Lou v. MA Laboratories, Inc et al

Filing 67

Order by Magistrate Judge Nathanael M. Cousins granting 61 Plaintiffs' request to compel discovery. (nclc1S, COURT STAFF) (Filed on 3/28/2013)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 SAN FRANCISCO DIVISION 9 10 MICHELLE LOU, and others, Case No. 12-cv-05409 WHA (NC) 11 13 MA LABORATORIES, INC., and others, ORDER GRANTING PLAINTIFFS’ REQUEST TO COMPEL DISCLOSURE OF PUTATIVE CLASS MEMBERS AND RESPONSES TO DISCOVERY 14 Re: Dkt. Nos. 61, 63 12 Plaintiffs, v. Defendants. 15 16 This discovery dispute arises from defendants’ stonewalling of discovery in this 17 wage-and-hour class action. The Court perceives that the defendants do not wish to 18 participate in discovery because they filed a motion to compel arbitration. The motion to 19 compel arbitration is pending before District Court Judge William H. Alsup. Judge Alsup, 20 however, was precise in his “Order Regarding Participation in Discovery” issued February 21 6, 2013. Dkt. No. 35. Plaintiff is entitled to “reasonable discovery” on the issues raised in 22 the motion to compel arbitration. Defendants’ “stonewalling, if it persists, will be a 23 legitimate basis to deny the motion to compel arbitration in full.” Id. 24 Defendants’ reluctance to engage in discovery has continued since Judge Alsup 25 referred discovery to the undersigned Magistrate Judge. On March 13, 2013, the Court held 26 a hearing to address discovery objections raised by the defendants. After considering 27 briefing from all parties, the Court held a further discovery hearing on March 27. At the 28 hearing, defendants decried the burden of the proposed discovery and proposed a protective Case No. 12-cv-05409 WHA (NC) ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL DISCOVERY 1 order restricting use of the discovery. As explained at the hearing, the Court will GRANT a 2 protective order as modified to prevent any improper solicitation of class members by 3 plaintiffs’ counsel. Plaintiffs must file the revised protective order by March 29. The Court also GRANTS plaintiffs’ motion to compel the production of documents 4 5 and information from defendants. In sum, the Court is not persuaded by the defendants’ 6 asserted burdens and is not impressed by the defendants’ lack of discovery diligence since 7 Judge Alsup’s February 6 discovery order. Accordingly, the Court orders defendants to 8 produce the following documents and information. 9 A. Class Members’ Names and Contact Information The Court GRANTS plaintiffs’ motion to compel disclosure of the names and contact 10 11 information of the putative class members. The Court finds unpersuasive defendants’ 12 unsubstantiated allegations of improper solicitation of class members by plaintiffs’ counsel. 13 Counsel for defendants represented that declarations and evidence of improper solicitations 14 would soon be ready to substantiate defendants’ claims, but could not explain why 15 defendants have not already brought such evidence to the attention of the Court. If such 16 allegations are true, defendants will have the opportunity to raise the issue, with briefing 17 and factual evidence, to Judge Alsup in connection with class certification. 18 B. Personnel and Payroll Data 19 In addition to the arbitration agreements the Court ordered defendants to produce on 20 March 13, 2013, see dkt. no. 50, plaintiffs seek discovery relevant to defending defendants’ 21 motion to compel arbitration, such as immigration documentation for the class members, 22 see dkt. no. 48, as well as time and payroll records, see dkt. no. 63. Defendants have 23 asserted that producing such discovery would be an undue burden. They submitted eight 24 declarations, from Ma Labs employees and a computer forensics consultant, to attest to the 25 difficulty in retrieving personnel data from within Ma Labs’ systems. In sum, the 26 declarations state that Ma Labs has an inefficient way of documenting personnel and payroll 27 data and that all documentation is either in email form or must be captured with a screen 28 shot from the company’s intranet. See generally Dkt. Nos. 53, 54, 58-1, 59-1. The result, Case No. 12-cv-05409 WHA (NC) ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL DISCOVERY 2 1 defendants argue, is that looking for information related to an employee’s hours worked or 2 overtime paid will be immensely expensive, and in the words of defense counsel, 3 “impossible.” 4 “A party need not provide discovery of electronically stored information from sources 5 that the party identifies as not reasonably accessible because of undue burden or cost. On 6 motion to compel discovery or for a protective order, the party from whom discovery is 7 sought must show that the information is not reasonably accessible because of undue burden 8 or cost.” Fed. R. Civ. P. 26(b)(2)(B). The Court finds that the burden defendants claim 9 excuses them from producing such documents is of their own making, and thus not 10 compelling. First, defendants are the master of their own record keeping. As other courts 11 have noted, “[t]he fact that a corporation has an unwieldy record keeping system which 12 requires it to incur heavy expenditures of time and effort to produce requested documents is 13 an insufficient reason to prevent disclosure of otherwise discoverable information.” 14 Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606, 611 (D. Neb. 2001); Kozlowski v. Sears, 15 Roebuck & Co., 73 F.R.D. 73, 76 (D. Mass. 1976) (“To allow a defendant whose business 16 generates massive records to frustrate discovery by creating an inadequate filing system, 17 and then claiming undue burden, would defeat the purposes of the discovery rules.”). 18 Second, had defendants taken class discovery seriously from the outset, they would not 19 have had to produce as much information in such a relatively short timeframe, thus also 20 reducing their burden. Defendants failed to help themselves again at the March 27 hearing, 21 when the Court asked for, and defense counsel did not give, a proposed timeframe for 22 production that would be workable for defendants. 23 The Court ORDERS defendants to produce as follows: 24 1. By April 1, 2013, defendants must produce all responsive documents that have 25 been gathered already and all documents from sources that they do not claim 26 impose a burden. 27 28 2. Beginning immediately, with completion by April 18, 2013, defendants must produce the categories of ESI at issue in defendants’ declarations (phone call Case No. 12-cv-05409 WHA (NC) ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL DISCOVERY 3 1 logs, sales data, payroll and timekeeping data, commission and SPF data, and 2 the email data of the account managers, human resources staff, and sales and 3 branch managers relevant to these categories of employee information). 4 5 6 3. Also by April 18, 2013, defendants must file and serve a declaration, under penalty of perjury, verifying that they have complied with this order. The Court defers consideration of an award of sanctions against defendants and their 7 counsel until after April 18, 2013. Any party may object to this order within fourteen days. 8 Fed. R. Civ. P. 72(a). 9 IT IS SO ORDERED. 10 Date: March 28, 2013 _________________________ Nathanael M. Cousins United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 12-cv-05409 WHA (NC) ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL DISCOVERY 4

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