Judge: Dennis J. Keough, Case: 2021-01216871, Date: 2023-05-18 Tentative Ruling

Motion to Compel Deposition (Oral or Written)

Plaintiff eGumball, Inc.’s Motion to Compel Visa’s Compliance with the October 6, 2022 Court Order and the Depositions of Elizabeth Scofield and Paul Fabara is DENIED.

The 10/6/22 order compelled Defendant Visa, Inc. to produce a person most knowledgeable (PMK) regarding the following topics:

Category No. 1: VISA’s handling or treatment of merchant accounts associated with the pornography website Pornhub.com owned and operated by MINDGEEK, including any investigations into illegal or brand-damaging conduct, any fines or other actions taken by VISA or its member banks, and any MATCH listings;

Category No. 2: VISA’s handling or treatment of merchant accounts associated with the pornography website Pornhub.com owned and operated by MINDGEEK, including any termination of MINDGEEK;

Category No. 3: VISA’s handling or treatment of merchant accounts associated with the pornography website Pornhub.com owned and operated by MINDGEEK, including any recertification of MINDGEEK;

and

Category No. 4: VISA’s handling or treatment of merchant accounts associated with the pornography website Pornhub.com owned and operated by MINDGEEK, including the application of VISA’s rules and regulations for merchants.

Code of Civil Procedure section 2025.230 states,

“If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.”

Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1395–1396 states, “As one treatise explains, ‘[t]he purpose of this provision is to eliminate the problem of trying to find out who in the corporate hierarchy has the information the examiner is seeking. E.g., in a product liability suit, who in the engineering department designed the defective part?’ (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) ¶ 8:474, p. 8E-18.) The authors of the treatise explain that ‘[u]nder former law, the entity was required only to designate 'one or more' officers or employees to testify on its behalf. This permitted considerable 'buck-passing' and 'I don't know' answers at deposition.’ (Ibid.) Under the current law, ‘[i]f the subject matter of the questioning is clearly stated, the burden is on the entity, not the examiner, to produce the right witnesses. And, if the particular officer or employee designated lacks personal knowledge of all the information sought, he or she is supposed to find out from those who do!’” (Id., ¶ 8:475, p. 8E-18.)”

Here, Defendant Visa, Inc. produced Stefaan D’Hoore as its PMK pursuant to the 10/6/22 order on 11/8/22. The Court finds Defendant met its burden of producing a witness who was reasonably familiar with the four categories of deposition under section 2025.230. Moreover, Plaintiff has not shown good cause for additional discovery including depositions of Elizabeth Scofield and Paul Fabara for purposes of opposing the pending anti-SLAPP motion filed by Defendant Merrick Bank Corporation. (Code Civ. Proc. § 425.16(g).) This order is without prejudice to Plaintiff’s ability to move for further discovery involving these witnesses or topics after the Court has ruled on the anti-SLAPP motion.

Prevailing party shall give notice.