I. INTRODUCTION

*1 On June 16, 2020, plaintiffs filed a motion to compel defendants to produce discovery relevant to the Fourth Amended Complaint. Docket no. 274. The motion is supported and opposed in a Joint Stipulation (“JS”). Plaintiffs' arguments are further supported by the declaration of plaintiffs' counsel Ian Gore (“Gore Decl.”) and exhibits thereto. Defendants' arguments are further supported by the declarations of defense counsel Christopher Merrick (“Merrick Decl.”), James Dick (“Dick Decl.”), Jeff Olsen (“Olsen Decl.”), Nicholas Giles (“Giles Decl.”), Seth Goldstein (“Goldstein Decl.”), and exhibits thereto. On June 19, 2020, plaintiffs filed a Notice of Errata noting that there may have been a delay in all parties receiving the Notice of Electronic Filing, but that the issue has since been remedied. On June 23, 2020, plaintiffs filed a Supplemental Memorandum (“P. Supp. Mem.”).

The parties came before the court for a telephonic hearing on July 7, 2020. After considering the arguments advanced and the record before it, the court grants plaintiffs' motion to the limited extent the court finds plaintiffs are entitled to discovery relevant to the Fourth Amended Complaint, and orders the parties to take further steps to resolve their discovery disputes, as discussed below.

II. BACKGROUND

The court has discussed the facts of this putative antitrust class action in a previous order. Only those facts relevant to the instant dispute are discussed here.

Plaintiffs are truck drivers who were formerly employed by defendants. Defendants are trucking companies that operate throughout the country. Plaintiffs allege defendants restrained competition by using a “no-poaching” hiring policy for drivers, and engaging in business practices that kept drivers in unfavorable employment agreements. The Third Amended Complaint was filed on July 26, 2018, and discovery commenced shortly thereafter.

On February 14, 2020, plaintiffs sought leave to file a Fourth Amended Complaint (“4AC”). The 4AC names three additional defendants – defendants Covenant Transport, Inc., Paschall Truck Lines Inc., and Stevens Transport Inc. – and expands the scope of the putative class to a nationwide one. Plaintiffs' motion was granted on April 14, 2020.

On April 15, 2020, plaintiffs emailed defendants requesting that defendants produce documents related to the new defendants in the case, as well as any documents that were previously withheld because they were not geographically limited to California. See Goldstein Decl. ¶ 11, Ex. 3. On May 14, 2020, plaintiffs sent defendants a meet and confer letter requesting a conference on discovery related to the 4AC. Id. ¶ 11, Ex. 4. The parties met and conferred on May 26, 2020 but were unable to resolve their dispute. Id. ¶ 13; Dick Decl. ¶ 9; Olsen Decl. ¶ 7.

III. DISCUSSION

Before reaching the merits of the instant discovery dispute, the court addresses two preliminary matters. The parties dispute whether plaintiffs' meet and confer letter satisfies the requirements of Local Rule 37-1, and if a stay of discovery is appropriate until defendants' motions to dismiss are resolved. JS at 7-10, 15-18, 23-25.

*2 First, defendants contend plaintiffs' letter does not comply with Local Rule 37-1 because it did not sufficiently identify each issue and discovery request in dispute, or state the terms of the discovery order sought. Id. at 15-18. Plaintiffs' letter identifies the dispute as defendants' purported refusal to: “(1) collect, review, and produce additional documents related to the new defendants or a nationwide class; and (2) supplement any interrogatory responses to account for the nationwide class until their motion(s) to dismiss are decided.” Goldstein Decl. ¶ 11, Ex. 4. The letter requests that defendants “unequivocally state that they are moving forward with discovery in this action, including on the new allegations in Plaintiffs' Fourth Amended Complaint and will supplement their document productions and discovery responses within 30 days of this letter.” Id.

Defendants contend plaintiffs failed to list the specific Interrogatories or Requests for Production of Documents (“RFPs”) that are at issue, and did not state whether additional searches for electronically stored information (“ESI”) would be necessary. JS at 15-18. Although a more detailed letter may have been helpful, it appears the parties understood what the dispute was before their conference and neither party was waylaid by unexpected issues. Accordingly, the sufficiency of plaintiffs' meet and confer letter is not grounds for denying the motion outright. But the need for greater specificity relates to the need for additional meet and confer, as discussed below.

Second, defendants seek a stay of discovery while their motions to dismiss are pending, and in the alternative, argue any order compelling production should be modified so that plaintiffs are required to bear the burden of any additional discovery, and defendants are allowed additional time for production. Id. at 23-25. Any request to stay discovery must be filed with the District Judge in this matter rather than the Magistrate Judge. See, e.g., Pom Wonderful LLC v. Coca-Cola Co., 2009 WL 10655253, at *1 (C.D. Cal. Sept. 16, 2009) (“The fact that the 4AC is ‘untested’ does not, absent a stay of discovery by the District Judge, prevent discovery with respect to the allegations in the 4AC.”); Clark v. Time Warner Cable, 2007 WL 1334965, at *2, n.1 (C.D. Cal. May 3, 2007) (a motion to stay discovery presents a case management issue that should be resolved by the presiding judicial officer in the case). Further, the court's most recent Standing Order in this matter specifically states that “absent exceptional circumstances, discovery shall not be stayed while any motion is pending, including any motion to dismiss or motion for protective order.” See docket no. 264 at 2. The Standing Order directs the parties to “conduct any necessary discovery as soon as possible, as the court is not inclined to grant any extensions of the discovery or other case-related deadlines.” Id.

In the absence of a stay, the instant motion must be decided in consideration of the operative pleading, the 4AC. Accordingly, the court considers the merits of the dispute.

A. Discovery Standard

Fed. R. Civ. P. 26(b) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). To be relevant, the information sought “need not be admissible in evidence”; however, it must be “proportional to the needs of the case.” Id. In determining the needs of the case, the court “consider[s] the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. A “relevant matter” under Rule 26(b)(1) is any matter that “bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978). Relevancy should be “construed ‘liberally and with common sense’ and discovery should be allowed unless the information sought has no conceivable bearing on the case.” Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (quoting Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992)).

B. Plaintiffs Are Entitled to Discovery on the Fourth Amended Complaint, But How This Implicates Plaintiffs' Prior Discovery Requests Requires Further Development

*3 The parties' dispute hinges on the production that has already taken place, and whether supplementation of defendants' discovery responses is warranted. Plaintiffs seek the following additional production from defendants within 30 days: (1) all documents previously withheld because they did not involve California or an area that included the state of California; (2) documents responsive to all of plaintiffs' document requests related to the newly added defendants in the 4AC; and (3) supplementation of all interrogatory responses in light of the allegations in the 4AC and the additional documents sought in requests (1) and (2) above. JS at 6.

Defendants contend they have no duty to supplement their responses simply because plaintiffs have filed an amended pleading, and even if such a duty existed, the additional production required would impose an undue burden on defendants. Id. at 18-23. Defendants maintain the parties previously agreed to limit discovery to California drivers, or groups in which California drivers were a subset after the Third Amended Complaint was filed. Id. at 11. The parties also negotiated and agreed on search terms before defendants undertook a search of responsive and non-privileged ESI. Id. at 12. Defendants contend the discovery process was intensive and costly, requiring defendants to spend more than $1.5 million dollars in reviewing and producing ESI. Id. at 4. Given the discovery that has already been produced and the parties' discussions thus far, defendants argue plaintiffs are not seeking a “supplementation” of discovery as much as they are attempting to unilaterally expand the scope of discovery. Id. at 19.

1. There Is an Ongoing Duty to Supplement Discovery Responses

Federal Rule of Civil Procedure 26(e) states that “[a] party who has made a disclosure under Rule 26(a) – or who has responded to an interrogatory, request for production, or request for admission – must supplement or correct its disclosure or response ... in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect ... as ordered by the court.” The parties have an ongoing duty to supplement their discovery responses, and here, the discovery sought appears relevant to plaintiffs' claims of a national antitrust conspiracy in the 4AC.

Defendants contend there is no duty to volunteer supplemental information that is not fairly encompassed by an earlier request, citing In re Air Crash Disaster, 86 F.3d 498, 539 (6th Cir. 1996) and Green v. Alan Waxler Grp. Charter Servs., LLC, 2014 WL 2808980, at *2 (D. Nev. June 19, 2014). Both of these cases discuss the duty to supplement in the context of discovery that was never properly requested in the first place. See In re Air Crash Disaster, 86 F.3d at 539 (no duty to supplement where an expert's videotape was shown at trial but was not mentioned during that expert's deposition because the deposition concerned other, unrelated matters); Green, 2014 WL 2808980 at *2 (no duty to supplement with class-wide information post-certification where the RFPs at issue only sought documents relating to “each of the named plaintiffs” and did not seek information about other class members).

The court does not have the benefit of reviewing the exact text of all of plaintiffs' discovery requests. But those requests that the court does possess – namely, plaintiffs' First Set of RFPs – include no such limiting reference to named class members or defendants. See Giles Decl. ¶ 2, Ex. A. Nor is there any indication that the discovery was never properly requested in the first place. Accordingly, the issues at hand differ from those presented in Green and In re Air Crash Disaster, and these cases are inapposite.

*4 Because the scope of the case has changed with the filing of the 4AC, it is fair and consistent with Rule 26(e) to expect defendants to supplement their prior responses to account for this change, which likely renders at least some of their prior responses incomplete. Yet exactly how the obligation to supplement applies here is somewhat unclear given the parties' previous negotiated agreements regarding the scope of the requests, which in some instances limited the scope of the requests. This does not mean plaintiffs are bound to agreements that were premised on a previous operative pleading. But since plaintiffs are now effectively renewing their prior requests to account for the new pleading, defendants are likewise entitled an opportunity to assert objections to those requests that may previously have been inapplicable. In short, while defendants have a duty to supplement, the parties must meet and confer to try to reach agreement on such supplementation.

2. The Parties Must Meet and Confer Regarding the Discovery at Issue and Ways to Mitigate the Burden of Production in an Effort to Resolve Any Disputes

Defendants argue that having to re-do their responses and again search for documents in response to the same requests, but with a different scope, will impose an undue burden on them. The bulk of the document production already made appears to have been in the form of ESI, and defendants maintain they have already reviewed hundreds of thousands of records, and incurred significant costs doing so. JS at 21-23. Additionally, several defendants maintain any additional review would be logistically difficult if not impossible for various reasons, including the impact of the COVID-19 pandemic on business operations, the closure of defendant Southern Refrigerated's facility, and destruction of defendant Western Express's corporate headquarters by a tornado. See Dick Decl. ¶¶ 7-9; Merrick Decl. ¶¶ 11-12; Olsen Decl. ¶¶ 5-8.

Defendants are right to point to the burden they face, which is significant, but whether the burden is undue is another matter. The parties must discuss the discovery plaintiffs believe they require, and ways to mitigate the burden to defendants. Although the parties have discussed this most recent discovery dispute on a broad level, they do not appear to have discussed the logistics of any additional production, including whether defendants may need to re-review their previously reviewed ESI, and how and what new searches may need to be performed. The parties previously negotiated regarding things like ESI search terms and must do so again.

The topics that appear unresolved at this point include: (1) whether plaintiffs are seeking a re-review of previously captured ESI, a review of new ESI to be captured by new search terms, or both; (2) which of plaintiffs' RFPs and Interrogatories are specifically at issue; (3) if plaintiffs intend to serve the three newly added defendants with discovery requests; (4) if the closure of defendant Southern Refrigerated's facility and the destruction of defendant Western Express's headquarters will merely delay production or render these defendants incapable of producing additional discovery; and (5) if there are any mitigating measures that can reduce the burden on defendants of producing additional discovery. Additionally, to the extent that additional ESI searches are necessary, the parties must discuss the next steps that must be taken per the court's August 6, 2019 ESI Order, such as identifying new custodians and proposing additional search terms. See docket no. 176.

IV. CONCLUSION

For the foregoing reasons, the court grants plaintiffs' Motion to Compel (docket no. 274) only to the limited extent of finding plaintiffs are entitled to discovery related to the Fourth Amended Complaint. As for what defendants must do to supplement their responses to discovery previously served in light of the 4AC, the court orders:

1. Plaintiffs must specifically identify for defendants which requests and interrogatories they believe require supplemental responses in light of the 4AC.

*5 2. Within 7 days of plaintiffs' identifying the requests and interrogatories at issue, the parties must begin to meet and confer in good faith regarding which responses defendants agree to supplement, whether any modification or narrowing of such requests and interrogatories is warranted, and precisely what providing supplemental responses will entail, as set forth above.

3. To the extent the parties are not able to resolve all their differences through meet and confer, defendants may assert formal objections to those requests and interrogatories identified by plaintiffs for which disputes remain.

4. If after further meet and confer the parties are still unable to resolve their differences, they may seek assistance from the court, either in the form of a formal motion to compel or for protective order in compliance with Local Rule 37, or by way of a telephonic conference with the Magistrate Judge. In addition, if during their meet and confer efforts the parties believe the Magistrate Judge may provide assistance, they may request a telephonic conference.