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 DENYING PLAINTIFF’S

MOTION TO COMPEL 30(b)(6)

DEPOSITION ON COMPENSATION OF

SALES REPRESENTATIVES

(Docket No. 190)

Previously, the Court deferred ruling on that part of Plaintiff’s motion to compel concerning

the compensation of Sales Representatives. See Docket No. 211 (order). The parties have now filed

supplemental briefs on the issue and, having considered those briefs, the Court hereby DENIES the

motion to compel a 30(b) deposition on the subject matter of Sales Representative compensation.

As a preliminary matter, the Court is dubious that the compensation of Sales Representatives

is relevant. This case is, in essence, about whether individuals should have been compensated

during the time they spent in initial training -- i.e., before they started to sell the Cutco knives. Thus,

the money they made based on their selling of knives after the training was completed is immaterial.

At the hearing on July 21, 2010, Plaintiff argued relevance based on an anticipated defense

of “consent” -- that the Sales Representatives consented to training without pay. Plaintiffs argued at

the hearing that any such “consent” was vitiated by the misrepresentations made by Vector to induce

consent -- i.e., if Defendant promised potential Sales Representatives that they would make $50,000

a year but, in reality, Sales Representatives made only $250 a year, then the individuals could not be

said to have voluntarily consented to not being paid for the time they spent in initial training. The

problem with this contention is that Defendant has not offered as a defense that the individuals

Case 3:08-cv-05198-EMC Document 224 Filed 07/29/10 Page 1 of 2
United States District Court

For the Northern District of California

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participating in the training consented to not being paid. Defendant has argued that the individuals

are independent contractors and not employees, but none of the tests that the parties and the Court

have discussed in determining whether a person is an independent contractor or employee rests on

whether there was consent to not being paid for certain activity. For example, one factor to consider

under California law is whether the parties believe they are creating an employer-employee

relationship, see Docket No. 71 (Order at 15), but that cannot be equated with the consent issue as

framed by Plaintiff. In opposing this discovery, Defendant in its reply to Plaintiff’s supplemental

briefing, stated “there is no fraud claim in this case. Neither, contrary to plaintiff’s counsel’s

representation at the hearing, is there an affirmative defense of consent in the case.” (Def’s Reply to

P’s Suppl. Briefing Re Motion to Compel, p. 1).

Accordingly, Plaintiff’s motion to compel with respect to the compensation of Sales

Representatives is denied.

IT IS SO ORDERED.

Dated: July 29, 2010

_________________________ EDWARD M. CHEN

United States Magistrate Judge

Case 3:08-cv-05198-EMC Document 224 Filed 07/29/10 Page 2 of 2