*1 On April 13, 2021, plaintiffs filed a motion to compel defendant Stevens Transport, Inc. to produce further discovery. Docket no. 411. The motion is supported and opposed in a Joint Stipulation (“JS”). Plaintiffs' arguments are further supported by the declarations of plaintiffs' counsel Ian Gore (“Gore Decl.”) and exhibits thereto. Defendant's arguments are further supported by the declarations of defense counsel Emil Petrossian (“Petrossian Decl.”), director of information technology David Drew (“Drew Decl.”), and director of driver and safety services Rachel Easley (“Easley Decl.”). On April 20, 2021, plaintiffs filed a supplemental memorandum in support of their motion to compel (“P. Supp. Mem.”). Docket no. 415.

The parties came before the court for a hearing via videoconference on May 4, 2021. After considering the arguments advanced and the record before it, the court grants in part and denies in part plaintiffs' motion to compel, and orders the parties to further meet and confer to resolve their remaining discovery disputes, as discussed below.

Plaintiffs are truck drivers who were formerly employed by the eight named defendants in this action. Defendants are trucking companies that operate throughout the country. Plaintiffs allege defendants restrained competition by using a “no-poaching” hiring policy for drivers, and engaged in business practices that kept drivers in unfavorable employment agreements. The Third Amended Complaint was filed on July 26, 2018, and discovery commenced shortly thereafter. On February 14, 2020, plaintiffs sought leave to file a Fourth Amended Complaint (“4AC”), which was granted on April 14, 2020. The 4AC named additional defendants – including defendant Stevens Transport Inc. – and expanded the scope of the putative class to a nationwide one.

Plaintiffs seek to certify the following class: all current or former drivers “under contract” as motor vehicle carrier drivers with defendants at any time from May 15, 2013 to the present. The “under contract” designation refers to individuals who attended one of defendants' driver training schools to obtain a commercial driver's license, and either had their tuition paid for by defendants outright or were later offered reimbursement for their tuition costs. Plaintiffs allege drivers who remained employed with a defendant for a sufficient period of time had their driver training school tuition costs waived, but drivers who were terminated or quit before that period were required to repay their tuition costs. Plaintiffs further allege drivers remained “under contract” until any outstanding amount was repaid, even if their employment had ended.

Plaintiffs served their first set of Requests for Production of Documents (“RFPs”) on defendant Stevens Transport on June 30, 2020. See Petrossian Decl. ¶ 5, Ex. A. Defendant responded with written objections and responses on August 13, 2020. See JS at 19. On October 22, 2020, plaintiffs sent their first meet and confer letter to defendant inquiring about its discovery responses and the date by which it would complete document production. See Gore Decl., Ex. 6.

*2 On November 5, 2020, plaintiffs' counsel and defendant conferred and agreed to speak again the following week about defendant's outstanding responses and driver data in response to RFP Nos. 85 and 86. Id., Ex. 8. During the parties' meet and confer regarding driver data on November 10, 2020, defendant was able to identify some driver data that it could produce, but as to other data, defense counsel sought more time to discuss with its client. Id., Ex. 10. The parties had additional meet and confer sessions about these issues on November 23 and 24, 2020, but were unable to resolve their disputes. Id., Ex. 11.

On December 2, 2020, plaintiffs served another meet and confer letter on defendant concerning defendant's failure to adopt final search terms and provide driver data, and defendant's boilerplate objections to many of plaintiff's other document requests. See id., Ex. 12. Prior to the parties' conference, defendant provided plaintiffs with a “hit report,” but plaintiffs claim it was inadequate, because it contained only the raw number of hits per search term, and not all of the information required by the ESI order in this case. See id., Ex. 14.

During the parties' conference on December 18, 2020, defense counsel revealed that it would not be using a discovery vendor to assist in collecting and searching documents. Id. ¶¶ 17-18, Exs. 15-16. Instead, defendant was relying on its own internal IT department to conduct its own internal searches. Id. Defendant also explained that outside of information held by TenStreet – a third-party vendor used by Stevens Transport and some of the other defendants to facilitate driver applications and recruitment – defendant Stevens was unable to export any driver data it maintained internally in response to RFP No. 85. Id. Plaintiffs suggested that defendant hire outside help to be able to export its driver data, and defendant represented that it would look into that, and further promised that it would update plaintiffs on the data that was available through TenStreet shortly thereafter. Id.

In January 2021, the parties participated in several phone calls regarding the state of defendant's discovery and to resolve a growing list of disputes. Id. ¶ 22. During one of those conferences that month, defendant revealed that it would not be using search terms to locate responsive documents, and thus defense counsel indicated there was no further need to discuss search terms with plaintiffs, since the ESI order only required such conferences if a party was going to use search terms. Id.

On February 1, 2021, plaintiffs sent defendant another meet and confer letter addressing the status of defendant's document production regarding driver data, exemplar contracts and pay scales, its boilerplate objections to plaintiffs' requests, and its disclosure of just two document custodians despite defendant's previous representations that it would identify additional ones. Id. ¶ 23, Ex. 20. Defendant responded via email stating that it would produce some driver data from TenStreet the following week, and that it anticipated beginning to make rolling document production by March. Id. ¶ 24, Ex. 21.

On February 10, 2021, plaintiffs' counsel again explained the need to discuss the driver data requests by each subpart as had been done with other defendants. Id. ¶ 25, Ex. 22. During the conference, defendant also claimed that it had received some applicant data from TenStreet, but was having difficulties with how to redact Social Security numbers to only the last four digits. Id. The parties further discussed defendant's failure to add additional document custodians and produce responsive documents, including the important contracts and pay scales plaintiffs had repeatedly flagged. Id.

*3 On February 13, 2021, plaintiffs informed defendant that if it did not commit to producing documents by a certain date and meaningfully confer regarding the manner in which defendant's driver data was maintained, they would move to compel. See id. Defendant did not respond, and plaintiffs therefore served a draft joint stipulation to defendant on February 22, 2021. Id. ¶ 26, Ex. 23. At that point in time, defendant had only produced 36 documents in discovery. Id. ¶ 27. But on February 22, 2021, defendant produced to plaintiffs a spreadsheet containing its TenStreet applicant data. Petrossian Decl. ¶ 8. On March 4, 2021, defendant also sent plaintiffs' counsel an email identifying two additional data custodians, Kayla Kitchen and Gina Wylie, whose documents and communications defendant would search for nonprivileged responsive documents. Id. ¶ 4.

On March 5, 2021, and again on March 18, 2021, the parties met and conferred telephonically regarding plaintiffs' RFP Nos. 85 and 86. Id. ¶ 2. After their meet and confer call on March 18, 2021, defendant sent plaintiffs a meet and confer letter regarding plaintiff's RFP No. 89, which seeks certain communications between Angela Horowitz (defendant's Vice President of Driver Relations and Administration) and other carriers. Id. ¶ 6. In the letter, defendant proposed that it would produce all communications between Horowitz and any other defendants regarding the hiring and potential hiring of drivers from April 15, 2013 to April 15, 2020 if plaintiffs agreed not to seek Horowitz's communications with non-defendant trucking companies. See id. ¶ 6; Gore Decl., Ex. 34. Defendant did not receive any further correspondence from plaintiffs' counsel regarding RFP No. 89 or defendant's proposal. Id. Plaintiffs filed the instant motion on April 13, 2021. Id.

Plaintiffs seek to compel defendant to produce the following discovery: (1) documents responsive to RFP No. 89; (2) complete responses to Interrogatories Nos. 2 and 3; (3) substantial completion of all document production by April 30, 2021; (4) full TenStreet data, including driver experience levels, recruiter notes, and last four digits of Social Security Numbers; (5) documents sufficient to understand the data entries in defendant's TenStreet data; (6) driver data for subparts (k), (l), (p), (q), (s), and (z) for all drivers responsive to RFP No. 85; (7) driver payroll data for all drivers responsive to RFP No. 85; and (8) production of complete driver files for the sample ordered.

A. Discovery Standard

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).

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

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

B. RFP No. 89

RFP No. 89 seeks “ALL COMMUNICATIONS from or to Angela Horowitz and any other truck driving carrier, RELATING to the hiring or potential hiring of any driver, from January 1, 2013 to present.” See JS at 14.

Defendant initially raised various objections in response to RFP No. 89, and agreed only to produce non-privileged responsive documents from April 15, 2015 to April 15, 2020. See id. But on March 18, 2021, defendant proposed that it would produce all communications to or from Horowitz and any other defendants in this action relating to the hiring or potential hiring of drivers from April 15, 2013 to April 15, 2020 if plaintiffs agreed not to use the compromise as the basis for seeking pre-April 15, 2015 materials in connection with any other document requests or seek defendant's communications with nonparty motor carriers for any time period. See id. at 62-63; Petrossian Decl. ¶ 6; Gore Decl., Ex. 34 at 3. Although defendant argues that plaintiffs failed to respond to its proposal, during the hearing plaintiffs indicated that the parties orally discussed the proposal, but that they would not agree to it on the ground that Horowitz's communications with all truck driving carriers, including those who are not defendants, are relevant to this case. As such, the primary dispute between the parties relating to RFP No. 89 concerns whether defendant's production of Horowitz's communications should include those between her and nonparty carriers.

Plaintiffs contend Horowitz's communications about the no-poach conspiracy with any competitor, including those that are not defendants, are relevant to whether defendant had the motive and desire to enter the alleged conspiracy in this case. Id. at 31. In support of this argument, plaintiffs point out that prior to April 2015, Horowitz emailed one of defendant's competitors, who is not a defendant in this action, seeking an agreement to “honor” each other's contracts. See id. at 29; Gore Decl., Ex. 2 at 42805. Plaintiffs also note that since 2013, Horowitz has signed “under contract” letters sent by defendant to inform other carriers that a driver is under contract with defendant and demanding that the other carrier refrain from hiring the driver. Id. at 29-30. Plaintiffs argue defendant's request to limit its production to only Horowitz's communications with other defendants will potentially eliminate relevant evidence of defendant's alleged attempt to conspire with its competitors. Id. at 31-32.

*5 Defendant argues RFP No. 89 seeks irrelevant information insofar as it requests production of Horowitz's communications with nonparty motor carriers, because the gravamen of plaintiffs' case is that defendant allegedly entered into a no-poach conspiracy with only the seven named defendants in this case, rather than any other nonparty motor carriers. Id. at 57-59, 63-64. Defendant also contends Horowitz's email to its competitor, Swift Transportation Company (“Swift”), does not support the existence of a conspiracy, because Swift sued defendant after Horowitz's email to try to invalidate defendant's non-compete agreements with defendant's under-contract drivers, which the court found were valid under Texas law. Id. at 65; Gore Decl., Ex. 27 at 3. Further, defendant contends the question of whether it conspired with Swift is irrelevant to whether defendant conspired with the other seven named defendants in this action. Id. at 65-66.

In antitrust conspiracy cases such as this, courts have generally allowed liberal discovery to “uncover evidence of invidious design, pattern, or intent.” Cyntegra, Inc. v. IDEXX Labs., Inc., 2007 WL 9701999, at *4 (C.D. Cal. 2007) (citing Kellam Energy, Inc. v. Duncan, 616 F. Supp. 215, 217 (D. Del. 1985)); see also In re Microcrystalline Cellulose Antritrust Litig., 221 F.R.D. 428, 429-30 (E.D. Pa. 2004) ([S]ome courts have also held that a broad scope of discovery is particularly appropriate in antitrust litigation because, for example, relevant business documents pertaining to the antitrust conspiracy may not exist and covert behavior may have to be proven through less direct means”); F.T.C. v. Lukens Steel Co., 444 F. Supp. 803, 805 (D.D.C. 1977) (“The discovery rules should normally be liberally construed to permit discovery in antitrust cases.”). Here, as plaintiffs rightly argue, Horowitz's communications relating to the hiring or potential hiring of any under-contract drivers with any competitor, including those who are not defendants in this case, are sufficiently relevant to showing whether defendant had the willingness and intent to enter into an alleged no-poach conspiracy with defendants. The remaining issue therefore is whether the burden outweighs the relevance of the requested information.

Defendant asserts that responding to RFP No. 89 is unduly burdensome and not proportional to the needs of the case, because it would require defendant to search Horowitz's emails with any of the 625,000 active motor carriers in the country over an eight-year period. JS at 71. Defendant argues that its only option is to manually review every one of Horowitz's emails to locate responsive communications with every motor carrier, and the subject matter is simply too broad to allow for the use of search terms to meaningfully narrow the universe of potentially responsive communications. Id. at 71-72. Defendant notes Horowitz received and sent over 909,000 emails during the requested time period, and it would take someone 391 days, or approximately 13 months, just to review her emails containing the word “drive.” Id. at 73; Drew Decl. ¶¶ 3-4. Defendant further asserts that it could much more readily access, review, and produce Horowitz's email communications with the other defendants in this action, because it can search for all emails to or from Horowitz containing one or more of those defendants' email domains, and it has already undertaken this process. Id. at 72; Petrossian Decl. ¶ 7.

While defendant argues the subject matter of RFP No. 89 is too broad to allow for the use of search terms, defendant failed to satisfy its obligation to meet and confer with plaintiffs regarding its intent to use search terms. Defendant initially informed plaintiffs that it would not be using search terms, and thus the parties ceased their meet and confer discussions relating to this matter. See Gore Decl. ¶ 22. Despite this previous representation, defendant informed the court at the May 4th hearing that it did, in fact, use search terms in an effort to respond to RFP No. 89, but that it was unable to effectively narrow the pool of responsive communications. Specifically, defendant takes issue with the large hit count resulting from the search terms “hiring” and “driver.” But those terms were not agreed upon by both parties, and defendant's failure to meet and confer with plaintiffs regarding its use of search terms violates the ESI order in place. See docket no. 176 at 5. Had defendant informed plaintiffs of its plan to use search terms in response to RFP No. 89, plaintiffs could have recommended more narrowly tailored terms that might have limited the burden on defendant. In addition, it is unclear whether defendant has attempted to filter out emails that have only internal recipients, which may also limit the burden on defendant in locating responsive communications with third parties.

*6 Because the requested information is sufficiently relevant to the instant case and defendant has not exhausted its efforts to find a way to efficiently locate the requested information, the court grants plaintiff's motion to compel with respect to RFP No. 89, and orders the parties to promptly meet and confer regarding proposed search terms and other ways to limit the burden on defendant in producing responsive communications.

C. Interrogatories Nos. 2 and 3

Interrogatories Nos. 2 and 3 ask defendant to identify the time period and geographic area in which the exemplar driver contracts and pay scales were in use. JS at 35. Although defendant provided some substantive responses to Interrogatories 2 and 3, plaintiffs claim the responses were incomplete, because they did not fully address the temporal and geographic scope of the contracts and pay scales. Id., Gore Decl. ¶ 31. Since the filing of this motion, defendant has fully responded to plaintiffs' Interrogatory No. 2 in its supplemental response, and has no further responsive information in its possession, custody, or control. JS at 84. Defendant has also provided a supplemental response as to plaintiff's Interrogatory No. 3. Id. Because the parties have sufficiently resolved this dispute, plaintiffs' motion to compel as to these interrogatories is denied as moot.

D. Full TenStreet Data Responsive to RFP Nos. 85 and 86

Plaintiffs seek to compel the production of documents responsive to their RFP Nos. 85 and 86 from defendant. This set of RFPs seeks documents related to inexperienced drivers who were hired, and all drivers who applied but were not hired during the relevant time period. See id. at 5, 11. Plaintiffs assert defendant has produced a spreadsheet with data from third-party vendor TenStreet, but that the data is incomplete especially when compared to TenStreet data produced by other defendants. Id. at 39-40. Plaintiffs request that the court compel defendant to produce the last four digits of drivers' Social Security numbers, driver experience levels, and the recruiter “notes” field. Id.

Plaintiffs first argue defendant has not yet produced the last four digits of drivers' Social Security numbers despite the fact that every other defendant, including those producing data from TenStreet, has agreed to and produced such information. Id. at 40. Plaintiffs argue the Social Security numbers are needed, because there may be several instances where drivers have the same name or otherwise need to be tracked across defendants' data sets given the thousands of drivers involved in the driver data. Id.

Defendant argues it does not retain Social Security numbers in redacted form, and cannot produce spreadsheets with redacted Social Security numbers. Id. at 79, Petrossian Decl. ¶ 8. Defendant also contends Social Security numbers are unnecessary, because every individual in defendant's TenStreet database has a unique “subject id” number and “application id” number that no other individual driver in the database has. Id. But as plaintiffs rightly point out, the “subject id” and application id” fields are unique only to defendant, and cannot be used to cross-reference the data provided by other defendants so that the same driver can be identified throughout all of defendants' data sets. See P. Supp. Mem. at 4. Thus, this information must be produced. With respect to how the information should be produced, the court appreciates the privacy concerns associated with producing full social security numbers, but plaintiffs' request for only the last four digits addresses this. As for defendant's claim it is unable to produce spreadsheets with redacted social security numbers, plaintiffs provided defendant with information on how to redact characters from the first part of a cell via Excel without having to use a discovery vendor, but defendant admitted at the hearing it has not even attempted to try this method. Id.; JS at 40-41; Gore Decl., Ex. 32.

*7 Accordingly, the court grants plaintiffs' motion to compel defendant to produce the last four digits of drivers' Social Security numbers. Defendant should attempt to redact the first five digits using the method suggested by plaintiffs, and if it is unable to do so, the parties must further meet and confer to determine a reasonable alternative method for defendant to produce the redacted information.

RFP No. 85 asks for data on drivers who were hired and had 18 months or less of commercial driving experience at the time of hire. JS at 6. RFP No. 86 asks for similar but separate pieces of information regarding drivers who were rejected for hire. Id. at 11-12. Plaintiffs contend defendant's production of TenStreet data lacks any ability to distinguish drivers who were actually hired from those who were not hired, and makes it impossible to tell which driver falls within which category. JS at 41. Plaintiffs also contend that unlike productions from every other defendant that has provided TenStreet data, defendant's production lacks any field depicting a driver's experience level at the time of application. Id. Plaintiffs further argue that since defendant apparently produced its TenStreet data by limiting it to drivers who were not hired or who had 18 months of experience or less at the time of hire, the TenStreet data should contain a field for driver experience. Id.

Defendant argues it has a current status field identifying the current status of each individual on the spreadsheet, and if plaintiffs have questions regarding the specific categories identified in the current status field, they can propound an interrogatory requesting that information. Id. at 80. Defendant stated at the hearing that the current status field contains approximately 35 categories so it is not something an attorney can simply explain. With respect to TenStreet data regarding experience level, defendant claims that if its data does not contain a field depicting a driver's experience level at the time of application, it is likely because TenStreet does not maintain such data. Id. at 80.

Given that there are several categories identified in the current status field and it would be difficult for defendant to explain these categories through meet and confer, plaintiffs should propound an interrogatory or notice a Rule 30(b)(6) deposition seeking an explanation regarding the specific categories. As for distinguishing between drivers who were and were not hired, plaintiffs are entitled to a production that allows it to tell which data is for drivers responsive to RFP No. 85 and which is for RFP No. 86. To start, to the extent there are training materials that defendant has utilized to train its recruiters when inputting information into TenStreet, defendant should produce them, so plaintiffs can efficiently locate information on drivers who were hired and those who were rejected for hire. If this is not sufficient to allow plaintiffs to tell which drivers are in which category, the parties must meet and confer further to determine how defendant can produce such information. As for whether defendant's TenStreet data contains a field for driver experience, the parties should further meet and confer to determine if such a field exists, and if not, how plaintiffs can otherwise locate that information.

Plaintiffs further argue defendant's TenStreet data lacks a “notes” field where recruiters place notes on drivers, despite it being requested in RFP Nos. 85 and 86. Id. at 41; Gore Decl., Ex. 33. In response, defendant asserts that it can produce a spreadsheet containing this information. See JS at 80. Because there is no dispute as to whether defendant is able to produce this information, the court grants plaintiffs' motion to compel defendant to produce the spreadsheet containing the notes field on drivers.

E. Driver Data for Subparts (k), (l), (p), (q), (s), and (z) for All Drivers Responsive to RFP No. 85, and a Sample of Driver Files

*8 Plaintiff argues defendant has not produced driver hire and rehire date information responsive to RFP No. 85 subparts (k) and (l) despite representing that it would produce a spreadsheet with this information. Id. at 42. Defendant does not dispute plaintiffs' characterization that it has agreed to produce hire-date information for drivers with fewer than 18 months of continuous driving experience at the time of hire in response to RFP No. 85. Id. at 80. But defendant argues that its computer systems do not allow it to distinguish between those drivers who were “inexperienced” versus those who had greater than 18 months of driving experience at the time of hire. Id.; Easley Decl. ¶ 7. Rather, defendant has agreed to produce a spreadsheet identifying every employee hired by defendant during the five-year period even though this spreadsheet would grossly overproduce information to plaintiffs. JS at 80-81.

Defendant argues that because the spreadsheet may identify individuals who cannot be class members in this case, the parties should further meet and confer regarding this spreadsheet to ensure against any misuse. But defendant fails to provide any justification for its concern that plaintiffs might misuse this spreadsheet, and there is a protective order already in place to address any potential privacy concerns regarding individuals who cannot be class members in this case. As such, because it has been over a month since defendant agreed to produce the spreadsheet and there is no reason to believe that plaintiffs will misuse this information, the court grants plaintiffs' motion to compel defendant to produce the driver hire and rehire date information identified in the spreadsheet in response to subparts (k) and (l) of RFP No. 85.

The biggest dispute appears to concern whether defendant must produce data concerning whether any particular driver was hired under contract with defendant in response to sub-parts (p) and (q) of RFP No. 85. See id. at 42-45, 46-51, 80-82. Plaintiffs argue whether a driver was under contract with defendant is central to this case, since it will assist plaintiffs in identifying class members and in analyzing the merits of this case, including damages. Id. at 42.

Defendant contends information on whether any driver was under contract with defendant cannot be produced on a bulk basis, and that in order to determine whether a driver was under contract, it would have to manually pull that information for every single driver. Id. at 81; Easley Decl. ¶ 7. Defendant contends that even if one limits the inquiry solely to 9,559 drivers hired during the five-year period, it would take approximately 319 hours, or nearly eight full 40-hour work weeks, just to identify all of defendant's under-contract drivers within that group. JS at 81; Easley Decl. ¶ 8. Defendant further contends that even if only 25% of the 9,559 total drivers it hired during the five-year period were inexperienced drivers, it would take someone about 1,354 hours, or nearly 34 full 40-hour weeks, to compile the information responsive to all the subparts of RFP No. 85 that defendant cannot produce on a bulk-data basis. Id. ¶ 9.

To mitigate the burden involved in compiling this and other data responsive to RFP Nos. 85 and 86 that defendant has not already produced, defendant proposes that it produce all responsive information in its possession, custody, and control for 200 drivers in response to RFP No. 85, and 150 applicants in response to RFP No. 86, consistent with the court's October 2020 order. See JS at 83; Petrossian Decl. ¶ 10, Ex. B. Defendant asserts that even producing information for 200 sample drivers and 150 applicants will be very burdensome as it will require a total of approximately 148 hours to manually compile this information, but that it will do so in an effort to reach a good faith compromise. See JS at 83.

*9 Plaintiffs argue the fact that defendant has inefficiently stored these records is not a sufficient excuse for it not to produce the information, since defendant can hire outside vendors that may be able to export the relevant data more efficiently than defendant's in-house personnel. Id. at 42-44. Plaintiffs contend that information regarding whether a driver is under contract should not be sampled in the same way as a driver's criminal records, because under-contract driver information is more central to plaintiffs' claims. Id. at 45.

The court agrees with plaintiffs that whether a driver is under contract is far more crucial than the data the court previously ordered produced on only a sample basis. The particular information sought with subparts (p) and (q) of RFP No. 85 – which drivers were under contract and for how long – goes directly to class certification issues, including identification of class members and determining their number, as well as merits and damages issues. Defendant's estimate that it would take 319 hours to gather such information is concerning, but even if defendant is required to allocate eight individuals to spend a week pulling such information, that would be a significant but not crippling burden. As plaintiff argues, given that the other defendants have been able to produce this information, defendant Stevens Transport should not be excused from doing so simply because it contends its system for maintaining the information is less easily accessible. See, e.g., Unichappell Music, Inc. v. Modrock Prods., LLC, 2015 WL 12697738, at *4 n.9 (C.D. Cal. Aug. 28, 2015) (inefficient filing system does not “relieve [party] of its burden to produce responsive documents) (citation omitted). Of course, if the burden were truly disproportionate to the needs of the case, defendant should not be compelled to produce the information, but that is not the case with respect to the information sought in subparts (p) and (q).

It may be that if defendant were willing to retain the assistance of an outside discovery vendor it would, as plaintiffs suggest, be able to export this data more efficiently. But the could will not order defendant to retain such a vendor. It is up to defendant to determine how it can most efficiently produce this information. But however it does so, defendant must fully respond to subparts (p) and (q) of RFP No. 85.

Plaintiffs also argue defendant has failed to provide full payroll records for all its drivers responsive to RFP No. 85, whereas other defendants have produced wide-ranging payroll information for all drivers responsive to this request. JS at 45. Plaintiffs rightly point out driver payroll records are highly relevant to plaintiffs' case given the allegations that the alleged conspiracy led to suppressed driver compensation. Id. In addition, plaintiffs maintain payroll information should be readily available in a data-exportable format, because such information likely feeds into other systems such as accounting and taxes. Id.

Defendant does not dispute the relevance of plaintiffs' request for driver payroll records. But during the hearing, defendant argued that similar to obtaining under-contract driver information, it does not have a system to efficiently obtain payroll records for all drivers. Defendant does not really address the burden in its papers, except to include payroll records among the other information responsive to RFP No. 85 it contends must be manually pulled at a time estimate of 34 minutes per driver. Easley Decl. ¶ 8. Defendant does not say how long it would take to compile the payroll records by themselves. Further, defendant does not address plaintiff's argument that there should be some other way to access payroll records given the demands of paying employees, accounting needs, and taxes. Indeed, it is not clear that defendant has fully explored all available options for production of payroll records.

*10 As such, defendant has not demonstrated that producing the payroll records would be unreasonably burdensome. Given their clear relevance, it is not disproportionate to require their production. Accordingly, defendant must produce payroll records for all drivers in response to RFP No. 85. If in determining how it will produce the records defendant believes there is a way that may lessen its burden but that may not address every category of payroll information sought, the parties must meet and confer to try to reach agreement on the production.

Plaintiffs further argue that defendant has not produced data responsive to subparts (s) and (z), which relate to any amounts paid by the Department of Veteran's Affairs to defendant for a veteran to obtain truck driver training, and any classifications used by defendant to classify drivers based on their driving experience. JS at 6-7, 45-46. During the parties' meet and confer, defense counsel claimed it was still looking into whether defendant could provide data responsive to subparts (s) and (z), but to date defendant has not given plaintiffs a response. Id. at 45-46. Defendant fails to address this argument in the instant joint stipulation, and has not provided any update as to whether it has been able to locate this information. The court therefore orders defendant to promptly meet and confer with plaintiffs regarding whether it can produce data responsive to subparts (s) and (z) of RFP No. 85, and must promptly produce such information if it is within its possession, custody, and control. Depending on what defendant must do to produce such information, a sample production may be warranted for this category.

Finally, plaintiffs note that defendant has agreed to provide samples of full driver files consistent with the October 2020 order, but plaintiffs contends that unlike other defendants in this case, defendant Stevens Transport has failed to provide any data that would allow the driver sample to be identified. JS at 46. Some of this deficiency is addressed by the above discussion. Plaintiffs further assert that even if the drivers for the sample files could be identified, defendant refuses to provide the full driver files, and intends to produce only selected portions of the file.

In response to plaintiffs' argument that they lacked sufficient data to identify a driver sample, at the hearing defendant proposed that it was amenable to producing 1,000 driver files so that plaintiffs could identify a representative sample for under-contract drivers. But defense counsel informed the court that it had not previously met and conferred with plaintiffs regarding this proposal. As such, the court orders the parties to promptly meet and confer in good faith regarding defendant's proposal, taking into account the other rulings by the court in this order, in an effort to quickly reach an agreement as to what information plaintiffs need in order to identify a driver sample and allow defendant to produce the files, which should be the full files.

Based on the foregoing, it is hereby ordered that plaintiffs' motion to compel (docket no. 411) is granted in part and denied in part as set forth above. The parties must promptly meet and confer to resolve the remaining discovery disputes consistent with this order. Given the fast-approaching July 2, 2021 discovery cutoff date, the court further orders defendant to substantially complete its document production by June 1, 2021.

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

The court draws part of the information in this section from the Fourth Amended Complaint (“4AC”). See docket no. 228.