United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MIGUEL CASTANEDA, KATHERINE

CORBETT, and JOSEPH WELLNER, on

behalf of themselves and others similarly

situated,

Plaintiffs,

 v.

BURGER KING CORPORATION,

Defendant. /

No. C 08-04262 WHA

FINAL ORDER

GRANTING DEFENDANT’S

MOTION TO EXTEND

DISCOVERY CUT-OFF AND

TO TAKE INDIVIDUALIZED

DISCOVERY AS TO

OPT-IN PLAINTIFFS

This is an ADA action alleging barriers to access on behalf of mobility-impaired

customers of restaurants leased by defendant. Ten classes have been certified — one for each

of the restaurants at which a named plaintiff allegedly encountered an access barrier — with

separate trials scheduled for each class. Pursuant to a December 15 order, the fact discovery

cut-off for all ten trials was January 29, 2010, and the parties were each permitted to take 25

depositions. Class members are required to opt-in to be eligible to claim individualized

statutory damages pursuant to the Unruh Act and the CDPA. The deadline for persons to opt in

as class members is March 1, 2010. The first trial is scheduled to begin on April 19, 2010.

Defendant Burger King Corporation now moves to extend the fact discovery cut-off and

to expand the deposition limit so that it may take individualized discovery including depositions

from all claimants who affirmatively opt in to the classes and who are therefore eligible for

individualized statutory damages. It also seeks an order that plaintiffs be required to

Case 3:08-cv-04262-WHA Document 310 Filed 02/17/10 Page 1 of 3
United States District Court

For the Northern District of California

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supplement their Rule 26 disclosures and answers to written discovery as to all such claimants

who affirmatively opt in before the March 1 cut-off. On February 8, a tentative order granting

the motion was shared with the parties and their written feedback was solicited.

After consideration of the parties’ responses, defendant’s motion is GRANTED as

follows. The parties have agreed that only class members who claim damages for more than

two visits to the restaurants at issue in this litigation (or those class members’ guardians,

representatives or assistants as appropriate) should submit to depositions and the depositions

should not exceed two hours each. Each claimant shall bring all documents bearing upon his or

her prayer for statutory damages to the deposition, including documentation of occasions on

which he or she visited the restaurants in question. Each claimant’s deposition should be held

no later than one week before the earliest trial corresponding to a restaurant at which the

claimant allegedly encountered a barrier to access. For example, depositions of claimants who

allege that they were customers of the restaurant at issue in the first trial (located at 6021

Central Avenue, in El Cerrito) shall be held no later than APRIL 12, 2010. The Court expects

counsel to work cooperatively to maximize the number of depositions that can be scheduled for

one day. These depositions shall be scheduled without the necessity of subpoenas to claimants

and it shall be plaintiffs’ counsel’s responsibility to ensure the availability of claimants and their

documents. Other than as stated, Rule 26(a) disclosures shall not be required.

Plaintiffs have requested permission to hire additional counsel to the extent that there is

overlap among the scheduled trials and depositions taken for subsequent trials. This request is

DENIED. Plaintiffs previously moved for the appointment of (1) Lewis, Feinberg, Lee, Renaker

& Jackson, P.C., (2) Fox & Robertson, P.C., (3) Disability Rights Education & Defense Fund,

(4) Mari Mayeda and (5) Law Offices of Antonio Lawson as class counsel in this matter (Dkt.

No. 138). A subsequent order appointed as class counsel only (1) Lewis Feinberg, (2) Fox &

Robertson and (3) Mari Mayeda as class counsel (Dkt. No. 252). As previously stated in that

order, the principal concern with adding additional lawyers and law firms is the very real risk of

inefficiencies. One or possibly two lawyers plus one legal assistant are usually all that are

needed in taking a deposition, fewer in defending, depending on the difficulty or witness or

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subject. Two lawyers, a legal assistant and an IT assistant are all that are needed at trial. Given

that plaintiffs’ most recent electronic filings indicate at least six attorneys are actively working

on this matter from the firms already approved as plaintiffs’ counsel of record, plaintiffs have

not demonstrated a need to add still more lawyers to defend depositions limited to two hours,

even if those depositions overlap with the trial schedule in this matter.

IT IS SO ORDERED.

Dated: February 17, 2010. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

Case 3:08-cv-04262-WHA Document 310 Filed 02/17/10 Page 3 of 3