Uschold v. Carriage Servs., Inc.
Uschold v. Carriage Servs., Inc.
2019 WL 8298261 (N.D. Cal. 2019)
January 22, 2019
LaPorte, Elizabeth D., United States Magistrate Judge
Summary
The court quashed Topics 12 and 14 regarding ESI as they were overly broad and unduly burdensome. The court also noted that work product protection is not limited to materials prepared by an attorney. Additionally, the court limited Topic 21 to CSI's corporate relationship and/or ownership of the Richmond, California location where Plaintiffs were employed.
Additional Decisions
WILLIAM USCHOLD, et al., Plaintiffs,
v.
CARRIAGE SERVICES, INC., Defendant
v.
CARRIAGE SERVICES, INC., Defendant
Case No. 17-cv-04424-JSW (EDL)
United States District Court, N.D. California
Filed January 22, 2019
Counsel
Na'il Benjamin, Benjamin Law Group, P.C., Hayward, CA, for Plaintiffs.Amir M. Nassihi, Andrew L. Chang, Jason Matthew Richardson, Shook Hardy & Bacon Shook Hardy & Bacon, San Francisco, CA, Kristen Aggeler Page, Pro Hac Vice, Shook, Hardy and Bacon LLP, Kansas City, MO, for Defendant.
LaPorte, Elizabeth D., United States Magistrate Judge
ORDER ON DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND ORDER QUASHING PLAINTIFFS’ RULE 30(B)(6) DEPOSITION NOTICE
*1 On January 14, 2019, Defendant Carriage Services, Inc. (“CSI”) filed a discovery dispute letter seeking a protective order and an order quashing Plaintiffs’ Rule 30(b)(6) deposition notice of CSI. Plaintiffs filed their response on January 15, 2019. This is a putative class action alleging that Defendant failed to reimburse Plaintiffs for business expenses they incurred while working for Defendant and violated the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.
I. DISCUSSION
The parties and the Court are well informed of Plaintiffs’ allegations against CSI, so the Court need not summarize them here. However, a brief discussion of the background of this dispute is necessary. On January 3, 2019, CSI received Plaintiffs’ Rule 30(b)(6) deposition notice, after Plaintiffs first notified CSI by email on December 18, 2018 of the main topics it intended to pursue in the deposition. Ex. A. The next day, on January 4, 2019, Plaintiffs noticed six depositions of former and current CSI employees, for both before and after the noticed date for the Rule 30(b)(6) deposition. CSI provided written objections to the Rule 30(b)(6) notice on January 9, 2019. Ex. B. The parties met and conferred by phone and in person on January 11, 2019. During the meet and confer, Plaintiffs agreed to revise some topics and CSI asked Plaintiffs to provide a re-drafted notice by the next business day. CSI rejected Plaintiffs’ request that they proceed with the Rule 30(b)(6) notice on the topics they could agree on and reserve the remaining issues for a supplemental deposition after obtaining a ruling from the Court. In lieu of providing a re-drafted notice on the remaining disputed topics, Plaintiffs’ counsel informed CSI that he could provide his portion of a joint discovery letter by the end of the day on January 15, 2019 and asked CSI to limit the letter to only those issues that remained in dispute after their meet and confer. Ex. C. Rather than give Plaintiffs time to participate in the drafting of a joint letter, CSI unilaterally filed its discovery letter on January 14, 2019.
At the outset, the Court observes that the parties’ failure, once again, to comply with the joint discovery letter process makes a ruling on the dispute needlessly more difficult. The Court admonishes both sides not to abuse this process henceforth. Nonetheless, the parties have each submitted their positions, the Court rules based on those papers, and Plaintiffs’ request for sanctions against CSI is denied.
CSI’s first request is for an order requiring Plaintiffs to confirm that the topics are limited to the class period and CSI’s California locations and employees. CSI also indicates that Plaintiffs agreed to limit the scope of discovery to California employees with job duties that are identical to Plaintiffs’. Plaintiffs’ letter merely states that they discussed agreements about limiting the Rule 30(b)(6) topics to the class period and CSI’s California locations and employees, but Plaintiffs did not confirm that an agreement was reached on those issues, much less identical job duties. If the parties reached agreements on certain limitations to Plaintiffs’ requests, then Plaintiffs shall confirm those agreements in writing and re-draft the deposition notice accordingly so that the parties are clear about the scope of the topics and CSI can properly prepare its designated witness(es). In any case, discovery should be limited at the very least to the class period and CSI’s California locations and employees.
*2 CSI also asks the Court to limit the Rule 30(b)(6) deposition to 10 topics, arguing that the noticed 22 topics are excessive considering CSI’s position that this is a simple case and that the case should be limited to the single site where the named Plaintiffs worked (Richmond, California). CSI contends that it cannot adequately prepare its designated witness(es) with so many topics at issue.
Plaintiffs’ Corrected Second Amended Complaint (“CSAC”) includes the following class definition:
All former and current employees (“Class Members”) employed by Defendants within the State of California within four years of the filing of this Complaint until the entry of judgment after trial, that were not reimbursed for reasonable and necessary business costs incurred in relationship to the use of personal property in executing as required by California law.
CSAC, ¶ 20. The CSAC sets forth four subclasses comprised of (1) Class Members who were not reimbursed for use of their personal cell phones; (2) Class Members who were not reimbursed for use of their personal vehicles; (3) Class Members who were not reimbursed for use of their “personal goods and services,” such as their home internet services; and (4) Class Members who were not reimbursed for use of their personal residences. Id.
CSI does not dispute that some degree of class discovery is appropriate for this case pre-certification but contends that class discovery of all of its California worksites and California-based employees is overbroad. CSI notes that it has hundreds of employees based in dozens of California locations. Whether this class-based discovery should be permitted before certification is within the discretion of the court, and the exercise of that discretion is guided by “the need for discovery, the time required, and the probability of discovery providing necessary factual information.” Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977). It is an abuse of discretion to deny discovery where it is necessary to determine the existence of a class or set of subclasses. See Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975). The Ninth Circuit has explained that this is why “[t]he better and more advisable practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to whether a class action [is] maintainable.” Doninger, 564 F.2d at 1313. “Although in some cases a district court should allow discovery to aid the determination of whether a class action is maintainable, the plaintiff bears the burden of advancing a prima facie showing that the class action requirements of Fed. R. Civ. P. 23 are satisfied or that discovery is likely to produce substantiation of the class allegations.” Mantolete v. Bolger, 767 F.2d 1416, 1425 (9th Cir. 1985); see also Artis v. Deere & Co., 276 F.R.D. 348, 351 (N.D. Cal. 2011) (“discovery is likely warranted where it will resolve factual issues necessary for the determination of whether the action may be maintained as a class action, such as whether a class or set of subclasses exist”).
The named Plaintiffs are all alleged to have worked out of CSI’s Richmond, California office. Therefore, Plaintiffs may perhaps need discovery into CSI’s policies and practices in other California-based locations to determine whether it can maintain a state-wide class or subclasses. However, CSI represents that Plaintiffs have acknowledged that CSI has or had a written policy to reimburse expenses and that their specific unit in the Richmond office was unique in not following that reimbursement policy. Plaintiffs have offered no justification for discovery regarding all of CSI’s California locations and the only evidence before the Court suggests that CSI had a reimbursement policy and that Plaintiffs’ Richmond management was unique in not following it. Thus, Plaintiffs have not established that all of CSI’s California-based employees are similarly situated with respect to expense reimbursement or that broad class discovery regarding all of CSI’s California locations is likely to produce substantiation of the class allegations as required under Mantolete. Accordingly, the Rule 30(b)(6) deposition is limited to topics regarding CSI’s Richmond, California location, without prejudice to Plaintiffs obtaining leave to take broader discovery if they can support the discovery under the standard set forth in Mantolete.
*3 Next, CSI challenges all of the notice’s topics, with the exception of Topic 11 which seeks “[k]nowledge regarding the payment of any and all expense reimbursements made to WILLIAM USCHOLD, JOSE ALMENDAREZ, TIANA NAPLES, and TON SAECHAO.” Due to the nature of the Rule 30(b)(6) deposition and the need for the corporate defendant to designate and prepare witnesses on topics for which they might have no personal knowledge, the party noticing the depositions must provide fair warning to the other side of the issues on which it seeks testimony. See Sprint Commc’ns Co., L.P. v. Theglobe.com, Inc., 236 F.R.D. 524, 528 (D. Kan. 2006) (“[T]o allow the Rule to effectively function, the requesting party must take care to designate, with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute.”).
The Court addresses CSI’s objections by grouping the Topics by issue:
• Category One: CSI’s Defenses
Topic 1: “Defendant CARRIAGE’S affirmative defenses in this case as it relates to all Plaintiffs and employees employed in similar positions during the class period.”
Topic 19: “All waivers and releases of claims obtained from former and current employees that Defendant contends are excluded from class damages”
CSI objects to Topic 1 (affirmative defenses) as failing to describe the sought-after testimony with particularity, not seeking facts, and invading attorney-client privilege and work product protection. See Nycomed U.S. Inc. v. Glenmark Generics Ltd., 2009 WL 3463912, at *1 (E.D.N.Y. Oct. 21, 2009) (concluding that a Rule 30(b)(6) notice seeking testimony about the factual underpinnings of a party’s “legal claims and defenses” constituted “thinly disguised efforts to have representatives of Nycomed elaborate on its legal theories of the case,” which is better accomplished through contention interrogatories). The “[q]uestioning of a corporate representative ... about the facts underlying allegations in pleadings may present a particular problem verging on taking the deposition of counsel” because “[o]ften the grounds for such allegations are best (or only) known to counsel.” Wright & Miller, Fed. Prac. & Proc. § 2102. The Court quashes Topic 1.
CSI objects to Topic 19 (waivers and releases) to the extent that it seeks to obtain privileged or work-product protected material. CSI has agreed to produce a witness on the issue of waivers and releases of claims if a protective order is in place. The Rule 30(b)(6) deponent may not provide testimony on Topic 19 regarding privileged or otherwise protected information, but subject to that limitation, the topic is proper.
• Category Two: CSI’s Discovery Responses
Topic 2: “CARRIAGE’S actions; including search efforts, interviews, electronic searches, searches of back up tapes, and all other steps taken to comply with its obligations in response to Plaintiffs’ requests for Production of Documents”
Topic 3: “CARRIAGE’S actions; including search efforts, interviews, electronic searches, searches of back up tapes, and all other steps taken to comply with its obligations in response to Plaintiffs’ Special Interrogatories”
Topic 4: “CARRIAGE’S actions; including search efforts, interviews, electronic searches, searches of back up tapes, and all other steps taken to comply with its obligations in response to Plaintiffs’ deposition notice of CARRIAGE pursuant to FRCP Rule 30(b)(6)”
Topic 12: “Knowledge regarding CARRIAGE’S manner and method of CARRIAGE’S document retention policy”
Topic 13: “Knowledge regarding Defendant’s responses to each interrogatory served by Plaintiffs, WILLIAM USCHOLD, JOSE ALMENDAREZ, TIANA NAPLES, and TON SAECHAO”
Topic 14: “Knowledge regarding Defendant’s responses to each document request served by Plaintiffs, WILLIAM USCHOLD, JOSE ALMENDAREZ, TIANA NAPLES, and TON SAECHAO”
*4 Topic 22: “Each document produced by Carriage to date in response to Plaintiffs’ document requests”
With respect to Topics 2, 3, 4, 12, 13, and 14, CSI argues that the topics necessarily seek privileged or work product material, are irrelevant, and burdensome. Generally, “discovery on discovery” is disfavored and, to be both relevant and proportional to the needs of the case, a party seeking it “must show a specific deficiency in the other party’s production.” Brewer v. BNSF Railway Co., 2018 WL 882812, at *2 (D. Mont. Feb. 14, 2018) (citing The Sedona Conference Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process, at 118 (Sept. 2016)); see also Ashcraft v. Experian Info. Solutions, Inc., 2018 WL 6171772, at *2 n.2 (“Discovery into another party’s discovery process is disfavored.”); Jensen v. BMW of N. Am., LLC, 2019 WL 201441, at *8 (S.D. Cal. Jan. 15, 2019). Plaintiffs have not identified any specific deficiency in CSI’s discovery responses. Thus, the Court quashes Topics 2, 3, 4, 12, 13, and 14.
As to Topic 22 (each document CSI has produced), CSI argues that it would be impossible for it to designate a witness to testify about every document it has produced in the litigation. According to CSI, Plaintiffs agreed to revise this topic. CSI has not identified how many documents it has produced, but it appears to the Court to be unduly burdensome and likely an impractical and unnecessary task for CSI to prepare its Rule 30(b)(6) designee on every document it has produced in this litigation. The Court quashes Topic 22 as drafted
• Category Three: CSI’s Reimbursement Policies and Practices
Topic 5: “CARRIAGE’S policies, practices, rules, history, and procedures regarding reimbursing employee expenses, including but not limited to employee mileage reimbursement, cellular phone reimbursement, rental car reimbursement, and home office expense reimbursements (use by an employee of his/her personal internet service, electricity, and use of home square footage to do business-related work)”
Topic 6: “CARRIAGE’S actions in response to employees [sic] requests for reimbursements during the class period”
Topic 18: “All reimbursements paid to sales employees (Carriage sales employees) for mileage, cell phone use, and work performed outside of a Carriage property”
Topic 20: “Reasons why sales employees were not reimbursed for all expenses due under the California Labor Code”
CSI states that it has agreed to provide a corporate designee to testify about its reimbursement policies and practices generally in California during the class period. CSI objects, however, to Topic 18 (all reimbursements paid) and Topic 6 (CSI’s response to employees’ reimbursement requests) because it argues that it would be impossible for a deponent to testify about every reimbursement paid or every response it gave to a request for reimbursement. CSI represents that Plaintiffs agreed to withdraw and/or revise some of these requests in light of those objections.
Topics 18 and 6 are unduly burdensome and the Court quashes them.
*5 • Category 4: Investigations of Named Plaintiffs
Topic 7: “Any investigations conducted relating to Plaintiffs WILLIAM USCHOLD, JOSE ALMENDAREZ, TIANA NAPLES, and TON SAECHAO”
Topic 8: “Any interviews of employees regarding comments from Plaintiffs WILLIAM USCHOLD, JOSE ALMENDAREZ, TIANA NAPLES, and TON SAECHAO about expenses they incurred in carrying out their duties as CARRIAGE employees”
CSI objects to the topics regarding investigations of and interviews with the named Plaintiffs to the extent those investigations or interviews occurred after this case was filed due to privilege and work product issues. CSI also objects that their scope is too broad and should be limited to investigations or interviews related to the subject matter of this case.
CSI will need to assert objections during the deposition to the extent it believes in good faith that a question improperly invades privileged communications or work product. CSI correctly notes that “[w]ork product protection is not limited to materials prepared by an attorney.” Salinas v. Amteck of Tex., 2009 WL 10697309, at *3 (N.D. Cal. July 6, 2009). Instead, “[t]he protection extends to materials prepared by the party or by any ‘representative’ of the party,” if the materials were prepared in anticipation of litigation. Id. (citing Fed. R. Civ. P. 26(b)(3)(A) (“Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).”). However, discovery that does not reveal an attorney’s mental impressions is not absolutely protected. See Admiral Ins. Co. v. U.S. Dist. Ct. for Dist. of Ariz., 881 F.2d 1486, 1494 (9th Cir. 1989) (“Although the rule affords special protections for work-product that reveals an attorney’s mental impressions and opinions, other work-product materials nonetheless may be ordered produced upon an adverse party’s demonstration of substantial need or inability to obtain the equivalent without undue hardship.”). The Court declines to opine in the abstract about what types of interview or investigation materials may be privileged or protected.
On CSI’s argument that the scope of the topics should be limited to the subject matter of this case, Topic 8 is so limited because it only seeks testimony about interviews regarding Plaintiffs’ claims about expense reimbursements but Topic 7 requests broader testimony about investigations of Plaintiffs without respect to the topic of the investigations. Investigations about other topics could have some relevance. For example, investigations may implicate one or both parties’ credibility. The Court denies the request to quash or limit Topic 7’s scope.
• Category 5: Knowledge of Jobs of Employees Similarly Situated to Plaintiffs
Topic 9: “Knowledge regarding the job duties of Plaintiffs and other employees employed in similar positions during the class period”
*6 Topic 10: “Knowledge regarding work hours of Plaintiffs and other employees employed in similar positions during the class period”
Topic 15: “Each California property with employees in positions with job duties similar to Plaintiffs [sic]”
Topic 16: “All sales positions for employees in California with sales responsibilities; including, but not limited to, the number of such employees, the title and job descriptions, and places of employment for each”
Topic 17: “Job duties for each sales position at each CARRIAGE property in California”
CSI states that it has agreed to provide a corporate designee to testify about the job duties and locations of employees with Plaintiffs’ job positions. However, CSI objects to these topics to the extent that they seek testimony about every task undertaken by every employee in California. CSI represents that Plaintiffs agreed to withdraw and/or revise some of these requests in light of those objections. The Court agrees that these topics are unduly burdensome to the extent that they seek such specific testimony.
As to Topic 10 (employees’ work hours), CSI argues that this request is irrelevant, unduly burdensome, vague, and disproportionate. However, Plaintiffs provided an explanation of how this testimony would relate in part to the availability of CSI facilities outside business hours. While such testimony would be relevant and appropriately targeted, Topic 10 is not directed at obtaining that testimony as currently drafted. Therefore, the Court quashes Topic 10 as written, but Plaintiffs may serve a narrowly tailored topic or interrogatory about the hours of operation of work facilities accessible to Plaintiffs in lieu of working from their homes.
• Category 7: CSI’s Corporate Structure and Ownership of California Properties
Topic 21: “The corporate structure of defendant in relationship to each California property and whether any is a separate corporate entity; including but not limited to defendant’s public statements as a publicly traded corporation regarding its revenue, earnings, and performance per property”
CSI argues that this topic should be quashed because the request is vague, irrelevant, unduly burdensome, and disproportionate to the needs of the case. While this request is not wholly vague or irrelevant, it is unduly burdensome because Plaintiffs have not justified California-wide class discovery. Accordingly, Topic 21 is limited to CSI’s corporate relationship and/or ownership of the Richmond, California location where Plaintiffs were employed.
IT IS SO ORDERED.