Benjamin BERGER, etc., Plaintiff, v. HOME DEPOT USA, INC., et al., Defendants No. SA CV 10-678-SJO (PLAx) United States District Court, C.D. California, Southern Division Signed February 23, 2011 Counsel Matthew E. Hess, Los Angeles, CA, Richard H. Friedman, Friedman Rubin, Bremerton, WA, Taras Peter Kihiczak, Thomas Alistair Segal, The Kick Law Offices, Santa Monica, CA, for Plaintiff. Allan Edward Ceran, Burke Williams & Sorensen LLP, Matthew E. Hess, Los Angeles, CA, Jonathan R. Chally, S. Stewart Haskins, II, Zachary A. McEntyre, King & Spalding LLP, Atlanta, GA, for Defendants. Abrams, Paul L., United States Magistrate Judge ORDER RE: PLAINTIFF'S MOTIONS TO COMPEL DISCOVERY; REQUESTS FOR COSTS *1 Plaintiff in this action alleges that defendants have infringed California Unfair Competition law (Cal. Bus. & Prof. Code § 17200, et seq.) and other consumer protection laws due to the manner in which defendant Home Depot USA, Inc. (referred to herein as “defendant”) charges customers a 10% “damage waiver” surcharge for tool rental agreements. (See Docket Entry No. 62 at pp. 1-2). Specifically, plaintiff contends that defendant's damage waiver surcharge for tool rentals is optional, but that defendant's cash registers are programmed to automatically charge customers the surcharge whenever tools are rented. (Id.). Plaintiff further contends that in 2005, he rented a saw from defendant's tool rental center in Costa Mesa, California and paid the 10% damage waiver only because he did not know that it was optional, and had he known, he would not have paid for it. (Id. at 2). In addition to his personal claims, plaintiff has moved to have this case certified as a class action. (See Docket Entry No. 38). Plaintiff's motion for class certification is pending before the District Judge. Now pending before this Court and ready for decision are four Motions filed by plaintiff on January 18 and 19, 2011, seeking to compel discovery from defendant. (See Docket Entry Nos. 112-33). Specifically, plaintiff moves to compel defendant to produce information concerning the identities and contact information of defendant's former tool rental employees and the training materials given to new tool rental associates (Docket Entry No. 113); defendant's litigation hold memorandum pertaining to this action (Docket Entry No. 117); information concerning defendant's disaster recovery plan (Docket Entry No. 122); a copy of the software used on defendant's tool rental center cash registers (Docket Entry No. 126); reports pertaining to defendant's tool rental revenue and associates' effectiveness (id.); and information pertaining to work orders, costs incurred by defendant, bills sent to customers, and claims made by customers for tools that were rented and damaged by defendant's customers. (Id.). Each party requests that the Court order the opposing party to pay their costs and fees in litigating the instant Motions to Compel.[1] (See Docket Entry Nos. 112, 116, 117, 121, 122, 125, 126, 131). The Motions have previously been taken under submission without oral argument. As a general matter, under Rule 26(b)(1) of the Federal Rules of Civil Procedure, discovery is permitted of “any nonprivileged matter that is relevant to any party's claim or defense.” Generally, Rule 26(b) is to be “liberally interpreted to permit wide-ranging discovery of information,” even if that information is not ultimately admitted at trial. See Comcast of Los Angeles, Inc. v. Top End International, Inc., 2003 WL 22251149, at *2 (C.D. Cal. July 2, 2003); see also Fed.R.Civ.P. 26(b)(1) (“Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”). Here, the burden is on defendant, as the party resisting discovery, to show that discovery should not be allowed (Comcast, 2003 WL 22251149, at *2 (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)); it is not up to defendant to decide what plaintiff needs to prosecute this action. Neither is it the role of the Court in resolving the instant Motions to Compel to determine what evidence the District Judge will actually allow in at a trial in this case. See, e.g., Colonial Life & Accident Insur. Co. v. Superior Court of Los Angeles County, 31 Cal.3d 785, 791, n. 8 (1982) (quoting Pacific Tel. & Tel. Co. v. Superior Court, 2 Cal.3d 161, 172-73 (1970) (“[Courts] may appropriately give the applicant [for discovery] substantial leeway, especially when the precise issues of the litigation of the governing legal standards are not clearly established [citation]; a decision of relevance for purposes of discovery is in no sense a determination of relevance for purposes of trial.”) (brackets in original)). Thus, what is relevant will be liberally considered. *2 Further, and as discussed below, defendant has raised general objections to certain requests based on burdensomeness. However, an objecting party cannot simply invoke generalized objections; rather, with respect to the discovery requests, the opposing party must show specifically how, despite the broad and liberal construction afforded the federal discovery rules, each [request] is not relevant or how each [request] is overly broad, burdensome or oppressive by submitting affidavits or offering evidence revealing the nature of the burden. Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D. Pa. 1980)(citations omitted); Wirtz v. Capitol Air Service, Inc., 42 F.R.D. 641, 643 (D. Kan. 1967). For a burdensomeness argument to be sufficiently specific to prevail, it must be based on affidavits or other evidence showing the exact nature of the burden. Kansas-Nebraska Natural Gas v. Marathon Oil Co., 109 F.R.D. 12, 24 (D. Neb. 1983) (party objecting to production requests must specify why the requests are objectionable); Roesberg, 85 F.R.D. at 296-97. With the above framework in mind, the Court will now address plaintiff's Motions to Compel: A. Second Set of Interrogatories Nos. 39-41: granted in part. Second Set of Interrogatories Nos. 42-43: denied. As an initial matter, defendant objects to plaintiff's Interrogatories Nos. 39, 40, 41, 42, and 43 on the basis that plaintiff has exceeded the 25-interrogatory limit set by Fed.R.Civ.P. 33(a)(1). (See Docket Entry No. 113 at p. 4, n.2). Plaintiff counters that the 25-interrogatory limit does not apply here because 1) defendant waived this objection by failing to raise it in its answers to the interrogatories; 2) the interrogatories were propounded when this case was still in state court (i.e., when there was no limit to the number of interrogatories that plaintiff could raise); and 3) the Court can exercise its discretion, pursuant to Fed.R.Civ.P. 26(b)(2)(A), to order defendant to answer the contested interrogatories regardless of the number of interrogatories propounded by plaintiff. (See Docket Entry No. 132 at pp. 1-2). Although plaintiff did indeed propound the instant interrogatories to defendant before this action was removed to this Court, federal procedural rules, rather than state rules, govern this case. See Fed.R.Civ.P. 81(c)(1)(the Federal Rules of Civil Procedure “apply to a civil action after it is removed from a state court”); Willy v. Coastal Corp., 503 U.S. 131, 134-35, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992) (“This expansive language [of Rule 81(c) ] contains no express exceptions and indicates a clear intent to have the [federal] Rules ... apply to all district court civil proceedings.”); see alsoMcIntyre v. K-Mart Corp., 794 F.2d 1023, 1025 (5th Cir. 1986) (rejecting plaintiffs' contention “that because they filed more than twenty-five interrogatories in state court before the case was removed, they are entitled to have all those interrogatories answered as a matter of right,” and noting that “[o]nce a state court action is removed, it is governed by federal, rather than state, procedure”) (citation omitted); Riley v. Walgreen Co., 233 F.R.D. 496, 498-99 (S.D. Tex. 2005) (applying McIntyre in rejecting plaintiff's position that state procedural rules continue to govern discovery served prior to removal from state court). Nonetheless, the Court finds it appropriate under the circumstances presented here to exercise its discretion, pursuant to Rule 26(b)(2)(A), to alter the 25-interrogatory limit provided under Fed.R.Civ.P. 33(a)(1) as to these particular interrogatories. Thus, defendant is hereby ordered to respond to the contested interrogatories as set forth below. 1. Interrogatories Nos. 39-41 *3 Plaintiff seeks interrogatory responses concerning the identity and contact information of former tool rental associates, technicians, and managers who worked for defendant on or after July 12, 2002. Specifically, plaintiff seeks such information so he can “investigate whether [defendant's tool rental employees] did, in fact, orally inform customers that the surcharge is optional on a day-to-day basis.” (See Docket Entry No. 113 at p. 3 (emphasis in original); see also id. at pp. 9-12). Defendant objects to these interrogatories on the bases that they are not relevant to the claims raised in the Complaint, they are seeking evidence not kept in the ordinary course of business, and they are interposed for the purpose of harassment. (See id. at p. 8). Defendant further asserts that identification of all of its former tool rental employees during an eight-year period without limitation to a particular store or region is overbroad. (See id. at pp. 4-6, 12-18). Defendant also contends that it already sufficiently answered Interrogatories Nos. 39, 40, and 41 by providing plaintiff with the names and contact information of five tool rental employees, including the two associates involved in plaintiff's actual tool rental (see id. at pp. 8, 12, 14-16), and that plaintiff is not entitled to additional discovery concerning defendant's former employees because he has not yet deposed the tool associates whose contact information plaintiff already has. (Id. at 16). Finally, defendant asserts that plaintiff should be limited in the manner in which he is allowed to communicate with defendant's former employees (i.e., “if Plaintiff seeks any evidence from a former employee, it should be obtained on the record via a deposition where [defendant] has a fair opportunity to participate”), because defendant contends that any other form of ex parte communication with defendant's former employees would violate California Rule of Professional Conduct 2-100(B)(2). (See Docket Entry No. 113 at p. 19). Defendant's bare assertion that the information sought by plaintiff in the interrogatories is irrelevant is insufficient to warrant not responding to the interrogatories. Rather, plaintiff has demonstrated a sufficient need to discover the identities and contact information of defendant's former tool rental employees so he can identify and locate persons who may possess information pertinent to plaintiff's consumer protection claims that defendant's employees do not (and are trained by defendant not to) advise customers that the damage waiver at issue in this case is optional.[2] SeeFed.R.Civ.P. 26(a)(1) (requiring production of the name, address, and telephone number of individuals likely to have discoverable information relevant to the disputed facts of a case); Fed.R.Civ.P. 26(b)(1) (“the scope of discovery [includes] ... the identity and location of persons who know of any discoverable matter”); see also Dixon v. Certainteed Corp., 164 F.R.D. 685, 689 (D. Kan. 1996) (requiring disclosure of the addresses and telephone numbers of defendant's employees, and noting that defendant's concern that plaintiff would contact the employees outside of defendant's presence was not “cause to unilaterally disregard its duties of disclosure under Rule 26(a)”). Further, defendant has not established to the Court's satisfaction that the purpose of plaintiff's interrogatories is to annoy and harass defendant rather than to get relevant information. Moreover, the Court does not find plaintiff's interrogatories requesting the identities of additional tool rental employees (even though defendant has already produced the names of five such employees) to be unreasonably cumulative or duplicative, or that plaintiff necessarily had ample opportunity to obtain the same information from the employees already identified by defendant that he would obtain from any additional tool rental employees not yet identified. See Fed.R.Civ.P. 26(b)(2)(C). At the same time, however, the Court agrees with defendant that plaintiff's Interrogatories Nos. 39, 40, and 41 as worded, without any limitation to a particular store and for the requested time frame, are overbroad. Accordingly, the Court orders defendant to respond to these interrogatories limited to the identities, addresses, and telephone numbers (to the extent this information is in defendant's possession, custody, or control) of defendant's former tool rental associates, technicians, and department managers who worked at defendant's tool rental center in Costa Mesa, California from January 1, 2005, to December 31, 2005. Should a class ultimately be certified in this action, the Court will reconsider, upon plaintiff's renewed motion, plaintiff's request to discover additional information pursuant to Interrogatories Nos. 39, 40, and 41. Defendant must also concurrently produce a declaration signed under penalty of perjury that all information in its possession, custody, or control responsive to Interrogatories Nos. 39, 40, and 41 as modified has been produced. *4 The Court will not restrict plaintiff's ability to contact defendant's former employees, as requested by defendant. Rule 2-100(A) of the California Rules of Professional Conduct states: “[w]hile representing a client, [an attorney] shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the [attorney] has the consent of the other lawyer.” Where a corporate entity is the represented party, Rule 2-100(B)bars an attorney's ex parte contact with corporate employees who are the corporation's officers, directors, or managing agents of the corporation, and with lower-level employees if the subject matter of the contact is the corporate employee's act or failure to act in connection with the issue at hand and that act or failure to act could bind the corporation, be imputed to the corporation or be considered an admission of the corporation. See Rule 2-100(B). In determining the applicability of Rule 2-100, [the Court] must be mindful of the fundamental reasons behind the venerable rule in legal ethics prohibiting ex parte contacts with represented parties. The rule exists in order to preserv[e] ... the attorney-client relationship and the proper functioning of the administration of justice. It is a rule governing attorney conduct and the duties of attorneys, and does not create a right in a party not to be contacted by opposing counsel. United States v. Talao, 222 F.3d 1133, 1138 (9th Cir. 2000) (internal quotations omitted). California courts have determined that Rule 2-100's prohibition against ex parte contact with a party represented by counsel does not extend to a corporation's former employees. See Continental Ins. Co. v. Superior Court, 32 Cal.App.4th 94, 118-21, 37 Cal.Rptr.2d 843 (Cal. App. 2 Dist. 1995) (collecting cases and policy reasons for an “anticontact rule,” and holding that Rule 2-100 permits opposing counsel to initiate ex parte contacts with a corporation's former employees); Nalian Truck Lines, Inc. v. Nakano Warehouse & Transportation Corp., 6 Cal.App.4th 1256, 1262, 8 Cal.Rptr.2d 467 (Cal. App. 2 Dist. 1992) (“If the drafters of rule 2-100 had intended to prohibit ex parte communications with all former ... employees, they would have expressed this intention in the comment.”). As such, Rule 2-100 does not prevent plaintiff's counsel from contacting defendant's former employees.[3] 2. Interrogatories Nos. 42-43 Plaintiff seeks interrogatory responses concerning the information and training materials given to defendant's new tool rental associates as a matter of company policy, and asserts that he wants this information to “determine whether the sales clerks were trained to orally inform customers that the surcharge is optional.” (See Docket Entry No. 113 at p. 3 (emphasis in original)). Defendant objects to these interrogatories on the basis that, among other things, the information is not relevant; the interrogatories are unduly burdensome because the majority of information given to tool rental employees has nothing to do with the damage waiver at issue in this case; defendant has already produced all nonprivileged documents in its possession pertaining to the damage waiver and has submitted declarations verifying that there is nothing left to produce; and to the extent plaintiff seeks training information not pertinent to defendant's damage waiver, such a request is overbroad. (See id. at pp. 6, 21-22, 24-25.). *5 First, the Court agrees with defendant that insomuch as plaintiff requests interrogatory responses concerning information and materials provided to defendant's new tool rental employees other than that which pertains to defendant's damage waiver, Interrogatories Nos. 42 and 43 are overbroad and seek information that is not relevant to any party's claims or defenses. Next, the Court finds that defendant adequately responded to Interrogatories Nos. 42 and 43 by producing to plaintiff the training-related materials that defendant gives its new employees, rather than providing written responses to the interrogatories, because where “the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by” specifying the records that respond to the interrogatory and “giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.” Fed.R.Civ.P. 33(d). Here, defendant represents that it has already produced “hundreds of pages of training-related materials regarding the damage waiver,” and that, despite diligent efforts, it “has not been able to locate any additional responsive material.” (See Docket Entry No. 113 at p. 24). In the October 7, 2010, Order Re: Plaintiff's Motion to Compel, the Court determined that it would accept defendant's representation that it had already produced to plaintiff all nonprivileged documents and electronic information pertaining to its damage waiver in its possession, custody, or control, upon submission of a declaration signed under penalty of perjury by one of defendant's corporate officers declaring this representation to be true. (See Docket Entry No. 91 at p. 13). Defendant has since submitted such a declaration. (See Declaration of Jocelyn J. Hunter, Docket Entry No. 118, Exhibit C). As such, the Court finds that defendant has sufficiently demonstrated that it already provided plaintiff with all nonprivileged information pertaining to its damage waiver (including training materials) and that there is nothing left to produce. Accordingly, plaintiff's Motion to Compel additional interrogatory responses pursuant to Interrogatories Nos. 42 and 43 is denied. B. Request for Production of Defendant's November 26, 2008, Litigation Hold Memorandum: ruling deferred. In the October 7, 2010, Order Re: Plaintiff's Motion to Compel, the Court ordered defendant to produce all nonprivileged documents in its possession, custody, or control concerning its document retention policy, including any written litigation hold notices and memoranda, and that any withheld privileged documents be included in a detailed privilege log. (SeeDocket Entry No. 91 at p. 15). Plaintiff asserts, citing the Court's October 7, 2010, Order, that defendant has improperly failed to produce its November 26, 2008, litigation hold memorandum that was distributed via e-mail by defendant's legal department to a number of defendant's tool rental employees. (See Docket Entry No. 117 at pp. 1, 4-8). Plaintiff requests that the Court review the memorandum in camera, and if the Court determines that the memorandum is not privileged, that it then order defendant to produce it to plaintiff. Plaintiff further requests that if the Court finds that the memorandum contains privileged information, the Court either order production of the memorandum with the privileged portions redacted or order defendant to provide plaintiff with a declaration identifying the recipients of the memorandum and the categories of any documents that were preserved pursuant to the memorandum. (Id. at pp. 7-8). Defendant contends that it withheld the November 26, 2008, e-mailed litigation hold memorandum because it contains legal advice from defendant's attorneys to defendant's employees and is thus protected by the attorney-client privilege and the work-product doctrine. Defendant also contends that it identified in the privilege log the recipients of the memorandum, and that it already provided declarations detailing the information preserved pursuant to the memorandum. (See id. at pp. 9-12, citing Docket Entry No. 52, Exhibits A, C, D, E, and Docket Entry No. 120, Exhibit A). Defendant also submits the declaration of William P. Barnette (“Barnette Decl.”), defendant's in-house commercial litigation counsel, in which Mr. Barnette declares under penalty of perjury that the November 26, 2008, memorandum was distributed to “relevant tool rental employees;” “contains confidential attorney-client communications regarding the Damage Waiver Litigation, the defense of the litigation, and the documents and information that should be preserved, collected, and produced in connection with the Damage Waiver Litigation;” and contains his mental impressions and legal opinions (as defendant's counsel) regarding the instant litigation. (SeeBarnette Decl. at ¶¶ 1-5, Docket Entry No. 119). *6 The Court will conduct an in camera review of the November 26, 2008, e-mailed litigation hold memorandum. Defendant is ordered to deliver a copy of the memorandum, identified as “Priv33” in defendant's Supplemental Privilege Log of Withheld Documents (see Docket Entry No. 120, Exhibit A), to the Court no later than March 1, 2011. C. Sixth Set of Requests for Production of Documents No. 75: denied. Plaintiff seeks to compel defendant to produce documents relating to defendant's disaster recovery plan. Defendant objects on the basis that defendant's “disaster recovery plan has no relevance to any substantive issue in this case” and because the Court already determined that defendant was under no obligation to maintain its disaster recovery tapes. (See Docket Entry No. 122 at pp. 1-2). In the October 7, 2010, Order Re: Plaintiff's Motion to Compel, the Court concluded that defendant's duty to preserve documents concerning its damage waiver pursuant to the litigation hold did not include an obligation to maintain its disaster recovery tapes, and that defendant's failure to preserve some of its disaster recovery tapes did not constitute a spoliation of evidence. (See Docket Entry No. 91 at pp. 11-12). The Court further noted that defendant offered to let plaintiff search defendant's disaster recovery tapes at plaintiff's expense, and the Court ordered plaintiff to notify defendant of his intent to do so no later than October 15, 2010. (See id. at pp. 9, 15). Defendant represents that although plaintiff on October 14, 2010, requested access to the disaster recovery tapes, he did not respond to defendant's request that plaintiff propose a protocol for review of the disaster recovery tapes and that he has not revisited this issue since October 2010. (See Docket Entry No. 122 at p. 8; Docket Entry No. 124, Exhibit A). The Court concludes that documents relating to defendant's disaster recovery plan are not discoverable. Since defendant was under no obligation to preserve its disaster recovery tapes to begin with, defendant is likewise not obligated to produce documents concerning its disaster recovery plan. See, e.g., Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (a party's duty to retain discoverable information pursuant to a litigation hold “does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company's policy”). That defendant voluntarily provided plaintiff with access to its disaster recovery tapes does not create the discovery obligation proposed by plaintiff. Moreover, plaintiff has not shown that information pertaining to defendant's disaster recovery plan is in any way relevant to the parties' claims or defenses in this action (see Fed.R.Civ.P. 26(b)(1)), especially because the Court in the October 7, 2010, Order already determined that defendant adequately implemented and monitored its damage waiver litigation hold relevant to this case, even though defendant has not maintained readily accessible versions of its disaster recovery tapes. (See Docket Entry No. 91 at pp. 3 n.1, 11-15). Accordingly, plaintiff's Motion to Compel discovery pursuant to Request for Production No. 75 is denied. D. Third Set of Requests for Production of Documents[4] No. 42: denied. Third Set of Requests for Production of Documents Nos. 43, 45, 46[5] : granted in part Third Set of Requests for Production of Documents Nos. 47, 49-52[6] : denied. 1. Request for Production No. 42 *7 Plaintiff requests copies of all software used on defendant's tool rental center cash registers from July 12, 2002, to the present. Plaintiff asserts that defendant's cash registers automatically add the 10% tool rental surcharge, and that he seeks discovery of the cash register software to use it as a demonstrative exhibit at trial, examine the different versions of the software, and have an expert determine how difficult it would be to modify the software so that the surcharge is not automatically added to tool rental invoices. (See Docket Entry No. 126 at pp. 6-7). Defendant objects to plaintiff's request for production as unduly burdensome and overbroad. Specifically, defendant asserts that its computerized program used on its tool rental computers cannot “be copied, placed onto a CD, and produced to Plaintiff.” (Id. at p. 9). Rather, defendant asserts that its tool rental computers are “integrated with a vast network of hardware, including the hardware at each individual Home Depot store, along with the computer systems connecting the operations of all Home Depot stores throughout the country,” and that defendant's tool rental “software” cannot function independently from the integrated components of the whole computer platform. (Id.). Thus, defendant contends that it would have to provide plaintiff with its network and information technology, “including significant swaths of hardware,” in order to actually “make the ‘software’ available to Plaintiff.” (Id.). Defendant further objects to the production request on the basis that such a production would disclose “enormous amounts of competitively sensitive information” that is irrelevant to plaintiff's claims, as defendant's integrated computer system is used across all lines of its business. (Id. at 10). Finally, defendant asserts that it has already given plaintiff sufficient information concerning its point-of-sale system (including, among other things, training materials with screen shots explaining how the tool rental computer system works), and thus contends that plaintiff's instant production request is improperly duplicative of discovery already produced. (See id. at pp. 10-13). Defendant's contention that it cannot simply copy and produce to plaintiff its point-of-sale computer system represents an issue that is particularly problematic in electronic-discovery matters. See Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, 8A Fed. Prac. & Proc. § 2219 (3d ed. 2009) (“The problem of form of production ... assumes additional importance with electronically stored information. As a starting point, there could be a question whether the receiving party can even access or make use of information produced in electronic format.”). The Court will accept defendant's representation that its point-of-sale computer system (or tool rental “software”) cannot be copied and furnished to plaintiff in a manner that will make the information actually “available” to plaintiff, without also providing plaintiff with access to defendant's hardware and entire computer network, upon submission of a declaration signed under penalty of perjury by one of defendant's corporate officers with actual knowledge of these facts declaring the specific representations about the system set forth in the Joint Stipulation (at pp. 9-13) to be true. Further, the Court finds that plaintiff has not demonstrated that granting him direct access to defendant's integrated computer network, including information that is confidential, proprietary, and irrelevant to the instant action, is warranted here. If defendant had failed to turn over discovery concerning the computer system that is used during tool rental transactions or the manner in which the damage waiver is charged to customers, then the Court may have found plaintiff's requested access to defendant's computer system warranted. But the Court in its October 7, 2010, Order Re: Plaintiff's Motion to Compel already determined that plaintiff failed to show that defendant provided inadequate discovery concerning its damage waiver. (See Docket Entry No. 91). Moreover, defendant now presents excerpts of the discovery it produced to plaintiff providing step-by-step instructions with “screen shots” showing how tool-rental transactions (including damage waivers) are processed using defendant's computer system. (See Docket Entry No. 128, Exhibit A). This discovery sufficiently satisfies plaintiff's need for information concerning the manner in which defendant's tool rental transactions and damage waivers are processed. As such, plaintiff has not shown the need for additional discovery of defendant's computer system—in a manner that would provide plaintiff with irrelevant, confidential, and proprietary information—to litigate his claims. Thus, plaintiff's Request for Documents No. 42 is denied. SeeConvolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 169-70 (S.D.N.Y. 2004) (plaintiffs not entitled to direct access to defendants' hard drives, servers, and databases, where defendants had for the most part complied with discovery); Fennell v. First Step Designs, Ltd., 83 F.3d 526, 532-34 (1st Cir. 1996) (denying plaintiff's request to access defendant's hard drive, where there was little indication that the access would lead to evidence further supporting plaintiff's claim, and such access would reveal confidential and proprietary information); Lawyers Title Ins. Corp. v. U.S. Fidelity & Guar. Co., 122 F.R.D. 567, 570 (N.D. Cal. 1988) (denying plaintiff's request to access defendant's computerized system of information management, where plaintiff failed to show that the discovery produced was insufficient to litigate their case, and noting “it is far from clear that the court should force a party that has invested heavily in developing information management systems to share those systems with opposing counsel without some showing that the party has failed to respond in good faith and adequately to discovery probes”). 2. Requests for Production Nos. 43, 45, and 46 *8 Plaintiff requests defendant's weekly associate effectiveness reports (described in discovery produced by defendant with Bates No. HD/GCR 585), weekly tool rental revenue reports (described in discovery produced by defendant with Bates Nos. HD/BG 977-HD/BG 986), and monthly tool rental damage waiver acceptance reports (described during the May 27, 2004, deposition of Daniel McAreavey at p. 160:17-21) dated from July 12, 2002, to the present for tool rental centers in California. (Docket Entry No. 126 at pp. 13, 18, 22). Defendant objects on the basis that these requests are overbroad and unduly burdensome because they are not sufficiently limited in time or location, defendant does not maintain documents or information responsive to these request in the ordinary course of business (although defendant also seems to acknowledge that the weekly associate effectiveness and tool rental revenue reports exist in some format (see id. at pp. 16-18, 21-22)); and the requests seek information that is duplicative of other discovery already produced. (Id. at pp. 13, 16-18, 21-24). The Court finds that the requested reports are not duplicative of discovery already produced by defendant in this action. Even if defendant has produced summaries of the data reflected in the requested reports, plaintiff is still entitled to the reports on which the summaries are based to the extent they exist. Further, insomuch as defendant objects to production on the basis that it maintains the requested information only in an electronic, rather than in a printed form, such an objection will not be sustained. Requests for “documents” should be interpreted to include electronically-stored information. See Committee Note to 2006 amendment to Rule 34(a) (“a Rule 34 request for production of ‘documents' should be understood to encompass, and the response should include, electronically stored information unless discovery in the action has clearly distinguished between electronically stored information and ‘documents' ”). Nonetheless, the Court agrees with defendant that plaintiff's Requests for Documents Nos. 43, 45, and 46, as worded, are overbroad. Accordingly, the Court orders defendant to respond to these requests limited to responsive documents pertaining to defendant's tool rental center in Costa Mesa, California from January 1, 2005, to December 31, 2005.Should a class ultimately be certified in this action, the Court will, upon plaintiff's renewed motion, reconsider plaintiff's request to discover additional information pursuant to Requests for Documents Nos. 43, 45, and 46. To the extent defendant has not yet produced documents responsive to these requests as modified, it must now do so. Defendant must also concurrently produce a declaration signed under penalty of perjury that all nonprivileged documents in its possession, custody, or control responsive to these requests as modified have been produced, as well as a detailed privilege log as to those documents, if any, that it has withheld. 3. Requests for Production Nos. 47, 49, 50, 51, and 52 Plaintiff requests production of documents concerning defendant's work orders for damaged tools, the costs incurred by defendant for repairing and replacing tools that were and were not covered by its damage waiver, costs billed by defendant to its customers for repairing and replacing damaged tools that were not covered by its damage waiver, and the number of damage waiver claims made by defendant's customers, all with regard to defendant's tool rental centers in California and during the time frame of July 12, 2002, to the present. (See Docket Entry No. 126 at pp. 24, 28-32.). Plaintiff contends that the requested information is pertinent to an anticipated defense that defendant might raise against plaintiff's class claims (i.e., that some of the prospective class members who paid for defendant's damage waiver may have actually benefitted from it). (See id. at p. 25). Defendant responds that plaintiff is not entitled to the requested documents because, among other reasons, the damage waiver's value is not related to plaintiff's claims. (See id. at 24, 27-32). *9 Since plaintiff did not damage the tool he rented from defendant (seeDocket Entry No. 126 at p. 28), the Court concludes that plaintiff has not shown that information responsive to Requests for Documents Nos. 47, 49, 50, 51, and 52 is discoverable at this stage of the litigation, as the value of defendant's damage waiver does not appear to be relevant to plaintiff's individual claims or defendant's defense of those claims. Accordingly, plaintiff's Requests for Documents Nos. 47, 49, 50, 51, and 52 are denied. Should a class ultimately be certified in this action, the Court will, upon plaintiff's renewed motion, reconsider plaintiff's request to discover additional information pursuant to Requests for Documents Nos. 47, 49, 50, 51, and 52. CONCLUSION Based on the foregoing, it is ordered that: 1. Plaintiff's Motions to Compel (Docket Entry Nos. 112, 116, 121, 125) are granted and denied as set forth above. 2. The parties' requests for costs and fees in litigating the Motions to Compel are denied. 3. No later than March 1, 2011, defendant shall deliver to the Court for in camera review a copy of the memorandum identified as “Priv33” in defendant's Supplemental Privilege Log of Withheld Documents. 4. No later than March 8, 2011, defendant shall produce to plaintiff all information, documents, declarations, and privilege logs ordered herein. IT IS SO ORDERED. Footnotes [1] Defense counsel requests the reasonable costs and fees in opposing the Motions (see, e.g., Docket Entry 131), but does not provide any information concerning defendant's costs and fees. [2] The Court does not resolve defendant's contention that statements from its former employees would be insufficient to outweigh the evidence concerning defendant's written damage waiver policy. (See Docket Entry No. 113 at pp. 5, 13). Such an evidentiary contention is beyond the scope of the Court's role here in resolving the parties' discovery disputes. [3] Plaintiff's counsel may not purposefully inquire into any privileged matter when engaging in ex parte communications with defendant's former employees. See Terra Intern., Inc. v. Mississippi Chemical Corp., 913 F.Supp. 1306, 1316 (N.D. Iowa 1996) (“an attorney communicating with a former employee of the opposing party may not inquire into privileged attorney-client communications because [a]ny privilege existing between the former employee and the organization's counsel belongs to the organization, and can only be waived by the organization”) (internal quotations and citation omitted). To the extent defendant is concerned that its former employees may reveal privileged information, defendant may safeguard the use of such information pursuant to the previously-issued protective order. See Continental Ins. Co., 32 Cal.App.4th at 119; In re EXDS, Inc., 2005 WL 2043020, at *3 (N.D. Cal. Aug. 24, 2005) (“it is incumbent on the former employer to seek a protective order if it is concerned that there is a risk that a former employee might disclose privileged information”). [4] On February 15, 2011, plaintiff filed a Request for Judicial Notice in support of his Motion to Compel discovery concerning his Third Set of Requests for Production of Documents Nos. 42, 43, 45, 46, 47, 48, 49, 50, 51, and 52. (See Docket Entry No. 136). Specifically, plaintiff requests that the Court take judicial notice of the Declaration of Chelton Tanger, filed in Pacholec v. Home Depot U.S.A., Inc., United States District Court for the District of New Jersey, Case No. 06-827-PGS (RJHx). Plaintiff's request is granted. However, in accordance with Fed.R.Evid. 201, the Court takes judicial notice only of the fact of the existence of the Tanger Declaration as filed in Case No. CV 06-827-PGS (RJHx), but not to the accuracy of the information contained therein. SeeUnited States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (holding that courts may take judicial notice of “proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”); Wyatt v. Terhune, 315 F.3d 1108, 1114 n.5 (9th Cir.) (noting that “[f]actual findings in one case ordinarily are not admissible for their truth in another case through judicial notice”), cert. denied, 540 U.S. 810 (2003); Mullis v. United States Bankr. Court, 828 F.2d 1385, 1388 n.9 (9th Cir. 1987) (holding that it is proper for a court to take judicial notice of the contents of court files in other lawsuits). [5] Plaintiff cites the deposition of defendant's Rule 30(b)(6) designee, Gaven Gregory, to support his Motion to Compel discovery with regard to his Third Set of Requests for Production of Documents Nos. 43, 45, and 46. (See Docket Entry No. 126 at pp. 14-15, 20, 26-27). Although plaintiff purported to file an exhibit from Mr. Gregory's deposition under seal (see Docket Entry No. 127, Declaration of Matthew E. Hess at ¶ 6, Exhibit F), the exhibit was not lodged with the Court. In any event, plaintiff's representations concerning Mr. Gregory's deposition did not impact the Court's resolution of the discovery dispute with regard to Requests for Production Nos. 43, 45, and 46. As such, plaintiff's failure to file the exhibit is inconsequential. [6] The Court observes that although plaintiff lists Request for Production No. 48 in the Motion to Compel (see Docket Entry No. 125), that request is not discussed in the parties' Joint Stipulation to the Motion to Compel. (See Docket Entry No. 126). Accordingly, the Court does not herein address Request for Production No. 48.