Al Otro Lado, Inc. v. McAleenan

Opinion

1 2

8 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA 9

10 Al Otro Lado, Inc., et al., Case No.: 17-cv-02366-BAS-KSC 11 Plaintiffs, 12 ORDER GRANTING JOINT v. MOTIONFOR ENTRY OF 13 STIPULATED DEPOSITION Chad F. Wolf,1 et al., PROTOCOL FOR THE 14 DEPOSITION OF RULE 30(B)(6)

Defendants. REPRESENTATIVE MICHAEL 15 HUMPHRIES 16 18 Pursuant to Fed. R. Civ. P. 1 and 29, and in response to the Court’s comments 19 during the March 27, 2020 telephonic joint status conference, the parties have met, 20 conferred, and agreed upon the following deposition protocol for the initial remote 21 deposition to take place on April 29, 2020 (subject to schedule modifications, if 22 necessary, agreed upon by counsel for both parties). The parties submit that, given 23 the ongoing COVID-19 pandemic, good cause exists for entry of the stipulated 24 deposition protocol outlined in this unopposed motion and proposed order. See, e.g., 25 Sinceno v. Riverside Church in the City of N.Y., 2020 U.S. Dist. LEXIS 47859, at *1 26 27 1 Acting Secretary Wolf is automatically substituted for former Acting Secretary McAleenan pursuant to Fed. R. Civ. P. 25(d). 28 JOINT MOTION AND PROPOSED ORDER RE 1 (S.D.N.Y. Mar. 18, 2020) (approving all depositions being taken by “telephone, 2 videoconference, or other remote means” in view of the COVID-19 pandemic); see 3 also Pearlstein v. Blackberry Ltd., 2020 U.S. Dist. LEXIS 47032, at *2-3 (S.D.N.Y.

4 Mar. 16, 2020) (same); Thomas v. Wallace, Rush, Schmidt, Inc., 2020 U.S. Dist.

5 LEXIS 46925, at *6 (M.D. La. Mar. 18, 2020) (same). Cf. Automatic Equip. Mfg.

6 Co. v. Danko Mfg., 2020 U.S. Dist. LEXIS 47350, at *6 (D. Neb. Mar. 12, 2020)

7 (permitting parties to hold Markman hearing by videoconference); ResCap 8 Liquidating Tr. v. Primary Residential Mortg., 2020 U.S. U.S. Dist. LEXIS 44607, 9 at *3 (D. Minn. Mar. 13, 2020) (COVID-19 “establish[ed] good cause for remote 10 testimony.”). If the parties’ initial remote deposition goes smoothly, they anticipate 11 asking the Court to enter a similar order governing the remaining depositions to be 12 taken in the case.

13 IT IS HEREBY ORDERED:

14 I. DEFINITIONS 15 A. “Attending counsel” shall mean any legal counsel for a party that is 16 attending the deposition of a non-party.

17 B. “Court reporter” shall mean an individual retained by the deposing 18 party to transcribe the oral testimony offered at a deposition in the litigation and who 19 is authorized to administer oaths either by federal law or by the law of the place of 20 examination.

21 C. “Deposition” shall mean any deposition upon oral examination taken 22 pursuant to Fed. R. Civ. P. 27, Fed. R. Civ. P. 30, Fed. R. Civ. P. 45, or any court 23 order.

24 D. “Deposing counsel” shall mean the legal counsel of the party or parties 25 noticing and taking a deposition in the litigation.

26 E. “Defending counsel” shall mean the legal counsel (including counsel 27 of record and agency/in-house counsel) of the party, parties, non-party, or non- 28 parties defending a deposition in the litigation. 1 F. “Document” carries its broadest meaning consistent with Fed. R. Civ. 2 P. 34 and includes both ESI and Hard Copy Document.

3 G. “Electronically Stored Information” or “ESI” carries its broadest 4 possible meaning consistent with Fed. R. Civ. P. 34(a) and Fed. R. Evid. 1001.

5 H. “Exhibit” shall mean any Document or Electronically Stored 6 Information that is marked as an exhibit during a Deposition.

7 I. “Hard Copy Document” means any document or thing discoverable 8 under Fed. R. Civ. P. 26(b)(l) and Fed. R. Civ. P. 34 that cannot be characterized as 9 ESI.

10 J. “Litigation” shall mean the case captioned above.

11 K. “Parties” shall mean Plaintiffs, Defendants, and their current and 12 former employees, executives, officers, and directors.

13 L. “Non-parties” shall mean all natural or legal persons that are not Parties 14 from whom a Party is seeking testimony at a deposition in the litigation.

15 II. GENERAL PRINCIPLES AND DURATION OF THIS ORDER 16 A. This Order is intended to allow the parties to continue deposition 17 discovery in light of the ongoing COVID-19 pandemic, with the goal of completing 18 discovery by the current June 19, 2020 fact discovery deadline.

19 B. The Court and counsel recognize that the COVID-19 pandemic requires 20 the parties to be flexible in completing deposition discovery in this litigation. The 21 parties are encouraged to take steps that will enable deponents, deposing counsel, 22 defending counsel, and attending counsel to complete depositions in a manner that 23 also takes into account the needs of dependent care and personal health care. In light 24 of the developing public health situation, the parties and non-parties shall meet, 25 confer, and cooperate with one another regarding the scheduling of depositions and 26 the procedures for taking depositions. In doing so, the parties and non-parties shall 27 make all reasonable efforts to accommodate reasonable requests for continuances of 28 depositions due to illnesses or dependent care needs of attorneys, deponents, or the 1 court reporter. Such continuances may include taking previously-scheduled 2 depositions after the fact discovery deadline, if necessary.

3 C. Deposing counsel and defending counsel agree to notice depositions 4 sufficiently early to allow defending counsel time to prepare the deponent to testify 5 remotely and agree to accommodate reasonable scheduling requests. Fourteen days’

6 notice shall typically be considered reasonable notice of the deposition.

7 D. Unless otherwise stated, this Order is not intended to alter, expand, or 8 limit the applicable Federal Rules of Civil Procedure, Federal Rules of Evidence, 9 and/or court orders.

10 III. PROCEDURES FOR TAKING THE INITIAL DEPOSITION 11 A. Pursuant to Fed. R. Civ. P. 29(a) and Fed. R. Civ. P. 30(b)(4), the 12 30(b)(6) deposition of Michael Humphries shall be taken by remote means that 13 comply with local, state and federal guidance, regulations, and orders concerning 14 social distancing and public health. “Remote means” shall include (a) telephone, (b)

15 video-conferencing platforms that allow for the deponent, attending counsel, 16 deposing counsel, defending counsel, court reporter, and videographer to participate 17 in a deposition without attending the deposition in-person, and (c) any other means 18 that the deposing counsel, defending counsel, and attending counsel agree to.

19 B. Pursuant to Fed. R. Civ. P. 30(f)(2), deposing counsel shall be 20 responsible for ensuring that any exhibits that they wish to mark and use at the 21 deposition can be shown to the witness in a manner that enables the witness to review 22 the exhibits during the course of the deposition. Such means of marking and using 23 exhibits for the initial deposition shall include (a) sending via Fed Ex, U.S. Postal 24 Service, or UPS pre-marked exhibits to the deponent, defending counsel, attending 25 counsel, and the court reporter in advance of the deposition; (b) emailing pre-marked 26 exhibits to the deponent, defending counsel, attending counsel, and the court reporter 27 in advance of the deposition, (c) using a video conferencing platform that enables 28 deposing counsel to share exhibits with the deponent, court reporter, defending 1 counsel, and attending counsel, and (d) any other means that the deposing counsel, 2 defending counsel, and attending counsel agree to. The parties reserve the right to 3 request exhibits be emailed sufficiently in advance of the deposition to enable the 4 deponent or counsel to print them out for use during the deposition. If the remote 5 means utilized does not permit for the court reporter to mark exhibits remotely, 6 deposing counsel shall be responsible for pre-marking exhibits.

7 C. As used in Fed. R. Civ. P. 28(a)(1)(A), the “place of examination” is 8 the location of the deponent. A court reporter may administer an oath concerning a 9 deposition via remote means.

10 D. The Fed. R. Civ. P. 30(b)(6) deposition of Michael Humphries on 11 30(b)(6) Topics 2 and 15 will be limited to 4 hours on the record, unless Plaintiffs 12 elect to notice Mr. Humphries as a 30(b)(1) witness.

13 E. Deposing counsel and defending counsel shall meet, confer, and 14 cooperate to ensure that the deponent has technology sufficient to attend a deposition 15 via remote means. If necessary, this shall include arranging for the deponent to 16 participate in a “test run” of the deposition video conferencing software being 17 utilized at the expense of the deposing party.

18 F. Deposing counsel is responsible for ensuring that the remote means 19 utilized for a deposition allow for the court reporter to accurately record the 20 deponent’s testimony. Either deposing counsel or defending counsel may elect to 21 have a technical specialist attend a deposition taken by remote means to ensure that 22 technical issues are dealt with in a timely manner.

23 G. Deposing counsel shall bear the cost of ensuring that the deponent has 24 the proper software, hardware and other relevant equipment to attend a deposition 25 by video conference.

26 H. Should technical issues prevent the court reporter from reliably hearing 27 or transcribing the testimony at any deposition taken pursuant to this order and such 28 technical issue cannot be remedied in a timely manner, deposing counsel, defending 1 counsel, and attending counsel shall meet, confer, and cooperate with one another 2 regarding the rescheduling of the deposition.

3 I. In addition to recording deposition testimony by stenographic means, 4 the deposing party may record the deposition via video.

5 J. All objections to the use and admissibility of the transcript or video of 6 a deposition taken pursuant to this order based on the fact that the deposition was 7 taken by remote means are deemed waived.

8 K. Deposing counsel and defending counsel shall be responsible for 9 ensuring that they have a means of communicating with co-counsel or the deponent, 10 as the case may be, during breaks in the deposition; the parties agree not to oppose 11 reasonable accommodations to allow such conferences during breaks, as well as 12 communications between co-counsel during the deposition.

13 L. All persons attending depositions taken by remote means are reminded 14 that the typical rules of professionalism and etiquette during depositions still apply.

15 All persons attending depositions taken pursuant to this order who do not have an 16 immediate need to speak shall ensure that their telephone or video conference lines 17 are muted. In addition, all persons attending depositions taken pursuant to this order 18 shall ensure that they can do so in a space that is relatively free from distractions that 19 would inhibit the course of the deposition.

20 IV. SCHEDULING OF DEPOSITION 21 A. The parties shall cooperate in the scheduling of an initial deposition of 22 30(b)(6) representative Michael Humphries, which will take place on April 29, 2020 23 (subject to schedule modifications, if necessary, that are agreed upon by counsel for 24 both parties). This deposition shall be a trial run of the parties’ chosen video 25 conferencing platform.

26 B. After the completion of this initial deposition, the parties shall meet, 27 confer, and cooperate on the scheduling of other pending depositions and on a 28 remote deposition protocol to govern remaining depositions. 1 V. MODIFICATION 2 This order may be modified by a Stipulated Order of the Parties or by Order 3 of the Court.

5 IT IS SO ORDERED.

6 Dated April 13, 2020 7 ____________________ _________ Hon. Karen S. Crawford 8 United States Magistrate Judge