Herroz v. CRST Van Expedited, Inc.
Herroz v. CRST Van Expedited, Inc.
2015 WL 13914976 (C.D. Cal. 2015)
November 2, 2015
Pym, Sheri, United States Magistrate Judge
Summary
The court ordered CRST to produce ESI as it is kept in the usual course of business or else organized and labeled to correspond to the categories in the request. The court also denied plaintiffs' request for evidentiary and monetary sanctions without prejudice. CRST must produce the requested documents by November 16, 2015, or else the parties must meet and confer to agree upon another reasonable date for production.
Angel Herroz, et al.
v.
CRST Van Expedited, Inc., et al
v.
CRST Van Expedited, Inc., et al
Case No. ED CV 15-507-TJH (SPx)
United States District Court, C.D. California
Filed November 02, 2015
Counsel
Michele L. Jackson, Law Offices of Michele L. Jackson, Irvine, CA, for Angel Herroz, Nickolas Carroll, Gabriel Gamboa, Ana Camarena Cobian.Alaina Cathrine Hawley, Pro Hac Vice, James H. Hanson, Pro Hac Vice, Kathryne S. Feary-Gardner, Pro Hac Vice, R. Jay Taylor, Jr., Pro Hac Vice, Scopelitis Garvin Light Hanson and Feary PC, Indianapolis, IN, Christopher Chad McNatt, Jr., Scopelitis Garvin Light Hanson and Feary LLP, Pasadena, CA, for CRST Van Expedited, Inc.
Pym, Sheri, United States Magistrate Judge
Proceedings: (In Chambers) Order Granting in Part and Denying in Part Motions to Compel Further Discovery Responses [42, 46]
I. INTRODUCTION
*1 On September 21, 2015, plaintiffs filed a motion to compel further discovery (docket no. 42), asking the court to compel defendant CRST Van Expedited, Inc. (“CRST”) to provide further responses to 26 interrogatories, 73 requests for production, and a request for admission. The motion was supported by a Joint Stipulation (“JS 1”; docket no. 43) setting forth the parties' respective positions. Plaintiffs filed a supplemental memorandum on October 6, 2015 (“Ps' Supp. Mem.”; docket no. 44).
Plaintiffs filed another motion to compel further discovery on October 13, 2015 (docket no. 46), asking the court to compel CRST to provide further responses to 7 interrogatories and 2 requests for production. The second motion was also supported by a Joint Stipulation (“JS 2”; docket no. 47).
The court held a hearing on the first motion to compel on October 20, 2015. At the hearing, the court stated its tentative position on a number of overarching issues – some of which affect both motions – and heard argument from counsel. In light of the court's indicated ruling on several issues, and given the numerous discovery requests at issue – most of which seemed to be readily resolvable, if not resolved, in light of the court's indicated rulings and the supplemental responses already provided by defendant – the court ordered the parties to meet and confer further, and then let the court know which requests were still at issue in both motions.
The parties ostensibly did this and filed a Joint Statement of Issues Remaining in Dispute on October 23, 2015 (“JS Supp.”; docket no. 50). But as the parties' efforts eliminated from dispute only 4 of the interrogatories and 21 of the document requests from the first motion, and none from the second, the court questions whether counsel truly made a good faith effort to resolve their disputes. It is not the court's job to resolve such disputes when the parties have not made the effort required by the Local Rules and Federal Rules of Civil Procedure. See Fed. R. Civ. P. 37(a)(1) (motion to compel “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action”); L.R. 37-1 (“counsel for the parties shall confer in a good faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible”).
The court will nonetheless rule on the issues remaining in both of the motions to compel. The court finds that a hearing on the second motion would not be of assistance, and therefore VACATES the November 10, 2015 hearing that was set. For the reasons that follow, the court GRANTS in part and DENIES in part plaintiffs' motions to compel.
II. BACKGROUND
This is a wage and hour class action suit in which four plaintiffs, all of whom are truck drivers residing in California, allege that their current and former employer, CRST, failed to reasonably accommodate their perceived disability; improperly shifted drug testing, medical, and training costs; and made other unfair deductions from employees' paychecks. JS 1 at 2-3; see docket nos. 1 at 2-4, 1-1 at 4-8. Plaintiffs seek, on behalf of themselves and all other similarly situated CRST employees, class damages and damages under California's Private Attorney General Act (“PAGA”). JS 1 at 2.
*2 This action is related to a 2012 case filed in this court by Roberto Galan Segura, a former CRST employee. See case no. 5:12-CV-1901-TJH (SPx) (“Segura”). In that case, the court denied class certification and dismissed plaintiff's discrimination claim, but is permitting the case to move forward on the PAGA claims. See Segura docket no. 118 at 3-4. In denying class certification in Segura, the court found that plaintiff Segura failed to adequately represent the proposed class. Id. The court did not address the merits of the class claims. Id. After class certification was denied, Segura sought to have discovery reopened, but the court concluded plaintiff had failed to act diligently in pursuing discovery and denied the request. JS 1 at 7; see Segura docket no. 111.
On May 28, 2015, plaintiffs in this case served their first round of discovery on CRST seeking plaintiffs' personnel files and documents related to their individual claims. JS 1 at 4. On June 8, 2015, a second round of discovery was propounded. Id. Plaintiffs propounded a third round of discovery on August 3, 2015. JS 2 at 4. Initially CRST refused to respond to many of the requests and interrogatories. JS 1 at 4. Based on the court's ruling in Segura, CRST deemed these requests an improper attempt to evade the court's refusal to reopen discovery and believed the discovery to be excessive beyond the maximum permitted under the rules. Id. at 7.
On July 27, 2015, the court issued orders in both this action and Segura extending discovery to October 27, 2015. Id.; see docket no. 35; Segura docket no. 127. In light of these orders, CRST provided supplemental responses to plaintiffs' discovery requests, including plaintiffs' first 25 interrogatories. JS 1 at 7, 119. Plaintiffs filed the instant first motion arguing: each plaintiff is entitled to 25 interrogatories, permitting them to propound up to 100 interrogatories under the rules; they are entitled to discovery on issues not previously raised in Segura, such as information related to their drug testing, debit card, and training claims; CRST's supplemental responses are nothing more than reproduction of materials already disclosed in Segura and fail to address information based on the current relevant period, which extends beyond the disclosures made in relation to the 2012 case; since two plaintiffs in this action were not employed by CRST at the time of filing Segura, CRST is required to disclose new policies related to the new hiring period; and although CRST has objected to producing some documents based on privilege, they have failed to produce a privilege log. Many of these issues were also raised in plaintiff's instant second motion to compel, including the number of interrogatories.
Plaintiffs specifically request the court to: (1) order all the discovery served in Segura admissible in the instant action; (2) compel CRST to produce a privilege log; (3) compel CRST to provide third party witness information identifying putative class members relevant to the class covered in this action; (4) compel disclosure of “updated” or new information in response to several specific interrogatories and requests for production; (5) sanction CRST by prohibiting the use of any non-disclosed putative class members' information in any forthcoming claim of inadequate class representation; and (6) require CRST to pay for the costs of bringing this motion and sanction CRST monetarily for failing to disclose discoverable information. CRST contends plaintiff is not entitled to additional interrogatories and that its supplemental responses largely resolve plaintiffs' other outstanding discovery issues. JS 1 at 7, 119.
III. DISCUSSION
Rule 26(b) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). To be relevant, the information sought “need not be admissible at the trial”; however, it must appear to be “reasonably calculated to lead to the discovery of admissible evidence.” Id. Moreover, Rule 26(b) sets limitations on the scope of discovery. These include the requirement that the court must limit discovery where it determines that “the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C)(iii).
A. Issues Related to Discovery Produced in Segura
*3 Defendant at least initially objected that much of the discovery plaintiffs seek is duplicative to that sought in Segura and constitutes an attempt to made an “end-run” around the close of discovery in Segura. Since the discovery cut-offs were extended to the same date in the instant case and Segura, that appears to have largely disposed of defendant's objection. And in any event, this is a different case, and the court agrees with plaintiffs that they are entitled to “updated” discovery based on the facts and issues of the instant action.
Plaintiffs argue that, rather than requiring defendant to produce documents twice, all discovery produced in Segura should be “admissible in the instant action.” JS 1 at 3. The court will not determine the admissibility of any documents produced at this time. As discussed at the hearing, the parties could agree that all discovery produced in Segura be available for use in this action. But as defendant reported it already has again produced all of the Segura documents in this case, the issue appears moot.
B. Interrogatories
After the parties' most recent meet and confer efforts, the following interrogatories remain at issue: plaintiff Herroz's interrogatory nos. 9, 11-13, 16-18, 20, and 23-25; plaintiff Gamboa's interrogatory nos. 1-4, 7-8, 11-15, and 22-23; and plaintiff Carroll's interrogatory nos. 2-8.
1. Number of Interrogatories
Plaintiffs collectively have served at least 51 interrogatories. Defendant CRST argues many of the interrogatories are in excess of the 25 plaintiffs are permitted under the rules. See Fed. R. Civ. P 33(a)(1); McCarthy v. Paine Webber Grp., Inc., 168 F.R.D. 448, 450 (D. Conn. 1996) (applying the presumptive limit to each “side” rather than to each “party” because “all defendants have been represented by the same law firm since May 1993, and have jointly filed and responded to all motions since that time.”); Allen v. Sch. Bd. for Santa Rosa Cnty., 2011 WL 1831764, at *2-3 (N.D. Fla. May 12, 2011) (denying a request for 25 interrogatories per party after determining the rule would permit the side consisting of 23 individual to propound 1,725 interrogatories during discovery). Plaintiffs contend the plain language of the rule – “a party may serve on any other party no more than 25 written interrogatories” (Fed. R. Civ. P. 33(a)(1)) – permits each plaintiff 25 interrogatories. See Zamora v. D'Arrigo Bros. Co. of Cal., 2006 WL 931728, at *4 (N.D. Cal. Apr. 11, 2006) (“According to the Federal Rules, each plaintiff may serve each defendant with 25 interrogatories. Because there are four named plaintiffs, they can serve a total of 100 interrogatories on defendant.”).
Neither side cited authority binding on this court. The court tends to agree with plaintiffs that the plain language of the rule permits each plaintiff to serve 25 interrogatories. Nonetheless, this rule must be read to include some reasonable limit. Surely if twelve plaintiffs, all identically situated and acting in unison, brought a lawsuit, they would not be permitted 300 interrogatories. This court concludes, as other district courts have found, that “the decision to consider multiple parties as one for the purposes of Rule 33(a) is within the discretion of the court.” Rahman v. Smith & Wollensky Rest. Grp., Inc., 2007 WL 1521117, at *8 (S.D.N.Y. May 24, 2007) (citations omitted); see Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2168.1 at 261 (2d ed.1994) (“Because it frequently happens that a number of parties on the same side are represented by a single attorney and in that sense act in unison, this concept might be attractive in the interrogatory setting as well .... [t]he best result would seem to be to recognize that in some instances nominally separate parties should be considered one party for purposes of the 25-interrogatory limitation.”).
*4 Plaintiffs here appear to be similarly, but not identically, situated. Although they are acting in unison, they are also each separately proposed as a class representative. Under these circumstances, the court finds each plaintiff to be a separate party who is entitled to serve 25 interrogatories.
Moreover, so far as the court is aware, plaintiffs have served only 51 or so interrogatories, not 100. Given the complexity of the case, the court would grant plaintiffs leave to serve more than 25 interrogatories in any event. “Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2).” Fed. R. Civ. P. 33. Under Rule 26, the frequency and scope of discovery is restricted and discovery in excess of the statutorily permitted limits should be denied if:
(I) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2).
As discussed below, the court finds that certain of the interrogatories are unduly burdensome, and will not compel CRST to respond to those. But CRST's objection to the interrogatories based solely on the number served is overruled.
2. Interrogatories Calling for Identification of Putative Class Members
Herroz interrogatory 9 calls for CRST to disclosure the names and contact information for all current and former CRST truck drivers employed from December 2010 to the present – that is, all putative class members. Herroz interrogatory 12 calls for CRST to identify all members of the putative sleep apnea sub-class. Herroz interrogatory 11 calls for CRST to identify persons who have made complaints about the sleep apnea test. Plaintiffs argue all of these individuals are not only putative class members but also witnesses. JS 1 at 98-99. Plaintiffs' counsel has twice before made similar requests from this court. See docket nos. 18, 24; Segura docket nos. 14, 29.
Plaintiffs contend “before class certification has taken place, all parties are entitled to ‘equal access to persons who potentially have an interest in or relevant knowledge of the subject of the action, but who are not yet parties.” Algee v. Nordstrom, Inc., 2012 WL 1575314, at *5 (N.D. Cal. May 3, 2012) (citation omitted). But as the court has stated in response to plaintiffs' counsel's similar requests in Segura, “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)); accord Del Campo v. Kennedy, 236 F.R.D. 454, 459 (N.D. Cal. 2006) (denying motion to quash subpoenas). In such cases, “[t]he plaintiff has 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.’ ” Artis, 276 F.R.D. at 351 (quoting Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985)); accord Del Campo, 236 F.R.D. at 459.
*5 Plaintiffs' request for all truck drivers employed during the period is overbroad and unduly burdensome. Plaintiffs already have access to some 1,000 past employees for a period relevant to most of their claims. There is no basis to find plaintiffs need access to all members of the putative class at this stage. See Currie-White v. Blockbuster, Inc., 2010 WL 1526314, at *3 (N.D. Cal. Apr. 15, 2010); Martinet v. Spherion Atl. Enters., LLC, 2008 WL 2557490, at *1-2 (S.D. Cal. Jun. 23, 2008); see also Krzesniak v. Cendant Corp., 2007 WL 756905, at *1. But see Smith v. Lowe's Home Centers, Inc., 236 F.R.D. 354, 356-58 (S.D. Ohio 2006). Thus, as in Segura, the court is not going to order defendant to provide plaintiffs with information for all putative class members at this stage. The more difficult question is whether plaintiffs should get any additional class information beyond that produced in Segura.
CRST argues plaintiffs are not entitled to class discovery beyond that provided in Segura because plaintiffs have failed to make a prima facie showing that the Rule 23 requirements are satisfied. CRST contends plaintiffs' unsupported statement that “updated” information is needed to establish typicality and commonality fails to address how the 1,000 names provided previously are insufficient, especially in light of plaintiffs' statements that they do not need additional information to overcome the shortcomings the court noted in declining to certify a class in Segura. See Segura docket no. 118 (stating plaintiffs' “second class action has been brought by four other CRST employees who suffered class damages and, between the four of them, share commonality and typicality with the entire class in ways that Plaintiff Segura did not”). Plaintiffs dispute CRST's interpretation of plaintiffs' statements.
The court finds that while the sample produced in Segura should be largely sufficient to meet plaintiffs' class certification needs in this case, this sample is not adequate for all the claims in this case. In particular, some of the claims in this case such as for violation of PAGA (which only dates back to December 2013) entirely post-date Segura. See Ps' Supp. Mem. at 3. As such, contact information for other putative class members and witnesses to their claims for the later period in this action is relevant to plaintiff's later claims, and the previously disclosed putative class members in Segura are insufficient. Such class discovery is both permissible and warranted. See, e.g., Artis, 276 F.R.D. at 352 (“The disclosure of names, addresses, and telephone numbers is a common practice in the class action context.”); accord Algee, 2012 WL 1575314, at *4. Thus, in responses to Herroz interrogatory 9, CRST must produce a random sample identifying one-sixth of all current and former non-exempt drivers who were residents of California and employed during the period December 1, 2013 to the present.
Herroz interrogatory 12 calls for CRST to identify all members of the putative sleep apnea subclass. CRST states it has produced all information it can. Plaintiffs disagree. Because the court ordered production of all members of the putative sleep apnea subclass in Segura, and because CRST has identified some information here, the court will not order production of additional identification information in response to Herroz interrogatory 12. Herroz interrogatory 11 is more narrowly tailored, simply calling for CRST to identify drivers who complained about paying for the sleep apnea test. CRST states it does not have a list or database of drivers who complained. Plaintiffs do not specifically address this interrogatory, and so offer no reason for the court to find CRST can provide any additional information in response. As such, the court will not compel a further response.
3. Other Herroz Interrogatories
*6 Herroz interrogatories 13, 16-18, and 20 call for information pertaining to CRST policies, namely: (13) dates sleep apnea policies were in effect; (16-18) identification of specific CRST employees who drafted or enforced polices regarding medical examination reports or certificates and sleep apnea testing; and (20) reasons by the sleep apnea policy has been changed or discontinued, if it has. CRST's supplemental responses to these interrogatories adequately answer them. Plaintiffs argue the responses to interrogatories 13 and 20 do not address changes to the tracking of CRST employees who may be sleep apnea candidates; however, the court agrees with defendant that the interrogatories do not clearly call for such recordkeeping information. Plaintiffs argue CRST should produce pre-litigation documents in response to interrogatories 16-18; however, the interrogatories do not call for such documents. As such, the court will not compel further responses to these interrogatories.
Herroz interrogatories 23-25 asks CRST to state why plaintiffs are inadequate class representatives. CRST objects to answering these because the burden to prove plaintiffs can satisfy the elements of Rule 23 is on plaintiffs, and defendant should not have to present its opposition arguments before the motion is filed. JS 1 at 120; JS Supp. at 10-11; see Fed. R. Civ. P. 23. The court agrees that plaintiffs bear the burden, but this does not mean CRST should not be required to answer the interrogatories. Although certainly CRST need not present all its class certification opposition arguments – and these interrogatories do not call for them – CRST fairly can answer with any facts in its possession showing that any of the plaintiffs has atypical claims or will not fairly and adequately protect the interests of the putative class. As such, the court will compel CRST to respond with any such relevant information.
4. Gamboa Interrogatories
Gamboa interrogatories 1-3 call for the identity of several third-party service providers engaged by CRST to provide medical certificate examinations, drug testing, and training. Interrogatory 4 calls for CRST to disclose what it paid to health care providers for each medical certificate examination. Interrogatories 7-8 call for CRST to disclose the money it received from fees Comdata charged to CRST drivers and from fees CRST drivers paid to use a debit card to access their wages.
Plaintiffs argue they are entitled to the information related to third-party vendors because the complaint alleges CRST had improper arrangements with these vendors to charge CRST employees more than they would have had the employees gone to the vendors independently, with CRST receiving a portion of the fees. JS 1 at 106-07; Ps' Supp. Mem. at 4-5. CRST argues the information sought is not designed to lead to relevant discoverable information, particularly because there has been no class certification yet and the information sought does not simply relate to the individual plaintiffs' claims. JS 1 at 120; JS Supp. at 11-16. In general, CRST also argues that the information sought through the excessive interrogatories can be gathered by plaintiffs through other permitted forms of discovery, such as requests for production or depositions. JS 1 at 127.
The court finds these interrogatories call for information that is at least reasonably calculated to lead to the discovery of admissible evidence. Although the court appreciates CRST's argument that this information bears on all putative class members, the court cannot say that such information will be irrelevant to the class certification determination as plaintiffs seek to show the existence of class-wide issues. As such, CRST must respond to interrogatories 1-4, and 7-8.
Gamboa interrogatory 11 calls for CRST to identify complaints made about use of debit cards to access wages. CRST responded by identifying the documents it has produced with the responsive information. No further response from CRST is needed. See Fed. R. Civ. P. 33(d).
*7 Gamboa interrogatory 12 calls for CRST to identify the person most qualified to discuss the payment of wages to drivers via debit cards. CRST argues this interrogatory is unnecessary as plaintiffs can simply notice a Rule 30(b)(6) deposition. While plaintiffs of course have that option, there is no reason CRST should not also answer this simple interrogatory calling for relevant information.
Gamboa interrogatories 13-14 relate to CRST's claim that it has been released from PAGA liability under previous class action resolutions. CRST's only objection to these interrogatories is that they exceed the 25-interrogatory limit, which this court has overruled. Although CRST states it has produced relevant information in response to document requests (see JS 1 at 121), it does not identify these documents as requested by interrogatory 14, nor would such documents appear to adequately respond to interrogatory 13. As such, CRST must respond to these interrogatories.
Gamboa interrogatory 15 calls for CRST to state the number of California drivers hired by CRST since the Charles Smith v. Van Expedited, Inc. class period ended. CRST asserts plaintiffs already have sufficient information going to the numerosity element of class certification based on CRST's statement in its notice of removal. Plaintiffs do not asserts any arguments with respect to this interrogatory. As such, the court will not compel a response.
5. Carroll Interrogatories
Carroll interrogatories 2-5 call for CRST to state the revenue it collected from charges imposed on drivers to use the debit cards on which their wages are paid in each of the years 2011, 2012, 2013, and 2015. Defendant objects to this request as irrelevant pre-class certification, and as irrelevant in any event as plaintiffs seek to recover the charges themselves, thus making revenues and profits irrelevant. JS 2 at 11; JS Supp. at 46-48. The court disagrees. These interrogatories call for total revenues collected in a year, not as to particular putative class members. Although CRST's revenues or profits may not be directly at issue, these interrogatories are reasonably calculated to lead to the discovery of admissible evidence, and the court cannot say that such information will be irrelevant to the class certification determination, particularly as it may tend to show the existence of a common class issue.
Carroll interrogatories 6-8 ask whether CRST informs the DMV when it learns a driver's medical examination certificate has expired, and if so how long this practice has been in place and why it does so. Defendant objects to these interrogatories for reasons discussed and overruled by the court as set forth above. See JS 2 at 19-26. As to these interrogatories in particular, the court finds they seek relevant information. CRST also asserts with respect to at least interrogatory 8 (and possibly intended to with respect to interrogatory 6) that it does not communicate to the DMV about medical examination certification of California drivers. See JS Supp. at 49-51. While this response might be sufficient if actually made in response to the interrogatories, it appears CRST has not made such a supplemental response. As such, it must provide supplemental responses actually answering these interrogatories directly.
C. Request for Admission
The sole request for admission at issue is plaintiff Herroz's request for admission no. 10, which calls for CRST to admit it has sometimes instructed health care providers to issue “short cards,” that is, medical certificates valid for no more than six months. CRST responded by stating it does not instruct medical examiners to issue medical certificates of any particular duration. The court agrees with CRST that this constitutes an adequate denial of the request.
D. Document Requests
*8 The following document requests remain at issue: plaintiff Herroz's request nos. 1-5, 10-12, 15-23, 25-33, 36, 49-51, 54-55, 59-62, 64-65, 67-80, and 82; and plaintiff Gamboa's request nos. 1-2, 4-10, and 14-23.
1. Privilege Log
Plaintiffs argue that, although CRST cited to attorney work product and attorney-client privilege in its initial response to the majority of document demands propounded, CRST has yet to provide a privilege log. JS 1 at 113. Plaintiffs state it is not possible to determine if documents are being withheld and requests the court order CRST to produce a log or amend its responses to indicate when no items are being withheld. Id.
CRST states it has advised plaintiffs' counsel “that no documents not generated in connection with this case or the identical Segura case have been withheld on the basis of privilege.” JS 1 at 125. It is unclear exactly what defendant means by this, but at the hearing CRST indicated that the only documents withheld are those generated as part of the litigation, and that no pre-litigation documents have been withheld.
The court agrees that certain of the requests appear to call for documents that would have been created in the ordinary course of litigating this and the Segura case, and that it would be inappropriate to require CRST to create a log of all such documents. But to the extent CRST has withheld as privileged any responsive documents created before the Segura case was filed or not in the ordinary course of litigating these cases, CRST must produce a privilege log listing such documents.
2. Requests With Which CRST Has Already Agreed to Comply
As to a number of requests – specifically: Herroz requests 10-12, 15-16, 19-20, 22-23, 25-33, 36, 54-55, 60-61, 64-65, 67-80, and 82; and Gamboa requests 1-2, 4-10, and 22 – CRST states it has no or no additional responsive documents to produce, or that it will produce any additional responsive documents it finds, and that no pre-litigation documents have been withheld as privileged. As such, no further response to these requests is required.
The court notes that as to Herroz request 36 – to which CRST has agreed to produce any responsive documents – plaintiffs ask CRST to identify the responsive documents by case title and ECF number. JS Supp. at 30. CRST is required only to either produce documents as they are kept in the usual course of business or else organize and label them to correspond to the categories in the request. Fed. R. Civ. P. 34(b)(2)(E)(I). Of course, the parties are free to negotiate other terms for production if they wish.
CRST responded to Herroz requests 54-55, 64, and 68-75 by stating it has no responsive documents. Plaintiffs ask that CRST be compelled to state further whether any such responsive documents ever existed and what became of them. The court agrees with defendant that the Federal Rules do not obligate it to provide such information in response to these requests.
3. Other Herroz Requests
Herroz requests 1-5 seek third party vendor contracts. As discussed above, the court finds requests for third party vendor information sufficiently relevant, and so orders CRST to produce responsive documents.
Herroz requests 17-18 call for documents concerning “short cards” issued to some CRST drivers. CRST notes that it has produced plaintiffs' individual records, including medical examination records and certifications, as well as approximately 1500 medical examination forms for other drivers, and argues nothing more is required at this pre-class certification stage. JS Supp. at 25-26. The court agrees that CRST need not produce the actual medical records of any additional drivers at this stage. But the requests do not simply call for individuals' records; they call for “CRST DOCUMENTS” and “DOCUMENTS CRST has received that refer to the length of the medical certification to be given to California truck drivers.” JS 1 at 43-44. Thus, the requests do not pertain simply to individual records, but also to any documents CRST created or received that refer to the length of certification to be given to drivers generally. If CRST has any such documents, it must produce them.
*9 Herroz requests 21 and 62 appear to call for individual notifications and collection notices given to particular drivers in the putative class. The court agrees with defendant that at this pre-class certification stage these requests are unduly burdensome and of limited relevance, and thus will not compel further responses to these requests at this juncture.
Herroz requests 49-51 call for documents showing plaintiffs cannot meet the class certification requirements of typicality, commonality, and adequacy of representation. As discussed above, while CRST is not required to present all its arguments against class certification before plaintiffs file their motion, this does not mean CRST may simply withhold pertinent documents until plaintiffs file their motion. These requests do not require CRST to outline its opposition arguments, and the court does not construe these requests as extending to documents specifically created to oppose class certification, such as declarations or charts. But if CRST has pre-existing documents it believes it may use to oppose class certification and has not yet produced them, it must do so now.
Herroz request 59 calls for documents pertaining to complaints about costs charged for training materials. CRST objects that training material costs are outside the scope of this litigation. In light of the complaint's allegations regarding training costs generally, this request is reasonably calculated to lead to the discovery of admissible evidence. As such, CRST must produce responsive documents.
4. Other Gamboa Requests
Gamboa requests 14-21 call for communications between CRST and health care providers regarding medical examinations of CRST drivers, the cost of such exams, the duration of medical certifications issued to drivers, sleep apnea, the neck size of any driver, the body mass index of any driver, the blood pressure of any driver, and the diabetes of any driver. CRST generally asserts that it has produced the personnel and medical records of the plaintiffs, and the other records sought either do not exist or are not relevant, particularly to the extent plaintiffs' seek records pertaining to individual putative class members.
The court agrees with defendant that at this pre-class certification stage the requests for records pertaining to putative class members are unduly burdensome and of limited relevance, and thus will not compel CRST to produce such records at this juncture. Requests 18-21 only call for communications pertaining to individual drivers, and thus the court will not compel a further response to these. But requests 14-17 are broader, calling for communications about medical examinations of CRST drivers, the cost of such exams, the duration of medical certifications issued to drivers, and sleep apnea generally. CRST states it has no documents reflecting communications about the examinations, and thus no further response to request 14 is required. But the fact that CRST has no communications about the particular examinations does not mean it has no communications regarding the cost of exams, the duration of medical certifications, or sleep apnea generally. Thus, to the extent CRST has documents responsive to requests 15-17 that do not pertain to individual drivers's examinations, it must produce them.
Gamboa request 23 calls for documents reflecting the revenue or profit CRST made from debit card charges assessed when employees use the Comdata cards on which their wages are received. Defendant objects to this request as irrelevant pre-class certification, and as irrelevant in any event as plaintiffs seek to recover the entire charges, not just profits. JS 2 at 32-34; JS Supp. at 51. The court disagrees. Although CRST's revenues or profits may not be directly at issue, as with Gamboa interrogatories 7-8 and Carroll interrogatories 2-5, request 23 is reasonably calculated to lead to the discovery of admissible evidence, and the court cannot say that such information will be irrelevant to the class certification determination. To be clear, at this juncture CRST is not required to produce all documents from which their revenue or profits could be derived, but must produce documents that explicitly reflect revenue or profits from these charges.
E. Sanctions
*10 Plaintiffs seek both evidentiary and monetary sanctions. As to the former, plaintiffs request the court to bar CRST from: using witness information whose contact information has not to date been disclosed; making a claim of inadequate class representation based on information related to undisclosed employees; arguing it did not profit from or share in the debit card processing charges paid by employees; presenting evidence it did not forward information regarding short medical certifications to the DMV. JS 1 at 101; Ps' Supp. Mem. at 5; JS 2 at 12, 21, 32. The court finds this request premature. Plaintiffs have not yet filed a motion for class certification, and CRST has not yet attempted to use any of the information at issue to disadvantage plaintiffs. The court therefore denies plaintiffs' request without prejudice.
With respect to monetary sanctions, rule 37(a)(5) provides that the prevailing party on a discovery motion is entitled to an award of its reasonable expenses incurred in bringing or opposing the motion, including attorney's fees, except no payment should be ordered if: (1) the motion was filed before the moving party made a good faith effort to resolve the dispute; (2) the losing party's position was substantially justified; or (3) other circumstances make award of expenses unjust. Fed. R. Civ. P. 37(a)(5). Here, neither party is entirely the prevailing party. Accordingly, an award of expenses not warranted on this motion.
IV. CONCLUSION
The court's rulings on the discovery disputes in these motions are set forth in detail above. The court summarizes them, and sets forth a deadline for compliance, as follows:
1. Plaintiffs' motion to compel further discovery (docket no. 42) is GRANTED IN PART AND DENIED IN PART as follows:
a. On or before November 16, 2015, defendant CRST must produce all of the following to plaintiffs to the extent it has not previously been produced:
(1) Supplemental responses (within the limits described above) to: plaintiff Herroz's interrogatory nos. 9, 23, 24, and 25; and plaintiff Gamboa's interrogatory nos. 1, 2, 3, 4, 7, 8, 12, 13, and 14;
(2) All documents (within the limits described above) in CRST's possession, custody, and control responsive to: plaintiff Herroz's request nos. 1, 2, 3, 4, 5, 17, 18, 49, 50, 51, and 59; and plaintiff Gamboa's request nos. 15, 16, and 17;
(3) A privilege log listing any responsive documents withheld as privileged that were created before the Segura case was filed or not in the ordinary course of litigating these cases, if any were; and
b. Plaintiffs' motion to compel is otherwise denied;
2. Plaintiffs' motion to compel further discovery (docket no. 46) is GRANTED IN PART AND DENIED IN part as follows:
a. On or before November 16, 2015, defendant CRST must produce all of the following to plaintiffs to the extent it has not previously been produced:
(1) Supplemental responses (within the limits described above) to plaintiff Carroll's interrogatory nos. 2-8; and
(2) All documents (within the limits described above) in CRST's possession, custody, and control responsive to plaintiff Gamboa's request no. 23; and
b. Plaintiffs' motion to compel is otherwise denied; and
3. If CRST is unable to respond to any of these interrogatories or requests – such as Herroz's interrogatory no. 9 – by November 16, 2015, the parties shall meet and confer to agree upon another reasonable date for production; and if they are unable to reach agreement, they shall contact the magistrate judge's courtroom deputy to schedule a call with the magistrate judge.