Maria Herrera v. Federal Express Corporation et al Case No. 5:17-cv-02137-MWF-SHK United States District Court, C.D. California Filed September 10, 2018 Counsel Stephanie Emi Yasuda, Kenneth H. Yoon, Brian G. Lee, Yoon Law APC, George Samuel Cleaver, G. Samuel Cleaver Law Offices, Los Angeles, CA, for Maria Herrera. Jane M. Flynn, David S. Wilson, III, Federal Express Corporation Legal Department, Irvine, CA, Brandie N. Smith, Pro Hac Vice, Federal Express Corporation, Memphis, TN, for Federal Express Corporation et al. Kewalramani, Shashi H., United States Magistrate Judge ORDER RE DISCOVERY DISPUTE AND ORDER TO SUBMIT PROTECTIVE ORDER TO PROTECT CONFIDENTIAL INFORMATION OF PUTATIVE CLASS MEMBERS I. BACKGROUND A. First Amended Complaint And Removal *1 Plaintiff filed this wage and hour class action, under California law, on September 12, 2017 in San Bernardino Superior Court. ECF No. 1-1, Complaint. Plaintiff filed a First Amended Complaint on October 12, 2017, also in San Bernardino Superior Court. ECF No. 1-3, First Amended Complaint (“FAC”). Defendant removed this action, on diversity grounds, on October 19, 2017. ECF No. 1, Notice of Removal. In sum, the claims arise out of Plaintiff's employment by Defendant at Defendant's facility in Ontario, California, and she is seeking to represent a class, as well as various subclasses, of similarly situated current and former employees of Defendant throughout California. ECF No. 1-3, FAC at 4-5. Plaintiff seeks damages arising out of Defendant's alleged “(1) failing to pay all meal period wages and rest break wages, (2) failing to pay all overtime wages and minimum wages, (3) failing to reimburse all necessary work-related expenses, (4) failing to timely pay all wages due and upon termination of employment, (5) failing to provide accurate wage statements, and (6) engaging in unfair business practices.” Id. at 2. B. Bifurcated Discovery Process and Opt-Out Procedure On December 14, 2017, the parties submitted their Joint Rule 26(f) Report and in it stated their respective positions on conducting phased discovery; an opt-out procedure pursuant to Belaire-West to “be sent to putative class members employed in the same location as Plaintiff (in Ontario, California) by mid-to-late December 2017”; and Plaintiff filing class certification briefing by “around September 26, 2018.” ECF No. 24, Rule 26(f) Report at 10-12. On December 18, 2017, following a hearing, the Court issued its scheduling order, requiring Plaintiff to file its class certification papers by September 24, 2018. ECF No. 26, Order Re Jury Trial at 2. C. Ex Parte Application and Order Moving Dates On July 30, 2018, the parties requested an informal discovery conference pursuant to the Magistrate Judge's rules regarding discovery and this informal discovery conference was held on August 9, 2018. ECF Nos. 28 and 29. The discovery dispute focused on the following groups of information: (1) the contact information of the putative class members and (2) putative class-wide time and payroll data. ECF No. 29, Minutes of Telephonic Hearing. On August 14, 2018, Plaintiff filed an Ex Parte Application To Continue Trial and Pretrial Dates, which Defendant opposed. ECF No. 30, Ex Parte Application To Continue Trial and Pretrial Dates (“Ex Parte Application”); ECF No. 31, Defendant's Opposition to Ex Parte Application. In this Ex Parte Application, Plaintiff indicated that the discovery she is seeking is “comprised of a scientifically reliable sample of class-wide time and payroll date, class contact information, and date recording the time and location of delivery stops .... Defendant objects to production of the time/payroll/contact information for employees beyond Plaintiff's location, and objects to production of the ‘gap repots’ and ‘courier summary reports' for anyone other than Plaintiff.” ECF No. 30, Ex Parte Application at 5.[1] Plaintiff further argued that “Plaintiff has not caused the circumstances necessitating ex parte relief” and that “Plaintiff has met and conferred with Defendant in an attempt to informally resolve the outstanding discovery issues over the course of six months without resolution.” Id. at 6. Plaintiff claimed that, with respect to the discovery, “Defendant has failed to proceed in good faith.” Id. *2 Plaintiff represented that “[f]ollowing dissemination of a notice for disclosure of contact information to putative class members who worked in the same facility as Plaintiff, Plaintiff's counsel were contacted by numerous employees, including employee's that worked in locations other than Plaintiff's.” Id. at 7-8 (emphasis added). Plaintiff claimed that these other employees raise similar issues as set forth in the FAC, e.g. “employees are required to work through their meal periods and rest breaks in facilities other than Plaintiff's[.]” Id. at 8. Additionally, Plaintiff claimed that “[i]n response to this lawsuit, Defendant conducted an investigation at several of its locations and terminated a large number of manager employees” and that “Defendant maintain documents entitle ‘gap reports' ..., the existence of which Defendant had not previously disclosed.” Id. Plaintiff argued that despite this information, set out in a letter by Plaintiff, Defendant “declined to produce the requested documents and refused to consider any compromise, instead electing to change significant portions of its deposition testimony by errata ....” Id. Plaintiff also stated that Defendant unilaterally cancelled the scheduled mediation. Id. at 9. In its Opposition to the Ex Parte Application, Defendant stated that “(A) Plaintiff unnecessarily delayed undertaking discovery and thereafter bringing a motion to compel; (B) Defendant has fully complied with its discovery obligations and met and conferred in good faith with Plaintiff concerning the discovery dispute at issue; and (C) Plaintiff's request hinges on the availability of class-wide discovery, which .... is not available to [Plaintiff] under well-established precedent.” ECF No. 31, Opposition to Ex Parte Application at 1-2. Defendant argued that it has “produced thousands of documents and answered scores of discovery request related to phase one discovery.” Id. With respect to testimony provided by two of Defendant's 30(b)(6) witnesses, and which Plaintiff claimed shows that the putative class members exist across California, Defendant argued that “[o]ver objection, the witnesses speculated on those topics, which were: (1) FedEx's defined workday, and (2) Couriers' obligations to monitor the PowerPad.” Id. Defendant further pointed out that “Plaintiff's counsel never asked these witnesses whether Couriers have an obligation to monitor their PowerPads during ten minute paid rest breaks” and that these witnesses were “asked a series of questions on topics which were not plead in her complaint, which bore no relationship to her theories of the case as set forth in her responses to contention interrogatories, and upon which FedEx had not designated or prepared a PMK to testify.” Id. Defendant also argued that On June 15, 2018, the parties met and conferred to discuss what evidence Plaintiff had to justify the ability to seek state-wide discovery and that Plaintiff, on July 13, 2018,[2] only cited to the “erroneous testimony of FedEx's FRCP 30(b)(6) witnesses.” Id. As a result of these delayed responses and actions by Plaintiff, Defendant argued that Plaintiff was responsible for the delay in seeking this discovery. Id. at 3. With respect to Plaintiff's claims that other putative class members experienced similar issues as Plaintiff in other locations, Defendant argued that the Court should disregard these “unsupported, bald allegations.” Id. at 4. Specifically, if any such evidence existed, Plaintiff “was required to submit competent evidence, e.g., declaration, exhibits, etc.” Id. On August 17, 2018, the District Court issued its ruling and granted, in part, Plaintiff's request to extend the class certification briefing to November 19, 2018. ECF No. 34, Order Re Ex Parte Request at 3. In its order, the District Court noted that it “sees no need to continue all remaining dates by the requested four months, particularly where it does not appear that Plaintiff has at all times acted expeditiously and in good faith to avoid the situation in which she now finds herself.” Id. at 2. D. The Current Discovery Motion *3 On August 9, 2018, the Court held a pre-motion telephonic hearing and indicated that the Court was inclined to deny Plaintiff's request to obtain putative class wide discovery for certain employee records but that Plaintiff could brief the issue if it so chose. ECF No. 29, Minutes of Telephonic Hearing. On August 17, 2018, the parties filed their discovery papers and filed supplemental briefs on August 27 and 28, 2018. ECF Nos. 37-44, 47 and 48. A subsequent telephonic hearing was held on September 7, 2018, during which counsel for Plaintiff and Defendant appeared and argued and provided additional information. The discovery requests at issue are as follows: Plaintiff's Interrogatory No. 1 – “Provide the CONTACT INFORMATION for all COVERED EMPLOYEES. (Unless otherwise stated in the interrogatories, ‘CONTACT INFORMATION’ as used herein shall be defined as referring to first, middle, and last names, last known home address, last known home and mobile telephone numbers and last known personal e-mail address.)” Plaintiff's Request No. 16 – “All TIMESHEETS for all COVERED EMPLOYEES, including all manual and automatic edits to TIMESHEET data.” Plaintiff's Request No. 17 – “All PAY RECORDS for all COVERED EMPLOYEES for the COVERED PERIOD.” The capitalized terms are defined and include “non-exempt delivery drivers employed by Defendant[ ] who worked in California during the ... [period from] September 12, 2013 to the present.” ECF No. 37, Joint Stipulation Regarding Discovery Dispute (“Jt. Stip.”) at 4-5.[3] The arguments made in the Jt. Stip. will be set out in this order, to the extent they are relevant. II. DISCUSSION A. Legal Standards The current legal standards in a class action context were provided, approximately a year ago, by Magistrate Judge Pym in Ahmed v. HSBA Bank USA, N.A., ED CV 15-2057-FMO (SPx), 2017 WL 4325587, at *2 (C.D. Cal. Sept. 25, 2017), and are appropriate to apply to resolve the current disputes. Judge Pym's explanation of the applicable standards is as follows: Federal Rule of Civil Procedure 26 provides that a party 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.” Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “Relevancy, for the purposes of discovery, is defined broadly, although it is not without ultimate and necessary boundaries.” Gonzales v. Google, Inc., 234 F.R.D. 674, 679–80 (N.D. Cal. 2006). “A party seeking class certification must satisfy the requirements of Federal Rule of Civil Procedure 23(a) and the requirements of at least one of the categories under Rule 23(b).” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542 (9th Cir. 2013). “For a named plaintiff to obtain class certification, the court must find: (1) numerosity of plaintiffs; (2) common questions of law or fact predominate; (3) the named plaintiff's claims and defenses are typical; and (4) the named plaintiff can adequately protect the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citing Fed. R. Civ. P. 23(a) ). Rule 23(b) provides for three types of class actions. Fed. R. Civ. P. 23(b). Plaintiffs here appear to seek to certify a Rule 23(b)(3) class, which would require plaintiffs to additionally show that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). *4 “Prior to class certification under Rule 23, discovery lies entirely within the discretion of the Court.” Artis v. Deere & Co., 276 F.R.D. 348, 351 (N.D. Cal. 2011) (citing Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) ). Courts generally recognize the need for pre-certification discovery relating to class issues. See Vinole, 571 F.3d at 942 (“Our cases stand for the unremarkable proposition that often the pleadings alone will not resolve the question of class certification and that some discovery will be warranted.”) (footnote omitted). In seeking pre-certification discovery, the plaintiff generally bears the burden to either make a prima facie showing that the Rule 23 class action requirements are satisfied, or to show “that discovery is likely to produce substantiation of the class allegations.” Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985). “[T]he need for discovery, the time required, and the probability of discovery providing necessary factual information” are also relevant factors “bearing on the correctness of the trial court's exercise of discretion.” Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977) (citation omitted). Thus, discovery is likely warranted where it will help resolve factual issues necessary for the determination of whether the action may be maintained as a class action, such as whether there are grounds for a class or subclass. Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975). Id. Moreover, “the Doninger court also explained that ‘the better and more advisable practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to whether a class action was maintainable’ and that ‘the necessary antecedent to the presentation of evidence is, in most cases, enough discovery to obtain the material, especially when the information is within the sole possession of the defendant.” Kaminske v. JP Morgan Chase Bank N.A., et al., No. SACV 09-00918-JVS (RNBx), 2010 WL 5782995, at * 2 (C.D. Cal. May 21, 2010). At least with respect to the contact information of putative class members, the cases “stand for the proposition that a court maintains wide latitude in deciding whether contact information of putative class members should be produced prior class certification and, if so, whether the employees are entitled to be notified before their contact information is share with opposing counsel.” York v. Starbucks Corp., No. CV 08-79190-GAF (PJWx), 2009 WL 3177605, at * 1 (C.D. Cal. June 30, 2009). B. Interrogatory No. 1 – Contact Information Of Statewide Putative Class Members. Plaintiff argues that “Plaintiff should be permitted to speak with employees who worked under different managers and at different locations to establish commonality and predominance.” ECF No. 37, Jt. Stip. at 24. Plaintiff cites to the testimony of Defendant's 30(b)(6) witness, which was the subject of an errata by Defendant, where Defendant's employees are required to monitor their PowerPads during rest breaks and violation of California law by not having an appropriately defined workday. Id. Plaintiff also argues that “there is no burden associated with production of contact information Defendant undoubtedly has readily available.” Id. at 25. Plaintiff also seeks to have this contact information provided without an opt-out or notice process. Id. at 24. In its supplemental briefing, Plaintiff clarifies that “[t]o the extent email addresses and mobile telephone numbers are maintained in the normal course of business ... Plaintiff believes these must be produced. To the extent this information is not readily available, the best time for Defendant to raise the issue was prior to Court intervention, but Plaintiff can nevertheless agree to forgo it as a compromise.” ECF No. 48, Pl.'s Supp. Mem. In Support of Plaintiff's Motion to Compel (“Pl.'s Supp. Mem.”) at 3-4. In opposition, Defendant argues that because Plaintiff has not shown the prima facie existence of a putative class members outside of the location Plaintiff worked, Defendant should not be required to provide this information. ECF No. 37, Jt. Stip. at 25. Defendant also argues that this would be burdensome and cites to a declaration provided by Lisa Jackson, who is a Human Resources Business Analyst employed by Defendant. ECF No. 44, Dec. of Lisa Jackson at ¶ 1. In Ms. Jackson's declaration, she states that Defendant does “not routinely collect California couriers and ramp transport drivers' cell phone numbers or personal email addresses” and compiling such a list for the relevant employees from September 2013 to the present would take “approximately 8 hours of work by an HR business analyst, spanning five to ten days depending on required training, meetings, and time, and this five to ten day timeframe begins only when I have a resource available to complete the work.” Id. at ¶¶ 2, 3. Ms. Jackson further declares additional time and steps that would have to occur to gather this information such that with respect to the personal e-mail addresses, it could take close to 57 days of an analyst's time to provide this information. *5 Defendant also cites to uncontroverted excerpts from Plaintiff's deposition where Plaintiff admits that “she has no idea whether managers at other California FedEx locations complied with FedEx's written meal/rest break policy, or even whether other managers at her own location complied with it.” ECF No. 37, Jt. Stip. at 17 (citing to Plaintiff's deposition excerpts regarding same). Further, Defendant argues that if this information is ordered to be produced it should be provided “pursuant to the opt-out procedure the parties agreed to in their Joint FRCP 26(f) report.” ECF No. 25, Jt. Stip. at 25. In its supplemental briefing, Defendant argues that the contact information should be limited to the location at which Plaintiff worked and reiterates that any contact information ordered by the Court should be provided pursuant to an opt-out procedure. ECF No. 47, Def.'s Supp. Brief in Opp'n to Pl.'s Mot. to Compel (“Def.'s Supp. Mem.”) at 3-4. Applying these standards to the present request for contact information sought by Plaintiff to establish the requirements under FRCP 23(a) and in assessing the appropriate breadth and scope of discovery sought, the Court GRANTS IN PART the Motion to Compel contact information for all non-exempt delivery drivers employed by Defendant in California from September 12, 2013, to the present. Specifically, Defendant is ordered to produce the available contact information for the COVERED EMPLOYEES for the COVERED PERIOD, as defined in the Joint Stipulation. Defendant is not required to provide information that is not collected by Defendant from employees, such cell phone numbers and personal e-mail addresses, as Defendant provided Ms. Jackson's declaration stating that this information is not normally collected and would require substantial efforts on Defendant's part to gather. See ECF No. 44, Decl. of Lisa Jackson at ¶¶ 2-5. To the extent it is readily available, this information cell phone and e-mail information is to be provided in accordance with this order. Plaintiff's argument hinges on the corrected testimony of two of Defendant's witnesses relating to the rest break and overtime claims made in the FAC. As such, Plaintiff has barely shown that this “discovery is likely to produce substantiation of the class allegations,” Mantolete, 767 F.2d at 1424, to warrant the disclosure of this category of information. The Court is also mindful of the direction in Doninger that “ ‘the better and more advisable practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to whether a class action was maintainable’ and that ‘the necessary antecedent to the presentation of evidence is, in most cases, enough discovery to obtain the material, especially when the information is within the sole possession of the defendant.” Kaminske, 2010 WL 5782995, at * 2. Weighing these considerations against Plaintiff's testimony regarding information at other locations and the other factors in Rule 26(b)(1), however, warrants limiting the discovery to what is normally collected and retained by Defendant, such that may be readily available from Defendant's employment files and payroll records. The parties are ordered to confer regarding the appropriate scope of these records following the direction provided by this Order. Additionally, in light of the upcoming briefing schedule requiring Plaintiff to file its class certification brief by November 19, 2018, the Court will not require the opt-out procedures outlined in the Joint Rule 26(f) Report. Though there is an argument that Plaintiff's scheduling situation is of its own making, the Court is seeking to allow the transfer of this information such that this matter will be presented in a timely manner. The Court also finds that the opt-out procedure is not necessary for this category of information because it is similar to the information sought in York, which was “not particularly sensitive.” York, 2009 WL 3177605, at * 1. The rationale in York, that the employees' privacy rights “must yield to Plaintiff's efforts to pursue her claims (and, perhaps, ultimately, the employees' claims) against Defendant,” is equally applicable here. Id. In order to effect the transfer of this information in an efficient manner, the parties are, therefore, ordered to provide a proposed protective order to the Court within one week to allow the transfer of this information. A form of a pre-approved protective order is located on the Court's website at https://www.cacd.uscourts.gov/honorable-shashi-h-kewalramani. C. Requests Nos. 16 and 17 – Timesheets and Pay Records for Statewide Putative Class Members. *6 At the hearing on September 7th, it was confirmed that Defendant has provided the contact information for the relevant employees at the same location that Plaintiff worked and where she claimed the violations occurred. Additionally, it was confirmed that Defendant previously provided the time sheets and payroll information for the relevant employees and relevant time period at the same location Plaintiff worked. Defendant, however, only provided GAP reports and courier summary reports for Plaintiff. According to Plaintiff, GAP reports “reflect the time of all stops and/or the intervals between stops made by Defendant's driver employees. When these GAP reports are cross-referenced with the requested time dates which show when the employees clocked out for meal periods, Plaintiff can determine whether these employees continued to work and drive through breaks in order to make timely stops and deliveries.” ECF No. 37, Jt. Stip. at 5. For the reasons stated below, the Court DENIES Plaintiff's motion to compel with respect to timesheets and pay records for putative class members that work or worked for Defendant throughout California during the relevant time period. This is because when weighed against the burden on the producing party, and applying the factors under Rule 26(b)(1), Plaintiff has failed to show by prima facie evidence or that this information is “likely to produce substantiation of the class allegations.” Though the benefit of the doubt was given to Plaintiff with respect to the contact information, the corrected testimony of the two 30(b)(6) witnesses with respect to the use of the PowerPads and the defined workday issue are not enough to warrant the production of the timesheets and payroll records for the current and former employees across California during the relevant time period. Defendant provided the declarations of two of its employees, Julia C. Crawford and Kathryn R. Young, to establish that providing this amount of information would take 15-18 days for the timecard records, ECF No. 42, Dec. of Julia C. Crawford at ¶¶ 2-3, and 80 hours for the payroll records. ECF No. 43, Dec. of Kathryn R. Young at ¶¶ 2-3. Such extensive efforts are not warranted where Plaintiff has failed to carry its burden with respect to these categories of documents. Moreover, Plaintiff has already been provided this information for the location at which Plaintiff worked. With respect to the gap and courier summary reports, the parties held a telephonic conference in this regard on August 27, 2018 and did not brief the issue fully, because the Court understood that level of disclosure of these types of reports would be informed by the Court's ruling on the payroll and timesheet records. ECF No. 46, Minutes of Telephonic Hearing; ECF No. 48, Pl.'s Supp. Mem. At 3 (noting that the Court held a informal teleconference on this matter on August 27, 2018 regarding the gap and courier summary reports). Because the parties have not fully briefed the issue, the Court does not specifically rule on providing those reports. IT IS SO ORDERED. Footnotes [1] The page numbers referenced in the citations to the Ex Parte Application are those assigned by the Court's ECF system. [2] In its opposition, Defendant stated that certain actions regarding the discovery disputes occurred in 2013. This appears to be a typo and should be 2018, which the Court will assume for purposes of this motion and reciting the background. [3] The page numbers referenced in the citations to the Jt. Stip. are those assigned by the Court's ECF system.