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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN FRANCISCO DIVISION 6 7 8 9 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, 10 Re: Dkt. Nos. 113, 114 11 12 Case No. 12-cv-01334 CRB (NC) v. THE HERSHEY COMPANY, 13 Defendant. 14 15 In this conditionally certified collective action asserting age discrimination under 16 the Age Discrimination in Employment Act (ADEA), the parties disagree about the scope 17 of discovery in the current phase of the case. On October 11, 2013, District Court Judge 18 Charles R. Breyer bifurcated discovery and permitted discovery to proceed only “as to the 19 issue of waiver.” Dkt. No. 105. The “waivers” asserted by Hershey are contained in 20 documents explicitly releasing any ADEA claims against Hershey. Hershey contends that 21 seven of the nine plaintiffs signed the releases when they were terminated from Hershey. 22 Dkt. No. 113 at 3. 23 Now the parties present two related disputes challenging the proper boundaries of 24 discovery on the topic of waiver. In the first dispute, the parties disagree about the scope 25 of depositions under Federal Rule of Civil Procedure 30(b)(6). Dkt. No. 113. Hershey 26 proposes that the depositions should be limited to the terminations of the seven plaintiffs 27 who signed releases. Plaintiffs, on the other hand, seek to depose persons with 28 knowledge of the employment separations of approximately thirty Customer Sales Case No. 12-cv-01334 CRB (NC) DISCOVERY ORDER 1 Executives (CSE) and Category Development Managers (CDM), which includes 23 CSEs 2 and CDMs who did not return opt-in forms to participate in this collective action. 3 The second dispute concerns documents demanded by plaintiffs. Dkt. No. 114. 4 Plaintiffs demand documents regarding the employment separation of all CSEs and 5 CDMs above age 40 during the period 2009 to present. Hershey asserts that there is no 6 probative value to the separation of the 23 individuals who did not opt into this case. 7 Furthermore, Hershey contends that it has already provided sufficient documentation as to 8 the termination of the named plaintiffs. 9 Judge Breyer has referred all discovery in this case to the undersigned magistrate 10 judge. Dkt. No. 58. The parties appeared for a hearing on the disputes on February 5, 11 2014. Based on the parties’ submissions and the representations made by counsel at the 12 hearing, the Court orders as follows: 13 The key question presented is what is the relevance of the terminations of the 23 14 CSEs and CDMs who did not opt in? Would the terminations of these 23 CSEs and 15 CDMs tend to prove or disprove the existence of a group termination program for the 16 named plaintiffs? The Court is not persuaded that discovery of the terminations beyond 17 the named plaintiffs is necessary or useful during this phase of the discovery. Even 18 assuming that there would be probative value of the additional CSEs and CDMs, the most 19 useful discovery will be as to the named plaintiffs. The usefulness of the discovery 20 sought as to all CSEs and CDMs is outweighed by the burden of producing it. 21 A second question presented is whether there should be additional document and 22 deposition discovery as to the employment separations of the named plaintiffs. On this 23 issue, the parties have agreed that the answer is “yes,” and they are amid a meet-and- 24 confer process to clarify document custodians, date ranges, and search terms. 25 The Court therefore DENIES plaintiffs’ requests to compel Hershey’s production 26 of documents and depositions as to the CSEs and CDMs beyond the named plaintiffs. As 27 to the discovery concerning the named plaintiffs, the parties are to jointly report by March 28 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 2 1 2 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. 3 IT IS SO ORDERED. 4 5 Date: February 7, 2014 ___________________________ NATHANAEL M. COUSINS United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 12-cv-01334 CRB (NC) DISCOVERY ORDER 3

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