United States District Court, E.D. California
ORDER DENYING MOTION FOR PROTECTIVE ORDER
MICHAEL J. SENG, Magistrate Judge.
Plaintiffs seek a protective order to prevent Defendants from taking some 196 depositions of absent class members as a part of a "pilot study." Defendants assert the pilot study is a prerequisite to gathering statistical data necessary to respond to Plaintiffs' use of statistical evidence to prove labor violations suffered by the class.
I. FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural history of this case has been addressed in detail in this Court's earlier orders. The court addresses here only events relevant to the present motion.
Plaintiffs, agricultural workers employed by Defendants, filed this complaint on July 17, 2009 alleging various labor violations, including specifically that Plaintiffs performed uncompensated, off-the-clock work and were not provided compensation for the use of their own tools. Plaintiffs moved for class certification, and on April 19, 2011, the Court granted certification to a class consisting of four subclasses of field workers. (ECF No. 85.)
On November 13, 2012, Defendants moved to decertify the class. (ECF No. 203, 205.) After addressing issues of joint employment, the Court partially denied the motion for decertification on February 21, 2014. (ECF No. 310.) The Court granted the motion for decertification with regard to two of the four subclasses, but allowed the other two subclasses (involving uncompensated pre-shift work and unreimbursed tool purchases) to proceed. (Id.)
In its order on the decertification motion, the Court discussed at length the evidence presented in support of and in opposition to decertification and its pronounced lack of clarity and credibility:
In determining whether there is sufficient commonality, the Court must review and rely upon the declarations provided by each party. The Court is not attempting to determine the underlying merits of the matter, but at times it must address determinative issues to resolve certification issues. With that said, it is noted that there are general credibility concerns with regard to all the anecdotal evidence. Plaintiffs provided declarations supportive of their claims, and Defendants' declarations generally tend to show the contrary. Clearly, the declarations were not taken at random. Because of the state of the evidence, it is also not particularly helpful to combine and statistically analyze the information in the declarations. Because of the differences in number of declarations submitted by the opposing parties, any attempt to calculate the percentage of workers suffering violations based on the number of violations reflected in declarations is not likely to lead to an accurate result. The same problems arise when attempting to show the percentage of violations that occurred in each crew. In many instances only one person in the crew provided a declaration. In the case of some crews, all the declarations were provided by only Plaintiffs or only Defendants.
Arredondo v. Delano Farms Co., 2014 U.S. Dist. LEXIS 22658, 99-100 (E.D. Cal. Feb. 20, 2014).
The parties were then ordered to meet and devise a joint scheduling report. The parties' July 3, 2014, report described their inability to agree on how to conduct discovery relating to the liability phase of trial. (ECF No. 326.) Plaintiffs sought to test a potential survey on three to five class members and then administer the survey through stratified random sampling of approximately 1500 class members. Defendants intended to conduct a pilot study consisting of taking depositions of fourteen foremen and fourteen class members from each of the foremen's crews for a total of 210 depositions. Defendants argued that without conducting a pilot study, it would not be possible to determine if there was a legitimate basis to extrapolate the results of a survey to the remainder of the class members. Because Plaintiffs' class potentially contains a combination of class members who were subject to a policy to perform uncompensated work, class members who performed uncompensated work due to a failure of a policy to prevent them from doing so, and class members who possibly did not perform uncompensated work, Defendants assert that a pilot study should be performed to determine the amount of variability in the class. Defendants assert that the level of variability in the class determines the required sample size of a survey which can provide reliable results, unless variability is too great, in which case survey evidence may not prove to be a reliable tool to assist in establishing liability. (See ECF No. 326 at 20-21 (citing Duran v. U.S. Bank National Assn. , 59 Cal.4th 1, 33 (2014)).)
Despite further attempts to meet and confer, the parties could not come to an agreement on how to proceed with discovery. (See ECF No. 329.) On August 19, 2014, the Court ordered the parties to proceed to conduct discovery according to the respective methods that each had described. (ECF No. 330.)
Plaintiffs objected to Defendant's attempts to conduct discovery. After participating in a telephonic discovery dispute conference, Plaintiffs filed the instant motion for a protective order to prevent Defendants from deposing the 196 absent class members as a part of the pilot study. (ECF No. 333.) Defendants filed an opposition to the motion on September 26, 2014. (ECF No. 336.) The parties appeared at the hearing on October 1, 2014, and the matter now stands ready for adjudication.
II. PLAINTIFFS' CONTENTIONS
Plaintiffs contend that discovery from absent class members is ordinarily not permitted, and that there are several reasons why the depositions proposed by Defendants should not proceed. Specifically, Plaintiffs contend that the pilot study is to be used to show variability in the class, and therefore designed to reduce class size or revisit issues of certification. Plaintiffs contend further that Defendants could have obtained the discovery earlier in the litigation. Plaintiffs also argue that Plaintiff's counsel will be overburdened by having to attend the depositions (and attend they must to protect the interests of their client class members). Finally, Plaintiffs assert that Defense counsel, not experts, arbitrarily arrived at the number of depositions to be taken.
In light of the above, Plaintiffs request the Court grant a protective order and deny Defendants' proposed deposition of some 196 absent class members, or alternatively require Defendant to question absent class members by interrogatories or surveys.
III. DEFENDANTS' CONTENTIONS
The joint scheduling report filed by the parties on July 3, 2014, described in detail the reasons Defendants seek a pilot study and why they concluded that as many as 196 absent class members would need to be deposed. Defendants argue that it is essential that the parties first focus on variability in liability among class members and then on determining which groups of class members can establish liability. Defendants' pilot study is offered as an appropriate method for determining a process to ensure consistent, reliable and representative information can be obtained from a sample of class members. Defendants rely upon the testimony of their expert, Joseph Krock (ECF No. 337) and the recent California Supreme Court decision in Duran v. U.S. Bank National Ass'n , 59 Cal.4th 1, 12 (2014). According to Krock, the greater the variability in the sample, the larger the required sample size needed to obtain, within an acceptable margin of error, a reliable result reflective of the population. (Krock Decl., ¶¶ 7-8); see also Duran , 59 Cal.4th at 42 ("The more diverse the population, the larger the sample must be in order to reflect the population accurately." Further, "[i]t is impossible to determine an appropriate sample size without first learning about the variability in the population.") (Citations omitted.)
According to Defendants, the challenge in determining whether survey evidence can reliably establish liability of the class as a whole is complicated by the nature of the common questions at issue in this case. This is not like other class-action cases where plaintiffs can establish liability based on a company-wide policy. Here, with regard to the pre-shift subclass,  Plaintiffs do not suggest that there was a wrongful companywide policy, but instead allege that wrongful practices resulted from a failure to implement or enforce proper polices. (See Opp'n to Mot. for Decert., ECF No. 286 at 24.) Plaintiffs therefore have to show what groups of class members actually engaged in pre-shift work. Defendants contend that the stratification built into their pilot study - dividing the larger population of the class into subgroups based on specified factors such as which foreman the class member worked under and dates of employment - will help identify subpopulations with common experiences. (Krock Decl. at ¶ 10.) Krock identified nine subgroups ("strata") taking into account the period and duration of time foremen worked and the time they worked at Delano Farms. (Id. at ¶ 14.) Krock's proposed pilot study is designed to enable the parties to test if subpopulations can be adequately defined and if a precise, statistically reliable, sample size can be determined. (Id. at ¶¶ 15-16.) ...