United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
Secretary of Labor (“the Secretary”) alleges
Defendants Austin Electric Services LLC and Toby Thomas,
Austin Electric's president (collectively,
“Defendants”), failed to pay employees overtime
compensation and to keep employee records, in violation of
the Fair Labor Standards Act (“FLSA”). Discovery
initially closed in October 2017, but limited discovery
reopened for 15 days on October 15, 2018. Defendants now seek
to re-depose two Department of Labor (“DOL”)
investigators, whom Defendants initially deposed in September
2017. (Doc. 217.) For the foregoing reasons, Defendants'
request will be granted.
Secretary alleges Defendants violated the FLSA by failing to
pay employees overtime compensation and failing to keep
employee records. The case proceeded to discovery, which,
except as discussed below, ended in October 2017. In
September 2017, Defendants deposed DOL investigators Mitch
Wood and Nicholas Fiorello. Approximately six months after
the close of discovery, in April 2018, the Court allowed the
Secretary to add 99 current or former employees to the
Complaint. (Doc. 106.)
to this Court's Order, discovery reopened for 15 days,
beginning on October 15, 2018, to allow Defendants to depose
the Secretary's informer trial witnesses. (Doc. 102.) On
the same day that discovery reopened, the Court allowed the
Secretary to update damages calculations-which had previously
encompassed damages only until July 2015-to include backwages
for the 99 additional individuals and for allegedly ongoing
violations. (Doc. 205.) Defendants now seek to re-depose Wood
and Fiorello on the basis of newly disclosed information.
(Doc. 217.) After meeting and conferring unsuccessfully about
this discovery dispute, the parties filed a Joint Statement
to the Court on October 30, 2018. (Doc. 217.)
must obtain leave of court in order to re-depose a witness
already deposed in the case. Fed.R.Civ.P. 30(a)(2)(A)(ii).
The Court has wide discretion to reopen depositions.
Couch v. Wan, No. CV F08-1621 LJO DLB, 2012 WL
4433470, at *3 (E.D. Cal. Sept. 24, 2012) (“The
propriety of a deponent's reopened deposition lies in the
court's discretion.”). “Good need” is
generally required to reopen a deposition. Bookhamer v.
Sunbeam Prods. Inc., No. C 09-6023 EMC (DMR), 2012 WL
5188302, at *2 (N.D. Cal. Oct. 19, 2012). Courts will not
find good need if: (i) the additional deposition is
unreasonably cumulative or the information can be obtained
from some other source that is less burdensome; (ii) the
party had ample time to obtain the information through
discovery; or (iii) the burden outweighs the likely benefit.
Id. (citing Fed.R.Civ.P. 26(b)(2)(C).
now seek to re-depose Wood and Fiorello due to newly
disclosed evidence. As DOL investigators, Wood and Fiorello
prepared damages calculations and interviewed DOL's trial
witnesses. Defendants argue that when Wood and Fiorello were
deposed in September 2017, Defendants did not know about (1)
the Secretary's updated damages calculations and (2)
information about the investigators' interactions with
certain witnesses, which Defendants recently learned from
depositions conducted during the reopening of discovery.
(Doc. 217.) The Secretary argues that re-deposing the
investigators would be cumulative because (1) the new damages
calculations use the same methodology as the old ones and (2)
Defendants have already spoken to the witnesses interviewed
by the investigators. (Doc. 217.)
Defendants have demonstrated the “good need”
required to reopen depositions. A long period of time-more
than one year-has passed since Wood and Fiorello were
deposed. In that time, several new developments have occurred
in the case: The Secretary has added 99 new employees to the
Complaint, the Secretary's damages calculations have
significantly increased to include back wages for additional
employees as well as additional years of alleged violations,
and Defendants have deposed the Secretary's trial
witnesses and learned new information about their
interactions with the Wood and Fiorello. These new
occurrences took place after the close of discovery in
October 2017, so Defendants have never had the opportunity to
depose the investigators about these topics.
the “long passage of time with new evidence” is
indicative of “good need, ” Defendants have
sufficiently demonstrated their need. Graebner v. James
River Corp., 130 F.R.D. 440, 441 (N.D. Cal. 1989). Even
if the Secretary's methodology for calculating damages
has remained the same, Defendants may wish to depose the
investigators about additional employees and/or time periods
that the Secretary now includes in the damages calculation.
In addition, Defendants correctly argue that re-deposing the
investigators would not be duplicative in light of new
information that Defendants have learned since the reopening
of discovery. Any burden to the Secretary, involving the
preparation and defense of two additional depositions, is
outweighed by Defendants' need.
IT IS ORDERED Defendants' request to
re-depose Mitch Wood and ...