The opinion of the court was delivered by: David T. Bristow United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' REQUEST FOR FURTHER RELIEF AND SANCTIONS RE MOTION TO COMPEL RESPONSES TO FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED TO SCHNEIDER LOGISTICS TRANSLOADING & DISTRIBUTION, INC.
Currently pending before this Court is plaintiffs' Request for Further Relief and Sanctions Re Motion to Compel Responses to First Set of Requests for Production of Documents Propounded to Schneider Logistics Transloading & Distribution, Inc. ("Motion") filed on August 23, 2012. Defendant Schneider Logistics Transloading and Distribution, Inc. ("Schneider") filed an Opposition ("Opp.") to the Motion on September 7, 2012, and plaintiffs filed a Reply ("Reply") on September 17, 2012. A hearing on the matter was held on September 25, 2012, at which, the parties were provided an opportunity to address their respective positions. After considering the parties' briefs as well as the arguments of counsel, and for good cause shown, the Court GRANTS the Motion in part and finds as follows:
Plaintiffs filed a class action Complaint on October 17, 2011 and a First Amended Complaint on October 28, 2011 alleging, inter alia, wage and hour violations at three warehouses in Mira Loma, California which are operated and/or staffed by defendants Schneider, Schneider Logistics, Inc. ("SLI"), Impact Logistics, Inc. ("Impact"), Premier Warehousing Ventures, LLC, and Rogers-Premier Unloading Services, LLC (collectively, "Premier") on behalf of their customer, Wal-Mart.
On February 1, 2012, plaintiffs propounded their First Set of Requests for Production of Documents to defendant Schneider. (Dkt. # 249, ¶43.) Schneider provided its initial responses on March 12, 2012, and supplemental responses on April 4, 2012. (Id.) As plaintiffs believed that Schneider's document production was incomplete, plaintiffs began a series of meet and confers with Schneider, and expressed concern that Schneider had not produced all responsive non-privileged documents.
On May 31, 2012, plaintiffs filed a Motion to Compel regarding Schneider's failure to produce documents relating to Wal-Mart and Schneider's alleged failure to conduct a proper search and produce responsive documents. (See Dkt. # 248-1.) After the Court ordered the parties to further meet and confer, the parties resolved their dispute and submitted a proposed order. Pursuant to the proposed order, the Court ordered Schneider to supplement its responses to the requests for production of documents and produce responsive documents, including those relating to Wal-Mart. (Dkt. # 261.) Schneider was also ordered to produce a custodian of records and person most knowledgeable regarding Schneider's document retention policies.
Following the Court's Order, Schneider produced an additional 23,000 documents, many of which related to categories of documents Schneider previously claimed did not exist. Schneider also designated two employees to address Schneider's retention policies and its efforts to search for responsive documents. When these witnesses appeared for their depositions, however, they were unable to answer many basic questions regarding Schneider's document retention policies and Schneider's search for responsive documents.
On July 10, 2012, plaintiffs deposed Yanira (Maria) Arauz, an area manager for Schneider. During her deposition, she testified that she had deleted various emails, including reports. She further testified that she has continued to delete documents up to the date of her deposition, and that she had never received an instruction advising her not to delete such emails.
On August 23, 2012, plaintiffs filed the instant Motion. In their Motion, plaintiffs identified, inter alia, substantial gaps in Schneider's production, including a substantial number of emails and surveillance videotapes which had not been produced.
Preliminarily, the Court will address Schneider's evidentiary objections to the declaration of Lauren Teukolsky filed in support of the Motion. Schneider contends that the declaration is unreliable because (1) the declaration misrepresents numerous documents produced by Schneider in response to plaintiffs' request for production;
(2) the declaration includes statements and attaches exhibits that misrepresent communications between counsel; (3) the declaration misrepresents the deposition testimony of witnesses; and (4) the declaration includes information that is not relevant to the issue of spoliation. After reviewing Schneider's various objections, the Court concludes that virtually all of the objections to Teukolsky's declaration are unsupported and without merit. As such, the vast majority of Schneider's objections are overruled. For instance, Schneider objects to a substantial portion of Teukolsky's declaration relating to the meet and confer process, Schneider's production of documents, and the identities of various Schneider employees, on the grounds of lack of foundation and lack of personal knowledge. However, as one of the lead attorneys representing plaintiffs in this matter, she would be familiar with such information and as such, an objection on these grounds is not supported. The only objections that are sustained are as follows:
* Teukolsky Decl., ¶25 at 5:1-2: "The personnel file that Schneider maintained for lead plaintiff Everardo Carrillo is attached hereto as Exhibit 11." Teukolsky has not presented sufficient evidence that she has personal knowledge regarding what Schneider maintains and interprets as Carrillo's personnel file. As such, the objection to this statement is sustained on the grounds of lack of foundation and lack of personal knowledge.
* Teukolsky Decl., ¶36 at 8:8-12: "Impact and Premier supervisors, such as Premier's Hector Soriano and Impact's Ramon Cepeda and Alfred Viramontes, have now testified in their depositions that Schneider required training and orientation of all new Impact and Premier workers and the Schneider supervisors ordered the termination of dozens of Impact and Premier workers." Unlike other deposition testimony, Teukolsky has not attached a copy of the relevant portions of the deposition transcripts for the Court's review. Teukolsky has not represented that she was present at the depositions, or indicated, at a minimum, when such depositions even took place. In the absence of such evidence, the Court sustains Schneider's objection to this statement on the grounds of lack of foundation and lack of personal knowledge.
* Teukolsky Decl., ¶38 at 8:16-18: "Impact supervisors Cepeda and Soto testified in their depositions that Impact turned in daily reports to Schneider that understated the number of hours that Impact workers had spent unloading containers." Schneider's objection to this statement is sustained on the grounds of lack of foundation and lack of personal knowledge as explained above with respect to the statement at Teukolsky Decl., ¶36 at 8:8-12.
I. Schneider has failed to comply with its discovery obligations.
Throughout this litigation, plaintiffs have argued that Schneider's document production has been wholly inadequate and has expressed concern that Schneider has not performed a reasonably diligent search for responsive documents. Plaintiffs have repeatedly raised these concerns with Schneider in numerous meet and confers, many of which have been to no avail. Schneider has repeatedly represented that diligent searches had been made and that all responsive documents had been produced, only to turn around and "find" more documents after plaintiffs proved those contentions were false. Schneider's discovery failures have now become readily apparent. To date, Schneider still has not searched a significant portion of its electronically stored information, nor has it provided any satisfactory assurance to the Court that such documents have not been destroyed during the course of this litigation.
Schneider's continuing discovery failures fall into three basic categories: (1) Schneider has not conducted a reasonably diligent search for responsive documents;
(2) Schneider has improperly withheld responsive documents; and (3) Schneider has not taken adequate ...