Proceedings

*1 On March 2, 2011, Kevin Dwaine Mitchell and Nwatasha Lytle (“Plaintiffs”) filed this class and collective action lawsuit against Acosta Sales, LLC, et al. (“Defendants”) on behalf of themselves and similarly situated merchandiser employees.[1] Plaintiffs allege that Defendants violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.,and the California Labor Code by failing to pay its merchandiser employees for all hours worked, including for time spent uploading and downloading information to Defendants’ computer servers before and after their shifts. Plaintiffs also allege that Defendants violated California Labor Code section 2802 by failing to reimburse merchandisers in California for required business expenses, including the costs of high-speed internet access, cell phones, and vehicle use. Plaintiffs seek backpay, reimbursements, liquidated damages, attorneys’ fees, and costs of suit. (ECF No. 53 at 1.)

Two related cases, the Torrez and Sutton actions, were filed in early 2011. Those cases also alleged similar claims against Defendants on behalf of merchandisers in California and nationwide. Plaintiffs in those actions were formally added as parties in the First Amended Complaint filed in the current action on June 29, 2011. (Id. at 2; ECF No. 58 at 1, n.1.)

On August 10, 2011, the parties filed a Joint Stipulation Re: Defendants’ Motion to Compel Further Responses to Interrogatories and Requests for Production of Documents (“RFP”), along with supporting declarations and exhibits. (ECF Nos. 58-60.) On August 17, 2011, Defendants filed a Supplemental Memorandum in support of the Motion to Compel. (ECF No. 69.) On August 17, 2011, Plaintiffs filed a Supplemental Memorandum in Opposition to Defendants’ Motion to Compel, along with a supporting declaration. (ECF Nos. 70, 71.)

The Court finds this matter suitable for decision without oral argument. Fed. R. Civ. P. 78(b); Local Rule 7-15. As a result, the Court vacates the hearing date set for August 31, 2011, at 9:30 a.m. For the reasons set forth below, the Court grants in part Defendants’ Motion to Compel.

II.

Discussion

A. Discovery.

The scope and limitations of discovery are set forth by the Federal Rules of Civil Procedure and Evidence. Rule 26 provides in pertinent part that:

*2 Fed. R. Civ. P. 26(b)(1).

Rule 33 of the Federal Rules of Civil Procedure governs requests for responses to interrogatories. The responding party must serve its answers and any objections to the interrogatories in writing within thirty days after being served with the interrogatories. Fed. R. Civ. P. 33(b)(2), (3). Any objections to the interrogatories must be stated with specificity, and any objection not stated in a timely manner is waived unless the court finds good cause to excuse to failure to timely respond. Fed. R. Civ. P. 33(b)(4).

Rule 34 governs requests for production of documents, electronically stored information, and tangible things. Upon receiving a request for production, the party to whom the request is directed must respond in writing within thirty days. Fed. R. Civ. P. 34(b)(2)(A). Any objections to a request must provide the reasons for the objections. Fed. R. Civ. P. 34(b)(2)(B).

Rule 37 allows for the filing of a motion to compel if a party fails to provide answers to interrogatories or fails to respond to a request for production of documents. Fed. R. Civ. P. 37(a)(3)(B). A failure to respond to an interrogatory or a request for production of documents is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c). Fed. R. Civ. P. 37(d)(2). Sanctions in the form of attorney’s fees must be imposed for failure to serve answers to interrogatories, failure to comply with requests for production, or failure to appear at a properly noticed deposition, unless the failure was substantially justified or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(d)(3).

Trial courts have broad discretion in granting or denying discovery. Santos ex rel. Santos v. City of Culver City, 228 Fed. App’x 655, 657 (9th Cir. 2007)(“broad discretion is vested in the trial court to permit or deny discovery, and its decision to deny discovery will not be disturbed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant.”) (citations omitted).

B. Defendants’ Motion to Compel (ECF No. 58).

Defendants seek an order compelling Plaintiffs to provide amended responses to Defendants’ Interrogatories and RFPs, Set One. In their RFPs, Defendants seek documents pertaining Plaintiffs’ counsel’s communications with potential class members (RFP Nos. 9, 14-16, 20, 37-38, 43), and Plaintiffs’ financial and tax information (RFP No. 22). In their Interrogatories, Defendants seek information pertaining to Plaintiffs’ counsel’s communications with potential class members (Interrogatory Nos. 5, 7-8, 10, 12, 15-16, 19-20, 22), and Plaintiffs’ residence addresses during the relevant time period (Interrogatory No. 25).

RFP Nos. 9, 14, 15, 16, 20, 37, 38, 43; Interrogatory Nos. 5, 7, 8, 10, 12, 15, 16, 19, 20, 22

In RFP No. 9, Defendants seek all documents between Plaintiff and any current or former employee of Defendant, relating to the allegations, claims or damages in the Complaint. RFP Nos. 14 and 15 seek documents relating to merchandiser employees working off the clock, and Defendants’ failure to pay straight time and/or overtime for hours worked. RFP No. 16 seeks communications from any person to Plaintiff regarding merchandiser job duties, and/or wages and benefits. RFP No. 20 seeks documents given or sent to Plaintiffs by past or present employees of Defendants that contain any information about employment, duties, hours worked, compensation, and/or any alleged failure to pay compensation to potential class members (“PCMs”). RFP No. 37 seek declarations, affidavits or statements supporting Plaintiffs’ request for class or collective certification. RFP No. 38 seeks all documents sent or received from any attorney who does not represent Plaintiffs. RFP No. 43 seeks all declarations, statements, or affidavits obtained by Plaintiffs in connection with the lawsuit.

*3 Interrogatory No. 5 seeks the names, addresses, email addresses, and phone numbers of all witnesses to the facts and circumstances alleged in the Complaint. Interrogatory Nos. 7 and 8 seek the same information for any person interviewed by Plaintiffs or who prepared a written or recorded statement concerning the subject matter of the Complaint. Interrogatory Nos. 10, 12, 15, 16, 19, and 20 seek the same information regarding witnesses to the contention that Plaintiffs worked “off the clock,” were not paid straight time and/or overtime, were not reimbursed for employment expenses, or all PCMs whom Plaintiffs have personal knowledge of working “off the clock,” not being paid straight time and/or overtime, or who were not reimbursed for employment expenses. Interrogatory No. 22 seeks the identity of each person with whom Plaintiffs have communicated regarding the subject matter of the Complaint and the substance of the communication.

Plaintiffs objected to these RFPs and Interrogatories primarily on the grounds of attorney-client privilege, work product doctrine, and privacy concerns. Defendants claim they have “reason to believe” that Plaintiffs may have engaged in unsolicited “and possibly inappropriate” Facebook and email communications with unrepresented PCMs and that Plaintiffs’ communications with these PCMs are not privileged because they are currently unrepresented. Plaintiffs have stated they are willing to produce the notices posted by Plaintiffs’ counsel regarding the case (the “Facebook posting”), and any signed declarations or statements by a PCM regarding the case. They also note that Defendants have access to Plaintiffs’ counsel’s website. Plaintiffs also state that they “have produced or will produce documents relevant to the claims asserted in the collective and class action except (1) information that would identify Acosta employees who have contacted Plaintiffs’ counsel about this case and (2) communications between Acosta employees and Plaintiffs’ counsel.”

Defendants cite to Parks v. Eastwood Ins. Serv., Inc., 235 F. Supp. 2d 1082 (C.D. Cal. 2002), and Castaneda v. Burger King Corp., 2009 WL 2382688, at *13 (N.D. Cal. July 31, 2009), to support their contention that the requested documents are not attorney-client privileged or protected work product because the PCMs are currently unrepresented. Defendants’ cases are only partially applicable, however. In both cases, the court considered whether defense counsel’s communications to potential FLSA class members prior to certification were proper. Both cases found that prospective plaintiffs are still unrepresented parties, and therefore, there was no prohibition to defense counsel contacting them ex parte prior to certification. Parks, 235 F. Supp. 2d at 1973; Castaneda, 2009 WL 2382688, at *7. Neither case, however, held that defendant was entitled to discover any PCM communications with plaintiff’s counsel. In fact, in Castaneda, the court noted that other courts had seemed to find a privilege for communications between attorneys and prospective clients, even prior to the clients’ retaining the attorneys. Castaneda, 2009 WL 2382688, at *6(citing Barton v. U.S.D.C. Cent. Dist. Cal., 410 F.3d 1104, 1111-12 (9th Cir. 2005)).[2] The Castaneda court went on to note that the fact that the putative class members contacted the plaintiffs’ counsel “may create a privilege for their communication with class counsel.” Id.

It is also of note that in Castaneda, the court found that the defendant was entitled to obtain the names, addresses, and telephone numbers of putative class members from plaintiffs’ counsel, since the putative class members were also potential witnesses. Id. at *7. In so holding, however, the court carefully distinguished the situation in Castaneda, an ADA claim brought by members of the public against Burger King, from employment cases where the defendant has power over the prospective plaintiffs and “where the Defendant may threaten or imply a job threat to the job of a plaintiff who cooperates with Plaintiffs’ counsel or refuses to cooperate with Defendant’s counsel.” Id. at *8; see also Tien v. Super. Ct., 139 Cal. App. 4th 528, 539-41 (2006) (employees have a significant privacy interest in the fact that they made contact with plaintiffs’ counsel).

*4 Based on these authorities and the representations of the parties, the Court grants in part Defendants’ Motion to Compel further response to RFP Nos. 9, 14, 15, 16, 20, 37, 38, and 43, and Interrogatory Nos. 5, 7, 8, 10, 12, 15, 16, 19, 20, and 22. Plaintiffs shall produce documents or provide information that is relevant to the claims asserted in the collective and class action except “(1) information that would identify Acosta employees who have contacted Plaintiffs’ counsel about this case, and (2) communications between Acosta employees and Plaintiffs’ counsel.” Plaintiffs also shall produce notices posted by Plaintiffs’ counsel regarding the case (the “Facebook posting”), and any nonprivileged signed declarations or statements by a PCM regarding the case.

RFP No. 22

In RFP No. 22, Defendants seek all documents relating to Plaintiffs’ income from the time first employed by Defendants to the present, including check stubs, payroll remittance, W-2 forms, and joint income tax returns, including all schedules and attachments.

Plaintiffs objected to this RFP citing privacy concerns, including the taxpayer privilege, and objected that the RFP was designed to harass, annoy, and oppress. Defendants contend there is no federal taxpayer privilege and that Plaintiffs have put their income at issue by claiming compensation for unpaid wages. Plaintiffs agreed to produce any pay stubs in their possession and argue that any tax deductions are irrelevant for determining damages. Plaintiffs state that if the income tax deductions were relevant, Defendants could obtain the information through a less invasive means, such as an interrogatory asking if Plaintiffs ever took deductions for unreimbursed business expenses.

Based on these authorities and the representations of the parties, the Court grants in part Defendants’ Motion to Compel further response to RFP No. 22. Plaintiffs shall produce any pay stubs in their possession, and any income tax returns, schedules or attachments showing the Plaintiffs took a deduction for unreimbursed business expenses related to Plaintiffs’ employment with Defendants.

Interrogatory No. 25

In Interrogatory No. 25, Defendants ask Plaintiffs to identify every place of residence during and after employment with Defendants.

Plaintiffs have agreed to provide supplemental interrogatory responses with the residence addresses of the named and opt-in Plaintiffs throughout the period of their employment with Defendants.

Based on Plaintiffs’ representations, the Court grants Defendants’ Motion to Compel further response to Interrogatory No. 25. Plaintiffs shall provide supplemental interrogatory responses with the residence addresses of the named and opt-in Plaintiffs throughout the period of their employment with Defendants.

III.

Conclusion

Based on the foregoing, the Court grants in part Defendants’ Motion to Compel with respect to RFP Nos. 9, 14, 15, 16, 20, 37, 38, and 43, and Interrogatory Nos. 5, 7, 8, 10, 12, 15, 16, 19, 20, and 22. Plaintiffs shall produce documents or provide information that is relevant to the claims asserted in the collective and class action except “(1) information that would identify Acosta employees who have contacted Plaintiffs’ counsel about this case, and (2) communications between Acosta employees and Plaintiffs’ counsel.” Plaintiffs also shall produce notices posted by Plaintiffs’ counsel regarding the case (the “Facebook posting”), and any non-privileged signed declarations or statements by a PCM regarding the case.

The Court further grants in part Defendants’ Motion to Compel further response to RFP No. 22. Plaintiffs shall produce any pay stubs in their possession, and any income tax returns, schedules or attachments showing the Plaintiff took a deduction for unreimbursed business expenses related to Plaintiffs’ employment with Defendants.

*5 The Court further grants Defendants’ Motion to Compel further response to Interrogatory No. 25. Plaintiffs shall provide supplemental interrogatory responses with the residence addresses of the named and opt-in Plaintiffs throughout the period of their employment with Defendants.

Verified supplemental responses shall be provided no later than September 9, 2011. If necessary, the information provided shall be subject to a protective order.

Finally, the parties are reminded to fully comply with the Federal Rules of Civil Procedure and the Local Rules of this Court. The failure to do so may result in the imposition of sanctions. Fed. R. Civ. P. 37(d)(3); Local Rule 37-4.

IT IS SO ORDERED.

The Court more fully detailed the legal standards relating to class and collective actions in its Minute Order regarding Plaintiffs’ Motion to Compel (ECF No. 53).

In Barton, the court applied the attorney-client privilege to preliminary consultations which were prospective client questionnaires filled out from counsel’s website. Barton, 410 F.3d at 1111-12.