Barnes et al v. The Hershey Company

Filing 118

ORDER RESOLVING DISCOVERY DISPUTES Re: Dkt. Nos. 113 , 114 . Parties are to jointly report by March 5, 2014, on the status of this discovery, setting forth in their report any disputed issues. Signed by Judge Nathanael M. Cousins on 2/7/2014. (nclc2, COURT STAFF) (Filed on 2/7/2014)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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GREGORY P. BARNES, DAVID C. BOLLE,
MARY D. WASSON, and JERRY M.
CHAPMAN, on their own behalf and on behalf
of others similarly situated,

ORDER RESOLVING
DISCOVERY DISPUTES

Plaintiffs,

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Re: Dkt. Nos. 113, 114

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Case No. 12-cv-01334 CRB (NC)

v.
THE HERSHEY COMPANY,

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Defendant.

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In this conditionally certified collective action asserting age discrimination under

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the Age Discrimination in Employment Act (ADEA), the parties disagree about the scope

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of discovery in the current phase of the case. On October 11, 2013, District Court Judge

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Charles R. Breyer bifurcated discovery and permitted discovery to proceed only “as to the

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issue of waiver.” Dkt. No. 105. The “waivers” asserted by Hershey are contained in

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documents explicitly releasing any ADEA claims against Hershey. Hershey contends that

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seven of the nine plaintiffs signed the releases when they were terminated from Hershey.

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Dkt. No. 113 at 3.

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Now the parties present two related disputes challenging the proper boundaries of

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discovery on the topic of waiver. In the first dispute, the parties disagree about the scope

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of depositions under Federal Rule of Civil Procedure 30(b)(6). Dkt. No. 113. Hershey

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proposes that the depositions should be limited to the terminations of the seven plaintiffs

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who signed releases. Plaintiffs, on the other hand, seek to depose persons with

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knowledge of the employment separations of approximately thirty Customer Sales
Case No. 12-cv-01334 CRB (NC)
DISCOVERY ORDER

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Executives (CSE) and Category Development Managers (CDM), which includes 23 CSEs

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and CDMs who did not return opt-in forms to participate in this collective action.

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The second dispute concerns documents demanded by plaintiffs. Dkt. No. 114.

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Plaintiffs demand documents regarding the employment separation of all CSEs and

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CDMs above age 40 during the period 2009 to present. Hershey asserts that there is no

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probative value to the separation of the 23 individuals who did not opt into this case.

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Furthermore, Hershey contends that it has already provided sufficient documentation as to

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the termination of the named plaintiffs.

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Judge Breyer has referred all discovery in this case to the undersigned magistrate

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judge. Dkt. No. 58. The parties appeared for a hearing on the disputes on February 5,

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2014. Based on the parties’ submissions and the representations made by counsel at the

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hearing, the Court orders as follows:

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The key question presented is what is the relevance of the terminations of the 23

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CSEs and CDMs who did not opt in? Would the terminations of these 23 CSEs and

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CDMs tend to prove or disprove the existence of a group termination program for the

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named plaintiffs? The Court is not persuaded that discovery of the terminations beyond

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the named plaintiffs is necessary or useful during this phase of the discovery. Even

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assuming that there would be probative value of the additional CSEs and CDMs, the most

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useful discovery will be as to the named plaintiffs. The usefulness of the discovery

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sought as to all CSEs and CDMs is outweighed by the burden of producing it.

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A second question presented is whether there should be additional document and

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deposition discovery as to the employment separations of the named plaintiffs. On this

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issue, the parties have agreed that the answer is “yes,” and they are amid a meet-and-

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confer process to clarify document custodians, date ranges, and search terms.

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The Court therefore DENIES plaintiffs’ requests to compel Hershey’s production

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of documents and depositions as to the CSEs and CDMs beyond the named plaintiffs. As

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to the discovery concerning the named plaintiffs, the parties are to jointly report by March

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5, 2014, on the status of this discovery, setting forth in their report any disputed issues.
Case No. 12-cv-01334 CRB (NC)
DISCOVERY ORDER

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Any party may object to this nondispositive pretrial order within 14 days of the
filing date of this order. Fed. R. Civ. P. 72(a); N.D. Civ. L.R. 72-2.

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IT IS SO ORDERED.
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Date: February 7, 2014
___________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 12-cv-01334 CRB (NC)
DISCOVERY ORDER

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