United States District Court, E.D. California
ORDER GRANTING MOTION FOR RECONSIDERATION IN PART
(DOC. NO. 64)
seek reconsideration of the assigned magistrate judge's
order of March 18, 2016, granting defendants' motion to
compel further responses at plaintiffs' depositions.
(Doc. No. 63.) That order required the named plaintiffs to
answer certain questions at their deposition seeking the
identification of other putative class members who attended
meetings concerning the anticipated filing of this class
action, permitted defendants to reopen the deposition of
Elmer Avalos due to post-deposition changes he made to that
testimony, and required plaintiffs to pay the costs and
attorney's fees associated with the reopening of that
deposition. (Id.) Specifically, plaintiffs seek
reconsideration of the order compelling them to identify
those who attended the meetings in question, arguing that
such information is protected by both substantive labor law
and the First Amendment. (Doc. No. 64 at 10-26.) Plaintiffs
also seek reconsideration of the order awarding costs and
attorney's fees for the motion to reopen Avalos's
deposition, though they do not seek reconsideration of the
order requiring the reopening of that deposition.
(Id. at 26-30.)
oppose the motion for reconsideration in its entirety. (Doc.
Applicable Legal Standard
Rule of Civil Procedure 72(a) provides that non-dispositive
pretrial matters may be referred to and decided by a
magistrate judge, subject to review by the assigned district
judge. See also Local Rule 303(c). The district
judge shall modify or set aside any part of the magistrate
judge's order which is "found to be clearly
erroneous or contrary to law." Local Rule 303(f).
See also 28 U.S.C. § 636(b)(1)(A). Discovery
motions are non-dispositive pretrial motions which come
within the scope of Rule 72(a) and 28 U.S.C. §
636(b)(1)(A), and thus the orders of a magistrate judge
addressing such motions are subject to the "clearly
erroneous or contrary to law" standard of review.
Rockwell Intern., Inc. v. Pos-A-Traction Indus.,
Inc., 712 F.2d 1324, 1325 (9th Cir. 1983). The
magistrate judge's factual determinations are reviewed
for clear error, and the magistrate judge's legal
conclusions are reviewed to determine whether they are
contrary to law. United States v. McConney, 728 F.2d
1195, 1200-01 (9th Cir. 1984), overruled on other grounds
by Estate of Merchant v. CIR, 947 F.2d 1390 (9th Cir.
1991). "A magistrate judge's decision is
'contrary to law' if it applies an incorrect legal
standard, fails to consider an element of applicable
standard, or fails to apply or misapplies relevant statutes,
case law, or rules of procedure." Martin v.
Loadholt, No. 1:10-cv-00156-LJO-MJS, 2014 WL 3563312, at
*1 (E.D. Cal. July 18, 2014) (internal quotations and
Request to Reconsider the Magistrate Judge's Order
Requiring Them to Identify Other Putative Class
Members Present at Meetings with Class Counsel
seek reconsideration of the magistrate judge's order
compelling them to identify the others who attended meetings
where class counsel were present to discuss the filing of
this lawsuit. In one, but not the other, of the depositions
of plaintiffs Aldapa and Avalos, plaintiffs' counsel
objected to questions seeking such identifying information by
asserting an associational privilege under the First
Amendment. (Doc. No. 64 at 10.) Plaintiffs' counsel also
asserted at both depositions that substantive labor law
protected his clients from being required to answer such
questions. As to this latter argument, the magistrate judge
found no applicable privilege based on substantive labor law,
holding in pertinent part that the California Agricultural
Labor Relations Act (ALRA) does not pre-empt federal
discovery rules and that even under the test routinely
applied by the National Labor Relations Board (NLRB) such
information was subject to disclosure. (Doc. No. 63 at
10-13.) The magistrate judge's discovery order in this
regard was neither clearly erroneous nor contrary to law, and
therefore the undersigned will not disturb it.
plaintiff's assertion of privilege under the First
Amendment, the magistrate judge's order stated:
Courts advert to balancing three factors when conducting the
compelling interest/substantial relation inquiry to determine
whether First Amendment privilege applies: the relevance of
the information sought, the need for that information, and
the extent of injury that disclosure may cause to
associational rights. See Black Panther Party, 661
F.2d 1243, 1268 (D.C. Cir. 1981); Adolph Coors Co. v.
Wallace, 570 F.Supp. 202, 208 (N.D. Cal. 1983). The
party seeking disclosure bears the burden of proving that the
balance of these factors weighs in his favor. Id.
Here, Defendants seek the identities of the putative class
members who met with class counsel and Plaintiffs. Defendants
are not seeking an anonymous members list or information from
a group that espouses dissident beliefs. There is not a
dissident organization in the background, such as the Ku Klux
Klan, Black Panthers, etc. The putative class members are
farmworkers who are or were employed by Defendants and who
are seeking class certification in federal court for their
proposed class. Plaintiffs have not shown that
Defendants are likely to harass or retaliate against the
individuals who have met with Plaintiffs and class counsel.
There has been no indication that Defendants have engaged in
any inappropriate conduct in this case. Disclosing the
identities of the potential class members who met with
Plaintiffs and class counsel will not have a chilling effect
on the putative class members' First Amendment rights.
Furthermore, the information that Defendants seek to obtain
is relevant to their case. Defendants indicate that they may
depose putative class members that Plaintiffs may elicit
testimony from to support Plaintiffs' motion for class
certification. Accordingly, the Court does not find that
Plaintiffs' claim of First Amendment privilege should be
applied to preclude discovery in the instant case.
(Doc No. 63 at 13-14.)
in the proceedings before the assigned magistrate judge
neither party cited to the Ninth Circuit decision in
Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir.
2009) ("Perry I") in which the court set
out the legal standard applicable to resolution of this
issue. As a result, the magistrate judge did not apply the
specific burden-shifting requirements on the parties required
by Perry I. Accordingly, the undersigned is
compelled to revisit the issue.
moving for reconsideration, plaintiffs suggest various
formulations of the legal standard applicable where discovery
is propounded such as the deposition questions at issue here,
including that the information sought must be "so
relevant that it goes to the 'heart of the matter,
'" that the evidence sought must be "directly
relevant" to a claim or defense, and/or that "the
inquiring party must exhaust all reasonable alternative
sources of information by which he could obtain the
information in a less chilling manner." (Doc. No. 64 at
22-23.) Plaintiffs express a concern that the magistrate
judge believed that any privilege shielding disclosure was
available only to dissident groups and thereby improperly
shifted the burden upon plaintiffs to show the need to
withhold the information which defendants sought. (Doc. No.
64 at 24.)
counter that: (1) "none of the cases cited by Plaintiffs
include members of a putative class in a federal wage and
hour class action litigation dispute;" (2) that the
putative class members do not belong to any sort of a formal
association; and (3) that the information sought "is
directly relevant to Defendants' defense in this case and
goes to the heart of the matter." (See Doc. No.
hearing was held on plaintiff's motion for
reconsideration on April 21, 2016, at which time the court
directed the parties to either agree upon a stipulated
protective order with respect to the deposition questions at
issue or to present further evidence and argument to the
court. (Doc. No. 84.) Thereafter, a declaration and
supplemental brief was filed by plaintiffs on April 27, 2016
(Doc. No. 85) and by defendants on May 4, 2016 (Doc. No. 86).
Having considered the parties' arguments and evidence,
the court will grant plaintiffs' motion for
reconsideration only with respect to the motion ...