Hertz Corporation v. Accenture LLP

                                                  USDC SDNY 
                                                  DOCUMENT 
UNITED STATES DISTRICT COURT                         ELECTRONICALLY  FILED 
SOUTHERN DISTRICT OF NEW YORK                      DOC #: 
                                                  DATE FILED:_ 3/9/2020 
Hertz Corporation, 
                          Plaintiff,                  1:19-cv-03508 (WHP) (SDA) 
              ~against-                             OPINION AND ORDER 
Accenture LLP, 
                          Defendant. 

STEWART D. AARON, United States Magistrate Judge: 
     Before  the  Court  is  a  discovery  dispute  between  Defendant/Counterclaim-Plaintiff 
Accenture  LLP  (“Accenture”)  and  Plaintiff/Counterclaim-Defendant  The  Hertz  Corporation 
(“Hertz”) regarding depositions to be taken by Accenture. 
                                BACKGROUND 
     Hertz brings this action against Accenture for breach of contract. In 2016, Hertz decided 
to undergo a digital makeover by developing a new website and mobile applications for its vehicle 
rental brands (the “Project”). (Corrected First Am. Compl., ECF No. 26 (“Compl.”), 4 23.) Since 
Hertz did not have the necessary expertise, it solicited proposals from technology service firms, 
including Accenture, and ultimately hired Accenture. (/d. 4] 26.) 
     The Project was conducted in phases, with the work governed by a Consulting Services 
Agreement  between  Hertz  and  Accenture.  (Compl.  94  25,  27,  28.)  Between  August  and 
November  2016,  Accenture  completed  work  on  Phase  1.  (/d.  4  28.)  On  January  30,  2017, 

1 Hertz also asserted a claim for violations of the Florida Deceptive and Unfair Trade Practices Act, but 
that claim was dismissed by Judge Pauley ina Memorandum and Order, dated October 25, 2019. See 
Hertz Corp. v. Accenture LLP, No. 19-CV-03508 (WHP), 

2019 WL 5537997

, at *6 (S.D.N.Y. Oct. 25, 2019). 

Accenture and Hertz entered Phase 2 of the Project, which required Accenture to actually design, 
build, test and deploy the website and mobile applications. (Id. ¶ 30.) Accenture committed to a 
December 2017 “go-live” date. (Id. ¶ 33.) By September 2017, Accenture informed Hertz that it 

would not be able to meet the promised December 2017 go-live date and requested an extension 
until January 2018, and later requested a second extension until April 2018. (Id. ¶ 35.) Hertz hired 
a new technology services provider for the Project in June 2018 and terminated Accenture. (Id. 
¶ 63.)                                                                    
    Hertz commenced this action on April 19, 2019. In the operative pleading, Hertz seeks 

damages, including “the tens of millions of dollars that it paid to Accenture for the deficient 
services and deliverables, as well as the millions of dollars in additional costs that it has incurred 
in  remediating  and  completing  the  Project.”  (Compl.  ¶  80.)  Following  Judge  Pauley’s 
Memorandum and Order deciding Accenture’s motion to dismiss, Accenture filed its Answer and 
Counterclaims. (Answer, ECF No. 76.) Accenture makes specific reference to Change Request 1 
to the Phase 2 Statement of Work. (Answer at p. 10.) Accenture asserts two counterclaims against 

Hertz for breach of contract. (Id. at p. 25.) Pursuant to a Revised Scheduling Order, dated 
December 9, 2019, the parties are due to complete fact discovery by May 13, 2020. (Scheduling 
Order, ECF No. 69.)                                                       
    In February 2020, the parties met and conferred regarding the number of depositions that 
Accenture seeks to take, but were unable to reach agreement. (Joint Letter, ECF No. 77.) 
Accenture  seeks  to  increase  the  number  of  depositions  it  is  permitted  to  take  from  the 

presumptive limit of 10 depositions to a limit of 20 depositions. (Joint Letter at 4.) Accenture 
“also requests that the parties be permitted to depose any trial witnesses who were not deposed 
prior to the filing of the witness list.” (Id.) Hertz opposes an increase of the 10-deposition limit 
and also opposes Accenture’s request to depose trial witnesses not previously deposed. (Id.) 
    On March 9, 2020, the parties’ discovery dispute was referred to me by Judge Pauley. 

(Order of Reference, ECF No. 78.)                                         
                         LEGAL STANDARDS                                 
    Rule 30(a)(2) provides a presumptive limit of ten depositions per side, absent leave of 
court. See Fed. R. Civ. P. 30(a)(2)(A). “Rule 30(a)(2)(A) is intended to control discovery, with its 
attendant costs and delay.” Nat’l Union Fire Ins. Co. of Pittsburgh, Pennsylvania v. Hicks, Muse, 
Tate & Furst, Inc., No. 02-CV-01334 (SAS), 

2002 WL 1822738

, at *2 (S.D.N.Y. Aug. 8, 2002) (citation 

omitted).                                                                 
    A court may increase the number of depositions “to the extent consistent with Rule 
26(b)(1) and (2).” Fed. R. Civ. P. 30(a)(2). Rule 26(b)(1) states in relevant part: 
    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).                                                 
    Rule 26(b)(2)(C) states in relevant part:                            
    On motion or on its own, 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).                                              
                           DISCUSSION                                    
    The  Court,  in  its  discretion,  denies  Accenture’s  request to  increase the  number  of 
depositions it seeks to take from 10 to 20. The Court has reviewed the list of 17 witnesses 
attached as Exhibit 2 to the Joint Letter. (Joint Letter Ex. 2, ECF No. 77-2.) Three of the witnesses 

have  knowledge  regarding  Change  Request  1  (Khalid  Latif,  Robert  McInerney  and  Eugene 
Pizinger). (Joint Letter Ex. 2 at 1-2.) In addition, Hertz represents that five witnesses (Tyler Best, 
Matt  Jauchius,  Ray  Kunik,  Casey  Cannon  and Ryan  Williams)  worked  in  Hertz’s  marketing 
department and have “significantly overlapping information.” (Joint Letter at 6.) “The mere fact 
that there are several individuals who may possess relevant information does not necessarily 
entitle a party to examine each of them.” Raba v. Suozzi, No. 06-CV-01109 (DRH) (AKT), 

2006 WL 8435603

, at *1 (E.D.N.Y. Nov. 17, 2006). Like Magistrate Judge Tomlinson in Raba, “I find that 
avoiding cumulative discovery militates in favor of denying [Accenture’s] motion at this time.” 
Raba, 

2006 WL 8435603

, at *1. If, after reaching the presumptive limit of 10 depositions, 
Accenture can show good cause that there is non-cumulative deposition discovery that it still 
needs, and that such discovery is proportional to the needs of the case, it may seek leave to take 
one or more additional depositions.2                                      


2 The Court encourages Accenture to make suitable use of Rule 30(b)(6) as part of its deposition program. 
In that regard, the Court notes that “[a] deposition under Rule 30(b)(6) should, for purposes of [the 10-
deposition] limit, be treated as a single deposition even though more than one person may be designated 
to testify.” Fed. R. Civ. P. 30, Advisory Committee Notes, 1993 Amendment. 
     The  Court  also  denies  Accenture’s  request  to  depose  trial  witnesses  not  previously 
deposed  as  premature.  If either side  lists a  trial  witness who was  not  previously disclosed, 
pursuant to Rule 26(a)(1), the adverse party may seek leave from Judge Pauley to take an eve-of- 
trial deposition of such witness. 
                                CONCLUSION 
     For the foregoing reasons, the Court denies without prejudice Accenture’s requests (1) to 
increase the number of depositions that it takes from 10 to 20, and (2) to depose trial witnesses 
who were not previously deposed. 
Dated: New York, New York 
     March 9, 2020 
                                   SO ORDERED. 

                                   STEWART D. AARON 
                                   United States Magistrate Judge