WILLIAM McCURINE JR., Magistrate Judge
I. INTRODUCTION
On April 18, 2011, Plaintiff filed a motion for class certification [Doc. No. 88]. Defendant, Chipotle Mexican Grill, Inc., (Chipotle) has not yet filed an opposition. Chipotle comes before the Court now to seek a discovery order to conduct depositions of individuals identified by Plaintiffs as witnesses who signed declarations as putative class members in support of Plaintiff's class certification motion.
Plaintiff's claims arise under the Americans with Disabilities Act ( 42 U.S.C. § 12131, et seq.), along with certain other state law claims for relief. Jurisdiction is properly in this Court pursuant to 28 U.S.C. Sections 1331 and 1343.
II. DISCUSSION
A. Chipotle's Desired Discovery
Chipotle desires to conduct "short, one-hour depositions of 20 of the 41 individuals whom Plaintiffs identified as witnesses in their supplemental disclosures, and who then signed declarations as putative class members in support of Plaintiffs' class certification motion." (Chipotle's Letter Brief). The proposed deponents share two characteristics: (1) they were identified as witnesses in Plaintiff's supplemental disclosures and (2) they signed declarations as putative class members in support of Plaintiff's motion for class certification. At the Court's request, Chipotle submitted sample depositions questions to the Court and Plaintiff. Plaintiff has submitted specific objections to Chipotle's proposed questions.
B. Plaintiff's Opposition to the Proposed Discovery
Plaintiff contends this Court should not grant Chipotle leave to depose unnamed class members because: (1) Chipotle has failed to show the necessity of such discovery, (2) Chipotle has failed to show the relevance of such discovery, and (3) Chipotle's proposed deposition questions are designed to confuse, mislead and discourage class participation.
C. Is Discovery of Non-Class Plaintiffs Allowable?
Courts do not ordinarily permit discovery from absent class members. McPhail v. First Command Fin. Planning, Inc., 251 F.R.D. 514, 517 (S.D.Cal. 2008); see also Fischer v. Wolfinbarger, 55 F.R.D. 129, 132 (W.D.Ky. 1971) ("It is not intended that members of the class should be treated as if they were parties plaintiff, subject to the normal discovery procedures, because if that were permitted, then the reason [behind Rule 23(a)(1) of the Federal Rules of Civil Procedure] would fail.").
Although Courts do not usually allow discovery from absent class members, the rules pertaining to such discovery are flexible, especially where the proposed deponents have been identified as potential witnesses or have otherwise "injected" themselves into the litigation. See Mas v. Cumulus Media Inc., 2010 WL 4916402, *3 (N.D.Cal. Nov. 22, 2010) and Moreno v. Autozone 2007 WL 2288165, *1 (N.D.Cal. August 3, 2007) (citations omitted). Therefore, such discovery may be taken even prior to certification where "the proponent of the deposition demonstrates discovery is not sought to take undue advantage of class members or to harass class members, and is necessary to the trial preparation (or in this instance for preparation of the opposition to class certification)." Moreno, 2007 WL 2288165 at *1.
C. Analysis
Chipotle seeks to depose absent class members that have submitted declarations in support of Plaintiff's motion for class certification and whom Plaintiff has identified as witnesses in Plaintiff's supplemental disclosures. Thus, the proposed deponents have injected themselves into the litigation on two fronts and cannot claim noninvolvement as a means of avoiding discovery. In addition, the court is satisfied Chipotle is not taking the proposed depositions in order "to take undue advantage of class members or to harass class members." Moreno, surpa, at *1. Furthermore, the proposed discovery is clearly relevant to the claims and defenses in the instant case and calculated to lead to the discovery of admissible evidence. Fed.R.Civ.Proc. 26(b)(1).
The Court notes that under certain circumstances depositions of absent class members could have a chilling effect on their willingness to be part of the class. Tierno vs. Rite Aid, 2008 WL 2705089, *3, fn. 2 (N.D.Cal. July 8, 2008) (Italics added). However, that concern has little impact in this case for several reasons. First, the proposed deponents are not employees of Chipotle; rather, they are customers. Therefore, they are not under the pressure employees would face being deposed by their employer. Chipotle cannot directly or impliedly threaten the putative class members with loss or reduction of employment or some other adverse action affecting the work environment. Indeed, a case can be made that Chipotle is more dependent on the putative class members than they are dependent on Chipotle. In fact, part of Chipotle's motivation is to maintain or restore its corporate image with the demographic represented by the putative class members. Second, an employer would have had ample opportunity to question the prospective class member employees. However, in this case, the most effective way for Chipotle to question these particular putative class members is by deposition. Third, because the non-employee putative class members have submitted declarations in support of Plaintiff's motion for class certification, their expectation of noninvolvement in the litigation is significantly less than the expectation of putative class members who have not affirmatively injected themselves into the litigation. Fourth, each deposition is limited to one hour and is appropriately focused. Furthermore, Chipotle has submitted its proposed questions in advance to the Court, thereby substantially reducing the likelihood of abuse. Please See Addendum A.
The court finds the Mas and Moreno cases persuasive. Chipotle is allowed to take the depositions of 20 of the potential class members who have submitted declarations in support of plaintiffs motion for class certification with the following limitations:
a. Each deposition is limited to one hour actual running time. Colloquy between counsel does not count toward the one hour limitation.
b. Each deposition must be videotaped, unless the deposition proceeds by telephone, in which case videotaping will not be necessary. Depositions by telephone must be audiotaped.
c. Chipotle will bear the full cost of taking and videotaping and audiotaping the depositions.
d. The depositions must be reasonably noticed. Notices of deposition must be personally served on plaintiff's counsel at least 10 days before any proposed deposition, unless there is written agreement to shorten the time.
e. If one party believes the other party is acting inappropriately at the deposition, the Court will review the videotapes and/or audiotapes of the contested depositions after all the depositions have been completed. The Court will consider an award of sanctions after the Court's review of the depositions.
f. Chipotle can only depose those potential class members who have submitted declarations in support of plaintiffs motion for class certification and who have also been identified by Plaintiff as witnesses in his initial disclosures.
Should Chipotle be allowed to ask the deponents whether Ms. Vandeveld has instructed them not to speak with Chipotle's representatives? There is no need for Chipotle to ask questions designed to, or which have the effect of, invading the attorney-client or work product privileges that may obtain in order to discover the information Chipotle represented to the Court it needs to oppose Plaintiff's representations regarding numerosity in Plaintiff's motion for class certification. Chipotle can accomplish his goals without invading the privileges. Therefore, Chipotle needs to phrase its questions so as to avoid invading these privileges.
Addendum A provides the Court's rulings on the specific deposition questions Chipotle seeks to ask.
IT IS SO ORDERED.
Addendum A Chipotle Objections Table
VERACITY OF STATEMENTS RE VISITS TO CHIPOTLE HOW WITNESS CAME TO SIGN THE DECLARATION QUESTIONS RE SUBJECT MATTER OF ONLINE POSTINGS: There is no waiver of a right to privacy by someone anonymously posting a communication online. WITNESS' UNDERSTANDING OF THE PURPOSE OF THE LAWSUIT WITNESS' UNDERSTANDING OF THE PURPOSE OF THE DECLARATION QUESTION OBJECTION RULING Before learning that Plaintiffs in this None Does not apply case were looking for people to sign declarations, had you ever visited a Chipotle restaurant? When did you first visit Chipotle? None Does not apply Where? None Does not apply Were you able to see your food None Does not apply being prepared on that initial visit? Do you have a favorite order at This question is misleading since it Overruled. The question is relevant Chipotle that you usually get, or implies that there are "usual" orders. and appears reasonably calculated to does your order change from visit to Orders are customized. It is also lead to the discovery of admissible visit? irrelevant. evidence. Have you ever placed a Chipotle This question is misleading since it Overruled. The question is relevant order by fax or online? implies that access could have been and appears reasonably calculated to satisfied by fax or online orders. It lead to the discovery of admissible is also irrelevant because the issue evidence. in this case is in-store ordering. Which Chipotle restaurants have none Does not apply you visited? Were you able to see your None Does not apply food prepared at any of those locations? When was the last time you ordered None Does not apply food at a Chipotle restaurant? Were you able to see your food None Does not apply prepared on that most recent visit? What is your understanding of what ABUSIVE, MISLEADING, Overruled. The question is relevant you meant when you said in your CONFUSING, TAKES UNDUE and appears reasonably calculated to declaration, "I would like the same ADVANTAGE OF ABSENT lead to the discovery of admissible opportunity to see the food on CLASS MEMBER. This is a evidence. display and the preparation of my perfect example of how a question order as is given to other Chipotle can seem innocuous to attorneys, customers who are able to stand and but is misleading to lay witnesses. who can see over the high walls"? The declarants, in signing their declarations, simply attest to the truth of the statements in the declarations. The witnesses did not draft the declarations but, no matter how this question is answered, it is likely that Mr. Sugden will use the response against the witness, just as he did with one deponent, Mr. Ott, who Mr. Sugden accused of "lying under oath" in Mr. Sugden's May 6, 2011 letter to Plaintiffs' counsel. When Mr. Ott was asked if he had written language in the declaration, Mr. Ott, an unsophisticated lay person, said yes, meaning that he had provided the information contained in the declaration. Mr. Ott has is now being portrayed by Mr. Sugden as claiming to have drafted the actual pleading, when Mr. Ott only meant to convey that he written the information contained in the declaration, not the declaration itself. This question also suggests that there is some other answer than the obvious, which is confusing and misleading. What is your understanding of what ABUSIVE, MISLEADING, Overruled. The question is relevant you meant when you said in your CONFUSING, TAKES UNDUE and appears reasonably calculated to declaration, "I could not see the ADVANTAGE OF ABSENT lead to the discovery of admissible food on display or the preparation of CLASS MEMBER, CALLS FOR A evidence. my entrees"? LEGAL OPINION FROM LAY WITNESS. See objections to previous question Other than any private conversations VIOLATES RIGHT OF Overruled. The question is relevant between you and Ms. Vandeveld's FREEDOM OF ASSOCIATION; and appears reasonably calculated to office, were there any other ways RIGHT OF PRIVACY. Seeks lead to the discovery of admissible that you learned that this lawsuit information from unnamed class evidence. existed? members about private conversations they may have had with other class members, which discourages participation in the lawsuit. The answer to this question is also IRRELEVANT to any issue in the case and can only have a chilling affect on the unnamed class members. What difference does it make how the declarant learned of the lawsuit, other than to give Chipotle leads to other class members that it can investigate and interrogate? Other than any private conversations VIOLATES RIGHT OF Overruled. The question is relevant between you and Ms. Vandeveld's FREEDOM OF ASSOCIATION; and appears reasonably calculated to office, were there any other ways RIGHT OF PRIVACY. Seeks lead to the discovery of admissible that you learned that the Plaintiffs in information from unnamed class evidence. this case were looking for people to members about private sign declarations for them? conversations they may have had with other class members, which discourages participation in the lawsuit. The answer to this question is also IRRELEVANT to any issue in the case and can only have a chilling affect on the unnamed class members. What difference does it make how the declarant learned of the lawsuit or the request for declarations, other than to give Chipotle leads to other class members that it can investigate and interrogate? Reasonable follow-up, such as: VIOLATES RIGHT OF Overruled. The question is relevant [If they learned through an Internet FREEDOM OF ASSOCIATION; and appears reasonably calculated to posting] What do you remember RIGHT OF PRIVACY. Seeks lead to the discovery of admissible reading on the Internet about the information from unnamed class evidence. need for declarations in this case? members about private conversations they may have had with other class members, which discourages participation in the lawsuit. The answer to this question is irrelevant to any issue in the case and can only have a chilling affect on the unnamed class members. What difference does it make how the declarant learned of the lawsuit and/or the need for declarations, other than to give Chipotle leads to other class members that it can investigate and interrogate? [If they learned through a discussion Same objections as to previous Overruled. The question is relevant with a friend] What do you question. and appears reasonably calculated to remember about the discussion? lead to the discovery of admissible evidence. (privilege, if affected by the Sustained. There is no evidence of witness' answer, was waived as to waiver of any privilege. these subject matters) Did anyone ever tell you that people IRRELEVANT, ATTORNEY- Overruled. The question is relevant in wheelchairs cannot see their food CLIENT PRIVILEGE/ATTORNEY and appears reasonably calculated to prepared at Chipotle restaurants? WORK PRODUCT PRIVILEGE lead to the discovery of admissible VIOLATION. VIOLATES RIGHT evidence. OF FREEDOM OF ASSOCIATION; RIGHT OF PRIVACY. Seeks information from unnamed class members about private conversations they may have had with other class members, which discourages participation in the lawsuit. The answer to this question is irrelevant to any issue in the case and can only have a chilling affect on the unnamed class members. Reasonable follow-up, such as, who, Same objections as to previous Overruled. The question is relevant when, whether they referred to a question. and appears reasonably calculated to particular Chipotle location or lead to the discovery of admissible implied that persons in wheelchairs evidence. cannot see the food preparation at any Chipotle location. Did anyone ever tell you that Same objections as to previous Overruled. The question is relevant Chipotle customers in wheelchairs question. and appears reasonably calculated to see only the wall built in front of the lead to the discovery of admissible food preparation counters? evidence. Reasonable follow-up, such as, who, Same objections as to previous Overruled. The question is relevant when, whether they referred to a question. and appears reasonably calculated to particular Chipotle location or lead to the discovery of admissible implied that persons in wheelchairs evidence. cannot see the food preparation at any Chipotle location. Did anyone ever tell you that Same objections as to previous Overruled. The question is relevant "Chipotle has a similar design in all question. and appears reasonably calculated to its restaurants"? lead to the discovery of admissible evidence. Reasonable follow-up, such as who, Same objections as to previous Overruled. The question is relevant when, any basis for thinking all question. The answer to this and appears reasonably calculated to locations would be the same. question is irrelevant to any issue in lead to the discovery of admissible this case. evidence. Did anyone ever tell you that Same objections as to previous Overruled. The question is relevant Chipotle cares more about décor question. and appears reasonably calculated to than about people in wheelchairs? lead to the discovery of admissible evidence. Reasonable follow-up, such as who, Same objections as to previous Overruled. The question is relevant when, what witness believed that to question. and appears reasonably calculated to mean. lead to the discovery of admissible evidence. Did anyone ever tell you that the IRRELEVANT, ATTORNEY- Overruled. The question is relevant lawsuit needs to be "certified" in CLIENT PRIVILEGE/ATTORNEY and appears reasonably calculated to order to make Chipotle fix its WORK PRODUCT PRIVILEGE lead to the discovery of admissible restaurants? (i.e., lower the wall at VIOLATION, RIGHT TO evidence. its restaurants) FREEDOM OF ASSOCIATION, RIGHT TO PRIVACY, ABUSIVE, MISLEADING, CONFUSING, TAKES UNDUE ADVANTAGE OF ABSENT CLASS MEMBER LAY WITNESS. Reasonable follow-up, such as who, Same objections as to previous Overruled. The question is relevant when, what witness believed that to question. This is another witch hunt and appears reasonably calculated to mean. into the identity of other class lead to the discovery of admissible members with whom the witness evidence. may have privately discussed the case. There is no purpose to this questioning, other than to chill the participation of class members, since any answer to the question will have no bearing on any issue in this case. Did anyone ever tell you that Amy Same objections as to previous Overruled. The question is relevant Vandeveld needs 50 declarations question. This is another witch hunt and appears reasonably calculated to from individuals in wheelchairs who into the identity of other class lead to the discovery of admissible had visited Chipotle and were members with whom the witness evidence. unable to see their food being may have privately discussed the prepared due to a high wall in front case. There is no purpose to this of the food preparation counter? questioning, other than to chill the participation of class members, since any answer to the question will have no bearing on any issue in this case. Reasonable follow-up, such as who, Same objections as to previous Overruled. The question is relevant when, what witness believed that to question. This is another witch hunt and appears reasonably calculated to mean. into the identity of other class lead to the discovery of admissible members with whom the witness evidence. may have privately discussed the case. There is no purpose to this questioning, other than to chill the participation of class members, since any answer to the question will have no bearing on any issue in this case. Did anyone ever tell you addresses Same objections as to previous Overruled. The question is relevant for specific Chipotle stores to visit? question. This is another witch hunt and appears reasonably calculated to into the identity of other class lead to the discovery of admissible members with whom the witness evidence. may have privately discussed the case. There is no purpose to this questioning, other than to chill the participation of class members, since any answer to the question will have no bearing on any issue in this case. Reasonable follow-up, such as who, Same objections as to previous Overruled. The question is relevant when, which stores, and if witness question. This is another witch hunt and appears reasonably calculated to knows whether any other witnesses into the identity of other class lead to the discovery of admissible were told to go to certain restaurant members with whom the witness evidence. locations. may have privately discussed the case. There is no purpose to this questioning, other than to chill the participation of class members, since any answer to the question will have no bearing on any issue in this case. Did you ever fill out a claim form Same objections as to previous Overruled. The question is relevant about your visits to Chipotle? question. This is another witch hunt and appears reasonably calculated to into the identity of other class lead to the discovery of admissible members with whom the witness evidence. may have privately discussed the case. There is no purpose to this questioning, other than to chill the participation of class members, since any answer to the question will have no bearing on any issue in this case. Reasonable follow-up, such as ATTORNEY-CLIENT Sustained in part to the extent the when, why. Did you fill out a PRIVILEGE/ATTORNEY WORK qeustioning seeks any information claim form because it is important to PRODUCT PRIVILEGE class counsel may have given the you to collect money damages? VIOLATION, ABUSIVE, witness as a potential client or in MISLEADING,CONFUSING, attorney client consultation. TAKES UNDUE ADVANTAGE OF ABSENT CLASS MEMBER LAY WITNESS, IRRELEVANT. What is your understanding of the MISLEADING, CONFUSING, Overruled. The question is relevant purpose of this lawsuit? TAKES UNDUE ADVANTAGE and appears reasonably calculated to OF ABSENT CLASS MEMBER, lead to the discovery of admissible CALLS FOR A LEGAL OPINION evidence. FROM LAY WITNESS, IRRELEVANT. The witness' understanding of the lawsuit has no bearing on any issue in this case. If the witness believed the purpose of the lawsuit was to elect Mr. Sugden president, that would not change the number of people in wheelchairs in California and the fact that high walls at Chipotle's restaurants denied those people equal access to the Chipotle experience. At the time that you signed the See previous objections. Overruled. The question is relevant declaration, what was your and appears reasonably calculated to understanding of the purpose of this lead to the discovery of admissible lawsuit? evidence. If you knew that Chipotle had MISLEADING, CONFUSING, Overruled. The question is relevant already torn out all the higher walls TAKES UNDUE ADVANTAGE and appears reasonably calculated to and built new, lower walls at all its OF ABSENT CLASS MEMBER, lead to the discovery of admissible restaurants in California, would you CALLS FOR A LEGAL OPINION evidence. think that a class action lawsuit is FROM LAY WITNESS. What still necessary? difference does this make? It calls for information irrelevant to any issue in this case and implies that the witness may be participating in a "frivolous" lawsuit, even though Chipotle still contends its walls do not violate the ADA. It is intended to chill participation the suit and to reduce claims. If Chipotle made a signed statement MISLEADING, CONFUSING, Sustained on the ground the to the court that it had removed all TAKES UNDUE ADVANTAGE OF question is an inappropriate the higher walls and that it would ABSENT CLASS MEMBER, hypothetical. keep the walls low, would you still CALLS FOR A LEGAL OPINION think that a class action lawsuit is FROM LAY WITNESS. See prior necessary? objections, as well. Do you have any reason to think MISLEADING, CONFUSING, Overruled. The question is relevant that Chipotle plans to again rip out TAKES UNDUE ADVANTAGE OF and appears reasonably calculated to the walls and replace them with ABSENT CLASS MEMBER, lead to the discovery of admissible higher walls? CALLS FOR A LEGAL OPINION evidence. FROM LAY WITNESS. See prior objections, as well. What a lay witness thinks is irrelevant to whether an injunction is necessary, since Chipotle still contends the walls do not violate the ADA. When you signed the declaration, MISLEADING, CONFUSING, Overruled. The question is relevant did you think that the declaration TAKES UNDUE ADVANTAGE OF and appears reasonably calculated to was necessary to help make ABSENT CLASS MEMBER, lead to the discovery of admissible Chipotle lower the walls in front of CALLS FOR A LEGAL OPINION evidence. its food preparation counters? FROM LAY WITNESS. See prior objections, as well. Did you sign the declaration ABUSIVE, MISLEADING, Overruled. The question is relevant because you thought it was CONFUSING, TAKES UNDUE and appears reasonably calculated to important to be able to collect ADVANTAGE OF ABSENT lead to the discovery of admissible money damages for yourself? CLASS MEMBER, CALLS FOR A evidence. LEGAL OPINION FROM LAY WITNESS because it implies that the declaration had to be signed in order for the class member to recover damages. When you signed the declaration, MISLEADING, CONFUSING, Sustained; assumes facts not in were you aware that the walls had TAKES UNDUE ADVANTAGE OF evidence. already been lowered at all ABSENT CLASS MEMBER, California Chipotle restaurants? ASSUMES FACTS NOT IN EVIDENCE. Irrelevant and misleads the witness into thinking that, even if the walls had been lowered, there was no other basis for the instant lawsuit. If you had known, at the time you MISLEADING, CONFUSING, Overruled. The question is relevant signed the declaration, that TAKES UNDUE ADVANTAGE OF and appears reasonably calculated to Chipotle had already lowered the ABSENT CLASS MEMBER, lead to the discovery of admissible walls at all California Chipotle ASSUMES FACTS NOT IN evidence. restaurants, would you still have EVIDENCE. Irrelevant and signed the declaration? misleads the witness into thinking that, even if the walls had been lowered, there was no other basis for the instant lawsuit. VAGUE AND AMBIGUOUS, Overruled. The question is relevant Did you sign the declaration in ABUSIVE, MISLEADING, and appears reasonably calculated to order to collect money? CONFUSING, TAKES UNDUE lead to the discovery of admissible ADVANTAGE OF ABSENT evidence. CLASS MEMBER, CALLS FOR A LEGAL OPINION FROM LAY WITNESS. Were you given or promised VAGUE AND AMBIGUOUS, Overruled. The question is relevant anything in return for signing the ABUSIVE, MISLEADING, and appears reasonably calculated to declaration? CONFUSING, TAKES UNDUE lead to the discovery of admissible ADVANTAGE OF ABSENT evidence. CLASS MEMBER Did you expect anything in return VAGUE AND AMBIGUOUS, Overruled. The question is relevant for signing the declaration? ABUSIVE, MISLEADING, and appears reasonably calculated to CONFUSING, TAKES UNDUE lead to the discovery of admissible ADVANTAGE OF ABSENT evidence. CLASS MEMBER, CALLS FOR A LEGAL OPINION FROM LAY WITNESS When you signed the declaration, MISLEADING, CONFUSING, Sustained; calls for a legal was it your understanding that TAKES UNDUE ADVANTAGE OF conclusion by the witness and Plaintiffs' counsel was your ABSENT CLASS MEMBER, invades the attorney-client attorney? CALLS FOR A LEGAL OPINION relationship. In addition, the FROM LAY WITNESS. The question is not relevant and does not attorney-client privilege can apply to appear reasonably calculated to lead communications even if a person has to the discovery of admissible not formally retained an attorney. evidence. Do you currently believe that MISLEADING, CONFUSING, Sustained; calls for a legal Plaintiffs' counsel is your attorney? TAKES UNDUE ADVANTAGE OF conclusion by the witness and ABSENT CLASS MEMBER, invades the attorney-client CALLS FOR A LEGAL OPINION relationship. In addition, the FROM LAY WITNESS. The question is not relevant and does not attorney-client privilege can apply appear reasonably calculated to lead to communications even if a to the discovery of admissible person has not formally retained evidence. an attorney.