The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge
ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE [DOC. NO. 102]
Before the Court is a Joint Motion for Determination of Discovery Dispute filed by the parties on October 3, 2011. (Doc. No. 102). Defendant also filed a separate opposition. (Doc. No. 103). Plaintiff filed this case as a class action and asserted seven claims for relief as follows: (1) unfair competition; (2) failure to pay overtime in violation of state law; (3) failure to provide wages when due; (4) failure to provide meal and rest periods; (5) failure to provide accurate itemized wage statements; (6) failure to pay overtime in violation ofthe federal Fair Labor Standards Act ("FLSA"); (7) for civil penalties pursuant to the California Labor Code Private Attorney General Act ("PAGA"), Cal. Lab.Code §§ 2698 et seq. Plaintiff's motion to certify the class in this case was denied. (Doc. No. 92).
At issue are four Requests for Production, numbered 72 through 75, propounded by Plaintiff upon Defendant in Set Three.
The Federal Rules of Civil Procedure generally allow for broad discovery, authorizing parties to obtain discovery regarding "any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). Also, "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Id. Relevant information for discovery purposes includes any information "reasonably calculated to lead to the discovery of admissible evidence," and need not be admissible at trial to be discoverable. Id. There is no requirement that the information sought directly relate to a particular issue in the case. Rather, relevance encompasses any matter that "bears on" or could reasonably lead to matter that could bear on, any issue that is or may be presented in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 354 (1978). District courts have broad discretion to determine relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Similarly, district courts have broad discretion to limit discovery where 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." Fed. R. Civ. P. 26(b)(2)(C). Limits also should be imposed where the burden or expense outweighs the likely benefits. Id.
A party may request the production of any document within the scope of Rule 26(b). Fed. R. Civ. P. 34(a). "For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons." Id. at 34(b). The responding party is responsible for all items in "the responding party's possession, custody, or control." Id. at 34(a)(1). Actual possession, custody or control is not required. Rather, "[a] party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document. Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D.Cal.1995).
1. Request for Production No. 72
Plaintiff seeks the production of records of hours worked by Network Data Communication Analysts ("NDCAs") during the relevant time period. Defendant has agreed to produce a time-keeping system report for the period July 31, 2008, for System Administrators, NDCAs, and NDCA Srs. employed by the Defendant in California. No further response is required.
2. Request for Production No. 73
Plaintiff seeks all payroll records for NDCAs during the relevant time period. Defendant has agreed to produce this data from November 19, 2008. There is a dispute regarding the relevant time period. Plaintiff claims that it begins on July 31, 2008; Defendant claims that it begins on November 19, 2008. The dispute relates to whether the initiation date is from the filing of the lawsuit or from the date that the State of California declined to initiate the PAGA claim that is the basis for this discovery. The Court need not resolve this issue. Rather, since the burden of producing the requested data from July 31, 2008, instead of from November 19, 2008, does not appear oppressive, the Court will ORDER that the data to be produced extend to July 31, 2008.
3. Request for Production No. 74
Plaintiff seeks all contracts between Defendant and any third party which relate to the job duties performed by NDCAs. Defendant objects on the grounds that this request previously was made, challenged and ruled upon by a prior Magistrate Judge adversely to Plaintiff and that the request remains overbroad, oppressive and irrelevant. Defendant also claims that responding to this request may involve the production of information which must remain confidential by the terms of the contract. Plaintiff claims that it is relevant to the pending PAGA claim which is representative in nature.
Defendant is correct that the nearly identical request was denied by a prior Magistrate Judge. (Doc. No. 46 at 7). At that time the Magistrate Judge determined the request to be overbroad and vague, "[u]ntil the Court has defined the Class that is to be certified . . . ." Id. Class certification ultimately was denied in this case yet Plaintiff now seeks the same discovery claiming relevance to her representative PAGA claim. Although the Ninth Circuit has not yet ruled on the issue of whether a PAGA claim must meet the certification standards for a class action under Fed.R.Civ.P. 23, a District Judge of this Court recently held that Rule 23 does apply to PAGA claims. See Ivey v. Apogen Technologies, Inc., 2011 WL 3515936 (S.D. Cal.). Consequently, no ...