Palmer v. HSBC Bank, USA, N.A.
Filing
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Discovery Order. In the attached order, the court addresses the discovery dispute in the letter brief at ECF No. 150. (lblc4, COURT STAFF) (Filed on 8/12/2022)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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San Francisco Division
United States District Court
Northern District of California
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LAWRENCE PALMER, et al.,
Case No. 22-cv-02178-VC (LB)
Plaintiffs,
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DISCOVERY ORDER
v.
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Re: ECF No. 150
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HSBC BANK, USA, N.A.,
Defendant.
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INTRODUCTION
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The parties dispute whether the defendant must serve supplemental responses to the plaintiff’s
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written discovery requests.1 The plaintiff argues that the defendant’s responses to the plaintiff’s (1)
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Requests for Production Nos. 1–11, 13–26, 29–38 and (2) Interrogatories Nos. 1–33 are improper
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or incomplete.2 The plaintiff also challenges the defendant’s failure to (1) provide a privilege log,
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(2) verify the responses to the interrogatories “under oath,” and (3) produce unredacted copies of
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responsive documents.3 The defendant counters that the material the plaintiff’s seeks is beyond the
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scope of permissible discovery because (1) the only remaining claims are the plaintiff’s individual
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Disc. Letter – ECF No. 150. Citations refer to material in the Electronic Case File (ECF); pinpoint
citations are to the ECF-generated page numbers at the top of documents.
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Id. at 2–3.
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Id. at 4.
ORDER – No. 22-cv-02178-VC (LB)
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claims under the Fair Credit Reporting Act (FCRA) and (2) the defendant has produced all the
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documents it has relating to the plaintiff’s “FCRA claims, including the firm offer of credit that
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was mailed to [the plaintiff], a copy of the contract it entered into with Equifax to pull the credit of
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individuals who met a set of preselection criteria, [the defendant’s] internal policies regarding
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FCRA compliance, and evidence confirming that a majority of those consumers who were sent the
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same firm offer of credit as [the plaintiff] were able to open credit cards with [the defendant].”4
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The court denies the plaintiff’s request to compel further written discovery responses. Most of
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the material and information sought in the plaintiff’s interrogatories and requests for production is
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not relevant and proportional to the needs of this case, which now involves a single claim for an
United States District Court
Northern District of California
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individual FCRA violation.
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STATEMENT
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This case began as a putative class action against financial institutions where the plaintiff
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asserted claims under state and federal law. The operative Third Amended Complaint includes the
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following claims: (1) FCRA violations (negligent and intentional); (2) California Bus. & Prof.
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Code § 17200 (UCL) violations; (3) California Consumer Credit Reporting Agencies Act (Civil
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Code § 1785 et seq.) violations; (4) California Invasion of Privacy Act (CIPA), Cal. Penal Code
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§§ 630, violations; (5) Comprehensive Computer Data Access and Fraud Act (CDAFA), Cal.
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Penal Code § 502, violations; (6) Intrusion Upon Seclusion; and (7) Public Disclosure of Private
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Facts.5
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The original named plaintiff and proposed class representative, Lawrence Palmer, died in
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September 2021.6 The plaintiff moved to substitute Mr. Palmer’s spouse, Jeanie Palmer, for Mr.
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Palmer.7 The court found that Jeannie Palmer was not an adequate representative of the class and
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was not properly substituted for purposes of the state-law claims and that joinder of the defendants
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Id. at 5.
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Third Am. Compl. – ECF No. 68 at 10–29 (¶¶ 74–194).
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Suggestion of Death – ECF No. 117; Mot. to Substitute – ECF No. 119 at 4.
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Mot. to Substitute – ECF No. 119.
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ORDER – No. 22-cv-02178-VC (LB)
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United States District Court
Northern District of California
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named in the original case was not proper.8 In April 2022, the court severed the original case
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(3:20-cv-06309-VC) into four separate actions (3:22-cv-02177-VC, 3:22-cv-02178-VC, 3:22-cv-
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02179-VC, 3:22-cv-02180-VC ).9 The court also struck the class allegations and dismissed all of
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the claims except Ms. Palmer’s individual federal claim.10
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Given the trial court’s recent orders, the only pending claim is for alleged violations of the
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FCRA. The defendant has moved for summary judgment on this claim on grounds that it did not
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violate the FCRA because it gave the plaintiff’s husband, Lawrence Palmer, a “firm offer of
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credit.”11 In this regard, 15 U.S.C. § 1681b(c)(1)(B)(i) provides that “[a] consumer reporting
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agency may furnish a consumer report relating to any consumer pursuant to subparagraph (A) or
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(C) of subsection (a)(3) in connection with any credit or insurance transaction that is not initiated
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by the consumer only if . . . the transaction consists of a firm offer of credit or insurance.” See
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Chavez v. Premier Bankcard, LLC, No. 1:11-cv-01101 LJO GSA, 2011 WL 5417107, at *3 (E.D.
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Cal. Nov. 8, 2011) (“Congress amended the FCRA in 1996 to permit creditors to purchase
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prescreened lists of consumers who meet the creditor’s specific criteria without the consumers’
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consent as long as the purchaser intends to give the consumer a ‘firm offer of credit.’”). In
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opposition to the defendant’s motion for summary judgment, the plaintiff states: “The issue in this
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case is whether [the defendant] had a ‘permissible purpose’ to procure Plaintiff’s credit reports on
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an inquiry basis.”12 In sum, the live claims and defenses are narrow and involve only whether the
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defendant violated the FCRA by obtaining Mr. Palmer’s credit report.
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Orders – ECF Nos. 125, 133.
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Order – ECF No. 133.
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Id. at 2.
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Mot. for Summ. J. – ECF No. 144 at 13.
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Opp’n – ECF No. 148 at 13.
ORDER – No. 22-cv-02178-VC (LB)
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ANALYSIS
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1. Relevancy
The court must first determine whether the information sought is relevant. See Fed. R. Civ. P.
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26(b) (subject to the limitations imposed by Rule 26(b)(2)(C), “[p]arties may obtain discovery
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regarding any nonprivileged matter that is relevant to any party’s claim or defense and
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proportional to the needs of the case”).
While the plaintiff made various claims about the sufficiency of the defendant’s discovery
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responses, the plaintiff did not demonstrate that all information sought is relevant to the live
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claims and defenses or proportional to the needs of the case. Some of the material sought is plainly
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Northern District of California
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beyond the scope of permissible discovery given the narrow claim at issue.
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For instance, Request for Production No. 6 asks for all communications between the defendant
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and any person with whom the defendant shared the plaintiff’s personally identifiable information
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during the class period relating to the sharing of that information.13 Interrogatory No. 10 asks for
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the identity of all persons to whom the defendant transmitted class members’ personally
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identifiable information and Interrogatory No. 13 asks for the purpose for which class members’
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personally identifiable information was transmitted to any person.14
The material sought through these discovery requests primarily relates to the now-dismissed
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class action privacy claims. It does not, in general, relate to the pending FCRA claim. The over
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broad discovery requests are apparently based on a misconception about what issues are currently
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live. In the discovery letter, the plaintiff mischaracterizes the scope of the case as it stands now
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when she states that “[t]his is a privacy case that concerns the transmission and use of personally
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identifiable information without authorization.”15
The plaintiff’s position does not account for the fact that only one individual claim for alleged
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violations of the FCRA is currently pending. Only material that is relevant to this claim or the
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Def.’s Resps. to Req. for Produc., Ex. 2 to Disc. Letter – ECF No. 150-1 at 25.
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Def.’s Resps. to Interrog., Ex. 4 Disc. Letter – ECF No. 150-1 at 72, 74.
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Disc. Letter – ECF No. 150 at 1.
ORDER – No. 22-cv-02178-VC (LB)
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defendant’s defenses and “proportional to the needs of the case” is discoverable. The plaintiff has
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made no effort to show that any of the material sought meets this threshold.
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While the material sought does not, in general, relate to the pending FCRA claim, there are
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exceptions. For example, Request for Production No. 30 asks for “any firm offer of credit [the
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defendant] claim[s] to have sent to [the plaintiff], if any.”16 Any document responsive to this
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request should be produced without redaction. Similarly, Interrogatory No. 8 asks for the identity
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of “the director, employee or officer at [the defendant’s] company who is most responsible for
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compliance with the FCRA.”17 This information may be relevant. The problem is the plaintiff has
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not specifically explained why the material is discoverable given the narrow claim at issue.
Furthermore, the documents that the defendant has already produced, including “the firm offer
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Northern District of California
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of credit that was mailed to [the plaintiff], [and] a copy of the contract it entered into with
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Equifax,” appear to be sufficient to evaluate the plaintiff’s individual FCRA claim and the
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defendant’s contention that it complied with the FCRA.18 Although these responses were served
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before the court dismissed the state-law claims, they were based on Judge Corley’s order limiting
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discovery “to material necessary to adjudicate Plaintiff’s individual FCRA claims.”19
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In short, the plaintiff’s request to compel the defendant to provide further responses to
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Requests for Production Nos. 1–11, 13–26, 29–38 and Interrogatories Nos. 1–33 is unjustified
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because most of the material and information sought is not within the scope of permissible
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discovery. Therefore, the plaintiff’s request to compel supplemental discovery responses is denied
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without prejudice. In any further discovery letter, the parties must (1) specifically identify each
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disputed request for production or interrogatory and (2) provide each party’s view on why the
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information sought in each request is or is not discoverable.
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Def.’s Resps. to Req. for Produc., Ex. 2 to Disc. Letter – ECF No. 150-1 at 41.
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Def.’s Resps. to Interrog., Ex. 4 Disc. Letter – ECF No. 150-1 at 71.
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Disc. Letter – ECF No. 150 at 5.
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Id. (“Mindful of the narrow scope of discovery set by Judge Corley and the narrow scope of the
issues raised in HSBC’s motion . . . .”); Order – ECF No. 64; Def.’s Resps. to Interrog., Ex. 4 Disc.
Letter – ECF No. 150-1 at 88–89; Def.’s Resps. to Req. for Produc., Ex. 2 to Disc. Letter – ECF No.
150-1 at 47.
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ORDER – No. 22-cv-02178-VC (LB)
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2. Other Issues
The plaintiff raised several other issues: (1) the lack of a privilege log, (2) verification “on
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information and belief,” and (3) relevancy redactions.20 Regarding the privilege log, if the
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defendant is withholding any documents based solely on a claim of privilege, it should “produce a
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privilege log that is sufficiently detailed for the opposing party to assess whether the assertion of
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privilege is justified.” Prado v. Equifax Info. Servs. LLC, No. 18-cv-02405-PJH (LB), 2019 WL
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88140, at *3 (N.D. Cal. Jan. 3, 2019). Because the defendant appears to primarily rely on other
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objections to the defendant’s discovery requests (e.g., relevancy, proportionality), it need not
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produce a privilege log at this time.
On the verification issue, it is not necessarily improper to include “information and belief”
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Northern District of California
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language in the verification of interrogatory responses. See Bona Fide Conglomerate, Inc. v.
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SourceAmerica, No. 3:14-cv-00751-GPC-AGS, 2017 WL 3149578, at *7 (S.D. Cal. July 24,
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2017) (holding that verification statement that included the phrase “I am informed and believe”
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satisfied Rule 33 because “[n]one of the actual answers to the interrogatories [were] stated on
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information and belief, and all of interrogatory answers were verified . . . under penalty of perjury
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to be true and correct.”). Because the individual interrogatory responses are not made on
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information and belief, the defendant’s verification statement complies with the oath requirement
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in Rule 33(b)(3).
Concerning relevancy redactions, so-called relevancy redactions are not prohibited but are
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generally disfavored outside of certain limited circumstances. Kellman v. Whole Foods Mkt.
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California, Inc., No. 17-cv-06584-LB, 2021 WL 4476779, at *2 (N.D. Cal. Sept. 30, 2021). For
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example, in Barnes v. Equinox Group, the court permitted a class representative to redact non-
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responsive private information from bank statements that otherwise contained relevant information
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concerning the class representative’s “side business.” No. C 10-03586 LB, 2012 WL 13060044, at
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*3–4 (N.D. Cal. June 14, 2012). But in Francisco v. Emeritus Corp., the court disallowed
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Disc. Letter – ECF No. 150 at 4.
ORDER – No. 22-cv-02178-VC (LB)
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relevancy redactions to an employee handbook in a wage-and-hour action even though the
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defendant offered to allow the plaintiff to identify relevant sections of the handbook by reference
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to a table of contents because “[n]either Plaintiff nor the Court [could] say with confidence that the
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only relevant portions of the handbook [could] be discerned from a review of a table of contents.”
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No. CV 17-2871 BRO (SSX), 2017 WL 11036693, at *6 (C.D. Cal. Sept. 5, 2017).
The plaintiff argues that the defendant “has improperly produced documents that are wholly
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redacted,” but has not provided any other details to help the court evaluate whether the redactions
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are justified or not.21 Thus, the court declines to order the defendant to produce unredacted
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versions of all documents it has produced.
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CONCLUSION
United States District Court
Northern District of California
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The plaintiff’s request to compel supplemental responses to its interrogatories and requests for
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production is denied without prejudice.
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IT IS SO ORDERED.
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Dated: August 12, 2022
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LAUREL BEELER
United States Magistrate Judge
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Id.
ORDER – No. 22-cv-02178-VC (LB)
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