Goro v. Flowers Foods, Inc.

          ORDER: (1) DENYING PLAINTIFFS' MOTION TO COMPEL; AND (2) DENYING AS MOOT DEFENDANTS' MOTION FOR PROTECTIVE ORDER [ECF NO. 130]

          HON. JILL L. BURKHARDT UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendants' Motion for Protective Order filed in Ludlow v. Flowers Foods, Inc., 18-cv-01190-JLS-JLB (“Ludlow”). (Ludlow ECF No. 74.) Defendants request that the Court issue a protective order barring Plaintiffs from seeking documents in response to Ludlow Requests for Production (“RFP”) Nos. 14 and 15. (Id.)

         Also before the Court is Plaintiffs' Motion to Compel, filed in both Ludlow and the related case, Goro v. Flowers Foods, Inc., 17-cv-2580-JLS-JLB (“Goro”). (Goro ECF No. 130; Ludlow ECF No. 75.) Plaintiffs' Motion to Compel seeks an order compelling Defendants to produce two specific documents in response to RFP Nos. 3, 5, 18, and 19 propounded in Goro and RFP Nos. 6, 14, and 15 propounded in Ludlow.^[1] For the reasons set forth below, Plaintiffs' Motion to Compel is DENIED, and Defendants' Motion for Protective Order is DENIED as moot.

         I. BACKGROUND

         Both cases center around Plaintiffs' challenge to their employment classification and allegation that Defendants willfully misclassified them and their distributor co-workers as independent contractors rather than employees. In Goro, Plaintiffs allege violations of California law stemming from their alleged misclassification. (See Goro ECF No. 95 ¶¶ 28-74.) In Ludlow, Plaintiffs likewise allege violations under California law stemming from their alleged misclassification, in addition to the Fair Labor Standards Act (“FLSA”). (See Ludlow ECF No. 56 ¶¶ 63-125.) In response to Plaintiffs' claims in both cases, Defendants deny misclassification and assert a good faith affirmative defense, arguing that they “acted in good faith and had reasonable grounds for believing that they did not violate” California or federal law. (Goro ECF No. 98 at 15-16; Ludlow ECF No. 59 at 23, 25.)

         The parties' current dispute involves the discovery of information pertaining to Defendants' initial, and any subsequent, decision to classify the distributor Plaintiffs as independent contractors. Specifically, Plaintiffs seek two documents that Flowers Foods, Inc. (“Flowers”) inadvertently produced and then clawed back in a securities class action currently pending in the Middle District of Georgia, where Flowers is a named defendant.^[2]Plaintiffs believe that these documents contain information related to Defendants' decision to classify California distributors as independent contractors, and by extension, Defendants' good faith affirmative defense. Defendants here object to producing the clawed-back documents (“Disputed Documents”) and describe them as privileged “quarterly meeting materials packets prepared in anticipation of litigation and reflecting the mental impressions, opinions[, ] and legal advice, including legal strategy, of Flowers attorneys regarding known or anticipated litigation.” (Goro ECF No. 133 at 6.) After learning of the Disputed Documents' existence on April 25, 2019, via a dispute on the securities class action docket, Plaintiffs brought this dispute to the Court's attention on May 8, 2019. (Ludlow ECF No. 69.)

         On May 10, 2019, the Court held a telephonic Discovery Conference with counsel for the parties. (Ludlow ECF No. 70.) During the Conference, Plaintiffs argued that the Disputed Documents were responsive to Goro RFP Nos. 3 and 5 (responded to on May 2, 2018) and Nos. 18 and 19 (responded to on August 15, 2018), as well as Ludlow RFP No. 6 (responded to on April 15, 2019), yet Defendants neither produced nor logged them on a privilege log. Plaintiffs further argued that because Defendants had not properly and timely asserted attorney-client privilege through a privilege log, they waived privilege as to the Disputed Documents. Defendants countered that Plaintiffs' dispute was untimely with respect to the Goro requests, for Defendants had objected to those requests and Plaintiffs never moved to compel further responses. Defendants further argued that because the Disputed Documents were not responsive to any of Plaintiffs' RFPs, Defendants were not obligated to log them on a privilege log, and therefore did not waive privilege.

         In addressing Defendants' argument that the Disputed Documents were not responsive to Plaintiffs' RFPs, the Court raised the possibility of in camera review, but Defendants were not amenable to this approach. The Court also echoed Defendants' concerns about the timeliness of the dispute with respect to the Goro RFPs, as discovery in Goro had closed on October 4, 2018. (See Goro ECF No. 59.) In response, Plaintiffs argued that the Disputed Documents were also responsive to Ludlow RFP No. 6, to which the parties had not yet completed their meet and confer efforts. Plaintiffs also stated that they had recently propounded RFP Nos. 14 and 15 in Ludlow, which specifically identified the Disputed Documents by bates numbers, so neither responsiveness nor timeliness would pose a bar to those RFPs. Because the parties had not finished their meet and confer efforts with respect to Ludlow RFP No. 6, and Defendants' responses to Ludlow RFP Nos. 14 and 15 were not yet due, the Court continued the Conference. (See Ludlow ECF No. 70.)

         On June 6, 2019, the Court held the continued, telephonic Discovery Conference. (Ludlow ECF No. 71.) During the Conference, Plaintiffs informed the Court that Defendants had continued to stand on their objections to Ludlow RFP No. 6 and served only objections in response to Ludlow RFP Nos. 14 and 15, including attorney-client privilege objections, but did not produce a privilege log. Defendants contended that because Ludlow RFP Nos. 14 and 15 were “broken” requests-irrelevant, overbroad, and disproportional to the needs of the case-Defendants were not obligated to produce a privilege log despite their privilege objections.

         With the parties at an impasse, the Court determined that a briefing schedule for a motion to compel was necessary. The Court informed Defendants that it believed their obligation to produce a privilege log had been triggered with respect to Ludlow RFP Nos. 14 and 15, as those RFPs specifically identified the Disputed Documents, and Defendants' objections included privilege objections. The Court directed Defendants to either produce a privilege log or move for a protective order with authority setting forth they were not required to do so. The Court also reasoned that it may need to review the Disputed Documents in camera to determine whether they are responsive to the Goro RFPs and Ludlow RFP No. 6. However, the Court assured Defendants it would not review the documents if it determined that in camera review was improper or unnecessary. The Court invited Defendants to also move for a protective order if they believed it would be improper for the Court to review attorney-client privileged documents in camera.

         Following the Conference, the Court issued a Briefing Schedule which instructed Defendants to either: (1) log the Disputed Documents on a privilege log and submit them for in camera review; or (2) move for a protective order setting forth why they should not be required to do either. (Goro ECF No. 129; Ludlow ECF No. 73.) If Defendants did not move for a protective order with respect to producing a privilege log, a privilege log identifying the Disputed Documents was to be served on Plaintiffs no later than June 12, 2019. (Id.) The Court also set a deadline for Plaintiffs to file a motion to compel with respect to the RFPs at issue. (Id.)

         On June 12, 2019, Defendants served a privilege log on Plaintiffs listing the two clawed-back documents, that is, the Disputed Documents. (Ludlow ECF No. 74-2 ¶ 7.) On June 17, 2019, Defendants filed the instant Motion for Protective Order. (Ludlow ECF No. 74.) Defendants, however, do not request a protective order based on an argument that a privilege log was not necessary or that it would be improper for the Court to review the Disputed Documents in camera, as contemplated during the Conference and in the Court's Briefing Schedule. Instead, Defendants argue that they should not be forced to produce the Disputed Documents because the documents are privileged and irrelevant, and Ludlow RFP Nos. 14 and 15 are unduly burdensome and disproportionate to the needs of the case. (See id.)

         On June 17, 2019, Plaintiffs filed the instant Motion to Compel in both cases. (Goro ECF No. 130; Ludlow ECF No. 75.) On June 24, 2019, Defendants filed separate oppositions to the motion in each case. (Goro ECF No. 133; Ludlow ECF No. 85.) On June 28, 2019, Plaintiffs filed separate replies to Defendants' oppositions. (Goro ECF No. 134; Ludlow ECF No. 89.)

         II. LEGAL STANDARD

         A party is entitled to seek discovery of any non-privileged matter that is relevant to his claims and proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1). Federal Rule of Civil Procedure 34 further provides that a party may serve requests for documents or tangible things on any other party that relate to any matter within the scope of discovery defined in Rule 26(b). Fed.R.Civ.P. 34(a). The propounding party may move to compel a response if a party fails to produce documents requested under Rule 34. See Fed. R. Civ. P. 37(a).

         “The party seeking to compel discovery has the burden of establishing that his request satisfies the relevancy requirements of Rule 26(b)(1).” Bryant v. Ochoa, No. 07cv200 JM (PCL), 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009) (citing Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995)). District courts have broad discretion to determine relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). “Thereafter, the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining[, ] or supporting its objections.” Bryant, 2009 WL 1390794, at *1 (citing DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002)).

         III. DISCUSSION

         By this motion, Plaintiffs seek an order compelling Defendants to produce the “Disputed Documents, ”^[3] and further ask the Court to grant sanctions in the form of striking Defendants' “good faith” affirmative defenses. (Goro ECF No. 130-1 at 11; Ludlow ECF No. 75-1 at 11.) Plaintiffs also request the Court to compel Defendants to “identify any other withheld responsive documents that Plaintiffs were not able to independently identify.” (Id.) In their motion, Plaintiffs identify seven document requests to which they believe the Disputed Documents are responsive. Plaintiffs, however, do not address the seven requests individually. Instead, they focus almost exclusively on the relevance of the Disputed Documents in general. Because even relevant documents need only be produced when responsive to requests for production, the Court addresses each request in turn.

         A. Goro RFP No. 5

         Plaintiffs identify Goro RFP No. 5 as a request to which they believe the Disputed Documents are responsive. (Goro ECF No. 130-1 at 6.) In response to this request Defendants did not produce the Disputed Documents or log them on a privilege log despite their privilege objections. Defendants argue that Plaintiffs' Motion to Compel with respect to Goro RFP No. 5 is untimely. (Goro ECF No. 133 at 6.)

         The Court agrees with Defendants and finds that Plaintiffs' Motion to Compel is time-barred with respect to RFP No. 5. Defendants responded to RFP No. 5 on May 2, 2018. (Goro ECF No. 130-2 ¶ 3.) In their response, Defendants “provided objections only, ” and did not produce any documents. (Goro ECF No. 133 at 6; see Goro ECF No. 130-2 ¶ 3.) On June 21, 2018, the Court held a Discovery Conference where it addressed, inter alia, RFP No. 5. (Goro ECF Nos. 40; 133-1 ¶ 3.) After the Conference, the Court issued a Briefing Schedule for Plaintiffs to file a motion to compel. (Goro ECF No. 41.) On July 5, 2019, Plaintiff brought a Motion to Compel, but the motion did not include RFP No. 5. (See Goro ECF No. 43.) Subsequently, fact discovery in this case closed, after several extensions, on October 4, 2018. (Goro ECF No. 59.)

         During the May 10 and June 6, 2019 Discovery Conferences, the Court advised Plaintiffs that their dispute would not be timely with respect to any RFPs to which Defendants objected in their entirety and about which Plaintiffs never formally moved to compel responses. RFP No. 5 is one such RFP. Defendants never produced any documents in response to RFP No. 5 and stood on their objections. Moreover, Plaintiffs had an opportunity to include RFP No. 5 in their July 5, 2018 Motion to Compel, yet chose not to. Plaintiffs argue that “no local or chambers rule addresses compelling unknown[, ] withheld documents that were never logged or made known to another party.” (Goro ECF No. 130- 1 at 5.) However, the fact that Plaintiffs did not have knowledge of the Disputed Documents' existence until April 25, 2019 is immaterial because Defendants objected to RFP No. 5 in its entirety and never produced any documents in response. Plaintiffs chose not to include RFP No. 5 in their July 5, 2018 Motion to Compel, and the Court will not entertain such a motion now, over a year after discovery in Goro closed.

         Accordingly, because Plaintiffs' Motion to Compel is untimely with respect to Goro RFP No. 5, Plaintiffs' Motion to Compel is DENIED as to this RFP.

         B. Goro RFP Nos. 3, 18, and 19

         1. Timeliness Plaintiffs also identify Goro RFP Nos. 3, 18, and 19 as requests to which they believe the Disputed Documents are responsive. (Goro ECF No. 130-1 at 6.) Defendants did not produce the documents or log them on a privilege log in response to RFPs 3, 18, and 19. Defendants again argue that Plaintiffs' dispute with respect to these three Goro RFPs is untimely. (Goro ECF No. 133 at 6.)

         The Court disagrees with Defendants and finds that Plaintiffs' Motion to Compel with respect to these RFPs is not time-barred. Defendants responded to RFP No. 3 on May 2, 2018, and agreed to produce “relevant, non-privileged documents in [their] custody or control that may be responsive to [RFP No. 3] to the extent [it] pertains to Plaintiffs, ” notwithstanding their objections. (Goro ECF No. 130-2 ¶ 3; 130-5 at 4.) Defendants produced “two documents it understood to be responsive” to RFP No. 3: the Distributor Agreement and the Franchise Disclosure Document. (Goro ECF No. 133 at 6.) Plaintiffs never brought any dispute concerning RFP No. 3 to the Court's attention informally during a discovery conference or moved to compel further responses.

         Defendants responded to RFP Nos. 18 and 19 on August 18, 2018, with objections only. (Goro ECF Nos. 130-2 ¶ 3; 133 at 6.) On September 28, 2018, the Court held a telephonic, counsel-only Discovery Conference wherein it addressed the parties' dispute with respect to RFP Nos. 18 and 19, among many other disputes. (See Goro ECF No. 58.) During the Conference, and in the parties' joint discovery statement lodged with the Court, Defendants argued that RFP Nos. 18 and 19 were duplicative of RFP No. 3 because they “seek the same set of documents.” (Goro ECF No. 133-4 at 5 (emphasis omitted).) Plaintiffs did not move to compel responses to RFP Nos. 18 or 19 following the Discovery Conference in their October 22, 2018 Motion to Compel. (See Goro ECF No. 64.) Plaintiffs, however, now argue that because Defendants promised to produce documents responsive to RFP No. 3, “[they] did not need to compel” responses to RFP Nos. 18 and 19. (Goro ECF No. 130-1 at 9.)

         Because Defendants took the position that RFP Nos. 18 and 19 were duplicative of RFP No. 3, and Defendants produced documents in response to RFP No. 3, Defendants cannot fairly argue that they produced only objections in response to RFP Nos. 18 or 19. For purposes of this dispute, the Court therefore finds that Defendants produced responses, and not solely objections, with respect to RFP Nos. 18 and 19.

         As addressed above with respect to RFP No. 5, Plaintiffs' dispute as to that request is untimely because Plaintiffs, in essence, abandoned the request; Defendants produced only objections, stood on those objections, and Plaintiffs never moved to compel further responses. In contrast, Defendants produced documents in response to RFP No. 3, and by extension RFP Nos. 18 and 19, and Plaintiffs relied on the completeness of that production when choosing not to include them in their October 22, 2018 Motion to Compel. Plaintiffs' argument that they could not have moved to compel Defendants to produce the Disputed Documents before they knew of their existence is persuasive in this context. Therefore, with respect to RFP Nos. 3, 18, and 19, the Court finds that the event giving rise to the instant discovery dispute, and therefore the event controlling the timeliness of Plaintiffs' Motion to Compel with respect to these RFPs, is Plaintiffs' discovery of the Disputed Documents.

         Plaintiffs learned of the Disputed Documents' existence on April 25, 2019, and brought the issue to the Court promptly on May 8, 2019, after failed meet and confer efforts. (Goro ECF No. 130-2 ¶ 11; Ludlow ECF No. 69.) May 8 is within 30 days of April 25, so the dispute is timely.^[4] See J. Burkhardt Civ. Chambers R. § IV.A. (“Any discovery disputes must be brought to the attention of the Court no later than 30 calendar days after the date upon which the event giving rise to the dispute occurred.”).

         Accordingly, the Court finds that Plaintiffs' Motion to Compel with respect to RFP Nos. 3, 18, and 19 is timely. The Court therefore addresses Defendants' objections to these RFPs.^[5]

         2. Defendants' Objections

         a. RFP No. 18

         Goro RFP No. 18 requests “[a]ll DOCUMENTS and ESI reflecting opinions regarding the proper classification of distributors as employees versus independent contractors.” (Goro ECF No. 130-7 at 3.) Defendants objected to this request on the grounds that, inter alia, it is vague and ambiguous, unintelligible, overbroad as to time and scope, and unduly burdensome. (Id.) Defendants reassert those objections here and further argue that RFP No. 18 is “broken” and fails to meet Federal Rule of Civil Procedure 34's particularity requirement. (Goro ECF No. 133 at 4, 8.) Plaintiffs in reply argue generally that their RFPs are not unintelligible and simply “seek documents reflecting the central business decision relevant to this case-classifying California distributors as independent contractors.” (Goro ECF No. 134 at 3.) Plaintiffs contend that Defendants cannot now claim that “the very RFPs they responded to and agreed to produce are allegedly impossible to understand.” (Id.)

         Federal Rule of Civil Procedure 34 requires that a document request “describe with reasonable particularity each item or category of items to be inspected.” Fed.R.Civ.P. 34(b)(1)(A). “The test regarding ‘particularity' is relative . . . and necessarily turns on whether the [requesting party's] degree of knowledge would be such that she can designate, identify[, ] and enumerate with precision the documents to be produced.” Krause v. Nev. Mut. Ins. Co., No. 2:12-cv-00342-JCM-CWH, 2017 WL 496936, at *5 (D. Nev. Feb. 6, 2014) (citing 8B Wright, et al., Federal Practice and Procedure § 2211 (3d ed. 2010)). Rule 34, however, “does not require the impossible, ” and a “generalized designation should be sufficient when the party seeking discovery cannot give a more particular description and the party from whom discovery is sought will have no difficulty in understanding what is wanted.” Id. (quoting 8B Wright, et al., supra, § 2211). Nonetheless, “‘all-encompassing demands' that do not allow a reasonable person to ascertain which documents are required do not meet” Rule 34's particularity requirement. Moser v. Health Ins. Innovations, Inc., No. 17cv1127-WQH(KSC), 2018 WL 6735710, at *13 (S.D. Cal. Dec. 21, 2018) (quoting In re Asbestos Prod. Liab. Litig. (No. VI), 256 F.R.D. 151, 157 (E.D. Pa. 2009)).

         RFP No. 18, which broadly requests all documents “reflecting opinions” regarding the proper classification of distributors, does not meet Rule 34's particularity requirement. The request as phrased does not provide Defendants with adequate direction as to what documents they must search for in response.^[6] Plaintiffs here hypothesize that documents responsive to their RFPs could be documents created from “a single internal meeting” or “a months-long process involving teams of employees that undergoes regular review and update, ” but they “have no way to know.” (Goro ECF No. 134 at 3-4.) But the same can be said for Defendants. It would be difficult and burdensome for Defendants to determine, without further particularity, what types of documents exist that would be responsive to this request or the types of documents that Plaintiffs attempt to capture. As to Plaintiffs' argument that Defendants produced documents in response to RFP No. 3, and therefore cannot claim that their requests are “impossible to understand, ” Defendants here identified and produced only two documents that were responsive to RFP No. 3, and by extension, RFP No. 18. (Goro ECF No. 133 at 7.) The Court, however, does not share the view that RFP No. 18 is duplicative of RFP No. 3 in the sense that it is co-extensive with RFP No. 3.^[7]

         Moreover, Plaintiffs' request is not limited temporally or geographically. See Sanchez Ritchie v. Sempra Energy, No. 10cv1513-CAB(KSC), 2015 WL 12914435, at *2 (S.D. Cal. Mar. 20, 2015) (“Generally, a discovery request without any temporal or other reasonable limitation is objectionable on its face as overly broad.”). The Goro Plaintiffs are California employees who began working for Defendants as distributors in 2013.^[8](Goro ECF No. 95 ¶¶ 6-11.) However, Defendants' business is not limited to California, and Defendants did not enter the “California market” until 2008. (Goro ECF No. 133-2 at 3.) RFP No. 18, which requests all documents reflecting opinions regarding the proper classification of unspecified distributors without a timeframe is therefore overboard. In light of RFP No. 18's lack of particularity, the Court declines to rewrite the request to include appropriate geographical or temporal limitations.

         Defendants' objections to Goro RFP No. 18 are sustained. Accordingly, Plaintiffs' Motion to Compel with respect to Goro RFP No. 18 is DENIED.

         b. RFP Nos. 3 and 19

         Goro RFP No. 3 requests “[a]ll DOCUMENTS and ESI that relate to the initial decision and any subsequent reconsideration of the decision to classify Plaintiffs and similarly situated individuals in California as not employees.” (Goro ECF No. 130-5 at 3.) Defendants responded to RFP No. 3 with a multitude of objections: vague and ambiguous; vague as to time; overbroad; unintelligible; calls for a legal conclusion; seeks irrelevant information; assumes facts; seeks confidential, proprietary, and trade secret information; seeks information protected by the attorney-client privilege and/or work product doctrine; and seeks information protected by the right to privacy under the California Constitution. (Id.) As previously mentioned, notwithstanding these objections, Defendants also ...