United States District Court, S.D. California
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.
ORDER GRANTING IN PART AND DENYING IN PART 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.
S. Crawford United States Magistrate Judge
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.]
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.
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.
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").
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).
Plaintiffs' Request for an In-Person Conference with
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.
Plaintiffs' Motion to Compel Regional and Corporate
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.]
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.]
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;
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.
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.]
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.
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.
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
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.
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.
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.
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.
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.
Plaintiffs' Interrogatory No. 3 of RFP
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.
Plaintiffs' Interrogatory ...