Ludosky McCowen v. Trimac Transportation Services (Western), Inc.

Filing 34

ORDER by Magistrate Judge Jacqueline Scott Corley granting in part 27 Motion to Compel (ahmS, COURT STAFF) (Filed on 9/4/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LODUSKY MCCOWEN,

Case No. 14-cv-02694-RS (JSC)

Plaintiff,
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v.

ORDER RE: DISCOVERY DISPUTE

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United States District Court
Northern District of California

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TRIMAC TRANSPORTATION SERVICES
(WESTERN), INC.,

Re: Dkt. No. 27

Defendant.

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In this wage-and-hour putative class action, named plaintiff Lodusky McCowen

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(“Plaintiff”) is a truck driver who worked for Defendant Trimac Transportation Services

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(Western), Inc. (“Defendant”), a provider of bulk transportation, logistics, and related

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transportation services. The complaint alleges that during the class period Defendant failed to

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comply with a number of provisions of California state labor law by, among other things, failing

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to compensate drivers for all time worked, to pay wages upon termination, or to provide rest and

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meal periods. Plaintiff brings this lawsuit on behalf of all present and former California-based

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Trimac truck drivers. The action has been referred to the undersigned magistrate judge for

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resolution of discovery disputes. (Dkt. No. 28.) Now pending before the Court is Plaintiff’s

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motion to compel Defendant to respond to a number of discovery requests seeking class contact

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information and other classwide information. (Dkt. No. 27.) Having considered the parties’

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submissions, the Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), and

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GRANTS IN PART the motion.

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BACKGROUND
Plaintiff filed this putative class action on June 10, 2014. (Dkt. No. 1.) Plaintiff worked as
a driver for Defendant from their operating terminal based in Santa Fe Springs, California. (Id.

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¶ 23.) Plaintiff alleges that Defendant permitted Plaintiff and other drivers to work portions of the

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day for which Defendant failed to compensate them, failed to pay wages at the designated rate and

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for actual miles driven, failed to provide meal and rest periods, failed to timely furnish accurate

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itemized wage statements, imposed waiting time penalties, and violated California’s unfair

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competition law. (Id. ¶¶ 26-62.)
Plaintiff seeks to represent a proposed class defined as “[a]l current and former California-

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based truck drivers employed by Defendants at any time from four years preceding the filing of

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this complaint until judgment is rendered in this action[.]” (Id. ¶ 63.) In addition, Plaintiff seeks

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to certify a subclass of former drivers who are no longer working for Defendant. (Id. ¶ 64.)
Plaintiff alleges that he meets the requirements for class certification under Federal Rule of

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Northern District of California

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Civil Procedure 23. He alleges that the number of class members, hundreds of employees who

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worked as drivers for Defendant in the relevant time period, is too great to make joinder possible

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or practicable. (Id. ¶ 65.) While the exact number of class members is unknown, Plaintiff alleges

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that it could be ascertained through inspection of Defendants’ business records. (Id.) He alleges

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that common questions of law and fact exist and predominate over questions affecting individual

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members, listing 20 such questions pertaining to all class members. (Id. ¶ 66.) He alleges that his

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claims are typical of the putative class members’ claims because Defendants “treated both Plaintiff

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and all members of the Class in a virtually identical manner with respect to the violations of law”

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asserted in the complaint. (Id. ¶ 67.) He alleges that he is an adequate class representative. (Id.

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¶ 68.)

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Defendant answered Plaintiff’s complaint (Dkt. No. 12), and the district court set a

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schedule for the case. Plaintiff’s motion for class certification is due in October 2015. (See Dkt.

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No. 24.) The parties have been engaged in discovery since March 2015. At issue here are certain

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Requests for Production (“RFPs”) that Plaintiff initially served on March 31, 2015, seeking

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disclosure of the putative class members’ names and contact information, as well as Defendant’s

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policies, compensation practices, and correspondence regarding putative class members. (Dkt.

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No. 27-4 ¶¶ 2-3.) Chiefly at issue in the instant motion is RFP No. 4, which seeks the class list in

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electronic form. (Dkt. No. 27 at 14.) In addition, other RFPs numbered 3, 10, 28, 29, 37, 43, and
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52 seek classwide information, including: internal correspondence among Defendant’s personnel

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discussing the claims in the complaint, communications between Defendant and putative class

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members discussing any claims in the complaint, Defendant’s payroll database applicable to the

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putative class during the class period identifying the elements of wages paid, documents that

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describe or define the categories or elements of compensation, documents that identify the

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compensation paid for the putative class members’ meal and rest periods, and all data transmitted

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to or from the computer systems on-board putative class members’ trucks during the relevant

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period. (Id. at 13-18.)

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Defendant asserted nearly identical boilerplate objections in response to all of the requests
at issue here, namely asserting that the requests are vague and ambiguous; overbroad, unduly

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Northern District of California

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burdensome, and harassing; not reasonably particular; seek production of confidential and

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proprietary business information; seek information protected by the California Constitution’s right

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to privacy; and is premature, as no class has been certified in this case. (See Dkt. No. 27 at 13-18.)

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The parties then began their efforts to meet and confer. Plaintiff sent Defendant a letter citing case

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law for its position that it is entitled to both the class list and other classwide discovery. (Dkt. No.

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27-5.) Defendant responded in kind, citing its own authority against discoverability of the

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requested information, but ultimately suggested that Plaintiff defer further meet-and-confer efforts

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until after the deposition of Defendant’s 30(b)(6) witnesses later that month on topics including

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identification of putative class members. (Dkt. No. 27-6; see also Dkt. No. 27-2 at 7.) Those

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depositions occurred on July 20 and 21, 2015. (Dkt. No. 27-1 ¶ 4.) Defendant refused to produce

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the class list at that time. (Id.)

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The parties did not meet and confer further about the requested documents. Instead,

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Plaintiff filed the instant motion to compel, seeking (1) an order compelling Defendant to respond

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to RFP No. 4 by producing the class list in searchable electronic format; and (2) an order

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overruling Defendant’s objection to the remaining RFPs seeking classwide discovery and ordering

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the parties to meet and confer regarding the scope of the documents and data requested. Plaintiff

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also seeks an award of reasonable costs for bringing the instant motion, including attorneys’ fees,

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in the amount of $4,567.50. Defendant, for its part, urges the Court to deny the motion regarding
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RFP No. 4 on multiple grounds: because the request is premature as Plaintiff has failed to satisfy

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his meet-and-confer obligations; because Plaintiff has not met his burden of articulating a need for

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pre-certification discovery or demonstrating how his need outweighs the putative class members’

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privacy interests. With respect to the remaining classwide discovery, Defendant likewise contends

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that the motion must be denied because the parties have not completed the meet-and-confer

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process. The Court heard oral argument on September 10, 2015.
DISCUSSION

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I.

Legal Standard
Normally, under the Federal Rules of Civil Procedure, a party “may obtain discovery

regarding any non-privileged matter that is relevant to any party’s claim or defense . . . . Relevant

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Northern District of California

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information need not be admissible at the trial if the discovery appears reasonably calculated to

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lead to the discovery of admissible evidence.” See Fed. R. Civ. P. 26(b)(1). Information is

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relevant for purposes of discovery if “it is reasonably calculated to lead to the discovery of

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admissible evidence,” even if the information is not admissible at trial. Id. The court may

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allow discovery of any material “relevant to the subject matter involved in the action,” not just the

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claims or defenses of each party, if there is good cause to do so. Federal Rule of Evidence

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401 defines “relevant evidence” as “evidence having any tendency to make existence of any fact

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that is of consequence to the determination of the action more probable or less probable than it

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would be without the evidence.” Federal Rule of Evidence 402 provides that all relevant evidence

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is admissible except as otherwise provided by the U.S. Constitution, Act of Congress, or

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applicable rule of Federal Rules of Evidence. “The question of relevancy should be construed

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liberally and with common sense and discovery should be allowed unless the information sought

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has no conceivable bearing on the case.” Soto v. City of Concord, 162 F.R.D. 603, 610

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(N.D.Cal.1995). Ultimately, district courts have broad discretion in determining whether evidence

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is relevant for discovery purposes. See Survivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635

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(9th Cir. 2005).

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Prior to class certification under Rule 23, discovery lies entirely within the discretion of the
Court. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (“Our cases
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stand for the unremarkable proposition that often the pleadings alone will not resolve the question

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of class certification and that some discovery will be warranted.”) (footnote omitted). Courts

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generally recognize the need for pre-certification discovery relating to class issues. See id.; Del

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Campo v. Kennedy, 236 F.R.D. 454, 459 (N.D. Cal. 2006). In seeking pre-certification discovery,

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the plaintiff bears the burden to either make a prima facie showing that the Rule 23 class action

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requirements are satisfied, or to show “that discovery is likely to produce substantiation of the

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class allegations.” Manolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985). “[T]he need for

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discovery, the time required, and the probability of discovery providing necessary factual

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information” are also relevant factors “bearing on the correctness of the trial court’s exercise of
discretion.” Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977) (citation

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omitted) (citation omitted). Thus, discovery is likely warranted where it will help resolve factual

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issues necessary for the determination of whether the action may be maintained as a class action,

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such as whether there are grounds for a class or subclass. Kamm v. Cal. City Dev. Co., 509 F.2d

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205, 210 (9th Cir. 1975). It is an abuse of discretion to deny discovery where it is necessary to

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determine the existence of a class or subclass. Doninger, 564 F.2d at 1313 (citation omitted).

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“The better and more advisable practice for a District Court to follow is to afford the litigants an

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opportunity to present evidence as to whether a class action was maintainable. And, the necessary

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antecedent to the presentation of evidence is, in most cases, enough discovery to obtain the

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material, especially when the information is within the sole possession of the defendant.” Id.
Rule 23 provides that a member of a class may sue on behalf of all members only if the

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class meets the prerequisites of numerosity, commonality, typicality, and adequacy of

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representation. Fed. R. Civ. P. 23(a).

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II.

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Application
Plaintiffs seek the names and contact information for the putative class as well as other

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classwide discovery to gather evidence in support of class certification. The Court will address the

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request for the class list (RFP No. 4) separately, before turning to the other classwide-discovery

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requests.

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A.

Class List Discovery (RFP No. 4)

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As a threshold matter, Defendant urges the Court to deny Plaintiff’s motion for failure to
comply with the Court’s meet-and-confer requirements. From Defendant’s point of view, Plaintiff

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should have continued its efforts to meet and confer with Defendant following the 30(b)(6)

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depositions. However, given that Defendant refused altogether to provide class list information at

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those depositions, it was not unreasonable for Plaintiff to deem the parties to have reached an

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impasse on this issue. And given the fast-approaching deadline for Plaintiff’s class certification

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motion, the Court cannot fault Plaintiff for going ahead and filing the motion instead of waiting

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any longer. Thus, the Court declines to deny Plaintiff’s motion on this ground. Likewise,

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Defendant’s boilerplate objections as to vagueness and ambiguity, overbreadth and burden,

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particularity, and proprietary business information are without merit. See Holt v. Nicholas, No.

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1:09-cv-00800-AW-SAB (PC), 2014 WL 250340, at *3 (E.D. Cal. Jan. 22, 2014) (noting that

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because Rule 34 requires that a party responding to an RFP “include the specifics of the objection

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and how that objection relates to the documents” sought, “[g]eneric, boilerplate objections to

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discovery are not sufficient”) (citations omitted). Indeed, in its opposition, Defendant does not

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contend otherwise, and thus concedes as much. See Ardente, Inc. v. Shanley, No. 07-4479 MHP,

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2010 WL 546485, at *6 (N.D. Cal. Feb. 9, 2010) (“Plaintiff fails to respond to this argument and

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therefore concedes it through silence.”). The Court therefore overrules these objections and turns

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to the parties’ substantive arguments about whether Plaintiff is entitled to the discovery sought.

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Defendant argues that the Court cannot allow discovery of the class list because, under

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Mantolete, pre-certification discovery is prohibited until the plaintiff has submitted evidence to

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demonstrate a prima facie case of the class action requirements or that particular discovery is

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likely to produce substantiation of the class allegations. (Dkt. No. 32 at 11.) Defendant misreads

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Mantolete. There, the court stated that “[a]bsent such a showing, a trial court’s refusal to allow

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class discovery is not an abuse of discretion.” Mantolete, 767 F.2d at 1424. As another court in

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this District has noted, however, “[t]his does not mean that, absent such a showing, it would be an

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abuse of discretion to allow class discovery.” Barreras v. Michaels Stores, Inc., No. C 12-4474

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(PJH), 2015 WL 1886337, at *3 (N.D. Cal. Apr. 24, 2015). To the contrary, pre-certification
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remains largely within the trial court’s discretion, “and Mantolete does not change that fact or

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limit the court’s discretion even when no prima facie or substantiation showing has been made.”

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Id. at *3. Mantolete therefore does not require denial of the requested discovery.
And, in any event, Plaintiff has made a prima facie showing that the class action

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requirements of Rule 23 are met based on the allegations in the complaint. See Brawner v. Bank

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of Am., N.A., No. C 14-02702 YGR (LB), 2014 WL 6845504, at *3 (N.D. Cal. Dec. 4, 2014)

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(finding that plaintiff made a prima facie case of Rule 23 requirements based on the allegations in

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the complaint). Similarly, Plaintiff has established that the class list would help substantiate her

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class-certification allegations insofar as it will help establish numerosity (see Dkt. No. 1 ¶ 65

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(noting that the exact number and identifies of the class members are unknown but could be

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ascertained through inspection of Defendant’s business records)), and may lead to declarations

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from putative class members as percipient witnesses that will help indicate that they subject to the

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same policy or practice as the named Plaintiff, which will help establish commonality and

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typicality (see Dkt. No. 33 at 7). Thus, Plaintiff has demonstrated that the putative class members’

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identities and contact information are needed for the purposes of class certification briefing and

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are likely to substantiate her class allegations.

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And indeed, numerous courts in this District have found that disclosure of class members’

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contact information is appropriate in pre-certification class actions. See, e.g., Barreras, 2015 WL

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1886337, at *3; Brawner, 2014 WL 6845504, at *4; Wellens v. Daichi Sankyo Inc., No. C-13-

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00581-WHO (DMR), 2014 WL 969692, at *4 (N.D. Cal. Mar. 5, 2014); Stokes v. Interline

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Brands, Inc., No. C-12-05527 JSW (DMR), 2013 WL 4081867, at *2-3 (N.D. Cal. Aug. 9, 2013);

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Benedict v. Hewlett-Packard Co., No. 13-CV-0119-LHK, 2013 WL 3215186, at *2 (N.D. Cal.

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June 25, 2013); Willner v. Manpower, Inc., No. C 11-2846 JSW (MEJ), 2012 WL 4902994, at *5-

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6 (N.D. Cal. Oct. 16, 2012); Algee v. Nordstrom, Inc., No. C 11-301 CW (MEJ), 2012 WL

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157314, at *4-5 (N.D. Cal. May 3, 2012); Artis v. Deere & Co., 276 F.R.D. 348, 352 (N.D. Cal.

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2011); Currie-White v. Blockbuster, Inc., No. C 09-2593 MMC (MEJ), 2010 WL 1526314, at *2

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(N.D. Cal. Apr. 15, 2010); Khalilpour v. Cellco P’ship, No. C09-02712 CW (MEJ), 2010 WL

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1267749, at *2 (N.D. Cal. Apr. 1, 2010).
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Defendant has also objected to Plaintiff’s discovery request on the basis of privacy,

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including specifically California’s constitutional right to privacy. When privacy is involved, “the

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party seeking discovery must demonstrate a compelling need for discovery, and that compelling

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need must be so strong as to outweigh the privacy right when these two competing interests are

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carefully balanced.” Lantz v. Super. Ct., 28 Cal. App. 4th 1839, 1853-54 (1994). “Compelled

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discovery within the realm of the right of privacy cannot be justified solely on the ground[s] that it

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may lead to relevant information.” Artis, 276 F.R.D. at 352 (internal quotation marks and citation

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omitted). While at least one court has denied a plaintiff’s pre-certification motion to compel the

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class list where the plaintiffs stated generally that they are “preparing for class certification and
must establish numerosity, commonality, typicality, and adequacy, but they [did] not explain how

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the information they seek will help them establish any of those elements” and therefore failed to

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demonstrate that their need for the information outweighs the privacy rights of the potential class

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members, Johnson v. Sky Chefs, Inc., No. C11-05619 LHK (HRL), 2013 U.S. Dist. LEXIS 74246,

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at *8 (N.D. Cal. May 24, 2013), most other courts have found that the need to prepare for class

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certification and meet the Rule 23 requirements is sufficient. So it is here.

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Indeed, courts in this District also have emphasized that in the context of a class action,

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disclosure of basic contact information for putative class members does not constitute a serious

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invasion of privacy, especially when the Court determines that the class may possess relevant

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discoverable information about certification issues. Artis, 276 F.R.D. at 353. Many courts have

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found that a standard protective order is sufficient to protect the putative class members’ privacy

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rights in their own contact information. See, e.g., Brawner, 2014 WL 6845504, at *4 (citation

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omitted); Wellens, 2014 WL 969692, at *3; Currie-White, 2010 WL 1526314; Artis, 267 F.R.D. at

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353; Bottoni v. Sallie Mae, Inc., No. 10-03602 LB, 2012 WL 8304347, at *3 (N.D. Cal. June 1,

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2012) (recognizing that “ordinarily, protective orders are enough” absent “special privacy

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concerns”); Holman v. Experian Info Solutions, Inc., No. C 11-0180 CW, 2012 WL 1496203, at

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*17 (N.D. Cal. Apr. 27, 2012) (“Numerous courts in the Northern District of California have

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allowed pre-certification discovery of putative class members’ confidential information subject to

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a protective order, without requiring prior notice to the putative class members.”). “Ultimately, a
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court maintains wide latitude in deciding whether contact information of putative class members

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should be produced prior to class certification and, if so, whether the employees are entitled to be

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notified before their contact information is shared with opposing counsel.” Benedict, 2013 WL

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3215186, at *3 (internal quotation marks and citation omitted).

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Here, Plaintiff’s need for the information for the purposes of class certification outweighs

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Defendant’s privacy concerns given the presence of a protective order in this matter. However, in

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light of those privacy concerns, Plaintiff’s counsel must inform each potential class member that

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he or she has a right not to talk to counsel and that, if he or she declines to talk with counsel,

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Plaintiff’s counsel will immediately terminate the conversation and will not contact that individual
again. See Brawner, 2014 WL 6845504, at *4 (collecting cases adopting the same safeguard).

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During the initial communication, Plaintiff’s counsel must inform each potential class member

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that the Court compelled Defendant to disclose their contact information and that the

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communication is highly confidential. See id. (collecting cases adopting the same safeguard).

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Finally, all communications must be fair and accurate and must not be misleading, intimidating, or

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coercive. See id. (collecting cases adopting the same safeguard).

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B.

Other Classwide Discovery (RFP Nos. 3, 10, 28, 29, 37, 43, and 52)

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Plaintiff also seeks an order overruling Defendant’s objection to the other classwide

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discovery requests seeking, among other things, payroll records and correspondence with or about

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the putative class members (RFP Nos. 3, 10, 28, 29, 37, 43, and 52), and ordering the parties to

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meet and confer about the scope of the documents and data sought therein. The Court declines to

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issue such an order for two reasons. First, the Court has now ruled that Plaintiff has made a prima

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facie showing that the proposed class is certifiable so any objection on that ground during the

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parties’ upcoming meet and confer process would be frivolous. Second, the Court need not order

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the parties to meet and confer regarding the scope of the discovery requests because they are

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already under an obligation to do so. The Court therefore denies Plaintiff’s request for an order

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pertaining to other classwide discovery without prejudice to Plaintiff renewing the motion after the

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parties have engaged in a good faith effort to resolve the dispute without court intervention.

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III.

Reasonable Costs
In addition, Plaintiff seeks an award of costs and attorneys’ fees associated with bringing

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this motion due to Defendant’s failure to adequately respond to properly served discovery. (Dkt.

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No. 27 at 27.) Specifically, Plaintiff seeks $5,467.50 based on the 12.15 hours counsel has spent

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on this discovery dispute. (Dkt. No. 33; Dkt. No. 33-3 ¶¶ 2-6.) Rule 37 provides that where a

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motion to compel is granted in part, the court “may, after giving an opportunity to be heard,

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apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). But the court

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must not order payment of fees and costs if “the movant filed the motion before attempting in

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good faith to obtain the . . . discovery without court action;” if the opposing party’s objection was

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substantially justified; or “other circumstances make an award of expenses unjust.” Fed. R. Civ.

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P. 37(a)(5)(A). Here, although the Court understands why Plaintiff filed the instant motion when

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he did, it appears that better meet-and-confer negotiations might have obviated the need for a

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motion, or at least presented fewer issues to the Court for consideration. Further, Defendant raised

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some legitimate, albeit ultimately unsuccessful, objections to production. Under the

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circumstances presented, the Court declines to award fees and costs to Plaintiff.
CONCLUSION

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For the foregoing reasons, the Court GRANTS IN PART Plaintiff’s motion. Defendant

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must produce the contact information for the putative class members by September 17, 2015. The

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Court declines to issue any order pertaining to the other classwide discovery requests (RFP Nos. 3,

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10, 28, 29, 37, 43, and 52) as the parties have not yet engaged in a meaningful meet-and-confer

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process about these requests, and the Court is confident that future efforts will be informed by this

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Order. Before any future dispute may be brought to the Court’s attention, counsel must have met

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and conferred in person. Further, the parties shall follow the joint discovery letter process set forth

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in the Court’s standing order. Finally, the Court declines to award fees or costs to Plaintiff.

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This Order disposes of Docket No. 27.

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IT IS SO ORDERED.

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Dated: September 3, 2015

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________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
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