Galvez v. Ulta Salon, Cosmetics & Fragrance, Inc. et al

Filing 44

ORDER by Magistrate Judge Howard R. Lloyd re 41 Discovery Dispute Joint Report No. 1. (hrllc2, COURT STAFF) (Filed on 4/20/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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YVETTE GALVEZ, as an individual and on
behalf of all others similarly situated,
Plaintiff,

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v.

Case No. 5:14-cv-00110 EJD (HRL)
ORDER RE DISCOVERY DISPUTE
JOINT REPORT NO. 1
[Re: Dkt. 41]

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ULTA SALON, COSMETICS &
FRAGRANCE, INC., a Delaware
corporation, and DOES 1 through 50,
inclusive,
Defendants.

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Plaintiff Yvette Galvez is a former employee of defendant Ulta Salon, Cosmetics &

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Fragrance (Ulta). She sues for herself, and on behalf of a putative class, for alleged wage and hour

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violations. Among other things, she claims that Ulta required her (and other employees) to accept

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payment in the form of electronic pay cards (which impose certain fees), without authorization

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from the employee.

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In Discovery Dispute Joint Report (DDJR) No. 1, defendant seeks an order compelling

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plaintiff to answer deposition questions about her former employment at Bath and Body Works.

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Specifically at issue are questions about Bath and Body Works’ alleged practice of paying wages

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to employees via pay cards. Although she answered a few questions, plaintiff’s counsel instructed

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her not to answer any further questions, arguing that the information is irrelevant to plaintiff’s

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employment with Ulta. The matter is deemed suitable for determination without oral argument.

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Civ. L.R. 7-1(b). Upon consideration of the parties’ respective arguments, the court concludes

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that the requested discovery is not relevant to class certification. Nevertheless, if a class is

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certified, Ulta may pursue such information in merits/post-certification discovery.

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Preliminarily, plaintiff argues that the instant DDJR is untimely. Pursuant to this court’s

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Standing Order re Civil Discovery Disputes, a DDJR must be filed no later than 14 days after the

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last in-person meet-and-confer session between lead counsel. By all accounts, the parties’ first

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(and last) in-person meet-and-confer session took place at plaintiff’s February 18, 2015

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deposition. Thus, in plaintiff’s view, this DDJR should have been filed by March 4, but was not
filed until April 3. Ulta argues that it timely provided its Joint Dispute Report to plaintiff’s

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United States District Court
Northern District of California

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counsel on March 10, i.e., 14 days from receipt of the deposition transcript. This court is not

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convinced that the filing of the instant DDJR depended on the receipt of the transcript---this

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discovery dispute adequately could have been communicated to the court without the need to

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quote the transcript verbatim. Nevertheless, Ulta initially brought this dispute as a regularly

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noticed motion to compel on March 6; and, it was not until March 9 (i.e., more than 14 days from

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the parties’ in-person meet-and-confer) that this court advised that it no longer entertains noticed

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discovery motions and that compliance with the Standing Order was required. Plaintiff’s

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timeliness argument therefore is rejected in this particular instance. Ulta is, however, admonished

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to be mindful of the timing requirements on any future DDJR.

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As for the relevance of the requested discovery, Ulta is correct that relevance is not a

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proper basis for instructing a witness not to answer questions in deposition. See Fed. R. Civ. P.

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30(c)(2) (“A person may instruct a deponent not to answer only when necessary to preserve a

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privilege, to enforce a limitation ordered by the court, or to present a motion under Rule

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30(d)(3).”). Even so, discovery has been bifurcated into two phases: class certification discovery

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and merits/post-certification discovery. (Dkt. 34 at 2). Defendant has not convincingly

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demonstrated that the requested discovery is relevant to plaintiff’s adequacy as a class

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representative (or any other class certification issue). See generally Stanton v. Boeing Co., 327

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F.3d 938, 957 (9th Cir. 2003) (stating that the test for adequacy asks whether the class
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representative and her counsel (1) have any conflicts of interest with other class members and (2)

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will prosecute the action vigorously on behalf of the class).

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Ulta, however, maintains that plaintiff’s prior employment, including her receipt of

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payment by electronic pay card, is relevant to plaintiff’s credibility and to her claim that she did

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not know how to access all of the money from her pay card without incurring a fee. Given the

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broad standard of relevance for discovery purposes, this court agrees that the requested

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information is relevant or reasonably calculated to lead to the discovery of admissible evidence on

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matters that are at issue. Fed. R. Civ. P. 26(b)(1). Plaintiff’s privacy objections therefore are

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overruled (and, plaintiff does not deny that those objections were never raised during the parties’
meet-and-confer). In any event, for the reasons stated above, Ulta may explore plaintiff’s prior

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United States District Court
Northern District of California

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experience of being compensated with electronic payment cards. However, defendant may do so

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only if a class is certified and merits discovery opens.

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SO ORDERED.

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Dated: April 20, 2015

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______________________________________
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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5:14-cv-00110-EJD Notice has been electronically mailed to:

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Alexis Anne Sohrakoff

[e-mail], [e-mail]

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Daniel Hyo-Shik Chang [e-mail], [e-mail],
[e-mail]

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John C Kloosterman

[e-mail], [e-mail]

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Kai-Ching Cha

[e-mail], [e-mail]

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Larry W Lee [e-mail], [e-mail], [e-mail],
[e-mail], [e-mail], [e-mail]

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William Lucas Marder

[e-mail]

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United States District Court
Northern District of California

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