Guzman v. Bridgepoint Education, Inc. et al, No. 3:2011cv00069 - Document 73 (S.D. Cal. 2014)

Court Description: ORDER Denying Plaintiff's Application To Compel Deposition Of Person Most Knowledgeable. Signed by Magistrate Judge William V. Gallo on 4/28/2014. (mdc)

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Guzman v. Bridgepoint Education, Inc. et al Doc. 73 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BETTY GUZMAN, et al., Plaintiffs, 12 13 v. 14 BRIDGEPOINT EDUCATION, INC., et al., Defendants. 15 ) ) ) ) ) ) ) ) ) ) Civil No.11-0069-WQH(WVG) ORDER DENYING PLAINTIFF’S APPLICATION TO COMPEL DEPOSITION OF PERSON MOST KNOWLEDGEABLE 16 17 On April 23, 2014, counsel submitted to the Court a 18 Joint Statement For Determination of discovery Dispute 19 (“Joint Statement”). In the Joint Statement, Plaintiff 20 seeks to compel Defendants to produce for deposition the 21 person most knowledgeable on a number of topics. Defen- 22 dants oppose Plaintiff’s Application. 23 I 24 BACKGROUND 25 On November 22, 2013, Plaintiff served on Defendants 26 a Request for Production of Documents. Defendants agreed 27 to 28 Requests for Production of Documents. On February 24, produce to Plaintiff documents 1 responsive to the 11cv0069 Dockets.Justia.com 1 2014, Defendants produced responsive documents to Plain- 2 tiff. Subsequently, Defendants produced more documents to 3 Plaintiff in three separate productions. The last produc- 4 tion of documents occurred on March 12, 2014. 5 On March 19, 2014, Plaintiff served on Defendants a 6 Deposition Notice pursuant to Fed. R. Civ. P. 30(b)(6) 7 (“March 19, 2014 Deposition Notice” or “Deposition No- 8 tice”) for a deposition to be taken on March 28, 2014.1/ On 9 March 24, 2014, Defendants the served on objections to 11 Defendants objected 12 Deposition Notice was irrelevant to any issues pertaining 13 to class certification. Further, Defendant objected that 14 the notice provided was unreasonable in light of the scope 15 of the deposition topics listed in the Deposition Notice, 16 since Plaintiff had never requested documents from Defen- 17 dants 18 Deposition Notice. Defendants contend that the Deposition 19 Notice was a request for production of documents that 20 failed 21 required by Fed. R. Civ. P. 34. to comply 19, 2014 that the testimony the deposition with the topics 30-day 22 sought listed notice Notice. by in the the requirement II 23 Deposition their 10 regarding March Plaintiff APPLICABLE LAW Fed R. Civ. P. 30(b) states in pertinent part: 24 25 26 27 28 1/ On March 13, 2014, Plaintiff also served on Defendants another Deposition Notice pursuant to Fed. R. Civ. P. 30(b)(6) (“March 13, 2014 Deposition Notice”). The March 13, 2014 Deposition Notice is not at issue in this discovery dispute and was not provided to the Court. 2 11cv0069 1 2 3 4 5 6 (1) A party who wants to depose a person by oral questions must give reasonable notice to every other party (of the deposition)... (2) ... The notice to a party deponent may be accompanied by a request (for production of documents) under Rule 34 to produce documents... at a deposition... (6) In its notice..., a party may name as the deponent a private... corporation..., and must describe with reasonable particularity the matters for examination... (emphasis added). 7 Fed. R. Civ. P. 34(b)(2) states in pertinent part: 8 “The party to whom the request (for production of docu9 ments) is directed must respond... within 30 days after 10 being served.” 11 III 12 DISCUSSION 13 A. Relevance 14 Plaintiff argues that the topics listed in the March 15 19, 2014 Deposition Notice are relevant to class certifi16 cation issues. Defendants argue that the topics are not 17 relevant to any issue of class certification. 18 The Court finds that the information requested in 19 the Deposition Notice is relevant to whether there are 20 questions of law or fact common to the proposed class. The 21 information is relevant to show what representations were 22 made to Defendants’ students, if any, prior to their 23 enrollment in Defendants’ school, and the basis of any 24 such representations. Defendants’ arguments to the con25 trary are not well taken. That information may be, or may 26 not be, relevant is not a ground for refusing to appear 27 at, and give testimony at, a properly noticed deposition. 28 3 11cv0069 1 RTC v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995), In re 2 Uehling, 2013 WL 3283212 at *9 (E.D. Cal. 2013). 3 B. Reasonable Notice 4 Fed. R. Civ. P. 30(b)(1) requires that a party 5 seeking a deposition 6 deposition. Courts construe “reasonable notice” to be five 7 days, if the deposition notice does not require production 8 of documents at the deposition. Millennium Labs, Inc. v. 9 Allied World Assur. Co., 2014 WL 197744 at *2, n. 1 (S.D. 10 Cal. 2014), Pac. Mar. Freight, Inc. v. Foster, 2013 WL 11 6118410 at *2, n. 2 (S.D. Cal. 2013). However, when the 12 deposition notice requires production of documents at the 13 deposition, 14 notice” is provided as stated in Rule 34. Rule 34(b)(2) 15 states that the party to whom a request for production of 16 documents is directed must respond within 30 days after 17 service of the request. Ghosh v. Cal. Dept. of Health 18 Services, 50 F.3d 14 (9th Cir. 1995). Rule give “reasonable 30(b)(2) dictates notice” that of the “reasonable 19 Here, Plaintiff’s Deposition Notice was served on 20 March 19, 2014 for a deposition to be taken on March 28, 21 2014. The time between March 19, 2014 and March 28, 2014 22 is nine days. Therefore, Plaintiff’s Deposition Notice, to 23 the extent it did not request production of documents at 24 the deposition, was timely and reasonable. 25 Plaintiff argues that her Deposition Notice provides 26 “reasonable notice” to Defendants of the deposition, that 27 the 28 documents at the deposition, and that she was justified in Deposition Notice does 4 not request production of 11cv0069 1 serving the Deposition Notice on March 19, 2014 because 2 she received the last set of Defendants’ production of 3 documents on March 12, 2014. Defendants 4 argue that since Plaintiff had not 5 previously requested the production of documents regarding 6 many, if not all, of the topics2/ listed in the Deposition 7 Notice, the Deposition Notice was an untimely and veiled 8 attempt to circumvent the requirements of Rule 34(b)(2). 9 Therefore, the Deposition Notice did not provide the 10 “reasonable notice” required by Rule 30(b)(1) since only 11 nine, and not 30 days, notice was provided. Further, 12 Defendants argue that even though they produced their last 13 set of documents to Plaintiff on March 12, 2014, Plaintiff 14 knew, or should have known, that she needed documents and 15 testimony regarding the topics listed in the Deposition 16 Notice long before March 19, 2014. 17 The Court agrees with Defendants. Plaintiff does not 18 dispute that she did not previously seek from Defendant 19 documents regarding the topics listed in the Deposition 20 Notice. Moreover, Plaintiff acknowledges that if a depo- 21 nent must produce documents at the deposition, then “the 22 notice must comply with the thirty-day notice under Rule 23 34.” (Joint Statement at 4, ll. 13-14). Defendants also 24 explain the time and effort necessary in preparing their 25 witness for this deposition. (Joint Statement at 9, ll. 26 27 28 2/ The Deposition Notice seeks testimony regarding Defendants’ reports and studies comparing and contrasting students at for-profit schools with students at non-profit schools regarding tuition fees, job placement, student debt, student default rates, the dates of such reports and studies, and their findings and conclusions. 5 11cv0069 1 22-26). Therefore, it is difficult, if not impossible, to 2 see how a person designated by Defendants to testify about 3 the topics would be able to truthfully and accurately do 4 so without having at the deposition the documents that 5 pertain to the topics listed in the Deposition Notice. 6 The Court determines that the Deposition Notice is 7 a thinly veiled attempt to evade the 30 day response 8 requirement for production of documents at a deposition, 9 as required by Fed. R. Civ. P. 34(b)(2). Consequently, 10 Plaintiff failed to give “reasonable notice” of the 11 deposition and failed to comply with Rule 30(b)(1) and (2) 12 and 34(b)(2). Moreover, the discovery cut-off deadline 13 expired on March 31, 2014 and Plaintiff’s Motion for Class 14 Certification is due on April 30, 2014. Even if Plain- 15 tiff’s Deposition Notice gave “reasonable notice” of the 16 deposition, which it did not, Plaintiff would have been 17 unable to take the deposition before the expiration of 18 discovery on March 31, 2014. 19 One final point to mention is the lack of urgency 20 demonstrated by the parties, especially Plaintiff. While 21 the parties complied with the Court’s Local and Chambers 22 rules to meet and confer to resolve their dispute and 23 failing that, to file their Joint statement within 30 24 days, the parties lost sight of the now-past discovery 25 deadline and the looming deadline to file the Motion for 26 Class Certification. Realizing that these two deadlines 27 were rapidly approaching when the dispute arose, the Court 28 would have expected the parties, especially Plaintiff, to 6 11cv0069 1 react with far more alacrity than what was displayed here. 2 Choosing instead to file the Joint Statement right at the 3 very deadline of the 30-day window, the parties, espe- 4 cially Plaintiff, now must face the consequence of their 5 dilatory actions. 6 In Wong v. Regents of the University of California, 7 410 F.3d 1052, 1060, 1062 (9th Cir. 2005), the court 8 stated: In these days of heavy caseloads, trial courts... routinely set schedules and establish deadlines to foster the efficient treatment and resolution of cases. Those efforts will be successful only if the deadlines are taken seriously by the parties, and the best way to encourage that is to enforce the deadlines. Parties must understand that they will pay a price for failure to comply strictly with scheduling and other orders, and that failure to do so may properly support severe sanctions and exclusion of evidence... If (Plaintiff) had been permitted to disregard the deadline..., the rest of the schedule laid out by the court months in advance, and understood by the parties, would have to have been altered as well. Disruption to the schedule of the court and other parties is not harmless. Courts set such schedules to permit the court and the parties to deal with cases in a thorough and orderly manner, and they must be allowed to enforce them, unless there are good reasons not to. (emphasis added). 9 10 11 12 13 14 15 16 17 18 19 20 also 02 Micro Intern Ltd. v. Monolithic Power 21 See 22 Systems,Inc., 467 F.3d 1355, 1368-1369 (9th Cir. 2006). 23 Plaintiff’s Application To Compel The Deposition 24 25 26 27 28 7 11cv0069 1 Noticed On March 19, 2014 is DENIED. 2 IT IS SO ORDERED. 3 4 DATED: April 28, 2014 5 6 Hon. William V. Gallo U.S. Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 11cv0069

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