Vallabhapurapu et al v. Burger King Corporation

Filing 129

ORDER RE: PLAINTIFFS MOTION TO COMPEL DISCOVERY RESPONSES (Dkt. No. 61). Signed by Magistrate Judge Jacqueline Scott Corley on 10/13/2011. (ahm, COURT STAFF) (Filed on 10/14/2011)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 10 MOHAN VALLABHARPURAPU, et al., 11 Northern District of California United States District Court 12 Plaintiffs, 13 Case No.: 11-cv-667 WHA (JSC) ORDER RE: PLAINTIFFS’ MOTION TO COMPEL DISCOVERY RESPONSES (Dkt. No. 61) vs. 14 15 BURGER KING CORPORATION, 16 17 Defendant. 18 19 20 21 22 23 24 25 26 Now pending before the Court are Plaintiffs‘ Motion to Compel Discovery Responses (Dkt. No. 61) and Defendant‘s opposed Motion for Leave to File a Surreply (Dkt. No. 123). Having considered the parties‘ written submissions, and having had the benefit of oral argument on September 15, 2011, the Court GRANTS Defendant‘s Motion for Leave to File a Surreply and GRANTS Plaintiffs‘ Motion to Compel. FACTUAL & PROCEDURAL BACKGROUND This putative class action was filed by 27 individuals who use wheelchairs or scooters for mobility. Plaintiffs allege they have encountered access barriers at 86 Burger King 27 restaurants (―BKLs‖) in California which are leased by the Burger King Corporation 28 (―BKC‖) and were not part of the settlement reached in a prior class action against BKC, 1 Castaneda v. Burger King Corp., No. 08-04262 WHA (N.D. Cal.). Plaintiffs bring suit on 2 behalf of a putative class consisting of ―all individuals who use wheelchairs or electronic 3 scooters for mobility who, . . . on the basis of disability, were denied the full and equal 4 enjoyment of the goods, services, facilities, privileges, advantages, or accommodations in 5 any Remaining BKL because of noncompliance with Disability Access Requirements 6 pertaining to width of accessible parking spaces and access aisles, excessive door force, lack 7 of or obstructed accessible routes, and/or customer self-service dispensers.‖ (Dkt. No. 1 ¶ 5). 8 Plaintiffs also intend to seek certification of 67 subclasses based on the 67 BKLs the named 9 Plaintiffs personally visited. The complaint makes claims under Title III of the Americans 10 with Disabilities Act (―ADA‖), the Unruh Civil Rights Act, California Civil Code § 51, and 11 the California Disabled Persons Act, California Civil Code § 54. The pending motions arise from Plaintiffs request for production of architectural Northern District of California United States District Court 12 13 surveys performed of the BKLs in 2008 and information relating to those surveys and any 14 access barriers removed as a result. See Plaintiffs‘ First Request for the Production of 15 Documents, Nos. 1 and 7 and First Set of Interrogatories, Nos. 17 and 22. Plaintiffs sought 16 discovery of these same surveys in the Castaneda action. The magistrate judge found that 17 the surveys were protected work product, but held that the plaintiffs had demonstrated 18 substantial need for the factual information in the surveys and thus were entitled to the 19 surveys redacted to exclude legal theories or strategies. See Castaneda v. Burger King 20 Corp., 259 F.R.D.194, 199 (N.D. Cal. 2009). The district court denied BKC‘s objections to 21 the magistrate judge‘s order. (Castaneda Dkt. No. 222). Following certification of ten 22 subclasses based on the ten restaurants the named plaintiffs visited, the district court ordered 23 BKC to produce the surveys for the ten certified restaurants 70 days before trial. (Castaneda 24 Dkt. Nos. 238, 253). Because Castaneda settled prior to trial, the surveys were never 25 produced. 26 // 27 // 28 // 2 1 LEGAL STANDARD 2 Under the Federal Rules of Civil Procedure, a party ―may obtain discovery regarding 3 any nonprivileged matter that is relevant to any party‘s claim or defense.‖ See Fed. R. Civ. 4 P. 26(b)(1). In a putative class action such as this, ―often the pleadings alone will not resolve 5 the question of class certification and some discovery will be warranted.‖ Vinole v. 6 Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009). Pre-certification 7 discovery lies within the ―sound discretion of the trial court.‖ Kamm v. Cal. City Dev. Co., 8 509 F.2d 205, 209 (9th Cir. 1975). Because the propriety of a class action often cannot be 9 determined without discovery ―the better and more advisable practice for a District Court to action was maintainable.‖ Vinole, 571 F.3d at 942 (internal quotation marks and citation 12 Northern District of California follow is to afford the litigants an opportunity to present evidence as to whether a class 11 United States District Court 10 omitted). However, the burden remains on the discovery-propounding plaintiff to make ―a 13 prima facie showing that the class action requirements of Fed. R. Civ. P. 23 are satisfied or 14 that discovery is likely to produce substantiation of the class allegations.‖ Mantolete v. 15 Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985). 16 The attorney work-product doctrine protects materials prepared in anticipation of 17 litigation that reflect an attorney‘s strategy, intended lines of proof, impressions, and 18 inferences drawn from interviews. See Fed. R. Civ. Pro. 26(b)(3); Hickman v. Taylor, 329 19 U.S. 495, 511 (1947). Materials otherwise protected by the work-product doctrine may be 20 discoverable if 1) ―they are otherwise discoverable under Rule 26(b)(1); and 2) the party 21 shows that it has substantial need for the materials to prepare its case and cannot, without 22 undue hardship, obtain their substantial equivalent by other means.‖ Fed. R. Civ. P. 23 26(b)(3)(A). Although the work-product doctrine protects documents, it does not protect 24 factual information within the documents. ―One party may discover relevant facts known or 25 available to the other party, even though such facts are contained in a document which is not 26 itself discoverable.‖ Fed. R. Civ. P. 26(b)(3) Advisory Comm. Note, 48 F.R.D. 487, 501 27 (1970). ―The work-product doctrine applies to litigation other than that anticipated if the 28 3 1 litigation is sufficiently related.‖ In re PolyMedica Corp. Securities Litigation, 235 F.R.D. 2 28, 32 (D. Mass. 2006) (internal citation omitted). 3 DISCUSSION 4 As is discussed more fully below, in Castaneda BKC was ordered to produce the 5 surveys to the plaintiffs. Here, Plaintiffs seek production of the surveys for the 86 BKL 6 restaurants not covered by the Castaneda settlement. The inquiry into Plaintiffs‘ request is 7 two-fold. First, is the discovery relevant? Second, are the surveys discoverable work 8 product? A. Relevance 9 10 1. Oliver v. Ralph’s Grocery Co. 11 In reliance on the Ninth Circuit‘s recent decision in Oliver v. Ralphs Grocery Co., Northern District of California United States District Court 12 2011 WL 3607014 (9th Cir. Aug. 17, 2011), Defendant argues that Plaintiffs are only 13 entitled to challenge barriers that they specifically identified in the Complaint. Thus, 14 Defendant contends, Plaintiffs should not be permitted to use the surveys to identify 15 additional barriers and seek redress regarding those barriers; instead, Plaintiffs‘ claims 16 should be limited to the access barriers pled in the complaint with respect to the 67 17 restaurants visited by the named Plaintiffs. Plaintiffs respond that Oliver is inconsistent with 18 prior Ninth Circuit precedent including Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 19 F.3d 832, 841-42 (9th Cir. 2007), and Chapman v. Pier 1 Imports (U.S.) Inc.,631 F.3d 939 20 (9th Cir. 2011), and that, in any event, they have properly pled the access barriers. The Court finds it unnecessary to reach this issue because it is not relevant to the 21 22 question of whether the discovery at issue here is appropriate.1 It is well established that a 23 party may obtain discovery regarding any nonprivileged matter relevant to any claim or 24 defense. See Fed. R. Civ. P. 26(b)(1). ―Consistently with the notice-pleading system 25 26 27 28 1 The Court notes, however, that Oliver is distinguishable as an individual action, as opposed to the putative class action pled here. See Moeller v. Taco Bell Corp., No. 02–5849, 2011 WL 4634250, at *18 (N.D. Cal. Oct. 5, 2011) (concluding that ―[t]o apply the reasoning in Oliver to a class action would arguably vitiate Federal Rule of Civil Procedure 23‖). 4 1 established by the Rules, discovery is not limited to issues raised by the pleadings, for 2 discovery itself is designed to help define and clarify the issues.‖ Oppenheimer Fund, Inc. v. 3 Sanders, 437 U.S. 340, 351(1978)(internal citations omitted). Plaintiffs are entitled to 4 discovery regarding their claims generally, not just the specific factual claims pled in their 5 Complaint. Moreover, ―[r]elevant information need not be admissible at the trial if the 6 discovery appears reasonably calculated to lead to the discovery of admissible evidence.‖ 7 Fed.R.Civ.P. 26(b). It is undisputed that the surveys contain information that is relevant to 8 Plaintiffs‘ claims. The questions of whether that information will be admissible at trial or 9 whether the district court will at some later date grant Defendant‘s as yet unfiled motion for 10 summary judgment, are different issues which the Court need not reach at this time. Northern District of California 2. Relevance to class certification 12 United States District Court 11 The next question is whether the discovery is relevant to class certification. Although 13 pre-certification discovery is discretionary, courts generally permit such discovery if it would 14 substantiate the class allegations or if plaintiff makes a prima facie showing that the 15 requirements of Rule 23 are satisfied. See Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th 16 Cir. 1985 17 The Court finds that Plaintiffs have met their burden of establishing entitlement to 18 pre-certification discovery of the surveys. To the extent the surveys at issue identify 19 common access barriers in the BKLs, that information could support a finding of 20 commonality for class certification purposes. Indeed, the court in Castaneda found that 21 plaintiffs had not established commonality with respect to the class as a whole because they 22 had not ―shown either a common core of salient facts-that Burger King Corporation created 23 common barriers to access across multiple restaurant locations-or a shared legal issue- 24 whether there were violations of the ADA or California statutes at each location.‖ Castaneda 25 v. Burger King Corp., 264 F.R.D. 557, 567 (N.D. Cal. 2009). The survey information could 26 substantiate Plaintiffs‘ claim that there are shared legal issues among the class members with 27 respect to all or some of the restaurants. That the Castaneda plaintiffs obtained certification 28 with respect to some restaurants without the surveys does not mean the surveys are 5 1 irrelevant. Defendant has not stipulated to certification and, as explained above, the surveys 2 are directly relevant to whether the putative class faced common barriers or present common 3 legal questions. 4 Further, given the similarity of the issues and the parties in this action to Castaneda, 5 Plaintiffs have made out a prima facie case for certification at least as to the 67 BKLs visited 6 by the named Plaintiffs. See Kress v. Price Waterhouse Coopers, No. 08-0965, 2011 WL 7 3501003, at *3 (E.D. Cal. Aug. 9, 2011) (finding that ―because the district court found 8 sufficient reasons to certify the class in [a prior case], there exists in all probability at the 9 very least, a prima facie case for class certification in this related case‖ and allowing pre- 10 certification discovery). Again, there is no dispute that the survey information is relevant to 11 the merits of this case. Northern District of California United States District Court 12 13 B. Issue Preclusion As a preliminary matter, the Court must decide whether BKC is collaterally stopped 14 from relitigating the issue of whether the surveys are protected work product and whether 15 Plaintiffs have demonstrated substantial need sufficient to overcome the work product 16 protection. ―The doctrine of issue preclusion prevents relitigation of all ‗issues of fact or law 17 that were actually litigated and necessarily decided‘ in a prior proceeding.‖ Robi v. Five 18 Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988)(internal citations omitted). Plaintiffs 19 contend that the magistrate judge‘s order in Castaneda and the subsequent district court 20 denying BKC‘s objections and denying a stay pending appeal of those orders conclusively 21 determined the issues regarding the surveys. 22 23 24 25 A finding of offensive nonmutual issue preclusion is appropriate where: (1) there was a full and fair opportunity to litigate the identical issue in the prior action;(2) the issue was actually litigated in the prior action; (3) the issue was decided in a final judgment; and (4) the party against whom issue preclusion is asserted was a party or in privity with a party to the prior action. 26 Syverson v. International Business Machines Corp., 472 F.3d 1072, 1078 (9th Cir. 27 2007)(internal citations omitted). Although the Castaneda court decided the same issues 28 6 1 before this Court with respect to the surveys, the case ended in settlement rather than via a 2 final judgment with the right to appeal. This is a crucial distinction. 3 Issue preclusion is generally not applied to cases without a final judgment. In Inouye 4 v. Kemna, 504 F.3d 705, 708 (9th Cir. 2007), for example, the Ninth Circuit noted about a 5 case that was dismissed following settlement, ―[b]ecause there was no final judgment on the 6 merits in the case, [a prior decision regarding qualified immunity] has no issue preclusion 7 effects here.‖ Further, courts generally do not apply issue preclusion to nonappealable 8 decisions. See, e.g., Dixon v. Wallowa County, 336 F.3d 1013, 1020 (9th Cir. 2003) 9 (internal citations omitted). Accordingly, the Court concludes that issue preclusion does not 10 apply to the Castaneda findings because the issues were not decided in the context of a final 11 judgment with the concomitant right to appeal. Northern District of California United States District Court 12 13 C. The Work Product Doctrine and Substantial Need Federal Rule of Civil Procedure 26(b)(3) codifies the work product doctrine and 14 shields from discovery documents and tangible things prepared by a party or its 15 representative in anticipation of litigation. See In re Grand Jury Subpoena (Torf ), 357 F.3d 16 900, 906 (9th Cir. 2004). The surveys at issue here were prepared by BKC in anticipation of 17 litigation by Plaintiffs; they are thus entitled to work-product protection. 18 Plaintiffs can overcome the work product protection if they can show they have a 19 ―substantial need for the materials to prepare [their] case and cannot, without undue 20 hardship, obtain their substantial equivalent by other means.‖ Fed.R.Civ.P. 26(b)(3)(A). 21 Defendant contends that Plaintiffs cannot show a substantial need because they could have 22 conducted their own surveys. The Court disagrees and finds that Plaintiffs have met their 23 burden. 24 Based on access barrier complaints from dozens of Burger King customers who use 25 wheelchairs and scooters for mobility, and on surveys of 31 of the over 600 Burger King 26 restaurants in California, plaintiffs sent a demand letter to BKC in January 2008. Plaintiffs 27 filed Castaneda in September 2008. In the meantime, and again after the lawsuit was filed, 28 Plaintiffs asked BKC to identify which restaurants were leased by or to BKC, but BKC 7 1 refused, with the exception of five restaurants. BKC finally identified the leased restaurants 2 in December 2008, and then only in response to a discovery request. BKC did offer to 3 identify whether any particular restaurant visited by the named plaintiffs was leased if 4 plaintiffs would give BKC the name and address of the restaurant, but it otherwise refused to 5 provide plaintiffs with the requested information. In addition, and just prior to filing suit, 6 plaintiffs asked BKC to document the conditions of its restaurants before it made any 7 changes or, at a minimum, to give plaintiffs notice before such changes were made. In April 8 2009, plaintiffs learned for the first time that BKC had made alterations at the leased 9 restaurants without giving plaintiffs prior notice so that they could conduct their own surveys 10 11 before changes were made. Thus, the only way Plaintiffs could have obtained their own surveys of the restaurants Northern District of California United States District Court 12 at issue before BKC altered the premises was to have surveyed each of the over 600 13 restaurants to obtain relevant information regarding what turned out to be approximately 90 14 leased restaurants. Plaintiffs estimated that conducting these 600 surveys would have cost 15 between $630,000 and $825,000 and taken two to two and a half years to complete and thus 16 they decided not to do so. Ultimately, only five of the 31 surveys Plaintiffs performed were 17 of leased BKLs. In these circumstances, it would be unreasonable to conclude that Plaintiffs 18 should have surveyed all of the over 600 restaurants themselves. BKC could have shared the 19 leasing information with Plaintiffs--and thus allowed Plaintiffs to conduct their own surveys 20 without wasting thousands of dollars and hours on unnecessary surveys--without waiving 21 their apparent argument that Plaintiffs lack standing to challenge any restaurant they did not 22 personally visit. To hold otherwise would merely encourage defendants in such cases to 23 secretly ―race to the contractor‖ to reduce the possibility that a plaintiff will be able to prove 24 her case. 25 Moreover, Plaintiffs also attempted to obtain information regarding the condition of 26 the restaurants from sources other than BKC‘s surveys. Plaintiffs reviewed store specific 27 documents at BKC headquarters, but did not find any information relevant to the physical 28 condition of the restaurants prior to the remediation. Plaintiffs also reviewed 5,595 pages of 8 1 documents from the relevant permitting agencies. Only one of these documents obtained the 2 type of information sought. Finally, Plaintiffs served third-party subpoenas on the individual 3 franchisees and took depositions of franchisee owners, but neither provided relevant 4 information.2 Thus, the only present source of information regarding the state of the 5 restaurants prior to the remediation efforts is the BKC surveys. Defendant‘s reliance on Martin v. Bally‘s Park Place Hotel & Casino, 983 F.2d 1252, 6 7 1263 (3rd Cir. 1993) is misplaced. The Bally court found that OSHA had not demonstrated 8 undue hardship sufficient to overcome the claim of work product where ―OSHA had the 9 technical capability to conduct the tests, where the resources necessary to conduct the tests consistent refusal to share the tests [OSHA] never explored the option of conducting its own 12 Northern District of California were not shown to have been prohibitive, and where in the face of [the defendant‘s] 11 United States District Court 10 tests.‖ Id. Here, as discussed above, Plaintiffs were faced with the prospect of surveying 13 over 600 restaurants at a cost of over half a million dollars – conducting the surveys under 14 these circumstances would have been resource prohibitive. Further, they asked BKC to 15 identify the leased restaurants so that Plaintiffs could conduct their own surveys. Plaintiffs 16 have thus met their burden of demonstrating that they could not obtain the substantial 17 equivalent of the survey information without undue hardship. 18 Equal Rights Ctr. v. Post Props., Inc., 247 F.R.D. 208, 211 (D. D.C. 2008), is 19 similarly inapposite. There the plaintiffs sought production of disability access compliance 20 reviews, but the court found they had not established substantial need because the plaintiffs 21 had not made independent efforts to obtain the information including reviewing ―any 22 development and construction files or site plans and maps that have been offered at Post‘s 23 office since October 17, 2007 [or noticing] any depositions of Post employees that may have 24 knowledge of the changes Post has and has not made at its properties.‖ Id. at 212. Here, in 25 contrast, Plaintiffs did attempt to obtain the information via reviewing documents from the 26 local permitting agencies, noticing a Rule 30(b)(6) deposition regarding compliance efforts 27 2 28 A few of the franchisees actually turned over the surveys at issue in response to the thirdparty subpoena, but BKC subsequently requested that they be returned or sequestered. 9 1 and deposing various franchisee owners. However, none of these efforts produced the 2 information sought. 3 In sum, despite Plaintiffs‘ good faith efforts to obtain the data themselves, the BKC 4 surveys are the only source of information regarding the condition of the BKLs prior to 5 remediation. Plaintiffs have demonstrated a substantial need for the surveys and that they 6 cannot obtain the information within the surveys from any other source. Plaintiffs are thus 7 entitled to the factual information in the surveys. This result is especially warranted given 8 that the information sought—measurements and photographs—is not itself protected work 9 product. Accordingly, Defendants shall produce the surveys redacted to remove any 10 opinions, impressions, or strategies. This is the same production that was required in 11 Castaneda. CONCLUSION Northern District of California United States District Court 12 13 Based on the foregoing, Plaintiffs have demonstrated substantial need for the 14 discovery at issue in Plaintiffs‘ First Request for the Production of Documents, Nos. 1 and 7. 15 The Court finds that it would be overly burdensome and cumulative for Defendant to also 16 provide this information in response to Plaintiffs‘ First Set of Interrogatories, Nos. 17 and 17 22. Accordingly, Plaintiffs‘ Motion to Compel (Dkt. No. 61) is GRANTED in part. 18 Defendant‘s Motion for Leave to File a Surreply (Dkt. No. 123) is also GRANTED. 19 Defendant shall provide Plaintiffs with the responsive documents redacted to remove any 20 opinions, impressions or strategies within 7 days after the filing date of this Order. 21 22 23 24 IT IS SO ORDERED. Dated: October___, 2011 14 _________________________________ JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE 25 26 27 28 10

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