I. INTRODUCTION

*1 On September 15, 2020, plaintiffs filed motions to compel defendants Western Express, Inc. and Schneider National Carriers, Inc. to produce driver files. Docket nos. 313, 314. On September 22, 2020, plaintiffs filed a motion to compel defendant C.R. England, Inc. to produce driver files. Docket no. 319. The motions are supported and opposed in Joint Stipulations (“Western JS,” “Schneider JS,” “C.R. England JS”). Plaintiffs' arguments are further supported by the declarations of plaintiffs' counsel Ian Gore (“Western Gore Decl.,” “Schneider Gore Decl.,” “C.R. England Gore Decl.”) and exhibits thereto.

Defendant Western Express's arguments are further supported by the declarations of defense counsel Jeff Olsen (“Olsen Decl.”) and senior vice president Clarence Easterday (“Easterday Decl.”), and exhibits thereto. Defendant Schneider's arguments are further supported by the declarations of defense counsel Nicholas Giles (“Giles Decl.”), senior business support manager Lori Collar (“Collar Decl.”), director of driver recruiting Michael Thompson (“Thompson Decl.”) and exhibits thereto. Defendant C.R. England's arguments are further supported by the declaration of product manager Jessica Greenwald (“Greenwald Decl.”).

On September 22 and 29, 2020, plaintiffs filed Supplemental Memoranda in support of their motions to compel (“Western P. Supp. Mem.,” “Schneider P. Supp. Mem.,” “C.R. England P. Supp. Mem.”).

The parties came before the court for a hearing by videoconference on October 13, 2020. After considering the arguments advanced and the record before it, the court now grants plaintiffs' motions to compel in part, and orders the parties to take further steps to resolve their discovery disputes, as discussed below.

II. BACKGROUND[1]

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 engaged 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”), which was granted on April 14, 2020. 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 reach nationwide.

Plaintiffs seek to certify the following class: all current or former drivers “under contract” as motor vehicle carrier drivers with defendants at any time from May 15, 2013 to the present. The proposed class includes the following three subclasses: (1) California residents; (2) all persons who signed a pre-employment driver training agreement or driver employment contract with defendant CRST, and who participated in CRST's training program and were charged for their DOT physical screening and drug tests from May 12, 2013 to the present; and (3) all persons who signed a driver employment contract with defendant CRST and who participated in CRST's driver training program but failed to complete the contractually required 10-month employment term and were charged $6,500.

*2 The “under contract” designation refers to individuals who attended one of defendants' driver training schools to obtain a commercial driver's license, and either had their tuition paid for by defendants outright or were later offered reimbursement for their tuition costs. Plaintiffs allege drivers who remained employed with a defendant for a sufficient period of time had their driver training school tuition costs waived, but drivers who were terminated or quit before that period were required to repay their tuition costs. Plaintiffs further allege drivers remained “under contract” until any outstanding amount was repaid, even if their employment had ended.

Plaintiffs served their second set of Requests for Production of Documents (“RFPs”) on defendant Western Express on March 27, 2020. See Olsen Decl. ¶ 8, Ex. B. Defendant Western Express provided its responses on May 27, 2020. See Western Gore Decl. ¶ 14, Ex. 10. It is not clear when plaintiffs served their second set of RFPs on defendants Schneider and C.R. England, but these requests were presumably served on these defendants around the same time as defendant Western Express.

On June 19, 2020, plaintiffs sent separate meet and confer letters to defendants requesting a telephonic conference. Western Gore Decl. ¶ 4, Ex. 2; Schneider Gore Decl. ¶ 4, Ex. 2; C.R. England Gore Decl. ¶ 4, Ex. 2. The parties held their initial telephonic conferences on June 26 and 29, 2020. Western Gore Decl. ¶ 5; Schneider JS at 16; C.R. England JS at 14. Plaintiffs and defendant Western Express held additional conferences on July 13, July 27, August 12, and August 19, 2020. Western JS at 14. Plaintiffs and defendant Schneider held additional conferences on July 3, July 15, and August 10, 2020. Schneider JS at 16. Plaintiffs and defendant C.R. England held additional conferences on July 14, July 29, and August 13, 2020. C.R. England JS at 14.

III. DISCUSSION

As a preliminary matter, defendant Western Express argues a stay of discovery is appropriate while defendants' motions to dismiss are pending. Western JS at 27-29. The court already addressed this issue in its most recent discovery order. The court reiterates that 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. Although that standing order was issued by the District Judge who was formerly assigned to this case, it was recently reaffirmed by the District Judge now assigned. See docket no. 341 at 2.

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. Legal Standards

Federal Rule of Civil Procedure 26 provides that a party 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.” Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “Relevancy, for the purposes of discovery, is defined broadly, although it is not without ultimate and necessary boundaries.” Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006) (citation and internal quotation marks omitted).

*3 “A party seeking class certification must satisfy the requirements of Federal Rule of Civil Procedure 23(a) and the requirements of at least one of the categories under Rule 23(b).” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542 (9th Cir. 2013). “For a named plaintiff to obtain class certification, the court must find: (1) numerosity of plaintiffs; (2) common questions of law or fact predominate; (3) the named plaintiff's claims and defenses are typical; and (4) the named plaintiff can adequately protect the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citing Fed. R. Civ. P. 23(a)). Rule 23(b) provides for three types of class actions. Fed. R. Civ. P. 23(b). Plaintiffs here appear to seek to certify a Rule 23(b)(2) or (b)(3) class, which would require plaintiffs to additionally show that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole” or “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(2)-(3).

“Prior to class certification under Rule 23, discovery lies entirely within the discretion of the Court.” Artis v. Deere & Co., 276 F.R.D. 348, 351 (N.D. Cal. 2011) (citing Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009)). Courts generally recognize the need for pre-certification discovery relating to class issues. See Vinole, 571 F.3d at 942 (“Our cases stand for the unremarkable proposition that often the pleadings alone will not resolve the question of class certification and that some discovery will be warranted.”) (footnote omitted).

In seeking pre-certification discovery, the plaintiff generally bears the burden to either make a prima facie showing that the Rule 23 class action requirements are satisfied, or to show “that discovery is likely to produce substantiation of the class allegations.” Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985). “[T]he need for discovery, the time required, and the probability of discovery providing necessary factual information” are also relevant factors “bearing on the correctness of the trial court's exercise of discretion.” Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977) (citation omitted). Thus, discovery is likely warranted where it will help resolve factual issues necessary for the determination of whether the action may be maintained as a class action, such as whether there are grounds for a class or subclass. Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975).

B. RFP Nos. 84, 85, and 86

Plaintiffs seek to compel the production of documents responsive to their RFP Nos. 84 and 85 to defendants Western Express and Schneider, and RFP Nos. 85 and 86 to defendant C.R. England. Apart from the numbering, these are the same two RFPs to each defendant. See Western JS at 3-8, 10-11; Schneider JS at 4-8, 11-13; C.R. England JS at 3-8, 10-11. These RFPs seek documents related to inexperienced drivers who were hired, and all drivers who applied but were not hired during the relevant time period.

As to defendant Western Express, the entirety of both RFPs remains at issue. As to defendants Schneider and C.R. England, only the portions in bold italic typeface below remain at issue.

RFP No. 84 to Western Express and Schneider and RFP No. 85 to C.R. England seek documents “sufficient to provide each of the following pieces of information for ALL INEXPERIENCED DRIVERS that were employed by YOU at any point during the RELEVANT PERIOD:

Western JS at 3-8; Schneider JS at 4-8; C.R. England JS at 3-8.

RFP No. 85 to Western Express and Schneider and RFP No. 86 to C.R. England seek documents “sufficient to provide each of the following pieces of information for ALL drivers that applied for a truck driving position with YOU, but that you did not hire, at any point during the RELEVANT PERIOD:

Western JS at 10-11; Schneider JS at 11-13; C.R. England JS at 10-11.

The specifics of what plaintiffs move to compel from each defendant differ, in that the responses from defendants to date differ. Plaintiff have already reached agreement with defendants Schneider and C.R. England on much of the information sought. As for the bolded and italicized categories listed above, plaintiffs seek from Schneider and C.R. England a sample of 1,000 driver files in response to RFP No. 84/85 broken down as follows: (1) 500 files for drivers who fall within the putative class; (2) 250 files for drivers outside the putative class who were hired with less than six months of experience; and (3) 250 files for drivers hired with more than six months of experience. Schneider JS at 26; C.R. England JS at 23.[2] For RFP No. 85/86, plaintiffs seek from Schneider and C.R. England a sample of 1,000 files from applicants who applied but were rejected during the relevant time period. Id.

*7 Defendant Western Express has yet to agree to produce anything in response to these requests, and thus all categories of information effectively remain at issue. From Western Express in response to RFP No. 84, plaintiffs seek for all drivers hired with 18 months or less experience all information responsive to subparts (a)-(r)), (z), (aa)-(cc), (ee)-(ff),(jj), (nn)-(oo). Western JS at 26. These subparts seek personal information from drivers' employment applications, internal classifications and designations, certifications, pay data for each pay period, routes traveled, employee benefits, any date of termination, and whether the drivers were “under contract.”

For subparts (t)-(y), (gg)-(ii), (kk)-(mm) of RFP No. 84, plaintiffs seek from Western Express a sample of 1,000 driver records using the same breakdown as that still sought from defendants Schneider and C.R. England: (1) 500 files for members of the putative class; (2) 250 files for drivers hired with less than six months of experience; and (3) 250 files for drivers hired with more than six months of experience. Id. These subparts seek these drivers' background check reports, employment history, safety record, criminal history, communications from previous employers, all written records regarding the driver's application, disciplinary actions, performance reviews, transfers, records on the driver's reason for leaving their position, and safety records.

Plaintiffs similarly seek from Western Express all responsive information for certain subparts of RFP No. 85, and only a sample of 1,000 files in response to other subparts. For subparts (a)-(h), (j)-(l), (q)-(r)), (w), plaintiffs seek all responsive information for applicants who were rejected. Id. These subparts seek personal information from drivers' employment applications, their certifications, any conditional or contingent offers of employment, and the reason they were not hired. For subparts (I), (m)-(p), (s)-(v), plaintiffs seek a sample of 1,000 applicant files. Id. These subparts seek the defendant that the rejected applicant was under contract with at the time of the application, these applicants' background check reports, employment history, safety record, criminal history, all written records regarding the application, communications from previous employers, communications with the applicant, and whether the applicant failed any necessary medical or drug exam. Plaintiffs state they are willing to limit their request for RFP No. 85 as directed to defendant Western Express to only those applicants who were rejected because they were under contract with another carrier, just as plaintiffs said they did for the other defendants. See Western JS at 24.

C. Discovery About Antitrust Injury and Damages Is Relevant to Class Certification as Well as the Merits

The dispute regarding the information plaintiffs seek here primarily concerns the burden and proportionality of the requests, but includes a dispute as to the relevance of the information requested. Plaintiffs argue the information is relevant because a “no-poaching” claim under Section 1 of the Sherman Act, 15 U.S.C. § 1, requires plaintiffs to demonstrate: (1) a violation of antitrust law; (2) injury; and (3) an estimated measure of damages. Western JS at 20; Schneider JS at 18-19; C.R. England JS at 16-17. Plaintiffs contend the information is relevant to establishing antitrust injury and damages, which will hinge on the question of whether a driver would have been eligible for hire if they had not been under contract with another carrier. Id.

It appears plaintiffs intend to use the data from these RFPs for a regression model that will show antitrust injury and estimated damages. Western JS at 29-30; Schneider JS at 28-29; Schneider P. Supp. Mem. at 4-5; C.R. England P. Supp. Mem. at 3-5. As plaintiffs argue, antitrust injury and an estimated measure of damages are two of the three elements of a claim under Section 1 of the Sherman Act. See In re High-Tech Employee Antitrust Litig., 985 F. Supp. 2d 1167, 1183 (N.D. Cal. 2013) (“[T]o establish an antitrust claim, plaintiffs typically must prove (1) a violation of antitrust laws, (2) an injury they suffered as a result of that violation, and (3) an estimated measure of damages.” (citation omitted). Whether common questions predominate and whether they “may be proven by classwide evidence” are questions answered at the class certification stage. See, e.g, Nitsch v. Dreamworks Animation SKG Inc., 315 F.R.D. 270, 288-308 (N.D. Cal. 2016) (reviewing the evidence presented in a class certification motion on these questions). “[A] damages suit cannot be certified to proceed as a class action unless the damages sought are the result of the class-wide injury that the suit alleges.” Butler v. Sears, Roebuck & Co., 727 F.3d 796, 799 (7th Cir. 2013) (citing Comcast Corp v. Behrend, 567 U.S. 27, 133 S. Ct. 1426, 185 L. Ed. 2d 515 (2013)).

*8 Defendants raise various arguments challenging the relevance of plaintiffs' requests. Defendant Western Express argues RFP No. 84, which seeks the driver files of all inexperienced drivers who were employed during the relevant time period, would only be relevant to proving damages, not class certification or identifying putative class members. Western JS at 30. Defendants Schneider and C.R. England argue plaintiffs' explanation that the files “relate to factors that may impact a driver's hireability and compensation,” is insufficient. Schneider JS at 34-36; C.R. England JS at 31. These defendants further argue a sample of even 1,000 random files may not paint an accurate picture of the putative class, and some of the drivers whose files are produced may not even fall into the putative class. Id.

Although defendants contend otherwise, the RFPs appear relevant to plaintiffs' theory of liability. Additionally, given that the court has not bifurcated merits and class certification discovery in this case, that the requests are relevant to both the class certification and the merits, including damages, does not make them improper. The real question, as discussed further below, is whether the requested information is sufficiently relevant as compared to the burden to be proportional to the needs of the case.

D. The Requests Impose a Substantial Burden and Implicate Privacy Concerns, But Some Responsive Information Is Proportionate to the Needs of the Case

Apart from the relevance of the requests, the parties also dispute whether the information sought is proportional to the needs of the case per Federal Rule of Civil Procedure 26(b)(1). The parties discuss various factors under Rule 26(b)(1) such as the importance of the issues at stake, the amount in controversy, and the parties' relative access to the information and resources. Western JS at 29-37; Schneider JS at 27-38; C.R. England JS at 32-36. The heart of the dispute lies in whether the requests are overbroad, unduly burdensome, and intrude on the privacy of the individuals whose files would be produced.

1. Number of Subparts to RFPs

First, defendants contend the requests are overbroad because RFP Nos. 84 and 85 contain 59 and 23 subparts, respectively. Together, these requests seek a significant amount of information about drivers and rejected applicants including their contact information, employment history, criminal history, and the results of background checks. But the number of subparts is not itself a significant issue.

Plaintiffs note that courts have compelled the production of substantial amounts of data in similar circumstances and citing In re eBay Seller Antitrust Litigation, 2009 WL 3613511, at *1 (N.D. Cal. Oct. 28, 2009). Western JS at 21; Schneider JS at 19; C.R. England JS at 17. Plaintiffs cite this case as an example of a court compelling production in response to “eight document requests, with sixty-two separate sub-parts, seeking compilations of transactional data.” Id. The discovery dispute in that case differed in some key respects from the dispute at hand here, including that it was clear the data sought could be derived from a database, and the court denied some of the requests at issue, which reduced the burden on defendant in responding to the remaining requests. See In re eBay Seller Antitrust Litig., 2009 WL 2524502, at *1 (N.D. Cal. Aug. 17, 2009) (Magistrate Judge's discovery order). But plaintiffs are correct that, unlike an interrogatory, there is no formal limit on how many discrete subparts an RFP can contain. As such, the number of subparts is not dispositive.

2. Burden Claimed by Each Defendant

a. Schneider and C.R. England

Defendants Schneider and C.R. England have reached agreement with plaintiffs on much of the information requested, and have agreed to produce a vast amount of data. What remains are the bolded and italicized categories of information listed above, which both Schneider and C.R. England say cannot be readily produced as bulk data, but instead will be found, if at all, in driver or applicant files that must be individually retrieved at great burden.

*9 Defendant Schneider states the information at issue only exists as documents that would require manual collection and review and must be generated as individual PDFs. Schneider JS at 28-30; Collar Decl. ¶¶ 6-12. Schneider contends producing even 1,000 files in response to each RFP would be burdensome because the information sought is not stored in a single system. Id. at 30-31. The lack of a centralized file system means that it will have to search for a driver in several databases, cross-check that they refer to the correct driver, locate and manually download each record, and then consolidate the records back together. See Thompson Decl. ¶¶ 5-10. Defendant Schneider states only after the files are manually pulled can the documents be reviewed for privilege and redacted to remove private information. Schneider JS at 31. Schneider does not say how long it expects any of this to take.

Defendant C.R. England similarly states the information at issue in its possession, if it exists, is stored in an imaging platform that has no bulk pull or multi-search functionality. C.R. England JS at 32-33; Greenwald Decl. ¶¶ 10-11. Instead, pulling a file requires searching for an individual based on his or her social security number or tax identification number. C.R. England JS at 32. Defendant estimates pulling a file for a single driver from the imaging system takes, on average, 20 minutes, and exporting 1,000 driver files and 1,000 application files would take one person working non-stop 667 hours, or a little more than 4 months. Id. at 33; Greenwald Decl. ¶ 13. This estimate would not include information that exists outside of the imaging system. C.R. England JS at 32-33. Defendant states the files would then have to be reviewed for privilege and redacted to remove information such as social security numbers. Id. at 33.

Plaintiff does not dispute defendants' assertions regarding the burden they face, but argues this burden is reasonable in light of there being tens of thousands of potential class members and the possibility of tens of millions of dollars in damages. Plaintiff notes they have sought to reduce the burden by only seeking a small sample of all driver files, and in other ways discussed further below.

b. Western Express

Unlike the other defendants, defendant Western Express has not agreed to turn over any information in response to the RFPs at issue here. Western Express estimates RFP Nos. 84 and 85 cover over 700,000 individuals nationwide. Western JS at 2. Western Express further states its files are managed by a third-party vendor, TenStreet, and there is presently no mechanism of pulling files in bulk. Id. at 30-31. Although it is possible that TenStreet could create an algorithm or query that could compile the files, defendant states it would take approximately 58,333 attorney hours at a cost of $5.8 million dollars to review the documents. See Easterday Decl. ¶¶ 5-7. Defendant believes its vendor would charge it for producing these files, but does not provide an estimate of these additional costs. Western JS at 30-31. Defendant Western Express further states its ability to respond to discovery has been hampered by the destruction of its corporate headquarters by a tornado in March 2020. Id. at 34-36. It is unclear to the court what effect the destruction of corporate headquarters has on Western Express's ability to respond to these RFPs, given that it maintains all its relevant files are in any event accessible only by TenStreet.

It is apparent that Western Express has made no genuine effort to meet and confer with plaintiffs to attempt to reach an agreement on these RFPs. Unlike the other defendants, Western Express has not been prepared to explain to plaintiffs what information is available and would be produced, what information exists but would not be produced due to objection, and what information does not exist. See Western Gore Decl. ¶¶ 5-6, Exs. 4, 5. Western Express claims to be unable to produce this information without the assistance of TenStreet, but does not appear to have brought TenStreet into the discussions. As such, at this point, defendant Western Express's claims of undue burden are not well taken, and much more effort on its part is needed.

3. Privilege and Privacy Concerns

*10 Defendants contend the files sought, even if they could be produced with less burden, would require redaction because they include the personal information of individuals, many of whom are not putative class members. Schneider JS at 32-34; C.R. England JS at 33-35. Plaintiffs maintain the protective order in place is sufficient to protect these privacy interests. See Western JS at 25, n.5.

Courts often permit discovery, albeit with some limitations, into the personnel files of parties to the action when the documents sought are relevant and the need for the documents outweighs the individual's privacy interests. See, e.g., Nakagawa v. Regents of Univ. of Calif., 2008 WL 1808902, at *2-*3 (N.D. Cal. Apr. 22, 2008) (recognizing a limited right to privacy in a personnel file and ordering production subject to a protective order). But plaintiffs here seek production of the files of thousands of drivers and rejected applicants, many of whom fall outside the proposed class. Although the protective order in place offers significant protections, the court cannot dismiss as unwarranted defendants' concerns that producing private and sensitive information not needed for this case such as social security numbers and medical diagnoses would be an abdication of their responsibilities to their drivers and those who applied to drive.

Defendants' privilege concerns appear less of an obstacle. Plaintiffs argue defendants do not need to review each and every document for privilege because a clawback provision exists in the stipulated protective order that protects against the inadvertent disclosure of privileged information. Western JS at 25-26; Schneider JS at 24-25; C.R. England JS at 21-22. Although certainly defendants do not want to produce privileged information and rely on the clawback provision, it seems unlikely that these files would contain much privileged information, and any review for such information would seem to be something that could be done quite quickly. But reviewing for private information to be redacted would likely be significantly more time-consuming.

4. Proportionality

Given the significant burdens associated with collecting, reviewing, redacting, and producing the samples of driver and applicant files plaintiffs seek from defendants (putting aside for the moment the other data plaintiffs also seek from defendant Western Express), the question is whether compelling defendants to produce these files is proportional to the needs of the case.

Plaintiffs offer to forego the information that is contained solely in driver and applicant files if defendants will agree to not critique plaintiffs' expert reports, motion for class certification, or other positions in this litigation based on information that would have been available in the files. Schneider JS at 25-26; C.R. England JS at 22-23. Plaintiffs cite Apple v. Samsung Elecs. Co., 2013 WL 4426512, at *3 (N.D. Cal. Aug. 14, 2013), and Tex. Instruments Inc. v. Powerchip Semiconductor Corp., 2007 WL 1541010, at *11 (S.D.N.Y. May 24, 2007), in support of their argument that a fact preclusion remedy is appropriate when a party fails to produce necessary data or reports. Schneider JS at 25-26; C.R. England JS at 22-23. But defendants have been unwilling to accept plaintiffs' offer, and the court will not enter such a preclusion order at this time.

Defendants rightly note that the measures plaintiffs offer are more restrictive and yet vaguer than those imposed in Apple or Texas Instruments Inc. In Apple, the court precluded Samsung, the responding party, from challenging Apple's damages expert on failing to apportion damages geographically or by product model, which were the two areas of information that Samsung had not produced. 2013 WL 4426512, at *3. In Texas Instruments, the responding party had failed to provide answers for certain interrogatories, and the court ordered responses with the warning that failure to do so would mean that the facts inquired into by the interrogatories would be taken as established. 2007 WL 1541010, at *11. What plaintiffs seek here – that defendants will agree to not critique plaintiffs' expert reports, motion for class certification, or other positions in this litigation based on information that would have been available in the files – goes beyond what was done in those cases, and at this stage of the litigation it is difficult to see how such a measure could be imposed with any clarity.

*11 Nonetheless, plaintiffs are quite right to note that defendants are seeking to place them in a impossible situation. The information plaintiffs seek is relevant, and to the extent it exists it is possessed by defendants. Defendants argue they should not be required to produce the information – and that the sample plaintiffs seek would be inadequate in any event – and yet defendants will not agree to give up their right to critique plaintiffs' experts for formulating opinions in the absence of this information. Defendants wish to have it both ways, and as such implicitly concede plaintiffs' need for this information.

Defendant C.R. England argues that the burden is further disproportionate because it is not clear the information plaintiffs seek will be found in the driver files at all. Defendant's argument that this is effectively asking defendants to search every document in their possession, going well beyond any reasonable search, is not persuasive. While defendants may not be able to say that the information will definitely be in these files, they are able to say that if it is anywhere, it will be in those files. This is a far cry from requiring defendants to search files not likely to contain the information.

Given the likely value of the information in the files and all that is at stake in this case, the court finds it is reasonable to require defendants to produce a sample of them as plaintiffs request, and the burden this will impose on defendants is not disproportionate to the needs of the case. Yet defendants are right to note that the value of these files is, at this point, somewhat unknown, as is, to some extent, the true burden production will create for defendants. As such, the court orders this production in stages, as specifically described below. During this production, the parties should continue to meet and confer in an effort to reach any and every possible accommodation to ease the burden of production. After the first sample is produced, the parties shall evaluate what information has been produced and then meet and confer regarding the size and nature of any further production. The court contemplates that defendants will ultimately be required to produce a total sample of 500-1,000 driver and applicant files in response to each of RFP Nos. 84/85 and 85/86, but a smaller or larger sample may be warranted depending on what is learned from the initial production, and other modifications in the production may likewise be warranted.

Although the court expects that defendant Western Express will be producing information commensurate with that produced by the other defendants, the court does not specifically order that at this point. Instead, Western Express must promptly meet and confer with plaintiff, and must include TenStreet in those conferences, with an aim toward exchanging information and reaching agreement on producing information responsive to RFP Nos. 84 and 85. That Western Express has chosen to outsource its file management to a third-party vendor does not excuse it from complying with valid discovery requests, nor does its pending motion to dismiss excuse it from delaying its responses to these RFPs any longer absent an order of the court.

IV. CONCLUSION

Based on the foregoing, it is hereby ordered that plaintiffs' motions to compel are granted in part as follows:

Defendant Schneider shall further respond to RFP Nos. 84 and 85 by:

Defendant C.R. England shall further respond to RFP Nos. 85 and 86 by:

Defendant Western Express shall further respond to RFP Nos. 84 and 85 by promptly meeting and conferring with plaintiffs, with TenStreet included in those conferences, in an attempt to quickly reach agreement as to what information Western Express will produce in response to these RFPs.

If the parties are unable to resolve their disagreements, or reach a point in their discussions at which they believe the court may be of assistance, they should schedule a telephonic conference with the magistrate judge. That conference may result in an informal resolution, or it may be a preface to a more formal motion.