United States District Court

For the Northern District of California

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ALICIA HARRIS,

Plaintiff,

v.

VECTOR MARKETING CORPORATION,

Defendant.

___________________________________/

No. C-08-5198 EMC

ORDER RE JOINT LETTER OF

AUGUST 5, 2010

(Docket No. 292)

Currently pending before the Court is a discovery dispute between the parties as to whether

Defendant should be permitted to take the deposition of Plaintiff a second time. Previously, Plaintiff

was deposed in or about March 2009, prior to the filing of Defendant’s early motion for summary

judgment.

Federal Rule of Civil Procedure 30(a) provides that, if a party seeks to take a second

deposition of a witness, the “party must obtain leave of [the] court, and the court must grant leave to

the extent consistent with Rule 26(b)(2).” Fed. R. Civ. P. 30(a)(2)(A)(ii). Rule 26(b)(2) in turn

provides that a “court must limit the frequency or extent of discovery . . . if it determines that,” e.g.,

“the party seeking discovery has had ample opportunity to obtain the information by discovery in the

action” or “the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R.

Civ. P. 26(b)(2)(C).

While the Court is not unsympathetic to Plaintiff’s position, it ultimately concludes that a

second deposition is appropriate. While Defendant did make the decision to depose Plaintiff early in

the litigation, that was based on a not unjustified belief that the case could be resolved on the merits

Case 3:08-cv-05198-EMC Document 293 Filed 08/09/10 Page 1 of 2
United States District Court

For the Northern District of California

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early in the proceedings so that neither side would have to incur substantial costs. Moreover,

Plaintiff identifies no undue burden that she would suffer if she were to be deposed a second time,

and Defendant has stated that it will limit the scope of the deposition to new evidence discovered

since the first deposition. The Court also notes that the new evidence about which Defendant seeks

to depose Plaintiff is not insignificant, particularly since this is a class action and the Court has an

independent duty to protect the interests of the class. See Silber v. Mabon, 957 F.2d 697, 701 (9th

Cir. 1992) (“Both the class representative and the courts have a duty to protect the interests of absent

class members.”). Plaintiff’s reliance on Blackwell v. City & County of San Francisco, No.

C-07-4629 SBA (EMC), 2010 U.S. Dist. LEXIS 75453 (N.D. Cal. June 25, 2010), is unavailing

because, there, the plaintiff sought to take a second deposition not because of new evidence but

rather because of his counsel’s discovery of a case decided prior to the first deposition which

suggested a new theory to support his claim for disability discrimination. See id. at *6.

Accordingly, the Court GRANTS Defendant’s request to take a second deposition of

Plaintiff. The deposition shall be limited to new evidence discovered after the date of the first

deposition. The deposition shall be limited to four hours.

This order disposes of Docket No. 292.

IT IS SO ORDERED.

Dated: August 9, 2010

_________________________ EDWARD M. CHEN

United States Magistrate Judge

Case 3:08-cv-05198-EMC Document 293 Filed 08/09/10 Page 2 of 2