MEMORANDUM AND ORDER GRANTING DEFENDANTS’ MOTION TO COMPEL DEPOSITION OF PLAINTIFF ERIC HALL
On Mаrch 22, 2011, defendants Basic Research, LLC and The Carter-Reed Company, LLC (collectively, “Defendants”) filed a “Notice of Motion and Motion to Compel Deposition of Plaintiff Eric Hall” (the “Motion to Compel” or “MTC”). The parties
I. Summary Of The Discovery Dispute
On November 2, 2009, named plaintiffs Shalena Dysthe, Eric Hall and Chaunte Weiss filed a class action complaint alleging that various defendants made purportedly false claims concerning the efficacy of Relacore weight-loss products. (Complaint аt 2). On February 16, 2010, named plaintiffs Shalena Dysthe, Eric Hall, Kelly Fortin and Gene Cisneros (collectively, “Plaintiffs”) filed a First Amended Complaint (“FAC”). On June 1, 2010, the same four named plaintiffs, including Hall, filed the operative Second Amended Complaint (“SAC”). According to the SAC, Hall purchased a product called “Relaeore Extra” in July 2009 in reliance on representations made on the product’s packaging and used it. (SAC at 9). The SAC further alleges that Hall took Relaeore Extra Tablets and “they were ineffective.” (Id.). Hall alleges that the reprеsentations that Relaeore Extra “‘[h]elps prevent stress-related abdominal fat’ ” were false. (Id.).
In February 2011, Defendants requested deposition dates for the named Plaintiffs after the parties met to discuss the schedule for the anticipated motion for class certification. (Resch Deel. at 1-2; Reseh Decl. Exh. 1 at 1; id. Exh. 2 at 1-2). On February 14, 2011, plaintiff Fortin filed a Motion to Certify Class (“Mot. Class Cert.”) seeking to be certified as the class representative. (Mot. Class Cert, at 1). On February 23, 2011, not having received a response from Plaintiffs regаrding proposed deposition dates, Defendants noticed Hall’s deposition for March 9, 2011 and requested confirmation that he would appear on that date. (Resch Decl. at 3; Resch Decl. Exh. 2 at 1).
On March 2, 2011, Plaintiffs notified Defendants that Hall was not availаble on March 9, 2011. In addition, Plaintiffs notified Defendants that Hall intended to dismiss his claims from the Second Amended Complaint with prejudice. (Resch Decl. at 3; Liao Decl. at 2). On March 6, 2011, Defendants informed Plaintiffs that they would stipulate to the dismissal of Hall after his deposition was tаken. (Resch Decl. at 3). Plaintiffs discussed the voluntary dismissal of Hall’s claims with Defendants on March 11, 17, and 18, 2011. (Liao Decl. at 2). On March 21, 2011, plaintiffs Hall and Cisneros filed a Motion for an Order of Voluntary Dismissal (“Dismissal Mot.”) seeking an order dismissing their claims with prejudice. (Dismissal Mot. at 1-2). The hearing on that motion is scheduled for April 18, 2011. (Jt. Stip. at 14). In the interim, Defendants seek an order compelling Hall to appear for deposition on April 12, 2011 at 1:00 p.m. (Id.).
Defendants contend that even though Hall is attempting to dismiss his claims, Defendants are entitled to take his depositiоn because (1) Hall is and has been a named plaintiff since the inception of this litigation in November 2009, (2) his deposition was properly noticed, and (3) his testimony is expected to be relevant to issues pertaining to class certification. (Jt. Stip. at 4-6). Specifically, Defendants argue that whether or not Hall remains a named plaintiff, his experience as a purchaser and consumer of Relacore products “would directly bear on the typicality of the claims of the proposed class representative, i.e., Plaintiff Kelly Fortin.” (Id. at 6). According to Defendants, shielding Hall from deposition “at this late stage of this litigation” will “potentially prejudice Defendants with respect to their ability to marshal evidence in opposition to the pending Motion for Class Certification.” (Id. at 8).
Aсcording to Plaintiffs, Hall has determined that he does not wish to subject himself to the “rigor of litigation,” including discovery requests involving personal information, and has “other personal reasons” to seek dismissal of his claims at this time. (Jt. Stip. at 8-9). Plaintiffs contend that “if
II. Defendants Are Entitled To Take Hall’s Deposition
Pursuant to the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense” and this “[rjelevаnt information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). Ninth Circuit law generally favors a broad scope of discovery. “[W]ide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for truth.” Epstein v. MCA, Inc.,
At the pre-class certification stage, discovery in a putative class action is generally limited to certification issues: e.g., the number of class members, the existence of common questions, the typicality of claims, and the representative’s ability to represent the class. Oppenheimer Fund, Inc. v. Sanders,
The taking of depositions of absent class members is—as is true of written interrogatories—appropriate [only] in special circumstances. And, not unlike the use of interrogatories, the party seeking the depositions has the burden of showing necessity and absence of any motive to take undue advantage of the class members. However, in light of the nature of the deposition process—namely, the passive litigants are required to appear for questioning and are subject to often stiff interrogation by opposing counsel with the concomitant need for counsel of their own—we are of the view that the burden confronting the party seeking deposition testimony should be more severe than that imposed on the party requesting permission to use interrogatories.
Withers v. eHarmony, Inc.,
Here, the discovery standards governing putative class members are not necessarily applicable. Hall is currently a named plaintiff and has not yet been dismissed. Pursuant to Federal Rule of Civil Procedure 41(a)(2), after an opposing party has answered, an action may be dismissed at the plaintiffs request only by the court, on terms that the court considеrs proper. While Hall’s dismissal may be likely, it is not automatic. Hamilton v. Firestone Tire & Rubber Co.,
Furthermore, as discussed above, the Federal Rules of Civil Procedure clearly provide
Furthermore, Hall’s unique status in this litigation provides a sufficient ground to justify his deposition even if, at some later date, he will no longer be a named plaintiff. Hall has been a named plaintiff since the filing of the original Complaint, through several amendments of the Complaint, and he did not move to dismiss his claims until after Plaintiffs filed their motion for class certification. Plaintiffs do not contest that Defendants properly noticed Hall’s deposition before Hall filed his motion for voluntary dismissal. Likewise, Plaintiffs do not contest that their discussions with Defendants regarding the briefing schedule for Plaintiffs’ class certification motion included consideration of Defendants’ request to depose Plaintiffs, including Hall, before filing Defendants’ opposition. (See Resch Deck at 2; Liao Deck at 1). Plaintiffs сounsel admits that she anticipated that Hall’s deposition would go forward and diligently “attempted to obtain Mr. Hall’s availability for a deposition.” (Liao Deck at 1). In a similar procedural context where a named plaintiff whose deposition had beеn properly noticed belatedly withdrew his claims, the court in In re FedEx Ground Package System, Inc.,
[Defendant] does not appear to be seeking the testimony of [the proposed deponent] to harass absent class members, nor does the deposition [defendant] seeks appear to be burdensome. Seeking the deposition of one absent class member, who may not even be a class member, from potentially thousands hardly constitutes harassment. Furthermore, pеrforming one deposition, which was already supposed to have been performed, cannot be considered a burden.
Id. at *9. Here, even if Hall was not a named plaintiff, Defendants have satisfied the heightened requirements applying to the discovery of putative or absent class members. See Baldwin,
Finally, if Hall’s motion for dismissal is granted and he is barred from being a putative or absent class member, his testimony as a percipient witness would nevertheless remain relevant and the heightened requirements pertaining to the discovery of putative or absent class members would not apply. See, e.g., Withers,
III. CONCLUSION
Defendants’ Motion to Compel Deposition of Eric Hall is GRANTED. Plaintiffs are ordered to produce the witness for deposition on April 12, 2011, at 1:00 p.m., at the offices of Mayer Brown LLP, 350 South Grand Ave, 25th Floor, Los Angeles, California. If necessary to reschedule, the parties may only reschedule this deposition by mutual agreement and pursuant to a written stipulation, with a proposed order for the Court’s consideration.
IT IS SO ORDERED.