Barnes et al v. The Hershey Company

Filing 139

ORDER RESOLVING DISCOVERY DISPUTES RE: 124 136 137 . Signed by Judge Nathanael Cousins on 5/16/14. (lmh, COURT STAFF) (Filed on 5/16/2014)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION 10 GREGORY P. BARNES, DAVID C. Case No. 12-cv-01334 CRB (NC) 12 behalf of others similarly situated, M. CHAPMAN, on their own behalf and on ORDER RESOLVING DISCOVERY DISPUTES 13 Plaintiffs, Re: Dkt. Nos. 124, 136, 137 11 BOLLE, MARY D. WASSON, and JERRY 14 v. 15 THE HERSHEY COMPANY, 16 Defendant. 17 18 Pending before the Court are two joint discovery letter briefs, Dkt. Nos. 136 and 137, 19 in which the parties continue to disagree about the proper boundaries of discovery at this 20 stage of the case. District Court Judge Charles R. Breyer previously bifurcated discovery 21 and permitted discovery to proceed only “as to the issue of waiver.” Dkt. No. 105. 22 Plaintiffs have made a request to vacate the bifurcation order, which is currently before 23 Judge Breyer. See Dkt. No. 130. Accordingly, this order resolves the discovery issues 24 presented in accordance with the limitations imposed by the bifurcation order. Hershey’s ESI Production 25 1. 26 The Court will first address the parties’ disagreement about the methodology and 27 scope of Hershey’s ESI production. 28 Case No. 12-cv-01334 CRB (NC) ORDER RE: DISCOVERY DISPUTES 1 Previously, this Court denied plaintiffs’ requests to compel Hershey’s production of 2 documents and depositions as to Customer Sales Executives (“CSE”) and Category 3 Development Managers (“CDM”) beyond the named plaintiffs, finding that the most useful 4 discovery will be as to the plaintiffs, and that the usefulness of the discovery sought as to all 5 CSEs and CDMs is outweighed by the burden of producing it. Dkt. No. 118. The Court 6 noted that, with respect to document and deposition discovery regarding the employment 7 separations of the plaintiffs, the parties have agreed that additional discovery is appropriate 8 and are meeting and conferring to clarify document custodians, date ranges, and search 9 terms. Id. 10 On March 14, 2014, the parties filed a joint discovery letter brief requesting that the 11 Court resolve a dispute concerning their ESI Agreement. Dkt. No. 124. In the joint brief, 12 plaintiffs assert that (1) Hershey should be required to produce all of the documents 13 returned as “hits” after searching ESI using search terms to be agreed upon by the parties, 14 without withholding any documents Hershey claims are irrelevant or non-responsive; and 15 (2) Hershey should be ordered to produce all files from the hard drives of plaintiffs’ 16 Hershey-owned computers, or alternatively, all of their email files, likewise without 17 withholding documents for lack of relevance or responsiveness. Id. In response, Hershey 18 argues that, as the parties have stipulated in the ESI Agreement, Hershey should be allowed 19 to review the “hits,” including plaintiffs’ emails, in order to limit the production to 20 responsive documents within the current scope of discovery, subject to court review in case 21 of a dispute. Id. Hershey also requests that the Court order plaintiffs to withdraw request 22 for production No. 32 for all documents that hit any search term, on the basis that it seeks to 23 avoid the parties’ ESI Agreement. Id. 24 On April 16, 2014, the Court held a hearing on the ESI Agreement dispute. Dkt. No. 25 133. The Court ordered plaintiffs’ request for production No. 32 stricken and directed the 26 parties to meet and confer further regarding the appropriate search terms to be used by 27 Hershey in producing ESI considering (1) the estimated volume of documents and the 28 Case No. 12-cv-01334 CRB (NC) ORDER RE: DISCOVERY DISPUTES 2 1 associated burden of search and production, and (2) the usefulness of the discovery on the 2 issue of waiver. Id. 3 On May 7, 2014, the parties filed a joint letter brief reporting on the status of their 4 dispute regarding Hershey’s ESI production, accompanied by proposed orders. Dkt. Nos. 5 137, 137-1, 138-2. The dispute centers on whether Hershey should be ordered to search 27 6 custodians for the names of the 9 plaintiffs and 12 additional substantive terms, as plaintiffs 7 request, or if it would be appropriate to “link” the names and substantive terms so that a 8 document will only be considered a “hit” if it contains both a name and a substantive term. 9 Id. Hershey’s proposed search methodology would return 86,564 documents that would be 10 subject to further review for privilege and responsiveness, while plaintiffs’ proposed terms 11 would result in 365,751 “hits,” according to plaintiffs, or 705,453 actual documents if 12 counting attachments, according to Hershey. Id. 13 Based on the parties’ submissions, the Court finds that plaintiffs’ proposal to search 14 the ESI for the names of the plaintiffs without any other substantive limitation is not 15 tailored to discover evidence regarding waiver or the existence of a group termination 16 program as to plaintiffs. The Court concludes that, based on the current record and in light 17 of the limited scope of discovery at this stage of the case, the usefulness of the disputed 18 discovery sought by plaintiffs is outweighed by the burden of producing it. Accordingly, 19 the Court orders as follows: 20 Hershey must apply the terms listed in Exhibit A to its proposed order, Dkt. No. 131- 21 1, which link the names and substantive terms that plaintiffs have selected, against the 22 agreed upon data sources. Specifically, a document will only be considered a “hit” if it 23 contains both a name and a substantive term, as set forth in Exhibit A. Hershey will then 24 review all of the “hits” to determine if they are responsive to any of plaintiffs’ requests for 25 production. As set forth in the parties’ ESI Agreement, “[d]eterminations of 26 discoverability, relevance and privilege shall be made, in the first instance, by the producing 27 party subject to potential court review.” See Dkt. No. 128 ¶ 1(c). Hershey must produce all 28 Case No. 12-cv-01334 CRB (NC) ORDER RE: DISCOVERY DISPUTES 3 1 “hits” that are responsive to plaintiffs’ requests for production, but does not have to produce 2 documents returned by a search term if that document is responsive only to a request for 3 production that the Court has already limited or stricken. In addition, if a document 4 returned as a “hit” is relevant to the issue of waiver or the existence of a group termination 5 program as to plaintiffs, Hershey must produce it even if it is not responsive to plaintiffs’ 6 requests for production. 7 After plaintiffs have an opportunity to review the results of Hershey’s production of 8 documents pursuant to the terms of this order, should plaintiffs contend that the production 9 is insufficient, the parties must meet and confer to determine whether, and what, further 10 production may be appropriate. Any disputes on this issue that cannot be resolved by the 11 parties must be presented to the Court by a joint letter brief filed no later than 14 days of the 12 date when plaintiffs give notice to Hershey that its production is insufficient. 13 The files from the hard drives of plaintiffs’ Hershey-owned computers will be treated 14 the same way as other ESI for the purposes of this dispute and be subject to the same 15 process outlined above. Hershey’s Easter Weekend Production 16 2. 17 In the May 7 joint letter brief regarding ESI, plaintiffs raise an issue regarding a 18 document production made by Hershey on Easter Weekend, immediately before 19 depositions. Dkt. No. 137 at 5. Plaintiffs ask that the Court order Hershey to “(1) identify 20 whether the Easter Weekend and subsequent document productions were made from ESI 21 harvested pursuant to the ESI Agreement and/or from some other ESI source; (2) what 22 custodians were searched for these productions; (3) what search terms or other criteria was 23 used to obtain “hits”; and (4) how many “hits” were obtained for these productions.” Id. 24 Hershey responds that it has already provided this information in that it “identified the 25 source of the documents produced, informed Plaintiffs the pre-deposition productions were 26 from the paper and electronic documents collected directly from the custodians and not their 27 emails, and that all such documents collected from those custodians were reviewed.” Id. at 28 Case No. 12-cv-01334 CRB (NC) ORDER RE: DISCOVERY DISPUTES 4 1 3. Hershey further asserts that because it did not limit its review of these documents by 2 choosing specific custodians or using search terms, plaintiffs’ questions regarding search 3 terms or “hits” are not applicable. Id. 4 The Court finds that this is the type of dispute that the parties should be able to 5 resolve without the need for Court intervention. If plaintiffs contend that the information 6 provided by Hershey is insufficient, they must meet and confer further with Hershey, and 7 may seek to obtain the information through more formal means such as an interrogatory or a 8 deposition under Federal Rule of Civil Procedure 30(b)(6) if necessary. 9 3. 10 11 Plaintiffs’ Requests for Discovery Regarding RIF, Reorganizations, and Like Corporate Events In addition to the letter brief regarding ESI, on May 7, 2014, the parties filed a second 12 joint letter brief in which plaintiffs ask that the Court order Hershey to answer written 13 discovery related to (1) reductions in force (“RIF”) information from 2009 through 2011; 14 and (2) reorganizations, realignments and similar corporate events from 2009 through 2011. 15 Dkt. No. 136 at 3. The Court finds that this dispute is suitable for resolution without a 16 hearing. 17 With respect to the first category of information, plaintiffs acknowledge that they 18 have already obtained discovery from Hershey about the overall headcount of CSEs and 19 CDMs from 2007 through 2012, by year. Id. at 1. Plaintiffs now seek to discover how 20 many of the reduced headcount are older CSEs and CDMs as opposed to CSEs and CDMs 21 39 and younger during the period 2009 through 2011. Id. at 1-2. 22 As for the second category, plaintiffs seek that the Court order Hershey to answer an 23 interrogatory and produce documents to (1) “[i]dentify any realignment, restructuring or 24 reorganization that impacted the [CSE] and/or [CDM] positions”; and (2) state and identify 25 whether there were any “exit incentive” plans or “termination programs” applied to any 26 CSEs or CDMs for the years 2009 through 2011. Id. at 2. In response, Hershey asserts that 27 it has or will provide Rule 30(b)(6) testimony on realignments, etc. that affected the 28 Case No. 12-cv-01334 CRB (NC) ORDER RE: DISCOVERY DISPUTES 5 1 plaintiffs, and that it has also offered to provide information on all other restructurings, 2 realignments, etc. (even if they did not affect the plaintiffs) that resulted in terminations 3 between 2009 and 2011 via interrogatory responses and document productions. Id. at 4. 4 The Court agrees with Hershey that plaintiffs’ requests for information regarding (1) 5 the ages of terminated CSEs and CDMs; and (2) all restructurings, realignments, etc., 6 regardless of whether these changes resulted in terminations, are not reasonably tailored to 7 discover information relevant to the validity of the releases signed by plaintiffs or to 8 whether their terminations were part of a group termination program. Id. at 4. The Court 9 finds that the disputed discovery requests are cumulative to other discovery that has or will 10 be provided by Hershey, exceed the limited scope of discovery ordered by Judge Breyer, 11 and their burden exceeds their likely benefit considering the needs of the case at this stage. 12 Accordingly, plaintiffs’ requests for relief are denied. 13 Any party may object to this non-dispositive discovery order within 14 days under 14 Federal Rule of Civil Procedure 72(a). 15 IT IS SO ORDERED. 16 Date: May 16, 2014 17 _________________________ Nathanael M. Cousins United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 Case No. 12-cv-01334 CRB (NC) ORDER RE: DISCOVERY DISPUTES 6

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