Michael M. Edelstein v. Google Inc.

Filing 24

Joint STIPULATION to Dismiss Case pursuant to voluntary dismissal filed by Defendant Google Inc..(Vick, Kevin)

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MORGAN, LEWIS & BOCKIUS LLP
A T T O R N E Y S A T LAW IR V I N E

MORGAN, LEWIS & BOCKIUS LLP JOHN S. BATTENFELD (SBN 119513) 300 South Grand Avenue, 22nd Floor Los Angeles, CA 90071-3132 Tel: [phone] Fax: [phone] Email: [e-mail] MORGAN, LEWIS & BOCKIUS LLP CARRIE A. GONELL (SBN 257163) RAFIK MATTAR (SBN 231292) 5 Park Plaza, Suite 1750 Irvine, California 92614 Tele: 949-399-7000 Fax: [phone] email: [e-mail] [e-mail] Attorneys for Defendant BDO SEIDMAN, LLP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA NAM NGUYEN, Plaintiff, vs. BDO SEIDMAN, LLP, a Limited Liability Partnership; and DOES 110, inclusive, Defendant. Case No. SACV07-1352 JVS (MLGx) Hon. James V. Selna DEFENDANT BDO SEIDMAN, LLP'S OPPOSITION TO PLAINTIFF'S MOTION FOR REVIEW OF MAGISTRATE JUDGE'S ORDER OF NOVEMBER 18, 2008 Date: December 22, 2008 Time: 1:30 p.m. Courtroom: 10C Hon. James V. Selna

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DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR REVIEW

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MORGAN, LEWIS & BOCKIUS LLP
A T T O R N E Y S A T LAW IR V I N E

I.

Introduction

Plaintiff Nam Nguyen ("Plaintiff") filed a Motion for Review of Magistrate Judge Marc L. Goldman's November 18, 2008 Order (the "Order") granting in part and denying in part Plaintiff's Motion to Compel Production of Documents. The Motion to Compel sought the contact information and various employment policies, procedures, and other documents relating to an expansive group of Defendant BDO Seidman, LLP's ("BDO") employees. As Magistrate Judge Goldman correctly found, Plaintiff is not entitled to information regarding BDO's Attest Associates because Plaintiff was never employed as an Attest Associate. Indeed, during his deposition, Plaintiff could not even recall the name of a single putative class member from the Attest Division that he spoke to during his employment with BDO. Not satisfied with the Magistrate's ruling, Plaintiff is now "shopping" for the ruling he wished to have received. Plaintiff raises nothing in his Motion, however, that was not already expressly considered and properly rejected in the Order. Accordingly, Plaintiff's Motion for Review should be denied because Plaintiff cannot establish that Magistrate Judge Goldman abused his discretion. The gravamen of Plaintiff's Motion for Review is that he is entitled to all information relating to Attest Associates simply because the putative class he pled seeks to include such individuals. Taken to its logical conclusion, Plaintiff's reasoning leads to a ridiculous result; Plaintiff essentially argues that any plaintiff seeking overtime pay is entitled to the contact information of every single exempt employee at an employer simply because that plaintiff files a class action complaint on behalf of all exempt employees. As the primary case cited by Plaintiff in his Motion, Putnam v. Eli Lilly & Co., makes clear, Plaintiff is not entitled to contact information of employees simply by virtue of the fact that he elected to refer to those employees in his Complaint. Rather, a plaintiff may only seek contact information of employees "relevant" to his same claims for overtime. Putnam, 508 F. Supp 812 (C.D. Cal. 2007). Here, Magistrate Judge Goldman ruled that the
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DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR REVIEW

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MORGAN, LEWIS & BOCKIUS LLP
A T T O R N E Y S A T LAW IR V I N E

proper scope of Plaintiff's request is the contact information of BDO's Tax Associates. Magistrate Judge Goldman considered precisely the same arguments and factual information raised by Plaintiff in this Motion, made specific factual findings, and issued a decision. As set forth in detail below, Plaintiff simply has no basis for now claiming that Magistrate Judge Goldman abused his discretion in connected with the challenged decision. II. Background and Issues in Dispute

On November 18, 2008, Magistrate Judge Goldman granted in part and denied in part Plaintiff's Motion to Compel. At issue in the Motion to Compel were two Requests for Production of Documents. Specifically, Request No. 17 broadly seeks any and all documents relating to all of BDO's policies and procedures for determining whether any of BDO's employees in California is exempt under Federal or California laws. Request No. 23 seeks documents identifying names and contact information of "each Non-Licensed Associate" employed by BDO in California from November 15, 2003 to present. Plaintiff incorrectly states in his Motion that BDO refused to provide any documents responsive to the Request No. 23. (Pl. Mtn. 4:13-14.) In fact, as the parties briefed in detail before Magistrate Judge Goldman, BDO offered to provide contact information for a sampling of the putative class pled by Plaintiff, which Plaintiff refused. (Gonell Decl. ¶ 2.) Plaintiff argues that he is entitled to information regarding BDO's Attest Associates as it relates to Request for Production No. 17, as well as No. 23. Plaintiff Nguyen was employed by BDO as a Tax Associate for approximately two years at various times with the past four years. (Compl. ¶ 2.) Plaintiff was never employed by BDO as an Attest Associate, but assisted with Attest projects for approximately two to three weeks as part of his CPA accreditation process.
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MORGAN, LEWIS & BOCKIUS LLP
A T T O R N E Y S A T LAW IR V I N E

(Nguyen Depo.1 66:17-67:18.) Plaintiff testified that he could not recall the name of a single Attest Associate with whom he may have spoken while he was employed at BDO. (Nguyen Depo. 180:18-20.) He further testified that he does not know for certain what types of assignments Attest Associates performed at BDO, or the function of BDO's Attest Division generally. (Id., 181:24-183:20; "For certain? I don't know what they do for certain. I know what I do for certain.") In an Order issued on November 18, 2008, Magistrate Judge Goldman granted Plaintiff's motion with respect to: (1) documents relating to the classification of Tax Associates as exempt (or a wide group of documents "if Defendant makes these classification decision on a company-wide basis, rather than segregating its employees by work group and no such work-group based documents exist"; (2) names and contact information for "each non-Licensed Tax associate employed by Defendant in California beginning November 15, 2003 to the present." (Order at 2.) III. A. Plaintiff Cannot Establish that Magistrate Judge Goldman Abused His Discretion And, Thus, His Order Cannot Be "Clearly Erroneous." Standard of Review

To prevail in overturning the Order, Plaintiff must demonstrate that Magistrate Judge Goldman's ruling was "clearly erroneous." Federal Rule of Civil Procedure 72(a) provides that with respect to a nondispositive matter, "[t]he district judge...shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a) (emphasis added); see also Grimes v. City and County of San Francisco, 951 F. 2d 236, 240
All references to "Nguyen Depo." refer to the deposition of Plaintiff Nam Nguyen taken on November 6, 2008. Relevant portions of the deposition are attached as Exhibit A to the Declaration of Carrie Gonell in Support of Defendant's Opposition to Plaintiff's Motion for Review of Magistrate Judge's Order of November 18, 2008.
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BOCKIUS LLP
IR V I N E A T T O R N E Y S A T LAW

(9th Cir. 1991) (discovery issues are non-dispositive pre-trial matters that are reviewed for clear error under Rule 72(a)); see also Tompkins v. R.J. Reynolds Tobacco Co., 92 F. Supp. 2d 70, 74 (N.D.N.Y. 2000) (discovery disputes fall into the category of nondispositive). "Under this standard of review, a magistrate's order is `clearly erroneous' if, after considering all of the evidence, the district court is left with the definite and firm conviction that a mistake has been committed, and the order is `contrary to law' when it fails to apply or misapplies relevant statutes, case law or rules of procedure." Yent v. Baca, 2002 WL 32810316, at *2 (C.D. Cal. 2002); see also Wolpin v. Philip Morris, Inc., 189 F.R.D. 418, 422 (C.D. Cal. 1999); Computer Economics, Inc. v. Gartner Group, Inc., 50 F. Supp. 2d 980, 983 (S.D. Cal. 1999) (quoting Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997). "The reviewing court may not simply substitute its judgment for that of the deciding court." Grimes, 951 F.2d at 241. "Considering that magistrate judges are given broad discretion with respect to pre-trial discovery matters, reversal is warranted only when that discretion is abused." Abrams v. General Elec. Co., No 95-CV-1734, 1997 WL 458446, at *1 (N.D.N.Y. Aug. 4, 1997). Plaintiff is unable to satisfy the high standard for overturning the Magistrate's ruling. Magistrate Judge Goldman properly considered the arguments before him and there is no evidence of any abuse of discretion. B. The Order Properly Denied Discovery of Information Regarding Attest Associates

Plaintiff's overly broad Request No. 23 seeks the names and contact information of "each Non-Licensed Associate" ever employed by BDO in California over the last five years. Plaintiff's Request No. 17 seeks all documents regarding BDO's determinations as to whether and how any of BDO's California employees are or have ever been exempt under California or Federal law at any time in the Company's history.
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DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR REVIEW

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MORGAN, LEWIS & BOCKIUS LLP
A T T O R N E Y S A T LAW IR V I N E

Plaintiff's Motion for Review simply argues that he is entitled to information regarding BDO's Attest Associates in both Requests Nos. 17 and 23. Plaintiff, however, was employed by BDO as a Tax Associate during the relevant time period. (Compl. ¶ 10.) Plaintiff is not entitled to use the discovery process in an attempt to fish for a representative for other potential classes. Information regarding an entire line of service in which Plaintiff was not even employed (i.e., Attest rather than Tax) -- and about whose function he could only describe generally based on his college courses, not his employment with BDO -- is not within the bounds of appropriate discovery in this case. Plaintiff's Motion for Review incorrectly states that Plaintiff was employed as both a Tax and an Attest Associate. (Pl. Mtn. 2:10-11.) Plaintiff was never employed as an Attest Associate. As the Magistrate found, in order to satisfy thenexisting CPA requirements to become a licensed accountant, Plaintiff asked for specific experience with audits. (Order at 2.) As a result, Plaintiff assisted with audit projects for approximately two to three weeks. (Nguyen Depo. 66:17-67:18; 181:24-183:20.) Plaintiff demonstrated his complete lack of personal knowledge about the Attest Division and the duties performed by its Associates during his deposition: · Plaintiff testified that he could not recall the name of a single Attest Associate with whom he may have spoken while he was employed at BDO. (Nguyen Depo. 180:18-20.) · Nguyen testified that audit departments perform functions "like checking invoices and matching liabilities and whatnot." (Nguyen Depo. 183:6-10). When asked whether that was the function of BDO's Attest Division, he said he did not know, and that the basis of his decription was when he took an "auditing class [in college], that's what they say you do." (Nguyen Depo. 183:12-20.) · When asked about generally accepted professional standards for auditing, Plaintiff was only able to state that they are "a set of standards that you use to audit." (Id., 180:14-181:2.)
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DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR REVIEW

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MORGAN, LEWIS & BOCKIUS LLP
A T T O R N E Y S A T LAW IR V I N E

· When questioned about the assignments Audit Associates at BDO were performing while he was employed there, Plaintiff conceded, "[f]or certain? I don't know what they do for certain. I know what I do for certain." (Id., 182:24-183:20.) In light of Plaintiff's lack of personal knowledge regarding BDO employees other than Tax Associates, Magistrate Judge Goldman appropriately found that Plaintiff is not entitled to information other BDO employees. (Order at 3.) Plaintiff attempts to challenge Magistrate Judge Goldman's Order on several grounds, but none of them even suggest, much less establish, an abuse of discretion by the Magistrate Judge. First, Plaintiff argues that Magistrate Judge Goldman should have found that Plaintiff's performance of two Attest assignments entitled Plaintiff to the contact information of hundreds of unrelated employees. (Pl. Mtn. 2:20-23; 3:2-4.) Magistrate Judge Goldman considered and expressly rejected Plaintiff position, however, finding Plaintiff is not entitled to Attest Associate information "because Plaintiff was never employed as an Attest associate, but simply worked in that department for several weeks as part of a certification requirement." (Order at 2.) Second, Plaintiff now argues that the Order must be reversed because of his unsupported position that he is entitled to any and all information he wishes relating to any putative class member of group that he elects to include in his Complaint. (Pl. Mtn. 3:2-4.) This position has no legal merit, nor does Plaintiff point to any. If Plaintiff were correct, Plaintiff would need only to plead a class of "all exempt employees," and all information regarding every exempt employee ­ whether the employees are in the legal department, sales department, or otherwise ­ would be discoverable. Magistrate Judge Goldman made no error in rejecting Plaintiff's argument. Third, Plaintiff's Motion for Review then resorts to falsely stating that the Magistrate's Order "fails to cite or discuss [Putnam]." (Pl. Mtn. 6:19-20.) In fact,
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MORGAN, LEWIS & BOCKIUS LLP
A T T O R N E Y S A T LAW IR V I N E

the Order not only cites to Putnam, but quotes the Putnam opinion at length, and discusses the need of the Court to balance Plaintiff's need and due process right to discovery on class action issues against the putative plaintiffs' right to privacy. (Order at 2.) Thus, there is no question that the Magistrate considered Putnam in conjunction with his ruling. Moreover, as the Magistrate Judge correctly concluded, Putnam does not compel a ruling in Plaintiff's favor. In Putnam, a putative class action, plaintiffs alleged that an employer failed to pay overtime to its pharmaceutical representatives, and sought contact information regarding sales representatives both inside and outside of the sales division. Putnam, 508 5. Supp 2d at 813. The court held that defendant offered "no adequate explanation as to why information about pharmaceutical representatives in sales divisions other than the one in which plaintiff worked in is not relevant to the inquiry." Id. at 813-14. Here, unlike in Putnam, BDO has offered reasons as to why the information Plaintiff seeks is simply not relevant to his claims. Plaintiff Nam Nguyen was never employed by BDO as an Attest Associate and was never employed by the Assurance Division. Instead, he performed completely different tasks as an associate in the Tax Division. Attest and Tax Associates perform completely different tasks, and the Divisions have discrete functions. As Plaintiff concedes, he is not certain what type of tasks Attest Associates perform and cannot describe what function BDO's Attest Division serves other than what he learned in college. As found by Magistrate Judge Goldman in the Order, BDO has demonstrated that Plaintiff is simply not entitled to the discovery he seeks. Fourth, Plaintiff Motion for Review argues that the Magistrate's Order effectively makes a class certification ruling. (Pl. Mtn. 2:23-27.) The Magisrate Judge made no such ruling in his Order, nor does Plaintiff identify one. The Order merely cites to the well-settled principle that putative class actions should be limited to the positions that plaintiff actually held. See, e.g., Campbell v.
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DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR REVIEW

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MORGAN, LEWIS & BOCKIUS LLP
A T T O R N E Y S A T LAW IR V I N E

PricewaterhouseCoopers ("PwC"), 2008 WL 818617, *8 (E.D. Cal. March 25, 2008). Counsel for Plaintiff here brought a strikingly similar lawsuit challenging the exemption status of various groups of non-certified Tax Associates of PwC. In PwC, the plaintiff was employed as an Attest associate, but sought to certify a class that also included those employed within System Process Assurance, Transactional Services and Tax Services. (Id. at 2.) The court in PwC ultimately refused to grant class certification with respect to any groups of non-attest associates (i.e., those outside of plaintiff's line of service). Id. (citing Kelley v. SBC, Inc., 1998 WL928302, *43 ("limiting certification to positions plaintiffs actually held)); see also, Ruiz v. PricewaterhouseCoopers, No. 2:06-cv-02376-LKK-GGH (Dec 8, 2003) (sustaining PwC's demurrer of class claims seeking overtime pay for junior accountants because, inter alia, "allowing this case to proceed as a representative action would require numerous mini-trials in order to determine whether each junior accountant employee of Defendant is exempt from California's overtime laws"). While Plaintiff is correct that Campbell is a class certification case, Campbell was cited by BDO, and the Magistrate, as simply illustrative of the fact that Attest and Tax Associates perform completely different tasks and, in that case, did not properly belong in the same class action seeking overtime pay. The Magistrate Judge's citation to Campbell is not a basis for overturning his decision. In conclusion, Magistrate Judge Goldman committed no abuse of discretion, and Plaintiff's Motion for Review should be denied for all the reasons set forth above. Dated: December 8, 2008 MORGAN, LEWIS & BOCKIUS LLP CARRIE A. GONELL RAFIK MATTAR By /s/Rafik Mattar Rafik Mattar Attorneys for Defendant BDO SEIDMAN, LLP
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