United States District Court, S.D. California
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
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