Nuvasive, Inc. v. Alphatec Holdings, Inc. ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NUVASIVE, INC., Case No.: 18-cv-0347-CAB-MDD 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. EX PARTE MOTION FOR ADDITIONAL DEPOSITION TIME 14 ALPHATEC HOLDINGS, INC., and ALPHATEC SPINE, INC., 15 [ECF NO. 211] Defendants. 16 17 Before the Court is Plaintiff’s Motion for additional deposition time, 18 filed ex parte on December 3, 2019. (ECF No. 211). Defendants responded in 19 opposition on December 17, 2019. (ECF No. 237). Discovery is set to close in 20 this case on December 20, 2019. (ECF No. 183). 21 LEGAL STANDARD 22 Rule 30, Fed. R. Civ. P., provides for a party to obtain up to ten 23 depositions without leave of court. Absent stipulation of the parties, leave of 24 court is required to take more than ten depositions. Under Rule 30(a)(2), the 25 court must grant leave for a party to take a deposition beyond ten “to the 26 extent consistent with Rule 26(b)(1) and (2).” Fed. R. Civ. P. 30(a)(2)(A)(i). 1 The Federal Rules of Civil Procedure authorize parties to obtain 2 discovery of “any nonprivileged matter that is relevant to any party’s claim or 3 defense and proportional to the needs of the case....” Fed. R. Civ. P. 26(b)(1). 4 “Information within the scope of discovery need not be admissible in evidence 5 to be discoverable.” Id. District courts have broad discretion to limit 6 discovery where the discovery sought is “unreasonably cumulative or 7 duplicative, or can be obtained from some other source that is more 8 convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C). 9 A party seeking to exceed the presumptive limit of ten depositions bears 10 the burden of making a “particularized showing” of the need for additional 11 depositions. See Jordan v. Wonderful Citrus Packing LLC, No. 1:18-cv- 12 00401-AWI-SAB, 2019 WL 176264 *2 (E. D. Cal. Jan. 11, 2019)(collecting 13 cases including Kaseberg v. Conaco, LLC, No. 15-cv-1637-JLS-DHB, 2016 WL 14 8729927 *3 (S. D. Cal. Aug. 19, 2016) from this District). 15 Under Rule 26(b)(2)(C), courts have found it proper to deny additional 16 depositions where they would be cumulative, without proper purpose, e.g., 17 there is no evidence they would reveal anything other than what a party had 18 already obtained, the party had ample opportunity to obtain the information 19 by discovery in the action, or they would create an unreasonable burden or 20 expense. Kaseberg, 2016 WL 8729927 *3. Parties should ordinarily exhaust 21 their allowed number of depositions before making a request for additional 22 depositions. Id. 23 DISCUSSION 24 Discovery opened on April 4, 2018, with the conclusion of the parties’ 25 conference under Rule 26(f). (ECF No. 68). Discovery continued for over nine 26 months until the case was stayed on February 6, 2019. (ECF No. 156). The 1 stay, discovery was authorized for an additional four months, until December 2 20, 2019. (ECF No. 183). 3 Plaintiff NuVasive seeks permission to obtain up to five additional 4 depositions, beyond the ten allowed under Rule 30. (ECF No. 211 at 5).1 5 Plaintiff reports that as of the date of the motion, December 11, 2019, it had 6 taken but four of the ten authorized depositions and had noticed five more, 7 for a total of nine depositions. (Id. at 10). Plaintiff expressed its intention to 8 obtain an additional deposition of Defendants under Rule 30(b)(6), for its 9 tenth deposition. (Id. at 10-11). Plaintiff identifies seven additional persons 10 that it is “considering” deposing many of whom are third-parties. (Id. at 11- 11 12). Obtaining discovery from third-parties poses an additional obstacle in 12 that the party seeking the discovery must “take reasonable steps to avoid 13 imposing undue burden or expense on a person subject to the subpoena.” 14 Rule 45(d)(1), Fed. R. Civ. P. For its eighth “person,” Plaintiff identifies 15 “additional current or former surgeons who have the Accused Products….” 16 (ECF No. 211 at 12). 17 The Court has reviewed the list of prospective deponents and the 18 reasons Plaintiff seeks their testimony. Plaintiff neither avers that the 19 requested testimony would not be cumulative or duplicative, nor does 20 Plaintiff address at all the “particularized need” requirement established 21 firmly in case law. The Court agrees with Defendant that Plaintiff has failed 22 to meet its burden to obtain more than the ten authorized depositions. 23 // 24 // 25 26 1 The Court will refer to page numbers supplied by CM/ECF rather than original 1 CONCLUSION 2 Plaintiff's Motion for Additional Deposition Time is DENIED. 3 IT IS SO ORDERED: Dated: December 18, 2019 Mitel [> Hon. Mitchell D. Dembin 6 United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27