Curtis Johnson v. Serenity Transportation, Inc. et al

Filing 140

ORDER RE: DISCOVERY DISPUTES by Magistrate Judge Jacqueline Scott Corley on 10/17/2016. (ahm, COURT STAFF) (Filed on 10/17/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CURTIS JOHNSON, et al.,
Plaintiffs,

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Case No. 15-cv-02004-JSC
ORDER RE: DISCOVERY DISPUTES

v.

Re: Dkt. Nos. 136, 137, 138, 139
SERENITY TRANSPORTATION, INC., et
al.,

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Defendants.

United States District Court
Northern District of California

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By stipulation adopted by the Court (Dkt. No. 108), the parties agreed to limit discovery to

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whether Defendants (other than Serenity) are Plaintiff’s joint employer. Defendants’ motions for

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summary judgment on that issue are due to be heard on December 15, 2016. Now pending before

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the Court are four discovery disputes.

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A.

The SCI Dispute (Dkt. Nos. 136, 137)

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The SCI defendants have moved for summary judgment. (Dkt. No. 124.) One of SCI’s

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arguments is that as a holding company it cannot be liable for SCI California’s liability to its

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employees, including Plaintiff if he is found to be an employee of SCI California. (Dkt. No. 124-1

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at 8.) Given that argument, Plaintiff is entitled to test SCI’s insistence that it does not have any

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control over SCI California’s employees, which is where Plaintiff’s “integrated enterprise” theory

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comes in.

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This case, however, unlike Castaneda v. Ensign Grp., Inc., 229 Cal. App. 4th 1015, 177

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(2014), review denied (Dec. 17, 2014), has not yet established that Plaintiff is an employee of SCI

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California. Notwithstanding SCI’s argument in its summary judgment motion, the Court proposes

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to decide only if there is a triable issue as to whether SCI California is Plaintiff’s joint employer

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and will assume, for purposes of the motion, that SCI and SCI California are an integrated

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enterprise. If there is a triable issue of fact as to SCI California’s liability as a joint employer, then

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SCI’s liability as an integrated entity with SCI California can be litigated later. If there is no

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triable issue as to SCI California, then there is none as to SCI either. That does not mean that

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SCI’s interactions involving Serenity are irrelevant; since the Court assumes SCI and SCI

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California are an integrated entity for purposes of the pending summary judgment motion, SCI’s

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conduct vis-à-vis Serenity is likely relevant.
In light of this limitation, Plaintiff shall reconsider his SCI and SCI California outstanding

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discovery requests. If he believes he needs any of the requested discovery to address the pending

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summary judgment motion as limited by the Court, he shall meet and confer with Defendants by

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telephone. If the parties are still at an impasse, they shall submit a further joint letter. In the letter,

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Plaintiff shall identify each topic for which he still seeks 30(b)(6) deposition testimony from SCI,

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United States District Court
Northern District of California

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and each type of ESI he believes is improperly withheld, and explain how each such topic/specific

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ESI is relevant to the joint employer question presented by the pending summary judgment

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motion. (The deposition notice should be attached to joint letter.) Defendant SCI shall respond

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topic-by-topic and then Plaintiff shall address Defendant’s response in the letter.

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Plaintiff shall provide the SCI Defendants with his letter brief portion by close of business

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on Friday, October 21, 2016. Defendants shall provide Plaintiff with their responsive portion by

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close of business on Tuesday, October 25, 2016. Plaintiff shall file the joint letter brief, if any, by

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5:00 p.m. on Thursday October 27, 2016.

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B.

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Plaintiff asserts, and Defendants do not dispute, that Defendants agreed to produce emails

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from four custodians using Plaintiff’s search terms. (Dkt. No. 138-1 at 4, 6.) The production was

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to update ESI last produced in September 2014. According to Plaintiff, Defendants’ August 2016

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production did not include any emails from between September 2014 and May 2016. (Dkt. No.

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138 at 1.) While Defendants insist they have produced many documents, they ignore the

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accusation that they have not produced any emails from between September 2014 and May 2016.

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The Serenity/Santa Clara County Disputes (Docket Nos. 138, 139)

Accordingly, on or before close of business on Wednesday, October 19, 2016, Defendants’

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counsel shall submit a declaration attesting to whether Defendants have produced emails from the

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period of September 2014 through May 2016 responsive to the above search and, if so, identifying
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the emails by Bates numbers and the dates produced. If they have not been produced, counsel

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shall explain in detail why they have not been produced, including precisely what efforts have

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been made to search for the emails.

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As for the other responses (Dkt. No. 139), if a party wants an extension to respond to

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discovery it should not wait until the date it is due to request the extension. It is unreasonable to

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ask for an extension on a Friday and then complain that the opposing party did not respond to the

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request until Monday. There is no excuse for Defendants’ delayed request as it takes days, if not

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weeks, to appropriately respond to such discovery; thus, Defendants knew for days that it could

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not meet the discovery deadline. And the one business day it took Plaintiffs to respond to
Defendants’ belated request does not excuse Defendants’ several-week delay in responding to

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United States District Court
Northern District of California

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Plaintiff’s meet and confer efforts, especially when Defendants’ responses are so obviously and

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indeed admittedly insufficient. Defendants’ conduct demonstrates that they are not taking their

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discovery obligations seriously.

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On or before Friday, October 21, 2016, Defendants shall respond to the Requests for

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Admissions. (Dkt. No. 139-2, 139-3.) Plaintiff did not provide the interrogatories with the joint

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discovery letter so the Court is not presently ordering them answered, especially since Defendants

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have since filed their summary judgment motion. As Defendants acted unreasonably in refusing

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to supplement their non-responses to the requests for admissions without requiring a court order,

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they shall show cause as to why they should not be required to pay Plaintiff’s attorneys’ fees and

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costs incurred in drafting Docket No. 139. See Fed. R. Civ. P. 37(5)(A). The response to the

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show cause shall be filed by October 19, 2016. Plaintiff shall not file a response until directed by

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the Court.

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This Order disposes of Docket Nos. 136, 137, 138, and 139.

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IT IS SO ORDERED.

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Dated: October 17, 2016

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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