Delgado v. MarketSource, Inc.,

Filing 65

INTERIM ORDER re 59 Discovery Dispute re PAGA-Related Discovery. Signed by Magistrate Judge Virginia K. DeMarchi on 4/23/2019. (vkdlc2S, COURT STAFF) (Filed on 4/23/2019) Modified on 4/23/2019 (vkdlc2S, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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RAY DELGADO,

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Plaintiff,

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v.

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MARKETSOURCE, INC.,

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United States District Court
Northern District of California

Case No.17-cv-07370-LHK (VKD)

Defendant.

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INTERIM ORDER RE DISCOVERY
DISPUTE RE PAGA-RELATED
DISCOVERY
Re: Dkt. No. 59

In this action, plaintiff Ray Delgado asserts a claim under California’s Private Attorneys

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General Act (“PAGA”) against defendant MarketSource, Inc. (“MarketSource”) for failure to pay

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final wages upon termination of employment, in violation of California Labor Code § 201. Mr.

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Delgado seeks the following discovery of MarketSource in connection with that claim:

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1. The date of termination for each MarketSource employee who was involuntarily
terminated during the PAGA period1 (Interrogatory No. 17);

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2. The date final wages were paid to each such employee (Interrogatory No. 18);

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3. Copies of the paychecks reflecting the payment of final wages to each such employee
(Request for Production No. 67);

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4. Copies of the wage statements reflecting the payment of final wages to each such
employee (Request for Production No. 68).

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Dkt. No. 59 at ECF 9, 12.

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The Court conducted a hearing on this dispute on April 23, 2019. At the hearing, Mr.

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Delgado represented that he recently identified and disclosed to MarketSource the names of five

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former employees who contend that they were not paid final wages upon termination of their

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The parties agree that the period of time encompassed by Mr. Delgado’s PAGA claim is
September 26, 2016 to the present.
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employment. Dkt. No. 64. MarketSource contends that for at least two of those employees, their

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employment was terminated before commencement of the PAGA period. Id.

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MarketSource objects to Mr. Delgado’s discovery requests on several grounds, including

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that the discovery is not proportional to the needs of the case because it would require

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investigation of the termination dates and final wage payment dates for 963 former employees.

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This argument is very similar to MarketSource’s principal argument in support of its pending

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motion to strike Mr. Delgado’s PAGA claim. See Dkt. No. 52. The parties appear to agree that

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Judge Koh’s decision with respect to the motion to strike may moot this discovery dispute in its

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entirety, and at the very least will inform its resolution.

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The Court defers ruling on this discovery dispute at this time. However, if the decision on

United States District Court
Northern District of California

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the motion to strike does not moot the relief Mr. Delgado seeks here, the parties should be

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prepared, upon further order of the Court, to confer about and update the Court regarding the

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following matters which are presently not addressed in the joint discovery submission:

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1. The time required for MarketSource to provide responsive information and documents

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with respect to the five employees identified in Mr. Delgado’s amended initial

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disclosures;

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2. A procedure for assessing whether the termination and final wage payment data in

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MarketSource’s records (i.e. the PeopleSoft system) for a given terminated employee

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requires further investigation (e.g., whether a query of the PeopleSoft system reflects

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an apparent violation that may be due to data entry errors), and if so, what amount of

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time MarketSource would require to conduct such further investigation;

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3. If MarketSource contends that such further investigation would be prohibitively

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burdensome, a method for investigating and producing data for a statistically

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significant sample of the relevant terminated employees.

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IT IS SO ORDERED.
Dated: April 23, 2019

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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