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Aldapa v. Fowler Packing Co. Inc.

United States District Court, E.D. California

June 27, 2019

BEATRIZ ALDAPA AND ELMER AVALOS, on behalf of themselves and others similarly situated, Plaintiffs,
FOWLER PACKING COMPANY, INC., a California Corporation; AG FORCE LLC, a California Limited Liability Company; FOWLER MARKETING INTERNAL LLC, a California Limited Liability Company; and DOES 1 through 10, inclusive, Defendants.


         This matter is before the court on plaintiffs' request for reconsideration of the assigned magistrate judge's order granting in part and denying in part plaintiffs' motion for a protective order. (Doc. No. 210.) The magistrate judge's order was issued on March 5, 2019. (Doc. No. 209.) Plaintiffs filed the pending motion for reconsideration on March 19, 2019. (Doc. No. 210.) Defendants filed an opposition on March 26, 2019. (Doc. No. 214.) On April 17, 2019, the court set the motion for hearing and permitted plaintiffs to file a reply. (Doc. No. 215.) Plaintiffs filed a reply on April 25, 2019. (Doc. No. 217.)


         This lawsuit involves a variety of alleged state and federal labor law violations by defendants, who employ seasonal workers for a wide array of tasks necessary in commercial agricultural operations. Some of the farms on which the agricultural workers are employed are owned by defendants, while others are owned by third-party growers who contract with defendants to provide a labor force. Defendant Fowler Packing is a commercial grower, packer, and shipper of various fruits, while defendant Ag Force is a farm labor contractor. Defendant Fowler Marketing International is responsible for marketing and selling the crops owned by Fowler Packing and harvested by the employees of Ag Force. These three corporate entities are all owned by Grant Parnagian and members of the Parnagian family.

         In their FAC, plaintiffs allege twelve separate claims: (1) violations of the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 1801, et seq. for failing to pay all wages due or provide necessary tools; (2) failure to compensate for rest breaks in accordance with California Labor Code § 226.7[1] and Wage Order 14; (3) failure to pay all wages due under the employment contract by requiring off-the-clock work and allowing the use of “ghost workers”; (4) failure to pay overtime, as required by state law; (5) failure to pay the minimum wage, in violation of Labor Code § 1194; (6) failure to pay waiting time penalties in violation of Labor Code § 203; (7) failure to provide necessary tools or reimburse for tools in violation of Labor Code § 2802; (8) violations of California Business and Professions Code § 17200 by underpaying workers, failing to provide rest periods, and retaining the benefits of the labor without reasonable compensation; (9) violations of Labor Code § 226 by failing to keep accurate records or provide accurate statements to the employees; (10) failure to record and/or pay for travel time and wait time, in violation of Labor Code § 1194 and 29 U.S.C. § 1801, et seq.; (11) failure to reimburse for vehicle expense, in violation of Labor Code § 2802; and (12) failure to provide meal periods and keep accurate records of meal periods, in violation of Wage Order 14 and 29 U.S.C. § 1801, et seq.

         Plaintiffs moved for class certification on February 3, 2017. (Doc. No. 145.) In support of their motion, plaintiffs submitted declarations from the two named plaintiffs and forty-four absent class members. In opposition to the motion, defendants submitted 100 declarations from other employees.[2] (Doc. No. 147.) On January 24, 2018, the court granted plaintiffs' motion for class certification in part. (Doc. No. 185.)

         On January 23, 2019, defendants served notices of depositions, requests for production of documents, as well as deposition subpoenas, on twenty-five of the forty-four absent class members who had provided declarations in support of plaintiffs' class certification motion. (See Doc. No. 209 at 3.) Plaintiffs' counsel objected. On February 4, 2019, the parties held a telephone conference, but were unable to resolve the dispute. On February 6, 2019, plaintiffs filed a motion for a protective order. (Doc. No. 204.) On February 27, 2019, the assigned magistrate judge held a hearing on plaintiffs' motion. (Doc. Nos. 208, 211.)

         On March 5, 2019, the magistrate judge issued an order, granting in part and denying in part plaintiffs' motion for a protective order. (Doc. No. 209.) In substance, the magistrate judge's order granted defendants leave to conduct fifteen depositions of the absent class members who had submitted declarations in support of plaintiffs' motion for class certification but did not impose any time or subject matter limitations on those depositions. (Id. at 31.) Additionally, the magistrate judge denied plaintiffs' request to limit defendants' ability to seek sanctions if any of the deponents failed to appear for their deposition. (Id.)


         Federal Rule of Civil Procedure 72(a) provides that non-dispositive pretrial matters may be referred to and decided by a magistrate judge, subject to review by the assigned district judge. See also Local Rule 303(c). The district judge shall modify or set aside any part of the magistrate judge's order which is “found to be clearly erroneous or contrary to law.” Local Rule 303(f). See also 28 U.S.C. § 636(b)(1)(A). Discovery motions are non-dispositive pretrial motions which come within the scope of Rule 72(a) and 28 U.S.C. § 636(b)(1)(A). Thus, the orders of a magistrate judge addressing discovery motions are subject to the “clearly erroneous or contrary to law” standard of review. Rockwell Intern., Inc. v. Pos-A-Traction Indus., Inc., 712 F.2d 1324, 1325 (9th Cir. 1983). The magistrate judge's factual determinations are reviewed for clear error, while legal conclusions are reviewed to determine whether they are contrary to law. United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir. 1984), overruled on other grounds by Estate of Merchant v. CIR, 947 F.2d 1390 (9th Cir. 1991). “A magistrate judge's decision is ‘contrary to law' if it applies an incorrect legal standard, fails to consider an element of [the] applicable standard, or fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Martin v. Loadholt, No. 1:10-cv-00156-LJO-MJS, 2014 WL 3563312, at *1 (E.D. Cal. July 18, 2014) (internal quotations and citations omitted).


         In their pending motion for reconsideration, plaintiffs argue that the magistrate judge misapplied the relevant legal standard for conducting discovery aimed at absent class members. (Doc. No. 210 at 9-26.) Specifically, plaintiffs contend that the magistrate judge's discovery order should be overturned because it employed the erroneous legal standard set forth in Arredondo v. Delano Farms Co., No. 1:09-CV-01247 MJS, 2014 WL 5106401, at *4 (E.D. Cal. Oct. 10, 2014) in determining whether such discovery should be permitted in this case. In addition, plaintiffs argue that even if the court concludes that defendants here are entitled to some limited discovery from absent class members, it should impose limitations on the number, length, and subject matter of any depositions and quash defendants' requests for production of documents. (Id. at 26-29.) Below, the court will address each of plaintiffs' arguments in turn.

         A. Legal Standard Applicable to Discovery Aimed at Absent Class Members

         It has been recognized that “[d]iscovery from absent class members is ordinarily not permitted.” McPhail v. First Command Fin. Planning, Inc., 251 F.R.D. 514, 517 (S.D. Cal. 2008) (citing On the House Syndication, Inc. v. Fed. Exp. Corp., 203 F.R.D. 452, 453 (S.D. Cal. 2001)). “Whether prior to class certification or after, discovery, except in the rarest of cases, should be conducted on a class wide level . . .. [¶] If joinder of all parties is impracticable, propounding discovery like interrogatories, depositions, and requests to produce on an individual basis is even more impracticable.” McPhail, 251 F.R.D. at 517 (citing Adkins v. Mid-America Growers, Inc., 141 F.R.D. 466, 468 (N.D. Ill. 1992)). “The burden is heavy to justify asking [absent class members] questions by interrogatories, even heavier to justify depositions.” Baldwin & Flynn v. Nat'l Safety Assocs., 149 F.R.D. 598, 600 (N.D. Cal. 1993). Despite cases such as those cited above recognizing these general principles, it is also apparent that many courts have come to recognize that under certain circumstances, some discovery directed at absent class members may be appropriate. However, both the parties' briefs and the magistrate judge's discovery order agree that there is an absence of Ninth Circuit authority regarding when it is appropriate to direct discovery at absent class members and that courts across the country have applied slightly different legal standards in addressing that question. See Arredondo, 2014 WL 5106401, at *4 (“No Supreme Court or Ninth Circuit case law addresses the propriety of conducting discovery on absent class members.”); Tierno v. Rite Aid Corp., No. C-05-2520- TEH, 2008 WL 2705089 (N.D. Cal. July 8, 2008) (“The law on discovery directed to absent class members is flexible. Discovery from absent class members is ‘neither prohibited nor sanctioned explicitly' by the Federal Rules.”).

         One frequently cited standard in addressing this question originated from a decision in which the Seventh Circuit held that a party seeking depositions of absent class members “has the burden of showing necessity and absence of any motive to take undue advantage of the class members.” Clark v. Universal Builders, Inc., 501 F.2d 324, 341 (7th Cir. 1974). Other courts have since expanded upon the discussion in Clark in developing various multi-factor tests for when discovery directed at absent class members may be appropriate. See, e.g., McPhail, 251 F.R.D. at 517 (“While some courts have permitted discovery of absent class members, they have done so only where the proponent of the discovery establishes that (1) the discovery is not designed to take undue advantage of class members or to reduce the size of the class, (2) the discovery is necessary, (3) responding to the discovery requests would not require the assistance of counsel, and (4) the discovery seeks information that is not already known by the proponent.”) (citing Clark, 501 F.2d at 340-42). Still other courts have employed multi-factor tests that differ slightly from Clark and its progeny but incorporate somewhat similar factors. See, e.g., Arredondo, 2014 WL 5106401, at *5 (“[D]iscovery from absent class members may be permitted when reasonably necessary, not conducted for an improper purpose, and not unduly burdensome in the context of the case and its issues.”); Tierno, 2008 WL 2705089, at *6 (discovery of absent class members is permitted “where the information sought is relevant, not readily obtainable from the representative parties or other sources, and the request is not unduly burdensome and made in good faith.”); McCarthy v. Paine Webber Grp., Inc., 164 F.R.D. 309, 313 (D. Conn. 1995) (discovery of absent class members is “only permitted where a strong showing is made that the information sought (1) is not sought with the purpose or effect of harassment or altering membership of the class; (2) is directly relevant to common questions and unavailable from the representative parties; and (3) is necessary at trial of issues common to the class.”).

         Given these variations in the formulation of the applicable legal standard, the court cannot conclude that the magistrate judge erred as a matter of law in employing the factors considered by the magistrate judge in Arredondo, when determining whether such discovery should be permitted here. The magistrate judge chose to adopt the standard as articulated in Arredondo, rather than an out-of-circuit variation of the standard as discussed in Clark and its progeny. In doing so, the magistrate judge acknowledged slight differences between the various articulations of the standard, but also explained that the three Arredondo factors essentially subsume the additional factors noted in other formulations of that standard. (See Doc. No. 209 at 7-9.)[3]Plaintiffs' arguments contesting the adoption of the standard as articulated in Arredondo are properly viewed as arguments challenging whether the discovery order properly considered all the relevant factors in deciding whether the absent class member discovery sought was appropriate in this case.

         In the absence of binding circuit authority, the magistrate judge's application of the relevant factors as articulated in Arredondo and as informed by the factors recognized in Clark, was not erroneous. Below the court will address whether the discovery order reflected ...

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