesses. (Id. at 4.) 27 B. Defendant’s Position 1 disputes most of the allegations Plaintiff sets forth in the Joint Statement. (JS at 5. ) Defendant 2 submits that courts will not generally grant requested leave until the moving party has exhausted 3 the ten depositions permitted under Rule 30(a)(2), Couch, 2011 WL 4499976, at *1. Here, 4 Defendant highlights Plaintiff has not taken a single deposition, and therefore has not 5 demonstrated exhaustion, nor a need to exceed the presumed 10-deposition limitation. (JS at 5.) 6 Defendant argues Plaintiff’s failure to take any depositions makes it virtually impossible for the 7 Court to determine whether this case is complex enough to warrant additional depositions or 8 whether the nine additional witnesses will have duplicative, cumulative or important testimony, 9 Del Campo v. Am. Corrective Counseling Servs., 2007 WL 3306496 (N.D. Cal. Nov. 6, 2007) 10 (moving party’s burden to establish complexity of the case clearly warrants more than 10 11 depositions); C&C Jewelry Mfg. Inc. v. West, 2011 WL767839, at *1 (N.D. Cal. 2011) (moving 12 party’s burden to establish particularized showing to exceed 10-deposition limitation); Andamiro 13 U.S.A. v. Konami Amusement of Am., Inc., 2001 WL 535667, at *2 (C.D. Cal. Apr. 26, 2001) 14 (in evaluating whether moving party has established a particularized showing, Court may 15 consider whether discovery sought is cumulative, duplicative, convenient, important, 16 burdensome or available from other sources). (JS at 5-6.) 17 Defendant contends that instead of taking a single deposition to develop a factual basis 18 for her motion, Plaintiff simply alleges all 19 proposed witnesses somehow harmed her. 19 Defendant highlights that Plaintiff offers no sworn testimony and no documentary evidence in 20 support of her theories, despite filing her lawsuit in December 2019, and now, three years later, 21 Plaintiff simply makes conclusory allegations that there is a factual basis to depose individuals 22 she has never even met, such as the president of California State University, Stanislaus, Ellen 23 Junn. Defendant proffers it has identified all witnesses under its control and has provided 24 available dates for their deposition to Plaintiff, but her counsel has refused to proceed. (Ex. A, 25 ECF No. 42 at 11.) 26 Defendant contends that Plaintiff mispresents that Defendant seeks to control which 27 witnesses for her to depose, as Defendant has made it clear that of the 19 witnesses sought, 1 Nathan Ziefuss-Hubbard, Vickie Salisbury, Christina Knott and Julie Johnson. Defendant has 2 also offered to produce for deposition Ilona Turner, Defendant’s investigator. Defendant 3 acknowledges that, as Plaintiff has pointed out, there are several witnesses that are no longer 4 under the control of Defendant and Plaintiff will need to seek subpoenas for their depositions. 5 Defendant notes that of the 19 witnesses sought by Plaintiff, she is welcome to choose her first 6 ten to depose, however, Defendant objects to Plaintiff taking more than 10 depositions because 7 Plaintiff has yet to elaborate the requisite good cause.3 Defendant argues the Court should 8 disregard the allegations Plaintiff has raised regarding witnesses who are not under Defendant’s 9 control because the allegations lack factual support and the exhibits attached to Plaintiff’s motion 10 demonstrates her counsel lacks credibility. 11 Additionally, Defendant contends that aside from failing to establish good cause, 12 Plaintiff’s counsel makes several material misrepresentations of fact in her discovery motion and 13 this joint statement to conceal lack of good cause, specifically highlighting to the Court the 14 following: (1) Defendant in fact objected to Plaintiff taking more than 10 depositions on April 15 22, 2022, contrary to Plaintiff counsel’s false representation that he had not heard from 16 Defendant about any objections when her counsel sent an email on April 28, 2022, (Mot, Ex. 3, 17 ECF No. 38-2 at 8-10); (2) on April 29, 2022, Defendant’s counsel reasonably asked Plaintiff’s 18 counsel to explain the basis for deposing each witness contrary to Plaintiff’s misleading 19 representation that Defendant’s counsel failed to answer whether he “would be amenable to the 20 deposition witness list provided by Plaintiff,” (Mot., Ex. 4, ECF No. 38-2 at 11-14); and (3) 21 Plaintiff’s motion omits the fact that when her counsel unilaterally set dozens of depositions on 22 May 10, 2022, Plaintiff’s counsel still refused to provide a single date for Plaintiff’s deposition 23 3 Further, Defendant highlights the only witnesses under Defendant’s control whom Defendant disagrees with 24 producing are CSU-Stanislaus President Ms. Junn, Guillermo Santucci, and Raphael Espinosa. Defendant proffers that its counsel has explained to Plaintiff’s counsel that CSU-Stanislaus campus president, Ms. Junn, had no 25 involvement with Plaintiff’s employment or claimed whistleblower complaints; Ms. Junn did not ignore a request from Plaintiff’s union to discuss Plaintiff at a CSU Labor Council meeting because Junn does not set the agenda at that meeting and the Labor Council is not the forum to discuss specific personnel matters; and further, Plaintiff has 26 no basis to depose Mr. Santucci or Mr. Espinosa. Defendant notes that while Plaintiff claims they have discoverable information because they told Plaintiff she was a fully exonerated employee, even assuming Mr. Santucci or Mr. 27 Espinosa conveyed that information to Plaintiff, they would have been relying on the CSU investigation report, and Defendant produced that report to Plaintiff and Defendant has offered to make the author of that report (Ilona 1 despite the fact that that Defendant’s counsel had been in communication with Plaintiff’s counsel 2 since January 2022 about securing a date for Plaintiff’s deposition. On May 13, 2022, 3 Defendant’s counsel set Plaintiff’s deposition on one of the dates Plaintiff’s counsel unilaterally 4 set for a defense witness because Plaintiff’s counsel had refused to provide any dates of 5 availability for Plaintiff’s deposition after repeated requests over multiple months, (Mot., Ex. 8, 6 ECF No. 38-2 at 61-68). (JS at 7-8.) 7 Defendant argues that ultimately, Plaintiff’s assertion that she has not taken any 8 depositions to date because of Defendant is patently false, and rather, Plaintiff has not taken any 9 depositions because her counsel has, for whatever reason, declined to depose witnesses who are 10 readily available to be deposed, and in this regard, Defendant’s counsel offered dates for several 11 witnesses in June 2022 and followed up in July 2022, however, Plaintiff’s counsel never 12 responded and instead elected to file this motion. 13 C. The Motion Shall be Denied 14 As discussed above, this Court agrees with the majority of courts that that require a party 15 to make a particularized showing of necessity to obtain additional depositions. Jordan v. 16 Wonderful Citrus, 2019 WL 176264, at *2 n.1; see also NuVasive, 2019 WL 6894074, at *1. 17 Plaintiff argues in “order to properly and diligently represent his client, Plaintiff’s counsel needs 18 to depose all of the witnesses listed in the Motion . . . [and] [t]he witnesses and rationale for 19 deposing each witness are listed in the Motion.” (JS at 3.) First, Local Rule 251 requires the 20 joint statement to include all arguments and briefing in support of the parties’ respective 21 positions, expressly stating: “All arguments and briefing that would otherwise be included in a 22 memorandum of points and authorities supporting or opposing the motion shall be included in 23 this joint statement, and no separate briefing shall be filed.” L.R. 251(c); see also id. (joint 24 statement shall include “[t]he contentions of each party as to each contested issue, including a 25 memorandum of each party's respective arguments concerning the issues in dispute and the legal 26 authorities in support thereof.”). Therefore, Plaintiff’s reference to the motion for arguments that 27 were required to be contained in the Joint Statement is procedurally improper and the Court 1 necessity as to the witnesses. 2 Nonetheless, the Court has reviewed the factual proffers that Plaintiff references in the 3 original filing. (ECF No. 38 at 5-17.) However, based on a review of the Plaintiff’s proffered 4 reasons for the depositions, the Court agrees with Defendant that the factual proffer does not 5 satisfy the requirements for additional depositions, as Plaintiff only offers conclusory factual 6 proffers, with no sworn testimony and no documentary evidence in support, such as that 7 connected to discovery already conducted. The Court finds Plaintiff has failed to provide 8 sufficient information for the Court to determine with any particularity, as to the necessity of 9 more than ten depositions. See Thykkuttathil, 294 F.R.D. at 600 (“These reasons alone are 10 insufficient without further information that would allow the Court to weigh the benefits and 11 burdens of additional depositions . . . [and] [t]he Court is [] unable to assess whether the 12 additional depositions would be unreasonably duplicative or cumulative, taking into account the 13 depositions already taken, or otherwise overly burdensome in light of their potential benefits.”); 14 NuVasive, 2019 WL 6894074, at *2 (“The Court has reviewed the list of prospective deponents 15 and the reasons Plaintiff seeks their testimony. Plaintiff neither avers that the requested 16 testimony would not be cumulative or duplicative, nor does Plaintiff address at all the 17 ‘particularized need’ requirement established firmly in case law.”); Kaseberg, 2016 WL 18 8729927, at *4 (“The Court has no information by which to evaluate whether these depositions 19 would be cumulative, duplicative, burdensome, or relevant.”). 20 Even if the Court were to accept the factual proffers of relevancy from Plaintiff, the Court 21 further finds Plaintiff has not demonstrated the requisite particularized need because Plaintiff has 22 not exhausted ten (10) depositions, and in fact, has not conducted any depositions. This makes it 23 nearly impossible for the Court to make a delineation between some of the requested depositions, 24 as the Kaseberg court did. Kaseberg, 2016 WL 8729927, at *4 (“However, as to the deponents 25 listed above, the Court finds that Plaintiff has demonstrated their testimony is relevant and 26 necessary to the prosecution of his case. The remaining deponents are defendants in this case 27 and/or individuals who Plaintiff has determined through discovery to have information relevant 1 Again, the Court acknowledges that not all courts apply, and other courts recognize an 2 exception to the general exhaustion rule. However here, the fact no depositions have been 3 conducted compounds the lack of a particularized showing of necessity beyond ten (10) 4 depositions, and forecloses the Court’s ability to meaningfully analyze the Plaintiff’s generalized 5 and procedurally improper proffer in the initial moving papers. See Aerojet Rocketydyne, 2018 6 WL 5993585, at *2 (“[S]ome do not apply or adopt the exhaustion rule at all, while others 7 deviate from it only where there is good cause, warranted by the complexity of the case.”); 8 Galajian, 2016 WL 5373116, at *2 n.3 (noting “allowing additional depositions without 9 analyzing the need for the first 10 depositions would reward a party for taking superfluous 10 depositions early in the course of discovery.”); Nat. Res. Def. Council, 2008 WL 11338647, at 11 *2 (“[T]he moving party must exhaust less expensive and burdensome means of discovery 12 before resorting to a request for relief.”); Kaseberg, LLC, 2016 WL 8729927, at *3 (“Pursuant to 13 Rule 26(b)(2)(C), courts have found it proper to deny additional depositions where they would 14 be cumulative, without proper purpose, e.g., there is no evidence they would reveal anything 15 other than what a party had already obtained, the party had ample opportunity to obtain the 16 information by discovery in the action, or they would create an unreasonable burden or 17 expense.”). Plaintiff has not demonstrated the need for additional depositions is so clear that she 18 should not have to exhaust any depositions before demanding more than ten. C.f. Aerojet, 2018 19 WL 5993585, at *2 (“[T]here is no reason to conclude that if the need for additional depositions 20 is clear from the outset the court must engage in arbitrary delay before entertaining a motion for 21 depositions in excess of the presumptive 10.”). 22 Finally, the Court also agrees with the Defendant that Plaintiff’s own exhibits attached to 23 her motion demonstrate that Plaintiff has misstated or misrepresented the specific facts 24 surrounding the course of meeting and conferring, and the manner of Defendant’s objections or 25 alleged refusal to work with Plaintiff in scheduling depositions or agreeing to produce those 26 under Defendant’s control. (See JS at 7-8.) 27 / / / 1 IV. 2 ORDER 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The hearing on Plaintiff's motion to conduct more than ten (10) depositions, (ECF 5 No. 38), currently set for February 8, 2023, (ECF No. 40), is VACATED; and 6 2. Plaintiff’s motion to conduct more than ten (10) depositions, (ECF No. 38), is 7 DENIED. 8 9 IT IS SO ORDERED. DAA (e_ 10 | Dated: _ December 28, 2022 □

UNITED STATES MAGISTRATE JUDGE

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