Kilby v. CVS Pharmacy, Inc.

Filing 182

ORDER re 160 Joint Motion for Determination of Discovery Disputes (Plaintiff's Fourth Set of Interrogatories And Document Requests.) It is ordered that the Court finds that plaintiffs request for an order compelling further responses to th ese discovery requests must be granted in part and denied in part. Defendant shall comply with this Order by providing plaintiff with the documents and information as set forth above as soon as possible and on a rolling basis. Defendant must fully comply with this Order no later than 6/23/2017. Signed by Magistrate Judge Karen S. Crawford on 4/18/2017. (dxj)

LJ
cis urn

1

i i

2

APR 1 9 2017

3
CLtRK US DISTRICT COURT
SOUT HERN DISmiEnptjF CALIFORNIA
BY
________
TWY
DEPUTY

4

5
6
7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9
10

11
12

Case No.: 09cv2051-MMA(KSC)

NYKEYA KILBY, individually and on
behalf of all others similarly situated,

13

ORDER RE JOINT MOTION FOR
DETERMINATION OF DISCOVERY
DISPUTES (PLAINTIFF'S FOURTH
SET OF INTERROGATORIES AND
DOCUMENT REQUESTS)

Plaintiff,

14

v.

15

CVS PHARMACY, INC.,

16

Defendant.
[Doc. No. 160-163.]

17
18
19

Before the Court is the parties’ Joint Motion for Determination of Discovery

20

Dispute. [Doc. Nos. 160-163.] In the Joint Motion, plaintiff seeks an order compelling

21

defendant to provide further responses to her Fourth Set of Interrogatories and Requests

22

for Production of Documents. For the reasons outlined more fully below, the Court

23

finds that plaintiffs request for an order compelling further responses to these discovery

24

requests must be GRANTED in part and DENIED in part.

25
26

Background
The original Class Action Complaint in this case was filed on September 18, 2009.

27

[Doc. No. 1.] A First Amended Class Action Complaint was later filed on January 15,

28

2010 (the “First Amended Complaint”). [Doc. No. 6.] The First Amended Complaint
l
09cv205 l-MMA(KSC)

1

includes a single cause of action under California Labor Code Section 2698 et seq., also

2

known as the Private Attorney General Act of 2004 (“PAGA”). [Doc. No. 6, at p. 2.]

3

According to the First Amended Complaint, PAGA allows employees to recover

4

penalties when an employer violates certain provisions of the California Labor Code.

5

[Doc. No. 6, at p. 5.] California Labor Code Section 1198 requires employers to comply

6

with wage orders. Section 14(a) of Wage Order 7-201 states that: “All working

7

employees shall be provided with suitable seats when the nature of the work reasonably

8

permits the use of seats.” [Doc. No. 6, at p. 5.] In this regard, plaintiff alleges that

9

Section 14(a) applies to the “mercantile industry” and that defendant is a member of the

10

“mercantile industry.” [Doc. No. 6, at p. 4.] Plaintiff claims she was employed in one

11

of defendant’s retail drug stores in California as a cashier but was not provided with a

12

seat while performing her work in violation of California Labor Code Section 1198 and

13

Section 14(a) of Wage order 7-2001. [Doc. No. 6, at p. 2.]

14

On October 3, 2001, plaintiff filed a Motion for Class Certification. [Doc. No. 63.]

15

On April 4, 2012, the District Court denied plaintiff’s Motion for Class Certification,

16

concluding that plaintiff failed to satisfy the commonality requirement of Rule 23(a) and

17

the predominance and superiority requirements of Rule 23(b)(3). [Doc. No. 131, at p.

18

10.] i

19

Next, defendant filed Motion for Summary Judgment [Doc. No. 113], which was

20

granted by the District Court on May 31, 2012. [Doc. No. 136.] It was the District

21

Court’s view that Section 14(a) did not apply to plaintiff’s position of cashier, because

22
23
24
25
26
27
28

Defendant also filed a Motion to Strike the Pre-Certification Report of plaintiff’s
expert based on lack of foundation, inadequate data, irrelevant facts, suspect
observations, and erroneous assumptions. [Doc. No. 83.] In its Order of April 4, 2012,
the District Court granted in part and denied in part defendant’s Motion to Strike. [Doc.
No. 131, at p. 1.] Although the District Court acknowledged that the challenged report
included generally “shaky” evidence, it found that, for the most part, it withstood scrutiny
under Federal Rule of Evidence 702. [Doc. No. 131, at p. 5.]
2

09cv2051 -MMA(KSC)

1

the “nature of the work” required standing. [Doc. No. 136, at p. 10.] Judgment was

2

entered in favor of defendant, and the case was terminated. [Doc. No. 136, at p. 10.]

3

Plaintiff appealed. [Doc. No. 139.]

4

To prevent different interpretations of Section 14, the Ninth Circuit requested that

5

the California Supreme Court exercise its discretion to decide the following questions

6

about the meaning of Section 14(a). [Doc. No. 147, at pp. 1-14.]

7
8
9
10
11
12

Does the phrase ‘nature of the work’ refer to an individual task
1.
or duty that an employee performs during the course of his or her workday,
or should courts construe ‘nature of the work’ holistically and evaluate the
entire range of an employee’s duties?
If the courts should construe ‘nature of the work’
a.
holistically, should the courts consider the entire range of an employee’s
duties if more than half of an employee’s time is spent performing tasks that
reasonably allow the use of a seat?

13
14
15
16

When determining whether the nature of the work ‘reasonably
2.
permits’ the use of a seat, should courts consider any or all of the following:
the employer’s business judgment as to whether the employee should stand,
the physical layout of the workplace, or the physical characteristics of the
employee?

17
18
19

If an employer has not provided any seat, does a plaintiff need
3.
to prove what could constitute ‘suitable seats’ to show the employer has
violated Section 14(a)?

20
21

[Doc. No. 147, at pp. 2-3.]

22

On April 14, 2016, the California Supreme Court issued a decision entitled Kilby v.

23

CVS Pharmacy, Inc., 63 Cal.4th 11 (2016). Considering the phrase “nature of the work,”

24

the California Supreme Court rejected the defendant’s argument that Section 14(a)

25

requires “weighing all of an employees’ ‘standing’ tasks against all of the ‘sitting’ tasks”

26

while ignoring the duration of those tasks and how often they are performed. Id. at 16-

27

17. Rather, the California Supreme Court said the inquiry must focus on “consideration

28

of the overall job duties performed at the particular location by any employee while
3

09cv2051 -MMA(KSC)

1

working there, and whether those tasks reasonably permit seated work.” Id. at 17. In

2

other words, the California Supreme Court rejected an “all-or-nothing approach [that]

3

could deprive an employee of a seat because most of his job duties are classified as

4

‘standing’ tasks, even though the duration, frequency, and location of the employee’s

5

most common tasks would make seated work feasible while performing them.” Id.

6

According to the California Supreme Court, “[t]here is no principled reason for denying

7

an employee a seat when he spends a substantial part of his workday at a single location

8

performing tasks that could reasonably be done while seated, merely because his job

9

duties include other tasks that must be done standing.” Id.

10

The California Supreme Court also held that a “totality of the circumstances”

11

approach should be applied to determine whether the nature of the work “reasonably

12

permits” the use of a seat. Id. at 19. “Analysis begins with an examination of the

13

relevant tasks, grouped by location, and whether the tasks can be performed while seated

14

or require standing. This task-based assessment is also balanced against considerations

15

of feasibility. Feasibility may include, for example, an assessment of whether providing

16

a seat would unduly interfere with other standing tasks, whether the frequency of

17

transition from sitting to standing may interfere with the work, or whether seated work

18

would impact the quality and effectiveness of overall job performance. This inquiry is

19

not a rigid quantitative analysis based merely upon the counting of tasks or amount of

20

time spent performing them. Instead, it involves a qualitative assessment of all relevant

21

factors.” Id. at 20. Other relevant factors may include the employer’s business

22

judgment based on an objective standard (e.g., “an employer’s reasonable expectations

23

regarding customer service” and “any evidence submitted by the parties bearing on an

24

employer’s view that an objective job duty is best accomplished standing”); and “the

25

physical layout of a workspace.” Id. at 21-22.

26

On June 8, 2016, the Ninth Circuit issued a Memorandum decision reversing and

27

remanding the case to the District Court “to reconsider in light of the California Supreme

28

Court’s opinion.” [Doc. No. 155, at p. 2.] Thereafter, this Court directed the parties to
4
09cv2051 -MMA(KSC)

1

submit a Joint Discovery Plan and appear for a Case Management Conference. [Doc.

2

No. 153.] Following a telephonic Case Management Conference, a Scheduling Order

3

was issued to allow the parties additional time to complete or update class-related

4

discovery and to file any motions related to class certification. [Doc. No. 159.] The

5

instant Joint Motion is one of three discovery disputes currently before the Court. [Doc.

6

Nos. 160,167, and 178.]

7

Discussion

8

Plaintiffs Interrogatory Nos. 17,18,19, 20, and 21 all seek information related to

9

the cashier stands at defendant’s stores. In these requests, plaintiff seeks to elicit

10

information to support her theory that defendant’s stores in California “share similar

11

cash register layouts.” [Doc. No. 160, at p. 9.] As to all of defendant’s stores in

12

California that have been open since June 9, 20082 to the present and as to all cash

13

registers in those stores, plaintiff seeks a detailed description of the following: the

14

cashier stands and configurations [No. 17]; the physical dimensions of the workspaces

15

behind and around the cash registers and why those physical dimensions preclude the

16

use of a seat or stool [No. 18]; the unique attributes of the register stands that impact or

17

preclude the use of a seat or stool [No. 19]; the distances between the check-out stands

18

and the product wall [No. 20]; and the identity of any store where defendant contends it

19
20
21
22
23
24

25
26
27

28

Defendant objects to providing discovery beginning on June 9, 2008, arguing that
“the relevant time period begins on September 18, 2008, one year preceding the date that
plaintiff filed her original complaint.” [Doc. No. 160, at p. 8.] However, plaintiff argues
that under California Labor Code 2699.3 the statute of limitations extends back to one
year before she served her “original pre-litigation PAGA notice.” [Doc. No. 160, at p. 2.]
In the context of resolving a discovery dispute, the applicable statute of limitations is not
properly before the Court. However, the Court finds that plaintiff reasonably seeks
discovery beginning on June 9, 2008, one year before she “filed her pre-filing PAGA
notice pursuant to [California] Labor Code § 2699.3.” [Doc. No. 160-1, at p. 2.]
Accordingly, for purposes of discovery in this action, the Court finds that the relevant
time period is June 9, 2008 through the present.
2

5

09cv2051 -MMA(KSC)

1

would be physically possible or impossible to use a seat or stool while operating the cash

2

registers. [Doc. No. 160, atpp. 7-19.]

3

As defendant contends, Interrogatory No. 17, 18,19, 20, and 21 are all unduly

4

burdensome and overly broad. In California, defendant currently has about 870 stores.

5

If closed stores are added to this calculation, defendant has had approximately 940 stores

6

in California during the relevant time period. Assuming a minimum of four cash stands

7
8

in each store, plaintiff’s interrogatories seek detailed information about some 3,480 cash

9
10

configuration, due in part to the acquisition of a significant number of stores from other
retail companies, and defendant does not maintain the records necessary to respond to

11

the level of detail plaintiff seeks. [Doc. No. 160, at p. 13.]

12

stands. [Doc. No. 160, at pp. 12-17.] In addition, the stores vary in size, layout, and

Plaintiff proposed an e-mail procedure to collect the information requested in these

13

interrogatories. The proposed procedure would require store managers in all of

14

defendant’s 870 stores in California to describe, photograph, and measure some 3,480

15

register stations. [Doc. No. 160, at pp. 11-12.] However, the Court agrees with

16

defendant that this store-by-store procedure is too burdensome, too expensive, and

17

unworkable. The managers are not trained about cash station design and are not familiar

18

with any standards or terminology that could be used to make the results accurate or

19

reliable. As defendant contends, there is no guarantee that the managers would all

20

consistently measure, photograph, and describe the same things so that the parties could

21

rely on the information they provide. [Doc. No. 160, at p. 15.] To obtain accurate,

22

consistent information, defendant would have to send someone to all of the stores and

23

this would not only be very expensive, it “would take months of effort.” [Doc. No. 160,

24

at p. 14.]

25

It also appears that these interrogatories seek information that is disproportional to

26

the needs of the case. At this point in the litigation, plaintiff seeks this vast amount of

27

information in connection with two issues related to class certification (commonality and

28

predominance). Without more, there is nothing to indicate plaintiff actually needs all of
6
09cv2051 -MMA(KSC)

1

the requested information about each of defendant’s stores and cash registers in order to

2

adequately support its theory that “CVS stores share similar cash register layouts.”

3

[Doc. No. 160, at p. 9.] Under the circumstances presented, it appears that an adequate

4

sampling would be sufficient. Accordingly, the Court will not require defendant to

5

provide the information requested in these interrogatories for all of defendant’s stores in

6

California. Without more, information about a representative sample of stores is

7

sufficient under the circumstances.

8

Additionally, it is apparent that some of the information sought in these

9

interrogatories is duplicative of discovery already made available to plaintiff. For

10

example, defendant previously provided plaintiff with photographs and measurements of

11

the “cash wraps” in 20 stores in different locations throughout the state. [Doc. No. 160,

12

at p. 14.] Plaintiff rejected defendant’s offer to provide similar information for

13

additional stores. [Doc. No. 160, at p. 14.] As of the date the parties’ Joint Motion was

14

filed, defendant also represented it had produced “132 store layouts” that offer “a bird’s

15

eye view” of each of these stores. [Doc. No. 160, at p. 14.]

16

As to Interrogatory Nos. 18 and 19, seeking the unique attributes and physical

17

dimensions of the workspaces behind and around the cash registers that allegedly

18

preclude the use of a seat or stool, defendant previously identified some examples based

19

on sampling and witness testimony. [Doc. No. 160, at p. 19.] Although defendant

20

offered to provide more examples based on additional sampling, plaintiff declined and

21

insisted on a store-by-store analysis of all California stores. [Doc. No. 160, at p. 19.]

22

Plaintiff objects to the information already produced for two main reasons. First,

23

plaintiff contends that the diagrams previously produced showing cash register

24

configurations at 20 stores are out of date, because they were produced in response to

25

discovery requests served in 2011 “as of that date.” [Doc. No. 160, at p. 11.] Second,

26

plaintiff alleges that defendant “cherry picked” the stores to support its version of the

27

facts (i.e., that there are many types of cashier stands and configurations at its stores).

28

[Doc. No. 160, at p. 12.]
7

09c v2051 -MMA(KSC)

1

While defendant has offered to provide additional sampling and to update the

2

information previously produced [see, e.g., Doc. No. 160, at p. 8], plaintiff has not

3

offered to narrow the scope of Interrogatory Nos. 17,18,19, 20, and 21. The Court

4

expects a party seeking discovery to attempt to narrow the scope of broadly worded

5

requests during meet and confer sessions and to discuss any such efforts in any moving

6

papers seeking an order compelling further responses. Since it appears that plaintiff did

7
8

not attempt to narrow the scope of these requests, it is difficult for the Court to
determine the size of an adequate sampling.3
Based on the foregoing, the Court finds that defendant’s request for an order

9
10

compelling defendant to provide full and complete responses to Interrogatory Nos. 17,

11

18, 19, 20, and 21, as worded, must be DENIED. However, if plaintiff provides

12
13

defendant with a list of twenty (20) additional, randomly selected stores in California,
the Court will require defendant to provide plaintiff with full and complete responses to

14

these interrogatories as to the 20 (twenty) stores selected by plaintiff and as to the

15

previous sample of 20 (twenty) stores selected by defendant. To the extent defendant

16

has already disclosed this information about the previous sample of 20 (twenty) stores,

17

defendant need only provide updated information to show any change since the prior

18

production.

19

Plaintiffs Interrogatory No. 23 seeks the identity of “each Clerk/Cashier who was

20

employed in California at any time between June 9, 2008 and the present who operated a

21

front-end cash register for at least one pay period during that time.” [Doc. No. 160, at p.

22
23
24
25
26
27
28

“Particularly when a party stands on an overly broad request and does not make a
reasonable attempt to narrow it or to explain the need for such a broad range of
documents and/or information, the Court will not ‘rewrite a party's discovery request to
obtain the optimum result for that party. That is counsel's job.’ [Citation omitted.]”
Sanchez Ritchie v. Energy, No. 10cvl513-CAB(KSC), 2015 WL 12914435, atp. 3 (S.D.
Cal., March 30, 2015), quoting Bartolome v. City and County of Honolulu, No. CIV. 0600176SOMLEK, 2008 WL 2736016, at *14 (D. Hawaii, July 14, 2008).
3

8

09cv2051 -MMA(KSC)

1

24.] As worded, this interrogatory is overly broad and unduly burdensome. Defendant

2

represents that it has employed approximately 35,374 clerk/cashiers in its California

3

stores since September 2008 and does not retain records to readily identify individuals

4

who actually operated a cash register. Some employees classified as “clerk/cashiers” do

5

not operate a cash register during their employment. As a result, an individualized

6

inquiry would be necessary to provide this level of detail. [Doc. No. 160, at p. 26.]

7

Under these circumstances, the Court will not require defendant to conduct an

8

individualized inquiry to specifically identify individuals “who operated a front-end cash

9

register.” [Doc. No. 160, atp. 24.]

10

Interrogatory No. 23 is also duplicative and cumulative in that defendant

11

previously provided plaintiff with names/contact information for about 3,500 putative

12

class members. At the time this information was disclosed, the putative class had about

13

17,000 members and the 3,500 individuals identified at that time represented about 20

14

percent of all putative class members. [Doc. No. 160, at p. 26.] Now, “[p]laintiff is

15

willing to limit her request to Clerk/Cashiers who first became employed by [defendant]

16

in California at any time after April 20, 2011 (the date of [defendant’s] prior

17

disclosure).” [Doc. No. 160, at p. 26 (emphasis added).] Plaintiff has not explained why

18

the information already disclosed is insufficient. For example, plaintiff has not indicated

19

that defendant’s policies with regard to the use of seating/stools has changed since 3,500

20

individuals were identified in 2011. Nor has plaintiff explained why she seeks the

21

identity of all clerk/cashiers employed any time after April 20, 2011 rather than offering

22

to narrow the scope of this request to a representative sample. As noted above, the Court

23

expects a party seeking discovery to attempt to narrow the scope of broadly worded

24

requests during meet and confer sessions and to discuss any such efforts in any moving

25

papers seeking an order compelling further responses. Accordingly, the Court declines

26

to rewrite this request for plaintiffs benefit.

27

Based on the foregoing, the Court finds that plaintiff’s request for an order

28

compelling defendant to provide a further response to this request as worded must be
9
09cv2051 -MMA(KSC)

1

DENIED. However, the Court will require defendant to update the prior production

2

with a representative sample of the identities of clerk/cashiers who first became

3

employed in California stores after April 20, 2011. Defendant shall update its prior

4

production by identifying 20 percent of all clerk/cashiers in California stores who first

5

became employed after April 20, 2011 (the date of defendant’s prior disclosure).

6

Interrogatory No. 24 seeks the identification of “each store management employee

7

(including without limitation Store Manager, Store Manager in Training, Operations

8

Manager, of Shift Supervisor) who was employed in California at any time between

9

June 9, 2008 and the present and who is no longer employed by CVS.” [Doc. No. 160,

10

at p. 28 (emphasis added).] Plaintiff has requested this information because she believes

11

defendant’s former management employees have discoverable information as to whether

12

cashiers have ever used seats and/or could operate a cash register while seated. [Doc.

13

No. 160, at p. 29.] However, citing a number of declarations previously filed in this

14

litigation, plaintiff states that she already “knows from her investigation that some

15

Clerk/Cashiers were allowed to sit while checking out customers.” [Doc. No. 160, at p.

16

29.]

17

Defendant is concerned that this is an overly broad “fishing expedition” and that

18

plaintiff’s “true intent” is to discover “dirt” to use against defendant. [Doc. No. 160, at

19

pp. 30-31.] As it must, defendant also legitimately raises concerns about the privacy of

20

third parties. [Doc. No. 160, at pp. 30-31.] Plaintiff has not explained why she needs

21

additional discovery of this type or why she specifically seeks this type of discovery

22

from defendant’s former management employees. As defendant contends, “[p]laintiff

23

does not offer any reason why former managers would have more or specialized relevant

24

information regarding the use/potential use of seats in their stores than [defendant’s]

25

current mangers or putative class members.” [Doc. No. 160, at p. 30.] Nor does this

26

avenue of discovery appear to be proportional to the needs of the case, particularly when

27

far less burdensome and intrusive means are available to test plaintiff’s theory of the

28

case, such as a Rule 30(b)(6) deposition of a current manager deemed by the
10
09c v2051 -MMA(KSC)

1

corporation to be knowledgeable on this topic. In this regard, the Court notes that

2

plaintiff has already taken a Rule 30(b)(6) deposition of a corporate representative about

3

the “[f]acts and circumstances surrounding any situation in which a Clerk/Cashier

4

operated a cash register from a seated position.” [Doc No. 160, at p. 5.] For all of these

5

reasons, the Court finds that plaintiffs request for an order compelling defendant to

6

provide a further response to Interrogatory No. 24 must be DENIED.

7

Interrogatory No. 25 states as follows: “Identify each Clerk/Cashier anywhere in

8

the United States who, at any time between June 9, 2008 and the present, used a seat or

9

stool while operating the cash register.” [Doc. No. 160, at p. 31 (emphasis added).] As

10

plaintiff contends, the requested discovery is relevant to plaintiff’s theory of the case.

11

However, defendant contends that this interrogatory is unduly burdensome and “[overly

12

broad] in geographical scope,” because “[plaintiff’s class action is only about

13

California’s stores” and defendant has some 9,600 stores in the United States. [Doc. No.

14

160, at p. 33.] Accordingly, for these reasons, the Court will not require defendant to

15

disclose information about store employees outside California.

16

Plaintiff’s understanding “from interviews with Clerk/Cashiers in 2011 [is] that

17

they were allowed to use seats if they provided medical evidence such as a doctor’s

18

note.” [Doc. No. 160, at p. 32.] Defendant did provide a supplemental response to this

19

interrogatory “which includes a general description of instances where a California retail

20

employee requested the use of a seat for a disability accommodation.” [Doc. No. 160, at

21

p. 33.] However, this response does not address the broader question implied in this

22

interrogatory. Plaintiff is entitled to pursue her theory of the case and to discover the

23

full extent of circumstances when clerk/cashiers in California stores used a seat or stool

24

while operating the cash register, regardless of whether a medical condition was the

25

reason for the use of a chair or stool while cashiering.

26

According to plaintiff, defendant could compile a complete response to this

27

interrogatory by “simply sending] out an e-mail to its store managers and ask[ing] them

28

to identify Clerk/Cashiers who used seats” while operating a cash register during the
li
09c v2051 -MMA(KSC)

1

relevant time period. [Doc. No. 160, at pp. 32-33.] Defendant does not argue that it

2

would be unreasonably difficult and burdensome to obtain this information from its

3

California stores by e-mail.

4

Although defendant also raised the privacy interests of putative class members who

5

might be identified in response to this request, the Court has no reason to believe these

6

interests would not adequately be addressed by the stipulated Protective Order that is

7

already in place to govern the exchange of confidential information. [Doc. No. 62.]

8

Based on the foregoing, the Court finds that plaintiffs request for an order compelling

9

defendant to provide plaintiff with a further response to Interrogatory No. 25, as worded,

10

must be DENIED. However, subject to the confidentiality provisions of the Protective

11

Order [Doc. No. 62] and for the reasons outlined above, the Court will require defendant

12

to identify all clerk/cashiers in its California stores that have used or are using a seat or

13

stool while operating a cash register from June 9, 2008 to the present.

14

Document Request No. 41 seeks production of “documents sufficient to show the

15

amount of workspace behind or around the registers at each CVS store in California

16

between June 9, 2008 and the present, including without limitation all floor plans,

17

schematics, design documents, and drawings containing that information.” [Doc. No.

18

160, at p. 34.] This document request is related to plaintiffs Interrogatory Nos. 17, 18,

19

19, 20, and 21, discussed above, which seek information related to the cashier stands at

20

defendant’s stores in California. For example, Interrogatory No. 18 specifically seeks to

21

discover the physical dimensions of the workspaces behind and around the cash registers

22

at all of defendant’s stores in California and why those physical dimensions preclude the

23

use of a seat or stool. For the reasons outlined above in the discussion of Interrogatory

24

Nos. 17,18, 19, 20, and 21, this document request is overly broad and unduly

25

burdensome. Therefore, the Court finds that defendant’s request for an order compelling

26

defendant to provide a further response to this request as worded is DENIED. However,

27

to the extent available and to the extent it has not already done so, the Court will require

28

defendant to provide plaintiff with floor plans, schematics, design documents, and
12
09cv2051 -MMA(KSC)

1

drawings showing the workspace behind or around the registers for the representative

2

sample of stores identified in the discussion above concerning Interrogatory Nos. 17, 18,

3

19, 20, and 21.

4

Request for Production No. 43 seeks “[a]ll documents reflecting any request by a

5

Clerk/Cashier anywhere in the United States to use a seat or stool in connection with

6

operation of a cash register or the performance of his or her job at any time between

7

June 9, 2008 and the present. [Doc. No. 160, at p. 37 (emphasis added).] Request for

8

Production No. 44 seeks “[a]ll documents reflecting any consideration of a request by a

9

Clerk/Cashier anywhere in the United States to use a seat or stool in connection with

10

the operation of a cash register or the performance of his or her job at any time between

11

June 9, 2008 and the present. [Doc. No. 160, at p. 39 (emphasis added).] Request for

12

Production No. 45 seeks “[a] 11 documents reflecting any oral or written

13

communications, including e-mail communications, by or between anyone at CVS

14

concerning the use or potential use of seats or stools by Clerk/Cashiers in connection

15

with the operation of a cash register or the performance of the Clerk/Cashier job at any

16

time between June 9, 2008 and the present.” [Doc. No. 160, at p. 40 (emphasis added).]

17

These interrogatories are unduly burdensome and overly broad in geographical

18

scope, because “[p]laintiff s class action is only about California’s stores” and defendant

19

has some 9,600 stores in the United States. [Doc. No. 160, at p. 33.] Therefore, the

20

Court will not compel defendant to produce any documents responsive to these requests

21

as to stores outside California.

22

According to plaintiff, clerk/cashiers with temporary medical conditions, such as

23

an injury or pregnancy, were provided with a seat to use while working at the cash

24

register in response to a doctor’s note. [Doc. No. 160, at pp. 37-38.] Plaintiff argues

25

that defendant should be ordered to conduct a diligent search and produce all responsive

26

documents with any sensitive medical information redacted. However, plaintiff argues

27

that the employee names and store locations in any such documents should not be

28

redacted. [Doc. No. 160, at p. 38.]
13
09cv2051 -MMA(KSC)

1

Even if these requests are limited to defendant’s 870 stores in California, they are

2

still unduly burdensome, overly broad, and duplicative of other discovery. First, in

3

response to Interrogatory No. 25, discussed above, defendant previously provided “a

4

general description of instances where a California retail employee requested the use of

5

a seat for a disability accommodation.” [Doc. No. 160, at p. 33.] Second, as outlined

6

above in the discussion of Interrogatory No. 25, the Court is already requiring defendant

7

to identify all clerk/cashiers in its California stores from June 9, 2008 to the present who

8

have used or are currently using a seat or stool while operating a cash register. Third,

9

defendant produced records from a Human Resources database showing requests for seat

10

accommodations and describing instances where a California retail employee requested

11

the use of a seat. [Doc. No. 160, at p. 39.] Fourth, defendant made a corporate witness

12

(an Employee Relations Manager) available for deposition to testify about responses she

13

received after she sent an e-mail to colleagues asking whether they ever received a

14

request for a seat. [Doc. No. 160, at p. 42.] Fifth, to locate any further responsive

15

documents would require defendant to search “through thousands upon thousands of

16

emails and documents.” [Doc. No. 160, at p. 39.] Given the extent of documents and

17

information already produced on this topic and the information that will be produced in

18

response to Interrogatory No. 25, the Court finds that the burden and expense of any

19

further discovery in response to these requests “outweighs its likely benefit.”

20

Fed.R.Civ.P. 26(b)(1). Finally, plaintiff has not explained why the discovery that has

21

already been produced on this subject matter is insufficient.

22

Without more, and under the circumstances presented, the Court finds that

23

defendant provided satisfactory responses to Document Request Nos. 43,44, and 45.

24

The Court will not order a more extensive and costly search for additional documents,

25

particularly when defendant has already produced relevant documents that appear to be

26

sufficient under the circumstances and will be identifying all clerk/cashiers who have

27

III

28

III
14
09cv205 l-MMA(KSC)

1

used a seat or stool in California stores in response to Interrogatory No. 25. In sum, the

2

Court finds that plaintiff’s request for an order compelling defendant to provide further

3

responses to Document Request Nos. 43, 44, and 45 must be DENIED.

4

Request for Production No. 46 seeks “[a]ll documents reflecting any attempt by

5

[defendant] to comply with Section 14(A) of the wage order, including without

6

limitation any analysis by [defendant] whether the nature of cashiering work reasonably

7

permits the use of a seat, whether the existing workstations could be modified to

8

accommodate seats, and/or what type of seat may be suitable.” [Doc. No. 160, at p. 42.]

9

The Court agrees with plaintiff that Document Request No. 46 is a “fair question.”

10

[Doc. No. 160, at p. 43.]

11

Plaintiff claims that defendant has not produced any documents in response to this

12

request. [Doc. No. 160, at p. 44.] Defendant represented in the Joint Motion that to the

13

best of its knowledge “at this time, no documents exist specific to this request that have

14

not already been produced. .. . Plaintiff’s motion is moot as to this request.” [Doc. No.

15

160, at p. 44.] Accordingly, the Court finds that plaintiffs request for an order

16

compelling defendant to provide a further response to this request must be DENIED.

17

Request for Production No. 49 seeks “[documents sufficient to show the identity

18

or identities of the manufacturer(s) of the front end cash register stations at CVS stores

19

in California.” [Doc. No. 160, at p. 44.] Plaintiff claims that defendant has not

20

produced any responsive documents. [Doc. No. 160, at p. 45.] Defendant states that it

21

has “agreed” to produce all responsive, non-privileged documents and argues that the

22

issue is moot. Defendant’s response is ambiguous, because it has only stated that it has

23

“agreed” to produce all responsive, non-privileged documents. It is therefore unclear

24

whether defendant has actually produced all responsive, non-privileged documents or

25

whether defendant is withholding any documents as privileged. To eliminate this

26

ambiguity, the Court will require plaintiff to provide defendant with a declaration by

27

counsel or a knowledgeable corporate representative of defendant clarifying that all

28

responsive, non-privileged documents have been produced or that no responsive
15
09cv2051 -MMA(KSC)

1

documents were located during a diligent search. To the extent defendant is withholding

2

any documents based on a claim of privilege, defendant must “expressly make the

3

claim” by providing plaintiff with a suitable privilege log pursuant to Federal Rule of

4

Civil Procedure 26(b)(5)(A).

5

Request for Production No. 51 seeks “[a]ll documents supporting any contention

6

by [defendant] that the nature of the work of operating a cash register at CVS does not

7

permit the use of a seat.” [Doc. No. 160, at p. 45.] Defendant states that it has “agreed”

8

to produce all responsive, non-privileged documents and argues that the issue is moot.

9

However, defendant’s response is ambiguous. Based on the information provided, it is

10

unclear whether defendant has actually produced all responsive, non-privileged

11

documents. Nor is it clear whether defendant is withholding any documents as

12

privileged. To eliminate this ambiguity, the Court will require plaintiff to provide

13

defendant with a declaration by counsel or a knowledgeable corporate representative of

14

defendant clarifying that all responsive, non-privileged documents have been produced

15

or that no responsive documents were located despite a diligent search. To the extent

16

defendant is withholding any documents based on a claim of privilege, defendant must

17

also “expressly make the claim” by providing plaintiff with a suitable privilege log

18

pursuant to Federal Rule of Civil Procedure 26(b)(5)(A).

19

Request for Production No. 52 seeks “[a]ll documents supporting any contention

20

by CVS that there is no ‘suitable seat’ that a person operating the cash register at CVS

21

could use.” [Doc. No. 160, at p. 47.] As worded, Document Request No. 52 is overly

22

broad on its face and appears to require a very expensive, time-consuming search. As

23

defendant contends, the request is written so broadly that it could be interpreted to

24

require defendant “to analyze each of its 3,480+ cash register stands to determine if it

25

has documents about whether a ‘suitable seat’ is feasible at that location.” [Doc. No.

26

160, at p. 48.]

27

28

Plaintiff has not offered to narrow the scope of this request. Nor has plaintiff
explained the need for requesting such a broad range of documents. Once again, the
16
09cv2051 -MMA(KSC)

1

Court expects a party seeking discovery to attempt to narrow the scope of broadly

2

worded requests during meet and confer sessions and to discuss any such efforts in any

3

moving papers seeking an order compelling further responses. The Court declines to

4

rewrite the request for plaintiff’s benefit. In other words, the Court finds that plaintiffs

5

request for an order compelling defendant to provide a further response to Document

6

Request No. 52 as worded must be DENIED.

7

Defendant has agreed to search for responsive documents from the store where

8

plaintiff was employed rather than for all stores or all 3,480+ cash register stands and

9

says it “will produce” any responsive documents. [Doc. No. 160, at p. 48.] Defendant’s

10

response to this request is reasonable under the circumstances, but it is unclear from the

11

Joint Motion whether defendant has completed a search as agreed or whether any

12

responsive documents were found and produced. To eliminate this uncertainty, the

13

Court will require defendant to provide plaintiff with a declaration by counsel or a

14

knowledgeable corporate representative of defendant clarifying that as to the store where

15

plaintiff was employed all responsive, non-privileged documents have been produced or

16

that no responsive documents were located despite a diligent search. To the extent

17

defendant is withholding any documents based on a claim of privilege, defendant must

18

also “expressly make the claim” by providing plaintiff with a suitable privilege log

19

pursuant to Federal Rule of Civil Procedure 26(b)(5)(A).

/

20

21

Conclusion
Based on the foregoing, IT IS HEREBY ORDERED that plaintiff’s request in the

22

parties’ Joint Motion [Doc. No. 160] for an order compelling defendant to provide

23

further responses to certain interrogatories and requests for production of document is

24

GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that:

25

1.

Plaintiff’s request for an order compelling defendant to provide further

26

responses to Interrogatory Nos. 17, 18,19, 20, and 21, as worded, is DENIED.

27

However, if plaintiff provides defendant with a list of twenty (20) additional, randomly

28

selected stores in California within ten (10) days of the date this Order is issued,
17
09cv2051 -MMA(KSC)

1

defendant is ordered to provide plaintiff with full and complete responses to these

2

interrogatories as to the 20 (twenty) stores selected by plaintiff and as to the previous

3

sample of 20 (twenty) stores selected by defendant. To the extent defendant has already

4

disclosed this information about the previous sample of 20 (twenty) stores, defendant

5

need only provide updated information to show any change since the prior production.

6

2.

Plaintiff’s request for an order compelling defendant to provide a further

7

response to Interrogatory No. 23, as worded, is DENIED. However, defendant is

8

ordered to update its prior production with a representative sample of clerk/cashiers who

9

first became employed in California stores after April 20, 2011. Defendant shall update

10

its prior production by identifying 20 percent of all clerk/cashiers in California stores

11

who first became employed after April 20, 2011 (the date of defendant’s prior

12

disclosure). The method for identifying any such clerk/cashiers shall be the same as for

13

the prior production on April 20, 2011.

14
15
16

3.

Plaintiff’s request for an order compelling defendant to provide a further

response to Interrogatory No. 24 is DENIED.
4.

Plaintiff’s request for an order compelling defendant to provide a further

17

response to Interrogatory No. 25, as worded, is DENIED. However, subject to the

18

Protective Order governing the exchange of confidential information [Doc. No. 62],

19

defendant is ordered to identify all clerk/cashiers in its California stores that have used

20

or are using a seat or stool from June 9, 2008 to the present while operating a cash

21

register.

22

5.

Plaintiff’s request for an order compelling defendant to provide a further

23

response to Document Request No. 41, as worded, is DENIED. However, to the extent

24

it has not already done so, defendant is ordered to provide plaintiff with floor plans,

25

schematics, design documents, and drawings showing the workspace behind or around

26

the registers for the representative sample of stores identified in the discussion above

27

concerning Interrogatory Nos. 17,18,19, 20, and 21.

28
18
09cv2051 -MMA(KSC)

•vi

,

1
2

6.

Plaintiffs’ request for an order compelling defendant to provide further

responses to Document Request Nos. 43, 44, 45, and 46 is DENIED.

3

7.

Plaintiff’s request for an order compelling defendant to provide a further

4

response to Document Request Nos. 49 and 51 is GRANTED. To eliminate any

5

ambiguity in defendant’s statement that it has “agreed” to provide responsive documents

6

to these requests, defendant is ordered to provide plaintiff with a declaration by counsel

7

or a knowledgeable corporate representative of defendant clarifying that all responsive,

8

non-privileged documents have been produced or that no responsive documents were

9

located despite a diligent search. To the extent defendant is withholding any documents

10

based on a claim of privilege, defendant must also “expressly make the claim” by

11

providing plaintiff with a suitable privilege log pursuant to Federal Rule of Civil

12

Procedure 26(b)(5)(A).

13

8.

Plaintiff’s request for an order compelling defendant to provide a further

14

response to Document Request No. 52, as worded, is DENIED. However, defendant

15

agreed in the Joint Motion to search for responsive documents from the store where

16

plaintiff was employed and said it “will produce” responsive documents if any are

17
18

located. Thus, it is unclear whether defendant has produced any responsive documents.
To eliminate this uncertainty, defendant is ordered to provide plaintiff with a declaration

19

by counsel or a knowledgeable corporate representative of defendant clarifying that all

20

responsive, non-privileged documents have been produced or that no responsive

21

documents were located despite a diligent search. To the extent defendant is

22

withholding any documents based on a claim of privilege, defendant must also

23

“expressly make the claim” by providing plaintiff with a suitable privilege log pursuant

24

to Federal Rule of Civil Procedure 26(b)(5)(A).

25 III
26 III
27 III
28 III
19
09cv2051 -MMA(KSC)

.V

1

9.

Defendant shall comply with this Order by providing plaintiff with the

2

documents and information as set forth above as soon as possible and on a rolling basis.

3

Defendant must fully comply with this Order no later than June 23, 2017.

4

5

IT IS SO ORDERED.
Dated: April 18, 2017

6
7

Hon. K^fen S. Crawford
United States Magistrate Judge

8

9
10
11
12
13
14
15
16
17
18
19
20

21
22
23
24

25
26
27

28
20
09cv205 l-MMA(KSC)