McConnell v. Red Robin International, Inc.
Filing
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ORDER GRANTING IN PART DEFENDANT'S MOTION TO DISQUALIFY PLAINTIFF MCCONNELL AND MOTION FOR SANCTIONS by Judge William Alsup [granting in part and denying in part 51 Motion]. (whasec, COURT STAFF) (Filed on 5/11/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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BRITTNEY CALVERT and KEVIN
MCCONNELL, on behalf of themselves, and all
others similarly situated, and the general public,
Plaintiffs,
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No. C 11-03026 WHA
v.
ORDER GRANTING IN PART
DEFENDANT’S MOTION
TO DISQUALIFY PLAINTIFF
MCCONNELL AND MOTION
FOR SANCTIONS
RED ROBIN INTERNATIONAL, INC., a
Colorado Corporation,
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Defendant.
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/
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INTRODUCTION
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In this putative class action, defendant moves to disqualify plaintiff Kevin McConnell
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as class representative and moves for sanctions against plaintiff and his counsel pursuant to
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Rule 37. For the following reasons, the motions are GRANTED IN PART.
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STATEMENT
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Plaintiffs are Kevin McConnell and recently-added Brittney Calvert, California residents,
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who wish to represent all others similarly situated. Defendant is Red Robin International, Inc.,
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a Colorado corporation, doing business in California as Red Robin Burger and Spirits
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Emporium. Plaintiffs are seeking to represent all non-exempt hourly employees of Red Robin
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who worked as servers in California from June 17, 2007, to June 20, 2011. Plaintiffs have, on
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behalf of themselves and the putative class, asserted the following claims against defendant:
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(1) failure to provide meal and rest periods; (2) failure to compensate employees for all hours
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worked; (3) failure to furnish wage-and-hour statements; (4) failure to maintain employee time
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records; (5) unfair competition; (6) waiting time penalties; and (7) statutory penalties.
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The instant action was filed in June 2011. McConnell, then the only plaintiff, failed to
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submit his initial disclosures as required by Rule 26. A case management order issued directing
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the parties to submit their initial disclosures under pain of preclusion by October 7, 2011 (Dkt.
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No. 20). Plaintiff again failed to submit his initial disclosures. In December 2011, while still
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having not submitted his initial disclosures, plaintiff served discovery requests on defendant and
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requested disclosure of the contact information for all potential class members. Defendant made
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several objections and allegedly failed to comply with the requests. On January 20, 2012,
while still having not provided plaintiff with the requested class-wide discovery, and only after
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For the Northern District of California
United States District Court
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defendant made a request through a meet-and-confer letter, and after defendant made its request
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for production of documents, defendant received plaintiff’s initial disclosures (Dacre Decl.
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Exh. 2; Opp. 4).
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On February 16, 2012, plaintiff moved to compel class-wide discovery (Dkt. No. 25).
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On February 21, 2012, plaintiff McConnell was deposed. During that deposition, information
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came to light that plaintiff had contacted putative class members, several of whom were
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identified by name (Dacre Decl. Exh. 4 at 8–12, 25–26, 152–53). In light of plaintiff
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McConnell’s deposition testimony and as the result of subsequent conversations with one of
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those identified putative class members — Taylar Oertwig — defendant objected to plaintiff’s
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request for class-wide discovery. Defendant contended that plaintiff McConnell had been
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suborning perjury. In response to defendant’s objection, the Court ordered an evidentiary
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hearing held on March 7, 2012 (Dkt. No. 32). Plaintiff McConnell and Ms. Oertwig were
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ordered to appear at the hearing and testify. Plaintiff McConnell was ordered to “bring all
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materials, electronic or otherwise, including e-mails, Facebook messages, and any other
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communications he has had with putative class members in this action” (ibid.).
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Notwithstanding that it was clear that there had been communications between
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Ms. Oertwig and plaintiff McConnell, he failed to bring them to the hearing as ordered. This led
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to a question of what else he had omitted. As a result, plaintiff was ordered while present at the
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March 7 hearing to file a declaration and append “absolutely every scrap of paper . . . ordered
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to be produced . . . [and the] whole universe should be attached [a]nd . . . should s[tate], to the
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best of [his] knowledge and ability” that a thorough search was done and everything is attached,
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and included in the declaration should be any communications between plaintiff and the putative
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class, including Ms. Oertwig (Dkt. No. 56 at 38–39).
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These events led the undersigned to have serious doubts about plaintiff McConnell’s
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ability to act as class representative. It was suggested then that plaintiff’s counsel seek leave
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to file a motion to amend to add a new proposed class representative, which was subsequently
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granted, thus adding Brittney Calvert as a named plaintiff. Defendant was ordered to either
file a motion to challenge the adequacy of McConnell to represent the class, or to produce the
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For the Northern District of California
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requested class-wide discovery. Defendant chose to challenge plaintiff McConnell’s adequacy.
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After the evidentiary hearing plaintiff’s counsel filed a declaration stating that as of
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March 8, 2012, plaintiff McConnell had conducted a thorough search, and appended to counsel’s
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declaration were all communications with putative class members (Dkt. No. 39). Again, absent
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from counsel’s declaration were any communications between Ms. Oertwig and plaintiff (ibid.).
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Plaintiff McConnell’s disclosure of conversations that took place between himself and putative
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class member Erica Walters were also incomplete. On March 20, after defendant had filed its
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motion to disqualify plaintiff McConnell, defendant uncovered seven additional messages
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between Ms. Walters and plaintiff, which had neither been disclosed to the Court at the March 7
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hearing nor included in the March 9 declaration (Reply Br. 1; Dkt. No. 51 Exh. 10). Some of
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these messages were dated only two days prior to the March 7 evidentiary hearing (ibid.).
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The omitted messages are important for several reasons. They show repeated
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non-compliance with basic discovery obligations both on the part of plaintiff’s counsel and
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plaintiff McConnell; they show plaintiff McConnell lacks the integrity and diligence necessary
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to act as class representative; and they show that conflicts exist between plaintiff McConnell
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and the putative class. Based on these reasons, defendant filed a supplemental motion to
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disqualify plaintiff McConnell as class representative and also seeks sanctions against plaintiff
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McConnell and plaintiff’s counsel pursuant to Rule 37. This order follows full briefing and a
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hearing.
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ANALYSIS
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Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect
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the interests of the class.” Determining whether the representative parties adequately represent
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a class involves two inquiries: (1) whether the named plaintiff and his or her counsel have any
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conflicts of interest with other class members and (2) whether the named plaintiff and his or her
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counsel will act vigorously on behalf of the class. Lerwill v. Inflight Motion Pictures, Inc.,
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582 F.2d 507, 512 (9th Cir. 1978). The Supreme Court has recognized that a class representative
“sues, not for himself alone, but as representative of a class comprising all who are similarly
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situated. The interests of all in the redress of the wrongs are taken into his hands, dependent
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upon his diligence, wisdom and integrity.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
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549 (1949) (emphasis added). “For an assault on the class representative’s credibility to
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succeed, [the defendant] must demonstrate that there exists admissible evidence so severely
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undermining plaintiff’s credibility that a fact finder might reasonably focus on plaintiff’s
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credibility, to the detriment of the absent class members’ claims.” Tierno v. Rite Aid Corp., Case
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No. 05-02520, 2006 WL 2535056, at *4 (N.D. Cal. Aug. 31, 2006) (Henderson, J.) (quotations
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and citations omitted).
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“Imposition of discovery sanctions is committed to the trial court’s discretion.”
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Marquis v. Chrysler Corp., 577 F.2d 624, 642 (9th Cir. 1978). A court’s inherent power is
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“governed not by rule or statute but by the control necessarily vested in courts to manage their
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own affairs so as to achieve the orderly and expeditious disposition of cases.” Chambers v.
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Nasco, Inc., 501 U.S. 32, 43 (1991). Rule 37 sanctions are appropriate in extreme circumstances
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where violations are due to willfulness, bad faith, or fault of the party. U.S. for Use & Benefit
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of Wiltec Guam, Inc. v. Kahaluu Const. Co., Inc., 857 F.2d 600, 603 (9th Cir. 1988). Where a
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party has “repeatedly flouted even his basic discovery obligations and violat[ed] court orders,”
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sanctions may be appropriate. Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002).
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“Disobedient conduct not shown to be outside the control of the litigant is sufficient to
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demonstrate willfulness, bad faith, or fault.” Hyde & Drath v. Baker, 24 F.3d 1162, 1167
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(9th Cir. 1994). “Belated compliance with discovery orders does not preclude the imposition of
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sanctions.” N. Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir.
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1986).
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PLAINTIFF MCCONNELL CANNOT
ADEQUATELY REPRESENT THE PUTATIVE CLASS.
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The recent events cast serious doubt upon plaintiff McConnell’s diligence, wisdom,
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and integrity. Counsel for plaintiff attempts to characterize McConnell’s actions as examples
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of “vigorous” representation. Plaintiff and his counsel, however, have repeatedly failed to
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comply with basic discovery requirements. In blatant disregard to their obligations and court
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inadequate nonetheless (Dacre Decl. Exh. 2; Opp. 4).
For the Northern District of California
United States District Court
orders, it took them almost eight months to serve their initial disclosures — which were
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In addition, plaintiff McConnell has given incomplete and inaccurate testimony
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throughout the course of this action. At a February 21 deposition, plaintiff was asked to
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identify potential class members with whom he had been in contact. Plaintiff could not
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identify all potential class members, even though he had been in contact with at least eight,
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some communications having taken place only days before his deposition (Dkt. No. 39 Exh. A).
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Through plaintiff’s deposition testimony, it was known that he had been in contact with
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Ms. Oertwig. When plaintiff was ordered to bring all of these communications to the March 7
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evidentiary hearing, he failed to do so. Plaintiff and his counsel placed the blame on each other
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for this failure (Dkt. No. 56 at 8–15). Even after the evidentiary hearing, and after the Court
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(again) ordered plaintiff McConnell to produce “absolutely every scrap of paper,” he still failed
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to produce the Oertwig conversation as well as seven other communications recently discovered
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by the other side (compare Dkt. No. 39 Exh. A with McConnell Decl. Exh. 2, Dkt. No. 29
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Exh. A). Plaintiff testified under oath that he had not deleted any messages, nor did he know
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how to (Dkt. 56 at 8–15). Portions of a conversation between putative class member Erica
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Walters that were produced by plaintiff were also incomplete (compare Dkt. No. 39 Exh. A
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with Hersher Decl. Exh. 10). Finally, plaintiff’s deposition testimony that he had not “spoken
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to [then putative class member] Brittney Calvert” since he lost his job is directly controverted
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by plaintiff’s own exhibit (Dkt. No. 44 Exh. 4 at 152–53; Dkt. No. 39 Exh. A at 10).
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The substance of the conversations cannot be ignored either. Plaintiff McConnell’s
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messages are inappropriate, harassing, and border on suborning perjury. For example, as part
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of plaintiff’s post March 7 hearing disclosures, plaintiff, in a message to Destiny Harris —
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a putative class member — stated: “I wanna try to get u hooked up the best I can. I cant say
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too much on this text thing but I can help you personally” [sic] (Dkt. No. 39 Exh. A at 8).
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Another putative class member claims that plaintiff promised him money (Dacre Decl. Exh. 5
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at 1). Many of plaintiff’s conversations are wholly one-sided, meaning plaintiff repeatedly
messaged putative class members absent any response (McConnell Decl. Exh. 2). In the omitted
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portions of the conversation that took place with Ms. Walters, she characterized plaintiff
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McConnell as “fuckin shady” [sic] and stated that she did not want to “help [him] out at all”
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(Hersher Decl. Exh. 10). Plaintiff also requested, in the omitted Oertwig conversations
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discovered by defendant, that regardless of her own experience, Ms. Oertwig “jus tell [plaintiff’s
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counsel] that we never got breaks and the servers rarely got a 30min meal break” [sic] and even
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if that was not true for her, that she should “jus say yea that was all true for [plaintiff]” [sic]
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(Dkt. No. 29 Exh. A). He then requested that even if she did not share any of the same
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experiences, that on his behalf, she was “just one more person to say yea there was some break
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issues” and to think of it like a “vote” that would help out the class (ibid.). Ms. Oertwig
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interpreted this request as an invitation to lie (Oertwig Decl. ¶ 4). While this order recognizes
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that these conversations are conceivably open to interpretation, what cannot be ignored is that
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all of this would be used at trial to impugn plaintiff McConnell — and rightly so — which would
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in turn tarnish the class.
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The interests of the class should not be held hostage by plaintiff McConnell’s
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questionable behavior. As class representative, it is plaintiff McConnell’s responsibility to take
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“[t]he interests of all [the class] in the redress of the wrongs [] into his hands.” In this instance,
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however, it is undeniable that the class will not be able to “depend[] upon his diligence, wisdom
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and integrity.” Cohen, 337 U.S. at 549 (emphasis added). The reality of the situation reveals the
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exact opposite. The class will only be burdened by plaintiff McConnell’s record of dishonesty
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and any jury is likely, if not guaranteed, to be distracted by issues relating to plaintiff’s
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propensity for truthfulness. Such result is impermissible. Tierno, 2006 WL 2535056, at *4.
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Furthermore, evidence supports a finding that at least one potential class member, Ms. Harris,
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harbors serious disdain for plaintiff McConnell and another, Steve DeGroot, considers him to be
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a nuisance, referring to him as “that person that u be nice to once, and will never go away” [sic]
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(Hersher Decl. Exh. 10; Dacre Decl. Exh. 5). Indeed, Mr. DeGroot’s observation is supported by
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plaintiff’s own evidence in which plaintiff McConnell messages Ms. Harris a total of ten times,
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only to receive two responses consisting of only six words in total (Dkt. No. 39 Exh. A at 7).
This order holds that Kevin McConnell does not meet the standards imposed by Rule 23
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and therefore cannot adequately represent the interests of the class. He can continue on as an
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individual plaintiff.
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2.
IMPOSITION OF SANCTIONS AGAINST
PLAINTIFF MCCONNELL IS APPROPRIATE.
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In addition to challenging plaintiff McConnell’s adequacy to proceed as class
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representative, defendant has also requested sanctions be imposed against plaintiff McConnell
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and his counsel, Michael Hoffman, in the amount of $15,985.
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In considering defendant’s motion, the above reasoning is equally persuasive to support
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a finding that plaintiff McConnell’s conduct warrants imposition of sanctions. He has repeatedly
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withheld or provided inadequate information in the face of both his requirements under Rule 26
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and the Court’s orders (Dacre Decl. Exh. 2; Opp. 4; compare Dkt. No. 39 Exh. A with
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McConnell Decl. Exh. 2, Dkt. No. 29 Exh. A; compare Dkt. No. 39 Exh. A with Hersher Decl.
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Exh. 10). Counsel concedes that he and plaintiff McConnell failed to provide their initial
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disclosures, but place the blame on defendant for failing to inform them of their failure (Opp. 4).
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Counsel asserts that “Defendant cannot and has not provided evidence of prejudice arising from
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Plaintiff’s delay in providing disclosures” (ibid.). Contrary to all the evidence, plaintiff
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McConnell and his counsel have sworn under oath that due diligence was exercised in
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submitting all communications with putative class members. In fact, counsel stated in his
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declaration that the search done prior to the March 7 hearing was conducted at his office and the
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search was reviewed by himself, yet plaintiff’s counsel never actually observed plaintiff
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McConnell’s search. Instead, counsel relied on plaintiff’s word that a thorough search was done
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(Dkt. No. 39; Dkt. No. 56 at 13–14). Given that the issue was whether documents had been
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destroyed and whether plaintiff McConnell had suborned perjury, mere reliance on the alleged
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perjurer’s word cannot be characterized as “diligent”. Counsel also provided sworn testimony
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that a subsequent search was done after the hearing (Dkt. No. 39). It has already been
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established that the documents disclosed prior to the hearing were incomplete in numerous ways.
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As identified and already discussed herein, portions of and complete conversations were
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withheld. Specifically, plaintiff and his counsel have still failed to produce the Oertwig
conversations that were discovered by defendant, and plaintiff’s conversation with Ms. Walters
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was missing material portions, including her characterization of plaintiff McConnell as “fuckin
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shady” [sic] (Hersher Decl. Exh. 10).
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Plaintiff McConnell’s and counsel’s conduct in this instance is akin to the conduct
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at issue in Combs, wherein our court of appeals upheld a district court’s decision to impose
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sanctions. In Combs, counsel “not only failed to produce documents as ordered, but also
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misrepresented to both counsel and to the district court that the documents did not exist.”
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Combs, 285 F.3d at 905. At the March 7 hearing, plaintiff McConnell stated that he had not
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deleted any messages, that everything contained in his Facebook was produced, and in response
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to defendant’s counsel’s question whether “there were no other communications with Red Robin
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employees” plaintiff answered “none” (Dkt. No. 56 at 8–15). Plaintiff’s counsel also stated
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that everything had been turned over, and that he had no answer for why certain documents in
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defendant’s possession were not included (ibid.). Yet, given all that has been discovered, it is
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evident that at least one of these assertions is untrue.
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In addition, the conversations in many circumstances bordered on harassment.
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Plaintiff McConnell has repeatedly sent messages to potential class members who have either
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not responded, or responded with a negative tone (Hersher Decl. Exh. 10; McConnell Decl.
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Exh. 2; Dkt. No. 39 Exh. A).
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The result of plaintiff McConnell’s and his counsel’s conduct is that multiple motions,
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including discovery disputes, have been filed, and defendant has had to engage in discovery in
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order to identify deficient compliance with Rule 26 and the Court’s explicit orders. This is a
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direct result of plaintiff McConnell’s misconduct, and counsel’s failure to supervise and exercise
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due diligence over his client’s actions. Neither plaintiff McConnell nor his counsel have
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offered any legitimate excuse for their actions except that plaintiff’s counsel states that
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plaintiff McConnell’s actions are better characterized as “vigorous and diligent” and that
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plaintiff’s counsel has done his best to comply with court orders (Opp. 6; Supp. Opp. 6–8).
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Plaintiff McConnell has not offered any evidence to support a finding that any of the misconduct
was outside of his control. Plaintiff’s counsel has sworn that he has taken a first-hand role in
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overseeing plaintiff McConnell’s searches (Dkt. No. 39). Plaintiff’s counsel has thus asserted
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that he has taken an active role in the prosecution of this case and in the oversight of his client,
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plaintiff McConnell. At the hearing, however, plaintiff’s counsel expressed that he was
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unfamiliar with Facebook technology, and that he had no choice but to rely on McConnell’s
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word, and had performed his duty to oversee to the best of his ability. In addition, counsel
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also stated that after defendant’s initial disqualification motion was filed he instructed an
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additional search be done, and uncovered more messages as a result of a better understanding
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of Facebook. This was due in part to the assistance of one of counsel’s associates. In light of
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these deficiencies, plaintiff’s counsel still insists that he is an attorney in good standing, that his
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firm primarily engages in cases similar to this one, and that they are capable of “managing this
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case and adequately representing the interests of the unnamed class members” (Hoffman Decl.
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¶¶ 8–9). The evidence does not support a clear conclusion on this exact issue.
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Counsel attempts to distract the Court by stating that defendant has failed to comply
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with plaintiff’s request for class-wide information. While true, that issue has been on hold for
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quite some time, and defendant was granted the choice to either comply with the request or file
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a motion to disqualify plaintiff McConnell (Dkt. No. 32). Plaintiff McConnell has wasted his
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own time, defendant’s time, and the Court’s time. More importantly, he has placed the interests
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of the class at risk. Even if subsequent compliance with his Rule 26 obligations and the Court’s
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orders were held to be adequate, which it is not, it would not prevent imposition of sanctions.
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This same argument was rejected both in Combs and Princess Ermine Jewels. See Combs,
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285 F.3d at 906; Princess Ermine Jewels, 786 F.2d at 1451.
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Thus, this order holds that plaintiff McConnell’s actions were willful, in bad faith,
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and the result of a lack of due diligence. The fault is his own. For these reasons, imposition
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of sanctions is warranted. Kahaluu Const. Co., Inc., 857 F.2d at 603. Defendant is entitled
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to sanctions against plaintiff McConnell in the amount of $15,985, which reflects the costs
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associated with investigating repeated non-compliance with discovery and defendant’s
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preparation of the instant motions (Hersher Decl. ¶ 17).
Plaintiff’s counsel’s culpability is not as clear cut as is plaintiff McConnell’s. The Court
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will not at this time rule on whether Attorney Hoffman should be sanctioned as well but instead
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will wait to see if similar lapses occur in the continuing conduct of the case.
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3.
DEFENDANT’S REQUEST TO DISQUALIFY
ATTORNEY MICHAEL HOFFMAN AS CLASS COUNSEL.
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Defendant’s initial motion was brought to challenge plaintiff McConnell’s adequacy.
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In defendant’s renewed motion, it added a motion for sanctions. In addition, defendant also
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devoted a small portion of its brief to the issue of Attorney Hoffman’s adequacy to serve as class
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counsel (Supp. Br. 9–10). Plaintiff’s counsel devotes a similarly small portion of his opposition
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to this issue (Supp. Opp. 9–11). Because the issue has not been properly raised nor fully briefed,
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this order need not rule on it at this time. If and when this issue re-surfaces, please brief the
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issue whether counsel’s dual role on behalf of any class as well as McConnell would harm the
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interests of the class by virtue of Attorney Hoffman being put in the position of having to defend
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McConnell’s conduct discussed above.
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CONCLUSION
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For the foregoing reasons, defendant’s motion to disqualify plaintiff McConnell as class
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representative is GRANTED. Defendant’s motion for sanctions against plaintiff McConnell and
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Attorney Michael Hoffman pursuant to Rule 37 is GRANTED as to plaintiff McConnell only.
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Plaintiff McConnell is ordered to pay defendant sanctions in the amount of $15,985. The Court
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recognizes that there may still be an ongoing discovery dispute. If the Court’s involvement is
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necessary in resolving the issue, please file a letter requesting a hearing.
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IT IS SO ORDERED.
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Dated: May 11, 2012.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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For the Northern District of California
United States District Court
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