United States District Court, S.D. California
RICK FRIERI, on behalf of himself and all others similarly situated, and on behalf of the general public, Plaintiff,
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.
Nita L. Stormes United States Magistrate Judge
the Court is the parties' Joint Motion for Determination
of Discovery Dispute No. 1. ECF No. 24. 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
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.
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
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; (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.
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.
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.
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”).
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).
the parties are in agreement that some of pre-certification
discovery is appropriate, but dispute the proper scope.
Scope of Discovery
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.
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
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).
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).
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).
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
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. 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.
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
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.
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.
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.
Objections to Definitions
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.
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.
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.
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).
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
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
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?
24-1, Ex. 1. Plaintiff's motion to compel a further
response is GRANTED IN PART.
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
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.
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?
24-1, Ex. 1. Plaintiff's motion to compel further
responses is GRANTED IN PART.
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.
Requests for Production of Documents
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 ...