*1 Now before this Court is a joint discovery dispute, raised in two nearly identical Joint Discovery Letter Briefs, between Plaintiffs Rhayna Rose Jones, Jacoby Jones, R.J. (a minor), and J.J. (also a minor), on the one hand, and Defendant Sunbelt Rentals, Inc. (“Sunbelt”), on the other hand. [Dkts. 85, 120]. The Parties raise two disputes: (1) whether Defendant Sunbelt Rentals, Inc. (“Sunbelt”), having already taken twelve depositions, should be granted leave to take up to forty-three additional depositions; and (2) whether Plaintiffs should be compelled to produce the entirety of decedent Jacoby Jones, Sr.'s cell phone to allow Sunbelt the opportunity to copy the cell phone's entire digital content. Id. The Parties met and conferred but were unable to come to an agreement. [Dkt. 120 at 1]. Having carefully reviewed the Joint Discovery Letter Briefs and supporting documents, the Court finds this discovery dispute is appropriate for disposition on the papers without need for a hearing, in accordance with Civil Local Rule 7-1(b). For the reasons explained below, the Court DENIES Sunbelt's request to take more than the rules-allotted number of depositions and GRANTS-IN-PART Sunbelt's request for the production of the decedent's cell phone.

I. BACKGROUND

This is a wrongful death action filed by Plaintiffs, who are the heirs of the decedent. See Dkt. 1. This case was referred to the undersigned for all discovery in this case. [Dkt. 38]. The gravamen of Plaintiffs' Complaint is that Defendants Sunbelt and DC Solar, Inc. (“DC Solar”) are responsible for the decedent's death due to alleged negligence involving a motor vehicle collision occurring on September 5, 2020. See Dkt. 1. Plaintiffs assert two causes of action under California law: (1) Negligence – Wrongful Death; and (2) Negligence-Survival Action. See id.

The instant discovery disputes involve Sunbelt's (1) request for leave of Court to take more depositions in excess of the number of allotted depositions under Fed. R. Civ. P. 30, and (2) request for inspection, downloading, copying, and production of electronic files from the decedent's cell phone. [Dkt. 120]. Sunbelt has taken twelve depositions to date. Id. at 1–2.

Without leave of Court or substantive explanation, the Parties filed two nearly identical Joint Discovery Letter Briefs on the same issues discussed herein, separated by a few weeks. The Joint Discovery Letter Brief dated October 20, 2023, Dkt. 120, is in large part duplicative of the Joint Discovery Letter Brief dated September 18, 2023, Dkt. 85, and both address the same two disputes. The re-filed October 20, 2023, Joint Discovery Letter Brief attached additional exhibits allegedly relevant to portions of the discovery disputes. See Dkts. 85, 120. For ease of reference, the Court will cite the October Joint Discovery Letter Brief as it is substantively the same as the September Joint Discovery Letter Brief. Compare Dkt. 120 with Dkt. 85. The analysis and discussion herein apply equally to both Discovery Letter Briefs because they raise the same issues and disputes. Thus, the resolution of one Discovery Letter Brief by necessity resolves the disputes in both Discovery Letter Briefs.

II. LEGAL STANDARD

*2 In a diversity action such as this, the scope of permissible discovery is governed by federal law. Knievel v. ESPN, 393 F.3d 1068, 1073 (9th Cir. 2005) (“federal courts sitting in diversity must apply the Federal Rules of Civil Procedure”); see also Cuprite Mine Partners LLC v. Anderson, 809 F.3d 548, 554 (9th Cir. 2015). “Discovery of nonprivileged information not admissible in evidence remains available so long as it is otherwise within the scope of discovery.” Adv. Comm'ee Notes to 2015 Amendment to Fed. R. Civ. P. 26.

Under Federal Rule of Civil Procedure 30(a)(2), parties are limited to ten depositions, unless the parties stipulate otherwise or obtain leave of court to take more than ten depositions per side. When a party seeks leave to take depositions in excess of the presumptive limit of ten set forth in Rule 30, courts “must grant leave to the extent consistent with Rule 26(b)(1) and (2).” Under the familiar standard under Rule 26(b)(1), parties may obtain discovery regarding any “nonprivileged matter” that is “relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1) (emphasis added); Henson v. Turn, Inc., No. 15-cv-01497-JSW (LB), 2018 WL 5281629, at *5 (N.D. Cal. Oct. 22, 2018). While Rule 26(b)(2)(A) empowers a court to alter the limits on the number of depositions, the Rule further requires that “the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C) (emphasis added); see also Fed. R. Civ. P. 30, Adv. Comm'ee Notes of 1993 Amendment (“One aim of this revision is to assure judicial review under the standards stated in Rule 26(b)(2) before any side will be allowed to take more than ten depositions in a case without agreement of the other parties.”).

A party seeking to exceed Rule 30(a)(2)'s presumptive ten deposition “limit bears the burden of making a ‘particularized showing’ of the need for additional depositions.” Canton v. U.S. Foods, Inc., No. 22-cv-04226-TLT (LJC), 2023 WL 5496482, at *2 (N.D. Cal. Aug. 24, 2023) (quoting X One, Inc. v. Uber Techs., Inc., No. 16-cv-06050-LHK (SVK), 2019 WL 2207645, at *2 (N.D. Cal. May 22, 2019)). “Pursuant to Rule 26(b)(2)(C), courts have found it proper to deny additional 3 depositions where they would be cumulative, without proper purpose, e.g., there is no evidence they would reveal anything other than what a party had already obtained, the party had ample opportunity to obtain the information by discovery in the action, or they would create an unreasonable burden or expense.” Canton, 2023 WL 5496482, at *2 (quoting Rounds v. Bd. of Trustees of California State Univ., No. 20-cv-00170-AWI (SAB), 2022 WL 17978501, at *2 (E.D. Cal. Dec. 28, 2022)); accord Barnes v. Equinox Grp., No. 10-cv-03586-LB, 2012 WL 13060044, at *2 (N.D. Cal. June 14, 2012); Cisco Sys. Inc v. Arista Networks, Inc., No. 14-cv-05344-BLF, 2016 WL 632000, at *2 (N.D. Cal. Feb. 17, 2016). By imposing a presumptive ten-deposition limit, the Rule's “objective is to emphasize that counsel have a professional obligation to develop a mutual cost-effective plan for discovery in the case.” Fed. R. Civ. P. 30, Adv. Comm'ee Notes 1993 Amendment.

*3 Further, courts consider the complexity of the case and the numbers of parties involved when deciding whether or not to grant leave to exceed ten depositions. E.g., Authentec, Inc. v. Atrua Techs., Inc., No. 08-cv-1423-PJH, 2008 WL 5120767, at *2 (N.D. Cal. Dec. 4, 2008) (denying a party seeking leave of court to take additional depositions because “the case was not a complex class action with numerous plaintiffs and defendants.”); Couch v. Wan, No. 08-cv-1621-LJO (DLB), 2011 WL 4499976, at *2 (E.D. Cal. Sept. 27, 2011) (granting a party seeking leave of court to take additional depositions because the “complexities of [the] case justifie[d] exceeding the presumptive deposition limit”); Newport v. Burger King Corp., No. C-10-04511-WHA DMR, 2011 WL 3607973, at *2 (N.D. Cal. Aug. 16, 2011) (granting a party seeking leave of court to take additional depositions because of the large number of plaintiffs).

III. DISCUSSION

A. Sunbelt's Request to Take Forty-Three Additional Depositions.

Sunbelt has already taken twelve depositions of fact witnesses, including Plaintiffs and their Guardians ad Litem, witnesses identified in Plaintiff's Initial Disclosures, and three witnesses identified by Sunbelt. [Dkt. 85].

According to the Joint Discovery Letter Brief, the Parties have already discussed Sunbelt's request to take the depositions of three additional witnesses: Ellen Peck, Jonathan Mei, and Tommy Quan, each identified as “accident witnesses.” [Dkt. 120 at 2]. Without naming these three witnesses explicitly, Plaintiffs “do not contest the need to depose the percipient witnesses to the incident.” Id. at 3. The Court interprets this statement of non-opposition as a reference to these three witnesses (Peck, Mei, and Quan). Sunbelt represents that Plaintiffs' stipulation to the taking of these three depositions is “predicated on the requirement that Sunbelt meet and confer regarding a mutually convenient date.” Id. at 2. Accordingly, the Court hereby DENIES AS MOOT Sunbelt's request to take the depositions of these three witnesses (Peck, Mei, and Quan). Within ten (10) business days of this Order, the Parties are hereby ORDERED to meet and confer to reasonably discuss the scheduling and taking of the depositions of these three witnesses and then to file on or before that deadline a Stipulation and [Proposed] Order regarding these depositions pursuant to Fed. R. Civ. P. 30(a)(2). The Parties are further ORDERED to fully comply with the Court's Standing Order for Discovery in Civil Cases, particularly Section D's provisions regarding reasonably conferring in advance for scheduling depositions at mutually convenient times and places.

As noted, Sunbelt seeks leave of court to depose a total of forty-three individuals. [Dkt. 120 at 1]. In light of the resolution of the three undisputed depositions above, there remains a dispute over the forty additional depositions which Sunbelt seeks leave to take. Sunbelt bears the burden of demonstrating a particularized showing of its need for additional depositions. Canton, 2023 WL 5496482, at *2 (quoting X One, 2019 WL 2207645, at *2). As noted, under Rule 30(a)(2), whether to grant a party leave to take additional depositions is to be evaluated to the extent consistent with Rule 26(b)(1) and (2). The scope of relevant discovery under Rule 26(b)(1) is tied to the claims and defenses asserted in the case, balanced against proportionality. See In re Williams-Sonoma, Inc., 947 F.3d 535, 539 (9th Cir. 2020) (after 2015 amendment to Fed. R. Civ. P. 26(b)(1), “the matter sought must be ‘relevant to any party's claim or defense.’ Rule 26(b)(1). That change, however, was intended to restrict, not broaden, the scope of discovery. See Rule 26(b)(1) advisory committee's note to 2000 amendment; see also id. advisory committee's note to 2015 amendment . ...”). Under Fed. R. Civ. P. 26(b), as amended since 2015, the determination as to relevance is only part of the inquiry. While discovery directed to a relevant matter is allowed, that discovery must also be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). And as noted, under Rule 26(b)(2), the court must deny the requested additional discovery if such discovery is outside the scope of Rule 26(b)(1). The Court must also deny any such additional discovery under Rule 26(b)(2) where such discovery is unreasonably cumulative or duplicative or can be obtained from some other source that is more convenient, less burdensome, or less expensive; or where the party seeking discovery has had ample opportunity to obtain the information by discovery in the action. See Fed. R. Civ. P. 26(b)(1)-(2).

*4 Here, Sunbelt advances one argument for its need for the additional depositions. [Dkt. 120 at 1]. Specifically, Sunbelt argues it needs additional depositions because of Plaintiffs' amendments to their Initial Disclosures which identified thirty-nine witnesses or categories of witnesses under Rule 26(a)(1). Id. at 2. Sunbelt argues the increased number of individuals in Plaintiff's Initial Disclosures alone warrants additional discovery. Id. at 1. Sunbelt lists the names or initials of twenty-one specific additional individuals sought to be deposed, and merely identifies other individuals by category or title (such as fourteen “CHP officers and first responders” and “COR [presumably, “custodian of records”] of California Highway Patrol. Id. at 2. Sunbelt offers no details or reasons why it needs to depose each of the specifically named individuals, on an individualized basis, but rather relies exclusively on Plaintiffs' listing them in the Initial Disclosures. Id.

Further, Sunbelt lists names of various organizations or companies sought to be deposed, including Koinonia Family Services, Seneca Family Agencies, Department of Housing and Urban Development, City/County of San Francisco Medical Examiner, IPI Security Services, “other treaters and teachers of RJ, and other witnesses identified in discovery and deposition.” Id. Sunbelt provides no indication as to the number or scope of topics under Rule 30(b)(6) for each of these organizations, and thus provides no indication on how many designees would be implicated by these corporate depositions. Indeed, Sunbelt admits that its request for an additional forty depositions is open-ended as “discovery and investigation are ongoing, it is not yet possible to provide a precise estimate for the number of depositions that remain.” Id. Sunbelt offers no details or reasons why it needs to depose each of the specifically named organizations or companies, on an individualized basis, but again relies on Plaintiff's listing them in the Initial Disclosures alone. Id.

In response, Plaintiffs oppose Sunbelt's request for excess depositions on multiple grounds. Plaintiffs argue overall that forty-three depositions which include “all custodians of records” and “anyone within each of the stated organizations and lay witnesses is overbroad, frivolous and harassing.” [Dkt. 120 at 3]. As discussed further below, Plaintiffs raise specific objections to some, but not all, of the specifically identified depositions.

As an overall matter, Sunbelt has failed to meet its burden to demonstrate a particularized showing of need for the requested, additional depositions, and Sunbelt has failed to show how the additional depositions would not be cumulative. Canton, 2023 WL 5496482, at *2 (quoting X One, 2019 WL 2207645, at *2). The fact that Plaintiffs listed additional individuals or organizations in their supplemental Initial Disclosure, by itself, does not constitute a demonstration of a particularized showing of need for additional depositions. The instant dispute is analogous to X One, Inc. v. Uber Technologies, Inc., where the Court denied a motion to exceed the allotted ten depositions. X One, 2019 WL 2207645, at *2. In X One, the Court found that amendments to an Initial Disclosure were not enough by themselves to meet the burden of a particularized showing of a party's need for additional depositions. Id. Like the moving party in X One, here Sunbelt “fails to articulate why the additional depositions it seeks are necessary or what non-duplicative discovery it seeks from deposing these witnesses in their individual capacities.” Id. For example, Plaintiffs argue that Sunbelt's request to depose “[a]ny and all of the fourteen first responders is cumulative, unnecessary, and harassing.” Id. at 4. Indeed, Sunbelt offers no explanation why deposing each of fourteen CHP officers and first responders is necessary and would avoid duplicative discovery. Sunbelt does not explain or even address whether document subpoenas to the California Highway Patrol and percipient witnesses have been pursued, and if so, why such documents are not duplicative of the depositions sought. Sunbelt has not addressed whether any other depositions already taken or the depositions of the witnesses to the incident leading to decedent's death would fail to be duplicative of these CHP or first responder depositions. Sunbelt offers no explanation why any of these depositions would yield unique information, and in particular why any one of the first responders would fail to be duplicative of any of the others. Similarly, Sunbelt does not address why deposing each of three different forensic toxicologists would be cost-effective, non-duplicative, and necessary. See Dkt. 120 at 2. Further, to the extent Sunbelt seeks to depose every single custodian of records of each organization is not justified, and Sunbelt fails to explain why it apparently has not pursued more cost-effective and proportional methods to establish authenticity of documents to the extent any documents are not already self-authenticating. There has simply been no attempt by Sunbelt to make a particularized showing as to any of the requested additional forty depositions, despite having filed two Joint Discovery Letter Briefs on the issues.

*5 The Court is particularly concerned about the lack of proportionality and duplicative nature in Sunbelt's request in light of the discovery already taken. Sunbelt has already taken twelve depositions, including of three witnesses identified by Sunbelt itself. As discussed above, the Parties will be filing with the Court a Stipulation for Sunbelt to take three additional depositions. This is a case in which Plaintiffs have previously limited their damages theories and acknowledged that California law limits the types of damages available. A party taking fifteen depositions of fact witnesses in a wrongful death action involving a sole decedent and his family, and two defendants (only one of whom is actively leading discovery), is a high number already given the issues involved in this case and the amounts apparently at issue. Taking depositions of six different fact witnesses to the incident resulting in decedent's death also appears to be an unusually high number and, in any event, exemplifies the Court's concerns as to lack of proportionality, cumulativeness, and duplication.

Sunbelt's request for leave to take forty more depositions (for a total of fifty-five total in this case, if the request were granted) is excessive. The Advisory Committee Notes to Rule 30(a) make clear that the ten-deposition limit “is to emphasize that counsel have a professional obligation to develop a mutual cost-effective plan for discovery in the case.” Fed. R. Civ. P. 30, Adv. Comm'ee Notes to 1993 Amendment. One Party taking a total of fifty-five depositions is not cost-effective and is not proportional to the needs of a case such as this, even if it were proposed at the initial Rule 26(f) conference of counsel or at the initial Case Management Conference. That same Party seeking leave to take forty or more additional depositions after already having taken twelve (with three more unopposed) depositions is even less cost-effective and not proportional to the needs of the case. Finally, while not dispositive, the Court is mindful of the burden of the costs of so many additional depositions on the Plaintiffs, who are individuals and not deep-pocketed corporate defendants.

3. Sunbelt's Request to Take the Deposition of Plaintiff R.J.

As noted, Plaintiffs have raised specific objections and thus the Court addresses specific disputes as to certain of the additional depositions Sunbelt seeks leave to take.

First, among the additional depositions, Sunbelt seeks leave to depose Plaintiff R.J., a minor. [Dkt. 120 at 2]. Plaintiffs object and aver that “Plaintiff does not intend to call R.J. as a witness at trial .... His Guardian Ad Litem has already testified[.]” Id. at 4. Based on the factual summary of the case, it is clear that Plaintiff R.J. is not a percipient witness to the incident leading to decedent's death while riding a motorcycle on the highway. See Joint Case Management Statement of Oct. 3, 2023, at 1–2 [Dkt. 112]. And, as Plaintiffs have repeatedly represented, Plaintiffs will not call R.J. as a witness at trial. [Dkt. 120 at 4]. Other than listing Plaintiff R.J. in the list of forty additional depositions, Sunbelt provides no rebuttal to Plaintiffs on this issue. Id. at 2. Accordingly, Sunbelt has failed to show that taking R.J.'s deposition is both relevant, non-duplicative (especially with regard to his Guardian ad Litem's testimony), and proportional to the needs of the case for purposes of discovery. Fed. R. Civ. P. 26(b)(2). Further, as noted, Sunbelt has already deposed R.J.'s Guardian ad Litem (his mother). [Dkt. 120 at 4]. Thus, Sunbelt has already used alternative means to obtain discovery from a source that is clearly less burdensome and likely cumulative. Fed. R. Civ. P. 26(b)(2).

Further, Plaintiffs object that taking R.J.'s deposition would risk injuring his mental health and would allegedly be traumatizing. [Dkt. 120 at 4]. Plaintiffs argue that R.J.'s mother has testified that she is afraid deposing R.J. would further traumatize him. Id. Plaintiffs proffer, but do not provide to the Court, support for these assertions from R.J.'s doctors. Id. Accordingly, the Court makes no express findings on the potential impact on R.J.'s mental health, but the Court notes that it is generally acknowledged that sitting for a deposition can be stressful and can be unduly burdensome for a minor, particularly a minor undergoing mental health treatment. See, e.g., Najera-Aguirre v. Riverside, No. 18-cv-762-DMG (SPX), 2019 WL 3249613, at *4 (C.D. Cal. Apr. 16, 2019) (“Given the burden and potential trauma to the minor plaintiffs that would be caused by their depositions, and given that there has been no showing they are expected to be trial witnesses or that defendants need to depose them for any other particular reason, the court will not allow defendants to exceed the ten-deposition limit under the Federal Rules of Civil Procedure for the purpose of deposing the minor plaintiffs.”); Leeward Marine, Inc. v. Dir., Off. of Workers' Comp. Program, 694 F. App'x 627, 630 (9th Cir. 2017) (“Dr. George Bussey, acknowledged that the stress caused by Kealoha's upcoming deposition was ‘a contributing factor’ to the stress Kealoha was experiencing at the time of his suicide attempt.”). Because this case was removed from California Superior Court, R.J.'s Guardian ad Litem was established under California law prior to removal. See Dkt. 1. Under California law, “the court is ‘the guardian of the minor,’ and the guardian ad litem is appointed, if at all, ‘merely to aid and to enable the court to perform that duty of protection.’ ” Chui v. Chui, 75 Cal. App. 5th 873, 898 (Cal. Ct. App. 2022) (citations omitted). Accordingly, the Court finds that taking the deposition of R.J. would not be in R.J.'s interests, given his age, the fact that he is not a percipient witness to the incident leading to decedent's death, and the fact that Plaintiffs will not call him to testify at trial. For these additional reasons, the Court DENIES Sunbelt's request to take Plaintiff R.J.'s deposition, which would be in excess of the ten-deposition presumptive limit as well.

*6 A further category of witnesses Sunbelt seeks leave to depose are “Koinonia Family Services, Seneca Family Agencies, ... Tammy Wong, other treaters and teachers of R.J.” See Dkt. 85 at 2. These appear to be depositions relating to R.J.'s medical service providers and his teachers, and Sunbelt acknowledges that whether or not these depositions would be pursued depends on the Court's ruling on the previous discovery dispute regarding R.J.'s mental health service providers and teachers. Id. at 2 n.2. Plaintiffs “continue to object to Sunbelt's request to depose R.J.'s teachers and treaters.” Id. at 4. Plaintiffs argue that Sunbelt's request is an attempt to “confuse the issues of the lawsuit and these depositions are not proportional to the needs of the case under Rule 26.” Id. The Court ruled on the scope of discovery dispute as to R.J.'s medical history and records by Order dated September 22, 2023. [Dkt. 111]. In that Order, the Court previously ruled that the document subpoena to Koinonia be quashed entirely and that the document subpoena to Seneca be modified and limited. Id. at 22–27. Further, the Court previously ruled that the scope of the document subpoenas as drafted (which included the request for school records) was outside the bounds of relevance and further was not proportional to the needs of the case (nor important for resolving the issues) under Rule 26(b)(1). Id. at 8–9, 13–14.

Plaintiffs argue that these depositions of R.J.'s medical service providers and teachers are an attempt to confuse the issues, are not proportional to the needs of the case, and are an attempt to “annoy, harass, and further harm an already fragile child.” [Dkt. 120 at 4]. Certainly, R.J.'s medical history and educational records are far afield from whether Defendants are liable for the death of R.J.'s father due to a motorcycle crash on the highway which R.J. did not witness. Defendant's request to spend their own and Plaintiffs' resources doing a deep forensic examination of R.J.'s mental health and educational history is not proportional to the needs of the case and has not been shown to be necessary to decide any issues in dispute. Cf. Panico v. BDR Thermea, 2012 WL 3236256, at *3 (N.D. Cal. Aug. 6, 2012) (denying motion to enforce subpoena for medical records, and ordering that in camera review of the documents is not necessary “[i[f Plaintiff does not intend to seek damages for emotional distress”). In the September 22 Order, this Court modified the document subpoena to Seneca, and Sunbelt has deposed R.J.'s Guardian ad Litem – and thus Sunbelt has had opportunity to obtain appropriately defined discovery on R.J.'s condition from more convenient and less burdensome sources. See Fed. R. Civ. P. 26(b)(2)(C)(i). Further, for all the same reasons discussed in the Court's prior Order and consistent with that Order's ruling that the document subpoenas be quashed, the depositions of Koinonia, Seneca, Tammy Wong, and all other unidentified (by Sunbelt) “treaters and teachers” of R.J. are not shown to be relevant, not proportional to the needs of the case, and not shown to be important for resolving the issues. See Dkt. 111. Accordingly and further to the fact that these depositions would be far beyond the ten-deposition limit in Rule 30, Sunbelt's request for leave to take these excess depositions Koinonia, Seneca, Tammy Wong, and all other unidentified (by Sunbelt) “treaters and teachers” of R.J. is DENIED for these additional reasons.

The next deposition for which the Parties have identified a specific objection is Sunbelt's requested Rule 30(b)(6)[1] deposition of the San Francisco Department of Public Works (“SFDPW”). [Dkt. 120 at 2, 4]. It appears that this deposition was originally convened without Sunbelt's counsel's having confirmed with counsel for the SFDPW that they would produce a witness at the noticed date and time. Id. at Exh. A. In the Discovery Letter Brief, Sunbelt provides no explanation as to the relevance or importance of a deposition SFDPW for this case. Id. at 2. Plaintiffs argue that the purpose of this deposition is “to try to find or elicit inadmissible 1101 character evidence[2].” [Dkt 85 at 4]. Of course, it is well-known that the scope of discovery is not limited by the Federal Rules of Evidence, such as Rule 404 addressing character evidence. Plaintiffs' objection on this ground is not well-taken. However, in addition, Plaintiffs argue this deposition was used to “harass and annoy” Plaintiffs and that Sunbelt has other means to obtain discovery on the matters sought by this deposition, such as by document subpoena. [Dkt. 85 at 4].

*7 Because Sunbelt has provided no reasons why this deposition is either relevant or proportional to the needs of the case or necessary to decide any issues, Sunbelt has failed to demonstrate the required particularized showing as to why the SFDPW deposition is necessary. See Fed. R. Civ. P. 26(b)(1). Sunbelt does have other discovery methods available which are more proportional and less burdensome to obtain discovery from the SFDPW and other sources on whatever issues Sunbelt appears to be pursuing (which appears to be an attempt to find evidence of the decedent's background). See Fed. R. Civ. P. 26(b)(2)(C)(i). Moreover, Sunbelt has failed to explain why it has not pursued any other, more proportional and less costly discovery methods on these issues, why the discovery already taken on decedent's background is not cumulative, and why this deposition of SFDPW is important to any important issues in dispute. Accordingly, and further to the fact that this deposition of SFDPW would be beyond the ten-deposition limit in Rule 30, Sunbelt's request for leave to take the excess deposition of SFDPW is DENIED for these additional reasons.

Next, Plaintiffs raise a specific objection to the proposed depositions of the “friends” of the decedent. [Dkt. 120 at 3]. For Victoria Cheeves, Ricky Potts, and Sabrina Wigfall, Plaintiffs argue “[t]he purpose to depose [them] is to go on a further fishing expedition to try to find inadmissible 1101 evidence.”[3] Id. Plaintiffs argue that deposing a fourth “friend” of the decedent only identified as “Doc” is unwarranted (and presumably not relevant) because “it is not known for sure whether or not Doc was actually with decedent” and the requested deposition is a “further attempt to annoy and harass the family.” Id. Sunbelt has deposed family members and has not explained how the depositions of friends of the decedent would be non-duplicative of the depositions already taken. Because Sunbelt has provided no reasons why the depositions of these friends of decedent are either relevant, proportional to the needs of the case, non-duplicative as to each other, or necessary to decide any important issues, Sunbelt has failed to explain why these depositions are justified even if they were not in excess of the ten-deposition limit. See Fed. R. Civ. P. 26(b)(1).

Finally, Plaintiffs aver that both Parties have agreed that deposing Antonio San Miguel and Raysean Jones, Jr. would not be needed and “would be cumulative and harassing[.]” [Dkt. 120 at 3]. Sunbelt does not dispute this agreement between the Parties and does not name either of these two individuals in its list of requested, additional depositions. Id. at 2. However, as noted, Sunbelt vaguely requests leave to take an apparently unlimited number of additional depositions of any other witnesses identified in further discovery, and it is not clear whether that vaguely worded category of requested depositions somehow includes these two persons. Accordingly, for this additional reason, the Court DENIES Sunbelt's request to the extent Sunbelt sought to take the depositions of Antonio San Miguel and Raysean Jones, Jr.

For all the reasons discussed above, both with regard to the request to take more than ten depositions as an overall matter and with regard to the specifically discussed depositions, the Court finds Sunbelt fails to meet its burden to make a particularized showing of the need to exceed the presumptive limit of ten depositions and wholly failed to meet the burdens to justify any of these depositions under the proper legal standards. Accordingly, the Court DENIES Sunbelt's request for additional depositions.

B. The Production of Decedent's Cell Phone.

The second dispute between the Parties concerns the production of electronic files from decedent's cell phone, which apparently is under the custody and/or control of Plaintiffs. The Federal Rules of Civil Procedure allow a party to request electronically stored information; however, the request is limited to information that is “(1) “relevant to any party's claim or defense” and (2) “proportional to the needs of the case.” Henson, 2018 WL 5281629, at *5.

*8 Sunbelt argues that Jermine Genochio (Guardian ad Litem for one of the minor Plaintiffs) testified at her deposition that the decedent's cell phone was released to her by the coroner's office and the phone was in her residence. [Dkt. 120 at 2]. Sunbelt argues that Genochio “agreed to produce the phone to a courier that evening, but refused to produce it when the courier arrived.” Id. at 2. Sunbelt argues it is entitled to possession, inspection, retrieval, and production of broad categories of electronic files from the cell phone because Rule 30(f)(2)(A) “requires that documents and tangible things produced for inspection during a deposition may be inspected and copied, or if the person who produces them wants to keep the originals, they must give all parties a fair opportunity to inspect and copy the originals.” Id. at 3. Sunbelt further argues that the contents of the decedent's cell phone are “relevant to the precise claims that Plaintiffs contend” such as “the nature of [Plaintiffs'] relationship with their father, the frequency of [decedent's] communication with each of his children[,]” “whether [decedent] had a pattern and practice of using drugs/alcohol and driving[,]” “conversations with RJ about his condition[,]” “[decedent's] whereabouts leading up to the accident, whether [decedent] was consuming alcohol or drugs prior to the accident, and whether [decedent] was texting while driving the motorcycle[.]” Id.

Sunbelt argues that it provided Plaintiffs with a proposed digital forensic protocol for the examination of decedent's cell phone. Id. at 2. Sunbelt argues that its protocol included a search time frame from August 6, 2020, through September 6, 2020 (the date of the accident leading to decedent's death). Id. Sunbelt argues that Plaintiffs objected to the proposed digital forensic protocol because it was “absent the nature and scope of the search.” Id. at 2–3. Sunbelt apparently sent Plaintiffs a revised protocol which defined the search to include “information the cell phone's carrier has stored on the phone, which will include data usage, texts, social media messaging, photographs, and telephone calls.” Id. at 3. Sunbelt argues that Plaintiffs objected to the revised protocol and requested that the time frame be limited to September 5, 2020, from 9:00 PM to 12:16 AM on September 6, 2020, excluding any photographs and social media files on the cell phone. Id.

In response, Plaintiffs argue that Genochio testified at her deposition that the cell phone “was not in her possession but in the possession of Jacoby Jones, Jr.” [Dkt. 120 at 5 (emphasis omitted)]. Regardless of which individual Plaintiff, or Guardian ad Litem, currently has physical possession of the cell phone, it is apparent that the decedent's cell phone is within the control of the Plaintiffs (and/or their counsel), as a whole.

On the merits of the discovery request, Plaintiffs argue that the digital forensic “protocol has many defects.” Id. Plaintiffs argue “[a]s written, ‘data usage’ will lead to the discovery of the entire contents of the cellular device.” Id. Plaintiffs state they will “produce copies of the electronically stored information instead of permitting inspection” pursuant to “Rule 34(b)(2)(B).” Id. In the Joint Discovery Letter Brief, Plaintiffs offered to produce a log of texts (but not the texts themselves) between decedent and Plaintiffs prior to the decedent's death, to demonstrate the frequency of such texts. [Dkt. 120 at 5]

Plaintiffs argue the “scope of the data [requested] is overbroad, intrusive and violates Plaintiffs' privacy rights and is not proportional to the needs of this case[.]” Id. Plaintiffs argue that Sunbelt's request reaches “data usage, texts, social media messaging, photographs, and telephone calls.” Id. Plaintiffs argue producing “[s]ocial media messag[es] and text messages [would be] an invasion of privacy of the Plaintiffs['] [ ] intimate conversations with their father and is additionally not limited to the parties of this action.” Id. Plaintiffs further argue that Sunbelt's request for photographs stored on the cell phone “would be cumbersome, cumulative, and no way to parse out those depicting the Plaintiffs with the [decedent,]” and “Sunbelt has ... received photographs from each of the Plaintiffs and Plaintiffs family members.” Id.

Plaintiffs request the Court limit the scope of the discovery request to only the electronically stored information for phone call and text logs between the Plaintiffs and decedent and to limit the time frame to September 5, 2020, from 9:00 PM to 12:16 AM. Id.

*9 As an initial matter, as to relevance under Rule 26(b)(1), the Court finds the production of at least some of the contents of decedent's cell phone is warranted. First, both Parties appear to agree that some amount of discovery of the cell phone's contents is justified, and the real dispute is the extent of that discovery. Thus, both Parties appear to agree that there is some amount of discovery of some of the contents of the cell phone which would be relevant to the Parties' claims or defenses.

However, as noted under Rule 26(b)(1), relevance is not the only or final requirement for discovery – any discovery sought must be proportional to the needs of the case. Sunbelt seeks discovery of all electronically stored files of any kind, along with call logs and other metadata as well as all messaging and photographs, for the entire one-month period prior to decedent's motorcycle crash, without limitation as to subject matter, recipients of messages or texts, or relevance. Plaintiffs seek to limit the discovery to only text messages and social media messages between decedent and Plaintiffs, for only a time window of approximately three hours and fifteen minutes on September 5, 2023.

As the movant, Sunbelt has failed to make the required showing for the scope of discovery Sunbelt seeks. The production of the entirety of the cell phone's contents is not “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1); Jones, 2023 WL 6215295, at *3. Turning over the entirety of the cell phone's contents would be too broad and potentially include irrelevant information. Henson, 2018 WL 5281629, at *5. Sunbelt's request would sweep in any text or social media messages (as well as any photos and other documents) involving any third parties, on any topics, at any time of the day or night for weeks prior to decedent's death. Sunbelt's request for call logs and data usage (essentially metadata) on the cell phone is not shown to be relevant or important to deciding any issues in dispute. Further, Plaintiffs argue, and Sunbelt does not dispute, that Plaintiffs have already produced photographs of decedent and the family members, and Sunbelt has failed to address how or why photos on the cell phone would fail to be cumulative. Overall, Sunbelt has failed to show that any of its requested discovery from the cell phone is proportional or is important to resolve an important issue in the case, especially as compared to discovery already taken.

As the Party opposing the discovery, Plaintiffs' counterproposal, which limits the discovery to only an approximate three-hour time frame prior to decedent's death (and further limits discovery to only text/social media messages between decedent and Plaintiffs), is an implicit admission that some relevant, proportional discovery of the contents of the cell phone is warranted. Plaintiffs' time window limitation is not explained however – there appears to be nothing in the record supporting that specific three-hour time window. Similarly, Plaintiffs' restriction to messaging/texts between decedent and Plaintiffs, to the exclusion of any other witnesses, is not justified or explained. Sunbelt has made clear it seeks this discovery for at least two purposes: to determine if there is evidence that decedent was intoxicated or under the influence of drugs at the time of the motorcycle crash, and to test and potentially rebut the amount of Plaintiffs' damages claims to the extent they rely on the loss of the relationship with decedent. While a time frame immediately preceding the decedent's motorcycle crash would be relevant to the first issue, that time frame appears too limited to address the second issue. However, that does not open the contents of the cell phone to unlimited discovery.

*10 Accordingly, the Court DENIES-IN-PART Sunbelt's request, to the extent Sunbelt requests of discovery of the entire contents of decedent's cell phone for the entire one-month period prior to decedent's death and to the extent Sunbelt seeks photographs and all other data/documents from the cell phone other than texts and social media messages. In the exercise of its discretion and keeping in mind the legal standards for relevant, proportional, and cost-effective discovery, and in light of Plaintiffs' responses to Sunbelt, the Court GRANTS-IN-PART Sunbelt's request and ORDERS the following ESI protocol which the Parties are to follow for decedent's cell phone:

Burden of Production – Protocol Selection: To the extent not already undertaken, the Parties (including their counsel and including specifically each of their lead trial counsel) are ORDERED to review and comply with the Court's Guidelines for the Discovery of Electronically Stored Information and the Court's Checklist for Rule 26(f) Meet and Confer Regarding Electronically Stored Information, including designation of each Party's e-discovery liaison, the educational requirements of counsel on ESI issues and technology, and compliance with the meet and confer requirements therein as they apply to decedent's cell phone. The Parties are further ORDERED to review and comply with the undersigned's Standing Order for Discovery, particularly Section F relating to e-discovery and ESI, to the extent that the Parties have not done so already. Consistent with Federal Rule of Civil Procedure 26(b)(1), Plaintiffs, as the custodians of the cell phone and the party bearing the burden of production, are instructed to select and retain through counsel either an appropriate ESI vendor or personnel of counsel who are knowledgeable and experienced in producing ESI from cell phones, who will work under supervision and instructions from Plaintiffs' counsel for following and implementing the protocol and this Order for obtaining and then producing the requested digital evidence. Counsel for Plaintiffs shall provide any such ESI vendors/consultants or employees with a copy of this Order. Plaintiffs shall undertake reasonably prompt and diligent efforts to complete the collection, review, and production of the ordered ESI from decedent's cell phone.

Scope of Production – Date of the Accident: As discussed, the first relevant topic for discovery from decedent's cell phone is with regard to his communications and activities leading up to the accident. Accordingly, Plaintiffs are ORDERED to obtain, review, and produce from Decedent's cell phone copies of the following: non-privileged text messages, social media messages (to the extent downloaded and stored on the cell phone already only), phone call logs, and video conference call logs from the Decedent to or from any individual listed in Plaintiffs' Initial Disclosures (including their Supplemental Initial Disclosures), provided that such ESI is relevant either to decedent's sobriety, intoxication, or relationship with any of the Plaintiffs. The time frame for this category is limited to the twenty-four hours immediately preceding the time of the accident, since this is the relevant time frame to investigate decedent's state of sobriety or intoxication leading up to or during the accident. Specifically, ESI produced in this category is limited to those files created from September 5, 2020, at 12:16 AM until September 6, 2020, at 12:16 AM.

Scope of Production – Pre-Accident Communications with Children: As discussed, Sunbelt seeks ESI from decedent's cell phone to take discovery on the nature of decedent's relationship with Plaintiffs. However, as noted, Sunbelt has deposed R.J.'s Guardian ad Litem and other family members and has pursued document discovery on this issue. Accordingly, extensive discovery from decedent's cell phone as requested by Sunbelt would be cumulative, duplicative, and not proportional to the needs of the case. Accordingly, in order to mitigate those issues, the Court ORDERS Plaintiffs to obtain, review, and produce from Decedent's cell phone copies of the following: non-privileged text messages, social media messages (to the extent downloaded and stored on the cell phone already), phone call logs, and video conference call logs from the Decedent to or from any Plaintiff, provided that such ESI is relevant to decedent's relationship with any of the Plaintiffs. The time frame for this category is limited to the week immediately preceding the approximate time of the accident, to avoid unnecessarily cumulative, duplicative, and non-proportional discovery. Accordingly, ESI produced in this category is limited to those electronic files created from August 29, 2020, until September 5, 2020.

*11 Further, in the Joint Discovery Letter Brief, Plaintiffs offered to produce a log of texts (but not the texts themselves) between decedent and Plaintiffs prior to the decedent's death, to demonstrate the frequency of such texts. [Dkt. 120 at 5]. The Court therefore ORDERS Plaintiffs to produce such a log covering the period from August 6, 2020, to September 6, 2020.

Privileged and Confidential Information: Nothing in this Order requires the production of privileged documents or ESI. If Plaintiffs withhold from production any otherwise responsive ESI from decedent's cell phone based on an assertion of privilege, Plaintiffs are ORDERED to serve a privilege log of any such withheld documents or ESI. The Parties shall continue to comply with the Court's prior Order regarding treatment of privileged documents in this case. [Dkt. 116]. To the extent Plaintiffs contend that any texts, social media messages, or other electronic files from decedent's cell phone implicate privacy or are otherwise confidential, Plaintiffs may designate any such materials at appropriate levels of confidentiality under the Protective Order. [Dkt. 115].

The Parties are free to enter into further mutual agreement on any details regarding implementation of the ESI protocol herein, consistent with this Order, and the Parties are ORDERED to submit any further agreement by Stipulation and [Proposed] Order for the Court's review and approval.

Accordingly, for the reasons explained above, the Court DENIES Sunbelt's request for leave of court to exceed the presumptive limit of ten depositions under Rule 30 and GRANTS-IN-PART and DENIES-IN-PART Sunbelt's request for the production of the decedent's cell phone. As discussed herein, this Order resolves both the Parties' September Joint Discovery Letter, Dkt. 85, and October Joint Discovery Letter, Dkt. 120, as both raise substantively the same discovery issues. Compare Dkt. 120 with Dkt. 85.

IT IS SO ORDERED.