*1 On June 27, 2017, Plaintiffs filed a putative class action complaint against Defendant Sunrise Senior Living, LLC (“Sunrise”) in Alameda County Superior Court. After removal and transfer to this Court, on June 21, 2019. Plaintiffs filed the operative Second Amended Complaint (“SAC”) against Sunrise and Sunrise Senior Living Management, Inc. (”Defendants”), which Defendants answered on July 15, 2019. Dkt. 77, 83. In the SAC, Plaintiffs, purporting to represent a class of Defendants' residents in California, asserting California state law claims for violation of the Consumers Legal Remedies Act, Unlawful, Unfair, and Fraudulent Business Practices, and Elder Financial Abuse, alleged Defendants engaged in a scheme to defraud them by, among other things, falsely representing that residents would receive care services each resident needed, as determined by a resident assessment. SAC, ¶ 2. On May 18, 2020, Plaintiffs filed, provisionally under seal, a Motion for Class Certification and supporting documents. See Dkt. 138-145. Defendants' opposition to the Motion for Class Certification due by August 3, 2020. Dkt. 137.

On January 2, 2020, Plaintiffs filed a Motion to Compel Further Production of Documents by Defendants. Dkt. 107. On January 31, 2020, the Court issued an order directing Defendants to produce various records, including samplings of Defendants' resident assessment and service plans. Dkt. 116.

On July 9, 2020, Plaintiffs filed a Motion to Compel Further Production of Assessment and Service Plan Data (Dkt. 169, “Motion”) set for hearing on August 6, 2020, along with a Local Rule 37 Joint Stipulation (Dkt. 169-1, “Joint Stipulation” or “Jt. Stip.”), and supporting and opposition declarations and exhibits (Dkt. 169-2 to 169-5). The parties' Supplemental Memoranda are due to be filed by July 23, 2020.

In the Motion, Plaintiffs complain that Defendants failed to comply with the prior order by not producing the electronically stored information (“ESI”) relating to the resident assessments and service plans in a usable format; Defendants counter that they have produced the ESI in the only format they can. Jt. Stip. at 1-21.

Plaintiffs assert they twice offered to schedule a telephone call with Sunrise's responsible information technology representative to attempt to resolve the issue by allowing subject matter experts for each side discuss the relevant technology, but Defendants did not respond to either offer. Jt. Stip. at 9-10. Plaintiffs assert that they offered to provide a vendor, at Plaintiffs' costs, to extract the data for Defendants, but according to Plaintiffs, Defendants also did not respond to this offer. Id. at 10. Plaintiffs assert that they again offered to participate in a call with the technical experts from both sides to attempt to resolve the issue, but Defendants did not agree to such a call. Id. Plaintiffs submitted a Declaration by William Blake Peters, a Senior Data Analyst at Superior Analytics, who opines, based on his experience and review of, among other things, documents produced thus far and public source information, that Sunrise's resident assessment data is maintained in a relational database system, and Sunrise, its vendor, or a third party granting access, should be able to export or copy the assessment data to a database usable format, such as .csv format, and further opines that any person with basic database skills, including himself, could export he data into usable format. See Dkt. 169-3.

*2 In opposition, Sunrise contends that it has produced the data in the only format or formats possible and cannot produce it in the format requested by Plaintiffs, argues it is permitted to do so under the ESI Order in the case, and asserts that to comply with Plaintiffs' demands for access would put residents' sensitive personal and health information at risk. Jt. Stip. at 13-19. Sunrise asserts that the “real issue, which Plaintiffs do not seem to grasp and for which Mr. Peters provides no solution, is how [the relevant] data may be exported from the ... database,” which was “not designed with the capacity to readily transfer resident assessment data to other database programs or even generate internal reports....” Id. at 19. Defendants submitted a 30-line Declaration by Marty Damian, Sunrise's Vice President of Operations and Systems, who states it is his “understanding” that the database at issue, called Sunrise CareConnect, can only export resident assessments and service plans in PDF format, and an unspecified person at PointClickCare, the developer of Sunrise CareConnect, “confirmed” that “all resident record data, chart entries, and edits to chart entries available from within the PointClickCare application can only be produced in PDF format.” See Dkt. 169-5 at 2-3. Attached to Mr. Damian's Declaration is a letter on PointClickCare letterhead, addressed to Mr. Damian, with no individual signatory, signature, or personal name of any kind, that describes limitations in the functionality of PointClickCare data access, but states, referring to an attempt to “produce the requested information in CSV format,” that PointClickCare “does not provide this as a regular service as the data is available PDF reports in the application. Although PointClickCare can do this manually, the output would be numerous password protected files per resident ... and we would not be able to remove any PII or PHI from the CSC files due to the way the information is stored in PointClickCare. Though CSV data would be accurate, PointClickCare cannot guarantee its completeness given the system is not inherently designed for extracting resident records in CSV files automatically.” Dkt. 169-5 at 5.

The Court now makes no substantive ruling on the Motion. The Court notes generally that after the 2006 Amendments to Rule 34 o the Federal Rules of Civil Procedure, disputes regarding the format of the production of ESI have declined as counsel typically work through such issues with the assistance of their respective data experts. In that regard, the Advisory Committee Notes to the 2006 Amendments to Rule 34 provide, in part:

The parties are ORDERED to confer to schedule a mutually agreeable time for counsel for the parties, Marty Damian, and William Blake Peters or another technical expert on Plaintiffs' behalf, to participate in a video conference or telephonic conference at which time Mr. Peters, or another technical expert on behalf of Plaintiffs, will confer with Mr. Damian regarding the issues raised in the Motion. In particular, Mr. Damian will be prepared to, and will answer questions put to him regarding the issues set forth in his Declaration and Mr. Peters' Declaration and Mr. Damian is further ordered to be prepared to provide the name(s) and contact information of all persons with whom he has interacted at PointClickCare while at Sunrise. If all participants consent, the contents of the call or videoconference may be recorded. If any participant does not consent to recording, the calls audio or video may not be recorded. However, any party may, regardless of consent, arrange for a court reporter to transcribe the conversations during the call.

The call will commence no later than noon Pacific Time on July 22, 2020. If the parties cannot agree upon a mutually agreeable date and time before noon on July 22, the call will commence at noon on July 22, 2020 via the Court's bridge-line. Counsel for Plaintiffs shall email chambers by noon on July 21, 2020 if no time has been agreed to; in that event, the Court's Courtroom Deputy will thereafter provide counsel for the parties the call-in information by email. The call will last for one hour, or until Plaintiffs' technical expert has no further questions of Mr. Damian, whichever occurs first. After the call, counsel for the parties are ordered to again confer, armed with any new information from the call or any other source, in a good faith effort to resolve the issues raised in the Motion, including whether the dispute may be resolved by providing Plaintiffs' expert, or some mutually agreeable third party vendor, with access to the Sunrise CareConnect database, or relevant portions thereof, on a standalone computer, hard drive, or other device or mechanism, in a controlled fashion, from which the expert or vendor can download the appropriate data, exclusive of residents' personal information or personal health information, subject to the Protective Order in force in the case. Each party is ordered to include a summary of any relevant information learned from the call, and the results of the follow-up meet and confer efforts, with the party's Supplemental Memorandum in support or in opposition to the Motion, due to be filed by July 23, 2020.

*3 In addition, Sunrise is also ORDERED to, in its Supplemental Memorandum, describe what response, if any, it provided to: (1) Plaintiffs' April 16, 2020 request “[i]n an attempt to resolve this dispute” to hold “a telephonic meet and confer including the parties' IT personnel in order to address the above-referenced technical issues” (see Dkt. 169-2 at 95 (CM/ECF pagination)); (2) Plaintiffs' alleged telephonic offer on May 11, 2020, to again “participate in a further meet and confer with the parties' information technology personnel on the call to resolve the issue” (see Dkt. 169-2 at 4 (CM/ECF pagination)), ¶ 9); and (3) Plaintiffs' renewed written request, dated May 19, 2020, “in an effort to resolve this issue without motion practice, please advise whether Sunrise would participate in a further meet and confer conference which would include representatives from both sides with the necessary technical expertise to discuss this issue in detail” (Dkt. 169-2 at 98 (CM/ECF pagination)). Although the Court has made no decision on the issue, because the Advisory Committee Notes to the 2006 Amendments to Rule 34 expressly provide that “the responding party may need to provide some reasonable amount of technical support, information on application software, or other reasonable assistance to enable the requesting party to use the information,” and because based on the record here, the minimal intrusion of a telephone call between the parties' IT/data analytics representatives appears obviously to have been warranted when the issues first arose, Sunrise's apparent failure to agree to hold such a call, or even respond to three requests to have such a call, raises questions whether sanctions may be warranted for failure to meet and confer in good faith to attempt to resolve this dispute. See Local Rule 37-1, 37-4. Further, because the Motion at least implicitly accuses Sunrise of violating the Court's January 31, 2020 Order, the Motion may implicate not only Rule 37(a)(5) of the Federal Rules of Civil Procedure, but also Rule 37(b)(2). Thus, Sunrise is provided with an opportunity to be heard regarding all of the foregoing in its Supplemental Memorandum.

The Court sua sponte increases the applicable page limitation from 5 pages to 10 pages for the parties' respective Supplemental Memoranda filed in support of and in opposition to the Motion.

IT IS SO ORDERED.