LEINANI DESLANDES, on behalf of herself and all others similarly situated, Plaintiff, v. McDONALD’S USA, LLC, a Delaware limited liability company; McDONALD’s CORP., a Delaware corporation; and DOES 1 through 10, inclusive, Defendants Case No. 1:17-cv-04857 United States District Court, N.D. Illinois, Eastern Division Filed July 17, 2019 Counsel Anne B. Shaver, Pro Hac Vice, Dean Michael Harvey, Pro Hac Vice, Yaman Salahi, Pro Hac Vice, Jeremy Joseph Daviaud Pilaar, Pro Hac Vice, Lin Yee Chan, Pro Hac Vice, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA, Michele Vercoski, Pro Hac Vice, Richard D. McCune, Jr., Pro Hac Vice, McCune Wright Arevalo, Ontario, CA, Michelle E. Conston, Pro Hac Vice, Scott+Scott Attorneys at Law LLP, New York, NY, Stephanie A. Hackett, Pro Hac Vice, Sean C. Russell, Pro Hac Vice, Walter W. Noss, Pro Hac Vice, Scott+Scott Attorneys at Law LLP, San Diego, CA, Leigh Michele Perica, Derek Yeats Brandt, McCune Wright Arevalo, LLP, Edwardsville, IL, for Plaintiff. David Jarrett Arp, Pro Hac Vice, Gibson Dunn & Crutcher LLP, Washington, DC, Matthew Cameron Parrott, Pro Hac Vice, Gibson, Dunn & Crutcher LLP, Irvine, CA, Rachel Susan Brass, Pro Hac Vice, Caeli A. Higney, Pro Hac Vice, Gibson, Dunn & Crutcher LLP, San Francisco, CA, Rachael Cecelia Brennan Blackburn, Robert M. Andalman, A & G Law LLC, Chicago, IL, for Defendants McDonald's USA, LLC, McDonald's Corporation. Richard N. Kessler, Micah Eric Marcus, McDonald Hopkins LLC, Chicago, IL, for Defendant ADP, Inc. Weisman, M. David, United States Magistrate Judge ORDER *1 Defendants McDonald’s USA, LLC and McDonald’s Corp. have filed a motion for a protective order [106] and a motion to compel [152]. For the reasons stated below, the Court (1) grants in part and denies in part Defendants’ motion for a protective order and (2) denies Defendants' motion to compel. Background Between 2009 and 2016, Plaintiff worked at a McDonald’s restaurant in Apopka, Florida, owned and operated by Bam-B Enterprises of Central Florida, Inc. (Dkt. 32 at ¶ 13.) Plaintiff sought a higher-paying position at a corporate-owned McDonald’s restaurant less than 15 miles away. (Id. at ¶¶ 66–67.) The McOpCo[1] restaurant was unable to consider Plaintiff for employment, however, unless the Bam-B franchise “released” her. (Id. at ¶ 68.) Bam-B denied Plaintiff’s request for release and she continued to work there until January 2016. Plaintiff sued McDonald’s in June 2017, challenging a non-solicitation provision in McDonald’s franchise agreement (“Paragraph 14”) that prohibited McOpCos and franchisee-owned McDonald’s restaurants from hiring each other’s employees.[2] (Dkt. 32 at ¶ 115.) Plaintiff brought the action on behalf of herself and a nationwide class of “[a]ll persons in the United States who are current or former employees and/or managers at all McDonald’s restaurants whether operated by McDonald’s itself or by a McDonald’s Franchisee.” (Id. at ¶ 117.) Alternatively, Plaintiff seeks to represent a class of “[a]ll persons in the State of Florida who are current or former employees and/or managers at all McDonald’s restaurants ....” (Id. at ¶ 118.) Discussion Rule 26(b)(1) instructs that 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, among other things, “the importance of the discovery in resolving issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” The Court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). In evaluating the appropriateness of a protective order, the court should balance “ ‘the likelihood of oppression or harassment compared to the value of the inquiry in generating important information.’ ” Dyson, Inc. v. Sharkninja Operating LLC, No. 1:14-cv-0779, 2016 WL 1613489, at *1 (N.D. Ill. Apr. 22, 2016). In cases where a plaintiff has not yet filed a motion for class certification, “discovery may be used to help determine whether the class can properly be certified, particularly with respect to the threshold requirements of ‘numerosity, common questions, and adequacy of representation.’ ” Miner v. Gov’t Payment Serv., Inc., No. 14-cv-7474, 2017 WL 3909508, at *3 (N.D. Ill. Sept. 5, 2017). Discovery “ ‘must be sufficiently broad to give the plaintiff a realistic opportunity to meet the requirements of class certification, but at the same time, a defendant should be protected from overly burdensome or irrelevant discovery.” Id. at *4. Plaintiff bears the burden of “ ‘showing that discovery is likely to produce substantiation of the class allegations.’ ” Id. Any limitations imposed on class discovery “lie within ‘the sound discretion of the court.’ ” Id. Defendant’s Motion for a Protective Order *2 Plaintiff seeks three categories of discovery: (1) employee data from Defendants’ Lawson database “sufficient to show ... dates of employment, positions held, and compensation earned” (Dkt. 136 at p. 2); (2) documents from approximately 167 additional custodians from across the country and all divisions of the company;[3] and (3) employment data from five payroll companies that McDonald’s franchisees may have used. Defendants challenge the scope of the requested discovery, arguing that broad, nationwide discovery is not proportional to the needs of the case. (Dkt. 107 at p. 9 (merely alleging a nationwide class “cannot justify nationwide discovery”).) The Court will address each category in turn below: Lawson Data: Defendants insist that Plaintiff’s Lawson data request for all employee data nationwide (millions of employees) would require over 600 hours of employee time to satisfy. (Id. at p. 6.) According to Defendants, they have already produced data for 55,000 Florida McOpCo employees (including payroll data) since 2013 and Plaintiff has not shown why additional data is necessary. (Id. at p. 11.) Defendants therefore request that the Court issue a protective order limiting discovery to “a reasonable and proportional cross-section of information for Florida employees and custodians.” (Id. at p. 13.) Plaintiff, on the other hand, argues that through her review of the Florida McOpCo documents (which included retaining a database expert), she learned Defendants have “grossly overstated the burden of producing Lawson data nationwide.” (Dkt. 136 at p. 3.) Moreover, production of nationwide Lawson data is “essential to [Plaintiff’s] ability to develop a nationwide impact and damages model.” (Id. at p. 10.) While the District Court noted that the “relevant market for employees to do the type of work alleged in this case is likely to cover a relatively-small geographic area,” national discovery has not yet been precluded. (Dkt. 53 at p. 16.) The same “no-solicitation” language was included in contracts nationwide and Plaintiff’s claims are national in scope. As such, Plaintiff may seek discovery that will prepare her to argue for class certification on a national level and evaluate the enforcement and effect of Defendants’ “no-solicitation” provision. That being noted, however, Plaintiff’s proposed discovery as to the Lawson data is not proportional to the needs of the case at this point. In light of the burdens identified by Defendants, the Court finds that sampling serves as an appropriate discovery method. See, e.g., In re Dealer Mgmt. Sys. Antitrust Litig., No. 18 C 864, 2018 WL 6047082, at *3 (N.D. Ill. Nov. 19, 2018) (ordering parties to meet and confer regarding sampling when it could “substantially reduce[ ]” the burden on Defendants); Quintana v. Claire's Boutiques, Inc., No. 5:13-CV-00368-PSG, 2014 WL 234219, at *2 (N.D. Cal. Jan. 21, 2014) (“In the specific context of class action discovery, sampling advances the goal of proportionality advanced under [the Federal Rules]”). As discussed on the record, the parties shall consult with their respective experts to identify three demographic regions (in addition to Florida) that are representative of the labor market nationwide.[4] After discussing a geographically diverse sampling with their experts, the parties shall meet and confer by July 19, 2019 to determine the appropriate sampling, with all subsequent meet and confers conducted by July 26, 2019. *3 Custodians: Defendants offered to search the files of 18 custodians – a “cross-section of current and former employees”[5] – and search “many non-custodial sources,” including “records of employment applications to McOpCo restaurants in Florida, and, for certain years, nationwide.” (Dkt. 107 at pp. 5, 10.) As Defendants argue, nationwide discovery of custodial documents “would consume hundreds, if not thousands, of hours of employees’ and attorneys’ time.” (Id. at p. 6.) Plaintiff, on the other hand, suggests that Defendants’ proposed sampling is deficient for three reasons: (1) the proffered data includes less than 3% of class members, (2) Defendants offer no support for the notion that Florida data/documents are representative of class members and restaurants nationwide, and (3) McDonald’s data and custodians are self-selected (rather than a random cross-section of national data and custodians). (Dkt. 136 at p. 9.) A reasonable sample of custodians nationwide (approximately 167) is necessary, according to Plaintiff, to show that the no-solicitation provision was enforced across the country, and there is no requirement that Plaintiff must first prove that she can certify a smaller class before pursing discovery on the class she has alleged. At this point in the litigation, Plaintiff is entitled to more custodians than Defendants propose, but far less than Plaintiff suggests. As with the Lawson data, the parties’ experts are in a better position than the Court to determine an appropriate sampling of custodians. The parties shall therefore consult with their respective experts to determine a method for selecting custodians (e.g., linking the custodians to the geographic regions selected for the Lawson data). The Court is hopeful that the above approach to the Lawson data and custodians will provide an adequate national sampling while limiting the burden on Defendants. If Plaintiff demonstrates a compelling need for broader discovery as the litigation progresses, the Court may consider expanding the scope of discovery as appropriate. Third-Party Subpoenas: Defendants also ask that the Court issue an order “relieving [five] third-party payroll companies from responding to Plaintiff’s subpoenas.” (Dkt. 107 at p. 15.) The subpoenas instruct each third-party payroll company to identify which franchises were their clients and produce fourteen kinds of employment data, including the franchisee employees’ names, home addresses, ages, genders, years of employment, hours logged, pay, leaves of absence, familiar status, and all other “ ‘regularly maintained personnel data as may be relevant to the claims and defenses in this case’ ” – for as many as a million franchisee employees, past and present, over a period of eight years. (Id. at pp. 6, 13.) According to Defendants, the requests violate the franchisee-employees’ privacy interests, because “wage, payroll, and time records reside ‘within the realm of the right to privacy.’ ” (Id. at p. 14.) Plaintiff must therefore demonstrate a “compelling need” for these requests, which she has failed to do. (Id.) Defendants also suggest that Plaintiff has not complied with state laws that protect these documents from production without notice to the employees. (Id.) Lastly, Defendants claim Plaintiff’s subpoenas are “onerous,” as they require the respondents to secure a large amount of confidential data, “notify[ ] and obtain[ ] consent from thousands of franchisees,” and review millions of employment records. (Id. at p. 15.) Plaintiff, on the other hand, argues that Defendants lack standing to object to the relevance and burden of the subpoenas. Moreover, as there is no live dispute between Plaintiff and the payroll companies (the companies have not moved to quash or for a protective order), Defendants’ burden arguments are “speculative and premature.” (Dkt. 136 at pp. 12–13.) Plaintiff also rejects Defendants’ argument regarding privacy, claiming Defendants have not explained why the protective order in place is “insufficient to protect class members who work for franchisees.” (Id. at p. 12.) To facilitate subpoena responses, Plaintiff asked that Defendants allow her to provide the payroll companies with 6,000 franchise legal entity names so that the companies could use this information to search for the requested data.[6] Defendants insist that Plaintiff cannot provide these legal entity names to the payroll companies, as internal policies require Defendants to maintain this information as confidential. *4 Generally, “a party does not have standing to quash a subpoena to a non-party.” Parker v. Four Seasons Hotels, Ltd., 291 F.R.D. 181, 187 (N.D. Ill. 2013) (“Relevance, burden or service objections fall to the subpoena’s recipient to make.”). Courts recognize a “personal right or privilege” exception and confer standing on a party asserting “work product or attorney-client privilege, interference with business relationships, or production of private information about the party that may be in the possession of a third party.” Id. Here, the “private information” at issue concerns Defendants’ franchisees and the franchisees’ employees, not Defendants themselves. And while Defendants argue that the subpoenas “require disclosure of sensitive business and personal information about franchisees and their employees for a nearly decade-long period,” they have not sufficiently established interference with business relationships. (Dkt. 107 at p. 13.) As such, Defendants lack standing to challenge the subpoenas to the payroll companies. As the parties have agreed to meet and confer regarding a protective order to resolve this issue, however, the Court denies this portion of the motion as premature. As discussed on the record, issues for the parties to consider include: (1) notice to the franchisees, (2) notice to the franchisees’ employees to the extent required, (3) whether the franchisee data should be linked to the sampling of geographic regions determined by the experts, and (4) whether the Court will review the notices provided (if any). Plaintiff shall send a draft protective order to Defendants by July 10, 2019 and Defendants shall respond to the proposed protective order by July 19, 2019. For the above reasons, the Court grants in part and denies in part Defendants’ motion for a protective order.[7] Defendants’ Motion to Compel Plaintiff withheld two documents from production on the basis of attorney-client privilege and work product protection. At her deposition, Plaintiff testified that she saw law firm McCune Wright Arevalo’s (“MWA”) advertisement on Facebook regarding McDonald’s wages, completed a questionnaire linked to the advertisement, and met with a MWA lawyer after she submitted the questionnaire. Following Plaintiff’s deposition, Defendants asked Plaintiff to produce the advertisement, questionnaire, and Plaintiff’s responses. Plaintiff produced the advertisement, the blank questionnaire, and a privilege log asserting attorney-client privilege and work product over two responses to the questionnaire. Attorney-Client Privilege: The two questionnaire responses at issue were received by attorneys and support staff at MWA, as well as Virginia Ochi, Director of Digital Marketing for ONE400. MWA had contracted ONE400 to perform website management and content distribution. (Dkt. 160 at p. 1.) According to Plaintiff, ONE400 “converted [Plaintiff’s two] intake form submissions into emails that were then sent to several MWA attorneys and staff members, along with Ms. Ochi.” (Id. at p. 3.) Plaintiff argues that Ms. Ochi was included on the emails “to ensure that potential client leads originating from the MWA website were appropriately accounted for and addressed.” (Id. at p. 4.) As MWA does not have an in-house staff to operate or manage its website, Plaintiff claims that ONE400’s services were necessary “for the rendering of legal advice.” (Id. at p. 11.) Plaintiff also notes that ONE400 “was subject to a strict confidentiality requirement for all ‘Client Information’ ... equivalent to those applicable to any other in-house non-attorney personnel at MWA.” (Id.) Although statements made to attorneys in the presence of third parties typically are not privileged, Plaintiff contends the responses are protected because Ms. Ochi is covered by the attorney-agent exception. The attorney-agent exception applies where a third party is “present to assist the attorney in rendering legal services.” Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007). The Seventh Circuit explained that the exception “applies both to agents of the attorney, such as paralegals, investigators, secretaries and members of the office staff responsible for transmitting messages between the attorney and client, and to outside experts engaged ‘to assist the attorney in providing legal services to the client,’ such as accountants, interpreters or polygraph examiners.” Id. at 491. While Defendants argue that the attorney-agent exception is not applicable here because “advertising agencies or digital marketers” are excluded from Jenkins’ list of covered agents, Plaintiff stresses that the list is “non-exhaustive and ‘flexible.’ ” (Dkt. 151 at p. 10; Dkt. 160 at p. 10) (citing Rao v. Bd. of Trs. of the Univ. of Ill., No. 14-CV-0066, 2016 WL 6124436, at *3 (N.D. Ill. Oct. 20, 2016)).) *5 Even if the attorney-agent exception applies, the privilege only protects communications that were intended to be confidential. Thus, Plaintiff must prove that 1) confidentiality was expected and 2) that she was “ ‘reasonably careful’ ” to protect confidential information from disclosure. Acosta v. Target Corp., 281 F.R.D. 314, 322 (N.D. Ill. 2012). Defendants argue that because Plaintiff demonstrated no intention to keep the communications at issue confidential, the attorney-client privilege does not apply. According to Defendants, the questionnaire responses amount to “generalized requests for contact” used to determine the viability of Plaintiff’s claim. (Dkt. 151 at p. 12.) Defendants also point to a footer on MWA’s website that states it “is not intended to create ... an attorney-client relationship.” (Id. at p. 13.) In response, Plaintiff asserts that she completed the online questionnaire to seek legal advice, and thus the attorney-client privilege presumptively applies. (Dkt. 160 at p. 7.) Courts in this district have generally found that these types of submissions to law firms are privileged if the person completing the questionnaire sought legal advice. In E.E.O.C. v. Scrub, Inc., No. 09 C 4228, 2010 WL 2136807 (N.D. Ill. May 25, 2010), for example, the Court held that completed questionnaires were protected from disclosure: “Where the questionnaires are completed by persons seeking legal representation, the privilege extends.” Id. at *9. In Vodak v. City of Chi., No. 03 C 2463, 2004 WL 783051 (N.D. Ill. Jan. 16, 2004), National Lawyers Guild attorneys organized a meeting to “ ‘provide legal information and legal representation if desired, to those people who were arrested or detained’ ” following a protest. Id. at *1. At the meeting, attorneys distributed a form questionnaire, requesting that only those who were “seeking legal representation or specific advice” complete the form. Id. The Court held that these intake questionnaires were protected because the privilege “covers communications where ‘legal advice of any kind is sought’ and is not dependent upon the initiation or contemplation of litigation.” Id. at *4. Here, as Plaintiff sought legal guidance through the questionnaire, attorney-client privilege attaches to protect the communication. The absence of a formal attorney-client relationship does not preclude the application of privilege. See, e.g., Lucas v. Gold Standard Baking, Inc., No. 13 CV 1524, 2017 WL 1436863, at *2 (N.D. Ill. Apr. 24, 2017) (noting that “an attorney-client privilege may attach even if there is no ‘formal’ or ‘express’ attorney-client relationship”). Deciding whether privilege applies “ ‘hinges upon the client’s belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice.’ ” Id. Plaintiff testified that she knew her submissions would be provided to a lawyer and that she completed the questionnaire “to get legal advice about [her] rights as a former McDonald’s employee.” (Dkt. 160 at p. 3; Dkt. 164 at p. 2.) Defendants have not shown that Plaintiff was aware that Ms. Ochi or anyone other than MWA would see her submission. (Dkt. 160 at p. 13.) In any event, the attorney-agent exception extends to cover One400/Ms. Ochi’s participation in the submission. Taking Plaintiff’s characterization of Ms. Ochi’s role as true – that she served a “contractual technical support function” – there is little difference between her role in this instance and that of an in-house IT employee tasked with operating a law firm’s website. (Dkt. 160 at p. 10.) As Ms. Ochi was “responsible for transmitting messages between the attorney and client,” her involvement falls within the spirit of the attorney-agent exception. Jenkins v. Bartlett, 487 F.3d 482, 491 (7th Cir. 2007). Thus, the attorney-client privilege protects the questionnaire responses from disclosure.[8] *6 Defendants’ motion to compel is therefore denied. Conclusion For the reasons stated above, the Court grants in part and denies in part Defendants’ motion for a protective order [106] and denies Defendants’ motion to compel [152]. SO ORDERED. Footnotes [1] “McOpCo” refers to corporate-owned as opposed to franchisee-owned McDonald’s restaurants. McDonald’s owns and operates approximately 1,000 McOpCos in over 35 states. (Dkt. 136 at p. 2.) The remainder of McDonald’s restaurants in the U.S. are operated by independently-owned franchisees, totaling about 12,600 stores. (Id. at p. 3.) [2] Defendants allegedly stopped including the no-hire provision in new franchise agreements at some point in 2017. [3] Plaintiff filed a Notice of Errata/Clarification confirming that she seeks documents from approximately 156 “Regional Custodians” and 11 “Central Custodians.” (Dkt. 170.) [4] These demographic regions may include more than one state or a variety of metropolitan areas, based on the experts’ insights on appropriate sampling. [5] Fifteen would be from Florida and other states and three would be from McDonald’s national headquarters, using 259 negotiated search strings. (Dkt. 107 at p. 5.) [6] Defendants produced a spreadsheet identifying the legal names of the franchisees, but designated it confidential. (Id. at p. 3.) [7] As discussed on the record, counsel for subpoena respondent, ADP, Inc., reserves ADP’s rights with respect to the subpoena pending resolution of the dispute. [8] As attorney-client privilege applies, the Court will not address whether the documents are also protected under the work product doctrine.