*1 This putative class action arises from Plaintiff Cindy Castillo's (“Plaintiff”) employment with Bank of America N.A. (“BOA”). Per the operative Fourth Amended Complaint (“4AC” at Dkt. 49), members of the proposed class are California residents and work for BOA as non-exempt call center workers. (4AC ¶ 31.) Plaintiff worked as a BOA Senior Account Manager in Brea, California from 2002 through September 2016. (Id. ¶ 12.)

Plaintiff alleges that BOA violated California Labor Code sections governing meal breaks, rest breaks, and payment for overtime work. The gravamen of the 4AC is that BOA did not pay the class members regular wages, including overtime, for all of class members' work because BOA consistently did not pay class members for pre-shift activities, such as booting up their computers, logging into their phone systems, and setting up the BOA computer applications and systems that they needed in order to perform their duties. (Id. ¶¶ 39, 43, 44.)

On August 7, 2018, the Court denied BOA's motion to dismiss the Third-Amended Complaint, finding that Plaintiff had adequately pleaded a state-wide class rather than a class limited to employees of the Brea call center. (Dkt. 48.) The Court cited Plaintiff's allegations that “Defendant uses universal computer systems, phone systems, and time keeping systems throughout its call centers in California....” (Id. at 8.[1])

Discovery in this case is not phased between class certification and merits issues. (Dkt. 41 [scheduling order].) The discovery cutoff date is in September 2019. (Id.) Plaintiff's deadline to move for class certification is December 17, 2018. (Dkt. 44.)

On September 25, 2018, Plaintiff filed two discovery motions in the required form of joint stipulations: (1) a motion to compel further responses to interrogatories (“Rogs”) (Dkt. 51) and (2) a motion to compel production and further written responses to request for production (“RFPs”) (Dkt. 52).

The Court finds these matters suitable for disposition without a hearing and takes the hearing noticed for October 30, 2018 OFF CALENDAR.

II. COMPLIANCE WITH LOCAL RULE 37-1.

As a threshold issue, BOA argues that Plaintiff's motions should be denied for failure to comply with Local Rule 37-1. Under that rule, to initiate the “meet and confer” process before filing a discovery motion, the moving party must send the opposing side a letter that “shall identify each issue and/or discovery requests in dispute, shall state briefly with respect to each this issue/request the moving party's position (and provide any legal authority which the moving party believes is dispositive of the issue as to that issue/request), and specified the terms of the discovery order to be sought.” L.R. 37-1.

Plaintiff states, “On or about July 17, 2018, Plaintiff sent a meet and confer letter to Defendant, requesting a pre-filing conference of counsel pursuant to Local Rule 37-1, in anticipation of Plaintiff's motion to compel discovery,”citing Mauro Decl., Exh. D. (Dkt. 51 at 30.) Exhibit D to the Maura Declaration is a letter, but it does not comply with the requirements of Local Rule 37-1. Most fundamentally, it does not identify the discovery demands in dispute. (Dkt. 51-1 at 71.)

*2 The purposes underlying Local Rule 37-1's letter requirement are important. Wisdom and experience teach that the first step in reaching a reasonable compromise to resolve a discovery dispute is defining clearly the scope and nature of the dispute. Nevertheless, the Court has discretion to overlook non-compliance with Local Rule 37-1 if the Court is convinced that compliance would not have aided the resolution of the dispute without judicial intervention.

Here, considering the written responses provided by BOA to the disputed Rogs, BOA's positions opposing the instant motion, representations by Plaintiff that BOA promised to provide amended responses but failed to timely do so, the fact that the parties engaged in extensive meet-and-confer discussions over a two-day period in August 2018, and Plaintiff's fast-approaching deadline to move for class certification (already extended once), it would not serve the purposes underlying Local Rule 37-1 to deny Plaintiff's motion based on non-compliance.

III. MOTION TO COMPEL FURTHER RESPONSES TO ROGS.

This motion is GRANTED, in part, as described below. BOA shall provide supplemental responses to the disputed ROGs on or before October 19, 2018, unless a different deadline is ordered below. BOA's supplemental responses shall not re-assert objections overruled by this order.

A. Deadline for Providing Agreed-To Supplemental Rog Responses.

The Rogs at issue are from Plaintiff's Set One, Nos. 1, 3, 6, 7, 13, 14, 15, 16, 17 and 18. (Dkt. 51 at 3 [table of contents].) Rog 7 appears to have been listed in error, because it is not discussed in the briefing.

As a second threshold issue, BOA represents that it already agreed to supplement nos. 1, 3, 9, 13, 16, 17, and 18. (Id. at 52-53.) BOA further represents that crafting supplemental responses is taking longer than anticipated because of the need to gather data statewide that is not necessarily organized by categories relevant to the litigation. (Id.) The Court agrees that “there is no reason to order Defendant to do what it is already doing,” but the Court will set a deadline for Defendant's supplemental responses of October 19, 2018. This appears fair given that the discovery was served in April 2018 and Plaintiff's deadline to move for class certification is in December 2018.

B. Discussion of Disputed Rogs.

The Rogs, then, remaining in dispute are Nos. 6, 14, and 15. (Dkt. 51 at 3.)

1. Rog No. 6

This Rog asks BOA to identify the putative class members, as follows:

(Dkt. 51 at 14.)

BOA argues that it has already offered to produce contact information for 1,000 employees from Brea. (Dkt. 51 at 37-38.) BOA objects that Plaintiff is not entitled to anything more because it is unlikely she will be able to certify the alleged class. (Id. at 38-42.) This objection is OVERRULED. The pleadings define the scope of discovery, and Plaintiff's state-wide class allegation have already survived a motion to dismiss.

BOA objects that class contact information is not “required to substantiate” Plaintiff's class allegations. (Id. at 42.) This objection is OVERRULED. The scope of discovery is defined by what is relevant to the parties' claims and defenses, not what is “required to substantiate” them. See Fed. R. Civ. P. 26. There is no colorable argument that the discovery of contact information for putative class members is not relevant. To the extent BOA is arguing that discovery should be phased and limited to class certification issues now, BOA suggested phased discovery in the Rule 26(f) report (Dkt. 36 at 6) but the District Court declined to adopt that suggestion (Dkt. 41).

*3 BOA objects that Plaintiff can obtain class contact information via a “less-intrusive means,” i.e., by relying on her own memory. (Dkt. 51 at 43.) This objection is OVERRULED. The fact that Plaintiff has contact information for a handful of Brea co-workers has no tendency to show that she does not need additional class contact information from BOA.

BOA objects that the requested discovery will invade the privacy rights of its employees and former employees. (Id. at 44-45.) This objection is OVERRULED. Plaintiff has agreed to participate in an opt-out procedure that is routinely used in class actions and adequately protects putative class members' privacy rights – particularly when the subject matter of the litigation is alleged wage and hour violations rather than something more sensitive like health issues or issues related to children.

BOA objects that Rog 6 is “impermissibly vague and ambiguous inasmuch it is unclear for which employees of Defendant she is seeking contact information.” (Id. at 46.) This objection is OVERRULED. Plaintiff is looking for contact information for putative class members. To the extent that definition is not clear from the 4AC, the parties can meet and confer about potential interpretations.

2. Rog No. 14

This Rog asks BOA to identify complaints BOA received from California call-center employees about the misconduct alleged in the 4AC, as follows:

(Dkt. 51 at 19.) BOA's written response was comprised of objections only. (Id. at 19-21.)

BOA's privacy objection is OVERRULED. (Id. at 50.) The case protective order adequately protects any employee privacy rights implicated.

BOA objects that the burden of responding to this Rog is not proportional to the needs of the case. (Id. at 47.) BOA explains that to respond, it “would first be required to perform a search on its human resource database to locate complaints for meal or rest break violations by putative class members.” (Id. at 48.) Assuming BOA used a clear class definition, “Defendant's human resource database does not distinguish first and second meal period complaints and responding to this [Rog] would require the individual review and analysis of any complaints” to enable BOA not to produce complaints about first meal periods. (Id.) BOA seems to assume that there will be a burdensome number of complaints to review because it has “thousands of current and former employees.” (Id.) In addition to a database query and review, BOA points out that some complaints might be documented in paper files maintained by call center managers. (Id.) Finally, BOA objects that it should not be required to write a Rog response describing each complaint; it should be sufficient to produce the underlying documents. (Id.)

BOA has not carried its burden of demonstrating a burden sufficient to excuse it from responding in any substantive way to this Rog, but some of the steps to which BOA objects do appear disproportional to the needs of the case. Using the class definition in the 4AC, BOA shall query its database for responsive complaints and produce them on or before October 12, 2018. Based on the mutual review of those documents, the parties can meet and confer over whether there is good cause to search paper files of managers at particular call centers. The production of the underlying complaint documents shall excuse BOA from providing a supplemental written response, but when producing the documents, BOA shall identify them as responsive to this Rog (and not simply include them in a larger production with no special identification).

*4 The Court expects the parties to use their best, good faith efforts to reach an agreement as to what documents to produce in response to Rog No. 14. However, if the parties cannot agree, they may utilize the Court's telephonic procedure[2] to resolve further disputes related to this Rog.

3. Rog No. 15

This Rog asks BOA to identify other lawsuits related to the subject matter of the 4AC, as follows:

(Dkt. 51 at 21.) BOA's written response was comprised of objections only. (Id. at 21-22.)

BOA objects that if “Plaintiff seeks lawsuits alleging the same ‘statutory violations’ alleged by Plaintiff, the request is facially overbroad because it would include lawsuits pursued on entirely different theories of liability.” (Id.at 51.) This objection is OVERRULED. Responsive lawsuits may provide information relevant to the claims and defenses of the parties in this case. The Court cannot say that the potential for over-inclusion excuses BOA from responding to this Rog by listing responsive lawsuits.

BOA objects that since lawsuits are a matter of public record, it is not required to identify its own prior labor-related lawsuits in response to discovery. (Id. at 52.) This objection is OVERRULED. Parties are routinely required to identify prior litigation, particularly when public records are generally organized by county or judicial district and BOA might have been sued on similar claims anywhere in California.

BOA objects that asking for lawsuits filed in the past ten years is “impermissibly overbroad.” (Id. at 50.) BOA is willing to identify lawsuits filed within the limitations period. (Id.) The Rogs define the “relevant time period” as “four years prior to the filing of the complaint” because four years is the longest statute of limitations for Plaintiff's claims. (Dkt. 51-1 at 10.) The Complaint was filed in March 2017, so four years prior to that date would be March 2013. Lawsuits filed just before the limitations period might have affected events within the limitations period, so BOA may limit its response to Rog 15 to lawsuits filed in 2012 through the present.

IV. MOTION TO COMPEL PRODUCTION AND FURTHER WRITTEN RESPONSES TO RFPS.

The RFPs at issue are nos. 1, 2, 3, 4, 5, 6, 7, 9, 13, 14, 16, 17, 18, and 20. (Dkt. 52 at 9.)

This motion is GRANTED, in part, as described below. BOA shall provide supplemental written responses to the disputed RFPs on or before October 19, 2018, unless a different deadline is ordered below. BOA's supplemental responses shall not re-assert objections overruled by this order.

BOA shall produce responsive documents on or before October 26, 2018, unless a different deadline is ordered below. If BOA withholds any documents based on privilege that date from before the filing of this lawsuit, then BOA shall identify them in a privilege log provided with its document production.

A. RFP Nos. 1 and 2.

Plaintiff requests the (1) time-keeping records and (2) wage statements of all class members but states she will “accept an agreed upon sampling with private information redacted with some neutral number for identification such as an employee number.” (Dkt. 52 at 12, 14.)

*5 BOA only agreed to produce documentation for Plaintiff, apparently standing on objections that since it views Plaintiff's class-based allegations as weak, it does not need to provide class-wide discovery. This objection is OVERRULED. The Parties shall meet and confer about an appropriate state-wide sampling process so that Plaintiff receives responsive documents within twenty-eight (28) days of this order.

BOA's relevance objection is OVERRULED. (Id. at 46.) Even if Plaintiff's theory is that employees worked unreported time (which will not be shown on time records), the time records will likely show commonalities (or dissimilarities) in time-keeping practices relevant to certification issues.

B. RFP No. 3.

Plaintiff requests emails to/from call center employees about certain topics. (Dkt. 52 at 15-16.) BOA was apparently unwilling to meet and confer over appropriate email discovery, objecting instead that this RFP “prematurely seeks class-wide merit-based discovery prior to certification of a class.” (Id.at 17.) Again, that objection is OVERRULED; the District Court declined to phase discovery. Parties routinely produce internal email communications relevant to the subject matter of the lawsuit.

BOA objects that the scope of ESI discovery sought is too burdensome/expensive (id. at 48), but BOA was apparently unwilling to negotiate over a narrower scope, standing instead on unfounded objections. On or before October 5, 2018, BOA shall propose to Plaintiff the appropriate custodians and means for identifying responsive emails (possibly search terms, or possibly review of particular email folders), along with a time estimate for completing such discovery that is consistent with Plaintiff's deadline to move for class certification. The parties shall engage in meaningful discussions about a reasonable scope of ESI (that will not be limited to Brea but will be limited to key custodians) and use the Court's telephonic hearing process if they cannot reach an agreement.

C. RFPs Nos. 4, 5, and 6

Plaintiff seeks personnel handbooks, manuals, and other policy documents that would have governed BOA's call center employees during the limitations period. (Dkt. 52 at 18-21.) After objecting on multiple grounds (including vagueness), BOA agreed to produce only policy-related documents for the Brea call center. (Id. at 19, 21, 23.) Again, the District Court found that Plaintiff adequately pleaded a state-wide putative class, and BOA is required to provide state-wide discovery.

D. RFP No. 7

Plaintiff seeks documents evidencing BOA's “management training and courses as they relate to POLICIES, practices and procedures concerning rest breaks and meal breaks during the RELEVANT TIME PERIOD.” (Id. at 23.)

In its written response, BOA noted, “At least until the court rules on Defendant's pending Motion to Dismiss [Dkt. #34], Plaintiff is not entitled to such discovery.” (Id.) The Court denied that motion, but BOA has still not updated its written response (offering to produce only Brea records) and produced responsive records. BOA shall do so by the date specified above.

E. RFP No. 14

Plaintiff seeks documents evidencing meal period waivers BOA might have obtained from call center employees. (Id. at 24.) Again, BOA impermissibly limited its response to Brea. (Id. at 26.)

In opposing this motion, BOA objects that finding such agreements would be too burdensome, because “they are separately stored by each employees' manager, on-site at the location where they worked.” (Id. at 48.) This objection is OVERRULED. BOA has not provided evidence sufficient to establish an undue burden. Given the clear description of the documents sought and their high relevance, BOA can ask each manager to review their own files and forward responsive agreements to counsel.

F. RFP No. 16

*6 Plaintiff seeks documents evidencing prior complaints. (Id. at 26.) BOA should supplement its written response, but otherwise the substance of this dispute is discussed above regarding Rog 14.

G. RFPs Nos. 17 and 18

Plaintiff seeks job descriptions and documents evidencing related job duties for the BOA personnel who worked at call enters. (Id. at 28, 30.) BOA refused to produce any other than Plaintiff's. (Id. at 30, 32.) Essentially, BOA impermissibly treated Plaintiff's lawsuit for purposes of discovery as if it were not a putative state-wide class action because BOA believes Plaintiff's odds of certifying a class are low. That is not how unphased discovery in putative class actions works.

BOA objects that it does not fully understand to which employees Plaintiff refers, because it does not use the nomenclature of “call centers.” (Dkt. 58.) That objection rings hollow since BOA has refused to produce records for any employee other than Plaintiff and refused to produce documents that might educate Plaintiff's counsel as to BOA's internal nomenclature. Accordingly, it is OVERRULED.

H. RFP No. 20

Plaintiff seeks documents identifying the timekeeping or recording systems used at each California call center to “log and record [employees'] time spent on the phone with customers during the RELEVANT TIME PERIOD.” (Id. at 32.) BOA agreed to produce only Brea records. (Id. at 33.)

This request goes to the heart of Plaintiff's class allegations, since Plaintiff alleges that the use of common systems across California means that all California call center employees must engage in the same pre-shift activities. BOA's relevancy objection is OVERRULED. (Id. at 58-59.)

All page citations are to the CM/ECF pagination.

Judge's Procedures, Honorable Karen E. Scott, ¶ 3, https://www.cacd.uscourts.gov/ honorable-karen-e-scott.