United States District Court, S.D. California
SHAVONDA HAWKINS on behalf of herself and all others similarly situated, Plaintiff,
THE KROGER COMPANY, Defendant.
ORDER GRANTING IN PART PLAINTIFF'S MOTION TO
COMPEL DISCOVERY [ECF NO. 69]
Barbara L Major, United States Judge
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.
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
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.
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.
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, 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.
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.
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).
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
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).
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).
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.
Failure to Meet and Confer
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.
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.
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.
Discovery is Premature
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.
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.
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
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.”).
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 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
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.
Relevancy & Proportionality
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
[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.
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.
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
Time Period for Discovery Requests
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.
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.
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.
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
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.
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).
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. 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
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.
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
Confidential Information, Proprietary Information, and/or
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.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. 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.
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
Possession, Custody, or Control
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 ...