Lopez v. GEO Grp., Inc.
Lopez v. GEO Grp., Inc.
2015 WL 13919326 (C.D. Cal. 2015)
June 26, 2015
Abrams, Paul L., United States Magistrate Judge
Summary
The court found that ESI was relevant to the case and that the parties must comply with the Federal Rules of Civil Procedure regarding ESI. The court also found that the requested discovery was relevant to the class claims and that providing the records for approximately 600 putative class members was not unduly burdensome. Accordingly, defendants must produce all substantive responses and documents relating to the discovery requests.
VICTOR LOPEZ, et al., Plaintiff,
v.
THE GEO GROUP, INC., etc., et al., Defendants
v.
THE GEO GROUP, INC., etc., et al., Defendants
No. CV 14-6639-PSG (PLAx)
United States District Court, C.D. California, Western Division
Filed June 26, 2015
Counsel
Cory Lee, Law Offices of Robert W. Sink, Fort Washington, PA, Philip A. Downey, Pro Hac Vice, The Downey Law Firm, LLC, Califon, NJ, Robert W. Sink, Pro Hac Vice, Sima Sasseen, Pro Hac Vice, Law Offices of Robert W. Sink, Philadelphia, PA, for Plaintiff.Elizabeth Staggs Wilson, Michelle Rapoport, Littler Mendelson PC, Los Angeles, CA, Andrea R. Milano, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC, for Defendants.
Abrams, Paul L., United States Magistrate Judge
ORDER RE: PLAINTIFF'S SUPPLEMENTAL MOTION TO COMPEL (Docket No. 47)
*1 Plaintiff in this putative class action[1] alleges that defendants, operators of correctional facilities in California, did not, among other things, pay their non-exempt, hourly employees for all required pre-shift work activities (including searches), resulting in the commission of various wage and hour violations. The discovery cut-off as established by the District Judge is September 29, 2015, and the last day to file motions is October 13, 2015. See Docket No. 26.
On May 13, 2015, the Court denied without prejudice plaintiff's previously-filed Motion to Compel Responses (Docket Nos. 38, 40), concluding that the parties had not engaged in a good faith meeting in an effort to resolve as many of their discovery issues as possible before seeking Court intervention; that while it appeared that defendants had supplemented earlier discovery responses, some responses indicated only that defendants “will produce” documents, not that they had done so, despite the original March 9, 2015, due date, and that promised responses could render moot many of the issues raised in the Motion; and that the Court would not engage in the time consuming exercise of parsing through the pleadings to discern which requests are at issue and which are not. Defendants were ordered to produce all documents in their possession, custody or control that were responsive to plaintiff's requests for production that they had not already provided and which they had represented that they would provide, as well as a declaration signed by a corporate officer or director that all such responsive documents have now been provided to plaintiff, and that all interrogatory responses are complete and accurate. If plaintiff believed that defendants' production or other discovery responses was still inadequate as to any of the requests raised in the Motion, the parties were to meet and confer in an effort to resolve any disagreements. If that procedure did not resolve the matter, plaintiff was to then file a supplemental motion addressing any remaining disputes.
Plaintiff has now filed his Supplemental Motion to Compel (Docket No. 47), and defendants have filed an Opposition thereto (Docket No. 49).[2] Having considered the documents filed in connection with the Supplemental Motion and Opposition, the Court has concluded that oral argument will not be of material assistance in determining plaintiff's Supplemental Motion. See Local Rule 7-15.
*2 Plaintiff relates that defendants are maintaining boilerplate objections to most of his discovery requests; have refused to withdraw their privacy objections; have not provided a privilege log; have produced heavily redacted materials; have not provided class-wide discovery; and have provided “barebones” [sic] discovery for only 226 of the 600 class members. Thus, defendants have not provided discovery for the following requests, which seek information or documents for facilities where plaintiff did not work and/or relating to third-party non-litigants prior to class certification: Interrogatory Nos. 1-3, 5, and Request for Documents Nos. 2, 7, 12-14, 18, 21-22, 27-29, 31-33, 37-38, 46, 50-51, 56-59, 61, 63-64, 66-68. Supplemental Memorandum at 2; Opposition at 4. According to plaintiff, defendants have objected to providing responses to these discovery requests “on the exclusive basis that ‘Plaintiff is not entitled to Class-wide data.’ ”
Defendants contend that they have provided plaintiff with “substantive responses tailored to his work experience and allegations against” defendants, as well as the names and contact information of non-exempt employees who worked at the only facility where plaintiff worked during the class period (Central Valley), and segments of a video depicting the entryway to that facility. Defendants have refused to produce additional class information based on plaintiff's self-serving and conclusory declaration, as he was employed for only three months, in only one job position, at only one of defendants' facilities.[3] They contend that prior to class certification, plaintiff is entitled to nothing more. Defendants represent that they have provided the relevant policies and procedures from the facility where plaintiff was employed; relevant portions of the employee handbook; plaintiff's pay records, personnel file and time sheets; an exemplar of a pay record belonging to another employee; a sampling of video footage of the entryway to the Central Valley facility; and, after agreement on a protective order, the names and addresses of nonexempt employees who worked at the Central Valley facility within the relevant time period. Thus, they submit that they have provided “full and substantive responses to a majority of Requests for Production at issue.”
Based on their production to date, defendants contend that the remaining discovery dispute relates to whether plaintiff is entitled to all policies and related documents for all of defendants' facilities within California, the names and contact information for all non-exempt employees from all of defendants' facilities statewide, and full payroll records for all putative class members. Defendants argue that plaintiff has not met his burden of showing that class action requirements have been satisfied or that discovery is likely to produce substantiation of the class allegations prior to obtaining discovery concerning the class. Manolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985).
In the circumstances here, the Court finds that plaintiff has made such a showing. Through his declaration, plaintiff has established that it was the policy and procedure at three of defendants' California facilities to require corrections officers to be searched each time the officers entered the facility. It would not take more than the time plaintiff spent at a training session at one facility, or more than the three months he spent at the Central Valley facility, for plaintiff to observe and experience this procedure. His experience at a third facility, albeit many years earlier, is also relevant to show the existence of a search policy at all of defendants' facilities. Plaintiff also presented evidence from defendants' Employee Handbook indicating that routine and random searches of employees is defendants' policy, a policy that arguably extends to all of their facilities. This is sufficient to warrant the discovery plaintiff is seeking.
*3 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,” even if that information is not ultimately admitted at trial. See Comcast of L.A. Inc. v. Top End Int'l, Inc., 2003 WL 22251149, at *2 (C.D. Cal. July 2, 2003); see also Fed. R. Civ. P. 26(b)(1) (“[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”). However, “[e]ven if the information is relevant, discovery is not allowed if the [party] seeking discovery fails to show their need for the information, or compliance with the request is unduly burdensome or oppressive, or where the harm of disclosure outweighs the need of the [party] seeking discovery of the information.” Greater Rockford Energy and Tech. Corp. v. Shell Oil Co., 138 F.R.D. 530, 534 (C.D. Ill. 1991); see also Insulate Am. v. Masco Corp., 227 F.R.D. 427, 432 (W.D.N.C. 2005). Moreover, the Court will not compel discovery responsive to a request that is “impermissibly overbroad, and if answered would produce much tangential if not irrelevant information.” United Oil Co., Inc. v. Parts Assocs., Inc., 227 F.R.D. 404, 420 (D. Md. 2005). Further, the Court may place limits on such discovery “where ‘the burden or expense of the proposed discovery outweighs its likely benefit.’ ” Six West Retail Acquisition v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98, 102 (S.D.N.Y. 2001) (quoting Fed. R. Civ. P.26(b)(2)); see also Filetech, S.A. v. France Telecom, S.A., 1999 WL 92517, at *2 (S.D.N.Y. Feb. 17, 1999) (limiting the plaintiff's ability to discover information from corporate chairman, where defendant sought discovery concerning unrelated issues). Finally, “[d]iscovery must be narrowly tailored ... and must not be a fishing expedition.” Zewdu v. Citigroup Long Term Disability Plan, 264 F.R.D. 622, 626 (N.D. Cal. 2010) (citing Groom v. Standard Ins. Co., 492 F. Supp. 2d 1202, 1205 (C.D. Cal. 2007)).
Here, the requested discovery is relevant to the class claims that plaintiff seeks to raise in this litigation; plaintiff is not engaging in a fishing expedition, but is seeking information that directly relates to his claims. The District Judge has not bifurcated discovery between those issues relevant to class certification and those relevant to the merits of plaintiff's claims. Thus, it is incumbent on the parties to be seeking all relevant discovery at this time. Indeed, it appears that plaintiff's class certification motion must be filed by October 13, 2015,[4] so information concerning the purported class must be sought now. Given this time frame, this Court will not split discovery into multiple phases. The information sought by plaintiff in all of the contested interrogatories and requests for documents is relevant, and responses and documents must be provided.
Defendants have asserted objections on the grounds of attorney/client privilege and/or work product doctrine in response to the discovery requests. The party who withholds discovery materials based on a privilege must provide sufficient information (i.e., a privilege log) to enable the other party to evaluate the applicability of the privilege or other protection. Fed. R. Civ. P. 26(b)(5); see Clarke v. Am. Commerce Nat'l Bank, 974 F.2d 127, 129 (9th Cir. 1992). Failure to provide sufficient information may constitute a waiver of the privilege. See Eureka Fin. Corp. v. Hartford Acc. & Indem. Co., 136 F.R.D. 179, 182-83 (E.D. Cal. 1991) (a “blanket objection” to each document on the ground of attorney-client privilege with no further description is clearly insufficient); Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984) (attorney-client privilege waived when defendant did not make a timely and sufficient showing that the documents were protected by privilege). Asserting a “blanket objection” to document requests will be found to be insufficient and improper. Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981) (blanket privilege objection is improper); see Clarke, 974 F.2d at 129 (blanket assertions of privilege are “extremely disfavored”). The attorney-client privilege applies only when “(1) legal advice is sought (2) from a professional legal advisor in his capacity as such, and (3) the communications relating to that purpose (4) are made in confidence (5) by the client.” Griffith v. Davis, 161 F.R.D. 687, 694 (C.D. Cal. 1995). Here, defendants state that their attorney-client privilege objections “are in place, and should remain so, to protect [their] rights on a going-forward basis.” Defendants have also represented to plaintiff that “no documents are currently being withheld on the basis of privilege,” but that some of the document requests are “so overbroad, that they could conceivably encompass privileged documents.” Supplemental Opposition at 10, n. 5 (referencing Document Request No. 78, seeking “All DOCUMENTS that RELATE to YOUR Defenses (including, but not limited to class certification) in this case.”). In light of defendants' representations to plaintiff and this Court that no documents are currently being withheld on the basis of privilege, plaintiff's complaint that defendants have not provided plaintiff with a privilege log is unfounded at this time. However, defendants are advised that if in response to this Order, or otherwise, they withhold discovery materials or information based on a privilege, they must provide a detailed privilege log containing sufficient information to enable plaintiff to evaluate the applicability of the privilege or other protection being asserted. Fed. R. Civ. P. 26(b)(5).
*4 Plaintiff also argues that defendants' continued privacy objections must be overruled now that a protective order has been agreed upon. Defendants represent that they are “warranted in taking all steps to reasonably protect the privacy rights of its employees by objecting to various discovery requests,” and that they have made clear that they are “not withholding any information that [they] agreed to produce subject to a protective order based on [their] privacy objection.” Defendants contend that to compel them to categorically withdraw their privacy objections is inappropriate “given the overbroad discovery requests.” The Court notes that a Protective Order has been entered in this action, which will serve to strike an appropriate balance between plaintiff's need for the requested information and defendants' privacy concerns. See, e.g., Knoll v. Am. 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”) (citations omitted). Defendants' privacy objection is overruled.
Finally, plaintiff complains that defendants have “impermissibly redacted the majority of [their] 2010, 2012, 2013 and 2014 Employee Handbooks, as well as [their] Policy and Procedure Manuals,” including “portions of sections entitled ‘Searches’ and ... three-quarters of [their] ‘Searches and Control of Contraband’ policy -- which directly relates to the issues in this case.” Plaintiff also asserts that defendants have not turned over multiple documents referenced in their document production, e.g., relevant policies referenced in the documents provided, and have never served supplemental responses. Defendants state that they have already produced the portions of GEO's Employee Handbook related to searches, meal and rest breaks, and/or payroll policies, and plaintiff's attempt to obtain additional portions of this Handbook, “regarding policies that do not pertain to his employment experience or allegations, is inappropriate.” They also state that “the redactions on the Search Policy that was produced relate to searches of inmates -- not employees -- which is why those portions of the policy are not produced.” Defendants state that during the meet and confer process they also agreed to produce “(1) any additional policies pertaining to security screenings and pay practices at Central Valley, to the extent any exist that predate (but fall within the statutory period) the set already provided to Plaintiff; and (2) any instructions employees receive regarding filling out time cards, if such instructions exist.” Supplemental Opposition at 4 (footnote omitted). The Court finds that to the extent that the redactions to the various handbooks and/or manuals that have been produced by defendants relate to searches of inmates, the redactions are appropriate. However, any redactions of information relating to employee searches, meal and rest breaks, payroll policies, or other relevant employment policies shall be produced unredacted, and any future documents produced in response to this Order, or otherwise, shall also be produced pursuant to this guideline. To the extent defendants have not yet produced the items described above that they previously agreed to produce, those items shall be produced in accordance with this Order.
Based on the above, the Court finds that the requested discovery is relevant to the class claims that plaintiff seeks to raise in this litigation. As such, information concerning the purported class, from all of defendants' California facilities for the relevant time period, must be produced now. The Court finds that providing the records for approximately 600 putative class members is not unduly burdensome, especially in light of the fact that more than one-third of those records has already been produced.[5] In short, the information sought by plaintiff in all of the contested interrogatories and requests for documents is relevant, and responses must be provided. Accordingly, plaintiff's Supplemental Motion (Docket No. 47) is granted. No later than July 17, 2015, defendants shall produce all substantive responses and documents relating to the discovery requests at issue in the Supplemental Motion (see supra, at 3), as well as a declaration signed by a corporate officer or director that all such responsive documents have now been provided to plaintiff, and that all interrogatory responses are complete and accurate. To the extent defendants withhold any documents or information based on a claim of attorney-client privilege or work product doctrine, a detailed privilege log must be provided. See The Rutter Group, California Practice Guide, Federal Civil Procedure Before Trial, Form 11:A (Privilege Log).
*5 Plaintiff's request for sanctions is denied.
It is so ordered.
Footnotes
The class plaintiff seeks to represent consists of “All individuals who are currently employed, or formerly have been employed, as nonexempt hourly employees at Defendants' facilities in California, at any time within four years prior to the filing of the original complaint until resolution of this action.” Supplemental Motion at 2.
On June 19, 2015, plaintiff filed an Ex Parte Application for Leave to File a Reply, “to correct misrepresentations of the record made by Defendants in their Opposition and to further assist the Court in deciding this motion to compel class-wide discovery.” Docket No. 50. Also on June 19, 2015, defendants filed an opposition to plaintiff's Ex Parte Application. Docket No. 51. Plaintiff's Ex Parte Application (Docket No. 50) is denied.
Defendants note that plaintiff was previously employed at a different facility, but that his employment there was well beyond the relevant statute of limitations period.
On October 20, 2014, the District Judge extended the deadline for plaintiff's motion for class certification, stating that the deadline for the class certification motion would be set at the initial case management conference. Docket No. 24. With respect to motion deadlines, the subsequent scheduling conference order included a “Last Day to File Motion” entry of October 13, 2015. Docket No. 26.
The Court has considered and rejected defendants' request that only a random sampling of records for the putative class members be provided.