Case 3:18-cv-00347-CAB-MDD Document 243 Filed 12/18/19 PageID.19884 Page 1 of 4
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`NUVASIVE, INC.,
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`v.
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`ALPHATEC HOLDINGS, INC., and
`ALPHATEC SPINE, INC.,
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` Case No.: 18-cv-0347-CAB-MDD
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`Plaintiff,
`ORDER DENYING PLAINTIFF’S
`EX PARTE MOTION FOR
`ADDITIONAL DEPOSITION TIME
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`[ECF NO. 211]
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`Defendants.
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`Before the Court is Plaintiff’s Motion for additional deposition time,
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`filed ex parte on December 3, 2019. (ECF No. 211). Defendants responded in
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`opposition on December 17, 2019. (ECF No. 237). Discovery is set to close in
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`this case on December 20, 2019. (ECF No. 183).
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`LEGAL STANDARD
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`Rule 30, Fed. R. Civ. P., provides for a party to obtain up to ten
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`depositions without leave of court. Absent stipulation of the parties, leave of
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`court is required to take more than ten depositions. Under Rule 30(a)(2), the
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`court must grant leave for a party to take a deposition beyond ten “to the
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`extent consistent with Rule 26(b)(1) and (2).” Fed. R. Civ. P. 30(a)(2)(A)(i).
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`Case 3:18-cv-00347-CAB-MDD Document 243 Filed 12/18/19 PageID.19885 Page 2 of 4
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`The Federal Rules of Civil Procedure authorize parties to obtain
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`discovery of “any nonprivileged matter that is relevant to any party’s claim or
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`defense and proportional to the needs of the case....” Fed. R. Civ. P. 26(b)(1).
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`“Information within the scope of discovery need not be admissible in evidence
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`to be discoverable.” Id. District courts have broad discretion to limit
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`discovery where the discovery sought is “unreasonably cumulative or
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`duplicative, or can be obtained from some other source that is more
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`convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C).
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`A party seeking to exceed the presumptive limit of ten depositions bears
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`the burden of making a “particularized showing” of the need for additional
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`depositions. See Jordan v. Wonderful Citrus Packing LLC, No. 1:18-cv-
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`00401-AWI-SAB, 2019 WL 176264 *2 (E. D. Cal. Jan. 11, 2019)(collecting
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`cases including Kaseberg v. Conaco, LLC, No. 15-cv-1637-JLS-DHB, 2016 WL
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`8729927 *3 (S. D. Cal. Aug. 19, 2016) from this District).
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`Under Rule 26(b)(2)(C), courts have found it proper to deny additional
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`depositions where they would be cumulative, without proper purpose, e.g.,
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`there is no evidence they would reveal anything other than what a party had
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`already obtained, the party had ample opportunity to obtain the information
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`by discovery in the action, or they would create an unreasonable burden or
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`expense. Kaseberg, 2016 WL 8729927 *3. Parties should ordinarily exhaust
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`their allowed number of depositions before making a request for additional
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`depositions. Id.
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`DISCUSSION
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`Discovery opened on April 4, 2018, with the conclusion of the parties’
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`conference under Rule 26(f). (ECF No. 68). Discovery continued for over nine
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`months until the case was stayed on February 6, 2019. (ECF No. 156). The
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`stay was lifted on August 6, 2019. (ECF No. 178). Following the lifting of the
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`Case 3:18-cv-00347-CAB-MDD Document 243 Filed 12/18/19 PageID.19886 Page 3 of 4
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`stay, discovery was authorized for an additional four months, until December
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`20, 2019. (ECF No. 183).
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`Plaintiff NuVasive seeks permission to obtain up to five additional
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`depositions, beyond the ten allowed under Rule 30. (ECF No. 211 at 5).1
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`Plaintiff reports that as of the date of the motion, December 11, 2019, it had
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`taken but four of the ten authorized depositions and had noticed five more,
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`for a total of nine depositions. (Id. at 10). Plaintiff expressed its intention to
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`obtain an additional deposition of Defendants under Rule 30(b)(6), for its
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`tenth deposition. (Id. at 10-11). Plaintiff identifies seven additional persons
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`that it is “considering” deposing many of whom are third-parties. (Id. at 11-
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`12). Obtaining discovery from third-parties poses an additional obstacle in
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`that the party seeking the discovery must “take reasonable steps to avoid
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`imposing undue burden or expense on a person subject to the subpoena.”
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`Rule 45(d)(1), Fed. R. Civ. P. For its eighth “person,” Plaintiff identifies
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`“additional current or former surgeons who have the Accused Products….”
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`(ECF No. 211 at 12).
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`The Court has reviewed the list of prospective deponents and the
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`reasons Plaintiff seeks their testimony. Plaintiff neither avers that the
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`requested testimony would not be cumulative or duplicative, nor does
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`Plaintiff address at all the “particularized need” requirement established
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`firmly in case law. The Court agrees with Defendant that Plaintiff has failed
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`to meet its burden to obtain more than the ten authorized depositions.
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`//
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`//
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`1 The Court will refer to page numbers supplied by CM/ECF rather than original
`pagination throughout.
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`Case 3:18-cv-00347-CAB-MDD Document 243 Filed 12/18/19 PageID.19887 Page 4 of 4
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`Plaintiff’s Motion for Additional Deposition Time is DENIED.
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`CONCLUSION
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`IT IS SO ORDERED:
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`Dated: December 18, 2019
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