NASHONNA COLEMAN, an individual, TERESA SAMANIEGO, an individual, and GAIL CHILLINSKY, an individual, on behalf of themselves and all persons similarly situated, Plaintiffs,
JENNY CRAIG, INC., Defendant.
ORDER RESOLVING JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE
[ECF No. 36]
DAVID H. BARTICK, Magistrate Judge.
On May 16, 2013, the parties filed a Joint Motion for Determination of Discovery Dispute. (ECF No. 36.) On that same day, Plaintiff filed a notice of errata indicating that the last two pages of ECF No. 36 were missing, and attaching a complete version of the parties' joint motion. (ECF No. 37.) After a thorough review of the parties' arguments and evidence, the Court issues the following Order to resolve the issues in dispute.
I. PLAINTIFF'S ALLEGATIONS
Plaintiff Nashonna Coleman brings this putative collective and class action against Defendant Jenny Craig, Inc. for alleged violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., and California state wage and hour laws. Specifically, Plaintiff alleges that Defendant: (1) failed to pay regular and overtime compensation in violation of the FLSA; (2) failed to pay wages owed in violation of California Labor Code §§ 201, 203, 216, 218.5 and 227.3; (3) failed to pay overtime compensation in violation of California Labor Code §§ 510, 1194 and 1198; (4) failed to timely pay wages upon termination in violation of California Labor Code §§ 201, 202 and 203; (5) failed to provide meal and rest breaks in violation of California Labor Code §§ 226.7 and 512; (6) engaged in unfair competition in violation of California Business and Professions Code §§ 17200, et seq.; and (7) is subject to penalties pursuant to California Labor Code § 2699, et seq.
The First Amended Complaint alleges:
Plaintiffs were not paid for all time worked. Plaintiffs routinely worked before and after their shifts ended, without being paid for their time. They were not permitted to clock in until just a few minutes before their shifts began, even though they were required to arrive earlier in order to get the store ready to open, and were often required to continue to work after clocking out at the end of their shifts.
(ECF No. 4 at ¶ 19.) Plaintiff further alleges that "[i]n addition to working off the clock before and after their shifts, Plaintiffs often worked without taking meal or rest periods." ( Id. at ¶ 20.)
Plaintiff alleges that "Defendant's uniform policy and procedure requires its employees to work off the clock' without compensation for time spent working for Defendant and/or subject to the control of the Defendant." ( Id. at ¶ 32.) Plaintiff further alleges:
Defendant, as a matter of established company policy and procedure in the State of California, administers a uniform company policy and practice regarding the duties and responsibilities of the Plaintiffs and other members of the Class and creates and/or maintains various materials, such as policy handbooks, letters, and other correspondence which, taken together, constitute a written contract for employment for Plaintiffs and the Class members.
( Id. at ¶ 33.) Plaintiff alleges that "Defendant, as a matter of established company policy and procedure, in the State of California, scheduled to work and/or required, suffered or permitted Plaintiffs and other members of the Class to work, without paying them for each and every hour worked during the Class Period." ( Id. at ¶ 34.)
II. DISCOVERY DISPUTE
The instant discovery dispute concerns whether Defendant should be required to produce to Plaintiff, prior to class certification, "(1) the contact information of putative class members; (2) other records pertaining to class members, to include: payroll records, work schedules, time cards, as well as other computerized records that show the date and time of various transactions; and (3) Message Board' records (an internal discussion board for [Defendant's] employees)." (ECF No. 37-1 at 4:11-16.)
First, Plaintiff seeks production of the full name, address and telephone number of all 395 putative class members, but Defendant has provided only the last names of 144 of the 395 class members. ( Id. at 5:1-4.) Plaintiff contends that pre-certification discovery of the contact information of putative class members is "routinely allowed" in wage and hour actions ( id. at 7:16-17), and that the information is relevant in that Plaintiff needs the information to establish whether common questions of law or fact exist and if Plaintiff's claims are typical of those of the putative class members. ( Id. at 8:1-21.) Plaintiff further contends that the relevancy of this information outweighs the class members' privacy concerns which can be adequately protected through the use of either a protective order or an "opt-out" procedure. ( Id. at 9:18-10:27.)
Second, Plaintiff seeks production of Defendant's records of putative class members including payroll records, time cards, work schedules, schedules of client meetings (known as "Ghant charts") and "SONIC" records. ( Id. at 11:14-19.) Plaintiff contends these records are relevant to "show that class members worked overtime, although their time cards may show otherwise, by use of SONIC records that show the date and time of an event or transaction, such as sales of food or an appointment." ( Id. at 12:3-5.) Plaintiff further contends that the privacy of putative class members can be protected through the use of employee ID numbers or unique identifiers, and that the privacy of Defendant's customers can be protected through appropriate redactions. ( Id. at 13:17-14:3.) Finally, Plaintiff contends that she only needs the payroll, time cards and work schedules of 50 of the 395 putative class members in order to provide an accurate analysis of the entire class, and that the use of such sampling resolves any concern that production of the records might be unduly burdensome. ( Id. at 14:7-21.)
Third, Plaintiff seeks production of Defendant's internal "Message Board" records, an internal electronic bulletin board system to which all Defendant's employees have access to post comments or concerns. ( Id. at 14:25-27.) Plaintiff claims that the records are relevant because she has seen posted complaints that employees were required to work without receiving proper wages at each of Defendant's centers, and this evidence will support Plaintiff's Rule 23 commonality argument. ( Id. at 15:7-15.) Plaintiff also contends the "Message Board" database can be easily searched for key words suggesting unpaid overtime, missed or late lunches and rest breaks, and that privacy concerns would be protected because the posts are anonymous and, to the extent they contain personal information, they can be redacted. ( Id. at 15:16-26.)
Defendant's primary argument is that the requested discovery should not be compelled because class certification of Plaintiff's overtime and "off the clock" claims is prohibited by applicable law because such claims "require individualized inquiries into the facts as they apply to each potential claimant." ( Id. at 17:26-18:1.) Defendant further argues that Plaintiff's First Amended Complaint alleges that Defendant's violations were the result of its corporate policies and procedures, and that "it is misleading and disingenuous for Plaintiff to assert now that individual class member experiences are relevant, much less vital to the successful prosecution of Plaintiff's case." ( Id. at 18:9-11.) Defendant also argues that rather than seeking the discovery to corroborate commonality and typicality, "Plaintiff's attorneys are fishing to find a viable claim and class representative." ( Id. at 16:7-8.) Defendant also generally argues that the "discovery requests are vague, ambiguous, overbroad, unduly burdensome and seek information that is not relevant or likely to lead to the discovery of admissible evidence." ( Id. at 16:10-12.)
A. Legal Standards
1. Scope of Discovery
Litigants "may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." FED. R. CIV. P. 26(b)(1). In addition, "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. The relevance standard is thus commonly recognized as one that is necessarily broad in scope in order "to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). However broadly defined, relevancy is not without "ultimate and necessary boundaries." Hickman, 329 U.S. at 507. Accordingly, district courts have broad discretion to determine relevancy for discovery purposes. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).
2. Class Actions
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, a member of a class of individuals may sue on behalf of all class members only if:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
FED. R. CIV. P. 23(a).
In addition to the requirements of Rule 23(a), maintenance of a class action also requires satisfaction of one of the three prongs of Rule 23(b).
Under Rule 23(b), a case may be certified as a class action only if (1) there is a risk of substantial prejudice from separate actions; or (2) declaratory or injunctive relief benefitting the class as a whole would be appropriate; or (3) "the questions of law and fact common to class members predominate over any questions affecting only individual members, and... a class action ...