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Garza v. Brinderson Constructors, Inc.

United States District Court, N.D. California

July 5, 2017

DANIEL GARZA, Plaintiff,
v.
BRINDERSON CONSTRUCTORS, INC., et al., Defendants.

          ORDER ON JOINT LETER BRIEF REGARDING DISCOVERY DISPUTES RE: DKT. NO. 38.

          SUSAN VAN KEULEN United States Magistrate Judge.

         Before the Court is the parties' Joint Letter Brief Regarding Discovery Disputes, in which plaintiff Daniel Garza argues that certain of defendants' responses to interrogatories and requests for production are deficient. ECF 38. At issue are discovery requests served by plaintiff on defendants Brinderson Constructors, Inc. and Brinderson L.P. (collectively, “Brinderson”) that relate to two categories of information: (1) the basis for Brinderson's opposition to class certification and its affirmative defenses; and (2) the disclosure and authorization forms relating to the Fair Credit Reporting Act (“FCRA”) that were signed by members of the proposed class as part of their employment applications. Id. Plaintiff argues that the information and documents sought are relevant, particularly to plaintiff's upcoming motion for class certification. Brinderson argues that discovery into its contentions is premature and that discovery concerning the forms signed by potential class members should be limited to a narrower time period and to the same forms signed by plaintiff.

         For the reasons discussed below, the Court orders Brinderson to provide further responses and produce additional documents in response to plaintiff's discovery requests.

         I. BACKGROUND

         On December 2, 2015, plaintiff filed this putative class action alleging that disclosure and authorization forms provided by defendants to employees and prospective employees violated FCRA and other statutes. ECF 1 at Complaint. In the complaint, plaintiff defined the proposed FCRA class as follows: “All of Defendants' current, former, and prospective applicants for employment in the United States who applied for a job with Defendants at any time during the period beginning five years prior to the filing of this action and ending on the date that final judgment is entered in this action.” ECF 1 at Complaint ¶ 14A.

         Before the first case management conference, defendants requested that the district court judge order discovery to proceed in four phases: (1) discovery concerning plaintiff's individual claims “in order to test the legal and factual merit of those individual claims”; (2) discovery to determine whether this case is appropriate for class action treatment; (3) class-wide merits discovery; and (4) class-wide damages discovery. ECF 25 at 5. The district court judge rejected defendants' proposal, stating that “absent the presentation of a more compelling need for such relief, the court will not enter an order phasing discovery at this time. Any party seeking to phase discovery may file an administrative motion on that topic pursuant to Civil Local Rule 7-11.” ECF 28 at 1. No such motion was filed.

         The parties exchanged initial disclosures on August 18, 2016, and discovery has been underway since at least December 13, 2016, when plaintiff propounded the discovery requests that are the subject of the joint letter brief. See ECF 25; ECF 37 at 1.

         Plaintiff's motion for class certification is due October 19, 2017. ECF 36. The fact discovery cutoff is November 6, 2017. Id.

         II. DISCUSSION

         A. Requests seeking basis for Brinderson's opposition to class certification and its affirmative defenses

         The parties' first dispute concerns Interrogatory Nos. 2 and 5 and Request for Production (“RFP”) Nos. 4 and 9.[1] The interrogatories ask Brinderson to “explain why this case should not be certified as a class action” (Interrogatory No. 2) and “state all facts” upon which Brinderson bases any denial of a material allegation and each special or affirmative defense (Interrogatory No. 5). ECF 38-1. The RFPs request production of documents that “relate[] to [Brinderson's] allegations and defenses in this action” (RFP No. 4) and documents that “may support or assert that PLAINTIFF is not an adequate class representative in this action” (RFP No. 9). Id. Brinderson objected to these interrogatories and RFPs on various grounds. ECF 38-2. In the joint letter brief, Brinderson argues that these discovery requests are contention interrogatories that are improper at this stage of the litigation because, according to Brinderson, “substantial discovery” has not yet taken place. ECF 38 at 3.

         “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.” Fed. R. Civ. Proc. 26(b)(1). Contention interrogatories that relate to fact or the application of law to fact are not categorically improper, but courts have discretion to “order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.” Fed. R. Civ. Proc. 33(a)(2).

         The Court concludes that these discovery requests are not premature. Some of the disputed requests expressly relate to issues of class certification, making those requests appropriate at this stage of the case. See Yingling v. eBay, Inc., No. C 90-017233 JW (PVT), 2010 U.S. Dist. LEXIS 12800, at *7 (N.D. Cal. Jan. 29, 2010) (in phased discovery case, ordering defendant to respond to contention interrogatory seeking the legal and factual basis for defendant's contention that class could not be certified). In addition, although some of the requests are not limited to certification issues, they are nevertheless appropriate at this juncture. “[T]he line between merits and class certification discovery is not always bright, ” and “discovery going to the merits of plaintiff's claim also often has significant bearing on issues such as predominance and commonality under Rule 23.” In re Coca-Cola Products Mkt. and Sales Practices, No. 14-md-02555-JSW (MEJ), 2016 U.S. Dist. LEXIS 148534, at *11-12 (N.D. Cal. Oct. 26, 2016) (internal quotation marks and citations omitted). Moreover, this case is not in its early stages; it has been pending approximately 19 months. The parties exchanged initial disclosures more than ten months ago and have been engaged in discovery for over six months. Fact discovery closes in just over four months, so discovery is more than halfway complete. The district court judge rejected defendants' request for phased discovery, and thus both class certification issues and the merits of the case are the proper subjects of discovery at this time.

         As a compromise, Brinderson has agreed to provide supplemental responses to Interrogatory Nos. 2 and 5 that “set forth its anticipated arguments in opposition to class certification and with respect to the merits of the underlying claims.” Id. The Court finds Brinderson's proposal appropriate and therefore orders Brinderson to provide supplemental responses to Interrogatory Nos. 2 and 5. In addition, in response to RFP No. 4, the Court orders Brinderson to produce all non-privileged documents in its possession, custody, or control that support its affirmative defenses in ...


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