Carroll v. Wells Fargo & Company et al

Filing 117

ORDER by Judge Kandis A. Westmore regarding parties' 103 , 104 8/18/16 Joint Discovery Letter Briefs. (kawlc1, COURT STAFF) (Filed on 9/8/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KELLY CARROLL,

Case No. 15-cv-02321-EMC (KAW)

Plaintiff,
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ORDER REGARDING 8/18/16 JOINT
DISCOVERY LETTERS

v.
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WELLS FARGO & COMPANY, et al.,

Re: Dkt. Nos. 103, 104

Defendants.

United States District Court
Northern District of California

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On August 18, 2016, the parties submitted two joint discovery letters regarding Plaintiff’s

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ability to obtain information pertaining to the putative class members prior to class certification.

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The first joint letter concerns Interrogatory No. 1, which seeks contact information for each

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putative class member. (Joint Letter #1, Dkt. No. 103.) The second joint letter concerns Requests

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for Production Nos. 6 and 7, which seek pay record and time records for each putative class

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member during the relevant time period. (Joint Letter #2, Dkt. No. 104.)

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Upon review of the joint letters, and for the reasons set forth below, the Court orders

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Defendants to produce the information sought for a 25% sample of the 43,000 putative class

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members without regard to position classification, service or platform side, or geographic area.

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I.

BACKGROUND

Plaintiff Kelly Carroll alleges that she worked as a Service Manager 1 in Wells Fargo

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Bank, N.A.’s Santa Monica, California branch from approximately January 2011 to October 1,

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2011. Thereafter, she held two exempt positions until the end of her employment in or around

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November 2012. On April 7, 2015, Plaintiff Kelly Carroll filed this putative class action in state

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court alleging various violations of California wage and hour law. Thereafter, the case was

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removed to federal court. Plaintiff brings this action on behalf of all Wells Fargo non-exempt

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employees in California from April 7, 2011 to present.
The non-exempt positions found in most retail banking locations include tellers, lead

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tellers, and service manager 1s on the “service” side. (Joint Letter #1 at 2.) Additionally, personal

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banker 1s, personal banker 2s, private banker 1s, customer sales and service representatives, and

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assistant managers work on the “platform” side. Id. Thus, there are approximately 43,000 current

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and former employees who have held one or more of these non-exempt positions during the

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putative class period. Id. The class has not been certified, and the parties are engaged in pre-

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certification discovery.

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II.

LEGAL STANDARD

The Federal Rules of Civil Procedure broadly interpret relevancy, such that each party has

United States District Court
Northern District of California

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the right to the discovery of “any nonprivileged matter that is relevant to any party’s claim or

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defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Discovery need not

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be admissible to be discoverable. Id. The court, however, “must limit the frequency or extent of

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discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or

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duplicative, or can be obtained from some other source that is more convenient, less burdensome,

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or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the

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information by discovery in the action; or (iii) the proposed discovery is outside the scope

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permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). Furthermore, “[t]he court may, for good

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cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or

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undue burden or expense,” including by precluding discovery, by conditioning disclosure or

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discovery on specified terms, by preventing inquiry into certain matters, or by limiting the scope

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of discovery to certain matters. Fed. R. Civ. P. 26(c)(1). “Rule 26(c) confers broad discretion on

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the trial court to decide when a protective order is appropriate and what degree of protection is

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required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

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“District courts have broad discretion to control the class certification process, and whether

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or not discovery will be permitted lies within the sound discretion of the trial court.” Vinole v.

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Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (citations omitted).

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III.

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DISCUSSION

Both joint letters concern Plaintiff’s right to obtain pre-certification discovery despite an

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apparent inability to make a prima facie showing that she can satisfy the requirements for class

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certification under Federal Rule of Civil Procedure 23. Thus, the Court will resolve the two letters

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together.

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A.

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Plaintiff’s Interrogatory No. 1 seeks “the following information for each Putative Class

Interrogatory No. 1

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Member: Each Putative Class Member’s identifying information including their name, telephone

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number, and corresponding mailing address and email address, as well as the Putative Class
Member’s Identification Number used by the Putative Class Member when conducting Wells

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United States District Court
Northern District of California

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Fargo customer banking transactions.” (Joint Letter #1 at 2.)

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i.

Plaintiff is entitled to pre-certification discovery

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Defendants’ argument that the putative class contact information is not discoverable until

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Plaintiff can make a prima facie showing is unavailing. (Joint Letter #1 at 5.) The United States

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Supreme Court has recognized the importance of permitting class counsel to communicate with

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potential class members for the purpose of gathering information, even prior to class certification.

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Gulf Oil Co. v. Bernard, 452 U.S. 89, 102–03 (1981); see also Vinole, 571 F.3d at 942 (“Although

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a party seeking class certification is not always entitled to discovery on the class certification

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issue, the propriety of a class action cannot be determined in some cases without discovery.”);

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Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977) (“the better and

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more advisable practice for a District Court to follow is to afford the litigants an opportunity to

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[obtain material through discovery in order to demonstrate] whether a class action was

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maintainable . . . especially when the information is within the sole possession of the defendant.”).

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District courts do not abuse their discretion by refusing to allow pre-certification discovery where

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the plaintiff failed to show either a prima facie case for class relief under Rule 23 or that discovery

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was likely to produce substantiation of the class allegations. See id. (class certification was

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properly denied without discovery where plaintiffs could not make a prima facie showing of Rule

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23's prerequisites or that discovery measures were “likely to produce persuasive information
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substantiating the class action allegations”); Mantolete v. Bolger, 767 F.2d 1416 (9th Cir.1985)

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(no abuse of discretion by denying pre-certification discovery where plaintiff merely cited “two

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other complaints filed elsewhere” by similar plaintiffs against the same defendant to demonstrate a

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likelihood that discovery would substantiate class allegations).

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The undersigned, however, agrees that “nothing in Doninger and Mantolete . . . suggests

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that a prima facie showing is mandatory in all cases, and it very well may be the case that courts

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routinely do not require such a showing.” Kaminske v. JP Morgan Chase Bank N.A., 2010 WL

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5782995, at *2 (C.D. Cal. May 21, 2010); see also Wellens v. Daiichi Sankyo Inc., No. C-13-

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00581-WHO (DMR), 2014 WL 969692, at *2 (N.D. Cal. Mar. 5, 2014). Indeed, while Plaintiff
has not clearly addressed Mantolete, it is evident that she requires the information sought to

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United States District Court
Northern District of California

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substantiate the class allegations, and the Court finds that a sample would be appropriate at this

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juncture.
In light of the foregoing, the Court finds that Plaintiff is entitled to contact information

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insofar as it is proportional to the needs of the case.

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ii.

Sample Size

Plaintiff’s final position during the meet and confer process was to limit the pre-

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certification production to 25% of the putative class members. (Joint Letter #1 at 4.) Defendants’

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final proposal was to limit the production of contact information to service-side members only

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comprised of either 25% of all employees in the Greater Los Angeles Region (approximately

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3,900 people) or 10% statewide (approximately 2,800 people). (Joint Letter #1 at 5.) Wells Fargo

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would restrict the contact information produced to names, last known addresses/numbers, and

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employee IDs. Id. Besides the sample size, the only difference in the parties’ proposals is that

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Plaintiff seeks email addresses.1

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As an initial matter, the Court is unconvinced that the production in a statewide class

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action should be limited to the Greater LA Region. Whether the information sought will support a

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statewide class remains to be seen, but, as alleged, the practices described were statewide even if

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The Court interprets Defendants’ “numbers” to mean last known phone numbers.
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Plaintiff’s employment was limited to the district-level. (See Joint Letter #1 at 6.) Furthermore,

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Defendants have not claimed that there is an undue burden in producing information on a

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statewide basis, and, presumably, there is none, because they are willing to provide a 10%

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statewide sample. Moreover, based on the information provided, there does not appear to be an

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ascertainable distinction between the service side and the platform side, because both sides

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provide direct service to customers. (See Joint Letter #1 at 1.) Thus, for the purposes of pre-

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certification discovery, production should not be limited to “service” side employees.
For the sake of proportionality, the Court finds that the 25% sample requested by Plaintiff

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is fair and proportional to the needs of the case. The sample shall be random, and without regard

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for position, geographical location, or “side” of employment. The parties are ordered to meet and

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United States District Court
Northern District of California

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confer regarding how the random sample should be selected.2 In regards to the information

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produced, Wells Fargo is ordered to produce the names, last known addresses, phone numbers,

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email addresses, and employee IDs. Notwithstanding, Defendants are only required to produce

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email addresses if they are ordinarily maintained in the database. They need not scour personnel

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files to locate email addresses.

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B.

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Request No. 6 seeks “[a]ll pay records for each Putative Class Member during the relevant

Requests for Production of Documents Nos. 6 and 7

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time period.” (Joint Letter #2 at 1.) Request No. 7 seeks “[a]ll time records for each Putative

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Class Member during the relevant time period.” Id.
Defendants again contend that Plaintiff is not entitled to discovery because she cannot

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make a prima facie case. (Joint Letter #2 at 4-5.) As discussed above, this argument is unavailing,

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and the Court finds that she is entitled to discovery that is proportional. See discussion supra Part

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III.A.ii. Similarly, the Court orders Defendants to produce the pay and time records for those

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putative class members whose contact information was order produced above. See id.

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The Court declines to task Plaintiff’s undesignated expert with selecting the random sample. (See
Joint Letter #2 at 6.)
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IV.

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CONCLUSION

As set forth above, Defendants are ordered to produce the information above for the

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random sample of 25% of the 43,000 putative class members without regard to position

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classification, service or platform side, or geographic area, and shall do so within 21 days of this

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order.

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IT IS SO ORDERED.
Dated: September 8, 2016
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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