United States District Court, N.D. California
DISCOVERY ORDER RE: DKT. NOS. 52, 53, 54, 55,
MARIA-ELENA JAMES United States Magistrate Judge
before the Court are five discovery letter briefs.
See Dkt. Nos. 52-56. The Court scheduled a
telephonic conference for June 20, 2017 to address the
parties' disputes (Notice, Dkt. No. 57), but Counsel for
Plaintiffs informed the undersigned's courtroom deputy by
email that the parties would be unavailable to speak with the
Court at that time because they would be attending a
deposition in this matter. In the interest of time, the Court
resolves these letter briefs without the benefit of oral
argument. See Fed. R. Civ. P. 78(b); Civ. L.R.
considered the parties' positions, the relevant legal
authority, and the record in this case, the Court issues the
putative class action, Plaintiffs allege that since 2008,
Defendants have charged their tenants late fees that violate
California Civil Code § 1671. See First Ltr.
Br. at 1, Dkt. No. 52. Whether the provision is lawful under
California law depends in part on whether Defendants adopted
the late fee as an attempt to recover actual costs they
incurred as a result of late rent payments, or whether late
fees serve as a source of profits. See Second Ltr.
Br. at 1, Dkt. No. 53. The Presiding Judge in this matter
referred discovery matters to the undersigned. See
Referral Order, Dkt. No. 49. Plaintiffs' deadline for
moving for class certification is August 18, 2017. First Ltr.
Br. at 4.
Rule of Civil Procedure 26 provides that a party 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[.]” Fed.R.Civ.P. 26(b)(1).
Factors to consider include “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.”
Id. Discovery need not be admissible in evidence to
be discoverable. Id. However, “[t]he parties
and the court have a collective responsibility to consider
the proportionality of all discovery and consider it in
resolving discovery disputes.” Fed.R.Civ.P. 26 advisory
committee notes (2015 amendments). Thus, there is “a
shared responsibility on all the parties to consider the
factors bearing on proportionality before propounding
discovery requests, issuing responses and objections, or
raising discovery disputes before the courts.”
Salazar v. McDonald's Corp., 2016 WL 736213, at
*2 (N.D. Cal. Feb. 25, 2016); Goes Int'l, AB v. Dodur
Ltd., 2016 WL 427369, at *4 (N.D. Cal. Feb. 4, 2016)
(citing advisory committee notes for proposition that parties
share a “collective responsibility” to consider
proportionality and requiring that “[b]oth parties . .
. tailor their efforts to the needs of th[e] case”).
26(c) “confers broad discretion on the trial court to
decide when a protective order is appropriate and what degree
of protection is required.” Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36 (1984). “The court may,
for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or
expense, ” including by (1) prohibiting disclosure or
discovery; (2) conditioning disclosure or discovery on
specified terms; (3) preventing inquiry into certain matters;
or (4) limiting the scope of disclosure or discovery to
certain matters. Fed.R.Civ.P. 26(c)(1).
Court explicitly ordered the parties to discuss the
proportionality of the disputed requests during their
in-person meet and confer efforts. See Order, Dkt.
No. 50. Despite this prior guidance, Plaintiffs do not
address the proportionality of their requests in the letter
Emails of Custodians Involved in Decision to Change Late Fee
Policy in 2008
Plaintiffs (1) seek the identity of employees involved in the
decision to adopt the late fee policy in 2008; (2) request
that Defendants certify whether the email accounts for those
employees have been destroyed, and if not, the format in
which the emails still exist; (3) ask the Court to order
Defendants to search any emails that exist in searchable
format using six search terms; and (4) demand Defendants
explain to the Court in writing “whether such emails
have, in fact, been deleted, or whether they are
recoverable.” See First Ltr. Br. at 3-4.
respond that they have not refused to identify custodians,
that the at-issue custodians stopped working for Equity
Residential (the “Company”) “long
before” Plaintiffs filed this lawsuit, and that emails
from the relevant time period no longer exist unless they
were specifically saved into an electronic file or printed
and saved in a hard copy folder. Id ...