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Kellgren v. Petco Animal Supplies, Inc.

United States District Court, S.D. California

March 10, 2017

ERIK KELLGREN, individually and on behalf of all others similarly situated, Plaintiffs,
PETCO ANIMAL SUPPLIES, INC.; PETCO HOLDINGS, INC.; and DOES 1 to 100, inclusive, Defendants.


          Karen S. Crawford United States Magistrate Judge

         Before the Court is a Joint Motion Regarding Defendants' Collection of Electronically Stored Information, to Compel the Production of Documents and Information, and for an In-Person Conference. [Doc. No. 183.] In the Joint Motion, plaintiffs seek an order compelling defendants to provide further responses to interrogatories and requests for production of documents. Plaintiffs also seek an order compelling defendants to produce all relevant documents in response to its requests for production of documents. Finally, plaintiffs request an in-person discovery conference with the Court to discuss a number of discovery issues. For the reasons addressed more thoroughly below, the Joint Motion is GRANTED in part and DENIED in part. [Doc. No. 183.]

         I. BACKGROUND

         This is a collective action in which plaintiffs Erik Kellgren ("Kellgren") and others employed as Assistant Managers in defendants' stores claim to have been misclassified as "exempt" from the overtime provisions of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq. ("FLSA"). The central issues in the case relate to the duties plaintiffs performed in the course of their employment, and whether they worked over forty hours a week during the relevant time frame.

         On September 3, 2015, the Court conditionally certified a collective action consisting of: "All persons residing in the United States (except California) who are formerly or currently employed by Petco Animal Supplies, Inc. as an assistant manager at any time from March 19, 2010 to the present." [Doc. No. 78, at p. 11.] A Second Amended Scheduling Order (hereinafter "Scheduling Order"), filed on November 18, 2016, gives the parties until August 2, 2017 to complete fact discovery. [Doc. No. 184, at p. 1.] The Scheduling Order also provides that any pretrial motions, including decertification and final certification of the collective action, must be filed by September 15, 2017. Id. at p. 3.

         The instant Joint Motion was filed by the parties on November 17, 2016, and concerns: (1) plaintiffs' request for an in-person conference with the Court; (2) plaintiffs' motion to compel regional and corporate e-mail; and (3) plaintiffs' motion to compel further responses to certain interrogatories and requests for production in plaintiffs' third set of interrogatories and requests for production (hereinafter "RFP 3").


         Federal Rule of Civil Procedure 26(b), as amended, provides in relevant part as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.

Fed. R. Civ. P. 26(b)(1); Fed.R.Civ.P. 26(b)(2)(B). "The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ...." Fed.R.Civ.P. 26(c)(1).

         A. Plaintiffs' Request for an In-Person Conference with the Court.

         Plaintiffs request an "in-person conference with the Court to discuss a number of discovery disputes that have reached such a mass that it would appear most effiacious [sic] and sensible to address them in person, including .. . (1) the scope of, and methodology for, Defendants' collection, search and production of electronically stored information ("ESI"), including e-mails; and (2) [p]laintiff s motion to compel [defendants to produce documents and information responsive to Plaintiffs' Third Set of Interrogatories and Request for Production of Documents. [Doc. No. 183, at p. 11.] Defendants do not oppose plaintiffs' request for an in-person discovery conference, but suggest that plaintiffs first provide a written list of the specific issues in advance of the conference. [Doc. No. 183, at p. 43.] Defendants assert that "[w]hile plaintiff listed numerous items that they seek to have the Court address at a conference, the topics are general. Plaintiffs do not identify the relief they seek, and Petco is not even aware there is a dispute as to several of the items." Id. Here, the Court finds that an in-person discovery conference is not necessary to resolve the instant discovery dispute as the parties have submitted sufficient briefing on the issues in dispute. The parties filed over eighty pages of briefing, excluding exhibits, regarding their respective positions. [Doc. No. 183.] Accordingly, plaintiffs' request for an in-person discovery conference at this time is DENIED.

         B. Plaintiffs' Motion to Compel Regional and Corporate E-mail.

         Plaintiffs assert that "a core aspect of discovery in a retail chain misclassification case is usually e-mails at the regional and corporate level, but Defendants refuse to produce them here, much less even suggest when they might possibly be forthcoming." [Doc. No. 183, at p. 11.] In connection with their request for regional and corporate e-mail, plaintiffs request broadly "the Court's guidance regarding the parameters of Defendants' collection and production of ESI and other discovery to which they are entitled." Id. at p. 12. Plaintiffs further note that "[n]o ESI protocol was in place in this action until August 26, 2016, " and claim that "[defendants appear to relieve themselves of their obligation under Fed.R.Civ.P. 26(e)(1) to supplement their responses to Plaintiffs' [previous discovery] requests." [Doc. No. 183, at pp. 14, 15.]

         Defendants oppose plaintiffs' request for regional and corporate e-mails on the following grounds: (1) plaintiffs do not identify the specific requests at issue; and (2) the only discovery requests which sought regional and corporate e-mail were plaintiffs' fifth set of requests for production (hereinafter "RFP 5"), for which no meet and confer has occurred. [Doc. No. 183, at pp. 44, 63.] Defendants further note that "to the extent [plaintiffs' request for 'regional and corporate e-mail' is a request for materials responsive to their Requests for Production, Set 1 ('RFP 1'), Set 2 ('RFP 2'), or Set 4 ('RFP 4'), this request is untimely, as this Court's deadlines for filing relevant motions to compel have long passed." [Doc. No. 183, at p. 44.]

         The Court notes that plaintiffs did not brief the Joint Motion in the manner required by Chambers' Rules. In this regard, Chambers' Rules state as follows:

If the discovery dispute concerns written discovery requests (e.g., interrogatories, requests for admissions, requests for production, subpoenas), the parties shall submit a "Joint Motion for Determination of Discovery Dispute." For each written discovery request in dispute, the Joint Motion must include:
1. The exact wording of the discovery request;
2. The exact response to the request by the responding party;
3. A statement by the propounding party and any points and authorities as to why a further response should be compelled; and,
4. A precise statement by the responding party and any points and authorities as to the bases for all objections and/or claims of privilege.

Chambers' Rules, § V.D.

         In the instant Motion, plaintiffs make general arguments about the collection, search and production of ESI at the regional and corporate level in the context of defendants' responses. For example, plaintiffs contend they have made repeated attempts to reach agreement with defendants regarding "discovery previously sought by Plaintiffs, including as to Defendants' affirmative defenses and other areas which implicate corporate-level decision-making, where corporate-level custodians must be identified and their ESI searched." [Doc. No. 183, at pp. 13, 31.] However, plaintiffs do not identify the discovery requests previously sought by plaintiffs on a request-by-request basis. Instead, plaintiffs broadly take issue with the "search terms" used by defendants and the use of a "delimiter." [Doc. No. 183, at p. 14.] Plaintiffs further assert that "Defendants have baulked at identifying relevant custodians, including at the corporate-level, and otherwise have stymied Plaintiffs' attempts to obtain corporate-level ESI.. .." [Doc. No. 183, at p. 14.] However, plaintiffs fail to address on a request-by-request basis, either the relevant search terms, or the identity or job titles of the document custodians plaintiffs believe would be appropriate. By contrast, defendants made a reasonable attempt in the instant Motion to narrow the scope of the overly broad arguments made by plaintiffs about regional and corporate e-mail and ESI based on its view of the case. [Doc. No. 183, at pp. 63-66.] Defendants also attempted to provide substantive responses to each of plaintiffs' arguments about regional and corporate e-mail and ESI, and to explain why defendants believe its responses were appropriate under the circumstances. Id. Defendants assert that they "ha[ve] insisted that any discussion of electronic systems, potential custodians of documents, and possible search terms must be tethered to specific document requests Plaintiffs have propounded. . . . Petco has resisted discussing 'regional and corporate' e-mail in a vacuum and not in relation to a specific request." [Doc. No. 183, at p. 65.]

         In sum, plaintiffs failed to abide by the Chambers' Rules requiring them to include, among other things, the exact wording of the discovery request at issue. [Chambers' Rules, § V.D.] Plaintiffs' failure to comply with this protocol has unnecessarily resulted in difficulty deciphering the precise nature of plaintiffs' objections. This Chambers' Rule is in place to allow for the expedient review of disputed discovery requests. Going forward, any joint discovery motions filed that fail to meet the briefing requirements in Chambers' Rules will be subject to denial.

         Federal Rule of Civil Procedure 7(b)(1) requires a party state with particularity the grounds for a court order and the relief sought. Here, plaintiffs fail to clearly state what relief they seek and why they are entitled to a court order compelling that relief. Particularly when a party stands on an overly broad request and does not make a reasonable attempt to narrow it or to explain the need for such a broad range of documents and/or information, the Court will not "rewrite a party's discovery request to obtain the optimum result for that party. That is counsel's job." Bartolome v. City & Cty. of Honolulu, No. Civil 0-176 SOM/LEK, 2008 WL 2736016, at *14 (D. Hawaii July 14, 2008). The Court agrees with defendants that plaintiffs have not made a fair and appropriate attempt to identify with particularity the scope of the ESI as it relates to regional and corporate e-mail.

         Further, plaintiffs' Motion to Compel as it relates to the collection, search and production of ESI at the regional and corporate level is premature. As of the date the instant Motion was filed, the parties had not meaningfully met and conferred as to all of the disputed discovery requests on a request-by-request basis. Defendants note that they served written responses to RFP 5 on October 27, 2016. [Doc. No. 183, at p. 64.] The parties exchanged one letter and a request for a sample of documents, but the parties had no discussion of any perceived deficiencies as of the date that the Joint Motion was filed. Id. The prematurity of plaintiffs' inclusion of the regional and corporate e-mail issue is further evidenced by the fact that on January 25, 2017, counsel for the parties jointly called the Court seeking leave for plaintiff to file a Motion to Compel regarding defendants' responses to plaintiffs' RFP 5. [Doc. No. 210.] The parties represented to the Court that as of that date, they had satisfied their meet and confer obligations. Id. Based on this representation, the Court granted plaintiffs leave to file and serve a Motion to Compel regarding RFP 5 and issued a briefing schedule accordingly. Id.

         To the extent that plaintiffs claim that their "prior requests ... specifically sought.. . corporate decision-making ESI, " including regional and corporate e-mail, and that they are entitled to these documents in response to their earlier discovery requests (RFP 1, 2 and 4), the Court finds this argument has no merit and is untimely. [Doc. No. 183, at pp. 14-15.]

         Accordingly, plaintiffs' Motion to Compel defendants to collect, search and produce ESI at the regional and corporate-level regarding RFP 5 is DENIED as untimely and for failure to properly meet and confer.

         C. Plaintiffs' Motion to Compel Further Responses to Certain Interrogatories and Requests for Production in Plaintiffs' Third Set of Interrogatories and Requests for Production [hereinafter "RFP 3"1.

         1. Search Terms.

         With respect to the search terms to be used by defendants to collect and produce responsive documents, the parties appear to have engaged in significant meet and confer efforts and have fundamental differences regarding the ESI search terms to be used. [Doc. No. 183-1, at ¶¶ 7, 15, 19, 24, 25, 27; see also Doc. No. 183, at pp. 55-57.] According to defendant, on November 8, 2016, plaintiffs sent their final search term proposal. [Doc. No. 183, at p. 57.] Defendants contend it is "elaborate and complex" and none of the searches are limited to e-mail with the Discovery Opt-Ins' names. Id. Defendants contend that plaintiffs' proposed selection of search terms would result in more than 400, 000 documents to review for possible production if limited to the 30 Discovery Opt-In Deponents, and more than 1.5 million if the search terms include the 118 Discovery Opt-Ins. Petco has not agreed to plaintiffs' proposal and on November 15, 2016, defendants contend they made an alternative proposal. Plaintiffs had not yet responded as of the filing of this Joint Motion, on November 17, 2016. Id.

         Under defendants' proposal, Petco will search for the terms it has identified and almost all of the 90 terms proposed by plaintiffs, subject to certain limits designed to generate a manageable volume of responses likely to be responsive, within e-mail files of the 30 Discovery Opt-In Deponents. [Doc. No. 183, at p. 57 (citing Ex. M to Maneker Decl. at 124-25).] Plaintiffs take issue with defendants' use of certain limits on its proposed search terms, including, for example, the first or last name of the Discovery Opt-In. [Doc. No. 183, at p. 14.] Plaintiffs' proposal is unreasonable and overbroad. Based on the Court's review of the discovery requests at issue, and in light of the proportionality standard set forth in Rule 26(b), it appears that defendants' proposal to search for responsive documents using the search terms as set forth in Exhibit M in Maneker's Declaration is sufficient. Consequently, plaintiffs' request for a court order related to the expanded search terms is DENIED.

         2. Plaintiffs' Interrogatory No. 3 of RFP 3.

         On November 29, 2016, the Court held an informal discovery telephonic conference regarding, among other things, the instant Joint Motion. [Doc. No. 189.] Counsel for plaintiffs, Mr. Seth Lesser, advised the Court that plaintiffs seek to withdraw the dispute regarding defendants' response to Plaintiffs' Interrogatory No. 3. Id. Accordingly, any issues in the Joint Motion regarding Interrogatory No. 3 are denied as MOOT.

         3. Plaintiffs' Interrogatory ...

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