Filed: Dec. 21, 2015
Latest Update: Dec. 21, 2015
Summary: PRETRIAL ORDER NO. 3 RE: DISCOVERY DESIGNATIONS IN DISPUTE Dkt. No. 304 YVONNE GONZALEZ ROGERS , District Judge . Plaintiffs Charles Brewer, Jessica Bruns, Michael Mitchell, Michael Murphy, and Wayne Neal ("Named Plaintiffs"), on behalf of themselves and all others similarly situated (collectively, "Plaintiffs") and Defendant General Nutrition Corporation ("Defendant" or "GNC"), pursuant to this Court's Pretrial Instructions in Civil Cases Standing Order, have submitted their disputed disco
Summary: PRETRIAL ORDER NO. 3 RE: DISCOVERY DESIGNATIONS IN DISPUTE Dkt. No. 304 YVONNE GONZALEZ ROGERS , District Judge . Plaintiffs Charles Brewer, Jessica Bruns, Michael Mitchell, Michael Murphy, and Wayne Neal ("Named Plaintiffs"), on behalf of themselves and all others similarly situated (collectively, "Plaintiffs") and Defendant General Nutrition Corporation ("Defendant" or "GNC"), pursuant to this Court's Pretrial Instructions in Civil Cases Standing Order, have submitted their disputed discov..
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PRETRIAL ORDER NO. 3 RE: DISCOVERY DESIGNATIONS IN DISPUTE Dkt. No. 304
YVONNE GONZALEZ ROGERS, District Judge.
Plaintiffs Charles Brewer, Jessica Bruns, Michael Mitchell, Michael Murphy, and Wayne Neal ("Named Plaintiffs"), on behalf of themselves and all others similarly situated (collectively, "Plaintiffs") and Defendant General Nutrition Corporation ("Defendant" or "GNC"), pursuant to this Court's Pretrial Instructions in Civil Cases Standing Order, have submitted their disputed discovery excerpts for decision by the Court. The Court having carefully considered the matters at issue, and for good cause show, ORDERS as follows:
As a general matter, where the Court has indicated that additional information is needed in order for it to rule, such additional designation, exhibit, or other information shall be submitted to the Court no later than JANUARY 8, 2016.
Further, where Defendant has offered designations of testimony given by absent class members, either in the present litigation or in the Abad and Naranja actions, the Court finds that Defendant has not demonstrated that such persons should be treated as "parties" for purposes of Federal Rule of Evidence 801(d)(2)(A), admissions of a party-opponent. Absent class members are considered "parties for some purposes and not for others." Devlin v. Scardelletti, 536 U.S. 1, 10 (2002). In order for an absent class member to be treated as a party, or party-representative, for purposes of FRE 801, there must be "some mechanism to ensure that he or she will represent the interests of the class." Pierce v. County of Orange, 526 F.3d 1190, 1202 (9th Cir. 2008). Consistent with Pierce, in order for Defendant to introduce absent class member testimony under Rule 801(d)(2)(A)'s "party-opponent" exception, Plaintiffs would have had to disclose these persons as individuals they expected to testify. Plaintiffs have not so identified these individuals. That Plaintiffs' supplemental disclosures under Rule 26 generally identified persons who had testified in the other litigation as "likely to have discoverable information . . . that the disclosing party may use to support its claims or defenses" does not, standing alone, meet the prerequisite set forth in Pierce for finding all such persons to be "parties" here.
Further, GNC has not made a showing that these persons are unavailable, i.e. that GNC attempted but was unable to procure their attendance by process or other reasonable means, and that plaintiffs in the earlier litigation "had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination" compared to Plaintiffs here. FRE 804(b)(1). As Plaintiffs note, Abad was an individual lawsuit and Naranjo involved different class members and a different time period than the instant litigation.
Thus, the Court sustains Plaintiffs' objections to GNC's discovery designations for testimony obtained in this case and in the Abad and Naranjo cases in the absence of a further proffer establishing their admissibility under some hearsay exception other than FRE 801(d)(2)(A). Should Defendant wish to make some additional proffer with respect to the affected designations, it shall file such proffer no later than JANUARY 8, 2016.
Set forth below are the Court's rulings on the objections to specific designations:
PLAINTIFFS' LIST OF DISCOVERY EXCERPTS
Designation
No. Form of Excerpt in Dispute Court's Ruling
P. 1 Thomas Scott Deposition p. 7:5-10:3 OVERRULED.
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv-03587)
P. 2 Jeffrey Emerick Deposition p. 17:2-17:10 OVERRULED.
Transcript (Brewer et al., v. ----------------- --------------------
GNC, Inc. Case No. 11-cv-03587) p. 17:12-18 OVERRULED.
----------------- -------------------
p. 7:5-10:3 OVERRULED, except that ruling is
RESERVED as to 9:1-10:3 which
requires additional context for the
Court to rule.
P. 3 Ron Hallock Deposition None. —
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv-03587)
P. 4 James Inlow Deposition p. 12:19-21 RESERVED — Requires additional
Transcript (Brewer et al., v. showing of foundation
GNC, Inc. Case No. 11-cv-03587) --------------- --------------------
p. 69:3-71:8 OVERRULED.
--------------- --------------------
p. 34:6-17 RESERVED — Requires additional
showing of foundation
--------------- --------------------
p. 54:1-5 OVERRULED.
------------------- --------------------
P. 5 Paul Katz Deposition p. 55:4-13 RESERVED. Court requires copy of
Transcript (Brewer et al., v. exhibit referenced.
GNC, Inc. Case No. 11-cv-03587)
P. 6 Shannen Sternerson p. 102:13-104:1 SUSTAINED as to 102:24-103:14 only.
Deposition Transcript (Brewer Otherwise OVERRULED.
et al., v. GNC, Inc. Case No. --------------- ---------------
11-cv-03587) p. 97:21-98:8 OVERRULED.
P. 7 Lona Toffolo Deposition p. 69:3-9 OVERRULED as to all.
Transcript (Brewer et al., v. p. 9:11-17 &
GNC, Inc. Case No. 11-cv-03587) 10:21-11:5
p. 11:6-25 &
16:4-17:5
P. 8 Kenneth Wunschel Deposition p. 112:15-113:21 OVERRULED.
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv-03587) --------------- --------------
p. 247:14-248:1 OVERRULED.
P. 9 Anthony Masztak Deposition p. 132:3-8 OVERRULED.
Transcript (Brewer et al., v.
GNC, Inc. Case No. 11-cv-03587)
P. 10 GNC's First Supplemental No. 26 OVERRULED as to all, and objections
Responses to Plaintiffs' No. 27 therein are likewise overruled.
Special Interrogatories, Set No. 28
Three No. 29
No. 34
P. 11 GNC's Responses to Plaintiffs' No. 5 OVERRULED as to all.
Request for Admissions, Set No. 6
Two No. 12
No. 13
P. 12 GNC's Responses to Plaintiffs' No. 48 SUSTAINED.
Special Interrogatories, Set ----------- --------------Five
No. 49 SUSTAINED.
----------- --------------No.
50 SUSTAINED.
----------- --------------No.
51 SUSTAINED.
----------- --------------No.
65 As to 65, 66, 72, and 73, RESERVED.
No. 66 Evidence of remedial action would be
No. 72 inadmissible.
No. 73
P. 13 GNC's Responses to Plaintiffs' No. 43 RESERVED as to all.
Special Interrogatories, Set No. 46
Four No. 47
P. 14 GNC's Responses to Plaintiffs' No. 33 RESERVED as to all.
Special Interrogatories, Set No. 36
Three No. 37
P. 15 GNC's Responses to Plaintiffs' No. 1 OVERRULED as to all.
Request for Admissions, Set No. 2
One
DEFENTIFFS' LIST OF DISCOVERY EXCERPTS
Designation
No. Form of Excerpt in Dispute Court's Ruling
D.1 Charles Brewer Deposition p. 29:6-25 OVERRULED as to all, and
Transcript (Brewer et al., v. p.30:15-17 objections therein are likewise
GNC, Inc. Case No. 11-cv-03587) p. 31:24-33:3 overruled.
p. 50:22-51:4
p. 97:17-98:1
p. 102:8-103:10
D.2 Wayne Neal Deposition p. 12:9-10; 19-20 OVERRULED as to all, and
Transcript (Brewer et al., v. p. 23:3-24:5 objections therein are likewise
GNC, Inc. Case No. 11-cv-03587) overruled.
D.3 Michael Mitchell Deposition p. 11:24-12:2 OVERRULED, and objections
Transcript (Brewer et al., v. therein are likewise overruled.
GNC, Inc. Case No. 11-cv-03587) -------------- --------------
p. 22:10-23:1 OVERRULED, and objections
therein are likewise overruled.
------------- -----------------
59:20-60:11 RESERVED.
D.4 Matthew Testa Deposition p. 4:10-5:4 SUSTAINED as to all. As stated
Transcript (Brewer et al., v. p. 5:5-22 above, no showing that individual
GNC, Inc. Case No. 11-cv-03587) p. 13:1-14:15 is a party.
p. 26:4-13
p. 45:6-46:15
p. 49:1-4
D.5 Richard Doan Deposition p. 5:7-6:20 SUSTAINED as to all. As stated
Transcript (Brewer et al., v. p. 18:3-19-16 above, no showing that individual
GNC, Inc. Case No. 11-cv-03587) p. 23:10-19 is a party.
p. 28:24-29:9
p. 29:13-30:16
p. 31:8-32:2
p. 32:25-33:14
D.6 Naim Deghany Deposition p. 8:10-24 SUSTAINED as to all. As stated
Transcript (Brewer et al., v. p. 56:7-58:8 above, no showing that individual
GNC, Inc. Case No. 11-cv-03587) p. 58:16-60:12 is a party.
D.7 Leandro Fusco Deposition p. 5:14-17 SUSTAINED as to all. As stated
Transcript (Brewer et al., v. p. 6:20-21 above, no showing that individual
GNC, Inc. Case No. 11-cv-03587) p. 7:2-3 is a party.
p. 30:22-31:6
p. 31:22-25
p. 41:14-20
D.8 Jessica Bruns Deposition p. 9:22-10:1 OVERRULED as to all.
Transcript (Brewer et al., v. p. 10:22-25
GNC, Inc. Case No. 11-cv-03587) p. 14:9-15:8
p. 32:14-22
D.9 Christopher Gregory p. 4:10-5:2 SUSTAINED as to all. As stated
Deposition Transcript (Brewer p. 35:13-16 above, no showing that individual
et al., v. GNC, Inc. Case No. p. 35:18-25 is a party.
11-cv-03587)
D.10 Houman Nayebi Deposition p. 6:3-21 SUSTAINED as to all. As stated
Transcript (Brewer et al., v. p. 5:4-18 above, no showing that individual
GNC, Inc. Case No. 11-cv-03587 p. 35: 23-36:6 is a party.
D.11 Anthony Lozano Deposition p. 11:13-21 SUSTAINED as to all. As stated
Transcript (Naranjo et al. v. p. 14:2-12 above, no showing that individual
GNC, Case no. RG12619626) p. 88:17-89:24 is a party.
p. 92:13-92:22
p.93:14-94:9
D.12 Cassandra Draeger Deposition p. 23:24-25:13 SUSTAINED as to all. As stated
Transcript (Naranjo et al. v. p. 36:1-37:3 above, no showing that individual
GNC, Case no. RG12619626) p. 45:6-22 is a party.
p. 63:24-64:12
p. 64:21-65:12
p. 91:6-10
p. 93:9-94:8
D.13 Stephen Hermanson p. 11:16-13:18 SUSTAINED as to all. As stated
Deposition Transcript p. 22:2-4 above, no showing that individual
(Naranjo et al. v. GNC, Case p. 22:24-25:4 is a party.
no. RG12619626) p. 33:11-25
p. 71:3-20
D.14 Christopher Schafer p. 8:12-9:21 SUSTAINED as to all. As stated
Deposition Transcript p. 20:21-21:13 above, no showing that individual
(Naranjo et al. v. GNC, Case p. 21:24-22:5 is a party.
no. RG12619626) p. 23:17-25:19
p. 65:6-67:2
p. 67:10-68:2
D.15 Grant Thomas Deposition p. 11:7-12:6 SUSTAINED as to all. As stated
Transcript (Naranjo et al. v. p. 45:3-24 above, no showing that individual
GNC, Case no. RG12619626) p. 79:1-24 is a party.
p. 86:5-87:4
D.16 Viviana Armenta Deposition p. 20:7-21:25 SUSTAINED as to all. As stated
Transcript (Naranjo et al. v. p. 40:22-24 above, no showing that individual
GNC, Case no. RG12619626) p. 41:8-42:8 is a party.
D.17 Matt Cappadonna Deposition p. 8:10-9:9 SUSTAINED as to all. As stated
Transcript (Naranjo et al. v. p. 43:21-44:12 above, no showing that individual
GNC, Case no. RG12619626) p. 46:9-48:21 is a party.
p. 55:13-56:2
D.18 Perelandra Harris Deposition p. 16:5-8 SUSTAINED as to all. As stated
Transcript (Naranjo et al. v. p. 31:9-21 above, no showing that individual
GNC, Case no. RG12619626) p. 62:18-64:24 is a party.
p. 65:5-23
p. 68:5-23
p. 88:2-89-8
D.19 Ben Ramey Deposition p.12:15-13-24 SUSTAINED as to all. As stated
Transcript (Naranjo et al. v. p.16:20-17:16 above, no showing that individual
GNC, Case no. RG12619626) p. 35: 14-24 is a party.
p. 118:3-118-17
D.20 Misty Fair Deposition p. 16:20-18:23 SUSTAINED as to all. As stated
Transcript (Naranjo et al. v. p. 38:8-18 above, no showing that individual
GNC, Case no. RG12619626) p. 61:24-62:19 is a party.
p. 75:10-77:2
D.21 6/12/13 Transcript, Vol. 1 — p. 40:18-21 SUSTAINED as to all. As stated
Abad (Abad) p. 57:12-58:11 above, no showing that individual
p. 59:3-21 is a party.
p. 61:25-62:5
p. 70:19-71:3
p. 71:10-13
p. 79:22-80:6
D.22 6/13/13 Transcript, Vol. 1 — p. 5:24-6:6 SUSTAINED as to all. As stated
Abramson (Abad) p. 6:19-7:1 above, no showing that individual
p. 26:13-19 is a party.
p. 27:15-17
p. 31:1-25
p. 33:19-34:17
p. 35:8-36:11
p. 36:22-37:10
p. 42:17-44:6
D.23 6/12/13 Transcript, Vol. 1 — p. 69:23-72:22 SUSTAINED as to all. As stated
Ansine (Abad) p. 85:10-86:14 above, no showing that individual
p. 87:6-88:2 is a party.
D.24 6/12/13 Transcript, Vol. 2 — p. 7:7-15 SUSTAINED as to all. As stated
Ansine (Abad) p. 14:25-16:4 above, no showing that individual
p. 26:12-25 is a party.
D.25 Robino Abad Deposition p. 7:13-17 SUSTAINED as to all. As stated
Transcript (Abad et al., v. p. 7:25-9:15 above, no showing that individual
GNC, Inc. Case No. 8:09-cv-00190) p. 19:3-8 is a party.
p. 29:16-31:1
D.26 Isaac Bailey Deposition p. 6:22-23 SUSTAINED as to all. As stated
Exhibits (Abad et al., v. GNC, p. 8:19-11:6 above, no showing that individual
Inc. Case No. 8:09-cv-00190) p. 19:3-11 is a party.
p. 21:6-7
p. 22:20-24
p. 24:5-13
p. 29:4-16
p. 33:9-34:11
p. 34:25-35:19
p. 38:12-16
p. 41:24-42:4
p. 51:4-52:20
p. 55:21-24
p. 59:12-23
p. 62:5-9
p. 62:21-63:13
D.27 Ashley Abramson Deposition p. 6:11-12; 19-24 SUSTAINED as to all. As stated
Transcript (Abad et al., v. p. 10:13-11:2 above, no showing that individual
GNC, Inc. Case No. 8:09-cv-00190) p. 11:19-24 is a party.
p. 13:8-14:19
p. 15:12-16:9
p. 17:6-19
p. 21:21-23:16
p. 25:4-13
p. 31:9-35:18
p. 41:25-42:10
p. 43-8:16
p. 44:9-46:12
p. 54:17-56:9
p. 56:19-58:23
p. 64:15-65:11
p. 66:17-67:12
p. 68:8-70:13
D.28 Greta Ansine Deposition p. 4:6-7 SUSTAINED as to all. As stated
Transcript (Abad et al., v. p. 9:12-10:1 above, no showing that individual
GNC, Inc. Case No. 8:09-cv-00190) p. 10:6-12:17 is a party.
p. 17:19-18:15
p. 40:3-15
p. 45:3-46:4
p. 47:20-24
p. 48:21-49:16
p. 51:19-52:4
p. 52:10-16
p. 53:7-9
p. 56:13-57:11
p. 58:9-14
p. 59:4-12
p. 62:7-9
p. 68:1-69:1
p. 75:12-77:1
p. 79:1-25
p. 80:9-17
IT IS SO ORDERED.
