United States District Court, N.D. California, San Jose Division
ORDER GRANTING CLAIRE'S MOTION TO COMPEL (RE: DKT NO. 58)
PAUL S. GREWAL, Magistrate Judge.
Before the court is Defendant Claire's Boutiques, Inc.'s motion for an order compelling Plaintiffs Mayra Quintana and Elizabeth Sanchez to produce all documents responsive to Defendant's Request for Production of Documents, Set One, Nos. 22 and 23. Plaintiffs oppose. Because the parties' papers squarely present the issues, the court finds the motion suitable for disposition on the papers. After considering the arguments, the court GRANTS Claire's motion as set out below.
Plaintiffs represent a putative class of 1100 current and former non-exempt, hourly-paid managers from Claire's retail locations. Plaintiffs' complaint alleges violations of: (1) Cal. Labor Code §§ 510 and 1198 (unpaid overtime); (2) Cal. Labor Code §§ 1194, 1197, and 1197.1 (unpaid minimum wages); (3) Cal. Labor Code §§ 226.7 and 512(a) (unpaid meal period premiums); (4) Cal. Labor Code §§ 226.7 (unpaid rest period premiums); (5) Cal. Labor Code §§ 201 and 202 (wages not timely paid upon termination); (6) Cal. Labor Code §§ 2800 and 2802 (unpaid business-related expenses); (7) Cal. Labor Code § 2698 ("PAGA"); and (8) Cal. Bus. & Prof. Code § 17200.
Claire's served Plaintiffs with interrogatories seeking cell phone and credit/debit card records to rebut Plaintiffs' claims that they did not receive meal or rest breaks during the course of their employment. Claire's seeks evidence to determine (1) the amount of time Plaintiffs engaged in personal activities during the workday; (2) the dates, times, and duration of personal activities Plaintiffs engaged in during the workday and (3) the frequency with which they engaged in personal activities during the workday. Despite extensive meet and confer between the parties regarding these records, the parties have not been able to resolve the issue.
II. LEGAL STANDARDS
The Federal Rules of Civil Procedure provide parties "may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." "Once the moving party establishes that the information requested is within the scope of permissible discovery, the burden shifts to the party opposing discovery." "An opposing party can meet its burden by demonstrating that the information is being sought to delay bringing the case to trial, to embarrass or harass, is irrelevant or privileged, or that the person seeking discovery fails to show need for the information."
A. Quintana's Cell Phone Records
Claire's seeks access to Quintana's cell phone records to assess Plaintiffs' claim that they were denied meal and rest breaks and worked hours for which they were not paid throughout their entire employment. Claire's argues, and the court agrees, that cell phone records establishing that Plaintiffs engaged in personal activities while on the clock and/or had the opportunity to take meal and rest breaks are relevant to this litigation. Quintana's telephone records will evidence the times she made personal calls during the workday and the length of those calls. Records of text messages similarly will evidence the times she sent and responded to personal messages during the workday.
Quintana objects to the discovery request on three grounds: she argues (1) the phone records are not relevant; (2) the request runs afoul of her right to privacy and (3) she has no duty to produce records not in her possession, custody or control.
These objections are not persuasive.
First, Quintana conflates the relevance standard of Fed.R.Evid. 401 with the reasonably calculated to lead to admissible evidence standard of Fed.R.Civ.P. 26(b). Under Rule 26(b)(1) discoverable information "need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Both the Supreme Court and the Ninth Circuit have accepted that the right to discovery must be "accorded a broad and liberal treatment." Quintana's cellular phone records from a phone that she admits she used during the period of her employment contain relevant information reasonably calculated to lead to the discovery of admissible evidence. That the phone records reflect more than only Quintana's phone activity does not shield those records from discovery. Claire's can obtain the records and examine Quintana in reliance on those records to suggest Quintana used her phone while taking a meal or rest break. Quintana's counsel then can respond with evidence that it was her sister that had been using the phone. Although the fact finder remains the ultimate arbiter of the probative value of the phone records, the records are discoverable under Rule 26.
Second, Quintana's privacy objections to the production of the discovery are addressed by the protective order in place in this case. Claire's willingness to redact third-party information also will address Quintana's privacy concerns. Finally, because Quintana put these records at issue by initiating this action, she ...