Vallabhapurapu et al v. Burger King Corporation

Filing 137

ORDER DENYING STAY AND GRANTING ENLARGEMENT OF TIME by Hon. William Alsup denying 135 Motion to Stay; granting in part and denying in part 135 Motion for Extension of Time to File.(whalc2, COURT STAFF) (Filed on 10/26/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MOHAN VALLABHARPURAPU, et al.,

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For the Northern District of California

United States District Court

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No. C 11-00667 WHA

Plaintiffs,
v.

ORDER DENYING STAY
AND GRANTING
ENLARGEMENT OF TIME

BURGER KING CORPORATION,
Defendant.
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Defendant Burger King Corporation moves for an emergency stay, or alternatively,

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enlargement of time, pursuant to Local Rule 6-3, of Magistrate Judge Corley’s discovery order

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dated October 14, 2011, as amended on October 21 (Dkt. Nos. 129, 134).

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The order dated October 14, required BKC to produce redacted architectural surveys

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performed of the BKLs by October 21 (Dkt. No. 129). Magistrate Judge Corley concluded that

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the surveys at issue contained information relevant to plaintiffs’ claims and were entitled to work-

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product protection. She then found that plaintiffs made a sufficient showing under Rule

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26(b)(3)(A) of a “substantial need for the materials to prepare [their] case and [could not], without

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undue hardship, obtain their substantial equivalent by other means.” Indeed, she explained, the

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only way plaintiffs could have obtained their own surveys of the restaurants at issue before BKC

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altered the premises would have been to survey more than 600 restaurants to obtain information

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regarding what turned out to be approximately 90 leased restaurants. This would have cost at

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least $630,000 and taken at least two and a half years to complete. Thus Magistrate Judge Corley

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concluded, it would have been unreasonable to require this of plaintiffs, and therefore, the “only
present source of information regarding the state of the restaurants prior to the remediation efforts

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is the BKC surveys.” Accordingly, the order held that plaintiffs are entitled to the “information

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sought — measurements and photographs — [which] is not itself protected work product.” BKC

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was ordered to produce redacted surveys, removing “any opinions, impressions, and strategies”

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(Dkt. No. 129 at 9–10).

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On October 19, BKC moved to stay, or alternatively, enlarge time to comply with the

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discovery order (Dkt. No. 131). BKC sought a seven-day enlargement of time, so that it would

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not be ordered to comply with the discovery order prior to the 14 days provided under Rule 72 to

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submit objections. BKC argued that the order required it to produce documents protected by

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attorney-client privilege and work-product doctrine and that BKC would be irreparably and
irreversibly harmed if it were required to disclose the allegedly protected material pending review

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For the Northern District of California

United States District Court

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of the discovery order. The motion to stay was denied, but BKC was granted an extension of time

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to comply with the discovery order to October 24.

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In denying the motion, Magistrate Judge Corley concluded that BKC was unlikely to be

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able to demonstrate success on the merits of its arguments because it had unsuccessfully litigated

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this very issue regarding production of architectural surveys in Castaneda v. Burger King Corp.,

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259 F.R.D. 194 (N.D. Cal. 2009). On the other hand, she noted that plaintiffs would suffer

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irreparable harm if they did not obtain this discovery in advance of the November 17, deadline to

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file a motion for class certification, given that the discovery was relevant to the class allegations.

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Less than two hours before the October 24, deadline to comply with the discovery order,

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BKC moved the district judge for a stay pending its resolution of BKC’s yet-to-be-filed Rule 72

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motion for relief from Magistrate Judge Corley’s discovery order, or in the alternative,

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enlargement of time to comply with the discovery order.

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BKC contends that the disclosure required by the discovery order is contrary to this

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Court’s decision in Castaneda, wherein disclosure of surveys was required only as to the ten

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restaurants that corresponded to the ten certified classes and only seventy days before trial. But

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the Castaneda discovery issue arose post-class certification, not pre-certification, as it does here.

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This action involves 27 plaintiffs who allege discrimination at 67 BKL restaurants. Plaintiffs

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allege a class action covering the 86 BKL restaurants not addressed in Castaneda and 67
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subclasses addressing the BKLs visited by the named plaintiffs. Plaintiffs are entitled to pre-class

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certification of relevant information, such as the architectural surveys.

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BKC has been required to disclose the least protectable information possible, merely facts,

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which do not include opinions, impressions, or strategy. Thus, a stay is not warranted. The

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motion for a stay is DENIED.

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The deadline to comply with the discovery order has passed. The deadline to comply will
be extended to OCTOBER 28, 2011.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: October 26, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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