Gehl et al v. Bloomin' Brands et al

Filing 44

ORDER by Judge Kandis A. Westmore regarding 37 Discovery Letter Brief. (kawlc1, COURT STAFF) (Filed on 8/6/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HOLLY GEHL, et al.,

Case No. 13-cv-05961-KAW

Plaintiffs,
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ORDER REGARDING JULY 2, 2014
JOINT DISCOVERY LETTER

v.
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OSI RESTAURANT PARTNERS, LLC, et
al.,
Defendants.

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United States District Court
Northern District of California

Dkt. No. 37

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On July 2, 2014, the parties submitted a joint discovery letter concerning Defendants T-

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Bird Restaurant Group, Inc. and T-Bird Nevada, LLC (“T-Bird Defendants”) responses to Plaintiff

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Holly Gehl’s First Set of Requests for Production and Plaintiffs Holly Gehl, Chris Armenta, and

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Trent Broadstreet’s First Set of Interrogatories. (Joint Letter, Dkt. No. 37.)

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Plaintiffs’ first amended complaint alleges that there are “a series of institutionally

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implemented policies and procedures, across all of California Outback Steakhouse restaurants,

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which operate to deny employees minimum wage, overtime, and compensation for all hours

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worked, and also to prohibit or discourage meal breaks.” (Joint Letter at 1.)

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Plaintiffs identify the pending discovery dispute as pertaining to Holly Gehl’s

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Interrogatories Nos. 4, 8-11 and 12, Chris Armenta’s Interrogatories Nos. 12-19 and 22-25, Trent

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Broadstreet’s Interrogatories Nos. 1-7, 13-16, and Holly Gehl’s Request for Production Nos. 10,

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31, 36, 41, 46, 51 and 64. (Joint Letter at 1 n. 1.) The parties, however, do not address these

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requests individually in their letter, making it impossible for the Court to rule on the specific

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requests.

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Defendants ask the Court to “limit discovery to those aspects of the merits relevant to
making the certification decision on an informed basis.” (Joint Letter at 7.) Thus, Defendants are

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seeking to limit pre-class certification discovery on the grounds that Plaintiffs’ requests are unduly

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burdensome. (See Joint Letter at 9-10.)

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Plaintiffs contend that they are seeking discovery pertaining to putative class members to

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determine whether the wage and hour practices were restaurant-wide. (Joint Letter at 3-4.)

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Plaintiffs contend that there are ten representative plaintiffs “prepared to testify about the same

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restaurant-wide wage theft at five geographically diverse California Outback Steakhouse

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Restaurants”. Id. at 4. For example, Plaintiffs Gehl, Broadstreet, and Ewart are prepared to testify

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that they were required to arrive early to open their respective restaurants even though the

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timekeeping system would not allow them to clock-in until their designated shift start. (Joint

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United States District Court
Northern District of California

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Letter at 5.)
Defendants argue that due to “the highly individualized nature of plaintiffs’ missed break

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and off-the-clock work claims, plaintiffs’ case is not appropriate for statewide class certification.”

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(Joint Letter at 2.) Defendants’ position, however, reinforces Plaintiffs’ articulated need to obtain

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the contact information of putative class members working at other restaurants to show that this

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was not an isolated practice in a limited number of restaurants. Indeed, the fact that at least ten

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employees allegedly experienced the same illegal practices tends to suggest that there may be a

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restaurant-wide practice. This is even more likely if, as Plaintiffs’ allege, all Outback restaurants

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use the same timekeeping system. Thus, at first blush, that Plaintiffs have ten employees who

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worked at five different restaurants, appears sufficient to obtain the contact information for

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putative class members employed at additional Outback locations to determine whether the alleged

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unwritten policies are restaurant-wide versus being confined to those five, identified locations.

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The Court notes that the parties entered into a stipulation to conduct limited discovery in

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May 2013, including sending notices through a third party administrator to nonexempt employees

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at selected restaurant locations. (See Dkt. No. 31.) The Court encourages the parties to consider a

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similar solution in regards to putative class members at the remaining California restaurants.

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Should the parties be unable to reach a solution, they shall file a subsequent joint letter setting

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forth their positions and how they would propose using a third party administrator to send out

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notices to some or all of the remaining putative class members.
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As provided above, the Court is unable to resolve any disputes concerning the specific

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discovery requests because they were not individually addressed in the joint letter. The parties

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are, therefore, ordered to meet and confer in good faith to resolve those disputes without further

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intervention. Should those efforts fail to fully resolve all remaining disputes, the parties shall file

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another joint discovery letter. The letter must be in the following format to ensure that the parties

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are addressing the same requests, and are doing so in a manner that facilitates the Court’s

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resolution of the remaining disputes:

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United States District Court
Northern District of California

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A. Request for Production No. 7
[Summarize the issue and reproduce the request.]
Plaintiff’s Position
[Plaintiff’s position outlining why Defendant’s response is deficient and

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the relief requested.]

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Defendant’s Position

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[Defendant’s rationale as to why it has fully responded to the request, etc.]
B. Request for Production No. 12
[Summarize the issue and reproduce the request.]
Plaintiff’s Position
[Plaintiff’s position outlining why Defendant’s response is deficient and

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the relief requested.]

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Defendant’s Position

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[Defendant’s rationale as to why it has fully responded to the request, etc.]

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This format should be used for each dispute, and the parties should attach the propounded

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discovery and the applicable responses as exhibits to the joint discovery letter.

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IT IS SO ORDERED.
Dated: August 6, 2014
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KANDIS A. WESTMORE
United States Magistrate Judge

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