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Franco v. Bank of America

December 1, 2009

JUAN FRANCO, ON BEHALF OF HIMSELF AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFF,
v.
BANK OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge

ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF CONTACT INFORMATION OF PUTATIVE CLASS

On November 4, 2009, Plaintiff filed a motion to compel production of contact information of the putative class. Pursuant to this Court's briefing schedule, on November 9, 2009, Defendant timely opposed the motion and the Court took the matter under submission pursuant to Civil Local Rule 7.1 (d)(1). Having considered the briefing filed by the parties and the applicable law, and good cause appearing, Plaintiff's motion is DENIED IN PART AND GRANTED IN PART.

FACTUAL AND PROCEDURAL BACKGROUND

On June 24, 2009, Plaintiff, a former Bank of America employee, filed the present class action lawsuit against Bank of America. As described in the first amended complaint ("FAC") that was filed on November 19, 2009, Plaintiff is seeking damages, restitution and injunctive relief for (1) unfair competition in violation of Cal. Bus. & Prof. Code § 17200 et seq.; (2) failure to pay earned wages and overtime compensation in violation of Cal. Lab. Code §§ 204, 210, 218, 510, 1194 and 1198; (3) failure to provide accurate itemized statements in violation of Cal. Labor Code § 226; (4) failure to provide meal periods in violation of Cal. Labor Code §§ 226.7 and 512; (5) violation of the Fair Labor Standards Act, 29 U.S.C. § 216 ("FLSA"); and (6) Labor Code Private Attorney General Act. Cal. Labor Code § 2698. Plaintiff alleges that Defendant failed to pay him and other employees for the actual number of hours worked (regular and overtime) during the class period. Plaintiff specifically contends that he and other employees were instructed not to record their overtime hours and that they were required to work during meal breaks to complete mandatory training which could not be completed at any other time. FAC.

The Court held a telephonic case management conference ("TCMC") for this matter on September 25, 2009. After the TCMC, the Court ordered the parties to distribute a Belaire notice permitting members of the putative class to opt out of having their identifying information disclosed to Plaintiff's counsel on or before October 30, 2009. Doc. 15. On October 29, 2009, Plaintiff's counsel called the Court's chambers and alleged that Defendant's counsel was not cooperating with his efforts to comply with the Court's order to distribute the Belaire notice. A follow up TCMC held on October 30, 2009, revealed that the heart of the dispute is whether the Belaire notice should be sent to Tellers, Senior Tellers and Sales and Service Specialists who work or worked at the two Bank of America branch offices where Plaintiff worked, or to employees in those positions who work or worked at any Bank of America branch office in California.

Plaintiff alleges that Defendant has a company-wide policy and practice instituted by Defendant's corporate office that results in the nonpayment of overtime hours to employees. FAC. Because of this alleged company-wide policy and practice, Plaintiff argues that he is entitled to contact information for Tellers, Senior Tellers and Sales and Service Specialists employed in any Bank of America branch office in California. Doc. 20-1.

Defendant, on the other hand, argues that contacting all such employees from every Bank of America branch office in California would be unreasonable, over broad, and unduly harassing to the Defendant and overly intrusive to Defendant's current and former employees. Doc. 23. In support of its position, Defendant notes that the difference in the number of involved employees varies from less than 100 at the two banks to approximately 27,000 throughout California. Doc. 23. Defendant also asserts that there is no company-wide policy or practice related to the unlawful withholding of overtime payments from employees, and, in fact, provided a written policy requiring the payment of all overtime worked by overtime-eligible associates. Doc. 23, Exhibit 1. Defendant argues that because Plaintiff has failed to provide any evidence supporting his company-wide policy theory, contact information should only be provided for Tellers, Senior Tellers and Sales and Service Specialists who work or worked at the two Bank of America branch offices where Plaintiff worked. Doc. 23.

As will be discussed more fully below, the Court DENIES IN PART AND GRANTS IN PART Plaintiff's motion to compel production of contact information of the putative class.

LEGAL STANDARD

The scope of discovery is defined by Rule 26(b), which permits litigants to obtain discovery regarding "any matter, not privileged, that is relevant to the claim or defense of any party..." Rule 26(b)(1). "Relevant" information includes any information "reasonably calculated to lead to the discovery of admissible evidence," and need not be admissible at trial. Id. District courts enjoy broad discretion both to determine relevancy for discovery purposes, see Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002), and to limit discovery to prevent its abuse, see Rule 26(b)(2). To the extent that the discovery sought is "unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive," the court is directed to limit the scope of the request. Fed. R. Civ. P. 26(b)(2). Limits should also be imposed where the burden or expense outweighs the likely benefits. Id. How and when to limit discovery in this way, however, remains within the court's discretion.

The term Belaire notice comes from Belaire-West Landscape Inc. v. Superior Court, 149 Cal. App. 4th 554 (2007). It refers to an opt-out notice that was sent to potential class members in Belaire to inform them of the lawsuit and explain that if they did not want to have their contact information sent to plaintiff's counsel, they could complete and return an enclosed post card. Id. at 557. The notice was found to be appropriate where the trial court "properly evaluated the rights and interests at stake, considered the alternatives, balanced the competing interests, and permitted the disclosure of contact information regarding Belaire-West's current and former employees unless, following proper notice, they objected in writing to the disclosure." Id. at 562. The notice was not found to present a serious invasion of potential class members' privacy interests. Id.

DISCUSSION

The parties already have agreed*fn1 on all aspects of the Belaire notice with the exception of whether the notice should be sent to the designated employees who work or worked at the two Bank of America branch offices where Plaintiff worked, or at any Bank of America branch office in California. Doc. 19. Therefore, Plaintiff's right to a portion of the contact information he is seeking is not at issue. What remains to be determined, is whether Plaintiff's desire to compel production of contact information for all of Defendant's California branch offices should be limited at this juncture because it is overly broad, burdensome and does not outweigh the likely benefits.

While courts generally allow plaintiffs to obtain discovery from defendants related to class certification issues, plaintiffs bear the burden of showing that such discovery is likely to produce substantiation of the class allegations. Mantolete V. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985). If a plaintiff is unable to meet ...


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