United States District Court, S.D. California
JACK HERNANDEZ an individual, and on behalf of all others similarly situated, Plaintiff,
BEST BUY CO., INC., Defendant.
ORDER RE JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE [DOC. NO. 30.]
KAREN S. CRAWFORD, Magistrate Judge.
Before the Court is the parties' Joint Motion for Determination of Discovery Dispute. [Doc. No. 30.] In the Joint Motion, plaintiff seeks an order compelling defendant to provide adequate responses to interrogatories and requests for production of documents. Plaintiff also seeks an order compelling defendant to produce all relevant documents in response to its requests for production of documents and to provide a privilege log for any relevant documents being withheld as privileged. For the reasons outlined below, the Court finds that plaintiff's request for an order compelling defendant to supplement its responses to written discovery and to produce relevant documents must be GRANTED in part and DENIED in part. In addition, the Court finds that plaintiff's request for an order compelling defendant to provide a privilege log must be GRANTED.
In the operative Second Amended Complaint ("Complaint") plaintiffalleges that he has been and is currently employed by defendant Best Buy Stores, L.P., as a store manager in a salaried position at one of defendant's Best Buy Mobile locations. [Doc. No. 19, atp. 1.] The main allegation in plaintiff's class action Complaint is that general managers at Best Buy Mobile locations routinely work more than eight hours per day and more than 40 hours per week without overtime pay and mandated meal and rest periods because they are mis-classified as "exempt" employees under California law. [Doc. No. 19, at pp. 3, 5.] Plaintiff alleges that managers at Best Buy Mobile locations do not meet the requirements for "exempt" employees under California law, because they regularly spend more than 50 percent of their time performing non-exempt tasks and because their work does not regularly involve discretion or independent judgment. [Doc. No. 19, at p. 6.] According to plaintiff, managers spend most of their time on non-exempt tasks because of a consistent, uniform corporate policy of "inadequate staffing" at all Best Buy Mobile locations. [Doc. No. 19, at pp. 6-7.]
Since plaintiff's Complaint includes class allegations, a Scheduling Order filed on February 19, 2014 gave the parties deadlines to complete class discovery and to file any motions related to class certification. [Doc. No. 11, at pp. 1-3.] However, fact and class discovery were not bifurcated. [Doc. No. 11, at p. 1.]
The scope of discovery under Rule 26(b) is broad: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party involved in the pending action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b). However, a court may limit discovery of relevant material if it determines that the discovery sought is unreasonably cumulative or duplicative, or obtainable from some other source that is more convenient, less burdensome, or less expensive, or the burden or expense of the proposed discovery outweighs the likely benefit. The party resisting discovery generally bears the burden to show that the discovery requested is irrelevant to the issues in the case or is overly broad, unduly burdensome, unreasonable, or oppressive. If the resisting party meets its burden, the burden shifts to the moving party to show the information is relevant and necessary. Henderson v. Holiday CVS, L.L.c., 269 F.R.D. 682, 686 (2010).
Plaintiff's Interrogatory No. 7 seeks the identity of "each salaried store manager that [defendant or anyone acting on defendant's behalf] has communicated with in any way concerning the claims made by the plaintiff in the Complaint." [Doc. No. 30, at p. 3.] Defendant objected to this interrogatory on various grounds and did not provide a substantive response. [Doc. No. 30, at pp. 3-4.]
In the Joint Motion, defendant argues that it should not be required to provide a substantive response to Interrogatory No. 7 for two reasons. First, defendant contends that Interrogatory No. 7 is unreasonably broad, vague, and ambiguous, because, as worded, it appears to require defendant to contact each and every employee or agent to determine whether he or she has had any of the requested communications.
Second, defendant contends that Interrogatory No. 7, as worded, includes a request for the identity of any salaried store manager who has been interviewed by defendant's counsel for purposes of this litigation. Defendant contends this information is protected under the work product doctrine.
The work product doctrine is codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure and states as follows:
(A) Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent. But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare Its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
(B) If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
Fed.R.Civ.P. 26(b)(3). The party asserting the work product doctrine bears the burden of establishing that it applies. Hernandez v. Tanninen, 604 F.3d 1095, 1102 (9th Cir. 2010).
"It appears that the privilege created under Rule 26(b)(3) covers intangible material as well as tangible things. Initially, the rule itself indicates that the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.' Fed.R.Civ.P. 26(b)(3). Whereas such opinions and theories could be in a written, tangible form, it is equally possible that they could reside simply in the intangible thoughts of a party's counsel. Opposing counsel cannot be allowed to gain access to opinion work product' simply because of the fact that they have not been reduced to a tangible form." Laxalt v. McClatchy, 116 F.R.D. 438, 441-442 (D. Nev. 1987).
It is well established that "the identity of witnesses having knowledge of relevant facts is discoverable information." American Floral Services v. Florists' Transworld Delivery Association, 107 F.R.D. 258, 260 (D.C. Ill. 1985). However, the disclosure of "all persons interviewed" by counsel qualifies for protection as "intangible" work product under Hickman v. Taylor, 329 U.S. 495 (1947), if it would reveal "significant insights" into an opposing lawyer's case preparation and mental processes. American Floral, 107 F.R.D. at 261.
Two contrasting cases are instructional. First, in American Floral, 107 F.R.D. at 258, the plaintiff alleged that defendants, its direct competitors, engaged in anti-competitive practices by enforcing a particular limitation on member florists. Id. at 259. After defendants only revealed enforcement of the limitation against one of its many member florists during discovery, plaintiff located and interviewed two other member florists who provided damaging facts about the defendants' alleged anti-competitive misconduct. Id. at 259. Plaintiff then revealed during a discovery conference that it had interviewed these two member florists. Id. Defendant demanded that plaintiff disclose the identities of the interviewees because they were witnesses with knowledge of the facts of the case, but plaintiff objected that "the identity of the interviewees [was] protected from discovery by the attorney work product doctrine." Id. at 260. However, the District Court concluded that the identities of the two witnesses did not qualify for work product protection. In reaching its conclusion, the District Court distinguished the circumstances at issue in this case from those in which an opposing party seeks the identities of all persons interviewed by counsel, as this had a much greater potential to reveal "significant insights" into the opposing lawyer's mental processes and preparation of the case. Id. at 261. In this case, no such "significant insights" would be revealed if plaintiff simply disclosed the identities of the two witnesses. Plaintiff had already revealed that the witnesses had been interviewed. The witnesses had knowledge of relevant facts and their identities would not reveal anything more about counsel's mental processes or theories about the case. Id. at 261-262.
Second, in Laxalt v. McClatchy, 116 F.R.D. 438, the plaintiff brought a libel action against defendants for including damaging information about him in a series of newspaper articles. Id. at 439. During the litigation, defendants hired two investigators. Both investigators were aware of some relevant facts obtained during their prior employment in governmental positions. They then gathered additional factual information for defense counsel in preparation for trial in the libel action. Id. at 439-440. During their depositions, the investigators were asked to divulge "all of the relevant facts in the litigation" as well as the identities of all witnesses who were "interviewed in the course of their investigations." Id. at 443. The District Court instructed that the investigators could not simply be asked to reveal "all of the relevant facts in the litigation, " as such a broad based question "could easily lead to the disclosure of mental impressions or strategy" which was protected as work product. Id. at 443. The investigators could, however, be asked questions tailored to "elicit specific factual material" discovered in their roles as investigators, because "[w]ork product immunity does not protect the facts which an adverse party may have learned or the persons from who ...