*1 On September 3, 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. 34. 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 September 15, 2020, plaintiff filed a Supplemental Memorandum in support of the motion to compel (“P. Supp. Mem.”). Defendant filed an Objection and Response to plaintiff's Supplemental Memorandum on September 22, 2020.

The court found a hearing on the motion would not be of assistance, and so vacated the hearing scheduled for September 29, 2020. The court now denies plaintiff's motion to compel without prejudice and orders further meet and confer 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 Requests for Production of Documents (“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 various discovery disputes.

On July 30, 2020 plaintiff sent an additional meet and confer letter that was more specific to the only RFP at issue in this motion, RFP No. 26. Id. ¶ 7, Ex. I. Although plaintiff states it sent a further meet and confer letter on August 17, 2020, this communication appears to have been a brief follow-up email rather than a new letter entirely. Id. ¶ 9, Ex. K. The parties met and conferred telephonically on August 7 and 20, 2020. Id. ¶ 9.

The parties here dispute a single request for production, as set out in the Joint Stipulation. Plaintiff properly filed a Supplemental Memorandum 14 days before the noticed hearing date, as permitted by Local Rule 37-2.3. Defendant filed an Objection one week later, contending plaintiff raised unspecified new issues in the Supplemental Memorandum. The court saw no new issues; instead, plaintiff simply responded to points made by defendant in the Joint Stipulation. As such, defendant's objection is overruled. The bulk of defendant's Objection and Response was, in fact, a late supplemental memorandum in response to plaintiff's Supplemental Memorandum. The court declines to consider this late filing.

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.”) (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. Discovery on Defendant's Right to Control Plaintiff and Other Putative Class Members Is Relevant to Class Certification as Well as the Merits

The parties first dispute whether plaintiff's RFP No. 26, the only RFP at issue, improperly seeks documents going to the merits of plaintiff's claims, or if it also pertains to class certification issues.

*3 RFP No. 26 seeks all documents and Electronically Stored Information (“ESI”) reflecting defendant's communications with California franchisees and about California franchisees who defaulted, performed deficiently, or breached their Dealer Franchise Agreements between 2015 and the present. JS at 6.

Plaintiff contends the crux of this case is whether he and other California dealers were misclassified as independent contractor franchisees instead of employees. Id. at 10. Plaintiff contends documents about the extent of defendant's control over working conditions will address whether: (1) dealers are in fact misclassified; and (2) a class should be certified. Id. at 10-17. Plaintiff argues documents responsive to RFP No. 26 pertain to both class certification and the merits of his claims, including being highly relevant to establishing predominance and commonality because they may show common evidence of control over workers. Id. at 12-17.

Defendant argues plaintiff is not entitled to irrelevant merits discovery before class certification, and discovery at this juncture should be limited to the number of class members, existence of common questions, typicality of claims, and a representative's ability to represent a class. Id. at 18.[2] Defendant further argues it has already produced more than 10,000 pages of documents in response to interrogatories, and plaintiff already has the information he needs to determine whether class certification is appropriate. Id. at 20-21.

As an initial matter, the court has not bifurcated merits and class certification discovery in this case. The cutoff to conduct all discovery is January 5, 2021, a mere three months from now. As such, plaintiff cannot put off merits discovery, and even if RFP No. 26 went solely to the merits, that would not make it improper. It could, however, affect the court's analysis with respect to whether the requested production is too burdensome prior to class certification. But in any event, this request does not go solely to the merits.

If produced, the documents responsive to RFP No. 26 would include: (1) all contracts and agreements that defendant entered into with California dealers; and (2) all communications that defendant had with dealers, including disciplinary decisions. Id. at 15. This latter category of documents, according to plaintiff, could include documents such as Personal Contact Reports assessing dealer performance, communications via phone, email, or letter showing the frequency and type of contact between defendant and a dealer, and a district manager's evaluations of dealer performance. Id. at 14-16.

*4 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)). There are also “secondary indicia of the nature of a service relationship,” including whether an alleged employer has the right to discharge at will and without cause. S.G. Borello & Sons, Inc., 48 Cal. 3d at 350-51.

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.

There is thus significant caselaw finding that documents such as common agreements are relevant to establishing predominance under Rule 23(b)(3), and documents showing an employer's right to control are relevant to class certification, as well as the merits of the case. Additionally, at this stage in the litigation, plaintiff must only show that the pre-certification discovery he seeks is likely to substantiate the class allegations. Mantolete, 767 F.2d at 1424. He has made such a showing here. But as discussed further below, defendant's objections based on burden and privacy are well-taken and warrant further discussion between the parties.

C. The Parties Must Meet and Confer Further on Ways to Mitigate Defendant's Burden

The parties further dispute whether RFP No. 26 is overbroad and imposes an undue burden. Defendant argues plaintiff's request is overbroad, unduly burdensome, and excessive based on several grounds: (1) that the request seeks simultaneous class certification discovery and merits discovery; (2) defendant has already produced all documents plaintiff needs to determine whether a class action is appropriate; and (3) identifying the relevant documents will require reviewing over 99 franchisees' histories. JS at 17-21. It is not up to defendant to decide whether plaintiff has all he needs to move for class certification. And as discussed above, plaintiff is entitled to at least some documents showing defendant's right to control its franchisees, which is relevant to establishing predominance under Rule 23(b)(3). But the last of defendant's objections – that the process of identifying and reviewing the documents sought will be time-intensive – is well-taken.

RFP No. 26 seeks all documents and ESI reflecting defendant's communications with California franchisees and about California franchisees who defaulted, performed deficiently, or breached their Dealer Franchise Agreements between 2015 and the present. Id. at 6. Defendant argues searching for responsive documents will require a multi-step process. Id. at 18. Defendant anticipates having to first determine which franchisees defaulted, performed deficiently, or breached any standards set forth by defendant during the relevant time period, and then review every document and communication for and about such franchisees for responsiveness. Id. Defendant further argues the phrasing of RFP No. 26 does not lend itself to easy keyword searches, as a responsive document may not necessarily include terms such as “default,” “deficient,” or “breach.” Id.

*5 Plaintiff argues an eyes-only review of communications with 100 individuals is not inherently burdensome, and specific categories of documents exist that defendant can use as the basis of its search, such as Dealer Audit Reports, emails and letters, Personal Contact Reports, and Ride Reports. P. Supp. Mem. at 1-2. Plaintiff further argues defendant does not address proportionality, and contends it is possible that over ten million dollars is at issue in this action, thus warranting the discovery sought. Id. at 2.

It is unclear how many documents are at issue, since neither party provides an estimate of how voluminous each franchisee's file or records of communications may be. Additionally, although plaintiff argues defendant could easily produce certain categories of documents for each franchisee, the court has no way of determining whether defendant could in fact produce these documents with “little burden.” Given that defendant states there are 99 putative class members and the relevant time period extends from 2015 to the present, the court assume the universe of responsive documents may be broad, but again, that is not clearly established her. In short, there may be a significant burden on defendant, but the court does not have enough information to determine how great the burden is or whether the burden is undue or disproportionate.

Further meet and confer is necessary at this juncture, particularly since plaintiff states defendant never raised a burden objection during their past discussions. See id. at 1. Plaintiff states he would be satisfied with a random sample of 35 or so class members – a resolution that may significantly reduce the burden on defendant. See id., n.3. But there is no indication that the parties have discussed this possibility. Nor is there any indication the parties have negotiated any ESI search terms that could reduce the need for an intensive, “eyes-only” review. Id. at 1. Accordingly, the parties must meet and confer further on whether they can agree on a sample size of putative class members, if there are mutually acceptable search terms that defendant can use to search its ESI, and any other procedures that might lessen the burden.

D. The Parties Must Meet and Confer Further on the Putative Class Members' Privacy Interests

Finally, the parties dispute whether RFP No. 26 violates the privacy rights of the putative class members.

Defendant contends the documents sought would include information about putative class members' financial affairs, business dealings, and individual sales performance, and plaintiff has provided no evidence that these class members' privacy rights are outweighed by his need for the documents. JS at 21-22. Plaintiff argues defendant has not met its burden of explaining why producing these documents would be a serious invasion of privacy, and contends putative class members may reasonably want their information disclosed. P. Supp. Mem. at 4-5. Plaintiff further argues there may be alternatives that would allow defendant to produce documents without harming these privacy interests, such as a protective order or redaction. Id.

Plaintiff provides certain exemplar documents to show that the information contained therein is not sensitive. See Markley Decl. ¶¶ 11-13, Exs. M, N, and O. These sample documents are plaintiff's Personal Contact Reports, Dealer Franchise Agreement, and dealer audit report. Id. But contrary to plaintiff's argument, the documents include information such as plaintiff's sales performance, performance evaluations by a district manager, and notes about plaintiff's personal schedule. See id. ¶ 11, Ex. M (noting an area of improvement for plaintiff based on his sales performance), id. ¶ 13, Ex. O (including notes on when plaintiff was on vacation and criticisms of plaintiff's sales performance). Additionally, the Dealer Franchise Agreement includes portions that include the name of a dealer's spouse. See id. ¶ 12, Ex. N at 7 (including a signature line for a dealer's spouse). Such information is plainly sensitive, and is similar to the type of information that would be contained in an employee's personnel file.

*6 Federal courts ordinarily recognize that a constitutionally-based right of privacy can be raised in response to discovery requests. Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995). The resolution of a privacy objection involves a balancing of the need for the information sought against the privacy right asserted. Id. (citing Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1447 (11th Cir. 1984)).

Defendant cites several cases supporting the proposition that individuals have privacy rights in their financial affairs and business dealings. See JS at 21. California courts have recognized that individuals have a right to privacy in their financial information. See Cobb v. Superior Court, 99 Cal. App. 3d 543, 552, 160 Cal. Rptr. 561 (1979) (recognizing an individual's right to privacy in his financial information); see also Burkle v. Burkle, 135 Cal. App. 4th 1045, 1063, 37 Cal. Rptr. 3d 805 (2006) (“The right to privacy extends to one's personal financial information.”).

The documents sought here certainly contain some financial information, but more closely resemble the kinds of records that would exist in an employee's personnel file. For instance, as discussed above, the exemplar documents plaintiff attaches as exhibits to the Joint Stipulation include information about individual sales performance, feedback provided as part of a performance evaluation, and notes about a dealer's personal schedule.

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 plaintiff seeks what could amount to a wholesale production of the personnel files of all putative class members. Indeed, plaintiff suggests that defendant could produce “Dealer Audit Reports, DM emails and letters (including breach letters), Personal Contact Reports (PCRs), and Ride Reports... for each class member with little burden as it did for [p]laintiff.” P. Supp. Mem. at 2. The parties do not cite any cases in which courts have ordered such a broad production of documents containing the sensitive information of putative class members, and the court is aware of none.

Plaintiff argues the protective order already entered in this case can adequately protect these putative class members' privacy interests, and defendant could redact putative class members' names or other identifying information from the documents sought. Id. But there is no indication that the parties have discussed whether redactions coupled with the existing protective order could adequately address these privacy concerns. Nor does it appear they have discussed other measures that could be taken. Accordingly, the parties must meet and confer further on steps that can be taken to mitigate these privacy concerns.

For the foregoing reasons, the court denies plaintiff's motion to compel (docket no. 34) without prejudice. Although it is clear some production in response to RFP No. 26 is warranted, the court orders the parties to promptly engage in further meet and confer about the scope and nature of the production, as set forth above. If they are unable to agree on the production and believe the court may be of assistance without need for another formal motion, they may contact the magistrate judge's courtroom deputy clerk to schedule a telephonic conference.