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Hawkins v. The Kroger Co.

United States District Court, S.D. California

September 16, 2019

SHAVONDA HAWKINS on behalf of herself and all others similarly situated, Plaintiff,
v.
THE KROGER COMPANY, Defendant.

          ORDER GRANTING IN PART PLAINTIFF'S MOTION TO COMPEL DISCOVERY [ECF NO. 69]

          Hon. Barbara L Major, United States Judge

         Currently before the Court is Plaintiff's July 25, 2019 motion to compel discovery [ECF No. 69-1 (“MTC”)], Defendant's August 2, 2019 opposition to the motion [ECF No. 70 (“Oppo.”)], and Plaintiff's August 9, 2019 Reply [ECF No. 71 (“Reply”)]. For the reasons set forth below, Plaintiff's motion is GRANTED IN PART.

         BACKGROUND

         The instant class action was initiated on October 15, 2015 alleging state law claims for (1) violations of California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§17200 et. seq., unfair prong and unlawful prong; (2) breach of implied warranty of merchantability; (3) violations of UCL, unlawful prong, fraudulent prong, and unfair prong; (4) violation of California False Advertising Law (“FAL”), Cal. Bus. & Prof. §§17500 et seq.; (5) violation of California Consumer Legal Remedies Act (“CLRA”), Cal. Civil Code §§1750 et seq.; and (6) breach of express warranty. ECF No. 1 (“Compl.”). Plaintiff seeks to represent a class of similarly situated individuals defined as:

All persons who purchased in the United States, on or after January 1, 2008, Kroger bread crumb products containing partially hydrogenated oil.

Id. at 24 at ¶ 114. Plaintiff alleges that the line of bread crumb products that Defendant sells contain partially hydrogenated oil (“PHO”) which is a food additive banned in many countries because of its artificial trans fat content. Id. at 4 at ¶ 6. Plaintiff seeks an order

Compelling Defendant to, inter alia: (1) cease using PHO in the Products and recall from stores any unexpired Kroger Bread Crumbs; (2) conduct a corrective advertising campaign; (3) destroy all misleading and deceptive materials and unsafe Products; (4) award Plaintiff and other Class members restitution, actual damages, and punitive damages; and (5) pay costs, expenses, and attorney fees.

Id. at ¶ 12.

         On March 17, 2016, the Court found that Plaintiff's use and labeling claims failed for lack of standing and that the labeling claim was preempted, and therefore, granted Defendant's motion to dismiss the case. ECF No. 19. Plaintiff appealed [see ECF No. 21] and the Ninth Circuit reversed. ECF No. 27. Defendant filed another motion to dismiss that was denied on April 4, 2019. ECF No. 40. Defendant answered the complaint on April 26, 2019 and the Court held an Early Neutral Evaluation and Case Management Conference on June 5, 2019. ECF Nos. 44, 57. Discovery opened on June 6, 2019 and fact and expert Discovery close on February 14, 2020 and May 1, 2020 respectively. ECF No. 58.

         On May 15, 2019, Plaintiff served her First Set of Interrogatories and Requests for Production. MTC at 6; see also ECF No. 69-2, Declaration of Gregory S. Weston in Support of Plaintiff's Motion to Compel Responses to Discovery Requests (“Weston Decl.”) at ¶¶ 2-3, Exhs. 1-2. Defendant served its responses on June 17, 2019. Weston Decl. at ¶ ¶ 4-5, Exh. 3-4. On June 19, 2019, Plaintiff's counsel, Mr. Weston, requested a meet and confer with defense counsel and on June 24, 2019, Mr. Weston sent defense counsel a letter describing the perceived deficiencies in Defendant's discovery responses. Id. at ¶¶ 6-7, Exh. 5. Counsel for the parties participated in two telephonic meet and confers, but were unable to come to an agreement. Id. at ¶ 8.

         On July 8, 2019, Weston, and counsel for Defendant, Ms. Heather F. Canner, jointly contacted the Court regarding Defendant's responses to Plaintiff's First Set of Requests for Production of Documents and Interrogatories. ECF No. 63. In regard to the dispute, the Court set a briefing schedule. Id. The parties timely filed their pleadings. See MTC, Oppo., and Reply.

         On July 11, 2019, Defendant served its supplemental responses. Id. at ¶ 14, Exhs. 7-8. On July 26, 2019, Defendant produced seventeen documents. See ECF No. 70-1, Declaration of Heather F. Canner In Support of Opposition to Plaintiff's Motion to Compel (“Canner Decl.”) at ¶ 7.

         LEGAL STANDARD.

         The scope of discovery under the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) is defined as follows:

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, 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

         District courts have broad discretion to determine relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). District courts also have broad discretion to limit discovery to prevent its abuse. See Fed.R.Civ.P. 26(b)(2) (instructing that courts must limit discovery where the party seeking the discovery “has had ample opportunity to obtain the information by discovery in the action” or where the proposed discovery is “unreasonably cumulative or duplicative, ” “obtain[able] from some other source that is more convenient, less burdensome, or less expensive, ” or where it “is outside the scope permitted by Rule 26(b)(1)”).

         A party may request the production of any document within the scope of Rule 26(b). Fed.R.Civ.P. 34(a). “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Id. at 34(b)(2)(B). The responding party is responsible for all items in “the responding party's possession, custody, or control.” Id. at 34(a)(1). Actual possession, custody or control is not required. Rather, “[a] party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document.” Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995).

         An interrogatory may relate to any matter that may be inquired under Rule 26(b). Fed.R.Civ.P. 33(a)(2). “The grounds for objecting to an interrogatory must be stated with specificity, [and] [a]ny ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed.R.Civ.P. 33(b)(4). Any interrogatory not objected to must be answered fully in writing under oath. Fed.R.Civ.P. 33(b)(3). In answering interrogatories propounded to a corporation, partnership, association or governmental agency, the officer or agent responding on its behalf “must furnish the information available to the party.” Fed.R.Civ.P. 33(b)(1)(B).

         DISCUSSION

         Plaintiff seeks to compel responses to her First Set of Interrogatories (“Rogs”) and First Set of Requests for Production (“RFPs”). The discovery requests consist of eight Rogs and twenty-five RFPs. Weston Decl. at Exhs. 1-2. Defendant asserted lengthy objections to each request, did not provide a substantive response to any of the interrogatories or RFPs, and did not produce any responsive documents or indicate a willingness to produce any documents. Id. at Exhs. 3-4. This is unacceptable and not in compliance with the spirit or requirements of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 1 (“These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”). To make matters worse, Defendant supplemented its responses on July 11, 2019 but the supplemental responses provided minimal substance and Defendant did not produce any documents. Id. at Exh. 7-8. On July 26, 2019, Defendant produced a total of seventeen documents which consisted solely of product labels for 2011-2015. Canner Decl. at ¶ 7. Because Defendant has not made a reasonable effort to satisfy its discovery obligations and is relying on its objections to avoid providing substantive discovery, the Court will first address Defendant's objections and arguments.

         A. Failure to Meet and Confer

         Defendant contends that Plaintiff's motion should be denied due to Plaintiff's counsel's failure to meet and confer regarding Defendant's supplemental responses prior to filing the motion. Oppo. at 9-10. Defendant recognizes that the parties met and conferred regarding Defendant's initial responses, but complains that Plaintiff's “counsel never attempted to meet and confer after Kroger substantially supplemented its responses on July 11.” Id. at 10; see also Canner Decl. at ¶ ¶ 7-9. Instead, Plaintiff's counsel merely sought confirmation as to Defendant's position about three narrowed document requests Plaintiff offered prior to the supplemental production. Id.; see also Canner Decl. at ¶ 8. Defendant contends this violates Fed.R.Civ.P. 37(a)(1), CivLR 26.1, and Judge Major's Chambers Rules. Id. at 9.

         Plaintiff replies “[t]he reality: our meet and confer efforts consisted of two conference calls between counsel, a third with the Court's clerk, a formal 5-page letter, a large number of e-mails, and multiple offers of compromise. All this resulted in a total of zero substantive interrogatory responses and a total of 17 pages produced in partial response to one RFP.” Reply at 3; see also ECF No. 71-1, Reply Declaration of Gregory S. Weston, (“Weston Reply Decl.”) at ¶ ¶ 3-22.

         The Court requires and encourages parties to meet and confer prior to filing any discovery motions. See Judge Major's Chambers Rules § VA; see also CivLR 26.1. Here, the parties met and conferred telephonically on June 26 and 27, 2019. Weston Decl. at ¶ 8. On July 8, 2019, the parties participated in a call with the Court's clerk and afterwards, Judge Major issued an Order Setting Briefing Schedule that preserved Plaintiff's right to file a motion to compel, but left time for Defendant to supplements its responses and possibly obviate the need to file a motion at all. ECF No. 63. While the Court expected the parties to engage in further meet and confer efforts, Defendant's decision to provide little, if any, substance in its supplemental responses undermined the purpose of additional meet and confer efforts. The Court DENIES Defendant's request to deny Plaintiff's motion on this basis.

         B. Discovery is Premature

         Defendant argues that many of Plaintiff's requests are premature because a class has not yet been certified. Oppo. The Court did not bifurcate discovery [see ECF No. 58] so the parties are permitted to conduct discovery relevant to both class certification and the merits of the case.

         Defendant also argues that discovery is premature because Plaintiff has not made the requisite showing to justify pre-certification discovery. Oppo. at 10-12. Initially, the court notes that the case law cited by Defendant does not prohibit the Court from allowing pre-certification discovery without a specific showing; it merely holds that a court's decision not to allow discovery was not an abuse of discretion. Id.; see also Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir.1985), Salgado v. O'Lakes, 2014 WL 7272784, at *7 (E.D. Cal. Dec. 18, 2014) (emphasizing “that it is not obligated to require a plaintiff to satisfy the Mantolete burden or delve into a merits review. Courts may require such a showing prior to allowing precertification discovery, at their discretion”) (citing Kaminske v. JP Morgan Chase Bank N.A., 2010 WL 5782995 (C. D. Cal. May 21, 2010) (Mantolete and Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977) do not “suggest[ ] that a prima facie showing is mandatory in all cases, and it very well may be the case that courts routinely do not require such a showing. However, it is clear that a court has discretion to decide whether to require the prima facie showing ... before allowing discovery.”). Here, based upon the complaint and the relevant pleadings and orders, including the Ninth Circuit's decision, the Court finds that pre-certification discovery is both appropriate and required. Second, as set forth below, the Court finds Plaintiff has made the requisite showing.

         Whether to allow pre class certification discovery lies within the sound discretion of the trial court. Coleman v. Jenny Craig, Inc., 2013 WL 2896884, at *4 (S.D. Cal. June 12, 2013) (citing Kamm v. Cal. City Dev. Co., 509 F.2d 205 (9th Cir.1975)). In seeking discovery before class certification, plaintiffs bear the burden of making a prima facie showing that the Fed.R.Civ.P. 23 requirements are satisfied or that discovery is likely to substantiate the class allegations (Mantolete Burden). Salgado, 2014 WL 7272784, at *4; see also Coleman, 2013 WL 2896884, at *4 (citing Mantolete, 767 F.2d at 1424 (“Although in some cases a district court should allow discovery to aid the determination of whether a class action is maintainable, the plaintiff bears the burden of advancing a prima facie showing that the class action requirements of Fed.R.Civ.P. 23 are satisfied or that discovery is likely to produce substantiation of the class allegations. Absent such a showing, a trial court's refusal to allow class discovery is not an abuse of discretion.”)). Fed. R. Civ. P 23(a) permits a class actions to proceed where

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class

         Additionally, a class action only will be certified if

(1) there is a risk of substantial prejudice from separate actions; or (2) declaratory or injunctive relief benefitting the class as a whole would be appropriate; or (3) “the questions of law and fact common to class members predominate over any questions affecting only individual members and ... a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

Coleman, 2013 WL 2896884, at *4. “In determining whether to grant discovery the court must consider its need, the time required, and the probability of discovery resolving any factual issue necessary for the determination” of whether a class action is maintainable. Id. (citing Kamm, 509 F.2d at 210) (stating that “[t]he propriety of a class action cannot be determined in some cases without discovery, as, for example, where discovery is necessary to determine the existence of a class or set of subclasses. To deny discovery in a case of that nature would be an abuse of discretion. Where the necessary factual issues may be resolved without discovery, it is not required.”).

         Here, the Court finds that Plaintiff has satisfied her burden and made a prima facie showing under Fed.R.Civ.P. 23. Regarding numerosity, Plaintiff seeks to certify a PHO Class of “[a]ll persons who purchased in the United States, on or after January 1, 2008, Kroger bread crumb products containing partially hydrogenated oil” and a 0g Trans Fact Claim Subclass of “[a]ll persons who purchased in the United States, on or after January 1, 2008, Kroger bread crumb products containing the front labeling claim ‘0g Trans Fat' and containing partially hydrogenated oil.” Compl. at 24-25 at ¶ 114. Plaintiff alleges that “[t]he Class is sufficiently numerous, as it includes thousands of individuals who purchased the Kroger Bread Crumbs throughout the United States during the Class Period.” Id. at 26 at ¶ 117.

         As far as commonality, Plaintiff alleges questions of law and fact common to Plaintiff and the class include:

a. Whether Defendant's conduct constitutes a violation of the unfair prong of California's Unfair Competition Law; b. Whether Defendant's conduct constitutes a violation of the unlawful prong of California's Unfair Competition Law; c. Whether Defendant's conduct constitutes a violation of the fraudulent prong of California's Unfair Competition Law; d. Whether Defendant's conduct was immoral, unethical, unscrupulous, or substantially injurious to consumers; e. Whether the slight utility Defendant realizes as a result of its conduct outweighs the gravity of the harm the conduct causes to its victims; f. Whether Defendant's conduct violates public policy as declared by specific constitutional, statutory, or regulatory provisions; g. Whether the injury to consumers from Defendant's practices is substantial; h. Whether the injury to consumers from Defendant's practices is one consumers themselves could reasonably have avoided; i. Whether Defendant communicated a misleading health and wellness message through its “0g Trans Fat” front label claim; j. Whether that message was material to a reasonable consumer; k. Whether the Class is entitled to actual damages, restitution, rescission, punitive damages, attorney fees and costs, and an injunction; l. Whether the statute of limitations should be tolled on behalf of the Class; m. Whether Defendant's conduct constitutes violations of California's False Advertising Law; n. Whether Defendant's conduct constitutes a violation of the California CLRA; o. Whether members of the Class are entitled to restitution and, if so, the correct measure of restitution; p. Whether members of the Class are entitled to an injunction and, if so, its terms; and q. Whether members of the Class are entitled to any further relief.

Compl. at 25-26 at ¶ 115. These allegations satisfy the prima facie requirement of commonality. See Coleman, 2013 WL 2896884 at *5 (citing Washington, 271 F.R.D. at 636 (“Plaintiff's claims, as pled, share a common question of law-whether any of the practices [defendant] is alleged to have engaged in constitute violations of California law-and at least some of the facts to be analyzed with respect to this question are the same.”). With respect to typicality, Plaintiff “asserts injuries similar to class members, and the evidence suggests other class members have been similarly injured.” Soto v. Castlerock Farming & Transport, Inc., 282 F.R.D. 492, 502 (E.D. Cal. 2012). Finally, with respect to adequacy, the Court believes that a sufficient showing has been made. Accordingly, the Court finds that discovery also is appropriate based on Plaintiff's prima facie showing of Rule 23(a)'s prerequisites. Id. at n.6 (citing Soto, 282 F.R.D. at 500 n. 6 (“The Court is not making findings related to class certification, but evaluates the certification factors at this time only for a determination of whether prima facie evidence has been shown.”). Defendant's objection that the requested discovery is premature is OVERRULED.

         C. Relevancy & Proportionality

         As part of its argument that Plaintiff has not made the requisite showing to conduct discovery, Defendant argues that Plaintiff also has not made the “heightened showing” that each request seeks relevant information and is proportional to the needs of the case. Oppo. at 10-11. Plaintiff replies that:

[t]here is no requirement that the information sought directly relate to a particular issue in the case. Rather, relevance encompasses any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be [presented] in the case.

         Reply at 3 (quoting Shaw v. Experian Info. Sols., Inc., 306 F.R.D. 293, 301 (S.D. Cal. Mar. 18, 2015). Plaintiff further replies that Defendant's boilerplate relevancy objections are improper. Id.

         As an initial matter, the Court notes that Plaintiff's definition of relevancy comes from a case that was decided before Fed. R. Civ. 26 was amended in December 2015 to limit discoverable information to that which is relevant to any party's claim or defense and is proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1). Second, as discussed above, and contrary to Defendant's argument, Plaintiff is not required to prove the relevancy and proportionality of every discovery request before Defendant provides a substantive response and Plaintiff is not subject to a “heightened showing” merely because a class has not yet been certified. Accordingly, Defendant's general objections regarding relevancy and proportionality are OVERRULED.[1]

         D. Time Period for Discovery Requests

         In her First Set of Interrogatories and Requests For Production of Documents, Plaintiff defines the CLASS PERIOD as January 1, 2010 to May 31, 2018. Weston Decl. at Exh. 1. For RFPs that do not reference the Class Period, Plaintiff explains that “[u]nless otherwise indicated, each matter or [RFP] listed below shall cover the period from January 1, 2006 to the present.” Id. at Exh. 2. The statute of limitations for Plaintiff's claims are three and four years. Oppo. at 13; see also MTC at 16.

         Plaintiff argues that Defendant's objections to the time period of discovery for Rogs 1, 3-4 and 6 and RFPs 2-3, 7, 9-10, 14-15, 19, and 21-24 “rest[] on the false assumption that Plaintiff can seek to certify a class with claims accruing after the date of the Complaint.” MTC at 16. Plaintiff also argues that the statute of limitations does not prevent discovery from outside of the statute of limitations and notes that Defendant fails to provide any authority for its position that a class period cannot extend beyond the time when a complaint is filed. Id.

         Defendant contends that Plaintiff's discovery time periods are not proportional to the needs of the case. Oppo. at 12. Defendant notes that Plaintiff fails to link these time periods to class certification or the relevant issues. Id. at 13. Defendant also contends that being required to obtain information from a decade or longer ago “is objectively unduly burdensome and disproportionate to the minimal benefit, if any, from production.” Id. Defendant recognizes the four years prior to the complaint as the relevant time period because the statute of limitations for Plaintiff's claims are three to four years. Id.

         Plaintiff replies that Defendant has not provided any authority for the position that “it has no obligation to produce documents from after the complaint's 2015 filing date.” Reply at 5. Plaintiff notes that nothing in the complaint indicates that Defendant's activity ceased prior to the filing of the complaint and that the statute of limitations is not a barrier to discoverable information. Id. Plaintiff does not specifically address the rationale for her proposed discovery start dates but does state that she “alleged tolling and delayed discovery.” Id.

         The parties dispute whether discovery should extend beyond the period of the statute of limitations, specifically, whether Defendant must provide responsive discovery from before 2011 and from after the date the complaint was filed (October 15, 2015). As stated above, Plaintiff seeks to certify a PHO Class of “[a]ll persons who purchased in the United States, on or after January 1, 2008, Kroger bread crumb products containing partially hydrogenated oil” and a 0g Trans Fact Claim Subclass of “[a]ll persons who purchased in the United States, on or after January 1, 2008, Kroger bread crumb products containing the front labeling claim ‘0g Trans Fat' and containing partially hydrogenated oil.” Compl. at 24-25 at ¶ 114. No end date is identified for the class. Id.

         In Allen v. Similasan Corp., the parties disputed “whether the end date for responsive discovery should be set according to the length of the class period pled in the Third Amended Complaint.” 2014 WL 1672594, at *1 (S.D. Cal., April 28, 2014). The class alleged in the complaint spanned June 4, 2010 to the present. Id. Plaintiffs argued that the end date for responsive discovery should be the present day while defendant argued that the end date should be governed by the statute of limitations applicable to the named plaintiff's claims. Id. The court found that the discovery necessary to prove plaintiffs' allegation that “Defendant is still labeling the products with the false and deceptive, and unlawful, unfair and fraudulent advertise[ments]” included discovery after the statute of limitations and up to the present day. Id. at *2. In doing so, the court reasoned that discovery for the entire putative class period was relevant to the District Court's ultimate decision regarding the appropriate class definition if a class was certified and to plaintiffs' claims for injunctive relief. Id. The court further found that defendant's position was more appropriately addressed at class certification. Id. The court noted that the statutes of limitations “may be relevant to assess the timeliness of a lawsuit, but do not necessarily determine the relevant time period for discovery, especially where the Court has not yet ruled on class certification.” Id. Defendant objected to the court's finding and the District Judge overruled the objections finding that statutes of limitations do not generally affect discovery and that even though the “prospective class in question may or may not remain open, [] Defendant may not decide it as a basis to deny discovery.” Allen v. Similasan Corp., 2014 WL 2212120, at *2 (S.D. Cal., May 27, 2014).

         The Court finds that Allen's reasoning is applicable to the instant case because Plaintiff's complaint alleges that Defendant's misconduct is ongoing and Plaintiff seeks injunctive relief. Compl. at 27 at ¶ 127; see also Reply at 5. Defendant's opposition on this issue is limited to its incorrect assertion that Plaintiff's complaint does not include these allegations. Oppo. at 12-13, n.4. Interestingly, Defendant does not assert, or provide supporting evidence for an assertion, that Defendant has stopped selling the relevant products. Id. In its supplemental response to Rog No. 7, Defendant states that “Defendant sold containers of Kroger Bread Crumbs between 2011-2015.” Weston Decl. at Exh. 7. It is unclear from this response whether Defendant stopped selling all relevant products in 2015 or whether Defendant is merely admitting that it sold the bread crumbs during a time period that included 2011-2015. Because Plaintiff has alleged a class that continues to the present and has requested injunctive relief, and because Defendant has not provided any evidence establishing that it has stopped selling the relevant products, the Court finds that the discovery end date is the present.[2] If Defendant provides a declaration from a knowledgeable employee that Defendant stopped selling all relevant products, then the discovery end date will be the date the sales ended.[3]

         With regard to the start date for discovery, Plaintiff seeks discovery from either January 1, 2010 - May 31, 2018 or from January 1, 2006 - present. Weston Decl. at Exhs. 1-2. Plaintiff does not specifically address the basis for its discovery start dates. MTC at 15-16; see also Reply at 5. Plaintiff acknowledges that the claims are subject to a four year statute of limitations [see MTC at 16] which would indicate a class period beginning in 2011. Plaintiff appears to be relying on allegations of tolling and delayed discovery to support her alleged class period of January 1, 2008 to the present. Reply at 5; see also Compl. at 23 at ¶ ¶ 111-112. Plaintiff does not provide any facts to support her tolling or delayed discovery arguments or to support her request for discovery commencing on January 1, 2006. Reply at 5. Plaintiff does not target or limit her requests for early discovery to requests seeking information relevant to her tolling and delayed discovery claims but instead broadly applies the early start date to discovery on a wide range of issues without explanation. Weston Decl. at Exhs. 2 and 3; see also MTC; Reply. Given the lack of evidence and argument on this issue, coupled with Plaintiff's desire to impose the early start date on many of its requests, the Court finds that Plaintiff has not established the early discovery start date is proportional to the needs of the case. Accordingly, the Court finds that the appropriate start date for discovery is January 1, 2010.

         E. Privilege

         Throughout its responses Defendant objects on the basis of privilege. From the pleadings before the Court, it does not appear that Defendant has provided Plaintiff with a privilege log. Accordingly, Defendant's privilege objections are OVERRULED. Defendant must search for and produce responsive documents in accordance with this order. If, as Defendant contends, there are responsive documents that are privileged, Defendant must comply with Fed.R.Civ.P. 26 which requires parties that seek to withhold documents due to privilege to “expressly make the claim” and “describe the nature of the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5). Fed.R.Civ.P. 26 does not discharge a party from its obligation to search for responsive documents simply because the documents might be privileged.

         F. Confidential Information, Proprietary Information, and/or Trade Secrets

         Defendant objects and apparently refuses to produce responsive discovery on the ground that requests regarding (1) products that it considered to be the primary competitor to its bread crumbs, (2) customer feedback, (3) quarterly units of sales, (4) total revenue, (5) product pricing, (6) the manufacturer of the product, (7) the amount of PHO in the product, (8) the composition, source, and vendors of the PHO used in the product, and (9) formulation changes to the product, seek confidential information, proprietary information, and/or trade secrets.[4]Oppo. at 14-20. Defendant does not provide any specific information in support of its position that the requested information is proprietary or confidential. Oppo. Defendant cites DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 459-460 (C.D. Cal. 2002) in support of its position that Plaintiff has not shown that she is entitled to proprietary information. Oppo. at 15. However, as Direct TV stated, “[t]here is no absolute privilege for trade secrets and similar confidential information.” Id. at 459. Rather, “the party opposing discovery must show that the information is a ‘trade secret or other confidential research, development, or commercial information' under Rule 26(c)(7) and that its disclosure would be harmful to the party's interest in the property.” Id. (quoting In re Remington Arms Company, Inc., 952 F.2d 1029, 1032 (8th Cir. 1991)). The Court finds that Defendant has not satisfied this burden. Defendant merely states in its opposition, without a supporting declaration and actual facts, that certain discovery requests seek proprietary information. Oppo. at 14-15. In DIRECTV, the plaintiff submitted a declaration from the Senior Director of Technology that established that the information Defendant sought was confidential and constituted trade secrets and that plaintiff would be harmed by the disclosure of the information. 209 F.R.D. at 459. Here, Defendant provided no such declaration or confirmation of its contentions regarding proprietary information.[5] Oppo. In addition, there is a protective order in this case intended to protect the handling of confidential information. ECF Nos. 61-62. Defendant argues that the protective order is not sufficient [see Oppo. at 14] but Defendant has not established that the information Plaintiff seeks is proprietary nor why the protective order is insufficient to protect the information if it is proprietary.

         The Court notes that despite its numerous objections, Defendant has not filed a motion for a protective order under Fed.R.Civ.P. 26(c)(1)(G) to prevent disclosure of its “trade secret or other confidential research, development, or commercial information.” Fed.R.Civ.P. 26(c)(1)(G). Because Defendant has not satisfied its burden of demonstrating that any of the information being sought constitutes confidential information, proprietary information, and/or trade secrets and has not established why the existing protective order is insufficient nor sought constitutional protection, Defendant objections are OVERRULED.

         G. Possession, Custody, or Control

         Defendant responds to several of Plaintiff's requests, including requests seeking information about the manufacturer, by stating that there are no responsive documents in its possession, custody or control. Weston Decl. at Exhs. 3-4, and 7-8. Plaintiff argues that Defendant's response is insufficient because Defendant is required to produce documents that it has a legal right to obtain. MTC. at 17. Plaintiff asserts that Defendant has failed to comply with this requirement and has failed to provide information regarding “what documents are supposedly already in Plaintiff's control, or what ‘third parties' have control of the ...


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