United States District Court, N.D. California
ORDER ON JOINT LETER BRIEF REGARDING DISCOVERY
DISPUTES RE: DKT. NO. 38.
VAN KEULEN United States Magistrate Judge.
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.
reasons discussed below, the Court orders Brinderson to
provide further responses and produce additional documents in
response to plaintiff's discovery requests.
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.
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
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.
motion for class certification is due October 19, 2017. ECF
36. The fact discovery cutoff is November 6, 2017.
Requests seeking basis for Brinderson's opposition to
class certification and its affirmative
parties' first dispute concerns Interrogatory Nos. 2 and
5 and Request for Production (“RFP”) Nos. 4 and
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.
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).
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.
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 ...