Doe v. Uber Technologies, Inc.

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 JANE DOE, Case No. 19-cv-03310-JSC 8 Plaintiff, ORDER RE: UBER’S AMENDED 9 v. MOTION FOR ISSUANCE OF LETTERS ROGATORY 10 UBER TECHNOLOGIES, INC., et al., Re: Dkt. Nos. 164, 179 Defendants. — 11 — — 12 — 13 Uber’s amended motion for issuance of letters rogatory to the Central Authority of Mexico 14 for International Judicial Assistance to obtain the depositions of Ms. Paola Alvarez, Mr. Adan 15 Martinez, and Ms. Lourdes Coss y Leon, all citizens of Mexico, is now pending before the Court. 16 (Dkt. No. 179.) After carefully considering the parties’ briefs and the relevant legal authority, the 17 Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), VACATES March 3, 18 2022 hearing, and GRANTS Uber’s motion. 19 DISCUSSION 20 A letter rogatory is a formal request “from a court in which an action is pending[ ] to a 21 foreign court to perform some judicial act.” 22 C.F.R. § 92.54 ; see also Intel Corp. v. Advanced 22 Micro Devices, Inc., 542 U.S. 241 , 247 n.1 (2004) (defining “letter rogatory” as “the request by a 23 domestic court to a foreign court to take evidence from a certain witness”). The Federal Rules of 24 Civil Procedure provide for the taking of depositions within foreign countries through letters 25 rogatory. See Fed. R. Civ. P. 28(b)(1)(B) (“A deposition may be taken in a foreign country ... 26 under a letter of request, whether or not captioned a ‘letter rogatory[.]’”). In accordance with Rule 27 28(b)(1)(B), “[t]he Department of State has power, directly, or through suitable channels ... to 1 the foreign or international tribunal, officer, or agency to whom it is addressed, and to receive and 2 return it after execution.” 28 U.S.C. § 1781 (a)(2). 3 Courts have “inherent power to issue Letters Rogatory,” United States v. Staples, 256 F.2d 4 290, 292 (9th Cir. 1958), and “[w]hether to issue such a letter is a matter of discretion,” Barnes & 5 Noble, Inc. v. LSI Corp., No. C 11-02709 EMC LB, 2012 WL 1808849 , at *2 (N.D. Cal. May 17, 6 2012). “When determining whether to exercise its discretion, a court will generally not weigh the 7 evidence sought from the discovery request nor will it attempt to predict whether that information 8 will actually be obtained.” Asis Internet Servs. v. Optin Global, Inc., No. C-05-05124 JCS, 2007 9 WL 1880369 , at *3 (N.D. Cal. June 28, 2007). A court must instead apply “Rule 28(b) in light of 10 the scope of discovery provided by the Federal Rules of Civil Procedure.” Id. (collecting cases). 11 Under Rule 26(b), “[p]arties may obtain discovery regarding a nonprivileged matter that is 12 relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). 13 Uber insists that the testimony it seeks through the letters rogatory comports with Rule 26 14 as it seeks testimony from two of Plaintiff’s friends, Ms. Alvarez and Mr. Martinez, and her sister, 15 Ms. Coss y Leon, regarding Plaintiff’s factual allegations and the damages sought. In particular, 16 Uber seeks testimony regarding: “(1) any information that Plaintiff confided to them relating to 17 the incident, including her failure to identify the correct vehicle, following the incident; and (2) 18 Plaintiff’s habits, activities, mood, phobias, appetite, energy level, and relationships, since the 19 August 14, 2018 incident.” (Dkt. No. 179 at 11.) In addition, Uber seeks testimony from Ms. Coss 20 y Leon regarding “(1) her history of ordering Ubers on Plaintiff’s behalf prior to the alleged 21 incident on August 14, 2018; and (2) Plaintiff’s history of using Uber prior to the alleged incident 22 on August 14, 2018.” (Id.) 23 Plaintiff does not dispute that Ms. Alvarez, Mr. Martinez, Ms. Coss y Leon’s testimony is 24 relevant or otherwise object to the scope of testimony sought. (Dkt. No. 170.) Rather, Plaintiff 25 notes that Uber’s request comes after the discovery cut-off.1 26 Civil Local Rule 37-3 states that “‘discovery cut-off’ is the date by which all responses to — 27 — 1 written discovery are due and by which all depositions must be concluded.” However, the rule also 2 || provides that depositions may occur “after the applicable discovery cut-off...by order of the Court 3 for good cause shown.” As with Uber’s prior motion for issuance of letters rogatory, the Court 4 || finds that the unique circumstances here constitute good cause for Uber to obtain Ms. Alvarez, Mr. 5 || Martinez, Ms. Coss y Leon’s depositions after the fact discovery cut-off. 6 First, Uber contends that it “needed the benefit of Plaintiffs deposition testimony 7 || regarding the nature, substance, and extent of her alleged conversations with these three witnesses 8 || regarding the incident and her history using the Uber platform before deciding whether to incur 9 || the time and expense of going through the full letter rogatory process and deposing them.” (Dkt. 10 || No. 179 at 10.) Because Plaintiff's deposition was delayed—at Plaintiff's request—until after the 11 fact discovery cut-off, Uber was not dilatory in not discovering this information earlier. Second, as 12 || Uber notes, obtaining deposition testimony via letter rogatory is a time-consuming process which 13 requires cooperation from domestic and foreign governmental entities, and as such, Uber waited 14 || until it was reasonably certain it would need this testimony before pursuing the letters rogatory 15 process. See Société Nationale Industrielle Aerospatiale v. U.S. Dist. Ct., 482 U.S. 522 , 542 a 16 || (1987) (describing the letter rogatory process as “unduly time consuming and expensive.”). 3 17 || Finally, because Plaintiff's counsel has indicated that it does not currently represent these 18 witnesses and lacks authority to accept subpoenas on their behalf, the only legal means for Uber to 19 seek their depositions is through the letter rogatory process. 20 As there is no dispute that Ms. Alvarez, Mr. Martinez, Ms. Coss y Leon’s testimony is 21 relevant, the Court GRANTS Uber’s motion for issuance of letters rogatory, and finds that there is 22 || good cause for Uber to take Ms. Alvarez, Mr. Martinez, Ms. Coss y Leon’s depositions after the 23 discovery cut-off. 24 This Order disposes of Docket Nos. 164, 179. 25 IT IS SO ORDERED. 26 || Dated: February 24, 2022 JACQUELINE SCOTT CORL 28 United States Magistrate Judge