Kress et al v. PriceWaterhouse Coopers, LLP
Filing
244
ORDER signed by Magistrate Judge Gregory G. Hollows on 11/1/2011 GRANTING #237 Motion to Compel further deposition testimony. Plaintiffs Kenny and Kress shall appear for further deposition on 11/8/2011 and 11/10/2011 respectively, for 5 more hours of deposition per deponent. Deposition questions shall be limited to the position of Senior Associate. (Michel, G)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SAMUEL BRANDON KRESS, et al.,
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Plaintiffs,
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No. CIV S-08-0965 LKK GGH
vs.
PRICE WATERHOUSE COOPERS,
ORDER
Defendant.
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Previously pending on this court’s law and motion calendar for October 27, 2011,
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was defendant’s motion to compel further deposition testimony, filed September 29, 2011.
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Edward Wynne appeared for plaintiffs. Norman Hile represented defendant. After hearing oral
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argument and reviewing the joint statement, the court now issues the following order.
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BACKGROUND
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This case involves a proposed class action concerning overtime compensation and
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other wages. The proposed class which is the subject of this motion is PwC Senior Associates in
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the Assurance Line of service in California. The deadline for plaintiffs’ class certification
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motion is November 1, 2011. Pertinent to the instant motion is defendant’s request for an order
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compelling further depositions of named plaintiffs and potential class representatives Kenny and
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Kress. Although these individuals were deposed earlier, defendant claims to need five additional
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hours per deponent to question them about their positions as Senior Associates, and has noticed
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further depositions for November 8 and 10, 2011, respectively.
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Kress and Kenny both worked as Associate and Senior Associate during their
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tenure in PwC’s Assurance line of service in California, beginning in 2002. Kress resigned in
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December, 2006, and Kenny resigned in March, 2007.
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DISCUSSION
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Defendant argues that the central issue in this case is the activities these
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accountants performed on a weekly basis while employed at PwC, and whether their activities
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qualify them for exemption from relevant overtime laws as defendant asserts.1 At the time of the
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first depositions of Kress and Kenny, on June 23 and 29, 2009, defendant believed these
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individuals would serve as representatives of a proposed class of Associates in PwC’s Assurance
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line of service. At that time, plaintiffs’ motion to certify the Associate class was one month
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away, so that defendant focused almost all of the seven hours on Kress and Kenny’s activities
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while working in the position of Associate, not Senior Associate. At the end of the deposition,
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defendant reserved the right to further depose these individuals. In fact, according to defendant,
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plaintiffs relied extensively on this deposition testimony in their motion to certify the nationwide
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Associate class. Defendant states that ultimately, however, these individuals did not seek to
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represent the class of Associates, which defendant discovered after the depositions, but that they
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instead have been named in the complaint as Senior Associates. Therefore, defendant argues it
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needs to depose these individuals about their work in this capacity in order to oppose the
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upcoming motion for class certification of Senior Associates, and therefore it has shown good
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cause.
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Defendant refers to state and federal exemptions for professional and/or administrative
positions which it asserts requires a very fact specific inquiry into the nature of the work, under
Campbell v. Pricewaterhouse Coopers LLP, 642 F.3d 820, 833 (9th Cir. 2011).
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In order to take a deposition of a deponent who has already been deposed, leave of
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court is required, and “the court must grant leave to the extent consistent with Rule 26(b)(2).”
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Fed. R. Civ. P. 30(a)(2)(A)(ii). Repeat depositions are not favored, except in certain
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circumstances, some of which include a long passage of time with new evidence, or where an
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amended complaint has added new theories. Graebner v. James River Corporation, 130 F.R.D.
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440, 441 (N.D. Cal. 1990). “Good cause” for an order exists where new claims or defenses have
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been added, Collins v. Int’l Dairy Queen, 189 F.R.D. 496, 498 (M.D. Ga. 1999); new parties
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have been added, Christy v. Pennsylvania Turnpike Comm’n, 160 F.R.D. 51, 52-53 (E.D. Pa.
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1995); and new documents have been produced, Miller v. Federal Express Corp., 186 F.R.D.
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376, 389 (W.D. TN 1999), Harris v. New Jersey, 259 F.R.D. 89, 94-95 (D. N.J. 2007). W.W.
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Schwarzer, A.W. Tashima & J. Wagstaffe, Federal Civil Procedure Before Trial § 11:1374.
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“Courts may limit the scope of the second deposition to matters not covered in the first
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deposition.” Id.
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Although these cases outline reasons for granting additional deposition time
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which do not apply here, defendant’s cited case of Fleming v. Coverstone, 2009 WL 4040066
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(S.D. Cal. 2009), is most similar. There, the court permitted extra hours to complete a deposition
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where several important issues related to the allegations remained to be addressed. Defendant
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has shown good cause for further depositions for the same reasons.
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The consolidated class action complaint filed on September 18, 2008 includes
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Kress and Kenny as named plaintiffs. (Dkt. no. 29.) This complaint refers to all plaintiffs as a
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class of “Uncertified Associates” throughout, (Compl. ¶¶ 2, 3, dkt. no. 29), but does refer to
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groupings of Associates and Senior Associates, although not designating any particular plaintiff
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to a particular group. (Id. at ¶ 1.) The complaint specifies that it is brought on behalf of two
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groups of former PwC employees: “Uncertified Associates” and “Uncertified Associates of
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Defendant, excluding non-senior associates...” (Id. at ¶¶ 4-5.) In regard to Kress and Kenny
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specifically, the complaint sets forth that they were employed as Associates and Senior
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Associates “during the statutory period covered by this Complaint.” (Id. at ¶¶ 37, 41.) (emphasis
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added).
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Plaintiffs argued (perhaps belatedly) that Kress and Kenny have always been
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outside the statute of limitations period in regard to their positions as Associates and therefore
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could not be representatives in the Associate group, as defendant purportedly well knew.
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However, at the time of the initial depositions, they were not yet disqualified as representatives
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for the Associate class for this reason. Defendant adds that at the time these depositions were
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taken, on June 23 and 29, 2009, plaintiff had filed a motion for class certification of Associates,
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and Kress and Kenny were listed as class representatives. See Motion for Conditional
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Certification, filed April 20, 2009, (dkt. no. 52) (listing Kress and Kenny as plaintiffs and
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Associates), withdrawal of same motion, filed April 23, 2009 (dkt. no. 54), and re-filing of
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conditional certification motion, filed July 20, 2009, (dkt. no. 57), which again names Kress and
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Kenny as plaintiffs of the Associate class. As of March 23, 2011, it was still not clear whether
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Kress and Kenny would be plaintiffs in the Associate Class or the Senior Associate Class. See
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Second Amended Consolidated Class/Collection Action Complaint. (Dkt. no. 214) (listing Kress
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and Kenny as “individuals employed as Associates and/or Senior Associates”). Therefore, it was
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not clear at the time of the first depositions of Kress and Kenny that they would not represent the
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class as Associates. Plaintiffs argued at hearing that defendant knew for a full year that it was
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not possible these plaintiffs would be class representatives for the Associate Class based on the
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statute of limitations problem, but defendant apparently was not sure of this information at the
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time the depositions were taken over two years ago and before the tolling arrangement was
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worked out.
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In addition to the previously mentioned focus of the depositions on Kress and
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Kenny’s work as Associates, defendant adds that during their initial depositions, these former
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employees attempted to disavow the plain language of documents presented to them, some of
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which they created, requiring prolonged inquiry, which is one of the reasons defendant needs
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further depositions. See Wynne Decl., Exs. 1, 2. This stance undermines plaintiffs’ argument
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that defendant, as plaintiffs’ past employer, had access to all the information it needed regarding
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plaintiffs’ jobs as Senior Associates prior to the depositions, and that defendant was just not
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prepared for these initial depositions.
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The deponents’ apparent disavowal of some documents is also a reason why
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plaintiffs’ suggestion to obtain the needed information in a more convenient, less burdensome
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and less expensive way, such as by written discovery, will not work. Such discovery will be
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responded to by attorneys who aid the plaintiffs in framing answers which does not promote the
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truth seeking endeavor as well as depositions.
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Contrary to plaintiffs’ argument that defendant in fact did examine these
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deponents on the subjects it now claims were not covered, the transcript citations indicate that the
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deponents were questioned only briefly regarding their positions as Senior Associates. Plaintiff
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refers to excerpts of the transcripts of both depositions which cover about twelve to thirteen
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pages of questions about both Kress and Kenny’s positions as Senior Associates, out of more
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than 291 and 332 pages of transcripts for both depositions. (Wynne Decl., Exs. 1, 2.)
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Plaintiffs additionally argue that defense counsel has not examined a single
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plaintiff on a “week by week” basis as they seek to do now, and in any event such examination is
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unnecessary because the job at issue is “uniform, routine and repetitive.” Plaintiffs assert that the
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main issue in the case, whether these jobs were subject to exemption where discretion and
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independent judgment were used, has already been inquired into at length by defendant at the
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first depositions. Furthermore, plaintiff Kress was a Senior Associate for only 15 months, and
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Kenny was a Senior Associate for only 18 months, and not the long periods of time defendant
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suggests. Plaintiffs contend that the number of assignments they had was far fewer than
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suggested by defendant.
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At hearing, defendant indicated that it had not taken any depositions of any other
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Senior Associates, further warranting these depositions. Additionally, when questioned whether
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Kress and Kenny would be listed as class representatives in their upcoming motion for class
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certification, to be filed five days after this hearing, plaintiffs’ counsel could not answer, but
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responded only that a few firms were working on the motion and this particular aspect of it was
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not his bailiwick. Therefore, defendant cannot be faulted for requesting further depositions after
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the date that the class certification motion is due to be filed. Plaintiffs’ counsel was also asked to
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identify the significant hardship suffered if Kress and Kenny are subjected to five more hours of
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depositions, but he could only state that they would have to take time off work again and would
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or might lose compensation.
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CONCLUSION
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Accordingly, IT IS ORDERED that:
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1. Defendant’s motion to compel further deposition testimony, filed September
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29, 2011, (dkt. #237), is granted.
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2. Plaintiffs Kenny and Kress shall appear for further deposition on November 8
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and 10, 2011 respectively, for five more hours of deposition per deponent. Deposition questions
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shall be limited to the position of Senior Associate.
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DATED: November 1, 2011
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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076/Kress0965.dsy4.wpd
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