*1 On September 25, 2020, plaintiff Randy Salinas filed a motion to compel further responses to his requests for production of documents from defendant The Cornwell Quality Tools Company. Docket no. 38. Plaintiff specifically seeks further responses to Requests for Production (“RFPs”) Nos. 1, 6, 16, 27, 29, 37, and 38.

The motion is supported and opposed in a Joint Stipulation (“JS”). Plaintiff's arguments are further supported by the declaration of plaintiff's counsel Shaun Markley (“Markley Decl.”) and exhibits thereto. Defendant's arguments are further supported by the declaration of defense counsel Richard Azada and exhibits thereto. On October 6, 2020, plaintiff filed a Supplemental Memorandum in support of the motion to compel (“P. Supp. Mem.”), which is supported by the supplemental declaration of plaintiff's counsel (“Markley Supp. Decl.”) and additional exhibits.

The court found a hearing on the motion would not be of assistance, and so vacated the hearing scheduled for October 20, 2020. The court now grants in part and denies in part plaintiff's motion to compel for the reasons discussed below.

Defendant manufactures, distributes, and sells tools and related products such as tool boxes and service equipment. Defendant carries out sales primarily through dealers who drive around in mobile dealerships stocked with Cornwell tools. Plaintiff has worked as a dealer for defendant in California since 2007. Plaintiff brings this putative wage and hour class action against defendant under the California Labor Code and California Unfair Competition Law, Cal. Bus. and Prof. Code § 17200, alleging he and other dealers are entitled to unpaid wages and reimbursement for business expenses and illegal deductions. Plaintiff's proposed class is defined as all individuals during the class period who worked in California for defendant as a dealer or any similar title, and who were not classified as employees.

On February 27, 2020, plaintiff served written discovery requests on defendant. See Markley Decl. ¶ 2. Defendant served its objections to plaintiff's RFPs on May 15, 2020. Id. ¶ 3, Ex. A. On May 27, 2020, plaintiff sent his first meet and confer letter. Id. ¶ 4, Ex. B. On May 28, 2020, the parties met and conferred telephonically. Id. ¶ 4. The parties then met and conferred several more times about the discovery disputes at issue here, including on August 7 and 20, 2020, but were unable to reach a resolution. Id. ¶¶ 9, 10.

On September 3, 2020, plaintiff filed a motion to compel based on a different discovery dispute between the parties. The court denied that motion without prejudice on October 2, 2020 and ordered further meet and confer. Meanwhile, plaintiff filed the instant motion on September 25, 2020.

There are seven RFPs at issue in the instant motion, RFP Nos. 1, 6, 16, 27, 29, 37, and 38. The parties' dispute about six of these RFPs is based on whether defendant's process of searching for responsive documents was adequate. RFP No. 37 raises separate issues of relevance and overbreadth, and the court addresses it separately below.

A. Legal Standards

*2 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).

“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). Plaintiff here appears to seek to certify a Rule 23(b)(3) class, which would require plaintiff to additionally show that “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)(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.”).

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. Defendant Is Not Required to Produce Documents in Response to RFP No. 37

RFP No. 37 seeks “[a]ll DOCUMENTS and ESI reflecting communications between YOU and California ‘shops’ serviced by YOUR California franchisees between 2010 and the present (the term ‘shop’ is used in the same way as it was used by YOU in the DOCUMENT YOU provided to PLAINTIFF on February 2, 2007 identifying approximately 114 ‘shops’).” JS at 54.

*3 The California shops referred to in RFP No. 37 are mechanical service stores that make up the bulk of defendant's customer base. See FAC at 2. Plaintiff argues communications between defendant and these shops are relevant to his claim that defendant misclassified plaintiff and other franchisees. JS at 21. Plaintiff contends the communications could demonstrate whether a shop has an independent relationship with defendant, if shops have the ability to negotiate prices with dealers or defendant, the representations defendant makes about its franchisees, and how shops use defendant's tech-credit program. Id. at 21-22. Plaintiff contends the last of these categories – communications about defendant's tech-credit program – will demonstrate who is truly responsible for selling products, defendant or individual dealers. Id.

As the court has previously discussed, under California law, “the principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired....” S.G. Borello & Sons, Inc. v. Dep't of Industrial Relations, 48 Cal. 3d 341, 350, 256 Cal. Rptr. 543, 769 P. 2d 399 (1989) (quoting Tieberg v. Unemployment Ins. App. Bd., 2 Cal. 3d 943, 946, 88 Cal. Rptr. 175, 471 P. 2d 975 (1970)). Determining whether an employer-employee relationship exists can be an individualized question, but an employer's right to control the work of an employee is susceptible to common proof. See Norris-Wilson v. Delta-T Grp., Inc., 270 F.R.D. 596, 607 (S.D. Cal. 2010); see also Dalton v. Lee Publications, Inc., 270 F.R.D. 555, 563 (S.D. Cal. 2010) (right to control susceptible to common proof where the rights and obligations of the class members and defendant were set forth in substantially identical contracts); Alfred v. Pepperidge Farm, Inc., 322 F.R.D. 519, 544-46 (C.D. Cal. 2017), modified, 2017 WL 5665019 (C.D. Cal. July 13, 2017) (scope of right to control was governed by consignment agreements common to all putative class members). Documents showing an employer's right to control can weigh in favor of class certification by demonstrating predominance. See Norris-Wilson, 270 F.R.D. at 608; Dalton, 270 F.R.D. at 563; Alfred, 322 F.R.D. at 546.

Although certain communications between defendant and shops serviced by franchisees may well be relevant to plaintiff's misclassification claim, that does not mean all such communications as requested by RFP No. 37 are. There may be some relevant communications in the universe of responsive documents, such as those concerning defendant's representations about its franchisees to shops, but the RFP seeks a much broader category of information. As defendant argues, the RFP seeks “every single communication that defendant may have had with shops regardless of the topic, and regardless of who sent the communication.” JS at 38. Defendant further argues RFP No. 37 seeks communications that predate the class period here by several years without explanation. Id. The court agrees.

There are instances when a broad request for all communications between certain individuals or entities is appropriate, but this is not such an instance. Defendant states the parties have been unable to agree on any way of limiting this RFP. Id. at 38. Because plaintiff offers no way of narrowing the scope of this request, which essentially seeks all communications between defendant and approximately 114 shops from 2010 to the present, the court sustains defendant's objections on the basis of relevance and overbreadth. Accordingly, plaintiff's motion to compel is denied as to RFP No. 37.

C. Defendant Must Provide a Clearer Explanation of Its Self-Collection of ESI and Must Produce a Privilege Log

The remaining RFPs are disputed principally because of defendant's process for searching for responsive documents.

*4 RFP No. 1 seeks all “DOCUMENTS and ESI reflecting communications between YOU and PLAINTIFF, or reflecting any communications referencing or concerning PLAINTIFF.” JS at 43.

RFP No. 6 seeks “[r]epresentative copies of DOCUMENTS and ESI YOU provide to YOUR California franchisees between 2015 and the present, including but not limited to company newsletters, product promotions/updates, schedules, business updates, and warranty information.” Id. at 46.

RFP No. 16 seeks “[a]ll DOCUMENTS and ESI in YOUR possession, custody, and control relating to complaints by YOUR franchisees whether through an internal process or on any social media or other online messaging platform, including YOUR internal communications relating to these complaints and communications with any with any such platform relating to these complaints.” Id. at 48.

RFP No. 27 seeks “[a]ll DOCUMENTS and ESI describing YOUR process or procedures for addressing deficient performance, breach, default, or the like by YOUR California franchisees. Id. at 50.

RFP No. 29 seeks “[a]ll DOCUMENTS and ESI relating to YOUR training of PLAINTIFF and California franchisees, including but not limited to your policies and procedures for training, onboarding materials, materials presented to franchisees during the training process, documents generated during and after the training process, continued training and education efforts, and the like.” Id. at 52.

RFP No. 38 seeks “[a]ll DOCUMENTS and ESI reflecting YOUR advertisements relating to franchisees between 2015 and the present.” Id. at 56.

Defendant objects to each of these RFPs on various grounds, but states all responsive documents have now been produced and no further documents exist. Id. at 36-57. Plaintiff challenges the adequacy of defendant's search and contends the deficiency of the search is plain from defendant's meager production of documents in response to some of the RFPs. Id. at 25-27. Plaintiff also asks the court to overrule defendant's objections and compel defendant to produce “code compliant” responses without objections. Id. at 27-35. The court will not overrule defendant's objections wholesale, and will not rule on the validity of each objection as it relates to each RFP since defendant does not appear to be standing on those objections in its substantive responses to RFP Nos. 1, 6, 16, 27, 29, and 38.

As for whether defendant undertook an adequate search for responsive documents, defendant has described its search process as follows:

JS at 16-17; Azada Decl. ¶ 6, Ex. W.

Plaintiff argues defendant has not meaningfully explained how it searched for responsive documents, and failed to engage with plaintiff in a dialogue about electronically stored information (“ESI”). JS at 21-27. Based on defendant's explanations, plaintiff understands the search to have been undertaken by unspecified individuals self-searching their own computers or Outlook accounts with unspecified terms or parameters. Id. at 25.

As an example of defendant's purportedly inadequate production, plaintiff notes defendant produced just 18 pages of emails, consisting of roughly 7 email chains, in response to a request for all communications with and about plaintiff. Id.; Markley Decl. ¶ 14, Ex. P. Nearly all of these emails date to a two-month period in September and November 2019 around the time plaintiff was terminated. But a Dealer Activity Report for plaintiff, which logged all communications between plaintiff and his District Manager, indicates emails were sent to plaintiff on a weekly basis, if not more frequently, during his employment. See Markley Decl. ¶ 15, Ex. Q (Dealer Activity Report). Plaintiff further argues defendant does not appear to have searched his old Cornwell email account based on the absence of emails from this account. JS at 25, n.3. Plaintiff states he lost access to this account when he was terminated. Id.

Plaintiff also notes that while defendant states it has produced all responsive training materials from the relevant time period, plaintiff was able to find additional, unproduced training materials from a simple internet search. See Markley Decl. ¶ 17. Plaintiff asks that the court order defendant to: (1) fully explain its ESI methodology to date; (2) explain its document preservation efforts and protocols; and (3) engage a professional discovery vendor to assist with collecting and producing responsive materials. P. Supp. Mem. at 5.

The court agrees that defendant's production of at least its communications with or about plaintiff seems implausibly limited in light of plaintiff's Dealer Activity Report, which references years of written communication between plaintiff and his District Manager. Additionally, defendant does not address plaintiff's arguments that defendant has failed to search plaintiff's old email account and did not produce all relevant training materials.[2] These apparent gaps in production suggest the search overall was deficient, and there may be other, less-apparent responsive items missing from production.

*6 A party's decision to self-search for documents does not necessarily render the results of that search unreliable. Yet, “effective custodian-conducted searches must give specific directions as to search terms and techniques and ... the reliability of a self-search cannot be determined without examination of the parameters of the search.” Brown v. W. Corp., 287 F.R.D. 494, 499 (D. Neb. 2012) (citation omitted). “At a minimum, parties must share some information about the protocol used to ensure that responsive documents are collected and produced.” Toyo Tire & Rubber Co. v. CIA Wheel Grp., 2016 WL 6246384, at *1 (C.D. Cal. Feb. 23, 2016). A private discovery vendor may not be appropriate when “[o]verspending on discovery risks creating litigation costs that are out of proportion to the possible returns.” Ai-Daiwa, Ltd v. Apparent, Inc., 2014 WL 3738348, at *3 (N.D. Cal. July 28, 2014)

Here, defendant's explanation of its search process provides no details about the relevant custodians, the keywords that were used, or the databases that were searched. Defendant's explanation states only that the heads of certain departments were instructed to search their personal computer drives and hard copy files, and “IT staff search[ed] the company system computer drives.” JS at 16-17; Azada Decl. ¶ 6, Ex. W. This explanation is inadequate. See, e.g. Toyo Tire & Rubber Co., 2016 WL 6246384 at *1 (“It does not appear to the Court that counsel have meaningfully conferred about e-mail custodians, keyword searches, and other fundamentals of ensuring that all responsive e-mails have been produced.”).

Defendant states it has already produced more than 10,000 pages of documents plus responses to plaintiff's interrogatories, and argues plaintiff already has all he needs for class certification. JS at 41-42. But as stated in the court's previous discovery order, it is not up to defendant whether plaintiff has what he needs for class certification.

Accordingly, defendant is ordered to explain to plaintiff in detail its ESI search methodology and document preservation efforts and protocols. In providing plaintiff with specific information about its ESI search methodology, this must include the custodians involved and the keywords and databases that were searched, along with other information reasonably requested by plaintiff. Plaintiff is not required to retain a professional discovery vendor at this point. But if, after learning the details of the search conducted, plaintiff believes the search conducted was inadequate, the parties must meet and confer regarding the adequacy of that methodology, whether additional searches are warranted, and the methodology of any such additional searches. If the parties are unable to reach agreement after fully meeting and conferring in good faith, they may seek the court's assistance, including, if they wish, requesting a telephonic conference with the magistrate judge in an attempt to resolve their dispute informally.

Additionally, plaintiff notes that it appears defendant may be withholding certain documents on the ground that they are privileged, and requests a privilege log. JS at 35-36. Among the exhibits to the Joint Stipulation is an email from defense counsel dated September 17, 2020 stating that defendant would produce a privilege log by September 30, 2020. See Markley Decl. ¶ 13, Ex. N. It appears defendant had not produced a privilege log at the time the motion was filed. If defendant is withholding documents on the grounds of privilege and has not yet produced a privilege log, it must do so immediately. See Fed. R. Civ. P. 26(b)(5)(A) (party claiming the privilege must “describe the nature of the documents, communications, or tangible things not produced or disclosed ... in a manner that ...will enable other parties to assess the claim”); Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1148-49 (9th Cir. 2005) (boilerplate objections inserted into a response are insufficient to assert a privilege); Friends of Hope Valley v. Frederick Co., 268 F.R.D. 643, 650-51 (E.D. Cal. 2010) (privilege log is the most common format for the descriptions of documents withheld from discovery).

*7 For the foregoing reasons, the court grants in part and denies in part plaintiff's motion to compel (docket no. 38), as described above.