Estate of Silvia Manzo Velasco et al vs Uber Technologies Inc et al

Case Number

24CV03780

Case Type

Hearing Date / Time

Fri, 07/25/2025 - 10:00

Nature of Proceedings

CMC; 8 Motions to Compel; Protective Order

Tentative Ruling

(1) For all reasons discussed herein, the separately filed motions of plaintiffs for orders compelling defendant Uber Technologies, Inc., to produce its Custodian of Records, Christopher Butorac, Daniel Delgado Roybal, Duncan Carey, Elley Symmes, Joyce Chiang, and Livia Natsumeda are each granted, in part and in accordance with this ruling.

(2) For all reasons discussed herein, the motion of defendants Uber Technologies, Inc., and Portier, LLC, for a protective order is denied.

(3) On or before August 1, 2025, defendant Uber Technologies, Inc., shall provide to plaintiffs three dates on which its Custodian of Records, Christopher Butorac, Daniel Delgado Roybal, Duncan Carey, and Livia Natsumeda are available to attend and testify at a deposition. On or before August 8, 2025, plaintiffs shall select the dates of the depositions of these persons from those provided by defendant, and provide notice of those dates. To the extent defendant fails to provide dates on which the Custodian of Records, Christopher Butorac, Daniel Delgado Roybal, Duncan Carey, or Livia Natsumeda are available to attend and testify at a deposition as ordered herein, plaintiff may unilaterally select and notice the dates of these depositions.

(4) To the extent defendant Uber Technologies, Inc., is able to obtain three dates on which Elley Symmes and Joyce Chiang are available to attend and testify at a deposition, defendant shall, on or before August 1, 2025, provide these dates to plaintiffs. If defendant is unable or fails to provide dates on which these persons are available to attend and testify at a deposition, then the depositions of these persons may be taken upon effective and valid service of statutorily compliant notice by plaintiffs.

(5) Plaintiffs shall submit, for the court’s review, proposed orders which conform to the court’s ruling herein.

Background:

The first amended complaint (FAC) filed on June 6, 2023, by plaintiffs the Estate of Silvia Manzo Velasco (Silvia) by and through its successor in interest Ricardo Velasco (Ricardo), Ricardo, Juan Velasco (Juan), Ana Velasco (Ana), Kasandra Velasco (Kasandra), Monica Velasco (Monica), Jose Alvarado (Jose) by and through his guardian ad litem Ana, and Francisca Solis (Solis) (collectively, plaintiffs) against defendants Uber Technologies, Inc. (Uber), Portier, LLC (Portier), Checkr, Inc. (Checkr), and Andrew Raymond Burgher (Burgher) (collectively, defendants) is the operative pleading. (Note: Due to common familial surnames, the court will refer to plaintiffs by their first names. No disrespect is intended.) As alleged in plaintiffs’ operative FAC:

Ricardo is the husband of Silvia, and Juan, Ana, Kasandra, and Monica are Silvia’s children. (FAC, ¶¶ 6-10.) Jose is Silvia’s biological grandson, and Solis is the mother of Silvia. (Id. at ¶¶ 11-12.)

Uber operates a Transportation Network Company which provides transportation options and vehicles for users of its services through an online application (the Uber App). (FAC, ¶ 13.) Portier, who conducts business as Uber Eats, is a wholly owned subsidiary of Uber that runs the Delivery Network Company of Uber which provides on-demand food delivery services through an “Uber Eats” mobile phone application (the Uber Eats App). (Id. at ¶¶ 14 & 16.) Uber and Portier (collectively, the Uber Parties) employ drivers through the Uber App and Uber Eats App. (Id. at ¶ 16.) In addition, Portier generates leads for Uber Eats drivers through the Uber Eats App to facilitate the delivery of food to customers, and holds the insurance certificate for insurance carried by Uber. (Id. at ¶¶ 16 & 18.)

The Uber Parties perform background investigations of drivers through Checkr, which is a third-party investigative consumer reporting agency. (FAC, ¶¶ 19 & 52.) The background checks which the Uber Parties outsource to Checkr are based on unverified information submitted by prospective drivers either through the Uber Eats App or a website, and do not require biometric identifiers such as a fingerprint. (Id. at ¶ 46.) As a result, the background checks performed by Checkr on behalf of the Uber Parties fail to uncover criminal conduct and driving histories due to Uber and Portier’s self-imposed requirement for expediency. (Ibid.)

Burgher entered into a Technology Services Agreement with the Uber Parties in which Burgher agreed that Burgher’s transportation of passengers or delivery of food for Uber and Portier furthered an employer-employee relationship. (FAC, ¶ 61.) On October 26, 2021, Silvia was the passenger in a vehicle which was, suddenly and without warning, violently struck by a vehicle operated by Burgher. (Id. at ¶ 73.) At the time of the incident, Burgher was working as a commercial driver for Uber and Uber Eats. (Id. at ¶ 74.) Prior to the incident, Burgher had been operating his vehicle at speeds up to 120 miles per hour while intoxicated. (Id. at ¶¶ 75-76.)

Though the Uber Parties employed Checkr to investigate Burgher’s criminal history and motor vehicle records, Checkr failed to identify Burgher’s prior criminal convictions which showed, among other things, that Burgher was on probation for a second “DUI” conviction until October 31, 2015, within seven years prior to the background check performed by Checkr in connection with Burgher’s potential employment with the Uber Parties. (Id. at ¶ 82.)

The FAC alleges four causes of action: (1) negligence (against all defendants); (2) negligent hiring, supervision, or retention (against Uber, Portier, and Checkr); (3) wrongful death (against all defendants); and (4) survival action (against all defendants).

On December 15, 2023, Uber and Portier separately answered the FAC, generally denying its allegations and asserting affirmative defenses.

Burgher filed an answer to the FAC on January 16, 2024, generally denying its allegations and asserting affirmative defenses.

Checkr answered the FAC on February 22, 2024, also generally denying its allegations and asserting affirmative defenses.

On March 25, 2025, plaintiff filed seven discovery motions (collectively, the Discovery Motions): (1) for an order compelling the deposition of and production of documents by Uber’s employee Christopher Butorac (the Butorac Motion); (2) for an order compelling the deposition of and production of documents by Uber’s custodian of records (the Custodian Motion); (3) for an order compelling the deposition of and production of documents by Uber’s employee Daniel Delgado Roybal (the Roybal Motion); (4) for an order compelling the deposition of and production of documents by Uber’s employee Duncan Carey (the Carey Motion); (5) for an order compelling the deposition of and production of documents by Uber’s employee Elley Symmes (the Symmes Motion); (6) for an order compelling the deposition of and production of documents by Uber’s employee Joyce Chiang (the Chiang Motion); and (7) for an order compelling the deposition of and production of documents by Uber’s employee Livia Natsumeda (the Natsumeda Motion).

In support of the Discovery Motions, plaintiffs submit identical or effectively identical declarations of their counsel, Douglas S. Wacker (Wacker). Exhibits attached to the Wacker declarations include copies of separately served notices of the taking of the deposition of Uber’s custodian of records (the Custodian); amended notices of the taking of the depositions of Livia Natsumeda (Natsumeda), Christopher Butorac (Butorac), Daniel Delgado Roybal (Roybal), and Duncan Carey (Carey); and copies of deposition subpoenas compelling the attendance of Joyce Chiang (Chiang) and Elley Symmes (Symmes) at a deposition (respectively, the Custodian Notice, the Natsumeda Notice, the Butorac Notice, the Roybal Notice, the Carey Notice, the Chiang Subpoena, and the Symmes Subpoena, and collectively, the deposition notices and subpoenas). (Wacker Decls., ¶¶ 1 & Exhs. 1.)

The deposition notices and subpoenas described above show that the date of the depositions of the Custodian and Natsumeda was March 24, that the date of the Butorac and Roybal depositions was March 25, that the date of the Carey and Chiang depositions was March 26, and that the date of the Symmes deposition was March 27, 2025. (Wacker Decls., ¶¶ 1 & Exhs. 1.) Information appearing in the Wacker declarations also show that each of the deposition notices and subpoenas were served by plaintiffs on March 12, 2025. (Wacker Decls., ¶¶ 1 & Exhs. 1.)

The Natsumeda Notice, the Butorac Notice, the Roybal Notice, the Carey Notice, the Custodian Notice, and attachments 3 to the Chiang Subpoena and the Symmes Subpoena, also include inspection demands describing documents to be produced by the Custodian, Natsumeda, Butorac, Roybal, Carey, Chiang, and Symmes at the depositions described above. (Wacker Decls., Exhs. 1.) Copies of the Uber Parties’ objections to the deposition notices and subpoenas are also attached to the Wacker declarations. (Wacker Decls., ¶¶ 2 & Exhs. 2.)

Wacker states that during a January 13, 2025, deposition of Elizabeth Zeiter (Zeiter), who is Checkr’s person most knowledgeable or “PMK”, Zeiter explained that Natsumeda, Butorac, Roybal, and Carey were “on the team at Uber that directly dealt with Checkr on the driver background checks.” (Wacker Decls., ¶¶ 4 & Exhs. 3 [transcript of Zeiter deposition] at p. 33, ll. 15-19 [stating that Carey is Zeiter’s “point of contact at Uber in relation to Checkr’s account with them”] & p. 44, ll. 1-16 [stating that “Livia”, Roybal, and Butorac are the “people that the Checkr account team works with on the Uber account team”].) (Note: Plaintiffs have separately lodged under seal, as exhibits 3 to each of the Discovery Motions, excerpts from the Zeiter deposition transcript including exhibit 4 to that transcript.)

Wacker also states that information appearing in exhibit 4 to the Zeiter deposition transcript, which consists of a document titled “Statement of Work No. 1 Criminal Background Check” (the SOW) ostensibly entered into by Uber and Checkr on October 16, 2020, shows that Symmes and Chiang are or were the “Project Managers” for Uber with respect to the SOW. (Wacker Decls., ¶¶ 3 & Exhs. 3 [Exh. 4 at pdf p. 15, ¶ 5].)

On March 21, 2025, Wacker received from Uber’s counsel a letter in which Uber refused to produce the Custodian, Natsumeda, Butorac, Roybal, Carey, Chiang, or Symmes for deposition unless plaintiffs explained why the testimony sought from these individuals is not cumulative or duplicative of other depositions taken in this case and why the information sought cannot be obtained from other, less burdensome sources. (Wacker Decls., ¶¶ 4 & Exhs. 4.) Wacker contends that Uber’s counsel was present at the Zeiter deposition where Zeiter provided the testimony described above, and that Uber knows that each of the individuals identified above is in possession of information directly relevant to the subject matter of this action. (Wacker Decls., ¶¶ 4.)

On March 24, 2025, Wacker advised Uber of plaintiffs’ position as to Uber’s objections, asked Uber to agree to produce the Custodian, Natsumeda, Butorac, Roybal, Carey, Chiang, Symmes for deposition, and all responsive documents, and to allow these depositions to be completed by April 11, 2025. (Wacker Decls., ¶¶ 5.)

Wacker further contends that, based on Uber’s conduct, further meet and confer regarding the matters described above would be futile, and that a discovery referee should be appointed. (Wacker Decls., ¶ 4.)

The Uber Parties separately filed oppositions to each of the Discovery Motions. In support of each of these oppositions, the Uber Parties submit separate declarations of their counsel, Samantha J. Hughes (Hughes), which set forth identical or nearly identical information further described below.

Hughes declares that plaintiffs have taken the depositions of nine individuals over eighteen sessions: (1) Checkr’s Senior Vice President of Finance Operations, Todd Freedman, on December 4, 2024; (2) Checkr’s Director of Product Quality Operations, Ryan Kelly, on December 23, 2024; (3) former Checkr employee Leslie St. Pierre on January 7 and March 19, 2025; (4) former Checkr employee Madhukar Puniani on January 9 and March 14, 2025; (5) Checkr’s Director of Named Accounts, Elizabeth Zeiter, on January 13, 2025; (6) former Checkr employee Sumant Masukar on January 15 and 27, 2025; (7) former Checkr employee Pej Azarm on January 24 and February 21, 2025; (7) former Checkr employee Sangeeta Chakraborty on February 19 and 25, 2025; (8) former Checkr employee Marc Diouane on March 10, 2025; and (9) Erin O’Keefe, Uber’s person most qualified or “PMQ”, on January 21, January February 4, and February 18, 2025. (Hughes Decls., ¶¶ 2, 17-27 & Exhs. I-M [transcripts].) (Note: The Uber Parties have lodged exhibits I, J, and N to the Hughes declarations under seal.)

Hughes states that on February 26, 2025, plaintiffs unilaterally noticed the depositions of Natsumeda, Butorac, Roybal, and Carey, who are each current employees of Uber. (Hughes Decls., ¶¶ 3 & Exhs. A.) On February 27, 2025, plaintiffs noticed the depositions of Uber’s former employees Chiang and Symmes. (Hughes Decls., ¶¶ 4 & Exh. B.)

Hughes contends that Uber has not identified the individuals described above in its discovery responses or as having any information relating to this lawsuit, and that plaintiffs did not ask about these individuals during the deposition of Uber’s PMQ described above. (Hughes Decls., ¶¶ 5 & 7.) Hughes also asserts that plaintiffs did not confer with Uber as to the scheduling or scope of the depositions or any need for testimony from these individuals after Uber put forth its PMQ for four days of deposition. (Hughes Decls., ¶¶ 6.)

Hughes states that on March 6 and 7, 2025, Uber objected to the unilaterally noticed depositions of Natsumeda, Butorac, Roybal, and Carey, and invited plaintiffs to meet and confer if they disagreed with Uber’s position, which never occurred. (Hughes Decls., ¶¶ 8-9 & Exhs. C.) On March 11, 2025, plaintiffs took the Symmes and Chiang depositions off calendar. (Hughes Decls., ¶¶ 10 & Exhs. D.)

Hughes further asserts that on March 12, 2025, plaintiffs unilaterally noticed the deposition of the Custodian, and served copies of the Natsumeda Notice, the Butorac Notice, the Roybal Notice, the Carey Notice, the Chiang Subpoena, and the Symmes Subpoena. (Hughes Decls., ¶¶ 11 & Exhs. E.) Hughes contends that plaintiffs also did not confer with Uber as to the scheduling or scope of these depositions or acknowledge Uber’s efforts to meet and confer. (Hughes Decls., ¶¶ 11-12.) According to Hughes, Uber served its objections to the deposition notices and subpoenas on March 19 and 20, 2025. (Hughes Decls., ¶¶ 13 & Exhs. F.)

Hughes notes that Uber’s March 21, 2025, meet and confer letter to plaintiffs’ counsel outlines the grounds on which it objected to the deposition notices and subpoenas described above, which include that the depositions were unlikely to lead to the discovery of relevant or admissible evidence, that the depositions are duplicative and cumulative of testimony and documents already provided, and that the information sought can be achieved by less expensive or burdensome means. (Hughes Decls., ¶¶ 15 & Exhs. G.)

Hughes further notes that plaintiffs’ March 24, 2025, meet and confer letter to Uber demanded that, among other things, Uber withdraw its objections and provide a response by the following day. (Hughes Decls., ¶¶ 16 & Exhs. H.) Hughes contends that the parties reached an impasse regarding the matters at issue. (Hughes Decl., ¶¶ 17.)

In addition, Hughes contends that the parties have produced multiple versions of a Master Services Agreement, statements of work related to the Master Services Agreement, and the background check report on Burgher which have been discussed during the numerous depositions taken to date. (Hughes Decls., ¶¶ 14.)

On the same day plaintiffs filed the Discovery Motions, the Uber Parties filed a motion for an order (the PO Motion) that the depositions of the Custodian, Natsumeda, Roybal, Butorac, Carey, Chiang, and Symmes not be taken. With the exception of references to deposition transcripts submitted in support of the PO Motion, the Hughes declaration offered by the Uber Parties to support the PO Motion is otherwise identical or nearly identical to the Hughes declarations submitted in support of the Uber Parties’ oppositions to the Discovery Motions and described above.

On June 4, 2025, Checkr filed a joinder to the PO Motion.

Analysis:

Code of Civil Procedure section 2017.010 provides: “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.) (Note: Undesignated code references herein shall be to the Code of Civil Procedure unless otherwise indicated.)

“Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by taking in California the oral deposition of any person, including any party to the action.” (Code Civ. Proc., § 2025.010.) “The party who prepares a notice of deposition shall give the notice to every other party who has appeared in the action.” (Code Civ. Proc., § 2025.240, subd. (a).)

“The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc., § 2025.280, subd. (a).) “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, … the party giving the notice may move for an order compelling the deponent’s attendance and testimony….” (Code Civ. Proc., § 2025.450, subd. (a).)

A motion made under subdivision (a) of section 2025.450 must “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice...” and must be “accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(1)-(2).)

Section 2025.410 provides that a party served with a deposition notice which does not comply with section 2025.210 et seq. “waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled....” (Code Civ. Proc., § 2025.410, subd. (a).) The present record, including information appearing in the separate statements separately filed by plaintiffs in support of each of the Discovery Motions, reflects or indicates that the Uber Parties did not serve written objections specifying errors or irregularities in the deposition notices and subpoenas described above.

The oppositions of the Uber Parties to the Discovery Motions also do not include any reasoned factual or legal argument showing why there exists any error or irregularity in any of the deposition notices and subpoenas, or that the Uber Parties promptly served written objections specifying any such errors or irregularities in compliance with section 2025.410.

The allegations of the FAC described above raise the question or issue of whether or not the background investigation or background check of Burgher allegedly performed by Checkr or the Uber Parties in connection with Burgher’s employment application should have disclosed, or was sufficient to disclose, Burgher’s purported prior criminal convictions or that Burgher was on probation for a second “DUI” conviction prior to the background check or investigation. The present record also shows that plaintiffs discovered, during the Zeiter deposition discussed above, information showing that Checkr is the “background check provider” for Uber, that Carey was Zeiter’s “point of contact” at Uber with respect to Uber’s account with Checkr, and that Checkr’s account team worked with Natsumeda, Roybal, and Butorac who were members of Uber’s “Trust and Safety” account team. (Wacker Decls., Exh. 3.)

The record also reflects that the SOW, which describes the screening services and related information and documents provided or to be provided by Checkr to Uber, is governed by an agreement between Uber and Checkr. (Wacker Decl. [Symmes & Chiang Motions], Exh. 3 at Exh. 4, pdf p. 1 [CHCKR 01598].) Information appearing in the SOW also indicates that Symmes and Chiang were the project managers for Uber with respect to the services described in that document.

“In the absence of contrary court order, a civil litigant’s right to discovery is broad.... Section 2017.010 and other statutes governing discovery ‘must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial.’ [Citation.]” This means that ‘disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it.’ [Citation.]” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541 (Williams).)

For all reasons discussed above, plaintiffs have made a sufficient showing that the Custodian, Natsumeda, Roybal, Butorac, Carey, Symmes, and Chiang are or may be in possession, custody, or control of information or evidence regarding the services provided by Checkr to Uber. Apart from the general and conclusory arguments described above, the Uber Parties offer no information or evidence, such as declarations made under penalty of perjury by the Custodian, Natsumeda, Roybal, Butorac, Carey, Symmes, or Chiang, showing that these persons have no knowledge of, or were not involved in, the events alleged in the FAC including with respect to any background checks or investigations of Burgher, or reports made regarding these matters. For these reasons, plaintiffs have made a sufficient showing that the Custodian, Natsumeda, Roybal, Butorac, Carey, Symmes, and Chiang are or may possess, or be in custody or control, of information or documents regarding the matters at issue in this case, which may be admissible or may lead to the discovery of admissible evidence.

Plaintiffs also contend that there exists good cause for the production of the documents described in the inspection demands described in the deposition notices and subpoenas. (Code Civ. Proc., § 2025.450, subd. (b)(1); Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223-224 [good cause requirement also applies to inspection demands directed to a nonparty].) Subject to exceptions based on privilege or claims of attorney work product which do not appear to apply here, plaintiffs’ burden to show good cause “is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

Information appearing in the separate statement submitted in support of the Butorac Motion shows that the Butorac Notice includes eight demands that Butorac produce at the deposition: “DATA RETENTION POLICIES (‘DRP’)” applicable to the ‘INFORMATION ITEMS” sought by plaintiffs “in the following requests for production of DOCUMENTS...”; deposition transcripts, including any exhibits, for depositions in which Butorac appeared as an employee of or corporate witness for Uber or its subsidiaries, from October 26, 2016, to the present; job descriptions for Butorac’s current or former positions with Uber; “Knowledge Base” articles relating to or referencing “Background Checks, Motor Vehicle Checks, Motor Vehicle Reports, Serious Investigations, Investigations, Trust, and/or Safety...”; Uber training manuals or policies received or used by Butorac in the performance of Butorac’s duties as an employee of Uber; and emails or other communications sent or received by Butorac since October 26, 2016, from “email accounts including the domain ‘@checkr.com’....” (Butorac Motion Sep. Stmt. at pp. 8, 14, 19, 23-24, 28, 33, 38 & 42.)

In response to each of the inspection demands described above, the Uber Parties assert objections and, notwithstanding those objections, state that “in the interest of cooperation, this witness is unable to comply with this request because they are not in personal possession of documents responsive to this request.” (Butorac Motion Sep. Stmt. at pp. 8, 14-15, 19, 24, 28-29, 33, 38 & 42-43.)

Even if the court were to accept as true the Uber Parties’ representation that Butorac is not in “personal possession” of the documents described in the inspection demands further detailed above, plaintiffs may obtain discovery of documents which are in the “custody [and] control” of Butorac whether or not Butorac is in “personal” possession of those documents. (Code Civ. Proc., § 2031.010.)

Notwithstanding that plaintiffs may obtain discovery of documents and information in Butorac’s custody or control or that the Uber Parties have not submitted a declaration of Butorac sufficient to show why Butorac cannot or is not required to produce the documents described in the Butorac Notice, there is insufficient information at this stage of the proceedings to show or indicate whether Butorac will produce documents, object to the production of any documents during the deposition, or fail or refuse to produce any documents, sufficient to permit the court to presently determine whether Butorac should be compelled to produce the documents requested by plaintiffs. For these reasons, there is nothing presently for the court to compel with respect to the inspection demands made in the Butorac Notice.

Information appearing in the separate statements submitted in support of the Roybal Motion, the Carey Motion, the Natsumeda Motion, the Symmes Motion, and the Chiang Motion shows that the inspection demands appearing in the deposition notices and subpoenas directed to these individuals are identical to those appearing in the Butorac Notice and described above, and that Uber’s responses to these demands are identical to those described above. (See Roybal Motion, Carey Motion & Natsumeda Motion Sep. Stmts. at pp. 8, 14-15, 19, 23-24, 28-29, 33, 38 & 42-43; Symmes Motion & Chiang Motion Sep. Stmts. at pp. 8-9, 15, 20-21, 25-26, 30-31, 35-36, 41 & 46.)

In addition, the separate statement submitted in support of the Custodian Motion also shows that the Custodian Notice includes identical or effectively identical inspection demands and that the Uber Parties asserted the same or similar objections to these demands. (Custodian Motion Sep. Stmt. at pp. 8, 12, 15-16, 19-20, 23-24, 27, 31, 35, 38-39, 42-43, 46-47, 50, 54, 58, 61-62, 65-66, 69-70, 73, 77, 81, 84-85, 88-89, 92-93, 96, 100, 104, 107-108, 112, 116-117, 120-121, 125, 129, 133-134, 128, 142, 146-147, 151, 155.)

The same reasoning and analysis apply to the inspection demands set forth in the Custodian Notice, the Roybal Notice, the Carey Notice, the Natsumeda Notice, the Symmes Subpoena, and the Chiang Subpoena. For all reasons stated above, in the absence of any information or evidence showing that the Custodian, Butorac, Roybal, Carey, Natsumeda, Symmes, or Chiang have failed or refused to produce any documents at a deposition, there is nothing for the court presently to compel with respect to the inspection demands appearing in the deposition notices and subpoenas.

For all reasons discussed above, plaintiffs have met their burden to show why the attendance and testimony of the Custodian, Butorac, Roybal, Carey, Natsumeda, Symmes, and Chiang at a deposition should be compelled.

As grounds for the PO Motion, the Uber Parties contend that Zeiter’s testimony reveals only that Carey, Natsumeda, Roybal, and Butorac are part of a team at Uber that works renewing a Master Services Agreement (the MSA) between Checkr and Uber. The Uber Parties assert that, though these persons might have communicated with Checkr, they have not been identified by Uber as having any information related to this lawsuit and do not conduct background checks or prepare related reports such that there exists any reason to believe that these persons have personal knowledge of Burgher or his background check report. To the extent these individuals have any relevant knowledge, the Uber Parties argue, this knowledge relates to topics which have been addressed extensively by Uber’s PMQ, Checkr’s witnesses, and documents produced during discovery.

In addition, the Uber Parties assert that the means of communication and data transmission between Checkr and Uber for the procurement and provision of background checks, the background check report regarding Burgher, and the background check process are reflected in the documents produced to plaintiffs during discovery and have been testified to numerous times. For these reasons, the Uber Parties argue, any relevant personal knowledge that Butorac, Roybal, Carey, Natsumeda, Symmes, and Chiang may have would be cumulative or duplicative of the deposition topics and testimony already obtained by plaintiffs.

The Uber Parties also state that the services provided to Uber are set forth in statements of work which are entered into pursuant to the MSA, that the MSA and other contract related documents have been produced to plaintiffs and speak for themselves, and that plaintiffs have spent significant amounts of time asking various deponents to read the terms of the MSA and related documents which the Uber Parties contend was unnecessary.

The Uber Parties further contend that plaintiffs are attempting to delay Uber and Checkr’s motions for summary judgment, and that taking of the depositions at issue will place a significant burden on Uber by forcing it to incur litigation expenses and by causing its employees to forgo their obligations to the business to prepare for and attend the depositions.

In addition, according to the Uber Parties, a pattern of threatening witnesses with monetary sanctions when plaintiffs’ counsel does not receive the testimony they want has emerged during the depositions of Uber and Checkr witnesses. The Uber Parties contend that plaintiffs’ counsel’s behavior is intended only to harass and intimidate witnesses because plaintiffs have never filed any of the threatened motions. The Uber Parties also provide examples of purported harassment of witnesses by plaintiffs’ counsel during depositions.

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” (Code Civ. Proc., § 2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) Section 2025.420, subdivision (b), “provides a nonexclusive list of permissible directions that may be included in a protective order.” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316, original italics (Nativi).)

“Where a party must resort to the courts, ‘the burden is on the party seeking the protective order to show good cause for whatever order is sought. [Citation.]’ [Citation.]” (Nativi, supra, 223 Cal.App.4th at p. 318.) The party seeking a protective order bears the burden of establishing good cause for the relief requested, which generally requires a showing that the burdens involved in the discovery procedure clearly outweigh the benefits sought by the proponent of the discovery procedure. (Id. at p. 318; Code Civ. Proc., § 2017.020, subd. (a); see also Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110-1111 [“[t]he need for, and nature of, such a protective order will, of course, depend on the circumstances of the individual case”].) Further, good cause must be established with factual specificity, and unsubstantiated conclusions or general allegations of harm will not suffice. (Nativi, supra, 223 Cal.App.4th at p. 318.)

For all reasons discussed below, the general, conclusory, and unsubstantiated points advanced by the Uber Parties in the PO Motion are presently insufficient to show, with the requisite factual specificity, good cause for an order that the depositions at issue not be taken.

For example, as noted above, the Uber Parties do not submit declarations of the Custodian, Butorac, Roybal, Carey, Natsumeda, Symmes, or Chiang, made under penalty of perjury, showing why these individuals do not possess, or are not in custody or control of, discoverable information or documents or why these individuals would be subjected to any undue burden or expense apart from the burdens typically imposed in litigation. In addition, the Uber Parties’ failure to appropriately substantiate the representations made in their oppositions to the Discovery Motions and described above forces the court and plaintiffs to speculate as to the nature of the information or documents plaintiffs may discover during an examination of the Custodian, Butorac, Roybal, Carey, Natsumeda, Symmes, or Chiang.

As to the Uber Parties’ contention that the taking of the depositions at issue will cause an undue burden or expense, “some burden is inherent in all demands for discovery.” (West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 418.) Wholly absent from the oppositions of the Uber Parties is sufficient reasoned argument showing “ the quantum of work required” to attend the depositions or why there exists “an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (Id. at p. 417; see also Williams, supra, 3 Cal.5th at p. 549 [“the party opposing discovery has an obligation to supply the basis for this determination”].) The general arguments raised by the Uber Parties are also insufficient to show why the depositions at issue are unduly burdensome “taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” (Code Civ. Proc., § 2019.030, subd. (a.).)

The concerns regarding burden and expense raised by the Uber Parties exist in every litigated case. For all reasons discussed above, the general and conclusory arguments advanced by the Uber Parties, which lack factual specificity, are insufficient to permit the court to conclude that any expense or burden that may be incurred by the Uber Parties or the persons identified above are of any greater concern or magnitude in this particular case, and fail to demonstrate good cause for the protective order requested in the PO Motion.

Further, though the Uber Parties contend that the Discovery Motions are an attempt to delay pending motions for summary judgment, a court may continue a motion for summary judgment to allow additional discovery, including under circumstances where “the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted....” (Code Civ. Proc., § 437c, subd. (i); see also subd. (h).) For these reasons, the Uber Parties’ contentions regarding delay do not persuade the court that good cause exists for a protective order.

In addition, and notwithstanding whether the Custodian, Butorac, Roybal, Carey, Natsumeda, Symmes, or Chiang may offer testimony which is in some respects duplicative or cumulative of information obtained by plaintiffs from other sources, the information and evidence submitted by plaintiffs as further discussed above demonstrate that plaintiffs are entitled to take the depositions at issue in the Discovery Motions. (See Code Civ. Proc., § 2017.010.) The court is also not persuaded that any cumulative or duplicative discovery that may be obtained during the depositions of these persons is “unreasonabl[e]....” (Code Civ. Proc., § 2019.030, subd. (a.).)

There is also no record showing that the Uber Parties requested a suspension of, or moved for a protective order in connection with, any deposition taken in this case based on any bad faith conduct, threats, or harassment of a witness by plaintiffs’ counsel. (See, e.g., Code Civ. Proc., § 2025.470 [authorizing the suspension of the taking of testimony to the extent the examination is conducted “in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses that deponent...”].)

The Uber Parties alternatively request that the court impose limitations or conditions on the depositions at issue by entering an order that the testimony from the individuals identified above be taken by written examination or that the scope of the examination be limited to matters relevant to plaintiffs’ claims, and by admonishing plaintiffs’ counsel to act in accordance with court rules and counsel’s professional obligations. The Uber Parties contend that these conditions or limitations will prevent any harassment, bullying, or intimidation of witnesses, will avoid unnecessary expenses, and will prevent irrelevant questioning.

The same reasoning and analysis apply with respect to the alternative requests made by the Uber Parties.

Moreover, “[f]or discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....’ [Citation.] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases. [Citation.]” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546, original italics.) Presently, and without the benefit of a specific question, there exists insufficient information to permit the court to determine whether the scope of plaintiffs’ examination includes or will include matters which are not discoverable.

The court also notes that the alternative requests made by the Uber Parties and described above, and the Uber Parties’ additional request for an order that the deposition of Uber’s PMQ is terminated, are not set forth in the notice of the PO Motion which includes a sole request for an order that the depositions of the Custodian, Butorac, Roybal, Carey, Natsumeda, Symmes, and Chiang not be taken. (Cal. Rules of Court, rule 3.1110(a) [the “notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order....”]; Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [“the trial court may consider only the grounds stated in the notice of motion....”].) Further, the Uber Parties’ request for an order terminating an unrelated deposition is a matter outside the scope of the present proceeding.

For all reasons discussed above, the Uber Parties have not met their burden to establish good cause for the protective order requested in the PO Motion. Therefore, the court will deny the PO Motion.

In addition, and for all reasons further discussed above, the court will, at this stage of the proceedings, grant the Discovery Motions, in part, and order the depositions of the Custodian, Butorac, Roybal, Carey, Natsumeda, Symmes, and Chiang to proceed. As to the production of any documents described in the deposition notices and subpoenas directed to these persons, the court expects that the deponents and the Uber Parties will comply with their statutory obligations.

The court will further order counsel for the Uber Parties to, on or before August 1, 2025, provide to plaintiffs’ counsel three dates on which the Custodian, Butorac, Roybal, Carey, and Natsumeda are each available to attend and testify at a deposition. On or before August 8, 2025, plaintiffs shall select the dates of the depositions of these persons from those provided by the Uber Parties, and notify the Uber Parties of those dates. To the extent the Uber Parties fail to provide dates on which the Custodian, Butorac, Roybal, Carey, Natsumeda are available to attend and testify at a deposition as ordered herein, plaintiffs may unilaterally select and notice the dates of these depositions.

To the extent the Uber Parties’ counsel is able to obtain and provide dates for the depositions of Uber’s former employees Symmes and Chiang, the Uber Parties shall also, by the date set forth above, provide to plaintiffs three dates on which these persons are available to attend and testify at a deposition. If the Uber Parties are unable or fail to provide dates on which Symmes and Chiang are available to attend a deposition, then the depositions of these persons may be taken upon effective and valid service by plaintiffs of statutorily compliant notice. (See, e.g., Code Civ. Proc., § 2020.010 et seq.)

To the extent further discovery disputes develop, the court will consider plaintiffs’ request that the court appoint a discovery referee. (See Code Civ. Proc., § 639, subd. (a)(5).)

The court has reviewed the proposed orders submitted by plaintiffs and does not intend to sign them. Plaintiffs shall submit, for the court’s review, proposed orders which conform to the court’s ruling herein.