Jordan v. Wonderful Citrus Packing LLC, No. 1:2018cv00401 - Document 36 (E.D. Cal. 2019)

Court Description: ORDER granting in part and denying in part 29 Plaintiff's Motion to Allow Additional Depositions. Signed by Magistrate Judge Stanley A. Boone on 1/11/2019. (Hernandez, M)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES K. JORDAN, Plaintiff, 12 13 14 15 Case No. 1:18-cv-00401-AWI-SAB ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO ALLOW ADDITIONAL DEPOSITIONS v. WONDERFUL CITRUS PACKING LLC, (ECF Nos. 29, 31) Defendant. 16 17 I. 18 BACKGROUND 19 James K. Jordan (“Plaintiff”) worked for Wonderful Citrus Packing LLC (“Defendant” or 20 “Wonderful”) in various capacities for twenty-seven years. On November 2, 2017, Plaintiff’s 21 employment was terminated. Plaintiff contends that the company made up allegations that he 22 was involved in criminal activity, changed time cards, and was stealing from the company to 23 cover up the fact that he was discharged because of his age. 24 On March 23, 2018, Plaintiff filed this action against Defendant alleging violation of the 25 Age Discrimination in Employment Act (“ADEA”), Title 29, United States Code, §§ 621-634. 26 (ECF No. 1.) Defendants filed a motion to dismiss that was granted on May 15, 2018; and 27 Plaintiff’s state law infliction of emotional distress claims were dismissed. (ECF Nos. 6, 11.) 28 On May 29, 2018, Defendant filed an answer and a counterclaim alleging state law causes of 1 1 action related to the allegations of theft and fraud. (ECF No. 15.) On September 10, 2018, 2 Plaintiff’s motion to dismiss the counterclaims was denied. (ECF Nos. 18, 26, 30.) 3 On December 11, 2018, Plaintiff filed a motion to allow him to take additional 4 depositions. (ECF No. 29.) The parties filed a joint statement regarding the discovery 5 disagreement on January 2, 2019. (ECF No. 31.) Upon review of the joint statement, the Court 6 ordered the parties to further meet and confer and file a supplemental joint statement. (ECF No. 7 32.) On January 8, 2019, the parties filed a supplemental joint statement asserting that they were 8 unable to resolve the dispute. (ECF No. 34.) 9 The Court heard oral argument on January 9, 2019. Counsel Heather Cohen and Michael 10 Marderosian appeared with Plaintiff and counsel Michael Vasseghi appeared for Defendant. 11 Having considered the joint statement, the declarations and exhibits attached thereto, arguments 12 presented at the January 9, 2019 hearing, as well as the Court’s file, the Court issues the 13 following order. 14 II. 15 LEGAL STANDARD 16 Pursuant to Rule 30 of the Federal Rules of Civil Procedure, absent a stipulation, a party 17 must obtain leave of the court to obtain more than ten depositions. Fed. R. Civ. P. 18 30(a)(2)(A)(i). “[T]he court must grant leave to the extent consistent with Rule 26(b)(1) and 19 (2).” (Id.) 20 Pursuant to Rule 26 a party “may obtain discovery regarding any nonprivileged matter 21 that is relevant to any party’s claim or defense and proportional to the needs of the case, 22 considering the importance of the issues at stake in the action, the amount in controversy, the 23 parties’ relative access to relevant information, the parties’ resources, the importance of the 24 discovery in resolving the issues, and whether the burden or expense of the proposed discovery 25 outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 26 Rule 26(b)(2) provides 27 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: (i) the discovery sought is unreasonably cumulative or duplicative, or can be 28 2 3 obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1). 4 This presumptive limit of ten depositions per side is intended to “promote cost-effective 1 2 5 discovery and promote the federal rules’ policy of minimizing ‘unreasonably cumulative or 6 duplicative’ discovery.” Thykkuttathil v. Keese, 294 F.R.D. 597, 599 (W.D. Wash. 2013) 7 (quoting Fed. R. Civ. P. 26(b)(2)(C); Fed. R. Civ. P. 30 Advisory Committee’s Note (1993)). “A 8 party seeking to exceed the presumptive limit bears the burden of making a ‘particularized 9 showing’ of the need for additional depositions.” Thykkuttathil, 294 F.R.D. at 600; Kaseberg v. 10 Conaco, LLC, No. 15CV01637JLSDHB, 2016 WL 8729927, at *3 (S.D. Cal. Aug. 19, 2016); 11 Nat. Res. Def. Council, Inc. v. Winter, No. CV057513FMCFMOX, 2008 WL 11338647, at *2 12 (C.D. Cal. July 11, 2008); but see Pitkin v. Corizon Health, Inc., No. 3:16-CV-02235-AA, 2018 13 WL 1336047, at *2 (D. Or. Mar. 13, 2018) (“the Federal Rules of Civil Procedure do not require 14 a moving party to make a particularized showing of necessity when seeking leave to take 1 15 additional depositions.” ) Generally, courts require a party to exhaust their allowed number of 16 depositions before moving to conduct additional depositions. Thykkuttathil, 294 F.R.D. at 600; 17 Kaseberg, 2016 WL 8729927, at *3; Aerojet Rocketydyne, Inc. v. Glob. Aerospace, Inc., No. 18 2:17-CV-01515-KJM-AC, 2018 WL 5993585, at *1 (E.D. Cal. Nov. 6, 2018); Nat. Res. Def. 19 Council, Inc., 2008 WL 11338647, at *2. Courts find that “allowing additional depositions without analyzing the need for the first 20 21 22 23 24 25 26 27 28 1 Plaintiff relies on Pitkin for the proposition that a particularized showing of necessity is not required. The majority of courts in this circuit require the moving party to make a particularized showing of necessity in moving for additional depositions. See Olivo v. Fresh Harvest Inc., No. 17-CV-2153-L-WVG, 2018 WL 4927995, at *3 (S.D. Cal. Oct. 10, 2018); Galajian v. Beard, No. C15-0955JLR, 2016 WL 5373116, at *3 (W.D. Wash. Sept. 26, 2016); Osborne v. Billings Clinic, No. CV 14-126-BLG-SPW, 2015 WL 150252, at *2 (D. Mont. Jan. 12, 2015); Dominguez v. Schwarzenegger, No. C 09-2306 CW JL, 2010 WL 3341038, at *8 (N.D. Cal. Aug. 25, 2010); Finazzo v. Hawaiian Airlines, No. 05-00524 JMS-LEK, 2007 WL 1425241, at *3 (D. Haw. May 10, 2007). In considering whether to grant a request for additional depositions, the Court must determine if the information which Plaintiff seeks from the deponent is cumulative, duplicative, or unable to be obtained from another source. Requiring the party to make a particularized showing of necessity allows the Court to determine if there are good reasons for the additional depositions and whether they will serve a proper purpose or are merely duplicative or cumulative of those depositions that have already occurred. Bell v. Fowler, 99 F.3d 262, 271 (8th Cir. 1996). The Court agrees with those courts that find that Plaintiff must make a particularized showing of necessity to obtain additional depositions. 3 1 10 depositions would reward a party for taking superfluous depositions early in the course of 2 discovery.” Galajian v. Beard, No. C15-0955JLR, 2016 WL 5373116, at *2 n.3 (W.D. Wash. 3 Sept. 26, 2016). The moving party is also required to exhaust less expensive and burdensome 4 means of conducting discovery before resorting to a request for relief. Nat. Res. Def. Council, 5 Inc., 2008 WL 11338647, at *2. “Pursuant to Rule 26(b)(2)(C), courts have found it proper to deny additional depositions 6 7 where they would be cumulative, without proper purpose, e.g., there is no evidence they would 8 reveal anything other than what a party had already obtained, the party had ample opportunity to 9 obtain the information by discovery in the action, or they would create an unreasonable burden 10 or expense.” Kaseberg, LLC, 2016 WL 8729927, at *3. 11 III. 12 DISCUSSION In this action, Plaintiff seeks to take eighteen depositions.2 Plaintiff to seeks to depose 13 14 individuals that Defendant’s investigator interviewed and additional individuals who were 15 involved in commencing and conducting the investigation and the decision to terminate Plaintiff 16 who were not interviewed. Defendant contends that Plaintiff’s motion should be denied because 17 he did not properly meet and confer regarding the depositions, did not complete the allowed ten 18 depositions before bringing the instant motion, is seeking duplicative depositions, and seeks to 19 depose the owner of the company who does not have information relevant to the case. Initially, 20 Defendant contended that Plaintiff had refused to identify the first ten deponents so that 21 Defendant can determine whether the additional depositions would be unreasonably cumulative 22 or duplicative. Upon order of the Court, Plaintiff did identify the initial ten deponents, but the 23 parties were still unable to resolve the dispute. 24 A. Ten Depositions Allowed by Rule 30 25 The Court required Plaintiff to provide Defendant with the names of the first ten 26 individuals to be deposed. The Court does note that as Plaintiff filed this motion prior to 27 28 Initially, Plaintiff’s request in the current motion was for twenty-five depositions. Based on the supplemental joint statement and the further meet and confer efforts, Plaintiff is no longer seeking to depose Craig Cooper, Adam Brown, Danny Garcia, Rene Flores, Kevin Adams, Arnold Viduya, and Dan Spaulding. 2 4 1 deposing the individuals the testimony set forth is speculative as to what the witnesses will 2 testify.3 Plaintiff has already deposed the following six individuals. 1. 3 Fed. R. Civ. P. 30(b)(6) witness on 1) the investigation reported in Defendant’s 4 production of documents; 2) the time cards and other records that create the “substantial 5 confirmation that [Plaintiff] has been using company employees for his personal benefit”; 3) the 6 witness interviews that create the same; and 4) the basis for the termination of Plaintiff. (ECF 7 No. 31 at 7.) The Rule 30(b)(6) witness was Tim Stehr, the individual assigned to conduct the 8 investigation into allegations that Plaintiff was using company resources for his own purposes. 2. 9 Victor Loera is identified as informant 1 in various investigative reports. (Id. at 10 7.) Mr. Loera had information that employees, including Plaintiff, were stealing millions of 11 dollars from Defendant. Mr. Loera explained that this was occurring by changing timecards to 12 reflect that work was being done on Defendant’s property instead of Plaintiff’s, changing the 13 status of trees, and Plaintiff’s scheme with Mr. Marroquin to bill Defendant for more people than 14 showed up to work on the property. (Id.) 3. 15 Jim Hatakeda is a farm manager who worked under Plaintiff and was responsible 16 for numerous ranches that are owned by Plaintiff. (Id. at 8.) Mr. Hatakeda initially denied 17 changing timecards, but then admitted that he regularly changed timecards at Plaintiff’s direction 18 so that Defendant would pay the bill rather than Plaintiff. (Id.) Mr. Hatakeda stated that this 19 happened 25 to 30 times. Mr. Hatakeda claimed that Mr. Marroquin’s employees would work at 20 Plaintiff’s property and bill the time to Defendant and that Plaintiff used inappropriate language. 21 (Id.) Mr. Hatakeda claimed that Plaintiff was stealing and embezzling from Defendant. (Id.) 4. 22 Tom Goldman oversaw the investigation of Plaintiff which led to his termination. 23 Mr. Goldman appointed Tim Stehr to interview employees and vendors about Plaintiff. Mr. 24 Goldman co-authored the investigative report that sets forth the evidence that justified Plaintiff’s 25 termination. Mr. Goldman was present during most of the interviews with Defendant’s 26 27 28 3 In this instance, the Court shall exercise its discretion to decide the motion as the majority of the witness testimony set forth does not appear to be in dispute. 5 1 employees.4 (Id.) While Defendant argues that the deposition of Mr. Goldman was duplicative and 2 3 cumulative of the deposition of Mr. Stehr who conducted the investigation, there are other areas 4 of inquiry that would be relevant in this action. For instance, how Mr. Goldman was hired, his 5 previous contact with the corporation, and any relationship with Mr. Resnick could be enquired 6 into during the deposition. The Court does not find that deposition of Mr. Goldman to be 7 cumulative or duplicative. 5. 8 Ignacio Gonzalez is identified as informant 2 in the investigative report. (Id. at 9 8.) Mr. Gonzalez was aware of the fraudulent billing that was going on and believed that his 10 timecards were being changed and reduced to reflect less time on Plaintiff’s farm and to bill 11 Defendant for his time. (Id. at 8-9.) Mr. Gonzalez claimed that all the supervisors who work for 12 Plaintiff change timecards and alter paperwork. (Id. at 9.) Mr. Gonzalez stated that Plaintiff and 13 Mr. Marroquin were working together to shift charges from Plaintiff to Defendant. Mr. 14 Gonzalez claims that Plaintiff threatened him. (Id.) 6. 15 David Krause is the President of Wonderful. (Id. at 9.) He was present for the 16 Rule 30(b)(6) witness deposition regarding Plaintiff’s termination and was deposed individually 17 on the same day. (Id. at 9-10.) Mr. Krause sent Mr. Marroquin a letter quoting parts of a 18 contract between Mr. Marroquin’s company and Defendant stating that Defendant had the right 19 to look through Mr. Marroquin’s records. (Id. at 10.) Plaintiff is not aware that this was done. 20 Mr. Krause directed Danny Garcia to issue emails pertaining to Plaintiff’s termination and 21 unlawfully activity. (Id.) Plaintiff will depose the following individuals to complete the ten depositions allowed by 22 23 Rule 30. 7. 24 Todd Consolacio initially denied changing time cards and then agreed to do so 25 after told to by Plaintiff. (Id. at 9.) These changes were made to equal out the budgets and 26 match the forecast. Mr. Consolacio denied that the timecards were changed to lessen the amount 27 28 Plaintiff also states, ‘Mr. Jordan threatened James Jordan with criminal charges.” (ECF No. 31 at 8.) This appears to be a typographical error and the Court assumes that Plaintiff meant to state that Mr. Goldman threatened Plaintiff with criminal charges. 4 6 1 of time that was billed to Plaintiff but had heard that such changes were occurring. (Id.) 2 8. Gus Marroquin owns and operates Mid-Cal Farm Labor which provides people to 3 work in the citrus fields for Defendant. (Id. at 10.) Mr. Marroquin’s workers prune, plant, and 4 irrigate. Defendant contends that Plaintiff and Mr. Marroquin conspired together to steal from 5 Defendant. (Id.) Defendant alleges that Plaintiff and Mr. Marroquin would arrange for workers 6 to work on Plaintiff’s fields and submit a bill to Defendant stating the work was done for 7 Defendant. This caused Defendant to pay for work that was done on Plaintiff’s fields. (Id.) 8 9. Alice Delgado works in Human Resources and denies knowing anything about 9 wrongdoing and theft. (Id. at 11.) She claims that it was common knowledge that Plaintiff used 10 bad language, she had received complaints about it, and was placed on notice. (Id.) At the 11 January 9, 2019 hearing, Plaintiff clarified that Ms. Delgado stated that she informed Plaintiff 12 about the complaints so he was on notice to correct his behavior. 13 10. Doug Carmen was Plaintiff’s boss. (Id. at 14.) Mr. Carmen can testify to 14 Plaintiff’s work as well as his practices with the company such as changing timecards. Mr. 15 Carmen can testify to providing authority for Plaintiff to purchase certain items for Defendant. 16 (Id.) Defendant believes that Mr. Carmen and Plaintiff were conspiring together to steal from 17 the company. Mr. Carmen believed that someone at Wonderful was trying to get Plaintiff fired, 18 the investigation was handled improperly, and that the questions asked were inappropriate. (Id.) 19 B. Additional Depositions Sought 20 Plaintiff seeks to depose eight additional individuals. To the extent that Plaintiff seeks to 21 depose these individuals because they may testify at trial as they were interviewed by 22 Defendants, this is not a particularized showing as required to grant the additional depositions. 23 Finazzo v. Hawaiian Airlines, No. 05-00524 JMS-LEK, 2007 WL 1425241, at *3 (D. Haw. May 24 10, 2007). 25 Plaintiff seeks to depose Austin Williams, Nick Theis, Emmett Dietz, Jose Lima, and 26 Virginia Zambrano as they all worked directly under the supervision of Plaintiff. Plaintiff states 27 that they can address the issues concerning his termination and the claim that he created a hostile 28 work environment and used unacceptable language. Defendant argues that Jim Hatakeda and 7 1 Ignacio Gonzalez have already been deposed and they both worked directly under Plaintiff. 2 Defendant contends that Mr. Hatakeda and Mr. Gonzalez have already testified that Plaintiff 3 changed timecard and as to Plaintiff’s treatment of them and the racial and derogatory language 4 that created a hostile work environment. Further, Defendant argues that Plaintiff has deposed 5 Mr. Krause on the topic of why Plaintiff was terminated. Therefore, Defendant contends that 6 these depositions are duplicative and unnecessary. 7 1. Nick Theis worked directly under the supervision of Plaintiff and can address 8 issues pertaining to Plaintiff’s termination and the allegations that Plaintiff created a hostile work 9 environment and used hostile language. (ECF No. 34 at 3.) Mr. Theis acknowledged during his 10 interview that he has changed timecards for budgetary reasons and never intentionally moved 11 billing so that one farm was billed less than another. (Id.) Mr. Theis stated that he moved things 12 around to be more equitable and that is how he was taught to maintain the budget. Mr. Theis 13 will testify as to Defendant’s interview tactics and how has heard that Plaintiff was fired for 14 stealing. (Id.) 15 Mr. Theis stated that he had no knowledge of wrongdoing or of changing timecards. 16 While much of the expected testimony by Mr. Theis is similar to previous testimony, Mr. Theis 17 will also testify regarding how he was taught to maintain the budget which included changing 18 timecards for budgetary reasons. There is no similar testimony appearing in the record. 19 Additionally, Mr. Theis is expected to testify that he heard that Plaintiff was fired for stealing. 20 Defendant has not shown that this testimony is duplicative of testimony by the prior deponents. 21 Therefore, the Court finds that Mr. Theis’ testimony is not necessary duplicative or unreasonably 22 cumulative. Plaintiff’s request to depose Mr. Theis is granted. 23 2. Emmett Dietz worked directly under the supervision of Plaintiff and can address 24 issues pertaining to Plaintiff’s termination and the allegations that Plaintiff created a hostile work 25 environment and used hostile language. (Id. at 4.) Mr. Dietz would testify that Defendant 26 threatened his job prior to the interview and he felt so much pressure that he physically passed 27 out. Mr. Dietz admitted to correcting timecards for budgetary reasons. (Id.) Mr. Dietz has been 28 identified as having knowledge of the allegations set forth in Defendant’s counterclaim. He will 8 1 also discuss Defendant’s interview tactics. (Id.) 2 While Mr. Dietz testimony regarding a hostile work environment, Plaintiff’s use of foul 3 language, and that he changed timecards for budgetary reasons is similar to previous deposition 4 testimony, the Court finds that the allegations regarding the pressure that Mr. Dietz felt due to 5 the interview process is sufficiently unique from the other deponents to allow his deposition. 6 Accordingly, Plaintiff’s request to depose Mr. Dietz is granted. 7 3. Jose Lima worked directly under the supervision of Plaintiff and can address 8 issues pertaining to Plaintiff’s termination and the allegations that Plaintiff created a hostile work 9 environment and used hostile language. (Id. at 4.) He oversaw the nursery and there are 10 allegations that Plaintiff received trees that he did not pay for. Mr. Lima stated that he knows 11 when trees are moved and that there are systems in place to make sure trees are properly charged 12 to the farms they are sent to. (Id.) Mr. Lima stated that Plaintiff was billed directly. Mr. Lima 13 will discuss his interactions with Plaintiff and Defendant’s interview techniques. (Id.) 14 Although Mr. Lima’s testimony is largely duplicative of previous deposition testimony, 15 Plaintiff seeks to depose him regarding the movement and charges for trees. There are 16 allegations that Plaintiff had trees delivered to his property that were charged to Defendant so 17 this testimony is relevant to the issues in the action. Defendant has not shown how this 18 testimony regarding the movement and manner in which trees were handled is duplicative of 19 other deposition testimony. Plaintiff’s request to depose Mr. Lima is granted. 20 4. Austin Williams worked directly under the supervision of Plaintiff and can testify 21 to issues pertaining to Plaintiff’s termination and the allegations that Plaintiff created a hostile 22 work environment and used hostile language. (Id. at 3.) Mr. Williams stated that Plaintiff used 23 foul language and became very defensive and nervous during his interview. (Id.) Defendant 24 contends that Mr. Williams and Plaintiff had a close personal relationship. Plaintiff believes that 25 Mr. Williams will testify that Defendant threatened him and others during the interviews and that 26 he was fired for refusing to cooperate during the investigation. (Id.) Mr. Williams will testify 27 that he was interviewed for three hours, accused of being a liar, and other tactics used during the 28 investigation. (Id.) 9 Mr. Williams has no knowledge regarding the issue of changing timecards. 1 His 2 deposition is sought to testify to his treatment by Defendant during and due to the investigation 3 and to the allegations regarding a hostile work environment. However, Plaintiff has already 4 deposed two other individuals, Mr. Hatakeda and Mr. Gonzales, who worked with Plaintiff and 5 have testified that Plaintiff threatened them or used inappropriate language. Furthermore, the 6 court is granting the request to depose three other individuals that will testify on these same 7 issues. To the extent that Plaintiff seeks to depose Mr. Williams to testify to the treatment he 8 received during the interview, Mr. Theis, Mr. Dietz, and Mr. Lima will provide similar 9 testimony. Finally, Mr. Williams belief that he was fired for failing to participate in the 10 investigation is immaterial as to whether Plaintiff was terminated due to age discrimination or for 11 embezzling from the company and creating a hostile work environment. Considering the Rule 12 26 factors, the Court finds that the testimony of Mr. Williams would be unreasonably cumulative 13 or duplicative. Plaintiff’s request to depose Mr. Williams is denied.5 5. 14 Virginia Zambrano worked directly under the supervision of Plaintiff as his 15 administrative assistant and can address issues pertaining to Plaintiff’s termination and the 16 allegations that Plaintiff created a hostile work environment and used hostile language. (Id. at 4.) 17 5 Plaintiff states that it is potentially unethical under Rule 2-100 of the California Rules of Professional conduct for 18 counsel to contact the witnesses. Rule 4.2 of the California Rules of Professional Conduct (formerly Rule 2-100) provides that a lawyer shall not communicate about the subject of the representation with a person the lawyer knows 19 to be represented by another lawyer in the matter without the other lawyer’s consent. CA ST RPC Rule 4.2(a). As relevant here, in the case where a corporation is represented, the rule prohibits communication with a current officer, 20 director, partner, or managing agent of the corporation or a current employee, member agent or other constituent of 21 the organization. CA ST RPC Rule 4.2(b). Mr. Williams is no longer employed by Wonderful. The rule “does not prohibit an opposing counsel’s ex parte 22 contact with former employees of a corporation who were not members of the corporation’s ‘control group.’ The corporation’s ‘control group’ was defined as ‘officers and agents . . . responsible for directing [the company’s] 23 actions in response to legal advice.’ ” Triple A Mach. Shop, Inc. v. State of California, 213 Cal. App. 3d 131, 139, 261 Cal.Rptr. 493, 498 (1989) (quoting Bobele v. Superior Court, 199 Cal.App.3d 708, 712 (1988) and Upjohn Co. 24 v. United States, 449 U.S. 383, 391 (1981)). The rule permits “opposing counsel to initiate ex parte contacts with unrepresented former employees, and present employees [other than officer, directors, or managing agents] who are 25 not separately represented, so long as the communication does not involve the employee’s act or a failure to act in connection with the matter which may bind the corporation, be imputed to it, or constitute an admission of the 26 corporation for purposes of establishing liability.” Cont’l Ins. Co. v. Superior Court, 32 Cal.App.4th 94, 107 (1995) (quoting Triple A Mach. Shop, Inc., 213 Cal.App.3d at 140). Mr. Williams, as a farming supervisor, would not 27 appear to fall within the definition of a control group employee. Further, Mr. Williams statements regarding the manner the investigation was conducted and his allegation that he was terminated for refusing to participate in the 28 investigation are not matters that would bind the corporation. 10 1 Ms. Zambrano deals with timecards from Mr. Marroquin and stated that she has never seen any 2 problems with the time cards. (Id.) She stated that Plaintiff has used inappropriate language in 3 her presence and Plaintiff told her to tell the truth during the interview. (Id.) 4 Ms. Zambrano’s testimony is largely duplicative of previous deposition testimony. 5 Although Plaintiff alleges that Ms. Zambrano deals with timecards from Mr. Marroquin and has 6 never seen any problems with them, it is unclear how this testimony is relevant. Defendant 7 alleges that Plaintiff had timecards changed prior to submitting them to Defendant and while Ms. 8 Zambrano “deals with timecards” from Mr. Marroquin, there is no allegation that she processes 9 time cards nor does Plaintiff identify what she does in “dealing” with the timecards. Considering 10 the Rule 26 factors, the Court finds that the testimony of Ms. Zambrano would be unreasonably 11 cumulative or duplicative. Plaintiff’s request to depose Ms. Zambrano is denied. 12 6. Plaintiff also seeks to depose Lisa Krause stating that she is the source of the 13 investigation and his termination. Ms. Krause was specifically referenced in testimony by Mr. 14 Loera and Mr. Krause. Defendant counters that three informants in the investigation have 15 already been deposed and deposing Ms. Krause will not add anything further. 16 Ms. Krause is the spouse of Mr. Krause who is the President of Wonderful. (Id. at 5.) 17 Ms. Krause believed that Plaintiff was stealing from the company and that is how he paid for his 18 house at Shaver Lake. (Id.) Ms. Krause and Mr. Loera were actively communicating about 19 Plaintiff and Ms. Krause was directly involved in the investigation and communicated her 20 opinions about Plaintiff to Mr. Krause. (Id.) 21 At the January 9, 2019 hearing, Defendant argued that even if the investigation was 22 instigated based on Ms. Krause’s opinion, it is irrelevant because Plaintiff was terminated based 23 on the results of the investigation. Although Ms. Krause is married to the President of the 24 company, her opinions of Plaintiff are not relevant in this action. To the extent that Plaintiff 25 believes that Ms. Krause communicated with Mr. Loera and expressed her opinions to Mr. 26 Krause, Plaintiff has pointed to no evidence that deposing Ms. Krause would reveal anything 27 other than what Plaintiff had already obtained. Although Plaintiff states that Ms. Krause was 28 directly involved in the investigation, Plaintiff has not alleged how she was involved other than 11 1 expressing her opinions about Plaintiff. Plaintiff has had the opportunity to depose Mr. Loera 2 and Mr. Krause and has not made a particularized showing of the necessity to depose Ms. Krause 3 and the general allegation that she directed the investigation is not a particularized showing of 4 necessity for the deposition. Plaintiff’s request to depose Ms. Krause is denied. 5 7. Plaintiff seeks to depose Stewart Resnick who is the owner of the company 6 alleging that he authorized the investigation and termination of Plaintiff. Defendant counters that 7 everything Mr. Resnick would testify to has already been testified to in other depositions. 8 Further, Defendant contends that Mr. Resnick is an apex witness who can only be deposed if he 9 has unique information that is not available from other witnesses. At the January 9, 2019 10 hearing, Plaintiff represented that Mr. Resnick made the decision to investigate and the final 11 decision on termination. Defendant countered that Mr. Resnick relied on Mr. Krause to do the 12 investigation and for the decision to terminate. Defendant continued to assert that Mr. Resnick 13 does not have any additional information beyond that known by Mr. Krause who has already 14 been deposed. 15 Plaintiff states that the deposition of Mr. Resnick will deal with 1) his knowledge and 16 involvement in initiating and conducting the investigation; 2) his communications with Mr. 17 Krause regarding his desire to pursue criminal charges against Plaintiff; 3) the reason and basis 18 that Mr. Resnick wanted to pursue criminal charges against Plaintiff; 4) Mr. Resnick’s approval 19 of Plaintiff’s termination; and5) Mr. Resnick’s involvement and approval of the two emails sent 20 to Defendant’s employees regarding Plaintiff’s termination. (Id. at 5.) 21 The deposition of a high-level official or executive is often referred to as an “apex” 22 deposition. Estate of Levingston v. Cty. of Kern, 320 F.R.D. 520, 525 (E.D. Cal. 2017). Courts 23 have held that such discovery creates tremendous potential for abuse and harassment; and 24 therefore, courts have the discretion to limit such discovery. Apple Inc. v. Samsung Elecs. Co., 25 Ltd, 282 F.R.D. 259, 263 (N.D. Cal. 2012); Estate of Levingston, 320 F.R.D. at 525. “[T]he 26 closer that a proposed witness is to the apex of some particular peak in the corporate mountain 27 range, and the less directly relevant that person is to the evidence proffered in support of his 28 deposition, the more appropriate the protections of the apex doctrine become.” Apple Inc., 282 12 1 F.R.D. at 263. Here, Mr. Resnick, as the owner of the corporation, is sufficiently high ranking to 2 invoke the privilege. 3 Plaintiff cites to Kyle Eng’g Co. v. Kleppe, 600 F.2d 226, 231 (9th Cir. 1979), for the 4 proposition that apex depositions are permitted where the individual has “direct personal factual 5 information pertaining to material issues in the action and the information to be gained in not 6 available through other sources.” (ECF No. 31 at 15.) In Kyle the appellate court found that the 7 district court did not abuse its very wide discretion in handling pretrial discovery by vacating a 8 deposition notice for the Administrator of the Small Business Association and setting a date for 9 the end of discovery. Kyle Eng’g Co., 600 F.2d at 231. The court noted that heads of 10 governmental agencies are not normally subject to deposition and requiring interrogatories in 11 lieu of a deposition appeared reasonable. Id. Kyle does not support Plaintiff’s argument that 12 direct involvement allows a high ranking official to be deposed. 13 In Bogan v. City of Boston, 489 F.3d 417 (1st Cir. 2007), the First Circuit held that 14 “[d]epositions of high ranking officials may be permitted where the official has first-hand 15 knowledge related to the claim being litigated.” Bogan, 489 F.3d at 423. However, even in 16 these circumstances, the discovery is permitted only where it is shown that the necessary 17 information cannot be provided by other persons. Id. In Bogan the plaintiffs were attempting to 18 depose the mayor in a case in which they claimed that he had directed that their property be 19 inspected to force them to sell to make room for an economic development project. Id. at 421, 20 423. The plaintiffs relied on evidence that an employee wrote a note that the Mayor’s Office had 21 received complaints from neighbors about their property and the mayor had ordered an 22 inspection as a result and that the inspection had been ordered shortly after it was disclosed that 23 they were using the property as a rooming house. Id. at 423-24. The plaintiffs argued that this 24 was sufficient to support an inference that the mayor had ordered the inspection on a tip from the 25 Neighborhood Development Corporation because they shared a goal to force the plaintiffs from 26 their property. Id. at 424. The appellate court found that the plaintiffs’ argument failed because 27 they had not obtained relevant information from other sources prior to turning to the mayor. Id. 28 The identity of the individual who ordered the inspection was a disputed issue of fact. Id. The 13 1 plaintiffs did not obtain discovery from other individuals who were aware of the mayor’s 2 involvement. Id. 3 In Coleman v. Schwarzenegger, No. CIV S-90-0520LKKJFMP, 2008 WL 4300437, at *3 4 (E.D. Cal. Sept. 15, 2008), the plaintiffs were attempting to depose the governor and his chief of 5 staff regarding measures they had taken or proposed to alleviate prison conditions and regarding 6 statements they made about overcrowding and the progress of prison reform. The court cited 7 Bogan for the extraordinary circumstances test. Coleman, 2008 WL 4300437, at *2. 8 The Coleman court held that even if the information was relevant in the action and would 9 otherwise be discoverable, “plaintiffs must still show that there are ‘extraordinary circumstances’ 10 that justify deposing the two high-ranking officials, specifically that they possess personal 11 knowledge of facts critical to the outcome of the proceedings and that such information cannot 12 be obtained by other means.” Id. These decisions are consistent with case law within this circuit 13 which considers the unique person knowledge of the official whose deposition is sought. 14 “In determining whether to allow an apex deposition, courts consider (1) whether the 15 deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2) 16 whether the party seeking the deposition has exhausted other less intrusive discovery methods.” 17 Apple Inc., 282 F.R.D. at 263 (quoting In re Google Litig., C 08–03172 RMW (PSG), 2011 WL 18 4985279, at *2, 2011 U.S. Dist. LEXIS 120905, at *10 (N.D. Cal. Oct. 19, 2011)); accord 19 Groupion, LLC v. Groupon, Inc., No. 11-0870 MEJ, 2012 WL 359699, at *2 (N.D. Cal. Feb. 2, 20 2012). When a witness has personal knowledge of facts relevant to a lawsuit, even a high 21 ranking corporate office is subject to deposition. Apple Inc., 282 F.R.D. at 263. 22 The deposition of a high-ranking official can be held where the official has firsthand 23 knowledge of the issues in the case. Affinity Labs of Texas v. Apple, Inc., No. C 09-4436 CW 24 JL, 2011 WL 1753982, at *2 (N.D. Cal. May 9, 2011). However, “[w]here a high-level decision 25 maker ‘removed from the daily subjects of the litigation’ has no unique personal knowledge of 26 the facts at issue, a deposition of the official is improper[,]” especially where the information 27 sought can be obtained through less intrusive means or from lower level employees with more 28 direct knowledge of the facts at issue. Groupion, LLC, 2012 WL 359699, at *2. 14 1 Plaintiff seeks to establish such knowledge by alleging that Mr. Resnick was directly 2 involved in and made the decision to fire Plaintiff. However, in this instance the evidence before 3 the Court establishes that, while the decision to terminate Plaintiff’s employment may have been 4 approved by Mr. Resnick, he did not have unique first-hand, non-repetitive knowledge of the 5 facts at issue in this case. 6 Specifically, the investigation was instituted by Mr. Krause who hired the investigators, 7 read the reports, and communicated the information to Mr. Resnick. Mr. Krause stated in his 8 deposition that firing Plaintiff was outside of his authority. However, this does not demonstrate 9 that Mr. Resnick has unique first-hand non-repetitive knowledge of any fact at issue in this 10 action. Rather as Defendant argued, Mr. Resnick was informed of the facts by Mr. Krause and 11 concurred that Plaintiff had engaged in misconduct and should be terminated. In making this 12 determination the Court considers that Mr. Resnick did not hire the investigators, the 13 investigators reported to Mr. Krause, and Mr. Resnick did not receive or review the investigation 14 reports but was verbally informed of the results of the investigation by Mr. Krause. 15 Plaintiff has deposed Mr. Krause who has testified to the reasons that the decision was 16 made to terminate Plaintiff. Plaintiff has not demonstrated that Mr. Resnick has unique first17 hand, non-repetitive knowledge of the reasons that Plaintiff’s employment was terminated. 18 Deposing Mr. Resnick would be cumulative and duplicative of Mr. Krause’ deposition 19 testimony. 20 Plaintiff has already deposed numerous individuals on the reason that he was terminated. 21 Specifically, Plaintiff has deposed the company’s president, Mr. Krause, on this specific issue. 22 While Plaintiff argues that he wishes to depose Mr. Resnick on his desire to pursue criminal 23 charges against Plaintiff and why he wished to pursue criminal charges, this is not material to the 24 action and does not provide a basis to grant the deposition. 25 Plaintiff also states that he wishes to depose Mr. Resnick on his involvement and 26 approval of two emails sent out to Defendant’s employees pertaining to Plaintiff’s termination. 27 Plaintiff had the opportunity to depose Mr. Krause who directed that the emails be sent and has 28 set forth no evidence that would suggest that Mr. Resnick was personally involved in sending the 15 1 emails or has any unique first hand, non-repetitive knowledge regarding the emails. 2 For these reasons, Plaintiff’s motion to depose Mr. Resnick is denied. 3 8. Finally, Plaintiff seeks to depose Linda Welch as she works in the accounting 4 department and can address the issues raised in Defendant’s counterclaim. (ECF No. 34 at 5-6.) 5 Plaintiff contends that Ms. Welch will testify to how often supervisors changed timecards and 6 how easy it is to miscode a timecard due to the company’s complex system. (Id. at 6.) 7 Additionally, Ms. Welch handles the farming cost report and would be aware of what was billed 8 to Plaintiff. (Id.) Defendant states that Ms. Welch’s deposition is not duplicative of others that have 9 10 already been completed and the information would be difficult to ascertain from other sources. As Ms. Welch has relevant information which is not duplicative and would be difficult to 11 12 ascertain elsewhere, the Court shall grant Plaintiff’s request to depose Ms. Welch. 13 IV. 14 ORDER Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion to allow 15 16 additional depositions is GRANTED IN PART AND DENIED IN PART as follows. 1. 17 Plaintiff’s request to depose Austin Williams, Virginia Zambrano, Lisa Krause, and Steve Resnick is DENIED; and 18 2. 19 Plaintiff’s request to depose Nick Theis, Emmett Dietz, Jose Lima, and Linda Welch is GRANTED. 20 21 22 IT IS SO ORDERED. 23 Dated: January 11, 2019 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 16

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.