Markson v. CRST Int'l, Inc.
Markson v. CRST Int'l, Inc.
2019 WL 7905896 (C.D. Cal. 2019)
December 16, 2019
Pym, Sheri, United States Magistrate Judge
Summary
The court granted the plaintiffs' motion to compel the defendants to comply with an ESI Order. The court ordered the defendants to run searches on all search terms initially proposed by defendants and agreed to by plaintiffs, and to meet and confer with plaintiffs about any disputes regarding the modifications and additions proposed by plaintiffs to the search terms. The defendants must also provide plaintiffs with a written explanation of the issues, a hit report, and description of the irrelevant documents returned by the disputed term(s).
Additional Decisions
Curtis Markson, et al.
v.
CRST International, Inc., et al.
v.
CRST International, Inc., et al.
Case No. ED CV 17-1261-FMO (SPx)
United States District Court, C.D. California
Filed December 16, 2019
Counsel
William J. Gorham, III, Mayall Hurley PC, Stockton, CA, Craig J. Ackermann, Ackermann and Tilajef PC, Jonathan Melmed, Melmed Law Group PC, Krysta Kauble Pachman, Marc M. Seltzer, Steven G. Sklaver, Susman Godfrey LLP, Los Angeles, CA, Ian M. Gore, Pro Hac Vice, Matthew R. Berry, Pro Hac Vice, Susman Godfrey LLP, Seattle, WA, Nicholas J. Scardigli, Robert J. Wasserman, Vladimir J. Kozina, Mayall Hurley PC, Stockon, CA, for Curtis Markson, et al.Charles Andrewscavage, Pro Hac Vice, Scopelitis Garvin Light Hanson and Feary PC, Amy B. Manning, Pro Hac Vice, Jason L. Chrestionson, Pro Hac Vice, McGuireWoods LLP, Chicago, IL, James V. Dick, Pro Hac Vice, Jeetander T. Dulani, Pro Hac Vice, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC, James H. Hanson, Pro Hac Vice, R. Jay Taylor, Jr., Pro Hac Vice, Scopelitis Garvin Light Hanson and Feary PC, Indianapolis, IN, Christopher Chad McNatt, Jr., Megan Emslie Ross, Scopelitis Garvin Light Hanson and Feary LLP, Pasadena, CA, Drew R. Hansen, J. Randall Boyer, Roy Z. Silva, Seth M. Goldstein, Nossaman LLP, Irvine, CA, Jeff T. Olsen, Richard D. Marca, Varner and Brandt LLP, Riverside, CA, Ashley Dorris Egerer, Jessica Farley, Snyder Burnett Egerer LLP, Santa Barbara, CA, Christopher J. Merrick, Pro Hac Vice, Timothy L. Frey, Pro Hac Vice, Keenan Cohen and Merrick PC, Ardmore, PA, Johnny B. Justus, McGuireWoods LLP, Nicholas J. Giles, Pro Hac Vice, McGuireWoods LLP, Richmond, VA, Matthew Charles Kane, McGuireWoods LLP, Los Angeles, CA, for CRST International, Inc., et al
Pym, Sheri, United States Magistrate Judge
Proceedings: (In Chambers) Order Granting Plaintiffs' Motion to Compel in Large Part and Directing Further Meet and Confer in Compliance with ESI Order [186]
I. INTRODUCTION
*1 Plaintiffs Curtis Markson, Mark McGeorge, Clois McClendon, and Eric Clark bring this putative class action against defendants CRST International, Inc., CRST Expedited, Inc., C.R. England, Inc., Western Express, Inc., Schneider National Carriers, Inc., and Southern Refrigerated Transport, Inc. Defendants are trucking companies that have allegedly conspired to restrain competition to suppress their workers' wages and reduce opportunities for career advancement. On August 6, 2019, after more than two years of litigation, the court entered a Stipulated Order Regarding Discovery of Electronically Stored Information (“ESI Order”).
On October 23, 2019, plaintiffs filed a motion to compel defendants' compliance with the ESI Order. Docket no. 186. Plaintiffs' arguments are supported by the declaration of plaintiffs' counsel Ian Gore (“Gore Decl.”) and exhibits thereto. Plaintiffs filed a notice of partial withdrawal of the motion as to defendants CRST International, CRST Expedited, and Schneider National Carriers on November 7, 2019. Plaintiffs filed an additional notice of partial withdrawal of the motion as to defendant C.R. England on November 11, 2019.
On November 12, 2019, defendant Western Express filed its opposition to plaintiffs' motion to compel (“Western Opp.”). Docket no. 193. On the same day, defendant Southern Refrigerated Transport filed its opposition (“Southern Opp.”). Docket no. 194. Defendant Southern's opposition is supported by the declaration of defense counsel Jessica Farley (“Farley Decl.”). On November 26, 2019, plaintiffs filed their reply (“Reply”) supported by the declaration of plaintiffs' counsel Krysta Pachman (“Pachman Decl.”) and additional exhibits. Docket no. 196.
The parties appeared before the court for a hearing on December 10, 2019. Based on the papers filed and the arguments advanced at the hearing, the court now grants plaintiffs' motion to compel in large part, and orders further meet and confer in compliance with this order and the ESI Order.
II. BACKGROUND[1]
Plaintiffs are truck drivers who were formerly employed by defendants, and who now bring this proposed class action on behalf of themselves and all others similarly situated. Plaintiffs allege defendants restrained competition to the detriment of their drivers by using a “no-poaching” hiring policy for drivers, and engaging in business practices that kept drivers in unfavorable employment agreements. Plaintiffs allege violations of the Sherman Antitrust Act, 15 U.S.C. § 1, and various state law claims.
A. The ESI Order
On August 6, 2019, the court entered the stipulated ESI Order, which “represents the parties' agreement on technical and other specifications that will apply to ESI discovery in this matter.” ESI Order at 2. Although the parties reference various sections of the ESI Order in their filings in support of and opposition to the instant motion to compel, the bulk of their dispute centers on Section 5, which governs the use of search terms and how disputes about the search terms to be used should be resolved. The relevant portions of the ESI Order are as follows.
*2 Section 5 provides a protocol on the use of search terms, and states that “the parties acknowledge that developing a final list of agreed search terms will be an iterative process, including evaluation of search terms proposed by both the responding and requesting parties.” Id. at 5. This section also states that “the agreement to use a certain search term does not negate a party's ability to review the documents for responsiveness to the document requests; the fact that a search term is present in a document does not automatically render that document responsive.” Id.
Section 5.1 governs proposed search terms, and states that a responding party intending to use search terms to run against the collected ESI data must provide a list of proposed search terms to the requesting party. Id. The requesting party may then propose modifications to the proposed search terms, and propose additional terms. Id. The parties shall then engage in meet and confers, with the first occurring within ten days of receiving the requesting party's proposed modifications. Id. The parties must discuss the proposed search terms and modifications, and attempt to reach an agreement. Id.
Section 5.2 governs disputes. Id. at 5-6. If the responding party contends that a search term or a proposed modification would raise issues of privilege, relevance, overbreadth, or undue burden or costs, the responding party must provide the following to the requesting party “at least 24 hours prior to a meet and confer intended to discuss that term”: (1) a written explanation of the issues with the term or modification; (2) a “hit report” showing the aggregate hits for each disputed proposed term, the number of unique hits for each disputed term, and the total number of documents returned by the terms that the parties have already agreed to; and (3) a description of the types of irrelevant documents that the disputed term is returning. Id. Section 5.2 also provides that if the parties are unable to resolve their disputes after meeting and conferring in good faith, the requesting party may request that random sampling be done, and if agreement cannot be reached about sampling, file a motion with the court. Id. at 6. If the parties engage in the entire process outlined above but still cannot reach agreement about search terms, the responding party may file a motion for a protective order. Id.
Section 5.3 governs changes to search terms once they are finalized and searches for a custodian are complete. Id. at 7. The requesting party may propose additional search terms, but the responding party is not obligated to re-search the custodian's electronic data without agreement or a court order. Id. The requesting party must show good cause for any additional proposed search terms. Id.
B. The Parties' Discussions and Contentions
Defendants – here, the responding party – provided a list of proposed search terms to plaintiffs on September 20, 2019. Gore Decl., Ex. A at 8-9. Plaintiffs provided their proposed modifications and additional terms to defendants on September 26, 2019. Id. at 8. Defendants responded to these proposals on October 3, 2019 with a joint email and chart tentatively agreeing to some of the changes, and raising various objections, such as that the new or modified terms were overbroad. Gore Decl. ¶ 3, Ex. B.
On October 4, 2019, plaintiffs responded by stating that defendants failed to comply with the ESI Order because they had not initiated a meet and confer with plaintiffs. Id., Ex. A at 6-7. Plaintiffs also stated that defendants are required to provide a written explanation of the issue with each new term or modification, a hit report, and a description of the irrelevant documents produced by the new searches 24 hours before a meet and confer, and disagreed with defendants' stance that a term, once agreed upon, can be later modified or refined. Id. In a follow-up email later that day, plaintiffs requested a meet and confer per Local Rule 37-1, but did not attach a letter or further explanation of the issues supported by legal authority. Id. at 6.
*3 On October 7, 2019, defendants responded to plaintiffs' emails by stating that the discussion between the parties had not yet risen to the level of a “dispute.” Id. at 5. According to defendants, the ESI Order contemplates an iterative process with multiple meet and confers, and the requirements governing the resolution of a dispute, such as a written explanation of the issues identified by defendants, a hit report, and a description of the irrelevant documents produced by the searches, did not apply yet. Id. Defendants also stated that to the extent plaintiffs wished to invoke Local Rule 37-1, defendants had not yet received a letter identifying “each issue and/or discovery request in dispute” supported by legal authority and specifying the terms of the discovery order sought. Id.
On October 8, 2019, plaintiffs responded by disputing defendants' stance that defendants could reserve the right to modify or refine the search terms that they proposed, and that defendants should have run hit reports before providing their proposed terms to plaintiffs. Id. at 4. Plaintiffs also argued the parties were, in fact, in a dispute because plaintiffs proposed alternative and additional search terms, and defendants had not yet agreed to them. Id. Plaintiffs further argued they complied with Local Rule 37-1 because their October 4 email satisfied the Rule's requirements, and again stated that a meet and confer was also required under the ESI Order. Id.
Defendants responded on October 10, 2019, arguing the ESI Order does not obligate defendants to run hit reports before proposing search terms, and stating that defendants are working in good faith to collect and process their ESI as quickly as possible. Id. at 2-3. Defendants then withdrew their objections to plaintiffs' proposed modifications and additional search terms, stating this meant that “there are currently no disputed terms that are ripe for discussion under the ESI protocol.” Id. at 3. As for plaintiffs' requests to meet and confer, defendants contended there was no ripe dispute and in any event, plaintiffs had not yet sent a qualifying letter requesting a meet and confer under Local Rule 37-1. Id. The parties continued to exchange emails until October 14, 2019 reiterating the same arguments. Id. at 1-2.
At this juncture, the parties have made some progress in gathering ESI documents and have begun the process of agreeing on relevant search terms, but dispute what their obligations are under the ESI Order, and indeed, whether a dispute even exists as defined by the ESI Order. Plaintiffs contend defendants Western Express and Southern Refrigerated Transport have provided no explanation for their contention that they may later modify search terms that they proposed, and have failed to meet and confer as required by the ESI Order and Local Rule 37-1. Mtn. at 8-10; Reply at 2-6. Plaintiffs argue defendant Western has consistently failed to meet deadlines and comply with the Local Rules. Reply at 5. As for defendant Southern, plaintiffs argue Southern's argument that plaintiffs failed to send a proper meet and confer letter is meritless. Id. Plaintiffs note that they met and conferred with defendant Southern on November 1, 2019, but also simultaneously argue that Southern “unilaterally refuse[d] to meet and confer under Local Rule 37.1 and also refuse[d] to participate in the joint stipulation process.” Id. at 6; Pachman Decl. ¶ 8, Ex. F. When pressed at the hearing, it became clear that plaintiffs have refused to meet and confer with defendant Southern until Southern provides a hit list.
Defendant Western Express argues it is complying with the spirit of the ESI Order because after receiving plaintiffs' proposals, it is still evaluating whether the search terms would be overburdensome or generate irrelevant, overbroad, or privileged search results. Western Opp. at 4. Defendant Western also argues plaintiffs' motion is premature because there are no deadlines that the parties have flouted, and the fact that the motion has been dismissed as to three of the other defendants, who were able to produce hit reports, should not be used as a benchmark to evaluate Western's compliance. Id. at 4-6. According to defendant Western, the difference between various defendants' abilities to provide hit reports are reflective of differences in company size, resources, and ESI systems – not whether they are acting in good faith. Id. at 7. Defendant Western contends counsel for the parties spoke on November 4, 2019, and that Western stated it was in the process of readying its ESI data with third-parties and hoped to be able to produce a hit report within a few weeks, but does not provide a supporting declaration from defense counsel. Id. at 6. At the hearing, defendant Western reported it is still “fixing bugs” to avoid excessive hits when it runs search terms, and states it will likely be two more weeks before it can obtain a hit report.
*4 At the hearing, defendant Southern Refrigerated Transport reported it is even farther behind than defendant Western, as Southern is still looking for an affordable vendor that can run searches in its system, and will need until the end of the month just to achieve this step. Defendant Southern argues it is in full compliance with the ESI Order, and that it has timely collected its ESI data, proposed search terms to plaintiffs, and met and conferred with plaintiffs. Southern Opp. at 3. Defendant Southern contends the ESI Order only requires a hit report for “disputed terms,” and that section of the Order is not yet applicable because the parties were undergoing the meet and confer process when plaintiffs, according to Southern, unilaterally retreated and filed the instant motion. Id. at 4. Defendant Southern also contends plaintiffs did not properly request a meet and confer per Local Rule 37-1 because plaintiffs never provided a letter specifying the terms of the discovery order plaintiffs would be seeking. Id. at 5. Additionally, counsel for defendant Southern states in her declaration that she met and conferred with plaintiffs' counsel on or about November 1, 2019. Farley Decl. ¶ 4.
Under the August 5, 2019 Scheduling Order, the cut-off for class certification discovery is September 18, 2020. This was the discovery cut-off proposed in the parties' Joint Rule 26(f) Report filed on June 10, 2019. In that same joint report, the parties also proposed an October 18, 2019 deadline for substantial completion of employee data production, and a February 17, 2020 deadline for the substantial completion of document production. Neither of these latter deadlines were ordered by the court.
III. DISCUSSION
As an initial matter, there is some dispute as to whether plaintiffs properly complied with Local Rule 37-1 before bringing this motion. This question is wrapped up in the dispute about what the ESI Order requires, since whether this motion is premature, or whether a more detailed letter from plaintiff was needed, depends in large part on whether defendants complied with the ESI Order's meet and confer process. While a more detailed letter under Local Rule 37-1, as opposed to plaintiffs' emails, may have helped, given the issue in this case and the governing ESI Order, the court finds this dispute is ripe for decision. Indeed, it appears the parties will have trouble moving forward if they cannot agree on what the ESI Order requires.
Turning to the primary substantive dispute, plaintiffs seek an order compelling defendants to comply with the ESI Order, as plaintiffs interpret it. Defendants Western and Southern argue they are in compliance with the ESI Order, as they interpret it.
Defendants maintain that sections 5.1 and 5.2 set forth a two-step process, namely, that the parties must first meet and confer under section 5.1 to attempt to reach agreement on proposed search terms, and that if a dispute remains after fully completing that process, then they must follow the process for disputes under section 5.2, including providing a hit report. Plaintiffs maintain that the sections should be read together, with section 5.2 containing specific requirements for the meet and confers required by section 5.1. After studying the ESI Order, the court agrees with plaintiffs.
Section 5.1 provides that, after the responding party first proposes search terms and the requesting party then responds with proposed modifications and additions, the parties “shall then engage in meet and confers, with the first occurring within ten days of receiving the requesting party's proposed modifications.” Section 5.2 provides that if the responding party takes issue with a modification proposed by the requesting party, the responding party must provide the requesting party with an explanation of the issues, a hit report, and a description of the irrelevant documents being returned by the term “at least 24 hours prior to a meet and confer intended to discuss the term.” The reference to “a meet and confer intended to discuss the term” is fairly read to refer to the meet and confers required by section 5.1. Indeed, the specific process required by section 5.2 is plainly intended to help the parties meet and confer in a meaningful fashion so that they may attempt to reach agreement as required in section 5.1. It would make little sense to require the parties to engage in a lengthy meet and confer process without the benefit of even an explanation of the issues as required in section 5.2. In short, while the parties may not have had the same things in mind when they stipulated to the ESI Order, the only logical reading of the ESI Order according to its plain terms is that section 5.2 specifies what is required for the meet and confers required in section 5.1.
*5 Accordingly, plaintiffs have been well justified in demanding a hit report prior to meeting and conferring about the disputed terms. Further, terms may indeed be in dispute so as to trigger section 5.2's specific meet and confer requirements prior to the parties' actually engaging in their first meet and confer.
Defendant Western maintains it is still trying to determine whether it disputes any of the proposed search terms, and therefore it is in compliance with the spirit of the ESI Order. But this is inconsistent with the timing specified in the order. Section 5.1 requires that the parties first meet and confer within ten days of the requesting party submitting proposed modifications to the search terms. Since plaintiffs provided their proposed modifications and additions on September 26, the parties should have met and conferred no later than October 6 – with defendants having provided an explanation of their issues with the proposed modifications and a hit report no later than October 5, under section 5.2. As such, the ESI Order essentially requires the responding party to determine which terms it disputes within nine days of the requesting party submitting its proposal. Defendants partially met this deadline with their October 3 email, but that email did not satisfy all the requirements of section 5.2.
This is not to say that there cannot be any flexibility under the ESI Order. To the extent a party belatedly realizes a problem with a search term, they should be able to revisit that term in their meet and confer efforts. But this should be the exception rather than the rule. The parties need to reach a final agreement as to the search terms, and plaintiffs are right to argue that defendants should not be permitted to endlessly relitigate search terms.
As things currently stand, however, more than two months have passed since plaintiffs proposed modifications and additions to the search terms proposed by defendants, and plaintiffs have yet to meaningfully meet and confer about these terms with defendants Western and Southern. This is in part due to the difficulties these defendants have encountered in trying to run searches, as they discussed at the hearing. The court appreciates these technical challenges and the expense involved, but defendants have known since at least early August, when the ESI Order was entered, that they were going to need to conduct these searches. That defendant Southern, in particular, is still looking for a vendor is difficult to understand, and near impossible to justify given Southern's stipulation to the ESI Order.
The court will largely grant the instant motion, but will also grant defendants some slight leeway to resolve their technical problems before they must engage in the meet and confer, as well as begin production in accordance with agreed upon terms. Specifically, the court will grant defendants another two weeks to begin the process. If defendants are unable to comply with these deadlines as set forth below, and unable to reach agreement with plaintiffs on an extension, they must contact the court to schedule a telephonic conference with the Magistrate Judge.
IV. CONCLUSION
Based on the foregoing, plaintiffs' Motion to Compel (docket no. 186) is GRANTED in large part as follows:
1. On or before December 30, 2019, defendants Western Express and Southern Refrigerated Transport shall run searches on all search terms initially proposed by defendants and agreed to by plaintiffs, and begin reviewing those documents for responsiveness and privilege.
*6 2. On or before December 30, 2019, defendants Western Express and Southern Refrigerated Transport shall contact plaintiffs to schedule a date to meet and confer with plaintiffs in accordance with the ESI Order about any disputes regarding the modifications and additions proposed by plaintiffs to the search terms, with such meet and confer to be held not later than January 10, 2020. No less than 24 hours prior to the scheduled meet and confer, defendants shall provide plaintiffs with a written explanation of the issues, a hit report, and description of the irrelevant documents returned by the disputed term(s), as specified in section 5.2 of the ESI Order.
Footnotes
The court draws the information in this section from the Third Amended Complaint (docket no. 55).