United States District Court, D. Arizona
ORDER
Dominic W. Lanza United Slates District Judge
The
deposition of Plaintiff Kim Cramton (“Cramton”)
took place on December 13, 2018. Afterward, Defendants filed
a motion asking the Court to authorize three additional hours
of deposition time. (Doc. 107.) In this motion, Defendants
didn't suggest Cramton had been evasive during her
deposition-they simply argued they hadn't been able to
cover all of the relevant topics during the seven-hour
deposition window. (Id.) In an order issued on
December 28, 2018, the Court denied Defendants' request,
concluding they hadn't demonstrated the “good
cause” necessary to justify exceeding the presumptive
seven-hour limit on depositions. (Doc. 108.)
Now
pending before the Court is Defendants' motion for
reconsideration of the December 28, 2018 order. (Doc. 136.)
Defendants' main argument is that, since January 2019,
they have come into possession of four categories of
information they should have been permitted to utilize when
questioning Cramton during her deposition. Defendants further
contend that Cramton bears the blame for the belated
disclosure of this new information. Finally, Defendants also
argue that, although they didn't mention it in their
initial request for more time, Cramton was evasive during her
deposition and that evasiveness provides additional reason to
grant reconsideration.
Cramton
opposes Defendants' request. (Doc. 157.) In a nutshell,
she disputes the suggestion that she was at fault for the
late disclosures discussed in Defendants' motion and
argues that, in any event, Defendants were free to inquire
about those topics during her deposition and made a tactical
choice not to do so. Cramton also vigorously disputes
Defendants' suggestion that she was evasive during her
deposition.
The
Court concludes that, although not all of Defendants'
arguments have merit, they have done enough to demonstrate
that “good cause” exists for authorizing three
additional hours of deposition time. Defendants'
arguments concerning Cramton's minimum wage claim are
most persuasive. In her verified MIDP response, Cramton
stated that “Defendants did not pay Cramton for any of
her employment services from December 1, 2016 until her
constructive discharge in September of 2017. Cramton
worked approximately 40 hours or more per week during this
time period for which she was not compensated.”
(Doc. 136 at 17, emphasis added.) Elsewhere in the MIDP
response, Cramton utilized this 40-hours-per-week figure when
calculating her claimed damages of $31, 376: “Unpaid
wages on Cramton's minimum wage claim in the amount of
$15, 688 . . . between January 1 and September 24, 2017,
which assumes . . . 38 weeks @ 40 hours per week/$10
per hour . . .; double that amount per A.R.S. § 23-364,
$31, 376.” (Doc. 136 at 18, emphasis added.) This was
apparently the only information Defendants had on this issue
at the time they deposed Cramton in December 2018. Yet a few
months after her deposition, Cramton authored a declaration
claiming that “[i]n 2017, I regularly worked 60-80
hour weeks.” (Doc. 136 at 22 ¶ 25, emphasis
added.) Cramton then submitted this declaration in support of
her motion for summary judgment, which argues she is entitled
to $54, 499 on her minimum wage claim-not $31, 376 as stated
in her MIDP response- and calculates this figure using a
multiplier of “at least 60 hours per week.” (Doc.
142 at 13 & n.12.)
These
circumstances provide good cause to reopen Cramton's
deposition. First, Cramton utterly fails to explain (let
alone justify) why her testimony on this key point diverged
so dramatically from the time she verified her MIDP response
to the time she completed her post-deposition declaration. In
her response brief, she contends her statements on this topic
aren't really in conflict because the MIDP response said
she worked 40 hours “or more” each week and 60-80
hours is more than 40 hours. (Doc. 157 at 4.) This argument
is specious. The MIDP response stated she worked
“approximately 40 hours or more.” The word
“approximately” would be drained of all meaning
if a party were allowed to say that “approximately 40
hours” is the same thing as 60-80 hours. Moreover,
Cramton doesn't address the fact that she also used this
40-hour figure in the damage-calculation section of the MIDP
response. Second, the belated disclosure of this information
was prejudicial to Defendants' formulation of their
deposition strategy. Defense counsel had no reason to
question Cramton during her deposition about the number of
hours she worked because this topic seemed to be
straightforward and non-controversial (a 40-hour workweek is
standard). Thus, counsel could have, for tactical reasons,
chosen to focus on other topics during the limited seven-hour
deposition block. The new claims contained in Cramton's
post-deposition declaration, however, are outside the norm
and also may have the effect of substantially increasing
Defendants' exposure- Cramton's own calculations
suggest that her switch from a 40-hour week to a 60-hour week
increased the value of her minimum wage claim by over $23,
000 (from $31, 376 to $54, 499). Accordingly, Defendants
should have an opportunity to question Cramton about her new
claims.
Defendants'
arguments concerning the phone logs also support reopening
the deposition. First, Cramton's argument that
“Defendants did not issue a discovery request for those
records and waited until 2 days before Ms. Cramton's
deposition to request them” (Doc. 157 at 5) is
unpersuasive. Defendants' RFP Nos. 14 and 17 requested
all “documents that relate to any communication”
between Cramton and Defendants' employees-a formulation
that would encompass call logs documenting phone calls
between Cramton and Farrell. Additionally, there's a
strong argument these call logs should have been produced
pursuant to the MIDP without the need for a discovery
request. Thus, Defendants can't be faulted for failing to
obtain the call logs before they deposed Cramton in December
2018. Second, this is another instance where Defendants can
persuasively show their deposition strategy would have been
different had the call logs been produced before the
deposition. The substance of the Cramton-Farrell calls is
potentially important in this case and Defendants should have
been able to depose Crampton about the calls with the call
logs in hand.
Defendants'
arguments concerning the Mavros deposition are less
compelling. Defendants have long known that the substance of
the Cramton-Mavros call was a potentially important issue in
this case. Indeed, Cramton provided an interrogatory response
in September 2018 recounting her version of this
conversation. (Doc. 157 at 4.) Thus, Defendants were free to
question Cramton about this conversation during her
deposition in December 2018. To be sure, defense
counsel's strategy may have been different had counsel
already deposed Mavros (whose deposition didn't occur
until January 2019), because Mavros's testimony about the
phone call differed in potentially significant respects from
Cramton's interrogatory response describing the phone
call. However, Cramton isn't to blame for the late timing
of Mavros's deposition. Accordingly, if this were the
only basis on which Defendants were seeking reconsideration,
it's unlikely the Court would find that it qualifies as
“good cause” for reopening Cramton's
deposition. It would be chaos if a party could seek to
re-depose all of the witnesses who've already been
deposed in a case whenever a later deponent provides new,
potentially helpful testimony.
Defendants'
arguments concerning the iPhone declaration are unavailing
for similar reasons. Defendants have not persuaded the Court
that Cramton was at fault for the allegedly late disclosure
of information on this topic because they haven't
identified any discovery requests that encompassed it.
Finally,
Defendants' arguments about Cramton's alleged
evasiveness during the original deposition also miss the
mark. It must be remembered that Defendants are seeking
reconsideration of the denial of their earlier request for
additional deposition time. Motions for reconsideration are
generally disfavored and should be denied “absent a
showing of manifest error or a showing of new facts or legal
authority that could not have been brought to [the
Court's] attention earlier with reasonable
diligence.” LRCiv. 7.2(g). Put another way, a motion
for reconsideration “may not be used to raise
arguments or present evidence for the first time when they
could reasonably have been raised earlier in the
litigation.” Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Here,
Defendants acknowledge they could have raised Cramton's
alleged evasiveness in their original request for more time
but “mistakenly decided not to raise this argument in
favor of arguments based on the size and complexity of the
case.” (Doc. 136 at 3.) This concession precludes any
request for reconsideration.
Accordingly,
IT IS ORDERED that:
(1)
Defendants' motion for reconsideration (Doc. 136) is
granted;
(2)
Defendants are authorized to depose Cramton for an additional
three hours, by May 31, 2019; and
(3) The
additional deposition need not be limited to the topics of
the minimum wage claim and the Cramton-Farrell calls and may
also encompass the topics of the ...