Kellgren v. Petco Animal Supplies, Inc. et al

Filing 230

ORDER granting in part and denying in part 183 Joint Motion Regarding Defendants' Collection of Electronically Stored Information, to Compel the Production of Documents and Information, and for an In-Person Conference. Signed by Magistrate Judge Karen S. Crawford on 3/10/2017. (fth)

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ci§ &r%
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MAR 1 0 2017

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BY

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DEPUTY
“f¥S

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ERIK KELLGREN, individually and on
behalf of all others similarly situated,

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ORDER GRANTING IN PART AND
DENYING IN PART JOINT
MOTION REGARDING
DEFENDANTS’ COLLECTION OF
ELECTRONICALLY STORED
INFORMATION, TO COMPEL THE
PRODUCTION OF DOCUMENTS
AND INFORMATION, AND FOR AN
IN-PERSON CONFERENCE

Plaintiffs,

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Case No.: 3:13cv644L(KSC)

v.
PETCO ANIMAL SUPPLIES, INC.;
PETCO HOLDINGS, INC.; and DOES 1
to 100, inclusive,
Defendants.

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[Doc. No. 183]

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Before the Court is a Joint Motion Regarding Defendants’ Collection of
Electronically Stored Information, to Compel the Production of Documents and
Information, and for an In-Person Conference. [Doc. No. 183.] In the Joint Motion,
plaintiffs seek an order compelling defendants to provide further responses to
interrogatories and requests for production of documents. Plaintiffs also seek an order
compelling defendants to produce all relevant documents in response to its requests for
production of documents. Finally, plaintiffs request an in-person discovery conference
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with the Court to discuss a number of discovery issues. For the reasons addressed more

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thoroughly below, the Joint Motion is GRANTED in part and DENIED in part. [Doc.

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No. 183.]

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I. BACKGROUND

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This is a collective action in which plaintiffs Erik Kellgren (“Kellgren”) and others

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employed as Assistant Managers in defendants’ stores claim to have been misclassified as

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“exempt” from the overtime provisions of the Fair Labor Standards Act of 1938,29 U.S.C.

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§ 201, et seq. (“FLSA”). The central issues in the case relate to the duties plaintiffs

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performed in the course of their employment, and whether they worked over forty hours a

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week during the relevant time frame.

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On September 3, 2015, the Court conditionally certified a collective action

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consisting of: “All persons residing in the United States (except California) who are

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formerly or currently employed by Petco Animal Supplies, Inc. as an assistant manager at

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any time from March 19,2010 to the present.” [Doc. No. 78, at p. 11.] A Second Amended

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Scheduling Order (hereinafter “Scheduling Order”), filed on November 18,2016, gives the

16 parties until August 2, 2017 to complete fact discovery. [Doc. No. 184, at p. 1.] The
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Scheduling Order also provides that any pretrial motions, including decertification and

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final certification of the collective action, must be filed by September 15,2017. Id. at p. 3.

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The instant Joint Motion was filed by the parties on November 17, 2016, and

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concerns: (1) plaintiffs’ request for an in-person conference with the Court; (2) plaintiffs’

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motion to compel regional and corporate e-mail; and (3) plaintiffs’ motion to compel

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further responses to certain interrogatories and requests for production in plaintiffs’ third

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set of interrogatories and requests for production (hereinafter “RFP 3”).

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II.

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DISCUSSION

Federal Rule of Civil Procedure 26(b), as amended, provides in relevant part as
follows:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake in the action,
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the amount in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.

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A party need not provide discovery of electronically stored information
from sources that the party identifies as not reasonably accessible
because of undue burden or cost.
Fed. R. Civ. P. 26(b)(1); Fed. R. Civ. P. 26(b)(2)(B). “The court may, for good cause, issue

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an order to protect a party or person from annoyance, embarrassment, oppression, or undue

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burden or expense ....” Fed. R. Civ. P. 26(c)(1).

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A. Plaintiffs’ Request for an In-Person Conference with the Court.

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Plaintiffs request an “in-person conference with the Court to discuss a number of

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discovery disputes that have reached such a mass that it would appear most effiacious [sic]

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and sensible to address them in person, including .. . (1) the scope of, and methodology

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for, Defendants’ collection, search and production of electronically stored information

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(“ESI”), including e-mails; and (2) [p]laintiff s motion to compel [defendants to produce

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documents and information responsive to Plaintiffs’ Third Set of Interrogatories and

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Request for Production of Documents. [Doc. No. 183, at p. 11.] Defendants do not oppose

19 plaintiffs’ request for an in-person discovery conference, but suggest that plaintiffs first
20 provide a written list of the specific issues in advance of the conference. [Doc. No. 183, at
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p. 43.] Defendants assert that “[w]hile plaintiff listed numerous items that they seek to

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have the Court address at a conference, the topics are general. Plaintiffs do not identify the

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relief they seek, and Petco is not even aware there is a dispute as to several of the items.”

24 Id. Here, the Court finds that an in-person discovery conference is not necessary to resolve
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the instant discovery dispute as the parties have submitted sufficient briefing on the issues

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in dispute. The parties filed over eighty pages of briefing, excluding exhibits, regarding

27 their respective positions. [Doc. No. 183.] Accordingly, plaintiffs’ request for an in-person
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discovery conference at this time is DENIED.
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B. Plaintiffs’ Motion to Compel Regional and Corporate E-mail.
Plaintiffs assert that “a core aspect of discovery in a retail chain misclassification case
is usually e-mails at the regional and corporate level, but Defendants refuse to produce
them here, much less even suggest when they might possibly be forthcoming.” [Doc. No.
183, at p. 11.] In connection with their request for regional and corporate e-mail, plaintiffs
request broadly “the Court’s guidance regarding the parameters of Defendants’ collection
and production of ESI and other discovery to which they are entitled.” Id. at p. 12.
Plaintiffs further note that “[n]o ESI protocol was in place in this action until August 26,
2016,” and claim that “[defendants appear to relieve themselves of their obligation under
Fed. R. Civ. P. 26(e)(1) to supplement their responses to Plaintiffs’ [previous discovery]
requests.” [Doc. No. 183, atpp. 14,15.]
Defendants oppose plaintiffs’ request for regional and corporate e-mails on the
following grounds: (1) plaintiffs do not identify the specific requests at issue; and (2) the
only discovery requests which sought regional and corporate e-mail were plaintiffs’ fifth
set of requests for production (hereinafter “RFP 5”), for which no meet and confer has
occurred. [Doc. No. 183, at pp. 44, 63.] Defendants further note that “to the extent
[plaintiffs’ request for ‘regional and corporate e-mail’ is a request for materials responsive
to their Requests for Production, Set 1 (‘RFP 1’), Set 2 (‘RFP 2’), or Set 4 (‘RFP 4’), this
request is untimely, as this Court’s deadlines for filing relevant motions to compel have
long passed.” [Doc. No. 183, at p. 44.]
The Court notes that plaintiffs did not brief the Joint Motion in the manner required
by Chambers’ Rules. In this regard, Chambers’ Rules state as follows:

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If the discovery dispute concerns written discovery requests
(e.g., interrogatories, requests for admissions, requests for
production, subpoenas), the parties shall submit a “Joint Motion
for Determination of Discovery Dispute.” For each written
discovery request in dispute, the Joint Motion must include:

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The exact wording of the discovery request;
The exact response to the request by the responding party;
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3.

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A statement by the propounding party and any points and
authorities as to why a further response should be compelled;
and,
A precise statement by the responding party and any points
and authorities as to the bases for all objections and/or claims
of privilege.

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Chambers’ Rules, § V.D.
In the instant Motion, plaintiffs make general arguments about the collection, search
and production of ESI at the regional and corporate level in the context of defendants’
responses. For example, plaintiffs contend they have made repeated attempts to reach
agreement with defendants regarding “discovery previously sought by Plaintiffs, including
as to Defendants’ affirmative defenses and other areas which implicate corporate-level
decision-making, where corporate-level custodians must be identified and their ESI
searched.” [Doc. No. 183, at pp. 13, 31.] However, plaintiffs do not identify the discovery
requests previously sought by plaintiffs on a request-by-request basis. Instead, plaintiffs
broadly take issue with the “search terms” used by defendants and the use of a “delimiter.”
[Doc. No. 183, at p. 14.] Plaintiffs further assert that “Defendants have baulked at
identifying relevant custodians, including at the corporate-level, and otherwise have
stymied Plaintiffs’ attempts to obtain corporate-level ESI.. ..” [Doc. No. 183, at p. 14.]
However, plaintiffs fail to address on a request-by-request basis, either the relevant search
terms, or the identity or job titles of the document custodians plaintiffs believe would be
appropriate. By contrast, defendants made a reasonable attempt in the instant Motion to
narrow the scope of the overly broad arguments made by plaintiffs about regional and
corporate e-mail and ESI based on its view of the case. [Doc. No. 183, at pp. 63-66.]
Defendants also attempted to provide substantive responses to each of plaintiffs’ arguments
about regional and corporate e-mail and ESI, and to explain why defendants believe its
responses were appropriate under the circumstances. Id. Defendants assert that they
“ha[ve] insisted that any discussion of electronic systems, potential custodians of
documents, and possible search terms must be tethered to specific document requests
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Plaintiffs have propounded. . . . Petco has resisted discussing ‘regional and corporate’ e-

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mail in a vacuum and not in relation to a specific request.” [Doc. No. 183, at p. 65.]

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In sum, plaintiffs failed to abide by the Chambers’ Rules requiring them to include,

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among other things, the exact wording of the discovery request at issue. [Chambers’ Rules,

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§ V.D.]

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difficulty deciphering the precise nature of plaintiffs’ objections. This Chambers’ Rule is

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in place to allow for the expedient review of disputed discovery requests. Going forward,

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any joint discovery motions filed that fail to meet the briefing requirements in Chambers’

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Rules will be subject to denial.

Plaintiffs’ failure to comply with this protocol has unnecessarily resulted in

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Federal Rule of Civil Procedure 7(b)(1) requires a party state with particularity the

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grounds for a court order and the relief sought. Here, plaintiffs fail to clearly state what

12 relief they seek and why they are entitled to a court order compelling that relief.
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attempt to narrow it or to explain the need for such a broad range of documents and/or

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information, the Court will not “rewrite a party’s discovery request to obtain the optimum

16 result for that party. That is counsel’s job.” Bartolome v. City & Cty. of Honolulu, No.
17 Civil 0-176 SOM/LEK, 2008 WL 2736016, at *14 (D. Hawaii July 14, 2008). The Court
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agrees with defendants that plaintiffs have not made a fair and appropriate attempt to

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identify with particularity the scope of the ESI as it relates to regional and corporate e-mail.

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Further, plaintiffs’ Motion to Compel as it relates to the collection, search and

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production of ESI at the regional and corporate level is premature. As of the date the instant

22 Motion was filed, the parties had not meaningfully met and conferred as to all of the
23 disputed discovery requests on a request-by-request basis. Defendants note that they
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served written responses to RFP 5 on October 27, 2016. [Doc. No. 183, at p. 64.] The

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parties exchanged one letter and a request for a sample of documents, but the parties had

26 no discussion of any perceived deficiencies as of the date that the Joint Motion was filed.
27 Id. The prematurity of plaintiffs’ inclusion of the regional and corporate e-mail issue is
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further evidenced by the fact that on January 25,2017, counsel for the parties jointly called
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the Court seeking leave for plaintiff to file a Motion to Compel regarding defendants’

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responses to plaintiffs’ RFP 5. [Doc. No. 210.] The parties represented to the Court that

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as of that date, they had satisfied their meet and confer obligations. Id. Based on this

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representation, the Court granted plaintiffs leave to file and serve a Motion to Compel

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regarding RFP 5 and issued a briefing schedule accordingly. Id.

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To the extent that plaintiffs claim that their “prior requests ... specifically sought.. .

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corporate decision-making ESI,” including regional and corporate e-mail, and that they are

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entitled to these documents in response to their earlier discovery requests (RFP 1,2 and 4),

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the Court finds this argument has no merit and is untimely. [Doc. No. 183, at pp. 14-15.]

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Accordingly, plaintiffs’ Motion to Compel defendants to collect, search and produce

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ESI at the regional and corporate-level regarding RFP 5 is DENIED as untimely and for

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failure to properly meet and confer.

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C. Plaintiffs’ Motion to Compel Further Responses to Certain Interrogatories and
Requests for Production in Plaintiffs’ Third Set of Interrogatories and
Requests for Production [hereinafter “RFP 3”1.
1. Search Terms.

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With respect to the search terms to be used by defendants to collect and produce

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responsive documents, the parties appear to have engaged in significant meet and confer

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efforts and have fundamental differences regarding the ESI search terms to be used. [Doc.

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No. 183-1, at

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defendant, on November 8,2016, plaintiffs sent their final search term proposal. [Doc. No.

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183, at p. 57.] Defendants contend it is “elaborate and complex” and none of the searches

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are limited to e-mail with the Discovery Opt-Ins’ names. Id. Defendants contend that

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plaintiffs’ proposed selection of search terms would result in more than 400,000 documents

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to review for possible production if limited to the 30 Discovery Opt-In Deponents, and

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more than 1.5 million if the search terms include the 118 Discovery Opt-Ins. Petco has not

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agreed to plaintiffs’ proposal and on November 15, 2016, defendants contend they made

7, 15, 19, 24, 25, 27; see also Doc. No. 183, at pp. 55-57.] According to

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an alternative proposal. Plaintiffs had not yet responded as of the filing of this Joint

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Motion, on November 17,2016. Id.

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Under defendants’ proposal, Petco will search for the terms it has identified and

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almost all of the 90+ terms proposed by plaintiffs, subject to certain limits designed to

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generate a manageable volume of responses likely to be responsive, within e-mail files of

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the 30 Discovery Opt-In Deponents. [Doc. No. 183, at p. 57 (citing Ex. M to ManekerDeck

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at 124-25).] Plaintiffs take issue with defendants’ use of certain limits on its proposed

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search terms, including, for example, the first or last name of the Discovery Opt-In. [Doc.

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No. 183, at p. 14.] Plaintiffs’ proposal is unreasonable and overbroad. Based on the

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Court’s review of the discovery requests at issue, and in light of the proportionality

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standard set forth in Rule 26(b), it appears that defendants’ proposal to search for

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responsive documents using the search terms as set forth in Exhibit M in Maneker’s

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Declaration is sufficient. Consequently, plaintiffs’ request for a court order related to the

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expanded search terms is DENIED.

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2. Plaintiffs’ Interrogatory No. 3 of RFP 3.
On November 29, 2016, the Court held an informal discovery telephonic conference
regarding, among other things, the instant Joint Motion. [Doc. No. 189.] Counsel for
plaintiffs, Mr. Seth Lesser, advised the Court that plaintiffs seek to withdraw the dispute
regarding defendants’ response to Plaintiffs’ Interrogatory No. 3. Id. Accordingly, any
issues in the Joint Motion regarding Interrogatory No. 3 are denied as MOOT.
3. Plaintiffs’ Interrogatory No. 5 of RFP 3.

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Interrogatory No. 5 asks Petco to identify “all communications that the General
Managers and District Managers of the Subject Plaintiffs have had concerning this lawsuit”
and for each communication to identify “whom the communication was with, as well as
the date, form and substance of the communication.” [Doc. No. 183, at p. 19.] Plaintiffs
define “Subject Plaintiffs” as the 118 Discovery Opt-Ins and Plaintiff Kellgren. Id. at p.
16. Plaintiffs contend that Interrogatory No. 5 “seek[s] clearly relevant information and
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[is] not overly broad, unduly burdensome or disproportionate to the needs of this case” and

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“is the same type of information that Defendants have sought (and obtained) from each and

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every Discovery Opt-In to whom they have directed written discovery.” Id. at p. 35.

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Defendants objected to this Interrogatory on various grounds, including that “the

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interrogatory is overly broad and unduly burdensome.” Id. at p. 69. Defendants noted that

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there are 240 current and former General Managers (hereinafter “GMs”) and District

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Managers (hereinafter “DMs”) and argue that they “cannot readily determine ‘all

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communications’ that may have taken place by or between any of several hundred

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employees.” Id.

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Defendants assert that the “cost and time associated with tracking down and

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interviewing each of these individuals outweighs any benefit that would be derived.” Id.

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To the extent that plaintiffs seek to compel defendants to interview or speak with each of

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the current and former GMs and DMs about this discovery request (or similar requests at

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issue herein), the Court finds it unnecessary in light of the limited e-mail files that

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defendants have already agreed to produce.

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Defendants state that they have “agreed to search for and produce, e-mail that

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appears designed to obtain this information for a sample of the [30] Discovery Opt-Ins

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[Deponents].” Id. at p. 70 (citing to Exhibit M to Maneker Deck at 124-25, 125-37).

19 Defendants explain in the Declaration of Meryl Maneker that they have agreed to search
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selected for deposition (hereinafter “Discovery Opt-In Deponents”) because they estimate

22 the volume of e-mail to be collected from the stores and DMs, related to 118 Discovery
23 Opt-Ins would comprise four to five terabytes of data. [Doc. No. 183-18, at p. 5, f 18.]
24 “The estimate to process, load and host that volume of data Petco received ranged from
25 $277,000 to almost $1 million (depending on the amount of e-mail that contained a search
26 term).” Id. Petco further estimated attorneys’ fees related to the review of search results of
27 this volume of data would be hundreds of thousands of dollars. Id. The Court finds that
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of the 118 Discovery Opt-Ins is not proportional to the needs of the case. Fed. R. Civ. P.

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26(b)(2)(B). Without more, plaintiffs have not shown that a sampling of responsive

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information for the 30 Discovery Opt-In Deponents is insufficient for them to pursue their

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theory of the case.

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Accordingly, at this time, the Court DENIES plaintiffs’ request to compel

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defendants to interview or speak with each of the current and former GMs and DMs about

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this discovery request. Defendants are to produce the e-mail files for the 30 Discovery

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Opt-In Deponents during the time they worked as Assistant Managers during the relevant

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time period using the search methodology and search terms set forth in Exhibit M of the

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Maneker Declaration. To the extent that defendants have produced documents sought as

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represented, their response to Interrogatory No. 5 is sufficient.

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4. Plaintiffs’ Interrogatory No. 6 of RFP 3.
Interrogatory No. 6 asks Petco to “identify and describe any communication(s)
Defendants’ General Managers and District Managers] [sic] have had relating to or
concerning any complaints made by any Subject Plaintiffs or AM regarding hours worked,
the manner in which they were paid, staffing levels, and/or labor budgets at the stores where
they worked.” [Doc. No. 183, at p. 19.] Plaintiffs contend that Interrogatory No. 6 “seek[s]
clearly relevant information and [is] not overly broad, unduly burdensome or
disproportionate to the needs of this case” and again assert that it “is the same type of
information that Defendants have sought (and obtained) from each and every Discovery
Opt-In to whom they have directed written discovery.” Id. at p. 35.
Defendants contend that they have “appropriately responded to Interrogatory No. 6.”
[Doc. No. 183, at p. 70.] Notwithstanding defendants’ objections to this Interrogatory,
defendants directed plaintiffs to their response to RFP 3, Request for Production No. 2,
“wherein Petco agreed to search for and produce, responsive, non-privileged e-mails, from
select store and District manager e-mail files, including those containing the root term
‘complain*’ and an Opt-In’s name.” [Doc. No. 183, at p. 70 (citing Ex. A to Conway Deck,

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at pp. 7-10, 31-32).] Defendants also contend that they “agreed to search for e-mail files

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with the term ‘labor’ in close proximity to the terms ‘budget’ or ‘hours’ and for e-mail files

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with the word ‘hours’ and either ‘AM,’ ‘Assistant Manager,’ or the Opt-In’s name.” [Doc.

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No. 183, at p. 70 (citing Ex. A to Conway Decl., at pp. 7-10, 31-32).] Defendants contend

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that “this interrogatory seeks information similar to that sought in RFP 2, Request [for

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Production] No. 14, which sought documents ‘concerning complaints by AMs, whether

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formal or informal’ regarding ‘failure to pay AMs for all hours worked, including overtime

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hours, and the number of hours an AM was working.” [Doc. No. 183, atpp. 70-71 (internal

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citation omitted).] Defendants note that they have “searched various sources for such

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complaints and produced the same.” Id.

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Notably, plaintiffs’ fail to acknowledge in the Joint Motion that defendants agreed

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to search for and produce certain responsive documents to this Interrogatory in connection

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with similar requests made by plaintiffs in RFP 3, Request for Production No. 2 and RFP

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2, Request for Production No. 14. In fact, plaintiffs’ argument regarding Interrogatory

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Nos. 5, 6, 7 and 8 is summarized in just a few paragraphs containing general arguments.

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[Doc. No. 183, at pp. 33-35.] Instead, plaintiffs claim that “these requests seek clearly

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relevant information and are not overly broad, unduly burdensome or disproportionate to

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the needs of the case.” [Doc. No. 183, at p. 35.]

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For the reasons outlined in the previous discussion, the Court DENIES plaintiffs’

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request to compel defendants to interview or speak with each of the current and former

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GMs and DMs about this discovery request. This demand is also inconsistent with the

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permissible scope of interrogatories under the Federal Rules. Defendants have already

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agreed to produce certain documents sought as represented herein, which the Court finds

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sufficient.

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5. Plaintiffs’ Interrogatory No. 7 of RFP 3.
Interrogatory No. 7 asks Petco to “describe any communications Defendants’
General Managers and District Managers had with any store employee where the Subject
Plaintiffs worked wherein they recommended, mandated and/or directed the reduction of
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the number of employees and/or labor hours for a particular day or given time period.”

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[Doc. No. 183, at p. 20.] Plaintiffs contend that Interrogatory No. 7 “seek[s] clearly

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relevant information and [is] not overly broad, unduly burdensome or disproportionate to

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the needs of this case” and “is the same type of information that Defendants have sought

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(and obtained) from each and every Discovery Opt-In to whom they have directed written

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discovery.” Id. at p. 35. Petco objected to this request on various grounds, including that

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it is overly broad and unduly burdensome explaining that “Petco cannot readily determine

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‘any communication’ that may have taken place by or between hundreds of employees.”

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[Doc. No. 183, at p. 71.]

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Defendants argue that there are 240 current and former GMs and DMs and contend

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that “this request is not proportional to the needs of the case, considering the time and

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resources to complete this task balanced against the materiality of the information and the

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ability to obtain the information through a less intrusive means.” [Doc. No. 183, at p. 71.]

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Notwithstanding their objections, defendants note that they have “agreed to collect, search

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and review e-mail from select store and DM e-mail files using Plaintiffs’ search terms -

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such as ‘labor[,]’ ‘budget[,]’ or ‘hours’ that appear designed to obtain the information

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sought.” Id. (emphasis added) (citing Ex. M to Maneker Deck at 124-25, 135-37.)

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Additionally, defendants assert that “plaintiffs may depose up to nine GMs or DMs if they

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seek yet further information.” Id. As set forth in Exhibit M of the Maneker Declaration,

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defendants have agreed to “search the Store and DM e-mail for the 30 Opt-In Plaintiffs

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selected as deponents” using Petco’s search terms and plaintiffs’ search terms, with certain

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limitations. [Ex. M to Maneker Deck at 124-125, 135-37.] The Court finds defendants’

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response to Interrogatory No. 7 sufficient in light of the proportionality standards set forth

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in Rule 26.

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Accordingly, at this time, the Court DENIES plaintiffs’ request to compel

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defendants to interview or speak with each of the current and former GMs and DMs about

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this discovery request. Defendants are to produce the responsive, non-privileged store and

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DM e-mail files for the 30 Discovery Opt-In Deponents using the search methodology and
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search terms set forth in Exhibit M of the Maneker Declaration. To the extent that

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defendants have produced documents sought as represented, their response to Interrogatory

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No. 7 is sufficient.
6. Plaintiffs’ Interrogatory No. 8 of RFP 3.

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Interrogatory No. 8 asks Petco to: “identify all communication(s) that Defendants’
General Managers and District Managers have had concerning the classification and/or
reclassification of the Subject Plaintiffs or AMs as exempt or non-exempt from overtime,
including the dissolution or discontinuance of the AM position.” [Doc. No. 183, at p. 20.]
Interrogatory No. 8 further requests “[f]or each communication, identify whom the
communication was with and the date, form and substance of the communication.” Id.
Interrogatory No. 8 “has no date limitation.” Plaintiffs contend that Interrogatory No. 8
“seek[s] clearly relevant information and [is] not overly broad, unduly burdensome or
disproportionate to the needs of this case” and “is the same type of information that
Defendants have sought (and obtained) from each and every Discovery Opt-In to whom
they have directed written discovery.” Id. at p. 35.
Defendants assert that they have “appropriately responded to Interrogatory No. 8.”
[Doc. No. 183, at p. 72.] Defendants objected to this Interrogatory and explained that
“[Petco] cannot readily determine ‘any communication’ that may have taken place by or
Notwithstanding their objections to this

between hundreds of employees.’” Id.

Interrogatory, defendants directed plaintiffs to the “documents produced in response to
RFP 4, specifically identifying the set of talking points distributed to GMs and DMs
regarding the elimination of the AM position.” Id. Defendants contend that they asked
plaintiffs to clarify how this response was deficient during the meet and confer process, but
plaintiffs failed to do so. Id. Defendants also agreed to search select store and DM e-mail
files apparently intended to locate the information sought by plaintiffs, in addition to the
documents identified above. Id.
For the reasons outlined in the previous discussion, the Court DENIES plaintiffs’
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1

request to compel defendants to interview or speak with each of the current and former

2

GMs and DMs about this discovery request. Defendants have already agreed to produce

3

certain documents sought as represented herein, which Court finds sufficient.

4

7. Plaintiffs* Requests for Production Nos. 1-6 and 8-10 of RFP 3.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
.27
28

In the Joint Motion, plaintiffs combine their arguments regarding why the Court
should compel further responses to Requests for Production Nos. 1-6 and 8-10. [Doc. No.
183, at pp. 36-38.] Plaintiffs assert generally that the Requests for Production in RFP 3
“seek relevant communications sent and received by the GMs and DMs who supervised
the Subject Plaintiffs.” [Doc. No. 183, at pp. 35-36.] The Court will consider plaintiffs’
arguments (and defendants’ responses) regarding these Requests for Production together
as they all relate to communications sent or received by the GMs and DMs who supervised
the Discovery Opt-Ins.

However, certain requests, including text messages sent or

received, will be discussed separately.
Plaintiffs’ Requests for Production Nos. 1-6 and 8-10 seek the following:
• All documents, e-mails, text and internet messages, tweets, posts on social
media and other communications sent or received by Defendants' General
Managers and/or District Managers relating to the Subject Plaintiffs. (No. 1).
• All documents, e-mails, text and internet messages, tweets, posts on social
media and other communications sent or received by Defendants' General
Managers and/or District Managers relating to complaints about the staffing
levels or labor budgets at the stores where the Subject Plaintiffs worked. (No.
2).
• All documents, e-mails, text and internet messages, tweets, posts on social
media and other communications sent or received by Defendants' General
Managers and/or District Managers instructing or relating to instructions they
gave to send hourly-paid employees home during their shifts at the stores
where the Subject Plaintiffs worked. (No. 3).
• All documents, e-mails, text and instant messages, tweets, posts on social
media and other communications sent or received by Defendants’ General
Managers and/or District Managers relating to, concerning or in connection
14
3:13cv644L(KSC)

1
2
3
4
5

6
7
8

9
10

with this lawsuit (excluding communications with Defendants ’ counsel) as
they pertain to the Subject Plaintiffs. (No. 4).
• All documents, e-mails, text and instant messages, tweets, posts on social
media and other communications sent and/or received by Defendants' General
Managers and/or District Managers that evidence or record the times that the
Subject Plaintiffs arrived at work, took a meal and rest break, departedfrom
work and/or worked in excess of 40 hours in a workweek. (No. 5).
• All documents sent or received by Defendants' General Managers and/or
District Managers reflecting, concerning, or showing when the Subject
Plaintiffs were directed to perform and/or complete manual tasks including,
but not limited to, pricing merchandise, unloading freight, merchandise
recovery, cleaning the store, stocking the shelves, operating the cash register,
and setting up displays, ad planners and/or planograms. (No. 6).

11
12
13
14
15
16

• All documents sent or received by Defendants’ General Managers and/or
District Managers reflecting, concerning, or showing when the Subject
Plaintiffs made (either formal or informal and whether in writing or verbal)
complaints about insufficient staffing levels, the labor budget and/or wage
and hour issues including, but not limited to, complaints concerning
Defendants' failure to pay the Subject Plaintiffs for all hours worked,
including overtime hours, and the number of hours the Subject Plaintiffs
worked. (No. 8).

17
18
19
20

21

• All documents, e-mails, text and instant messages, tweets, posts on social
media and other communications sent or received by Subject Plaintiffs'
General Managers and District Managers concerning the classification and/or
reclassification of the AM position as exempt or non-exempt from overtime
and/or the dissolution or discontinuance of the AM position. (This Request
has no date limitation). (No. 9).

22
23
24

25
26
27

• All documents, e-mails, text and instant messages, tweets, posts on social
media and other communications sent or received by Defendants' General
Managers and District Managers reflecting, concerning, or showing when the
Subject Plaintiffs were required to work on scheduled days off, were on call,
or otherwise responded to communications from Defendants when not
scheduled to work or when not in the store. (No. 10).
[Doc. No. 183, at pp. 21-28 (emphasis added).]

28
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3:13cv644L(KSC)

1

Defendants objected to these document requests on various grounds, including that

2

the requests are unduly burdensome and not proportional to the needs of this case.1 [Doc.

3

No. 183, at p. 22.] Notwithstanding their objections, defendants agreed to search for and

4

produce store and DM e-mails for a sample of 30 Discovery Opt-Ins. [Doc. No. 183, at pp.

5

21-25, 74.]

6

defendants agreed to search for and produce the following documents for each Subject

7

Plaintiff:

8

For example, in response to plaintiffs’ Request for Production No. 1,

• Any application for employment with Petco stored at the HR Service Center
or at the store where he/she worked as an Assistant Manager;

9
10

• Any performance Evaluations stored at the HR Service Center or at the store
where he/she worked as an [sic] Assistant Managers;

11
12

• Any Employee Performance Notices stored at the HR Service Center or at the
store where he/she worked as an Assistant Manager;

13
14

• Any Online Personnel Action records reflecting separation from employment
from Petco, if applicable; and

15
16
17

• Any complaints by or regarding the Subject Plaintiff made to the Petco
Hotline.

18

[Doc. No. 183, at pp. 22, 24.] Defendants also agreed to search for and produce, on a

19

rolling basis, responsive, non-privileged e-mails with respect to the 30 Opt-In Deponents

20

pursuant to the procedure set forth in their responses. [Doc. No. 183, at pp. 24-25.]

21

Plaintiffs contend that defendants’ responses to each of plaintiffs’ Requests for

'22

Production Nos. 1-6 and 8-10 are deficient because “it appears that Defendants did not

23

speak with any of its General Managers and District Managers about plaintiffs’ requests,

24
25
26
27
28

i

Plaintiffs included defendants’ response to Request for Production No. 1 in the body of the Joint
Motion. [Doc. No. 183, at pp. 21-25.] However, plaintiffs note as follows in the Joint Motion: “because
Defendants’ objections and responses to each of Plaintiffs’ Request for Production Nos. 2-10 span
several pages (and are substantially similar), so as to not burden the Court with excessive briefing [they]
incorporate[d] by reference the applicable pages from Defendants’ responses, as annexed to the
Affidavit of Jason Conway.” Id. at p. 21.
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1
2

their responses.” [Doc. No. 183, at pp. 36, 37.] Plaintiffs assert that “the requests are

3

directly proportional to the needs of the case and relate specifically to the 118 Discovery

4

Opt-Ins (including Plaintiff Kellgren) whom Defendants have similarly obtained discovery

5

from (or are in the process of doing so).” Id. at p. 37. Plaintiffs cite National Association

6

of Radiation Survivors v. Turnage, 115 F.R.D. 543, 556 (N.D. Cal. 1987), and assert that

7

“a reasonable inquiry requires, ‘at a minimum, a reasonable procedure to distribute

8

discovery requests to all employees and agents of the [party] potentially possessing

9

responsive information, and to account for the collection and subsequent production of the

10

information to [the opposing party] ’” [Doc. No. 183, at p. 37.] Finally, plaintiffs take issue

11

with defendants’ indication that “they will ‘consider’ searching, in some instances, their e-

12

mail boxes for responsive documents” as opposed to actually performing any substantive

13

’

and Defendants did not include any specific GM or DM communications or documents in

inquiries with their GMs and DMs. [Doc. No. 183, at p. 38.]

44

Defendants counter by noting that, on their face, these requests are directed to Petco,

15

not to individual GMs or DMs. [Doc. No. 183, at p. 73]. Defendants further note that they

16

are not required to speak to each GM or DM to respond to these requests because it would

17

be overly burdensome and not proportional to the needs of this case. Id. To the extent that

18

plaintiffs seek information from specific GMs and/or DMs, they will have the opportunity

19

to depose up to nine supervisors. Id.

20

Further, defendants contend that they are not required to speak with the GMs and/or

21

DMs because the reasonably responsive documents sought could be identified and gathered

22

without their involvement. Id. at p. 73. Defendants explain in the Joint Motion that at

23

Petco, each store (as opposed to any individual GM) has a Petco-issued e-mail account

24

accessible by the GM and DM. Id. Further, Petco manages and/or maintains personnel

25

records for and complaints related to its employees, including the Discovery Opt-Ins,

26

centrally. Id. Petco contends it “conducted a reasonable inquiry into the factual basis of

27

each response to RFP 3 as contemplated by Natl Ass ’n of Radiation Survivors v. Turnage,

28

115 F.R.D. 543, 556 (N.D. Cal. 1987).” [Doc. No. 183, at p. 74.] Specifically, Petco
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3:13cv644L(KSC)

1

contends it “has produced, or is in the process of producing personnel records as well as

2

any complaint(s) by or regarding them made to the Petco Hotline and Petco has agreed to

3

search for and produce responsive, non-privileged e-mail from stores and DMs related to

4

the 30 Opt-Ins selected for deposition during the time when they were an AM.” [Doc. No.

5

183, atp. 74.]

6

Finally, with respect to Requests for Production Nos. 4-6 and 9-10, defendants

7

counter by noting that “plaintiffs grossly mischaracterize Petco's willingness to ‘consider’

8

searching for additional documents as indicia of its failure to perform a substantive inquiry

9

with its GMs and DMs.” Id. at p. 75. Specifically, Petco has agreed to search the store and

10

DM e-mail files for the 30 Opt-In Deponents using both Petco’s search terms and plaintiffs’

11

search terms, with “appropriate limitations.2” [Doc. No. 183, at p. 75.]

12

The Court agrees with defendants that they are not required to speak with the GMs

13

and/or DMs because the reasonably responsive documents sought can be identified and

14

gathered without their involvement. In light of the significant cost for defendants to collect,

15

search and produce the volume of e-mail for all 118 Discovery Opt-Ins and their respective

16

DMs, the Court also agrees that defendants’ search, review, and production of non-

-17

privileged, responsive e-mail from the mailboxes of the stores and DMs of the 30

18

Discovery Opt-In Deponents using both Petco’s search terms and plaintiffs’ search terms

19

is sufficient.

20

The Court DENIES plaintiffs’ motion to compel further responses to Requests for

21

Production Nos. 1-6 and 8-10. For the reasons outlined in the previous discussion, the

22

Court DENIES plaintiffs’ request to compel defendants to interview or speak with each of

23

the current and former GMs and DMs about these discovery requests. Defendants have

24

already agreed to produce certain documents sought as represented herein, which the Court

25
26
27
.28

2 Petco contends that it has proposed limitations for 74 of plaintiffs’ proposed search terms, and has
agreed to no limitation on 12 of plaintiffs’ terms, all of which seek to limit results to the documents most
likely to have relevant information. [Doc. No. 183, at p. 75.]
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3:13cv644L(KSC)

1
2

finds sufficient.

3

a. Plaintiffs’ Requests for Text Messages Sent or Received by GMs
and DMs.

4

Plaintiffs’ Requests for Production Nos. 1-3 include requests for defendants to

5

produce text messages sent or received by GMs and DMs regarding the Discovery Opt-Ins

6

(Request for Production No. 1); complaints about staffing levels or labor budgets (Request

7

for Production No. 2); and text messages sent or received by GMs or DMs with instructions

8

to send hourly-paid employees home during shifts at the stores where Subject Plaintiffs

9

worked (Request for Production No. 3). [Doc. No. 183, at pp. 21-25.]

10

Defendants object to plaintiffs’ requests for text messages sent or received by GMs

11

and DMs on various grounds, including that they are unduly burdensome and not

12

proportional to the needs of this case. Id. Defendants argue that the GMs do not have

13

company-issued phones and that the GMs’ personal phones are “outside Petco’s custody,

14

control or possession and would invade these individuals’ privacy rights.” [Doc. No. 183,

15

at p. 76.] Defendants note “Petco’s Store Communications Policy,” which advises that

16

DMs are permitted to communicate with stores through e-mail or voice-mail, to support

17

their argument that the text messages sought by plaintiffs are not likely to contain

18

significant information relevant to whether the Discovery Opt-Ins were properly classified

19

as exempt. [Doc. No. 183, at pp. 76-77.] Finally, defendants reiterate that “[s]ince Petco

20

has agreed to search for and produce a substantial sample of responsive e-mails to and from

21

DMs, the burden to search text messages simply is not justified.” Id. at p. 77.

22

Plaintiffs’ argument in support of their need for text messages sent or received by

23

GMs and DMs is vague, at best. Plaintiffs claim that defendants have “acknowledged that

24

DMs, for example, were issued with company phones and, therefore, may have texted with

25

store-level employees, including the Discovery Opt-Ins, about their job duties.” [Doc. No.

26

183, at p. 38.] Notably, plaintiffs do not cite anything in support of this

27

“acknowledgement.” Id. In response to defendants’ arguments that the GMs’ personal

28

phones are outside of Petco’s possession, custody or control, plaintiffs contend that “this
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3:13cv644L(KSC)

T 1

claim is spurious at best” and that “the company has direct control over what information

2

GMs and DMs’ [sic] can post and send using these mediums, and indicates that individuals

3

can be terminated for not complying with their corporately-mandated rules.” Id. (citing

4

generally to Defendants’ Social Media and Networking Policy and Corporate Voice and

5

Data Communications Policy). Plaintiffs cite to Defendants’ Social Media and Networking

6

Policy and Corporate Voice and Data Communications Policy in support of its argument

7

that “GMs and DMs have no expectation of privacy,” without any analysis or citation of

8

authority. [Doc. No. 183, at p. 39.] Defendants counter plaintiffs’ characterization of

9

Petco’s Social Media and Networking Policy noting that it simply “sets forth guidelines

10

[for] individuals identifying themselves as Petco employees that they should follow when

11

using social media in their personal capacity.” [Id. at p. 78.]

,12

The Court finds that plaintiffs fail to clearly state why they are entitled to a court

13

order compelling production of text messages sent or received by GMs and DMs on their

14

personal cell phones in connection with plaintiffs’ Requests for Production Nos. 1-3. The

15

Court agrees with the arguments made by defendants in opposition to plaintiffs’ requests

16

to produce text messages sent or received by GMs and DMs regarding the Discovery Opt-

17

Ins. Accordingly, the Court DENIES plaintiffs’ motion to compel production of text

18

messages sent or received by GMs and DMs in connection with plaintiffs’ Requests for

19

Production Nos. 1-3.

20
21
22
23
24
25
26

b. Plaintiffs’ Requests for “Internet Messages” Made or Received by
GMs or DMs.
Plaintiffs’ Requests for Production Nos. 1-3 include requests for “internet messages,
tweets and posts on social media” made or received by the Discovery Opt-Ins’ GMs or
DMs. [Doc. No. 183, at pp. 21-25.] Similarly, Requests for Production Nos. 4-5 and 9-10
include requests for “tweets and posts on social media” made or received by the Discovery
Opt-Ins’ GMs or DMs. Id. at p. 26.

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28
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3:13cv644L(KSC)

1

Defendants object to plaintiffs’ requests for this material on various grounds and

2

further contend that this information is not within Petco’s possession, custody or control.

3

[Doc. No. 183, at p. 78.] Defendant explains in the Joint Motion that “while Petco

4

maintains social media accounts, such as a Facebook page, GMs and DMs do not have

5

access to or the ability to post on these accounts on behalf of Petco” [Id. (emphasis

6

included in original).] Defendants further explain that any personal social media accounts

7

of the GMs and DMs are personal and not available to Petco, invoking these individuals’

8

privacy rights. Id.

9

Plaintiffs make the same argument in support of internet messages, including tweets

10

and posts on social media, made or received by GMs and DMs, as made in support of text

11

messages, summarized above. [Doc. No. 183, atp. 38:23-26; p. 39:1-17,]

12

For the same reasons explained above, the Court agrees with the arguments made by

13

defendants in opposition to plaintiffs’ requests to produce internet messages, tweets and

14

posts on social media made or received by the Discovery Opt-Ins’ GMs or DMs.

15

Accordingly, the Court DENIES plaintiffs’ motion to compel production of internet

16

messages, tweets and posts on social media in connection with plaintiffs’ Requests for

17

Production Nos. 1-5 and 9-10.

18
19

8. Plaintiffs’ Request for Production No. 7. including Planograms, Ad
Planners. Floor Resets and Floor Plans.

20

Request for Production No. 7 seeks “[a]ll documents sent or received by Defendants’

21

General Managers and/or District Managers that reflect the tasks, assignments, duties,

22

and/or functions performed by the Subject Plaintiffs including, but not limited to, all

23

policies and procedures related to the Subject Plaintiffs’ job duties, all instructions on the

24

performance of manual tasks performed by the Subject Plaintiffs, and all planograms, ad

25

planners, floor resets, floor plans and all other documents providing instruction concerning

26

the layout of the stores where the Subject Plaintiffs worked.” [Doc. No. 183, at pp. 39-40.]

21

Defendants object to the production of planograms, ad planners, floor resets or floor

28

plans, on various grounds, including because they are “not relevant to a party’s claim or
21
3:13cv644L(KSC)

1

defense, because [they] ha[ve] no bearing on whether Petco’s Assistant Managers were

2

properly classified as exempt.” [Doc. No. 183-2, at p. 22.]

3

Plaintiffs contend that planograms, ad planners, floor resets, and floor plans

4

(hereinafter “planogram documents”) are received by defendants’ GMs and DMs through

5

defendants’ intranet portal. [Doc. No. 183, at p. 40.] Plaintiffs further contend that the

6

manner in which “Petco micromanages their stores, including with respect to store layout,

, 7

is central to whether AMs are properly classified as exempt under the FLSA, an analysis

8

which turns on: (1) the nature of Plaintiffs’ primary duties; and (2) the degree of discretion

9

(or, in this case, lack of discretion) that Plaintiffs had both in the performance of their duties

10

generally and by completing pre-determined planograms and other corporately-derived

11

plans.” Id. Plaintiffs contend that the refusal to produce these documents prejudices

12

plaintiffs’ ability to prosecute this action. [Doc. No. 183, at p. 41.] Plaintiffs claim that

13

these documents are “regularly produced during the course of FLSA retail misclassification

14

cases.” Id. at pp. 40-42. Plaintiffs cite case law in support of its argument that courts have

15

relied on these types of documents as evidence of corporate control over managers in FLSA

16

cases and as evidence of assistant managers’ lack of discretion. [Doc. No. 183, at pp. 40-

17

41; see, e.g., Indergitv. Rite Aid Corp., No. 08 Civ. 9361(PGG), 2010 WL 2465488, at *5

18

(S.D.N.Y. June 16, 2010).]

19

Defendants counter plaintiffs’ arguments for the planogram documents on multiple

20

grounds, generally asserting that they are not responsive to Request for Production No. 7

21

and are not relevant. [Doc. No. 183, at p. 78.] More specifically, defendants contend that

22

the fact that Petco provides its stores with uniform instructions, such as planograms, does

23

not, in and of itself, establish that AMs lack discretion. Id. at pp. 78-79; see, e.g., Mitchell

24

v. Abercrombie & Fitch, Co., 428 F. Supp. 2d 725, 743 (S.D. Ohio 2006).] Defendants

25

attempt to distinguish the authority cited by plaintiffs in support of their argument, and

26

contend that none of the cases cited by plaintiffs “specifically found that planograms and

27

the like are evidence of non-exempt status, and none of them specifically considered their

28

impact on a retail manager’s level of discretion.” Id. at p. 80. “Rather this evidence was
22

3:13cv644L(KSC)

1

cited to either show plaintiffs performed similar duties for conditional class certification

2

purposes or focused on numerous non-exempt tasks including but not limited to setting up

3

planograms as evidence in a particular case that plaintiffs were non-exempt.” Id.

4

Second, defendants contend that the planogram documents are not responsive to

5

Request for Production No. 7 because it seeks documents “sent or received by GMs and/or

6

DMs” related to tasks performed by the Discovery Opt-Ins, including documents

7

“providing instruction concerning the layout of the stores where the” Discovery Opt-Ins

8

worked. [Doc. No. 183, at p. 80.] GMs and DMs do not individually receive these four

9

types of documents, but rather these documents are made available to all of the

10

management team of a particular store. Id. at pp. 80-81. Third, defendants contend that the

11

planogram documents “are factually of little value as they would shed no light on the

12

Discovery Opt-Ins’ duties or hours or whether AMs were properly classified as exempt”

13

because merchandising was not one of the AMs’ duties. [Doc. No. 183, at p. 81.] Further,

14

defendants contend that producing such documents would be extremely burdensome in that

15

Request for Production No. 7 seeks these related to more than 100 stores. Id. Defendants

16

note that they have agreed to provide plaintiffs “a three-month sample of Action Memos,

17

which will include ad planners and floor resets, as well as other documents sent to a single

18

store,” and that plaintiff should be required to review this sample before obtaining more.

19

Id. atpp. 81-82.

20

Despite defendants’ arguments to the contrary, plaintiffs have argued convincingly

21

that the planogram documents are relevant as evidence of corporate control and considered

22

by courts for certification motions of nationwide FLSA actions. Plaintiffs are entitled to

,23

pursue their theory of the case. To test this theory, plaintiffs are at least entitled to a broader

24

sampling of defendants’ Action Memos, including ad planners and floor resets.

25

On the other hand, the Court agrees with defendants’ objection that the request for

26

planogram documents is overly broad and unduly burdensome. Generally, a discovery

27

request without any temporal or other reasonable limitation is objectionable on its face as

28

overly broad. See, e.g., Ehrlich v. Union Pac. R.R. Co., 302 F.R.D. 620, 625 (D. Kan.
23

3:13cv644L(KSC)

1

2014); Johnson v. Kraft Foods N. Am., Inc., 236 F.R.D. 535, 541-542 (D. Kan. 2006). A

2

document request or interrogatory is also overly broad or unduly burdensome on its face if

3

it: “(1) uses an omnibus term such as ‘relating to’ or ‘concerning,’ and (2) applies to a

' 4

general category or group of document or a broad range of information.” Moses v.

5

Halstead, 236 F.R.D. 667, 672 (D. Kan. 2006). “Despite the overly broad nature of [a

6

discovery request], a party typically has a duty to respond to it to the extent the [discovery

7

request] is not objectionable and can be narrowed to an appropriate scope.” Id. “This rule

8

does not apply, however, and the Court will not compel further response, when inadequate

9

guidance exists to determine the proper scope of the [discovery request].” Id. In addition,

10

when a discovery request “is overly broad on its face or when relevancy is not readily

11

apparent, the party seeking discovery has the burden to show the relevancy of the request.”

12

Johnson v. Kraft, 236 F.R.D. at 542 n.20 (citing Owens v. Sprint/United Mgmt. Co., 221

13

F.R.D. 649, 652 (D. Kan. 2004)).

14

Defendants have agreed to “produce a three-month sample of Action Memos, which

.15

will include ad planners and floor resets, as well as other documents sent to a single store.”

16

[Doc. No. 183, at pp. 81-82.] Notably, plaintiffs fail to acknowledge this proposal in the

17

Motion, and also fail to argue why it is insufficient or too narrow. Instead, plaintiffs stand

18

on their overly broad request for “all planograms, ad planners, floor resets, floor plans and

19

all other documents providing instruction concerning the layout of the stores where the

20

Subject Plaintiffs worked,” notwithstanding there is no date limitation, limitation on the

21

number of stores, or other reasonable limitations on the scope of discovery to be produced

22

in response to this request.

23

The Court finds that defendants’ proposed limitation of a three-month sample of

24

Action Memos sent to a single store is too narrow based on the allegations in plaintiffs’

25

operative Complaint. Accordingly, the Court ORDERS defendants to produce a three-

26

month sample of Action Memos for the stores where the 30 Opt-In Deponents worked.

27

III

28

III
24

3:13cv644L(KSC)

1
2

III.

CONCLUSION

For the foregoing reasons, the Joint Motion is DENIED. [Doc. No. 183.]

3

1.

Plaintiffs’ request for an in-person discovery conference is DENIED.

4

2.

Plaintiffs’ Motion to Compel defendants’ collection, search and production of
ESI at the regional and corporate-level is DENIED.

3.

Plaintiffs’ Motion to Compel a further response to plaintiffs’ Interrogatory No.
5 in plaintiffs’ RFP 3 is DENIED.

4.

Plaintiffs’ Motion to Compel a further response to plaintiffs’ Interrogatory No.
6 in plaintiffs’ RFP 3 is DENIED.

5.

Plaintiffs’ Motion to Compel a further response to plaintiffs’ Interrogatory No.
7 in plaintiffs’ RFP 3 is DENIED.

6.

Plaintiffs’ Motion to Compel a further response to plaintiffs’ Interrogatory No.
8 in plaintiffs’ RFP 3 is DENIED.

7.

Plaintiffs’ Motion to Compel a further response to plaintiffs’ Requests for
Production Nos. 1-6 and 8-10 is DENIED.

8.

Plaintiffs’ Motion to Compel the production of text messages sent or received
by GMs and DMs, in connection with plaintiffs’ Requests for Production Nos.
1-3 in plaintiffs’ RFP 3, is DENIED.

9.

Plaintiffs’ Motion to Compel the production of internet messages, tweets and
posts on social media made or received by the Discovery Opt-Ins’ GMs or
DMs, in connection with plaintiffs’ Requests for Production Nos. 1-5 AND 910 in plaintiffs’ RFP 3, is DENIED.

10.

Plaintiffs’ Motion to Compel a further response to plaintiffs’ Request for
Production No. 7, is GRANTED in part and DENIED in part. Defendants are
ordered to produce a three-month sample of Action Memos for the stores where
the 30 Opt-In Deponents worked.

11.

To the extent defendants have not produced responsive documents sought that
it has agreed to produce to any of the discovery requests herein, defendants are

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28

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3:13cv644L(KSC)

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ORDERED to produce them within twenty (20) days of the date of this Order.

2
3
4

IT IS SO ORDERED.
Date: March

2017

5

6
KARfeTSTCRXWFORT)
United States Magistrate Judge

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3:13cv644L(KSC)