Westfall v. Ball Metal Beverage Container Corporation

Filing 89

ORDER signed by District Judge Kimberly J. Mueller on 2/28/19 ORDERING the Parties shall submit the discovery dispute referenced in the above stipulation, for resolution by Magistrate Judge Carolyn K. Delaney pursuant to Civil Local Rule 251; All cu rrent pre-trial deadlines are vacated; and Within fourteen (14) days of Judge Delaney's ruling on the Parties' discovery dispute, the Parties shall submit a joint report re pre-trial schedule, to include dates for fact and expert discovery cutoff, motion cutoffs, and trial. (Becknal, R)

1
2
3
4
5
6

JOHN K. SKOUSEN, SBN 192581
[e-mail]
CHRISTOPHER M. AHEARN, SBN 239089
[e-mail]
JOHN T. LAI, SBN 289949
[e-mail]
FISHER & PHILLIPS LLP
2050 Main Street, Suite 1000
Irvine, California 92614
Telephone: [phone]
Facsimile: [phone]

10

ERIN J. PRICE, SBN 319331
[e-mail]
FISHER & PHILLIPS LLP
621 Capitol Mall, Suite 1400
Sacramento, California 95814
Telephone: [phone]
Facsimile: [phone]

11

Attorneys for Defendant, BALL METAL BEVERAGE CONTAINER CORP.

12

MATTHEW R. EASON, SBN 160148
[e-mail]
ERIN M. SCHARG, SBN 285311
[e-mail]
EASON & TAMBORNINI, ALC
1234 H Street, Suite 200
Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]

7
8
9

13
14
15
16
17

Attorneys for Plaintiffs, ROBERT WESTFALL, DAVID E. ANDERSON, LYNN BOBBY, and
DAVID ELLINGER

18
UNITED STATES DISTRICT COURT

19

EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

20
21
22

ROBERT WESTFALL, DAVID E.
ANDERSON, LYNN BOBBY, and
DAVID ELLINGER,

23
24
25
26

Case No: 2:16-cv-02632-KJM-CKD
JOINT REPORT AND STIPULATION RE
CLASS DISCOVERY; AND ORDER

Plaintiffs,
v.
BALL METAL BEVERAGE
CONTAINER CORP.,
Defendant.

27
28

JOINT REP. AND STIP. RE CLASS DISCOVERY; AND ORDER
FPDOCS 35038866.1

1

Plaintiffs ROBERT WESTFALL, DAVID E. ANDERSON, LYNN BOBBY, DAVID

2

ELLINGER (hereinafter, “Plaintiffs”), and Defendant BALL METAL BEVERAGE

3

CONTAINER CORP. (hereinafter, “Defendant”) (hereinafter, collectively, the “Parties”),

4

hereby stipulate as follows:

5
6
7

WHEREAS, on September 25, 2018 (ECF No. 83) the Court issued an Order stating as
follows:


Within fourteen (14) days of the Court’s ruling on Plaintiffs’ pending

8

Motion for Reconsideration (ECF No.[59], Defendant shall provide

9

Plaintiffs with a proposed class discovery plan, to include proposals

10

regarding the number, length, and anticipated topics of class member

11

depositions;

12



Within fourteen (14) days of receiving the Defendant’s plan, Plaintiffs

13

shall give a written response indicating whether they agree to the plan or

14

whether, if they dispute any aspect of it, and the factual basis for any such

15

dispute;

16



As necessary, the Parties shall obtain input from experts qualified in

17

relevant subject matters (such as statistics) in developing their discovery

18

plan proposals;

19



Following Plaintiffs’ response, the Parties shall further confer, if needed,

20

and within fourteen (14) days of such response shall file a joint report to

21

the Court regarding aspects of a discovery plan that are agreed-upon, as

22

well as a description of any disputes that the Parties desire to submit to the

23

Court for resolution;

24



As part of the Parties’ joint submission, they shall propose a schedule for

25

completing such discovery, including any modifications to the present pre-

26

trial schedule that may be needed;

27
28



During the course of such additional discovery, the Parties shall confer
regarding a reasonable time for Plaintiffs to provide a “trial plan” if one if

1
JOINT REPORT AND STIP. RE CLASS DISCOVERY; AND ORDER
FPDOCS 35038866.1

1

agreed as being needed, and whether any motions are required in such

2

regard; and

3



The Parties’ proposals regarding such discovery plans will be for purposes

4

of discovery only, and shall be without prejudice as to the Parties’ ability

5

to seek appropriate relief from the Court to modify such plans, to seek

6

additional discovery, to seek protective orders, for Plaintiffs to take the

7

position that no “trial plan” is needed, for Defendant to seek to compel a

8

“trial plan”, for Defendant to dispute the validity or adequacy of any “trial

9

plan” (or lack thereof) under applicable law and/or for Defendant to take

10

the position that any certified class in this action should be modified or de-

11

certified, or for the Parties to seek any other appropriate relief.”;

12
13

WHEREAS, on January 15, 2019 (ECF No. 85) the Court issued an order on the
Reconsideration Motion;

14

WHEREAS, as a result of its ruling on the Reconsideration Motion, on January

15

15, 2019 (ECF No. 86) the Court issued an Order on the Joint Stipulation Regarding Class

16

Discovery and Trial Plan by the Parties:

17



Within fourteen (14) days of the Court’s ruling on Plaintiffs’ pending

18

Motion for Reconsideration (ECF No.[59], Defendant shall provide

19

Plaintiffs with a proposed class discovery plan, to include proposals

20

regarding the number, length, and anticipated topics of class member

21

depositions;

22



Within fourteen (14) days of receiving the Defendant’s plan, Plaintiffs

23

shall give a written response indicating whether they agree to the plan or

24

whether, if they dispute any aspect of it, and the factual basis for any such

25

dispute;

26



As necessary, the Parties shall obtain input from experts qualified in

27

relevant subject matters (such as statistics) in developing their discovery

28

plan proposals;
2
JOINT REPORT AND STIP. RE CLASS DISCOVERY; AND ORDER
FPDOCS 35038866.1



1

Following Plaintiffs’ response, the Parties shall further confer, if needed,

2

and within fourteen (14) days of such response shall file a joint report to

3

the Court regarding aspects of a discovery plan that are agreed-upon, as

4

well as a description of any disputes that the Parties desire to submit to the

5

Court for resolution;


6

As part of the Parties’ joint submission, they shall propose a schedule for

7

completing such discovery, including any modifications to the present pre-

8

trial schedule that may be needed;


9

During the course of such additional discovery, the Parties shall confer

10

regarding a reasonable time for Plaintiffs to provide a “trial plan” if one if

11

agreed as being needed, and whether any motions are required in such

12

regard; and


13

The Parties’ proposals regarding such discovery plans will be for purposes

14

of discovery only, and shall be without prejudice as to the Parties’ ability

15

to seek appropriate relief from the Court to modify such plans, to seek

16

additional discovery, to seek protective orders, for Plaintiffs to take the

17

position that no “trial plan” is needed, for Defendant to seek to compel a

18

“trial plan”, for Defendant to dispute the validity or adequacy of any “trial

19

plan” (or lack thereof) under applicable law and/or for Defendant to take

20

the position that any certified class in this action should be modified or de-

21

certified, or for the Parties to seek any other appropriate relief.”;

22

WHEREAS, on January 28, 2019, Defendant provided Plaintiffs with a proposed

23

discovery plan, including input from an expert qualified in statistical class sampling, that based

24

on the expert’s opinion, 121 class members randomly selected from the total class of 169

25

individuals must be deposed to meet the minimum requirement to provide statistically

26

significant evidence that there is liability for violation of California meal or rest period rules on

27

a class-wide basis, as set forth in Duran v. U.S. Bank Nat. Assn., 59 Cal.4th 1, 13 (Cal. 2014);

28

///
3
JOINT REPORT AND STIP. RE CLASS DISCOVERY; AND ORDER
FPDOCS 35038866.1

1

WHEREAS, on February 11, 2019, Plaintiffs provided a written response to Defendant’s

2

proposed discovery plan, absent input from any expert, that only 10% of the putative class (total

3

of 16 persons) should be deposed;

4

WHEREAS, on February 19, 2019, Defendant provided Plaintiffs with a rebuttal expert

5

report responding to Plaintiffs’ proposed discovery plan, taking the position that Plaintiffs’

6

proposal was wholly inadequate as Plaintiffs’ proposed sample size was less than the size

7

established precedent for statistical sampling to establish wage and hour violations across a

8

putative class has already found too small such that it violates a defendant’s due process rights;

9

WHEREAS, accordingly, a discovery dispute has arisen between the Parties concerning

10

the number, extent, and nature of class member depositions to be taken;

11

WHEREAS, on February 25, 2019, the Parties, through counsel, met and conferred by

12

telephone regarding the dispute over the method and percentage of class sampling, and in turn,

13

the number of depositions to be conducted of the putative class, to comply with Defendant’s due

14

process rights. The Parties, through counsel, were unable to resolve such discovery dispute

15

through meet and confer;

16

WHEREAS, the Parties agree that resolution of the discovery dispute by the Court is

17

necessary to determine the exact nature and scope of the additional discovery, including class

18

member depositions, that is warranted;

19

NOW THEREFORE, pursuant to the Court’s Order on the Joint Stipulation Regarding

20

Class Discovery and Trial Plan (ECF No. 86), the Parties hereby submit the Joint Report,

21

regarding aspects of a discovery plan that are agreed-upon, describing their respective positions

22

on the discovery dispute, and proposing a schedule for completing such discovery:

23

1.

Aspects of the discovery plan that are agreed upon:

24

The Parties agree that additional discovery, including class member depositions is

25

warranted. The Parties further agree that they have met and conferred as required by Civil Local

26

Rule 251(b) in a good faith effort to resolve the outstanding dispute regarding the additional

27

discovery without court action. Pursuant to the Court’s February 7, 2017 “Status (Pretrial

28

Scheduling) Order: Class Certification Phase” (ECF No. 015) (directing that all discovery
4
JOINT REPORT AND STIP. RE CLASS DISCOVERY; AND ORDER
FPDOCS 35038866.1

1

motions be filed with the assigned magistrate) and its December 14, 2018 order reassigning this

2

matter to Judge Carolyn K. Delaney (ECF No. 084), the Parties agree to submit the discovery

3

dispute referenced herein for resolution by Judge Delaney pursuant to Civil Local Rule 251. For

4

purposes of compliance with Local Rule 251(b) (Requirement of Conferring), the Parties

5

stipulate that they have met and conferred. Pursuant to Judge Kimberley J. Mueller’s Standing

6

Order regarding “Discovery matters (including motions) and other Magistrate Judge Referrals”

7

(hereinafter “Judge Mueller’s Standing Order”), the Parties agree that Judge Delaney may

8

modify the discovery cutoff to allow resolution of the discovery dispute. The Parties agree that

9

following Judge Delaney’s resolution of such dispute, the Court should set a Case Management

10

Conference to re-set pre-trial deadlines. The Parties agree to the following schedule for a

11

discovery motion before Judge Delaney:


12

Deadline for Defendant to provide its draft of a Joint Statement re Discovery
Disagreement pursuant to Civil Local Rule 251(c): March 15, 2019;

13


14

Deadline for Plaintiffs to respond with their portions of such joint statement:
March 29, 2019.

15


16

Upon completion of such joint statement, Defendant will file it with Judge
Delaney for hearing before her.

17

2. Description of Dispute regarding Discovery Plan:

18

a.

19

Defendant’s Position— In a certified wage and hour class action case, to the

20

extent Plaintiffs seek to introduce class-wide evidence based on testimony from a limited number

21

of witnesses, Plaintiffs must submit a “trial plan” supported by sound statistical science

22

according to which the trial may be conducted based on such limited evidence without inhibiting

23

the defendant’s due process rights. (Duran v. U.S. Bank Nat. Assn., 59 Cal.4th 1, 13 (Cal. 2014).)

24

Defendant should have the opportunity to impeach Plaintiffs’ proposed trial plan. (Id.) United

25

States District Courts have adopted the concept set forth in Duran as an important component of

26

affording a defendant with due process. (In Re: Autozone, Inc., No. 3:10-md-02159-CRB, 2016

27

WL 4208200 (N.D. Cal. Aug. 10, 2016).)

28

///
5
JOINT REPORT AND STIP. RE CLASS DISCOVERY; AND ORDER
FPDOCS 35038866.1

1

Defendants submitted a proposed class discovery plan to Plaintiffs, including an expert

2

report supported by statistical science, proposing 121 class members be randomly selected from

3

the total class size of 169 persons, to provide statistically significant evidence that there is

4

liability for violation of California meal or rest period rules on a class-wide bases, given the

5

various job titles and conflicting facts with Plaintiffs’ theory among class members. Depositions

6

of the randomly selected 121 class members would last approximately 2-3 hours each, with

7

approximately five (5) days of such depositions taking place every calendar month until

8

completed.

9

In response, Plaintiffs proposed a class discovery plan, without expert input,

10

recommending depositions of 10% of the putative class with a two-hour limit on each

11

deposition. It is Defendant’s position that Plaintiff’s proposed sample of 17 class members is

12

smaller than the sample size that was deemed too small by the California Supreme Court in

13

Duran, such that it violated the defendant’s due process rights in producing an unreasonably

14

inaccurate estimate of class wide liability. (Duran, 59 Cal.4th at p. 42) Accordingly, Defendant’s

15

due process rights are directly implicated and may be violated by Plaintiff’s inadequate proposed

16

sample size. The Parties have met and conferred regarding the proposed sample size and relief

17

from the 10-deposition limit pursuant to Fed. R. Civ. Proc. 30 (a)(2)(A)(i), and have been unable

18

to resolve it. Thus, the Parties cannot proceed and the issue is ripe for court resolution.

19

b.

Plaintiff’s Position— Plaintiff's theory of liability rests on a system wide

20

practice/policy that affects all putative class members. The primary gist of the dispute is that

21

when the employees used the Suitable Resting Facilities they did so on the condition that they

22

remained vigilant and continued to work by monitoring pages much like the security guards in

23

California’s recent California Supreme Court decision in Augustus v. ABM Security Services

24

Inc., 2 Cal.5th 257 (2016) . This constant monitoring deprived them of meal and rest periods

25

“free from all duties”.

26

and its requirement that employees listen to the communications to see if they applied to them

27

and respond if necessary commonly affected all plaintiffs and class members. Plaintiffs therefore

28

oppose Defendant's trial plan which seeks to depose 121 of the 169 putative class members as

It is Plaintiffs' contention that BALL's use of the public address system

6
JOINT REPORT AND STIP. RE CLASS DISCOVERY; AND ORDER
FPDOCS 35038866.1

1

unnecessary and overly burdensome for a system wide practice/policy. Defendant has access to

2

records that cover many of the subjects that they seek to examine the putative class including.
3. Proposed Schedule for Completing Discovery, and Modifications to Other Pre-

3
4

Trial Deadlines

5

The Parties agree that all pre-trial dates should be vacated, to be re-set based on the

6

outcome of Judge Delaney’s resolution of the discovery dispute set forth herein.

7

However, below are the respective dates that the Parties propose should each of them

8

prevail on the dispute.
a. Defendant’s Proposed Schedule

9
10



Deadline to complete fact discovery—July 31, 2020;

11



Expert Disclosure Deadline—August 28, 2020;

12



Supplemental Expert Disclosure Deadline—September 25, 2020;

13



Completion of Expert Discovery—October 23, 2020;

14



Deadline for filing dispositive motions—November 27, 2020.

b. Plaintiff’s Proposed Schedule

15

Plaintiffs are in agreement with Defendant's proposed schedule above.

16
17

NOW THEREFORE, the Parties stipulate as follows:

18



19

The Parties shall submit their dispute concerning discovery set forth in the above
stipulation to Judge Delaney pursuant to Civil Local Rule 251;

20


21

Defendant shall send to Plaintiffs its portion of the Joint Statement re Discovery
Disagreement pursuant to Civil Local Rule 251(c), by March 15, 2019;

22


23

Plaintiffs shall provide Defendant with their portion of such joint statement by
March 29, 2019;

24


25

By April 3, 2019, Defendant shall file a motion in relation to the matters set forth in

26

such joint statement, for hearing pursuant to Judge Delaney’s published procedures

27

for same on the earliest then-available date.

28

///
7
JOINT REPORT AND STIP. RE CLASS DISCOVERY; AND ORDER
FPDOCS 35038866.1

1



All current deadlines not referenced herein should be vacated, to be re-set at a case

2

management conference following Judge Delaney’s ruling on the Parties’ dispute

3

referenced herein. The Parties should submit a joint report re pre-trial schedule

4

within fourteen (14) days of Judge Delaney’s ruling, to include dates for fact and

5

expert discovery cutoff, motion cutoffs, and trial;

6
7
8

Dated: February 25, 2019

FISHER & PHILLIPS LLP

9
By: /s/ Erin J. Price
JOHN K. SKOUSEN
CHRISTOPHER M. AHEARN
JOHN T. LAI
ERIN J. PRICE

10
11
12
13

Attorneys for Defendant
BALL METAL BEVERAGE CONTAINER
CORP.

14
15
16

Dated: February 25, 2019

17

EASON & TAMBORNINI, ALC

By: /s/ Erin M. Scharg (as authorized on 2/25/19)
MATTHEW R. EASON
ERIN M. SCHARG

18
19

Attorneys for Plaintiffs

20

ROBERT WESTFALL, DAVID E.
ANDERSON, LYNN BOBBY, and DAVID
ELLINGER

21
22
23
24
25
26
27
28

8
JOINT REPORT AND STIP. RE CLASS DISCOVERY; AND ORDER
FPDOCS 35038866.1

ORDER

1

Pursuant to the foregoing stipulation and joint report, and good cause appearing therefor,

2
3

IT IS ORDERED that:

4



The Parties shall submit the discovery dispute1 referenced in the above stipulation,

5

for resolution by Magistrate Judge Carolyn K. Delaney pursuant to Civil Local

6

Rule 251;

7



All current pre-trial deadlines are vacated; and

8



Within fourteen (14) days of Judge Delaney’s ruling on the Parties’ discovery
dispute, the Parties shall submit a joint report re pre-trial schedule, to include

9

dates for fact and expert discovery cutoff, motion cutoffs, and trial.

10
11

DATED: February 28, 2019.

12
13

UNITED STATES DISTRICT JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

The court accepts the stipulation without deciding the question of whether the parties’ dispute
regarding the method and percentage of sampling qualifies as a “discovery dispute,” and noting
the parties’ ability to seek reconsideration in this court of any decision by the magistrate judge.
1
ORDER RE JOINT STIPULATION REGARDING CLASS DISCOVERY AND TRIAL
PLAN – 2:16-cv-02632-KJM-GGH
FPDOCS 35038866.1