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Precluding Plaintiffs in Separate Lawsuits in California and Indiana from Observing One Another’s Depositions: An Uphill Battle

A recent discovery order from the United States District Court for the Northern District of California suggests that employers seeking to prevent plaintiffs with related lawsuits (i.e., separate lawsuits, but arising from the same circumstances) from sitting in on one another’s depositions, or reading one another’s deposition transcripts, will need to provide a “particular and specific” basis for doing so.

In its motion for a protective order under Federal Rules of Civil Procedure 26(c)(1)(E), the employer argued that allowing each plaintiff to be present during the others’ depositions, or to read one another’s deposition transcripts, would give the plaintiffs an opportunity to compare their statements and alter them to be consistent.  The Court rejected the employer’s argument, reasoning the employer had not made a “particular and specific demonstration of fact sufficient to warrant” a protective order, and citing several examples where the requisite showing had been made.  For example, the Court referenced a case where a supervisor was excluded from the plaintiff’s deposition after the plaintiff, who had a history of depression, showed his testimony and health would be affected negatively by his supervisor’s presence.  See Monroe v. Sisters of Saint Francis Health Servs., Inc., 2010 WL 4876743 *3 (N.D. Ind. 2010).  The Court also noted the employer could still cast doubt on the credibility of the plaintiffs’ testimony in the event it appeared to be tainted by their presence at one another’s depositions or from having read one another’s deposition transcripts.

While not binding precedent for other California federal courts, this discovery order demonstrates the degree to which employers must prove the potential harm in having multiple plaintiffs present at one another’s depositions, even if they are plaintiffs in separate lawsuits.

Click below for a copy of the discovery order.

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Jackson Lewis P.C. © 2020National Law Review, Volume IV, Number 315

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About this Author

Adam Siegel, Employment Attorney, Whistleblower claims, Jackson Lewis Law FIrm
Principal

Adam Y. Siegel is a Shareholder in the Los Angeles, California office of Jackson Lewis P.C.

Mr. Siegel focuses mainly in employment litigation and represents both private and public sector employers in all aspects of employment law, specializing in litigation and trial of harassment, discrimination, breach of contract, wage/hour, due process, and other employment related claims and has litigated cases in both state and federal court.  As part of his extensive public sector experience, Mr. Siegel has conducted and prepared Investigation Reports pursuant to the California Government...

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David Feingold, Employment Attorney, Jackson Lewis Law Firm
Associate

David Zvi Feingold is an Associate in the Los Angeles office of Jackson Lewis P.C.

(213) 689-0404