As the Court previously advised, under Federal Rule of Civil Procedure 26(b)(1), discovery is permitted of “any nonprivileged matter that is relevant to any party's claim or defense;” Rule 26(b) is to be “liberally interpreted to permit wide-ranging discovery of information;” and the burden here is on plaintiff to show that the discovery being sought by defendant should not be allowed. See August 4, 2011, Order Re: Defendant's Motion to Compel (Docket No. 47), at 3. Based on its review of the Second Amended Complaint, and the parties' positions in connection with the Motions, the Court finds that much of the requested discovery, as modified below, is relevant under these standards, and plaintiff's objection that the discovery is not narrowly tailored to lead to the discovery of admissible evidence is in large part rejected.

The Court also previously advised that the burden is on the objecting party to show grounds for failing to provide the requested discovery, and that for a burdensomeness argument to prevail, it must be based on affidavits or other evidence showing the exact nature of the burden. See, e.g., Smith v. B & O Railroad Co., 473 F.Supp. 572, 585 (D. Md. 1979); Kansas-Nebraska Natural Gas v. Marathon Oil Co., 109 F.R.D. 12, 24 (D. Neb. 1983); see also August 4, 2011, Order, at 4. Thus, plaintiff's generalized objections that the information and documents sought are overbroad and unduly burdensome are insufficient.

In addition, to the extent plaintiff objects that various Requests seek information equally available to defendant, “courts have unambiguously stated that this exact objection is insufficient to resist a discovery request.” St. Paul Reinsurance Co., Ltd., CNA v. Commercial Fin. Corp., 198 F.R.D. 508, 514 (N.D. Iowa 2000); see also City Consumer Servs., Inc. v. Horne, 100 F.R.D. 740, 747 (D. Utah 1983) (“It is ‘not usually a ground for objection that the information is equally available to the interrogator or is a matter of public record.’ ” (citation omitted)); United States v. 58.16 Acres of Land, 66 F.R.D. 570, 573 (E.D. Ill. 1975) (“Generally, an interrogatory is proper although the information sought is equally available to both parties.”); National Academy of Recording Arts & Sciences, Inc. v. On Point Events, LP, 256 F.R.D. 678, 682 (C.D. Cal. 2009). Based on the information provided to the Court, plaintiff cannot avoid the production of documents in her possession, custody, or control on the basis of this objection. See, e.g., Walt Disney Co. v. DeFabiis, 168 F.R.D. 281, 284 (C.D. Cal. 1996).

Next, to the extent that plaintiff asserts that all non-privileged documents responsive to these Requests have already been produced, “including [in] past document productions, depositions, or exhibits to motions (e.g., in support of Plaintiff's opposition to Defendant's motion for summary judgment and motion for class certification),” such a response is insufficient. As defendant points out:

Scaife v. Boenne, 191 F.R.D. 590, 594 (N.D. Ind. 2000) (internal quotations and citation omitted); see also United States v. Dist. Council of New York City and Vicinity of United Bhd. of Carpenters and Joiners of America, 1992 WL 188379 (S.D.N.Y. July 30, 1992) (“Where the interrogating party makes a request for an answer to certain questions, a [party] responds inappropriately by merely designating documents because the interrogatory did not call for business records.”); Continental Illinois Nat. Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 686 (D.Kan. 1991) (“Incorporation by reference to a deposition is not a responsive answer.”).

Plaintiff also cannot rely on her assertion that she “interprets ‘you’ to mean Plaintiff Catalina Ricaldai”[1] to avoid production of responsive information and documents. Documents are within a party's possession, custody or control where the party has actual possession thereof, or the right to obtain the documents on demand. In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995). “A party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document.” Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995). “This includes documents under the control of the party's attorney.” Bovarie v. Schwarzenegger, 2011 WL 719206, at *4 (S.D. Cal. Feb. 22, 2011) (internal citation omitted); see also Axler v. Scientific Ecology Group, Inc., 196 F.R.D. 210, 212 (D. Mass. 2000) (A “party must produce otherwise discoverable documents that are in his attorneys' possession, custody or control.”). Thus, to the extent that plaintiff's counsel has non-privileged responsive documents in its possession, custody, or control, such documents must be produced.

Finally, plaintiff further asserts that the Motions are premature because defense counsel did not send plaintiff's counsel a letter identifying each issue, defendant's position, and the terms of the discovery being sought until after the parties met and conferred on July 30, 2012, in violation of Local Rule 37-1. Joint Stipulation re Motion to Compel Interrogatories and Documents (“Joint Stip. Re Requests”), at 4-5; Joint Stipulation re Motion to Compel Subpoenas (“Joint Stip. Re Subpoenas”), at 4-5; Strauss Decl. Re Requests, at ¶ 11. Plaintiff contends that defense counsel's delivery of the letter after the conference deprived plaintiff of a meaningful opportunity to address the issues in that letter, and that defendant denied plaintiff's request for additional time to respond. Joint Stip. Re Requests, at 5; Joint Stip. Re Subpoenas, at 5. For its part, defendant represents that plaintiff's motion for class certification, filed on June 29, 2012 (see Docket No. 80), revealed that plaintiff had documents and information in her possession that were responsive to interrogatories and requests for documents previously served on plaintiff, but that plaintiff did not timely disclose those documents or that information to defendant, in violation of Rules 26, 33, and 34 of the Federal Rules of Civil Procedure. Declaration of Lara K. Strauss in Support of Motion to Compel Document Subpoenas (“Strauss Decl. Re Subpoenas”), Ex. B; Joint Stip. Re Requests, at 29-30. On July 3, 2012, defense counsel sent a letter to plaintiff's counsel requesting that plaintiff update her initial disclosures and responses to the interrogatories and requests for documents at issue here, and that plaintiff produce drafts of the declarations filed in support of plaintiff's motion for class certification and all other communications between plaintiff's counsel and putative class members. Strauss Decl. Re Subpoenas, Ex. B. The letter also indicated that if plaintiff intended to challenge the scope of the subpoenas, the parties would “need to build in sufficient time for USIS to review the basis for the withholdings and for [the Magistrate Judge] to resolve any disputes related [thereto].” Id., at 20. On July 23, 2012, plaintiff served supplemental responses to the interrogatories and requests for documents, and attached a privilege log identifying responsive documents plaintiff was withholding on the grounds of the attorney client privilege and work product doctrine. Strauss Decl. Re Requests, at ¶ 10, Exs. I, J, K, L. On July 30, 2012, counsel met and conferred over the discovery disputes at issue in the instant Motions. Strauss Decl. Re Requests, at ¶ 11; Strauss Decl. Re Subpoenas, at ¶ 11. According to defendant, the declarants did not produce documents responsive to the subpoenas by August 8, 2012, the deadline set forth in the subpoenas. Strauss Decl. Re Subpoenas, Ex. C.; Declaration of Lara K. Strauss in Support of Defendant's Supplemental Briefs (“Strauss Supp. Decl.”), at ¶ 7. The declarants are currently scheduled to appear for depositions from September 10-20, 2012. Accordingly, in order to move this litigation forward, the Court waives any perceived non-compliance with Local Rule 37 in this particular instance, and resolves the issues raised in the Joint Stipulation as follows:

Interrogatory No. 7 -- granted

This Interrogatory seeks, for each common issue of fact identified in response to Interrogatory No. 6,[2] the identification of all witnesses plaintiff believes have knowledge pertaining to the common issue of fact, by providing their name, address, telephone number, and current or former job title at USIS. Plaintiff objected to this Interrogatory on the basis that it seeks information that is protected by the attorney client privilege and the work product doctrine. Joint Stip. Re Requests, at 8. Plaintiff also asserted that “the identity of persons was disclosed in Plaintiff's initial disclosures[ ] and motion for class certification,” as well as that “any potential class member may have such knowledge [and] Defendant has access to their contact information, since Defendant employed such persons.” Id. Defendant contends that the attorney client privilege and work product doctrine do not apply to information concerning the identity of witnesses and potential witnesses, and that plaintiff's mere references to information defendant may already have, or that was included in other disclosures and filings with the Court, are improper. Id., at 10, 12-13.

As an initial matter, the Court notes that because plaintiff's case is comprised of state law claims and the Court has jurisdiction over this action on diversity grounds, state law must be applied to determine whether the attorney client privilege prevents disclosure here. See Samuelson v. Susen, 576 F.2d 546, 549 (3d Cir. 1978) (“Rule 501 requires a district court exercising diversity jurisdiction to apply the law of privilege which would be applied by the courts of the state in which it sits”); see also QST Energy, Inc. v. Mervyn's and Target Corp., 2001 WL 777489, at *2 (N.D. Cal. July 12, 2001). In California, “[t]he attorney-client privilege, codified at Evidence Code section 954, authorizes a client to refuse to disclose, and prevent others from disclosing, confidential communications between a client and his or her attorney.” Kerner v. Superior Court, 206 Cal.App.4th 84, 111 (Cal. App. 2 Dist. 2012).

In addition, Rule 26(b)(3) of the Federal Rules of Civil Procedure may “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney ... concerning the litigation.”[3] The work product doctrine “is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy ‘with an eye toward litigation,’ free from unnecessary intrusion by his adversaries.” United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (quoting Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). “To be entitled to the protection of the work product rule, the material must have been generated in preparation for litigation. The prospect of future litigation is insufficient.” Whitman v. United States, 108 F.R.D. 5, 9 (D.N.H. 1985).

Plaintiff's objections to this Interrogatory fail. The attorney client privilege does not protect against the disclosure of the identity of witnesses and potential witnesses. See Nacht v. Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214, 218 n.2 (Cal. App. 3 Dist. 1996) (citing Aerojet-General Corp. v. Transport Indemnity Insurance, 18 Cal.App.4th 996, 1004 (Cal. App. 1 Dist. 1993)) (“attorney-client privilege cannot be used to shield facts underlying communications that are otherwise subject to discovery, such as the identity of potential witnesses”). Neither does the work product doctrine shield the identity of such individuals. See American Floral Servs., Inc., v. Florists Transworld Delivery Ass'n, 107 F.R.D. 258, 260 (N.D. Ill. 1985) (finding that “the identity of witnesses having knowledge of relevant facts is discoverable information” despite the plaintiff's assertion that such information constituted attorney work product); Plumbers & Pipefitters Local 572 Pension Fund v. Cisco Systems, Inc., 2005 WL 1459555, at *4 (N.D. Cal. June 21, 2005) (quoting Hoffman v. United Telecomms., Inc., 117 F.R.D. 440, 444 (D.Kan. 1987)) (“It is generally accepted that the ‘work product doctrine does not protect against the disclosure of facts or the identity of persons from whom the facts are learned.’ ”). Furthermore, as discussed supra, “[i]t is not usually a ground for objection that the information is equally available to the interrogator.” City Consumer Servs., Inc., 100 F.R.D. at 747. Finally, to the extent that plaintiff asserts that she already responded to this Interrogatory in her initial disclosures and motion for class certification, the privilege log provided to defendant on July 23, 2012, reflects that plaintiff's counsel has communicated with, and participated in drafting declarations for, a number of putative class members other than the declarants. See Strauss Decl. Re Requests, Ex. L (“Privilege Log”), Entry Nos. 297, 300-01, 304, 309, 311, 320, 325-26, 331, 333-37, 340-43, 359, 368. Thus, plaintiff's assertion that “the identity of persons was disclosed in Plaintiff's initial disclosures[ ] and motion for class certification” does not appear to account for all witnesses plaintiff believes have knowledge pertaining to each common issue of fact she identified in response to Interrogatory No. 6. Plaintiff must provide all information responsive to this Interrogatory.

Interrogatory No. 8 -- granted in part

This Interrogatory seeks, for each common issue of fact identified in response to Interrogatory No. 6, the identification of all documents that support plaintiff's contention that the issues of fact are common (by stating the document title, date of creation, name of author, name of any recipient, and date it was received by plaintiff). In response, plaintiff initially represented that she believed “e-mail communications exist that confirm and/or discuss that USIS does not have a meal policy in place that is compliant with California law,” and that “[s]uch e-mails have been requested by Plaintiff from USIS in discovery.” Joint Stip. Re Requests, at 19. Plaintiff also asserted, referring defendant to plaintiff's privilege log, that some responsive documents are protected by the attorney client privilege and the work product doctrine, and stated that she had already produced all other responsive documents in her possession, custody, and control, “including [in] past document productions, depositions, or exhibits to motions (e.g., in support of Plaintiff's opposition to Defendant's motion for summary judgment and motion for class certification).” Id., at 19-20. Defendant contends that the attorney client privilege and work product doctrine do not apply to the identification of, as opposed to the contents of, documents. Id., at 21.

Plaintiff has made no showing that the attorney client privilege shields the identification of documents sought by this Interrogatory. Moreover, the Court concurs with defendant that plaintiff may not assert the work product doctrine to withhold the identification of documents. See Plumbers & Pipefitters Local 572 Pension Fund, 2005 WL 1459555, at *5 (citing In re Convergent Technologies Securities Litigation, 108 F.R.D. 328, 340-41 (N.D. Cal. 1985)) (evaluating interrogatories that asked the plaintiffs to identify which documents they contended contained information supporting certain of their allegations and finding that the work product doctrine did not apply). Moreover, plaintiff's attempt to incorporate information responsive to this Interrogatory by mere reference to “past document productions, depositions, or exhibits to motions (e.g., in support of Plaintiff's opposition to Defendant's motion for summary judgment and motion for class certification)” is insufficient, as discussed supra. See Scaife, 191 F.R.D. at 594; see also Continental Illinois Nat. Bank & Trust Co. of Chicago, 136 F.R.D. at 686. Plaintiff must provide all information responsive to this Interrogatory.

Request Nos. 7, 14-21 -- granted in part, denied in part

Request Nos. 7 and 16 through 21 seek all documents that support or relate to various contentions by plaintiff, including allegations in the initial Complaint. Request No. 14 seeks all documents that constitute or reflect statements plaintiff obtained at any point that reference meal periods at USIS (including but not limited to declarations, affidavits, completed surveys, completed questionnaires, or other written statements). Request No. 15 seeks all communications that plaintiff has had, since her separation from USIS, with any current or former California investigator employed by USIS related to the allegations in the initial Complaint, including but not limited to e-mail communications, text messages, voicemails, and letters.

In responding to these Requests, plaintiff did not initially object on the grounds that any responsive documents are protected by the attorney client privilege and the work product doctrine, but objected on both these grounds in her supplemental responses and provided defendant with a privilege log at that time. Joint Stip. Re Requests, at 28-29, 41, 50-51, 58-59, 66, 74-75, 82-83, 90-91, 99, 107, 115, 124, 132; Strauss Decl. Re Requests, at ¶ 10, Exs. D, I, J, L. Plaintiff asserts that while plaintiff's counsel does not represent all members of the putative class, it does represent “the investigators who have participated in the case” (Joint Stip. Re Requests, at 7), i.e., the 15 declarants and a number of other putative class members. Declaration of Phillip R. Poliner in Support of Motion to Compel Interrogatories and Documents (“Poliner Decl. Re Requests”), at ¶ 12; Joint Stip. Re Requests, at 16-17 (identifying as “communications between a client and Plaintiff's attorneys” entries in plaintiff's privilege log that are listed as correspondence between unnamed putative class members and counsel or counsel's legal assistant (see Privilege Log, Entry Nos. 300, 304, 309, 320, 325, 336, 340, and 342)). Plaintiff states that the documents identified in the privilege log represent correspondence between plaintiff's counsel and “the witnesses who have participated in the case[ ] and who have transmitted confidential information to [counsel].” Joint Stip. Re Requests, at 17. Plaintiff also contends that the privilege applies to draft declarations of the 15 declarants and other putative class members because the declarations “resulted from communications between Plaintiff's counsel and putative class members, and were typed up and prepared by Plaintiff's counsel after their discussions with the class members.” Plaintiff's Supplemental Brief in Support of Motion to Compel Interrogatories and Documents (“Plaintiff's Supp. Brief Re Requests”), at 1. Defendant argues that the privilege cannot shield the documents in the log from disclosure because putative class members are not represented by class counsel prior to class certification, and no class has yet been certified in this case. Joint Stip. Re Requests, at 30-31. Defendant asserts that the absence of any attorney-client relationship between plaintiff's counsel and the declarants and putative class members here is reflected by the fact that “the communications appear to be the product of a mass mailing conducted by Plaintiff ... to putative class members” which “does not offer legal representation or seek to sign class members up as clients,” but merely requests that the recipients contact plaintiff's counsel so that counsel “may ask ... a few questions.” Id., at 31; see Strauss Decl. Re Requests, Ex. N.

The case law cited by defendant on this issue does not establish its position that plaintiff's counsel does not represent any of the putative class members. In In re McKesson HBOC, Inc. Securities Litigation, 126 F.Supp.2d 1239, 1245 (N.D. Cal. 2000), the court stated that “[w]hile lead counsel owes a generalized duty to unnamed class members, the existence of such a fiduciary duty does not create an inviolate attorney-client relationship with each and every member of the putative class,” but not that plaintiff's counsel in a putative class action cannot have an attorney-client relationship with putative class members. Similarly, while the court in Castaneda v. Burger King Corp., 2009 WL 2382688, at **2, 5 (N.D. Cal. July 31, 2009), stated that “[p]utative plaintiffs' contacts with class counsel do not constitute representation,” it did not specifically address whether an attorney-client relationship existed there based on plaintiffs' counsel's contacts with putative class members, but assumed that no such relationship existed in its analysis of whether pre-certification communication between defense counsel and putative class members was permissible.

As neither plaintiff nor defendant cites persuasive state law cases to support its specific position concerning the existence of the attorney-client relationship here, the Court looks to federal cases on this issue for guidance. “There is no bright line rule as to whether putative class members are considered clients for the purposes of determining whether a communication is privileged.” Gates v. Rohm and Haas Co., 2006 WL 3420591, at *2 (E.D. Pa. Nov. 22, 2006) (internal citations omitted). In Gates, the court noted that “most reported cases on this subject are very fact-and circumstance-specific.” Id. at *3. The court stated that with regard to questionnaires completed by putative class members and transmitted to plaintiff's counsel, “the dispositive factor in determining whether [the questionnaires were discoverable] is whether the putative class members were seeking legal advice or representation at the time they filled out the questionnaires.” Id. The court in Gates found that there were some factors that weighed against the finding of an attorney-client relationship between plaintiffs' counsel and putative class members who had completed a questionnaire at a meeting, including that the meeting was open to the public and plaintiffs' counsel had not had contact with the attendees prior to the meeting. Id. at *5. Nevertheless, the court found that other factors weighed in favor of finding such a relationship, including that the attorneys organized the meeting, the individuals who completed the questionnaires received them directly from and returned them directly to an attorney, a lawsuit had been filed at the time the questionnaires were distributed, and the questionnaires had been kept confidential. Id. The court concluded that “an attorney-client relationship was formed when [the] individuals ... chose to complete and submit the questionnaires.” Id. Similarly, in Vodak v. City of Chicago, 2004 WL 783051 (N.D. Ill. Jan. 16, 2004), the court found that an attorney-client relationship was formed between individuals who completed questionnaires and the attorneys who later represented them where: a lawyers association with which counsel were affiliated organized a meeting to provide legal advice to putative class members; a form questionnaire prepared by counsel was distributed at the meeting; only those who were seeking legal representation or specific advice were requested to complete the form; and the forms were kept confidential and provided only to lawyers who represented those individuals in court. Id. at **1-3.

Here, the instant case had already been filed at the time plaintiff's counsel sent the June 1, 2011, letter to current and former USIS investigators. See Docket No. 1; Strauss Decl. Re Requests, Ex. N. In addition, the privilege log reflects that the declarants and other putative class members communicated directly with plaintiff's counsel. Third, plaintiff represents that the declarations “resulted from communications between Plaintiff's counsel and [the] putative class members, and were typed up and prepared by Plaintiff's counsel after their discussions with the class members.” Finally, plaintiff asserts that the information transmitted to counsel was “confidential” and there is no evidence before the Court that the declarations and other communications being sought have not been kept confidential. Based on these representations, it appears that the 15 declarants and other putative class members with whom plaintiff's counsel communicated may have been seeking legal advice or representation at the time of their communications with counsel, and the Court therefore declines to find that the attorney client privilege does not apply generally to the documents in the privilege log.[4]

Defendant also contends that to the extent the attorney client privilege may apply to any documents responsive to these Requests, plaintiff has waived the privilege in two ways. Defendant first argues that plaintiff waived the privilege by failing to assert it initially, and by only asserting it after defendant initiated the meet and confer process concerning these Requests, some 15 months after plaintiff's initial responses to the Requests. Joint Stip. Re Requests, at 33. Second, defendant asserts that “the declarations themselves contain statements that reveal communications between the putative class members and Plaintiff's counsel sufficient to waive any such privilege,” pointing to statements in the declarations that “when preparing this declaration, I learned for the first time from ... attorney for Plaintiff[ ] that USIS is asserting that it posted meal and rest wage orders in break rooms at various USIS branch offices in California.” Id., at 33-34 (quoting Declaration of Jason Andrews, at ¶ 6 (Strauss Decl. Re Requests, Ex. G, at 122)).

Plaintiff contends that the privilege has not been waived because although she initially failed to assert the privilege, upon her first assertion of the privilege as to these Requests (i.e., in her supplemental responses), she provided defendant with a privilege log containing detailed objections to the claimed documents, thereby correcting her earlier error. Joint Stip. Re Requests, at 14; Plaintiff's Supp. Brief Re Requests, at 2. Among other things, plaintiff also points out that the log was provided prior to the filing of the instant Motions; that after providing the privilege log, she agreed to extend the briefing schedule on her motion for class certification so that defendant could conduct further discovery; and that all of the declarants “whose declarations are being considered”[5] have agreed to be deposed. Id.

In Burlington Northern & Santa Fe Ry. Co. v. United States Dist. Court for the Dist. of Montana (“Burlington”), 408 F.3d 1142, 1149 (9th Cir. 2005), the Ninth Circuit rejected a per se waiver rule that deems a privilege waived if a privilege log is not produced within the 30-day time limit set forth in Federal Rule of Civil Procedure 34.[6] Instead, the court stated that “a district could should make a case-by-case determination” when considering whether a privilege is waived by the failure to timely provide a privilege log, taking into account the following factors:

Id. The Ninth Circuit further stated that “[t]hese factors should be applied in the context of a holistic reasonableness analysis, intended to forestall needless waste of time and resources, as well as tactical manipulation of the rules and the discovery process.” Id.

Here, while plaintiff did not assert the privilege in her initial responses to these Requests, the privilege log reflects that the documents described therein had not yet been created at the time plaintiff served her initial responses to these Requests. While the subsequent creation of the documents does not excuse plaintiff's failure to supplement her initial responses as required by Federal Rule of Civil Procedure 26(e), plaintiff eventually provided defendant with a privilege log in her supplemental responses, i.e., upon her first assertion of the privilege. As discussed supra, the privilege log is sufficiently detailed to allow defendant and the Court to determine that the withheld documents are privileged. Moreover, the scope of the withheld documents -- 372 documents total, almost all of them draft declarations of the declarants and other putative class members, or correspondence between counsel and those individuals -- is not unreasonable. Finally, defendant does not assert, and it does not appear, that defendant was prejudiced by plaintiff's late provision of the privilege log. Having conducted a “holistic reasonableness analysis” of plaintiff's assertion of the attorney client privilege, the Court will not find that plaintiff waived that privilege as to the claimed documents. See also Equal Employment Opportunity Commission v. Safeway Store, Inc. (“Safeway”), 2002 WL 31947153, at **2-3 (N.D. Cal. Sept. 16, 2002) (finding no waiver of privilege where the defendant initially made a generalized objection under the attorney client privilege to the plaintiff's discovery requests, and then provided a privilege log six months later and only after the plaintiff filed a motion to compel).

The Court also rejects defendant's contention that the declarants waived the privilege as to their communications with counsel by stating in the declarations that “when preparing this declaration, I learned for the first time from ... attorney for Plaintiff[ ] that USIS is asserting that it posted meal and rest wage orders in break rooms at various USIS branch offices in California.” “Disclosure constitutes waiver of the attorney-client privilege ... ‘only as to communications about the matter actually disclosed.’ ” Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th Cir. 2010) (quoting Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992)). In Chevron, for example, the district court had ordered the defendant to disclose to the plaintiff two documents the defendant had provided to an outside auditor. Chevron Corp., 974 F.2d at 1162. The district court found that the defendant, by disclosing to the auditor two legal memoranda involving subsidiary tax issues, did not waive the attorney-client privilege as to all communications concerning a hoped-for tax deferral in connection with its stock investment. Id. The Ninth Circuit affirmed, stating that “[the defendant] was not required, as a result of the limited disclosure, to provide [the plaintiff] with every document or communication that touched on the more general tax deferral question.” Id. Here, the statements defendant points to as the basis for its contention that the privilege has been waived merely repeat an allegation that defendant has made in its pleadings and motions, and do not go beyond that. Thus, the Court does not find that these statements in the declarations waive the privilege as to all communications between counsel and the declarants, or even all communications concerning whether USIS posted meal and rest wage orders in break rooms at USIS branch offices in California. See In re Von Bulow, 828 F.2d 94, 102-03 (2d Cir. 1987) (disclosure of privileged communications did not waive privilege beyond “matters actually revealed”).

Based on the foregoing, plaintiff need not produce the correspondence between, or the draft declarations transmitted between, counsel and putative class members listed in the privilege log. Nevertheless, as plaintiff points out (Joint Stip. Re Requests, at 116), the privilege log also contains a “[t]ranscript of recording” and a “California Unemployment Insurance Appeals Board Decision” attached to correspondence between counsel and declarant Joseph Hammond. Privilege Log, Entry Nos. 177, 179. Plaintiff has presented no explanation for why these two documents are privileged, and the Court does not see how the appeals board decision properly falls within the privilege. Thus, plaintiff must produce the appeals board decision, Entry No. 179, as well as all non-privileged documents responsive to these Requests (e.g., any communications plaintiff herself had with other USIS investigators) that she has not already specifically produced to defendant. As for the transcript of the recording, the Court orders plaintiff to submit this document to the Court under seal for an in camera review of the transcript to determine whether it is properly shielded from production pursuant to the attorney client privilege or the work product doctrine.

Request Nos. 40, 42-43 -- granted in part

Request No. 40 seeks all documents relating to or constituting declarations, affidavits, or statements by or for any current or former employee of USIS, signed or unsigned, including but not limited to drafts of such documents and all documents reflecting any edits or changes to such documents. Request Nos. 42 and 43 seek all documents or tangible items relating to or constituting letters, e-mails, recordings, records, statements, electronic files, work materials, or objects, provided directly or indirectly to plaintiff by or for any current or former employee of USIS, or provided directly or indirectly by plaintiff or her attorneys to or for any current or former employee of USIS, including but not limited to all drafts of such documents and all documents reflecting any edits or changes to such documents.

Plaintiff initially objected to these Requests on the grounds that they are compound and overly broad as to the length of time from which they seek documents, that they invade privacy rights, and that they seek documents protected by the attorney client privilege and the work product doctrine. Joint Stip. Re Requests, at 107. Plaintiff did not produce a privilege log with her initial responses to these Requests, which she served on defendant on September 9, 2011. Id., at 107-08; Strauss Decl. Re Requests, at ¶ 7, Ex. F. Plaintiff's supplemental responses to these Requests, served on July 23, 2012 (the same day as her supplemental responses to Request Nos. 7 and 14-21), included the same privilege log discussed above. Strauss Decl. Re Requests, at ¶ 10. In addition to arguing that the attorney client privilege and work product doctrine do not apply to documents responsive to these Requests, defendant argues that plaintiff's initial blanket assertion of the privilege and doctrine, ten months before plaintiff provided the privilege log, constituted a waiver. Joint Stip. Re Requests, at 108.

As discussed supra, the attorney client privilege applies to the putative class members' draft declarations and correspondence with counsel reflected in plaintiff's privilege log. Moreover, to the extent that defendant contends that plaintiff's blanket assertion of the privilege in September 2011 was improper, that assertion was made in her initial responses to these Requests, and thus “there was no complete surprise attendant to [plaintiff's] delay” as to these Requests. See Safeway, 2002 WL 31947153, at **2-3 (finding no waiver of privilege where the defendant made an initial, blanket assertion of the attorney client privilege in response to the intervenor's discovery request, but produced a privilege log six months later). Moreover, three of the same Burlington factors weighing in favor of finding that plaintiff has not waived the privilege as to the documents responsive to Request for Production Nos. 7 and 14 through 21 -- that the declarants and putative class members communicated directly with plaintiff's counsel, that the privilege log is sufficiently detailed to allow the Court to determine that the withheld documents are privileged, and that the scope of withheld documents is not unreasonable -- also apply here. Thus, the privilege's protection of the putative class members' draft declarations and correspondence with counsel reflected in plaintiff's privilege log is not waived simply because plaintiff's initial responses to these Requests asserted the privilege in a blanket manner.

Furthermore, the Court agrees with plaintiff that the scope of these Requests is broad. The Court therefore limits the subjects of the Requests to “any current or former investigator employed by USIS” (not “any current or former employee of USIS”), and limits the Requests to all non-privileged documents relating to plaintiff's allegations that she and other putative class members, during the proposed class period of August 26, 2006, to May 2010 (see Docket No. 80, at 3), did not take or did not have the opportunity to take 30-minute meal periods during their workdays because USIS did not inform them of their right to do so or because their work duties would not allow them to do so.

At the same time, to the extent that any such documents implicate the privacy rights of any current or former USIS investigator, the Court has balanced plaintiff's asserted right to privacy against the relevance of the information being sought by defendant. See, e.g., Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir. 1992); Ragge v. MCA/Universal Studios, 165 F.R.D. 601, 604-05 (C.D. Cal. 1995) (the right to privacy is not absolute, but is “subject to invasion depending upon the circumstances”). The Court finds that defendant's discovery needs here outweigh the concerns of plaintiff, and that the Protective Order entered in this action -- which contains multiple levels of protection, and specifically contemplates the production of information of a “private nature” (Protective Order, ¶ 6(a)) -- strikes the appropriate balance between the need for the information and any privacy concerns. See, e.g., Knoll v. American Tel. & Tel. Co., 176 F.3d 359, 365 (6th Cir. 1999) (approving of protective orders to protect non-parties from “the harm and embarrassment potentially caused by nonconfidential disclosure of their personnel files”).

Plaintiff must produce all non-privileged documents responsive to these Requests, as limited above, that plaintiff has not already specifically produced to defendant (i.e., plaintiff may not avoid production on the ground that responsive documents have already been made available to defendant through depositions, exhibits to motions, or in any other form apart from past document productions).

Request No. 44 -- granted

This Request seeks all documents that memorialize, reflect, or show the dates of any interviews, discussions, or meetings that any current or former employee of USIS (excluding plaintiff) attended with plaintiff and/or plaintiff's counsel, whether in-person or otherwise. Plaintiff objects to this Request on the grounds that it is compound and overly broad as to the length of time from which it seeks documents, and seeks documents protected by the attorney client privilege and the work product doctrine. Joint Stip. Re Requests, at 132. Nevertheless, plaintiff asserts that it “has produced a privilege log that identifies the dates.” Id.

The Court rejects plaintiff's contention that information responsive to this Request is privileged. By pointing defendant to the dates contained in her privilege log, plaintiff appears to recognize this as well. Plaintiff has not represented, however, that the privilege log contains all the information responsive to this Request. Thus, plaintiff must produce all non-privileged documents responsive to this Request, along with a declaration signed by plaintiff's counsel stating that the privilege log and any produced documents reflect the dates of all contacts responsive to this Request.

Subpoenas for Documents, Topic Nos. 1-7 -- granted in part

All of the Topics at issue seek documents, including electronic documents and data, for the period from August 26, 2006, to the present. Topic No. 1 seeks all documents that show the exact hours and days that the deponent worked at and for USIS. Topic No. 2 seeks all documents that show whether and when the deponent ate lunch each day on any day that the deponent performed work for USIS. Topic Nos. 3 through 6 seek all documents showing, after the deponent's first work task and before his/her last work task on any day that he/she performed work at USIS, the following: any off-duty time that he/she took (Topic No. 3); any non-work purchases he/she made, including statements from any checking or savings accounts showing debit card purchases, credit card statements showing charges, and all receipts (Topic No. 4); the dates and/or times of any personal appointments he/she attended (Topic No. 5); and any phone calls made or received, including billing statements and calling records (Topic No. 6).[7] Topic No. 7 seeks all communications, whether sent or received, that the deponent has had with any person, including current and former employees of USIS, and that relate to, discuss, or regard USIS' meal periods and practices.

Plaintiff's counsel objected to these Topics on the ground that they are overly broad and seek irrelevant information because they are not limited to: (1) field investigators; (2) when field investigators worked for USIS in California;[8] (3) the class period; (4) the first five hours of work; and (5) activities that are 30 minutes in length or longer. Joint Stip. Re Subpoenas, at 8, 25, 35, 46, 57, 68, 78. Plaintiff's counsel further objected that the Topics seek to invade the privacy rights of putative class members, who are not yet parties to the case, and third parties (such as spouses and dependents of putative class members), who will never be parties to the case. Id. Finally, counsel objected to Topic Nos. 1 through 4 on the ground that responsive documents are equally available to defendant because defendant is required by law to maintain records of actual hours worked and meal periods. Id., at 8, 25, 35, 46.

Defendant contends that the requested documents are relevant because “the Declarants put [the documents] at issue when they signed their declarations.” Joint Stip. Re Subpoenas, at 10. Defendant points out that 8 of the 13 declarants it still plans to depose[9] represent in their declarations that they never took and never had an opportunity to take 30-minute meal periods during their workdays because they were not adequately informed about their meal period rights and/or because the interviews and records searches they conducted and the way they felt that they had to build their own schedules deprived them of the opportunity to take meal periods. Id., at 10-11 (citing declarations). Defendant contends that the other five declarants state that on a majority of days, they did not take and did not have the opportunity to take 30 minutes of off-duty time for meal periods or other personal activities because USIS did not inform them of their right to take a 30-minute duty free break and because their work duties would not allow them to do so. Id., at 11 (citing declarations). According to defendant, the requested documents “will show how the Declarants built their schedules each day and what their understanding was about whether they needed to start at particular times [and] end work at particular times[,] and whether they could take 30 or more minutes of off-duty time during their workday.” Id. Defendant asserts that the declarants themselves represent that “during most of the period at issue in Plaintiff's class certification motion, USIS' timekeeping system captured only total hours worked each day, not specific time entries,” making the requested information necessary to defendant's defense. Id. Defendant further argues that these documents will bear on the issue of class certification because differences in the bases for assessing various declarants' credibility and liability would be inconsistent with class certification. Id., at 12.

Plaintiff contends that the subpoena Topics are overbroad, and that defendant therefore seeks documents that are irrelevant. Specifically, plaintiff contends that the time frame of August 26, 2006, to the present is overbroad because plaintiff's motion for class certification seeks to certify a class from August 26, 2006, to May 2010, when USIS adopted “for the first time, a comprehensive meal and rest period policy.” Id., at 2, 18-19; see also Docket No. 80, at 3, 8. Plaintiff asserts that evidence after May 2010 is therefore not probative of what investigators did during the proposed class period. Joint Stip. Re Subpoenas, at 18. Plaintiff also argues that under the California Supreme Court's recent holding in Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 1041-42, 139 Cal.Rptr.3d 315 (2012) -- that a first meal period must begin no later than the start of an employee's sixth hour of work -- only responsive documents from the declarants' first six hours of work on any day they performed work for USIS are relevant. Joint Stip. Re Subpoenas, at 21-22, 24. Finally, Plaintiff asserts that because the relevant break period in this action is that of an uninterrupted period of 30 minutes in length, documents identifying activities of less than 30 minutes, as well as documents that do not show what time the non-work activity started and ended, are irrelevant to defendant's defense that investigators had opportunities to take breaks of at least 30 minutes. Id., at 22-23.

Defendant argues that the time period in the Topics is not overbroad because “USIS' scheduling expectations and the way in which investigators build their work schedules has not changed during the period from August 26, 2006 to the present,” and therefore evidence showing that the investigators had opportunities to or did take 30-minute duty-free breaks after May 2010 is probative of their opportunities and practices before May 2010. Id., at 12-13. Defendant further argues that evidence that the declarants decided to take an off-duty meal period or other time off for personal activities anytime after the first five hours of work “may prove that the [d]eclarants voluntarily chose not to take an earlier meal period,” and evidence that the declarants were able to or did build in off-duty time after the first five hours of work “will ... prove that it was possible to build in off-duty time as a general matter.” Id., at 13. Finally, defendant contends it is impractical to limit the production of responsive documents to only those that definitively show off-duty time for at least 30 minutes because “there are likely very few designations in the records that are so specific” and because even off-duty activities lasting less than 30 minutes are probative to the issue of whether the declarants were able to and did take off-duty time during the day. Id.

Finally, plaintiff argues that the subpoenas improperly seek to invade the privacy rights of putative class members who are not yet parties to this litigation, as well as the rights of individuals who “will never be part of the case,” including spouses and dependents. Id., at 20. Plaintiff contends that “[t]here is no need to require each of [the declarants] to take on the additional burden and expense of trying to obtain and pay for 6 years' worth of documents containing information that can be asked about during deposition.” Id., at 21. According to plaintiff, such a requirement would have a “chilling effect” on putative class members, as reflected in “the fact that 4 out of the 13 investigators have now expressed a desire to withdraw their declarations so that they would not have to appear at a deposition and have six [ ] years' worth of private documents unnecessarily scrutinized.” Plaintiff's Supplemental Brief in Support of Motion to Compel Subpoenas (“Plaintiff's Supp. Brief Re Subpoenas”), at 1.

Defendant responds that the requested documents “lie at the heart of the underlying legal issues and the question of class certification,” and that “it is not clear what, if any, privacy rights are meaningfully implicated by the production of” the responsive documents, since telephone records will only show the length of the phone calls, and not their contents, and calendar appointments will not reveal sensitive information discussed at the appointments. Joint Stip. Re Subpoenas, at 14-15. Defendant also asserts that to the extent any responsive documents reveal private, sensitive information, marking them as confidential under the Protective Order entered in this action on April 13, 2011 (Docket No. 25), will adequately address defendant's privacy concerns. Id., at 15.

The Court finds that the documents and information sought in the subpoenas are relevant to the parties' claims and defenses in this action. As the Court previously concluded in its August 4, 2011, Order, concerning similar records reflecting non-work activities plaintiff engaged in on the days she performed work for USIS:

August 4, 2011, Order, at 5. The Court rejects plaintiff's argument that the production of responsive documents should be limited to only those identifying activities of 30 minutes or more and only those from the declarants' first six hours of work on any day they performed work as an investigator for USIS. The Court finds that evidence of time off for personal activities even after the first six hours of work may be probative of whether the declarants were generally able to build off-duty time into the workday, and that individual activities of less than 30 minutes, taken together, can nevertheless reveal a period of 30 minutes or more of off-duty time. Nevertheless, the Court concurs with plaintiff that the production of responsive documents should be limited to August 26, 2006, to May 2010 (when USIS' meal and rest period policy was adopted). Balancing plaintiff's asserted rights to privacy against the relevance of the requested information, the Court finds that defendant's discovery needs outweigh plaintiff's concerns. See Johnson, 971 F.2d at 1497. By providing their declarations to plaintiff to file in support of her motion for class certification, the declarants inserted themselves into this litigation and placed their statements in those declarations at issue. Moreover, as plaintiff appears to recognize (see Joint Stip. Re Subpoenas, at 24), the privacy interests implicated by the requested information can be adequately protected by the declarants' redaction, prior to production, of all information such as Social Security numbers, any medical treatment or diagnosis, and bank account numbers and similar financial information. See Arenson v. Whitehall Convalescent and Nursing Home, Inc., 161 F.R.D. 355, 358 (N.D. Ill. 1995) (“When the probative value of the information is significant, and the privacy interests in the material can be protected by redaction, there is a presumption in favor of discovery.”). Finally, to the extent any private information in the responsive documents is not redacted prior to production, the Protective Order specifically contemplates the production of information of a “private nature,” as noted supra, and therefore strikes the appropriate balance between the need for the information and any remaining privacy concerns.

Accordingly, the declarants[10] must now produce, subject to the above limitations and permitted redactions, all documents responsive to these Topics from August 26, 2006, to May 31, 2006.[11]

Based on the above, defendant's Motions to Compel are granted in part, as set forth above. No later than September 25, 2012,[12] plaintiff shall provide all responses, responsive documents and the required declarations, as detailed above. No later than September 18, 2012, plaintiff is ordered to deliver a copy of the recording transcript, identified as Entry No. 177 in plaintiff's Privilege Log, to the Court for in camera review.

All the interrogatories and requests for documents at issue in the Motion to Compel Interrogatories and Documents use “you” when referring to plaintiff. Declaration of Lara K. Strauss in Support of Motion to Compel Interrogatories and Documents (“Strauss Decl. Re Requests”), Exs. B, E.

Interrogatory No. 6 requested that plaintiff state with specificity each and every issue of fact plaintiff contends is common to all members of the purported class identified in paragraphs 14 and 20 of the initial Complaint. Joint Stip. Re Requests, at 7 n.2. In response, “Plaintiff identified five different issues of fact, including whether USIS had a policy to provide investigators with duty-free meal periods as required by law, whether it communicated that policy to investigators, and whether USIS failed to provide duty-free meal periods to investigators.” Id., at 7-8 n.2; see also Strauss Decl. Re Requests, Ex. D, at 40.

In diversity cases, work product claims are governed by federal law. See Baker v. General Motors Corp., 209 F.3d 1051, 1053 (8th Cir. 2000).

Because the Court finds that the documents responsive to these Requests are protected from disclosure by the attorney client privilege, the Court will not address whether the documents are also shielded by the work product doctrine.

Defense counsel represents that during her communications with plaintiff's counsel, plaintiff's counsel “asked if USIS was willing not to proceed with depositions or requests for documents from [declarants] Roque Bower, Margaret Green and Michael Marino [ ] in exchange for withdrawal of their declarations.” Strauss Decl. Re Subpoenas, at ¶ 7. Defense counsel further represents that “[she] confirmed that USIS would stipulate not to proceed with depositions or document subpoenas to Roque Bower and Margaret Green,” but that as of the filing of the Motions, she “ha[d] not yet received a proposed stipulation confirming that agreement or the withdrawal of the declarations.” Id. Defense counsel states that “USIS has not agreed to withdraw the subpoenas to Michael Marino.” Id.

In a diversity action, “the substance of the privileges asserted are governed by state law,” but “the procedure for responding to discovery requests ..., including the procedure for the proper assertion of a privilege, is governed by federal law.” Eureka Financial Corp. v. Hartford Accident and Indemnity Co., 136 F.R.D. 179, 182 n.5 (E.D. Cal. 1991).

Topic Nos. 1 through 6 seek responsive documents including, but not limited to, time records, calendars, telephone records, planners, appointment books, schedules, notes, bills, invoices, receipts, diaries, and journals.

Defense counsel represents that it will “limit the scope of the documents being requested to only the period of time when individuals were in a field investigator position in California for the two individuals (Jason Andrews and Michael Marino) who had transferred into a position other than a California field investigator during their employment with USIS.” Strauss Decl. Re Subpoenas, at ¶ 11.

See note 5, supra.

Defendant represents that as of the filing of the Motions, it had not been able to complete service of the subpoenas for deposition and subpoenas for documents on declarants Michael Marino and Kristi Jenkins. Joint Stip. Re Subpoenas, at 16-17 n.8. It therefore requests that this Order recognize that the Court's ruling herein on Topic Nos. 1 through 7 would apply to Marino and Jenkins upon completion of service of their subpoenas. Id. Defendant's request is granted.

As to Topic No. 4, the response shall also be limited to every bank and/or credit union account for which the deponent had a checking account and/or a credit or debit card. As to Topic No. 6, the response shall also be limited to every landline and/or cellular telephone number that the deponent has subscribed to in his/her name and/or that has been provided to him/her by USIS.

To the extent that defendant determines based on this Order not to proceed with any or all of the depositions on the dates currently set, the parties shall meet and confer no later than September 7, 2012, to agree upon new dates for the depositions; all currently-scheduled depositions shall be concluded no later than October 26, 2012. To the extent not already set, the parties shall also agree upon, and notify the District Judge of, dates for the remainder of the briefing on plaintiff's motion for class certification.