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Case5:12-cv-03255-LHK Document68 Filed05/02/13 Page1 of 3
















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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION




v.

MAYALINDA BERNAL, et al,




DAVITA, INC., et al,



Plaintiffs,





Defendants.

Case No.: CV 12-3255 PSG

ORDER RE: DEPOSITIONS

(Re: Docket Nos. 66, 67)

Pursuant to the court’s suggestion at the hearing on April 30, 2013,1 the parties have

submitted letter briefs explaining their respective positions regarding the depositions of nine

putative class members who submitted declarations in support of Plaintiff Mayalinda Bernal’s

(“Bernal”) motion for class certification.2 Having considered the briefs and the arguments at the

hearing, the court determines that Defendant Davita, Inc.’s (“Davita”) is entitled to depose the

declarants.



Because the deadline for Davita to oppose the motion for certification is rapidly

approaching, the court dispenses with a lengthy explanation of the background of this dispute. At

issue here are deposition subpoenas issued by Davita to nine potential class members who


1 See Docket No. 64.
2 See Docket Nos. 66, 67.

ORDER




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Case5:12-cv-03255-LHK Document68 Filed05/02/13 Page2 of 3


submitted declarations in support of Bernal’s certification motion. Bernal previously had not

disclosed the nine declarants because, according to her, she had received their names and contact

information only in early April following the parties’ Bel-Aire notices to potential class members.

She apparently has since updated her Fed. R. Civ. P. 26(a) disclosures to include the nine

declarants.



Bernal opposes allowing Davita to depose the declarants because the subpoenas do not

comport with Fed. R. Civ. P. 45 and because depositions of absent class members prior to

certification is permitted only in limited circumstances. But the cases Bernal cites involve attempts

to depose potential class members who have not yet made any appearance in the case.3 In contrast,

the potential class members here have provided declarations in support of certification; they have

“injected themselves” into the litigation and properly may be subject to cross-examination of their

assertions.4 Nothing in either of the parties’ letters suggests that Davita is attempting to use the

depositions to harass or to take undue advantage of the declarants.5 And in fact, Bernal offered to

arrange depositions of the declarants if she could have depositions of several of Davita’s

witnesses.6



The court has not been provided with the number of depositions Davita already has taken

and so the court authorizes depositions only up to the limits set by Judge Koh. Davita may take the

depositions of the nine declarants, assuming Davita has nine depositions left under the limit. The

depositions and subpoenas issued for those depositions shall comply with the requirements under

3 See, e.g., Tierno v. Rite Aid Corp., Case No. C 05-2520 TEH, 2008 WL 2705089, at *6 (N.D. Cal.
July 8, 2008) (denying request to depose sampling of class members who were employees but were
not identified as witnesses or declarants); On the House Syndication, Inc. v. Fed. Exp. Corp., Case
No. 99-cv-1336 B(JFS), 203 F.R.D. 452, 453 (S.D. Cal. 2003) (noting that requiring potential but
absent class members to participate in discovery would require an affirmative “opt-in” action rather
than Rule 23’s “opt-out” default).
4 See Moreno v. Autozone, Inc., Case No. C-05-4432 MJJ (EMC), 2007 WL 2288165, at *1 (N.D.
Cal. Aug. 3, 2007).
5 See id.
6 See Docket No. 67 Ex. B.

ORDER




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Case5:12-cv-03255-LHK Document68 Filed05/02/13 Page3 of 3


Rules 30 and 45, including that the subpoenas issue from the court for the district where the

subpoenas will be taken,7 that the depositions be taken within 100 miles of the deponents’

residence,8 and that the deponents be properly notified.9 Bernal and her counsel apparently

represented that any contact with the declarants should go through Bernal’s counsel, and so

Bernal’s counsel shall aid Davita in complying with these requirements. The parties shall meet and

confer regarding notices to the declarants and a schedule for the depositions no later than Monday,

May 6, 2013.



As to the parties’ tangential requests regarding extending deadlines for filing papers,

increasing the number of possible depositions, and possibly striking the declarations from the

motion for certification, those issues are more properly presented to Judge Koh for resolution. This

order shall not be understood to address any issue other than whether Davita may depose the nine

declarants offered by Bernal.



IT IS SO ORDERED.

Dated:





















_________________________________
PAUL S. GREWAL
United States Magistrate Judge



7 See Fed. R. Civ. P. 45(a)(2)(B).
8 See Fed. R. Civ. P. 45(c)(3)(A)(ii).
9 See Fed. R. Civ. P. 30(b)(1).

ORDER



May 2, 2013