Dysthe v. Basic Research, L.L.C.
273 F.R.D. 625
C.D. Cal.2011Background
- Defendants moved to compel the deposition of plaintiff Eric Hall on March 22, 2011.
- Hall is a named plaintiff since inception and not a putative class member at this stage; deposition is sought for relevance to class certification.
- The Second Amended Complaint alleges Hall bought Relaeore Extra in July 2009 and that the product was ineffective; claims concern representations about weight loss.
- Defendants noticed Hall’s deposition for March 9, 2011; Hall was unavailable and later indicated intent to dismiss claims with prejudice.
- Discussions occurred about dismissal timing and deposition scheduling; a motion for voluntary dismissal was filed, with a hearing set for April 18, 2011.
- The court granted the motion to compel Hall’s deposition, ordering a deposition on April 12, 2011 at Mayer Brown LLP, Los Angeles.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May Hall be deposed despite anticipated dismissal? | Hall not a putative class member; deposition burdens him with no clear benefit. | Hall is a named plaintiff whose testimony bears on class certification; deposition is necessary and permissible. | Yes; deposition compelled. |
| Does Hall's status as a potential non-class member affect discovery scope? | Rules for putative/absent class members apply; deposition is not essential. | Hall’s experiences are relevant to commonality and typicality; heightened requirements do not bar deposition. | No; deposition remains proper. |
Key Cases Cited
- Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (U.S. 1978) (broad pre-certification discovery principles)
- Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935 (9th Cir. 2009) (discovery in class actions; heightened scrutiny for absent class members)
- Withers v. eHarmony, Inc., 267 F.R.D. 316 (C.D. Cal. 2010) (burdens on obtaining depositions of absent class members; special circumstances)
- Clark v. Universal Builders, Inc., 501 F.2d 324 (7th Cir. 1974) (burden on taking deposition of absent class members)
- Baldwin & Flynn v. Nat’l Safety Assocs., 149 F.R.D. 598 (N.D. Cal. 1993) (necessity and purpose required for discovery from class members)
- Epstein v. MCA, Inc., 54 F.3d 1422 (9th Cir. 1995) (broad relevance and discovery principles in civil litigation)
- Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143 (9th Cir. 1982) (discretion to permit dismissal and effect on discovery terms)