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Frieri v. Sysco Corporation

United States District Court, S.D. California

July 7, 2017

RICK FRIERI, on behalf of himself and all others similarly situated, and on behalf of the general public, Plaintiff,
v.
SYSCO CORPORATION; SYSCO SAN DIEGO, INC.; AND DOES 1-100, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE NO. 1 (ECF No. 24)

          Hon. Nita L. Stormes United States Magistrate Judge

         Before the Court is the parties' Joint Motion for Determination of Discovery Dispute No. 1. ECF No. 24.[1] Having considered the arguments presented by both parties and for the reasons set forth herein and as detailed below, the Court GRANTS IN PART and DENIES IN PART the Plaintiff's motion to compel further responses to interrogatories and requests for production of documents.

         I. Background

         This case presents a putative class action of truck drivers for alleged wage and hour violations while employed as drivers for defendant Sysco San Diego, Inc. and/or Sysco Corporation. See ECF No. 15. Plaintiff alleges violations on behalf of a statewide putative class, and seeks discovery to support certification. ECF Nos. 15, 24. Plaintiffs' motion for class certification is due to be filed by November 10, 2017. ECF No. 30.

         Plaintiffs propounded five interrogatories and forty-eight requests for production of documents to defendant Sysco San Diego, Inc. (hereafter “Defendant”) on February 14, 2017. ECF No. 24-1, ¶ 4. Plaintiff's interrogatories and document requests seek, inter alia, contact information relating to the putative class members; policies applicable to meal and rest breaks; information about the structure and relationship of Defendant to Sysco Corporation; and communications or emails relating to any and all of these categories.

         Defendant served verified responses on May 5, 2017. ECF No. 24-1, ¶ 8, Exs. 1-3. Defendant's responses to interrogatories contained objections, as well as responses limited to the facility where Plaintiff was employed. ECF No. 24-1, Ex. 1. Defendant's responses to requests for production of documents broadly fell into three categories: (1) objections only, (2) objections with a response that documents will be produced under a protective order;[2] (3) objections with a response that there are no responsive documents in Defendant's possession, custody or control. ECF No. 24-1, Exs. 2-3.

         The parties met and conferred. As a result, Defendant agreed to supplement some responses, produced some documents, and requested search parameters for those requests involving email. ECF No. 24 at 2-3. Defendant represents it is also waiting for some responsive documents to be provided, and will produce upon receipt. See ECF No. 24 at 3.

         By this discovery dispute, Plaintiff seeks to compel answers to the interrogatories and production of documents for the alleged putative class, without limitation to the facility where Plaintiff worked. ECF No. 24 at 7. Plaintiff argues that the objections raised by Defendant in response to the interrogatories and document requests are meritless, and that further production and complete responses are required. ECF No. 24 at 13-20. Defendant counters that Plaintiff's requests are overbroad, and that Plaintiff worked at a single facility in Palm Springs which closed 1 year into the proposed 5 year class period, and thus cannot support the broad scope of discovery. ECF No. 24 at 8. Defendant seeks to limit the scope of the requests and attendant production accordingly, and argues responses are complete with this limitation in place and that its objections are appropriate. Id. at 8-20.

         II. Discussion

         Rule 26 permits discovery of “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.” Fed.R.Civ.P. 26(b)(1). Information need not be admissible to be discoverable. Id. Once the propounding party establishes that the request seeks relevant information, “[t]he party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” Superior Commc'ns v. Earhugger, Inc., 257 F.R.D. 215, 217 (C.D. Cal. 2009); see Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (requiring defendants “to carry heavy burden of showing why discovery was denied”).

         In the class action context, the Ninth Circuit has addressed the question of pre-certification class discovery on several occasions and concluded “[o]ur cases stand for the unremarkable proposition that often the pleadings alone will not resolve the question of class certification and that some discovery will be warranted.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir.2009).

         Here, the parties are in agreement that some of pre-certification discovery is appropriate, but dispute the proper scope.

         A. Scope of Discovery

         Plaintiff argues that the pleadings allege uniform illegal policies in place at all of Sysco's California operating companies and a state-wide class sufficient to justify all the discovery sought. See, ECF No. 24 at 7. Plaintiff cites to several cases in different procedural postures than this case, but that indicate a single class representative may pursue discovery on a class basis despite potential differences between the class representative and the prospective class members.[3]

         Defendant's arguments, objections, and responses make clear that Defendant challenges the Plaintiff's ability to adequately represent a class. ECF No. 24 at 8; ECF No. 24-1, Exs. 1-3. Defendant argues that Plaintiff worked at a single facility, driving a single route, for a relatively short period of time and so, discovery is properly limited to only the location where Plaintiff worked. ECF 24 at 8-9. Defendant provided responses to interrogatories based on this interpretation and its belief that this is the proper scope of class. See ECF No. 24-1, Exs. 1-3. Defendant argues this interpretation is correct and thus, the responses are adequate. ECF No. 24 at 9. Defendant points to authority presenting other discovery disputes in this District and Circuit that limit discovery to the location where plaintiff was employed absent evidence supporting company-wide violations. Id. at 9-10 (discussed below).

         Discovery prior to class certification “is generally limited and in the discretion of the court.” Talavera v. Sun Maid Growers of California, No. 1:15-CV-00842 AWI SAB, 2017 WL 495635, at *2 (E.D. Cal. Feb. 6, 2017) (quoting Del Campo v. Kennedy, 236 F.R.D. 454, 459 (N.D. Cal. 2006)). Plaintiff bears the burden of a prima facie showing that the class action requirements of Rule 23 are either met or that discovery is likely to substantiate the class allegations. Id. “Especially when the material is in the possession of the defendant, the court should allow the plaintiff enough discovery to obtain evidence as to whether a class action is maintainable.” Id. (citing Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977)). The court should consider “the need for discovery, the time required, and the probability of discovery providing necessary factual information” in exercising its discretion to allow or prohibit discovery. Doninger, 564 F.2d at 1313. However, if the plaintiff cannot meet the prima facie showing of the requirements of Rule 23, “the burden is on the plaintiff to demonstrate that discovery measures re likely to produce persuasive information substantiating the class allegations.” Talavera v. Sun Maid Growers of California, 2017 WL 495635, at *2 (quoting Doninger, 564 F.2d at 1313).

         Here, Plaintiff has satisfied the requirements of Rule 23 pleading, as demonstrated by survival of claims in response to a motion to dismiss. See, ECF Nos. 14, 15; Nguyen v. Baxter Healthcare Corp., 275 F.R.D. 503, 507 (C.D. Cal. 2011) (stating that survival of a motion to dismiss necessarily demonstrates compliance with the prima facie requirements). Accordingly, the burden remains with the Defendant as “[t]he party who resists discovery… to show discovery should not be allowed….” Superior Commc'ns v. Earhugger, Inc., 257 F.R.D. 215, 217 (C.D. Cal. 2009).

         In a discovery dispute in Nguyen v. Baxter Healthcare Corp., the defendant satisfied its burden by citation to the plaintiff's deposition which made clear that plaintiff was unaware of the practices in any other facility and that the company's policies were proper. 275 F.R.D. at 507-08. In a discovery dispute before Judge Bartick of this district in Coleman v. Jenny Craig, Inc., the defendant cited to the plaintiff's deposition testimony where she relayed her own experiences but could not confirm the practices elsewhere. No. 11-cv-1301-MMA-DHB, 2013 WL 2896884 at *9 (S.D. Cal. June 12, 2013). In Martinet v. Spherion Atlantic Enterprises, LLC, then Magistrate Judge Battaglia of this district was presented with a defendant seeking a protective order to limit discovery where Plaintiff was seeking to represent a state-wide class. Defendant pointed to the plaintiff's one month of employment at a single location to narrow the time and scope of discovery to one year and solely the location where plaintiff worked. No. 07-cv-1278-W-AJB, 2008 WL 2557490 at *2 (S.D. Cal. June 23, 2008).

         Here, Defendant raises similar arguments to seek to limit discovery, but has offered no evidence to support its arguments in the form of deposition testimony, policies, declarations, or other discovery responses from Plaintiff. Defendant simply states that it has four facilities, one of which was the Palm Springs location from which Plaintiff operated. ECF No. 24 at 9. Defendant argues that two of the present facilities opened after Plaintiff's employment had already concluded, rendering any violations stemming from these locations speculative. Id. In addition, two former facilities have closed, including the Palm Springs facility where Plaintiff was employed. Id. Defendant argues that Plaintiff's employment for approximately one year at the Palm Springs facility does not support discovery on a state-wide basis where the Plaintiff's experiences “would likely have been impacted by the particular supervisor or trainer he worked with in Palm Springs….” Id. Defendant contends that Plaintiff has not presented evidence of company-wide violations sufficient to justify company-wide discovery. Id. at 10. And while Defendant avers that its policies are legally compliant, it has not put the policies before this Court, or offered an explanation as to how or why enforcement of its legally compliant company-wide policies could be affected by a “particular supervisor or trainer” at the Palm Springs facility and not at any other location. Under these circumstances, Defendant has not satisfied its burden to show that the discovery should not be permitted.

         Nonetheless, Plaintiff propounded discovery to Defendant (i.e., Sysco San Diego, Inc.) only. Defendant may respond for itself only. Fed.R.Civ.P. 33 (b)(1), 34(b)(2). Plaintiff's apparent inclusion of “related entities” in its definitions for interrogatories and requests for documents does not, without more, require Defendant to locate or produce information or documents for its parent company or other subsidiaries of the parent company.[4] See, e.g. ECF No. 24 at 16, line 26; LG Display Co. v. Chi Mei Optroelectronics Corp., No. 08CV2408-L(POR), 2009 WL 223585, at *3 (S.D. Cal. Jan. 28, 2009) (“A subsidiary will be deemed to have possession, custody or control of documents held by its parent company only in certain circumstances”). Plaintiff has offered no evidence that circumstances exist such that this Defendant has “some form of ‘control' … over the documents and information sought.” LG Display Co. v. Chi Mei Optroelectronics Corp., 2009 WL 223585, at *3. There is no indication that Defendant has either control or access to the contact information, records, or other information for the non-exempt employees of any other subsidiary of Sysco Corporation. Additionally, Sysco Corporation is a named defendant from which Plaintiff can pursue this information directly. Accordingly, the court finds that the scope of discovery is properly limited to Defendant's entity, i.e., Sysco San Diego, Inc.

         Further restrictions to the scope of discovery are appropriate for certain requests. Though cited by neither party, the Eastern District of California recently addressed an analogous case. In Talavera v. Sun Maid Growers of California the court was presented with a discovery dispute in a putative class action alleging violations of the Fair Labor Standards Act for a class that was allegedly subject to a company-wide policy. No. 1:15-CV-00842 AWI SAB, 2017 WL 495635, at *1-2 (E.D. Cal. Feb. 6, 2017). The Eastern District noted the limitations and distinctions between class and merits discovery:

At this stage of the litigation, the parties are conducting discovery only as to class certification. While the Court recognizes that there is some overlap between class certification and merits discovery, Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011), it also considers the proportionality of the requested discovery 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.” Fed.R.Civ.P. 26(b)(1). [¶] Here, Plaintiff is seeking punch, time and pay records for all putative class members. While Plaintiff is entitled to conduct some discovery in preparation of the motion for class certification, discovery of all putative class member pay, punch, and time information goes to the merits and is beyond the discovery needed in preparing the class certification motion.

Id. at *4. To strike the balance between class and merits discovery, the Talavera court permitted production for a limited group of class members and sampling of the remainder of the class. Id.

         Here, the Court finds that several of the document production requests in particular seek merits discovery that is disproportionate to the needs of the case at this stage of litigation. As addressed individually below, Plaintiff's motion to compel further documents in response to these requests will be limited in some instances to the information already provided by Defendant. If a class is certified and this case proceeds to merits discovery on the alleged state-wide class, Plaintiff may then re-issue discovery to obtain documents on a state-wide basis.

         B. Interrogatories

         Plaintiff seeks to compel further answers to Interrogatories 1 through 4. Interrogatory 1 asks for contact information of the putative class members. Interrogatories 2 through 4 ask for the number of all putative class members currently employed; the number terminated in the relevant period; and employed by Defendant specifically. Generally, Defendant offered objections and answers for the Palm Springs facility only. Plaintiff seeks to compel answers inclusive of the entire state-wide putative class. The court will first address the objections raised, and then the specific requests.

         1. Objections to Definitions

         Defendant objects to the Plaintiff's definition of “PUTATIVE CLASS MEMBERS” as overbroad and disproportional to the needs of the case on the grounds that Plaintiff cannot adequately represent the class members. Neither party put this definition before the court for review. The Joint Motion provides responses only that contain the question and response, but do not include the definitions contained with the original requests. ECF No. 24-1, Ex. 1. Nonetheless, the adequacy of the class representative is best addressed at the motion for class certification, and not at the discovery phase where a prima facie showing is all that is required. See, Coleman v. Jenny Craig, Inc., 2013 WL 2896884, at *6. In regards to over-breadth, the court has addressed the scope of discovery above.

         Defendant also objects to the definition of “PUTATIVE CLASS MEMBERS” as vague and ambiguous because “Plaintiff defines the term to include ‘other similar job designations or titles.'” ECF No. 24-1, Ex. 1 [Page ID 508, lines 5-6]. This objection lacks merit. While Defendant is correct that the phrase lacks specificity, Defendant is uniquely positioned to know the exact job titles and designations for its employees.

         Defendant objects to providing information for any entity other than the named Defendant to which discovery was propounded. This objection is proper. See, Section II.A; Fed.R.Civ.P. 33 (b)(1); LG Display Co. v. Chi Mei Optroelectronics Corp., 2009 WL 223585, at *3.

         2. Privacy

         For Interrogatory No. 1, Defendant also objects to the production of contact information on the grounds of privacy. Contact information including mailing address, telephone number, and email addresses are commonly found to be relevant and discoverable, and related privacy concerns of the class members has been raised an addressed by many courts. See, Salgado v. O'Lakes, No. 1:13-CV-0798-LJO-SMS, 2014 WL 7272784, at *10 (E.D. Cal. Dec. 18, 2014) (collecting cases permitting contact information to be produced and protective orders to address privacy concerns); Brawner v. Bank of Am., N.A., No. C 14-02702 YGR (LB), 2014 WL 6845504, at *3 (N.D. Cal. Dec. 4, 2014) (same).

         This Court agrees with the many courts that have addressed this issue that privacy concerns of the class are properly managed under a protective order and that communications must be fair and accurate, and must not be misleading, intimidating, or coercive. Salgado v. O'Lakes, 2014 WL 7272784, at *12. Where privacy concerns have been raised, courts have also required “Plaintiff's counsel to “inform each potential putative class member contacted by Plaintiff that he or she has a right not to talk to counsel and that, if he or she elects not to talk to counsel, Plaintiff's counsel will terminate the contact and not contact them again.” Benedict v. Hewlett-Packard Co., No. 13-CV-0119-LHK, 2013 WL 3215186, at *3 (N.D. Cal. June 25, 2013); see also, Brawner v. Bank of Am., N.A., 2014 WL 6845504, at *3 (same). In addition, courts have required Plaintiff's counsel to make clear that Defendant was compelled by court order to provide the contact information, and communicate the highly confidential nature of the disclosure. Id.

         This Court will likewise order that all communications are bound by these strictures, and that the contact information may be used only for the purposes of this lawsuit, and that the class list should not be distributed to any other person or entity.

         3. Interrogatory No. 1 Interrogatory No. 1 asks:

What are the names, job titles, last known ADDRESSES, telephone numbers, and email addresses of the PUTATIVE CLASS MEMBERS for the RELEVANT TIME PERIOD?[5]

         ECF No. 24-1, Ex. 1. Plaintiff's motion to compel a further response is GRANTED IN PART.

         Consistent with the foregoing analysis, Defendant is ORDERED to provide an amended answer with the names, job titles, last known addresses, telephone numbers, and email address (“Contact Information”) for any putative class member employed by Defendant Sysco San Diego, Inc. at any of its facilities during the relevant time period by August 7, 2017. This Contact Information is to be provided subject to the protective order operative in this case.

         Plaintiff's counsel is ORDERED to

(1) Only use the Contact Information for the purposes of this lawsuit and the Contact Information may not be distributed to any other person or entity;
(2) Plaintiff's counsel must inform each potential putative class member contacted that he or she has a right not to talk to counsel and that, if he or she elects not to talk to counsel, Plaintiff's counsel will terminate the contact and not contact them again;
(3) Plaintiff's counsel must also make clear that Defendant was compelled by court order to provide the Contact Information, and communicate the highly confidential nature of the disclosure;
(4) All communications must be fair and accurate and must not be misleading, intimidating, or coercive.

         4. Interrogatory Nos. 2 - 4

Interrogatory Nos. 2 - 4 state:
(2) How many PUTATIVE CLASS MEMBERS are currently employed by SYSCO SAN DIEGO, INC.?
(3) How many PUTATIVE CLASS MEMBERS have had their employment with YOU terminated - either voluntarily or involuntarily - from April 11, 2012 to the present?
(4) How many PUTATIVE CLASS MEMBERS has SYSCO SAN DIEGO, INC., employed during the RELEVANT TIME PERIOD?

         ECF No. 24-1, Ex. 1. Plaintiff's motion to compel further responses is GRANTED IN PART.

         Consistent with the foregoing analysis regarding scope, Defendant is ORDERED to provide amended answers that include all facilities and employees of Defendant Sysco San Diego, Inc. by August 7, 2017.

         C. Requests for Production of Documents

         Plaintiff also seeks to compel further production of documents from Defendant. The parties met and conferred on this issue and Defendant has produced some documents and agreed to produce others. ECF No. 24 at 2-3. However, the parties continue to disagree regarding both the proper scope and sufficiency of production for several requests. Defendant objects that many of the requests are ...


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