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Aldapa v. Fowler Packing Company Inc.

United States District Court, E.D. California

June 16, 2016

BEATRIZ ALDAPA, et al., Plaintiffs,
v.
FOWLER PACKING COMPANY INC., et al. Defendants.

          ORDER GRANTING MOTION FOR RECONSIDERATION IN PART (DOC. NO. 64)

         Plaintiffs 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.)

         Defendants oppose the motion for reconsideration in its entirety. (Doc. No. 71.)

         I. Applicable Legal Standard

         Federal 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 citations omitted).

         II. Analysis

         1.Plaintiffs' Request to Reconsider the Magistrate Judge's Order Requiring Them to Identify Other Putative Class Members Present at Meetings with Class Counsel

         Plaintiffs 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.

         Concerning 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.)

         Unfortunately, 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.[1]

         In 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.)

         Defendants 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. 71.)

         A 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 ...


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