Michael M. Edelstein v. Google Inc.

Filing 22

NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Stipulation to Extend Time to Respond to Initial Complaint By Not More Than 30 Days filed 5/30/2010 19 . The following error(s) was found: Incorrect event selected. The correct event is: Stipulations - Extending Time to Answer (30 days or less). Stipulations - Extension of Time to File Document event utilized in docketing this filing. Clerk has updated defendant's answer due deadline to 6/15/2010. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (gk)

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William A. Kershaw, State Bar No. 057486 Lyle W. Cook, State Bar No. 148914 Stuart C. Talley, State Bar No. 180374 KERSHAW, CUTTER, & RATINOFF LLP 401 Watt Avenue Sacramento, California 95864 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA NAM NGUYEN, Plaintiff, vs. BDO SEIDMAN, LLP, a Limited Liability Partnership; and DOES 110, inclusive, Defendants. PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR REVIEW OF MAGISTRATE JUDGE'S ORDER OF NOVEMBER 18, 2008 Date: December 22, 2008 Time: 1:30 p.m. Courtroom No.: 10C Hon. James V. Selna, United States District Judge Discovery Cutoff: 8/4/09 Pre-Trial Conference: 11/2/09 Trial Date: 11/17/09 Case No.: SACV07-1352 JVS MLGx

PLAINTIFF'S MOTION FOR REVIEW OF MAGISTRATE JUDGE'S NOVEMBER 18 ORDER 2008SACV07-1352-JVS MLGX

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NOTICE OF MOTION TO: DEFENDANTS AND THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that on December 22, 2008 at 1:30 p.m., before Hon. James V. Selna in Courtroom No. 10C of the above entitled Court, pursuant to Federal Rule of Civil Procedure 72(a), plaintiff NAM NGUYEN will move the Court for Review of Magistrate Judge Marc L. Goldman's November 18, 2008 Order Granting in Part and Denying in Part Plaintiff's Motion to Compel Production of Documents and issue a new order allowing plaintiff to conduct discovery concerning the entire class. This motion is based on the accompanying Memorandum of Points and Authorities and on such evidence as may be presented at the hearing on this motion. Respectfully submitted, Dated: December 1, 2008. KERSHAW, CUTTER & RATINOFF LLP

By

/s/ Stuart C. Talley STUART C. TALLEY 401 Watt Avenue Sacramento, California 95864 Telephone: [phone] Attorneys for Plaintiff

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This is a class action lawsuit brought on behalf of Tax and Attest Associates employed by the defendant who have not yet obtained their CPA license. The complaint alleges that these associates are misclassified as "exempt employees" under California law and are, therefore, improperly denied overtime and other employment benefits. The plaintiff in this case worked as an associate for the defendant for approximately two years. During this time, he was employed as both a Tax and Attest Associate. In his Motion to Compel, plaintiff sought two categories of documents from the defendants relating to both Tax and Attest Associates. Specifically, plaintiff sought various employment policies and procedures for these employees as well as their contact information. On November 18, 2008, Magistrate Judge Marc L. Goldman issued an Order Granting in Part and Denying in Part Plaintiff's Motion to Compel Production of Documents. A true and correct copy of Magistrate Goldman's Order is attached hereto as Exhibit 1. Magistrate Goldman ruled that plaintiff could obtain documents sought in the requests but that the defendant would not be required to produce any documents relating to Attest Associates. Although Magistrate Goldman acknowledged that the named plaintiff actually worked as an Attest Associate during his employment with defendant, he concluded that this was not sufficient for him to obtain any discovery concerning these employees. Effectively deciding class certification during the discovery phase of this case, Magistrate Goldman concluded that plaintiff could not obtain the requested discovery because "Plaintiff has not demonstrated that he represents any putative plaintiffs other than Tax associates." As explained more fully below, plaintiff believes that Magistrate Goldman's
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ruling was in error. Contrary to the Magistrate's Order, plaintiff's complaint does seek to represent both Tax and Attest Associates. In order for the class representative to show that his claims are typical of these associates, he is entitled to discovery concerning the entire class. As such, plaintiff respectfully requests that the Court review Magistrate Goldman's Order and issue a new order allowing plaintiff to conduct discovery concerning the entire class. II. FACTS The named plaintiff worked for the defendant as an Associate for approximately two years. During this entire time period he was classified as an exempt employee and did not receive payment for overtime. The defendant has two divisions; a Tax Division and an Attest Division. The Tax Division primarily helps individuals and businesses prepare tax returns. The Attest Division conducts audits of the defendant's clients to ensure that their financial statements are accurate. During his two years of employment with the defendant, the named plaintiff primarily worked as an associate in the defendant's Tax Division. However, he did spend approximately 2 to 3 weeks performing audits in the defendant's Attest Division. During this time period, he spent his entire day working directly alongside other Attest Associates and was not paid overtime. In this case, plaintiff asserts that the defendant improperly classified both its Attest and Tax Associates as exempt. Specifically, the plaintiff alleges that in order for individuals employed in the field of accountancy to be properly classified as exempt, those employees must be licensed by the state of California. Additionally, plaintiff contends that unlicensed associates in both the Attest and Tax Divisions cannot "customarily and regularly exercise independent judgment and discretion with respect to matters of significance." One of the reasons they cannot exercise such discretion is because California's Business and Professions Code specifically
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requires non-licensed individuals practicing accountancy to be "supervised and controlled" by a CPA. Plaintiff's complaint alleges that with respect to both Attest and Tax Associates, common issue of law and fact predominate over any individual issues. Plaintiff also alleges that his claims are typical of the Class as a whole. In order to establish commonality and typicality, plaintiff sought discovery concerning the duties and responsibilities of both Tax and Attest Associates. Specifically, on May 6, 2008, plaintiff served Plaintiff's First Set of Requests for Production of Documents (hereinafter "RFPs"). See Talley Decl., Ex. 1.1 At issue in the Motion to compel are RFP Nos. 17 and 23. RFP No. 17 seeks BDO's policies and procedures for determining which of the putative class members are exempt from receiving overtime. RFP No. 23 seeks documents identifying the class members that plaintiff seeks to represent in this case. BDO refused to provide any documents responsive to these requests and plaintiff filed a motion to compel. On November 18, 2008, Magistrate Judge Goldman issued an Order Granting in Part and Denying in Part Plaintiff's Motion to Compel Production of Documents. The Magistrate ordered defendant to produce documents reflecting BDO's policies and procedures for determining exemption, but only as to Tax Associates, and not as to Attest Associates. The only rationale for imposing this limitation was "because Plaintiff was never employed as an Attest associate, but simply worked in that department for several weeks as part of a certification requirement." With respect to RFP No. 23, the Magistrate again denied discovery for Attest Associates. In this part of his order, Magistrate Goldman noted that the rationale for his decision was that "Plaintiff has not demonstrated that he represents any putative plaintiffs other than Tax associates."

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All references to "Talley Decl." refer to the Declaration of Stuart Talley in Support of Plaintiff's Motion to Compel filed with Plaintiff's Notice of Motion and Motion to Compel on October 14, 2008. -4PLAINTIFF'S MOTION FOR REVIEW OF MAGISTRATE JUDGE'S NOVEMBER 18 ORDER 2008SACV07-1352-JVS

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III. STANDARD OF REVIEW A District Court may reconsider pretrial orders of a magistrate judge "where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). IV. LEGAL ARGUMENT A. The Magistrate Erred by Concluding That Plaintiff Does Not Represent Attest Associates. In his Order the Magistrate concluded that that "Plaintiff has not demonstrated that he represents any putative plaintiffs other than Tax associates." The Magistrate's reasoning is clearly erroneous since, at this stage of the proceedings, plaintiff is not required to "demonstrate that he represents" Attest Associates. Rather, plaintiff is seeking discovery to demonstrate that he can adequately represent the claims of Attest Associates. To do this, the plaintiff must show that there are common issues of law and fact and that his claims are typical of the class. By denying discovery concerning half of the putative class, the Magistrate has essentially issued a preemptive ruling denying class certification with respect to Attest Associates. Such a ruling is simply erroneous at this stage of the proceedings and effectively supersedes the Magistrate's authority. See 28 U.S.C. § 636(b)(1)(A) (prohibiting magistrate judges from determining, among other things, class certification issues). Moreover, the Magistrate's ruling appears to disregard controlling case law that expressly rejected the reasoning embraced by the Magistrate on this issue. The court in Putnam dealt with and disposed of precisely the same argument made by the defendant in this case:
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"Defendant objects to providing the requested information, arguing that the overwhelming majority of the subject employees worked outside of plaintiff's sales division and in different positions than plaintiff, and that the information being sought by plaintiff is irrelevant and unnecessary at this stage of the litigation. ... Defendant offers no adequate explanation as to why information about pharmaceutical representatives in sales divisions other than the one in which plaintiff worked is not relevant to the inquiry. Instead, it seems to the Court that contact with those individuals could well be useful for plaintiff to determine, at a minimum, the commonality and typicality prongs of Rule 23." Putnam v. Eli Lilly & Co. (C.D. Cal. 2007) 508 F. Supp. 2d at 813-14. Just as in Putnam, plaintiff here has alleged a number of factual and legal questions common to the entire class, across divisions and job titles. Also as in Putnam, contact with those individuals will likely provide evidence useful to support commonality, typicality, and other certification issues. Because Putnam deals with the precise legal issue upon which the Magistrate apparently based his partial denial of plaintiff's motion, in factual circumstances similar to those in the present case, the holding in Putnam makes the Magistrate's decision clear legal error. B. The Authority Relied Upon by the Magistrate Judge is Inapplicable Because it is a Class Certification Decision and Has Nothing to Do with Pre-Certification Discovery The Magistrate's Order fails to cite to or discuss Putnam, which is a decision on a pre-certification discovery dispute nearly identical to that in the present case. The magistrate instead cites to a decision on class certification, which had nothing whatsoever to do with a pre-certification discovery dispute. See Order at p. 3, citing Campbell v. PricewaterhouseCoopers, 2008 WL 818617, *8 (E.D. Cal. March 25, 2008). Campbell is a class action that was brought by two Attest Associates against an accounting firm. The plaintiffs sought to certify a class consisting of both Tax and Attest Associates. In ruling on class certification, the judge certified the Attest Associates but did not include the Tax Associates in the class. One of the rationales
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for not certifying the Tax Associates was that, after considering the evidence, the court determined that the plaintiff's claims were not typical of the class since they were never employed as Tax Associates. Campbell v.PricewaterhouseCoopers, 253 F.R.D. 586, 596 (E.D. Cal. 2008). Thus, the class certification decision in Campbell was based on evidence obtained in discovery and presented to the court. The only evidence before the Magistrate on plaintiff's Motion to Compel in the present case was deposition testimony demonstrating that the named plaintiff had worked in the Attest line of service for a brief period of time. Nevertheless, the Magistrate's Order effectively forecloses plaintiff from obtaining discovery regarding Attest Associates employed by the defendant. The portion of the Magistrate's Order denying plaintiff contact information and other discovery related to Attest Associates is clear legal error and an abuse of discretion. That portion of the Magistrate's Order should be reversed, and defendant should be Ordered to produce the documents sought with respect to the entire putative class. IV. CONCLUSION The Magistrate Judge's Order recognizes that case law and basic Constitutional rights support granting plaintiff's Motion to Compel. See Order at p. 2 ("Due process requires an opportunity to conduct discovery on class action issues prior to class certification proceedings."). Nevertheless, the Magistrate denies that very Constitutional right by denying discovery with respect to half of the putative class. The Magistrate does so by making a preemptive class certification determination that "Plaintiff has not demonstrated that he represents any putative plaintiffs other than Tax associates." Id. at p. 3. Such a determination exceeds the express statutory limitations on the magistrate's authority and is contrary to the applicable case law.
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As such, plaintiff asks the Court to reverse the portions of the Order Denying in Part Plaintiff's Motion to Compel and further to order defendant to timely produce the documents sought in RFP Nos. 17 and 23 with respect to the entire putative class.

Dated: December 1, 2008.

KERSHAW, CUTTER & RATINOFF LLP

By

/s/ Stuart C. Talley STUART C. TALLEY 401 Watt Avenue Sacramento, California 95864 Telephone: [phone] Attorneys for Plaintiff

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