Premier Floor Care, Inc. v. Albertsons Companies, Inc. et al
Filing
67
Order by Magistrate Judge Robert M. Illman denying 66 Discovery Letter Brief. (rmilc2, COURT STAFF) (Filed on 5/10/2024)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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EUREKA DIVISION
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PREMIER FLOOR CARE, INC.,
Plaintiff,
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United States District Court
Northern District of California
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Case No. 21-cv-04188-EMC (RMI)
ORDER RE: SECOND DISCOVERY
DISPUTE
v.
ALBERTSONS COMPANIES, INC., et al.,
Re: Dkt. No. 66
Defendants.
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Now pending before the court is a jointly-filed letter brief (dkt. 66) setting forth a
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discovery dispute that arose near the end of the period allotted for fact discovery in this case.
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Having reviewed the Parties’ arguments, pursuant to Federal Rule of Civil Procedure 78(b) and
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Civil Local Rule 7-1(b), the court finds the matter suitable for disposition without oral argument.
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This is a case for breach of contract, civil conspiracy, and unfair competition, wherein
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Plaintiff (Premier Floor Care, Inc.) alleges that Defendants (Albertson Companies, Inc., and
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Safeway, Inc.) breached a master service contract with Plaintiff – more specifically, “Premier
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alleges Safeway engaged in a civil conspiracy with Service Employees [Union] and, King
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[Janitorial Equipment Services] and their violations of Federal law by allowing them to disrupt the
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bidding process by engaging in false, defamatory and illegal secondary boycotting of Safeway
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stores without consequence or protest.” See Ltr. Br. (dkt. 66) at 1.
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Plaintiff states that the “[t]he critical disputes in the case are (1) whether Safeway entered
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[into] an understanding with King and the Union or aided and abetted their activities in disrupting
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the bidding process by providing substantial assistance or encouraging the picketing events King
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and the Union staged against Premier, and (2) whether the illegal labor disturbances contributed to
United States District Court
Northern District of California
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Safeway’s decision to terminate or were the decisions reflective of Safeway’s independent
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decision regarding the economic merit of contracting with Premier or King.” Id. at 1-2. Having
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already deposed the three persons identified by Safeway as document custodians, Plaintiff submits
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that the “[r]ecent deposition testimony shows that additional unproduced documents may exist that
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will fill out the full record regarding the bidding process and simultaneous labor activities
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promoted by SEIU and King directed at convincing Safeway to terminate Premier.” Id. at 2
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(emphasis added). Consequently, Plaintiff now seeks three additional categories of documents and
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an additional deposition on two topics. Id. As to the first category of documents, Plaintiff seeks
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discovery on “soft awards,” a matter that reportedly arose during the April 15, 2024, deposition of
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Ms. Evans, and which reportedly includes one or more of such awards communicated to King
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during the bidding process. Id. Plaintiff submits that these documents were not produced “despite
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the agreement of the parties of the relevance of all documentation regarding the 2017 / 2018
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bidding process.” Id. The second category of documents concerns store manager reports of the
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four picketing events that Plaintiff considers to be central to its claims in this case. Id. The third
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category pertains to documents “concerning amendments or modifications to the pricing terms of
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the Safeway / King 2018 contract (the initial contract entered on completion of the bidding process
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was produced).” Id. Plaintiff also seeks leave to take another deposition on two topics: (1)
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communications from store managers regarding the union’s picketing events; and, (2)
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modifications of pricing terms of the Safeway / King 2018 contract. Id. However, if corresponding
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documents underlying these two deposition topics are produced, Plaintiff submits that there would
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be no need to take the deposition.
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Defendants submit that Plaintiff’s requests should be deemed untimely because it has
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not identified any timely document request to which the documents it seeks are responsive, and
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that the requests stem from Plaintiff’s recently-tendered 30(b)(6) notice, which was served on
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April 23, 2024, nine business days before the close of discovery and the proposed deposition date.
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Id. at 3. Defendants contend that Plaintiff’s requested deposition is, in fact, merely “an attempt to
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obtain written discovery out of time.” Id. Quite apart from that assertion, Defendants note that “the
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parties agreed to a search protocol in connection with Premier’s requests for production . . .
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[which] was the subject of extensive negotiation and compromise, and until nine days before the
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close of discovery the protocol had apparently satisfied Premier [because] Defendants have
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produced everything responsive that was captured by that search protocol.” Id. Thus, Defendants
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contend that “[t]here is no basis to alter that search protocol now — three years into this litigation
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after dispositive motions have been filed and on the eve of trial.” Id. (emphasis in original).
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Defendants add that regarding documents concerning Safeway’s “soft awards” to other bidders,
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those emails would likely have been captured and produced using the agreed-upon search terms in
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the Parties’ search protocol. Id.
United States District Court
Northern District of California
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As to the two remaining deposition topics and the corresponding documents requests,
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Defendants submit that they seek irrelevant information and are disproportionate to the needs of
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the case. Id. at 4. Defendants contend, and the court agrees, that the terms of King’s relationship
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with Defendants does not appear to make any fact underlying Premier’s claims more or less likely,
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especially given the fact that Premier has conceded that Defendants had an unconditional right to
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terminate the parties’ relationship, and that the Defendants also had an unconditional right to make
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decisions in the request for proposal on any basis they wished. Id. Defendants add that “Premier
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has been unable to identify any false statement that Defendants made, and it has conceded that
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Defendants did not have any agreement with the Union or King to commit an unlawful act against
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Premier.” Id. As to the terms of the King agreement, Defendants note that “Premier has already
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elicited this information at least two different ways. First, Premier took the deposition of King’s
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principal, Javier Brito. Mr. Brito testified that the 2018 contract did not terminate until December
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2023 and that there were no amendments or pricing adjustments during that time frame . . . [and]
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[Defendants] adopted that testimony in response to an interrogatory on the same subject.” Id.
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Defendants note that Plaintiff’s displeasure with these facts “is not a basis on which to compel a
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further response from Safeway and Albertsons.” Id. Regarding the remaining topic and its
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corresponding document request – that is, information related to all communications relating to
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Union demonstrations at Safeway stores on four dates in late 2017 and early 2018 – Defendants
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note that “Premier’s own [deposition] testimony demonstrates that any testimony that either
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Defendant could offer on this topic is wholly irrelevant.” Id. Defendants once again note that
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Plaintiff has already conceded that Defendants were entitled to base their decisions as to the
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request for proposal on any criteria that they wished. Id. Regarding the notion that Safeway
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reportedly encouraged the protests, Defendant notes that Plaintiff’s own witnesses contradict this
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notion, “[o]ne of whom claimed to be present at the protests and noted that Safeway called the
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police to disperse the protesters during the demonstrations.” Id. In line with the declaration
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submitted by Plaintiff’s witness, Defendants note that “Plaintiff’s First Amended Complaint
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similarly alleges that Safeway called the police to stop the protests[, thus] Premier cannot now
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credibly argue that it contends Safeway encouraged or assisted in the protests.” Id.; see also FAC
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(dkt. 64-1) ¶¶ 21-22 (the first picketing event), ¶ 24 (the second picketing event), ¶ 25 (the third
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United States District Court
Northern District of California
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picketing event).
A party seeking to compel discovery has the initial burden of establishing that the request
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satisfies the relevancy requirements of Fed. R. Civ. P. Rule 26(b)(1). See e.g., Soto v. City of
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Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995). That party also bears the burden of showing that
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it has satisfied proportionality and the other requirements of Rule 26. See Rodriguez v. Barrita,
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Inc., No. 09-04057 RS-PSG, 2011 U.S. Dist. LEXIS 134079, at *4 (N.D. Cal. Nov. 21, 2011).
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Nothing in Plaintiff’s portion of the Letter Brief addresses any of Defendants’ arguments, let alone
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convincingly establishes the relevance and proportionality of the information it seeks. See
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generally Ltr. Br. (dkt. 66) at 1-3. In essence, Plaintiff merely identifies several categories of
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information and simply states that it wants the information without offering any persuasive
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argument tethering the requests to any fact of consequence underling any of the claims or defenses
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in this case. Accordingly, for that reason, and for the reasons stated by Defendants, Plaintiff’s
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request to compel the information it seeks is DENIED.
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IT IS SO ORDERED.
Dated: May 10, 2024
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ROBERT M. ILLMAN
United States Magistrate Judge
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