Perez v. Kazu Construction LLC et al

Filing 87

ORDER GRANTING IN PART AND DENYING IN PART: (1) PLAINTIFF'S MOTION TO QUASH, OR IN THE ALTERNATIVE, TO MODIFY SUBPOENA; (2) PLAINTIFF'S SECOND MOTION TO QUASH SUBPOENAS AND FOR ENTRY OF A PROTECTIVE ORDER; AND (3) DEFENDANTS' MOTION TO COMPEL DISCOVERY re 46 , 55 , 62 - Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 2/15/2017. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
SECRETARY OF LABOR,
UNITED STATES DEPARTMENT )
OF LABOR, THOMAS PEREZ, )
)
)
Plaintiff,
)
)
vs.
)
KAZU CONSTRUCTION, LLC, a )
corporation; and VERNON )
)
LOWRY, an individual,
)
)
Defendants.
_________________________ )

CIVIL NO. 16-00077 ACK-KSC
ORDER GRANTING IN PART AND
DENYING IN PART:
(1) PLAINTIFF’S MOTION TO
QUASH, OR IN THE
ALTERNATIVE, TO MODIFY
SUBPOENA; (2) PLAINTIFF’S
SECOND MOTION TO QUASH
SUBPOENAS AND FOR THE
ENTRY OF A PROTECTIVE
ORDER; AND (3) DEFENDANTS’
MOTION TO COMPEL DISCOVERY

ORDER GRANTING IN PART AND DENYING IN PART:
(1) PLAINTIFF’S MOTION TO QUASH, OR IN THE ALTERNATIVE,
TO MODIFY SUBPOENA; (2) PLAINTIFF’S SECOND MOTION TO
QUASH SUBPOENAS AND FOR THE ENTRY OF A PROTECTIVE ORDER;
AND (3) DEFENDANTS’ MOTION TO COMPEL DISCOVERY
Before the Court are:

(1) Plaintiff Secretary

of Labor, U.S. Department of Labor, Thomas Perez’s
(“Plaintiff”) Motion to Quash, or in the Alternative, to
Modify Subpoena, filed November 17, 2016;
(2) Plaintiff’s Second Motion to Quash Subpoenas and for
the Entry of a Protective Order, filed December 16,
2016; and (3) Defendants Kazu Construction, LLC (“Kazu”)
and Vernon Lowry’s (“Lowry”) (collectively “Defendants”)

Motion to Compel Discovery, filed November 30, 2016.
These matters came on for hearing on January 27, 2017.
Senior Trial Attorney Abigail Daquiz and Trial Attorney
Cristopher Santos appeared by phone on behalf of
Plaintiff.

Christopher Yeh, Esq. and Darin Leong, Esq.

appeared on behalf of Defendants.

After careful

consideration of the parties’ submissions, the
applicable law, and the arguments of counsel, the Court
HEREBY GRANTS IN PART AND DENIES IN PART the Motions for
the reason set forth below.
BACKGROUND
This case involves allegations that Defendants
violated the minimum wage, overtime, and record keeping
requirements of the Fair Labor Standards Act of 1938
(“FLSA”).
A.

Motion to Compel
On August 30, 2016, Kazu served its First

Request for Production of Documents (“RPOD”) and First
Request for Answers to Interrogatories (“RAI”).

On

September 29, 2016, Plaintiff requested an extension of
2

time to respond to the discovery requests by October 14,
2016.

Kazu agreed to the requested extension.

On

October 14, 2016, Plaintiff provided responses to the
RAI, but indicated that he would provide responses and
responsive documents to the RPOD the next week.
Plaintiff provided written responses to the RPOD on
October 21, 2016, and responsive documents on October
25, 2016.
Counsel for the parties communicated throughout
November concerning outstanding discovery.

On November

29, 2016, Plaintiff produced additional documents and
informed Defendants about what documents it would and
would not produce.

Defendants then filed the Motion to

Compel.
B.

Motion to Quash
On August 30, 2016, Defendants issued subpoenas

to Dennis Tadio and Hawaii News Now.

On November 3,

2016, Defendants issued subpoenas for several Claimants,
but were only able to effect service upon Kevin
MacGregor and Stanley Napierala.
3

On November 8, 2016,

subpoenas were issued for multiple Claimants and
entities, but service was only successfully effected on
Arnold Leedy, Makaha Oceanview Estates, Nakamura
Electric, Mark Kramer, and Suzanne Yen.
On November 17, 2016, Plaintiff filed his
Motion to Quash, or in the Alternative, to Modify
Subpoena.
On December 2, 2016, subpoenas were served on
Preston Cummings, Richard Napierala, Andrew Davis,
Laretta Dubin, Joseph Nunuha, Melanie Abad, and T.J.
Mahoney.

Plaintiff’s Second Motion to Quash Subpoenas

and for the Entry of a Protective Order followed on
December 16, 2016.
LEGAL STANDARDS
A.

Motion to Compel
Federal Rule of Civil Procedure (“FRCP”) 26

provides:
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
4

stake in the action, 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.
Fed. R. Civ. P. 26(b)(1).

Relevance “has been construed

broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear
on, any issue that is or may be in the case.”
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
(1978).

At the same time, it has its “ultimate and

necessary boundaries.”

Id.

“District courts have broad

discretion in determining relevancy for discovery
purposes.”

Surfvivor Media, Inc. v. Survivor Prods.,

406 F.3d 625, 635 (9th Cir. 2005) (citing Hallett v.
Morgan, 296 F.3d 732, 751 (9th Cir. 2002)).
The 2015 amendment to FRCP 26 added
proportionality as a requirement for obtaining
discovery.

Thus, “relevancy alone is no longer

sufficient to obtain discovery, the discovery requested
5

must also be proportional to the needs of the case.”
Centeno v. City of Fresno, Case No. 1:16-cv-00653-DADSAB, 2016 WL 7491634, at *4 (E.D. Cal. Dec. 29, 2016)
(citing In re Bard IVC Filters Prod. Liab. Litig., 317
F.R.D. 562, 564 (D. Ariz. 2016)).

Addressing all

proportionality considerations does not rest solely with
the party seeking discovery.

Fed. R. Civ. P. 26(b)(1)

advisory committee’s note to 2015 amendment.

Instead,

“[t]he parties and the court have a collective
responsibility to consider the proportionality of all
discovery and consider it in resolving discovery
disputes.”

Id.

District courts have broad discretion to limit
discovery where the discovery sought is “unreasonably
cumulative or duplicative, or can be obtained from some
other source that is more convenient, less burdensome,
or less expensive.”

Fed. R. Civ. P. 26(b)(2)(C).

Limits also should be imposed where the requesting party
has had ample opportunity to obtain the information
through discovery in the action or the discovery is
6

outside the scope of permissible discovery under FRCP
26(b)(1).

Id.

In the event a party fails to respond to a
discovery request, the party who served the discovery
request may file a motion to compel.
37(a)(3)(B)(iii)-(iv).

Fed. R. Civ. P.

An incomplete or evasive answer

or response is deemed a failure to answer or respond.
Fed. R. Civ. P. 37(a)(4).

The motion to compel must

include a certification that the “movant has in good
faith conferred or attempted to confer with the person
or party failing to make disclosure or discovery in an
effort to obtain it without court action.”

Fed. R. Civ.

P. 37(a)(1); see also Local Rule 37.1(a), (b).
B.

Motion for Protective Order
FRCP 26(c) governs the granting of a protective

order.

A protective order may be granted, for “good

cause” to “protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.”
Fed. R. Civ. P. 26(c)(1).

“If a court finds

particularized harm will result from disclosure of
7

information to the public, then it balances the public
and private interests to decide whether a protective
order is necessary.”

Rivera v. NIBCO, Inc., 384 F.3d

822, 827 (9th Cir. 2004) (citations omitted).
Generally, the party seeking the protective order has
the heavy burden of demonstrating that “good cause”
exists for the protection of the materials.
(citation omitted).

Id.

“‘Good cause’ is established where

it is specifically demonstrated that disclosure will
cause a ‘specific prejudice or harm.’”

Id. (quoting

Phillips ex rel. Estates of Byrd v. Gen. Motors Corp.,
307 F.3d 1206, 1211-12 (9th Cir. 2002)).

This standard

is not satisfied by “[b]road allegations of harm,
unsubstantiated by specific examples or articulated
reasoning.”

Id. (citing Phillips, 307 F.3d at 1211-12).

Rather, a party seeking to obtain a protective order
must make a “particularized showing of good cause with
respect to any individual document.”

Phillips, 307 F.3d

at 1211 (quoting San Jose Mercury News, Inc. v. U.S.
Dist. Court--Northern Dist. (San Jose), 187 F.3d 1096,
8

1103 (9th Cir. 1999)).
If the Court denies the motion for protective
order in whole or in part, “the court may, on just
terms, order that any party or person provide or permit
discovery.”
C.

Fed. R. Civ. P. 26(c)(2).

Motion to Quash Subpoenas
When a party or attorney issues a subpoena, he

or she “must take reasonable steps to avoid imposing
undue burden or expense on a person subject to the
subpoena.”

Fed. R. Civ. P. 45(d)(1).

Any order

compelling production or inspection following an
objection to a subpoena “must protect a person who is
neither a party nor a party’s officer from significant
expense resulting from compliance.”

Fed. R. Civ. P.

45(d)(2)(B).
A subpoenaed party may move to quash or modify
subpoenas on various grounds.

On timely motion, a court

must quash or modify a subpoena that:

“(i) fails to

allow a reasonable time to comply; (ii) requires a
person to comply beyond the geographical limits
9

specified in Rule 45(c); (iii) requires disclosure of
privileged or other protected matter, if no exception or
waiver applies; or (iv) subjects a person to undue
burden.”

Fed. R. Civ. P. 45(d)(3)(A).

On the other

hand, a court may quash or modify a subpoena if it
requires:

“disclosing a trade secret or other

confidential research, development, or commercial
information.”

Fed. R. Civ. P. 45(d)(3)(B)(I).

“[A]

court determining the propriety of a subpoena balances
the relevance of the discovery sought, the requesting
party’s need, and the potential hardship to the party
subject to the subpoena.”

Am. Broad. Cos., Inc. v.

Aereo, Inc., No. CV-12-80300-RMW, 2013 WL 1508894, at *3
(N.D. Cal. Apr. 10, 2013).
ANALYSIS
A.

Motion to Compel
Defendants seek to compel the production of the

following:
•

documents identified in Plaintiff’s privilege log:
1) 16 undated witness statements written by
Investigator Jefferson Caparas; 2) 6 internal
10

memoranda written by Caparas to file; and 3) WHI
Caparas notes written by Caparas, undated;
•

the factual basis for Plaintiff’s determination that
Richard Napierala was exempt;

•

Plaintiff’s record of phone calls with Dennis Tadio;

•

Plaintiff’s communications with its witnesses; and

•

documents relating to claimants, including records
showing appointments, travel, purchases, and other
non-work activities during each individual’s
specific period of employment with Kazu.

In addition, Defendants ask the Court to compel
responses to interrogatory nos. 2(b)(ii), 3, 8, 10, and
12-14.
1.

Waiver
As an initial matter, the Court addresses

Defendants’ contention that Plaintiff waived all
objections by failing to assert them in a timely manner.
Plaintiff counters that he did not waive objections by
producing responses one week after the extended deadline
agreed to by Defendants.
FRCP 34 provides that “[t]he party to whom the
request is directed must respond in writing within 30

11

days after being served . . . . [a] shorter or longer
time may be stipulated to under Rule 29 or be ordered by
the court.”

Fed. R. Civ. P. 34 (emphasis added).

“It

is well established that a failure to object to
discovery requests within the time required constitutes
a waiver of any objection.”

Richmark Corp. v. Timber

Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992)
(citing Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.
1981)); Pham v. Hartford Fire Ins. Co., 193 F.R.D. 659,
661-62 (D. Colo. 2000)) (same).

However, courts “retain

discretion to relieve a late or non-responding party
from the potentially harsh consequences associated with
waiver.”

Liguori v. Hansen, No. 2:11-CV-00492-GMN, 2012

WL 760747, at *11 (D. Nev. Mar. 6, 2012).
Although Plaintiff admittedly submitted
untimely responses, the delay was minimal and did not
unduly prejudice Defendants.

Burlington Ins. Co. v.

Okie Dokie, Inc., 368 F. Supp. 2d 83, 91 (D.D.C. 2005)
(declining to bar the plaintiff from asserting
objections, reasoning that the defendant would not
12

suffer prejudice by a nine-day delay and that the
plaintiff had “not demonstrated a pattern of misconduct
that would warrant the relatively harsh punishment
sought at this stage”).

Consequently, the Court finds

that under the circumstances, Plaintiff did not waive
his general objections to the discovery requests.
Liguori, 2012 WL 760747, at *13 (“Certainly the Court
may hold that untimely objections are not waived where
delay in response is not substantial.”); Blumenthal v.
Drudge, 186 F.R.D. 236, 240 (D.D.C. 1999) (In the
exercise of its broad discretion, finding that the
plaintiffs did not waive their right to raise their
objections even though their responses were provided
approximately one week after they were due).
2.

Governmental Privileges
a.

Invocation of the Privileges

Defendants alternatively argue that
governmental privileges1 were not properly invoked by

1

The two governmental privileges at issue are the
government’s informant privilege and the deliberative
13

Plaintiff himself (or a high ranking delegate), and the
invocation was untimely.

Plaintiff submits that he

delegates his authority to invoke claims of
governmental privilege to Dr. David Weil, the
Administrator of the Wage and Hour Division, U.S.
Department of Labor, in FLSA cases, and that the
privileges were timely and properly invoked given the
submission of Dr. Weil’s declaration with the
Opposition.
To be properly raised, “[t]he governmental
privilege must be formally asserted and delineated.”
Kerr v. U.S. Dist. Court for N. Dist. of Cal., 511 F.2d
192, 198 (9th Cir. 1975), aff’d, 426 U.S. 394 (1976)
(citations omitted).

The governmental privilege belongs

to the government, must be asserted by it, and should
not be lightly invoked.

Id.

“There must be a formal

claim of privilege, lodged by the head of the department
which has control over the matter, after actual personal

process privilege.
14

consideration by that officer.”

Id. (quoting United

States v. Reynolds, 345 U.S. 1, 7-8 (1953)) (quotations
omitted); Miller v. Pancucci, 141 F.R.D. 292, 300 (C.D.
Cal. 1992) (Certain procedural requirements must be
satisfied to invoke governmental privileges).
Here, the invocation of the governmental
privileges appears to be untimely given that Dr. Weil
did not submit an affidavit until the filing of the
Opposition.

Cf. Miller, 141 F.R.D. at 300 (as to the

“official information” privilege, requiring submission
of affidavit from the head of the department at the time
responses to the discovery requests are served);
Centeno, 2016 WL 7491634, at *13 (requiring that the
declaration or affidavit from a responsible official
within the agency be submitted at the time a party files
and serves its response to a discovery request); Nehad
v. Browder, No. 15-CV-1386 WQH NLS, 2016 WL 2745411, at
*3 (S.D. Cal. May 10, 2016) (same).

Because courts

differ on the timing requirement, however, see e.g.,
Solis v. New China Buffet No. 8, Inc., No. 5:10-CV-78
15

CAR, 2011 WL 2610296, at *2 (M.D. Ga. July 1, 2011)
(holding that “[t]he formal invocation of the privilege
. . . need not come until the Government is faced with a
motion to compel”), and Defendants have been able to
assert their challenges to the invoked privileges, the
Court considers the applicability of the privileges.
b.

Informant Privilege

Plaintiff asserts the informant privilege with
respect to the following documents:

1) portions of

witness statements; 2) internal memoranda;
3) communications with witnesses; and 4) certain
interrogatories that may reveal the identities of
informants.
The informer’s or informant privilege is “the
Government’s privilege to withhold from disclosure the
identity of persons who furnish information of
violations of law to officers charged with enforcement
of that law.”
(1957).

Roviaro v. United States, 353 U.S. 53, 59

“The purpose of the privilege is the

furtherance and protection of the public interest in
16

effective law enforcement.”

Id.

The privilege may be

invoked “to conceal the names of employees who
precipitated the suit by filing complaints with the
Department of Labor.”

Does I thru XXIII v. Advanced

Textile Corp., 214 F.3d 1058, 1072 (9th Cir. 2000).

It

applies whether statements were solicited from an
employee by the Department of Labor or the employee
complained to the Department of Labor, Martin v. New
York City Transit Auth., 148 F.R.D. 56, 63 (E.D.N.Y.
1993) (citing Dole v. Local 1942, Int’l Bhd. of Elec.
Workers, AFL–CIO, 870 F.2d 368, 370–71 (7th Cir. 1989)),
and it applies to both current and former employees of a
company whose workers have communicated with the
Department of Labor.

Hodgson v. Charles Martin

Inspectors of Petroleum, Inc., 459 F.2d 303, 305–06 (5th
Cir. 1972).
If “the disclosure of the contents of a
communication will not tend to reveal the identity of an
informer, the contents are not privileged.”
535 U.S. at 60.

Roviaro,

The privilege is similarly inapplicable
17

“once the identity of the informer has been disclosed to
those who would have cause to resent the communication.”
Id.
In addition, the privilege is not absolute and
it must give way “[w]here the disclosure of an
informer’s identity, or of the contents of his
communication, is relevant and helpful to the defense of
an accused, or is essential to a fair determination of a
cause.”

Id. at 60-61.

Courts “refer to this exception

as the ‘balancing of interests’ test, which, in the
context of an FLSA action, requires a balancing of ‘the
public’s interest in efficient enforcement of the Act,
the informer’s right to be protected against possible
retaliation, and the defendant’s need to prepare for
trial.’”

Chao v. Westside Drywall, Inc., 254 F.R.D.

651, 656 (D. Or. 2009) (quoting Brock v. On Shore
Quality Control Specialists, Inc., 811 F.2d 282, 283
(5th Cir. 1987)) (internal quotations omitted)
(citations omitted).

18

Once the government asserts the informant’s
privilege, the opposing party bears the burden of
showing a compelling need for the information sufficient
to overcome the privilege.

United States v. Sanchez,

908 F.2d 1443, 1451 (9th Cir. 1990).
i.

Witness Statements

Defendants contend that the witness statements
should be produced unredacted because the privilege was
waived as to the claimants and non-claimants identified
in Exhibit A to the Complaint and Plaintiff’s Initial
Disclosures.

At a minimum, Defendants believe that the

privilege does not apply to the witnesses who are
already known to have had contact with the Department of
Labor.2
“[A] statement given by any individual, whether
claimant, employee, or witness, to the DOL during an
investigation of an employer’s pay practices is within

2

These individuals are Frank Aguinaldo, Sean
Dinnan, Kahikapu Hendricksen, Rachel Kiyabu, Kevin
MacGregor, and Brian Sceppe.
19

the scope of the informant’s privilege.”
Drywall, 254 F.R.D. at 659.

Westside

Although it is true that

the informant privilege no longer applies once the
identity of the informer has been disclosed to those who
would resent the communication, “courts have
distinguished between the disclosure of informer
identities and the disclosure of claimant identities in
FLSA actions, holding that the former ‘waives’ the
privilege whereas the latter does not.”

Perez v. KDP

Hospitality, LLC, Case No. 2:15-cv-04293-MDH, 2016 WL
2746926, at *2 (W.D. Mo. May 6, 2016).

“Providing a

list of employees that may have knowledge pertinent to
the case . . . is not the same as identifying employees
that have provided information to the Department of
Labor.”

New China Buffet, 2011 WL 2610296, at *4.

Likewise, “[k]nowing the identity of persons who have
given statements to the Secretary is not equivalent to
knowledge of which of those persons were informers
within the context of the privilege.”

Martin v. Albany

Bus. Journal, Inc., 780 F. Supp. 927, 941 (N.D.N.Y.
20

1992) (quoting Charles Martin Inspectors, 459 F.2d at
306).
Exhibit A to the Complaint and Plaintiff’s
Initial Disclosures identify current and former
employees and non-employees.

While these individuals

have been identified by Plaintiff and may have given
statements to the Department of Labor, it does not
necessarily follow that these individuals are also
informants whose identification waives the informant
privilege.

KDP Hospitality, 2016 WL 2746926, at *2

(“Although it is a sound assumption that some or all of
the employees listed in Appendix A were informers, the
term ‘employees’ is not synonymous with the term
‘informer’ and it is possible that either none, some, or
all of the employees listed in Appendix A were
informers.”); Westside Drywall, 254 F.R.D. at 660
(finding that the Secretary’s disclosure of the names of
the defendants’ employees who were not properly paid in
violation of the FLSA did not waive the informant
privilege because the Secretary did not identify the
21

employees as informants).

Therefore, Plaintiff’s

identification of individuals in Exhibit A to the
Complaint and his Initial Disclosures does not
sufficiently identify those individuals as informers so
as to waive the privilege.

New China Buffet, 2011 WL

2610296 (“[L]isting a former employee in Appendix A does
not go nearly far enough in identifying them as an
informer to waive the privilege.”).

That said, if any

of the aforementioned individuals have since been
identified as informants, or as soon as they are
revealed as such, their witness statements should be
produced unredacted.
Defendants assert that even if the privilege is
not waived, application of the balancing test weighs in
favor of disclosure because this case turns on
credibility and they should be permitted to review
unredacted statements prior to depositions.

Courts have

regularly rejected this argument during the discovery
phase of litigation.

KDP Hospitality, 2016 WL 2746926,

at *2 (citing collection of cases).
22

The Court agrees with Defendants’ contention
that Plaintiff should not be allowed to ambush them at
trial by withholding the identities of informants.
However, Defendants have not established a compelling
need for the unredacted statements at this stage in the
litigation.

Solis v. Delta Oil Co., Inc., No. 1:11-cv-

233, 2012 WL 1680101, at *6 (S.D. Ohio May 14, 2012)
(ordering the Secretary to produce investigation file
and copies of all statements taken by Department of
Labor investigators with redactions made to identifying
information of persons who provided protected
information).

“The majority view is that the public

interest in protecting informants from retaliation and
encouraging just administration of the FLSA outweighs a
litigant’s need for unrestricted access to sensitive
information during discovery.”

Chao v. Brumfield

Const., No. C07-821RSL, 2008 WL 1928984, at *2 (W.D.
Wash. Apr. 28, 2008) (quoting Brock v. R.J. Auto Parts
and Serv., Inc., 864 F.2d 677, 678 (10th Cir. 1988)
(holding that “the district court erred in requiring the
23

premature identification and designation of trial
witnesses” when defendants had not shown substantial
need for the information in the discovery stage)).
For the time being, Defendants may depose and
conduct other discovery with respect to the individuals
identified in Exhibit A to the Complaint and Plaintiff’s
Initial Disclosures.

Id. (unprivileged areas of

discovery would likely provide information related to
the key issues identified by the defendants);

Westside

Drywall, 254 F.R.D. at 661 (“[A]s to those claimants
still available to Defendants for deposition, they will
be required to depose those claimants and work through
with those deponents the redacted statements the
Secretary already has provided, consistent with the case
decisions.”).
As trial nears, however, “the need for
disclosure becomes more acute and the balance of
interests shifts.”

Id. (citation omitted); Brennan v.

Engineered Prod., Inc., 506 F.2d 299, 303-04 (8th Cir.
1974) (recognizing the distinction between a defendant’s
24

need for certain discovery during the discovery phase,
as opposed to the pretrial phase).

In anticipation of

Defendants’ need to conduct discovery prior to the
expiration of the discovery deadline, the Court orders
Plaintiff to produce unredacted witness statements (for
those witnesses whose testimony will be relied upon at
trial) to Defendants by May 19, 2017.

Should delays in

the disclosure of witness identities preclude Defendants
from timely conducting discovery, they may seek relief
from the Court.
ii. Internal Memoranda/Communications
With Witnesses
Defendants extend the same arguments with
respect to internal memoranda and communications with
witnesses.

The Court applies the same analysis to these

documents.

To the extent any portions of the documents

“will not tend to reveal the identity of an informer,”
Roviaro, 535 U.S. at 60, they must be produced, as those
contents are not privileged.

25

Plaintiff represents that sections of the case
narratives (Bates Nos. DOL 0005, 0045, and 0056) and
internal analysis (Bates Nos. DOL 00132-00134) contain
names or information that would reveal the identities of
individuals who have cooperated with the government.

By

Plaintiff’s own representation, only portions of the
documents at issue would reveal the identities of
informants.

Accordingly, Plaintiff is directed to

produce the foregoing documents with any identifying
information redacted.

Plaintiff must also produce

communications with witnesses with any identifying
information redacted.

Production of these documents

shall be made by March 1, 2017.3
iii.

Interrogatories

Plaintiff asks that the Motion be denied as to
amended responses to interrogatories to the extent the

3

To the extent these documents are also being
withheld on the basis of the deliberative process
privilege, attorney-client privilege, or the common
interest doctrine, they may need to be produced in
camera to the Court instead of with redactions to
Defendants.
26

information sought might reveal the identities of
informants.

The informant privilege does not excuse

Plaintiff from fully and completely responding to Kazu’s
RAI.

Indeed, the RAI at issue can be answered without

revealing informants’ identities.
c.

Deliberative Process Privilege

The following documents (or portions thereof)
are being withheld pursuant to the deliberative process
privilege:

1) 2/25/15 FLSA Case Narrative (page 003 of

Bates DOL 0002-12); 2) 11/25/15 Case Cover Sheet (Bates
DOL 0039-41); 3) 2/25/15 FLSA Case Narrative (page 0043
of Bates DOL 0042-52); 4) 2/25/15 Draft FLSA Case
Narrative (Bates DOL 0053-62); and 5) Undated
Spreadsheet (Bates DOL 0132-134).4

Defendants argue

that the deliberative process privilege does not apply,

4

Plaintiff also invokes the attorney-client
privilege as to certain of these documents and invokes
the informant privilege as to one of the case
narratives. According to Plaintiff, a withheld case
narrative (presumably Bates DOL 0002-12 or 0042-52)
pertains to whether Richard Napierala was exempt, and it
is the only document being withheld regarding Mr.
Napierala’s exempt status.
27

but if it does, it would only apply to the few pages
identified in Dr. Weil’s declaration, and the Court
could conduct an in camera review to ensure that factual
content is produced.
“[T]he deliberative process privilege permits
the government to withhold documents that reflect
advisory opinions, recommendations and deliberations
comprising part of a process by which governmental
decisions and polices are formulated.”

Hongsermeier v.

C.I.R., 621 F.3d 890, 904 (9th Cir. 2010) (alteration
omitted) (internal citation and quotations omitted);
Nat’l Wildlife Fed’n v. United States Forest Serv., 861
F.2d 1114, 1118-19 (9th Cir. 1988) (“The deliberative
process privilege covers recommendations, draft
documents, proposals, suggestions, and other subjective
documents which reflect the personal opinions of the
writer rather than the policy of the agency.”).
To determine whether the deliberative process
privilege applies, the following factors are evaluated:
“1) the relevance of the evidence; 2) the availability
28

of other evidence; 3) the government’s role in the
litigation; and 4) the extent to which disclosure would
hinder frank and independent discussion regarding
contemplated policies and decisions.”

F.T.C. v. Warner

Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984).
The Court grants Defendants’ request for an in
camera review of the above mentioned documents.
Plaintiff shall produce unredacted versions of the
documents at issue to the Court by February 22, 2017.
3.

Attorney-Client Privilege/Common Interest
Doctrine
Plaintiff has withheld multiple documents

pursuant to the attorney-client privilege and/or common
interest doctrine.

“The attorney-client privilege is

the oldest of the privileges for confidential
communications known to the common law . . . [and] [i]ts
purpose is to encourage full and frank communication
between attorneys and their clients and thereby promote
broader public interests in the observance of law and
administration of justice.”

29

Upjohn Co. v. United

States, 449 U.S. 383, 389 (1981).

All communications

with a person who is a lawyer does not make privileged
all communications with that person.

United States v.

Martin, 278 F.3d 988, 999 (9th Cir. 2002) (citing United
States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996)).
The attorney-client privilege is strictly construed
“[b]ecause it impedes full and free discovery of the
truth.”

Id. (citing Weil v. Inv./ Indicators, Research

& Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981)).

The

elements of the privilege are as follows:
(1) When legal advice of any kind is sought
(2) from a professional legal adviser in
his or her capacity as such, (3) the
communications relating to that purpose,
(4) made in confidence (5) by the client,
(6) are, at the client’s instance,
permanently protected (7) from disclosure
by the client or by the legal adviser (8)
unless the protection be waived.
Id. (citations omitted).

The party asserting the

privilege bears the burden of establishing all of the
elements of the privilege.

Id. at 999-1000 (citing

United States v. Munoz, 233 F.3d 1117, 1128 (9th Cir.
2000)).

“Voluntary disclosure of the content of a
30

privileged attorney communication constitutes waiver of
the privilege as to all other such communications on the
same subject.”

Weil, 647 F.2d at 24.

The asserting

party must prove that it has not waived the privilege.
Id. (citations omitted).
An exception to the waiver of the privilege
exists.
Participants in a joint or common defense
or individuals with a community of
interests “may communicate among themselves
and with the separate attorneys on matters
of common legal interest, for the purpose
of preparing a joint strategy, and the
attorney-client privilege will protect
those communications to the same extent as
it would communications between each client
and his own attorney.”
Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578
(N.D. Cal. 2007) (citation omitted).

The joint

defense/common interest doctrine is an exception to the
waiver when communications are disclosed to third
parties, it is not a privilege in and of itself.

Id.

It applies “where (1) the communication is made by
separate parties in the course of a matter of common

31

interest; (2) the communication is designed to further
that effort; and (3) the privilege has not been waived.”
United States v. Bergonzi, 216 F.R.D. 487, 495 (N.D.
Cal. 2003) (citation omitted).

The doctrine “does not

require a complete unity of interests among the
participants, and it may apply where the parties’
interests are adverse in substantial respects.”

Id.

(citation omitted).
The Court directs Plaintiff to produce all
documents being withheld on the basis of the attorneyclient privilege or the common interest doctrine5 for in
camera review by February 22, 2017.
4.

Remaining Outstanding Discovery Requests
a.

Investigator’s Notes

The Motion is denied as moot with respect to
the investigator’s notes because Plaintiff produced the
same.

5

There is overlap between these documents and
those withheld under the earlier discussed privileges.
32

b.

Non-Privileged Documents Relating to
Richard Napierala

Plaintiff represents that he produced all
responsive, non-privileged documents.

Consequently, the

Motion is denied as moot as to the non-privileged
documents pertaining to Mr. Napierala’s exempt status.
c.

Call logs With Dennis Tadio

Defendants seek Plaintiff’s records of phone
calls with Mr. Tadio because Plaintiff’s heavy reliance
on Mr. Tadio calls into question the integrity of the
investigation.
irrelevant.

The Court finds that the call logs are

Mr. Tadio’s credibility may be at issue at

trial, but the frequency with which he communicated with
Plaintiff does not bear on, nor would it reasonably lead
to other matters that could bear on, the issues in this
case.

Consequently, the Court declines to order the

production of the call logs.
d.

Documents Relating to Claimants’ Non-Work
Activities

Defendants request documents relating to the
Claimants’ work activities, including appointments,
33

travel, purchases, and other non-work activities during
each individual’s specific period of employment with
Kazu.

The Court finds that with some limitations, this

information is relevant and proportional to the needs of
the case.
Although Plaintiff takes issue with the
breadth, burden, and implication of privacy interests
associated with the requests, the information speaks
directly to the allegations against Defendants and
claims of overtime.6

The Claimants may be non-parties,

but Plaintiff’s case rests upon their allegations, and
the Claimants stand to gain if Plaintiff prevails, so
they are not a typical non-party who has no interest in

6

Plaintiff repeatedly argues that Defendants have
other means to obtain information from their former
employees and other individuals. Defendants have
attempted to avail themselves of other discovery tools
such as subpoenas yet Plaintiff has challenged those
efforts to obtain information directly from third
parties. In the motions to quash subpoenas, Plaintiff
represents that he has offered to serve as the conduit
for the discovery requests served upon non-parties, but
in actuality, he has attempted to block production from
any source. This obstructionism should not continue.
34

the outcome of the litigation.

Recognizing that the

Claimants’ personal and private information are at
issue, the parties are directed to submit a stipulated
protective order to protect such information.

At a

minimum, the protective order should prohibit the
parties or their counsel from using information obtained
in this litigation for any purpose other than this
litigation and from disclosing the same to anyone who is
not an officer or agent of the Court or a party to the
action.

The stipulated protective order should be

submitted for the Court’s consideration by March 1,
2017.
Rather than compelling the production of the
documents through Plaintiff, production shall be
discussed in the context of the motions to quash
subpoenas below.

The Court believes that it is more

efficient and practical to obtain the subject discovery
directly from the third parties.

If those means fail,

Defendants would be entitled to obtain the discovery
from Plaintiff.

In any event, the parties are directed
35

to coordinate their efforts given Defendants’ offer to
issue subpoenas to obtain some of the requested records
and to bear the costs associated therewith.
e.

Interrogatories

Finally, Defendants request an order compelling
responses to RAI Nos. 2(b)(ii), 3, 8, 10, 12-14.
Insofar as the requested information is relevant and
proportional to the needs of the case, Plaintiff is
directed to provide complete and detailed responses.

To

the extent privileges apply to the information sought by
the RAI, Plaintiff’s responses shall conform with the
Court’s discussions above concerning privilege.

The

responses are due by March 1, 2017.
For the reasons articulated above, the Court
HEREBY GRANTS IN PART AND DENIES IN PART Defendants’
Motion to Compel.
B.

Motions to Quash Subpoenas/for Protective Order
1.

Quashing or Modifying the Subpoenas
Plaintiff moves to quash or modify subpoenas

issued to former employees and third parties, arguing
36

that the subpoenas are unreasonable, burdensome, and
intrusive.

Plaintiff characterizes the issuance of the

subpoenas as targeted harassment against select former
employees and business associates versus general
request.7
a.

Plaintiff Lacks Standing

Before delving into an analysis of the
propriety of the subpoenas, the Court must determine
whether Plaintiff has standing to quash or modify the
subpoenas.

Defendants contend that Plaintiff lacks

standing and even if a party could move to quash when it
has a personal right or privilege in the documents
sought, Plaintiff lacks a personal right or privilege in
the documents that are the subject of the subpoenas.
Plaintiff argues that he has an interest in preventing

7

Based on Plaintiff’s strong opposition to the
subpoenas that are the subject of these Motions, it is
disingenuous for Plaintiff to suggest that discovery
directed to all employees, current and former, would be
less objectionable. The fact that the subpoenas are
directed to the employees who might testify demonstrates
that the discovery is focused, at least with respect to
the targets of the subpoenas.
37

the harassment of witnesses and interference with the
government’s investigation and this litigation.
“Ordinarily a party has no standing to seek to
quash a subpoena issued to someone who is not a party to
the action unless the party claims some personal right
or privilege with regard to the documents sought.”

9A

Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2459 (2d ed. 2007) (emphasis added);
see, e.g., Transcore, Inc. v. Furney Charters, Inc., 212
F.R.D. 588, 590-91 (D. Kan. 2003) (finding that the
defendant has a “personal right with respect to its bank
account records at the subpoenaed banks, and this right
gives it standing to move to quash the subpoenas”); but
see Nova Prods., Inc. v. Kisma Video, Inc., 220 F.R.D.
238, 241 (S.D.N.Y. 2004) (recognizing exception to
general rule regarding party’s lack of standing but
denying motion to quash where party did not include
evidence that contested material was meant to be private
or confidential).

38

The Ninth Circuit has yet to address the
question of whether a party has standing to
bring a motion to quash since usually only
the subpoenaed non-party may move to quash.
The general rule, however, is that a party
has no standing to quash a subpoena served
upon a third party, except as to claims of
privilege relating to the documents being
sought.
Cal. Sportfishing Prot. All. v. Chico Scrap Metal, Inc.,
299 F.R.D. 638, 643 (E.D. Cal. 2014) (citation
omitted).8

“Conversely, ‘[a] party does not have

standing to quash a subpoena on the basis that the
non-party recipient of the subpoena would be subjected
to an undue burden when the non-party has failed to
object.’”

Chevron Corp. v. Donziger, No. 12-MC-80237

CRB (NC), 2013 WL 4536808, at *4 (N.D. Cal. Aug. 22,
2013) (alteration in original).

8

In re Rhodes Cos., LLC, 475 B.R. 733, 738 (D.
Nev. 2012) (citing Brown v. Braddick, 595 F.2d 961, 967
(5th Cir. 1979); Crispin v. Christian Audigier, Inc.,
717 F. Supp. 2d 965, 973–74 (C.D. Cal. 2010); Platinum
Air Charters, L.L.C. v. Aviation Ventures, Inc., No.
2:05–CV1451–RCJLRL, 2007 WL 121674, at *2 (D. Nev. Jan.
10, 2007)) (“Although this rule has not been applied by
the United States Court of Appeals for the Ninth
Circuit, other courts have applied it.”).
39

The Court finds that Plaintiff lacks standing
to seek to quash the subpoenas that are the subject of
these two motions, as he does not have a personal right
or privilege in the documents sought.9

Plaintiff

asserts that he has a personal right and privilege in
the information protected by the government’s informant
privilege and the communications protected by the common
interest doctrine.

The government’s informant privilege

may be invoked to conceal the names of employees who
precipitated the suit by filing complaints with the
Department of Labor.

Being that the identities of the

subpoenaed individuals are known, and the subpoenas
request factual information concerning those

9

Plaintiff relies on the Noerr-Pennington doctrine
of statutory construction as a basis for standing, but
it does not compel the result put forth by Plaintiff.
“Under the Noerr-Pennington rule of statutory
construction, [courts] must construe federal statutes so
as to avoid burdening conduct that implicates the
protections afforded by the Petition Clause unless the
statute clearly provides otherwise.” Sosa v. DIRECTV,
Inc., 437 F.3d 923, 931 (9th Cir. 2006). Plaintiff has
not sufficiently explained the doctrine’s applicability
to the issue of standing here.
40

individuals, the informant privilege is inapplicable and
Plaintiff cannot assert standing on that basis.

Neither

does Plaintiff have a personal right or privilege in the
claimants’ personal records sought via the subpoenas.
EEOC v. Michael Cetta, Inc., No. 09 CIV. 10601 BSJ, 2011
WL 5117020, at *2 (S.D.N.Y. Oct. 27, 2011) (“Because
neither the EEOC nor the [Plaintiff-Intervenor] has
demonstrated a sufficient proprietary interest or
applicable privilege to the [Plaintiff-Intervenor’s
personnel records, including job performance reviews and
resumes], the Court finds that they lack standing to
challenge the subpoena.”).

As such, the Court declines

to quash the subpoenas.
Nevertheless, notwithstanding Plaintiff’s
apparent lack of standing, the Court, exercising its
discretion to manage discovery, and in the interest of
promoting judicial economy and the just, speedy and
inexpensive determination of this action, shall order
compliance with the subpoenas with modifications.
Before detailing the modifications, the Court addresses
41

some of the specific arguments raised by the parties.
b.

The Motion is Untimely as to Dennis Tadio

Defendants argue that the Motion should be
denied as to Mr. Tadio because it was untimely filed,
more than two months after the pertinent summons’
9/14/16 return date.
filed.

A motion to quash must be timely

Fed. R. Civ. P. 45(d)(3)(A).

“‘Timely’ is not

defined in the rule nor elaborated upon in the advisory
committee’s notes.”

U.S. ex rel. Pogue v. Diabetes

Treatment Centers of Am., Inc., 238 F. Supp. 2d 270, 278
(D.D.C. 2002).

Court generally have interpreted

“‘timely’ to mean within the time set in the subpoena
for compliance.”

Id. (citing Innomed Labs, LLC v. Alza

Corp., 211 F.R.D. 237, 240 (S.D.N.Y. 2002) (noting that
in the absence of a definition of “timely” in Rule 45,
“it is reasonable to assume that the motion to quash
should be brought before the noticed date of the
scheduled deposition”); In re Motorsports Merch.
Antitrust Litig., 186 F.R.D. 344, (W.D. Va. 1999) (a
motion to quash filed 36 days after corporate
42

representatives became aware of subpoena and two months
after it was due is untimely)); Anderson v. Abercrombie
and Fitch Stores, Inc., No. 06cv991-WQH (BLM), 2007 WL
1994059, at *8 (S.D. Cal. Jul. 2, 2007) (finding
untimely a motion to quash filed after the date
specified for document production).
Here, Mr. Tadio was served with the subpoena on
August 30, 2016, the date for compliance was September
14, 2016, and Plaintiff did not file the relevant Motion
to Quash until November 17, 2016.

Consequently, the

Motion is untimely as to the summons served on Mr.
Tadio.

HT S.R.L. v. Velasco, 125 F. Supp. 3d 211, 230

(D.D.C. 2015) (finding untimely the motion to quash,
which was filed 21 days after compliance and 50 days
after service); Allstate Ins. Co. v. Nassiri, No. 2:08CV-369 JCM (GWF), 2011 WL 4905639, at *1 (D. Nev. Oct.
14, 2011) (it was not clear error for the magistrate
judge to find the motion to quash or modify subpoena
untimely where the non-party had 3-week notice of
deposition but filed motion 3 days before the
43

deposition); Moore v. City of St. Augustine, Fla., No.
3:12-cv-797-J-20MCR, 2013 WL 1156384, at *1 (M.D. Fla.
Mar. 14, 2013) (motion to quash filed more than 40 days
after date specified for compliance was untimely); Marti
v. Baires, No. 1:08-CV- 00653-AWI, 2014 WL 1747018, at
*2 (E.D. Cal. May 1, 2014) (finding untimely motions to
modify subpoenas that were filed almost seven months
after service of the subpoenas and almost five months
after the production date).

Mr. Tadio must fully comply

with the subpoena by March 8, 2017.
c.

Defendants Did Not Violate FRCP 45’s
Geographical Requirement

Plaintiff argues that as to Kevin MacGregor and
Mark Kramer, Defendants failed to adhere to FRCP
45(c)(2)(A)’s requirement that a subpoena may command
“production of documents, electronically stored
information, or tangible things at a place within 100
miles of where the person resides, is employed, or
regularly transacts business in person.”
P. 45(c)(2)(A) (emphasis added).

44

Fed. R. Civ.

However, “[t]he 100-

mile geographical limitation applies only to travel by a
subpoenaed person, not to a situation where the
subpoenaed records could be mailed or shipped.”

Sol v.

Whiting, No. CV-10-01061-PHX-SRB, 2014 WL 12526314, at
*2 (D. Ariz. Jul. 22, 2014).

This argument is therefore

without merit and cannot serve as a basis to quash the
subpoenas served upon Mr. Kramer and Mr. MacGregor.
d.

Modification of the Subpoenas

To assuage concerns of overbreadth and undue
burden, and to promote proportionality, the Court
modifies the subpoenas as follows:
•

Financial records - the subpoenaed
individuals/entities need only identify financial
institutions related to the requests.

•

Phone records (cell or otherwise) - the subpoenaed
individuals/entities need only produce provider
information.

•

Social media - the subpoenaed individuals need only
produce posts that they generated or that originated
from them.

•

Documents showing or referring to engagement in any
activity (other than employment with Kazu) between
7:00 a.m. and 6:00 p.m. - the subpoenaed individuals
shall produce responsive documents from a
consecutive three-month period within the range of
45

dates identified in the respective subpoenas.
The subpoenas must be responded to by March 8,
2017, subject to the above modifications, if
applicable.10

The documents and other information

produced in connection with the subpoenas shall be
subject to the stipulated protective order to be
submitted by the parties.
2.

Protective Order
Plaintiff requests a protective order to guard

against future oppressive and unduly burdensome
discovery.

The Court finds that Plaintiff has failed to

demonstrate good cause for the issuance of a protective
order.
Plaintiff attempts to preclude and/or limit
third-party discovery to relevant and non-oppressive
information and documents that Defendants cannot get
directly from Plaintiff.

Given Plaintiff’s stance on

10

Certain subpoenas do not request the categories
of documents/information that are subject to
modification.
46

producing documents relating to claimants and
witnesses,11 the protective order proposed by Plaintiff
would in effect preclude a large majority of third-party
discovery.
Because the Court finds that the discovery
requested of the subpoenaed individuals/entities is
relevant and proportional to the needs of the case, the
entry of a protective order in the form proposed by
Plaintiff would be inappropriate.

The Court has already

directed the parties to submit a stipulated protective
order to guard the information produced by third
parties, but the prospective relief requested by
Plaintiff would arguably obstruct Defendants from
obtaining information to which they are entitled,
particularly because Plaintiff objects to producing the
third-party information.

As this litigation progress

and trial nears, Defendants will be entitled to

11

As earlier noted, Plaintiff objects to producing
documents and in fact cites third-party discovery as a
means of obtaining the requested information.
47

additional discovery.

The Court consequently declines

to issue a protective order that will effectively impair
the procurement of the same.
Based on the foregoing, the Motions to Quash
are GRANTED IN PART AND DENIED IN PART and Plaintiff’s
request for the entry of his proposed protective order
is DENIED.
CONCLUSION
In accordance with the foregoing, the Court
HEREBY GRANTS IN PART AND DENIES IN PART (1) Plaintiff’s
Motion to Quash, or in the Alternative, to Modify
Subpoena, filed November 17, 2016; (2) Plaintiff’s
Second Motion to Quash Subpoenas and for the Entry of a
Protective Order, filed December 16, 2016; and
(3) Defendants’ Motion to Compel Discovery, filed
November 30, 2016.

48

IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, February 15, 2017.

_____________________________
Kevin S.C. Chang
United States Magistrate Judge

CIVIL NO. 16-00077 ACK-KSC; PEREZ V. KAZU CONSTRUCTION LLC, et al.;
ORDER GRANTING IN PART AND DENYING IN PART: (1) PLAINTIFF’S MOTION TO
QUASH, OR IN THE ALTERNATIVE, TO MODIFY SUBPOENA; (2) PLAINTIFF’S
SECOND MOTION TO QUASH SUBPOENAS AND FOR THE ENTRY OF A PROTECTIVE
ORDER; AND (3) DEFENDANTS’ MOTION TO COMPEL DISCOVERY

49