*1 Before the Court is the ex parte application (Dkt. 220 “App.”) of Defendant Genesis Logistics, Inc. (“Genesis”) to compel the depositions of three absent class members named Alan Craig, Oscar Zarate, and Robert Machuca (the “Subject Deponents”) on December 9, 2015, in Norwalk, California, pursuant to a Notice of Deposition served on November 19, 2015 (the “Notice”).

The Notice is an exhibit to the application. See, Dkt. 220-1 at 5. The Notice states that it is served pursuant to the Federal Rules of Civil Procedure, Rule 30, and the attached “proof of service” declaration states that it was served electronically on the Desai Law Firm, appointed class counsel. The Notice sets the depositions for 10:00 a.m., 12:00 p.m. and 3:00 p.m. on December 9, 2015, at a hotel in Norwalk, California.

On November 23, 2015, class counsel filed objections to the Notice, concluding, “We cannot, and will not, produce any absent class member for deposition without a court order per the law on class actions.” Dkt 220-1 at 17.

For the reasons stated below, Defendant's application is GRANTED, with limitations as described below.

I. BACKGROUND.

This class action lawsuit was filed on May 2, 2012. Dkt. 1. Fourteen named Plaintiffs allege that Defendant violated labor laws govering pay documentation, wages and meal and rest breaks. Id.

On March 26, 2013, the Court certified three classes to litigate claims under the UCL. Dkt. 52 at 18-19. The Court subsequently granted certain motions for summary judgment based on preemption and entered judgmet in favor of Genesis. Dkt. 93, 124. After the Ninth Circuit announced a new decision concerning preemption, the Court reconsidered and reversed its earlier ruling. Dkt. 193.

This matter is now set for trial in 2016. The discovery cutoff date is December 17, 2015. Dkt. 203. All depositions must be commenced at least 5 working days prior to the cutoff date, which is December 10, 2015. Id.

II. OVERVIEW OF THE INSTANT APPLICATION AND OPPOSITION.

Genesis contends that it needs the depositions of the Subject Deponents to investigate whether the meal and rest break claims asserted by the named Plaintiffs are truly common to the putative class. Genesis selected the Subject Deponents because of their longevity with Genesis and consequent likely familiarity with Genesis' policies. App. at 2. Genesis further contends that it resorted to an ex parte application due to timing urgencies created because (1) Plaintiff's counsel was not responsive to informal attempts to schedule these depositions, (2) Defendant's Ohio counsel already has airline tickets to travel to California for depositions on December 8, 2015, and (3) the discovery cutoff date is December 17, 2015. Id. at 3-4.

Class counsel contends that he has never spoken with the Subject Deponents, does not represent the Subject Deponents, lacks contact information for the Subject Deponents other than a mailing address and could not “produce” the Subject Deponents for deposition, even if ordered to do so. Plaintiffs further contend that Genesis should have pursued this discovery earlier, such that the parties would have had time to complete the joint stipulation process in Local Rule 37-1 et seq. well before the discovery cutoff date. Dkt. 221 (“Oppo.” at 2, 7-8). Plaintiffs argue that Defendant's ex parte application is a bad faith litigation tactic deserving of sanctions. Id. at 9.

III. DISCUSSION.

*2 In discovery disputes, the Court is guided by the premise that the Federal Rules of Civil Procedure and the decisions of the Ninth Circuit Court of Appeals favor discovery to assist in the underlying goals of litigation. Pursuant to the Federal Rules, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense” and this “[r]elevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). The Ninth Circuit has explained that it favors a broad scope of discovery. “[W]ide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for truth.” Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9th Cir. 1995).

A. No rule prohibits propounding discovery on absent class members.

Plainitffs aruge, “Absent class members are not subject to depositions.” Oppo. at 4. Defendant, however, points to the analysis in Arredondo v. Delano Farms Co., 2014 U.S. Dist. LEXIS 145562 (E.D. Cal. Oct. 10, 2014). In that case, the district court refused to grant a protective order prohibitting defendants from taking 196 depositions of absent class members. The depositions were sought post-class certification, but in the midst of a request to decertify. The Magistrate Judge in that case summarized the law governing discovery against absent class members, as follows:

Arredondo, 2014 U.S. Dist. LEXIS 145562 at *11.

This Court agrees that Clark furnishes the appropriate legal standard governing requests to propound discovery on absent class members.

B. Genesis has satisfied the four Clark criteria.

Genesis seeks only three depositions. Even Plaintiffs agree that the purpose of this discovery is not to harass the Subject Deponents or encourage them to opt out of the class. Oppo. at 7 (arguing that the Subject Deponents are likely to be “happy campers”).

Genesis contends that “the depositions of these three absent putative class members are necessary for Genesis to investigate whether the meal and rest break claims asserted by the named Plaintiffs are common to the putative class.” App. at 4. Genesis further contends it is “entitled to determine if other drivers will support or refute the named Plaintiffs' contentions. Furthermore, if some putative class members have been instructed not to take their breaks, as the named Plaintiffs contend, Genesis is entitled to prove that those individual circumstances are not common to the remaining members.” Id.

*3 Plaintiffs respond that whether or not rest breaks were actually taken is irrelevant. Oppo. at 5. According to Plaintiffs, the only issue is whether Genesis had a common policy, and Gensis should know its own policies. Id.

Plainitffs' view of the issues is too narrow for a matter still in pre-trial discovery. The actual conduct of employees may be relevant to establishing what the true policies and procedures were. Evidence establishing a lack of commonality may be relevent to how liability is tried or whether Genesis moves to decertify.

Again, the requested depositions are limited to three depositions, each only two hours long, on the same day in a location that is not very far from class counsel's office and close to the witnesses' workplace. Given the size of the class (approximatley 200), the amount in controversy and these witnesses' likely ability to provide relevant testimony, the Court finds that the benefit of the discovery outweighs the burden.

Genesis points out that after class certification, class members cannot be contacted by defense counsel seeking information. Yet, the “information possessed by these deponents is unobtainable from payroll records or other sources. These individuals have first-hand knowledge of their daily schedules, and given the nature of commercial truck driving, they are not supervised during the course of their workdays.” App. at 8.

Plaintiffs argue that the depositions of the class representatives are “enough,” even while acknowledging that the Subject Deponents likely have a different view of the circumstances giving rise to this litigation. Oppo. at 6-7.

Again, it appears that evidence of employees' actual practices may have some relevance to the claims and defenses in this case. Consistent with the broad scope of permissible discovery, the Court disagrees that Genesis must be limited to presenting evidence in the form of policy memos or handbooks.

C. After class certification, absent class members may be deposed via a notice.

Plaintiffs argue that the only way to obtain the deposition of an absent class member is via a subpoena personally served on the deponent under FRCP 45, because “absent class members are not ‘parties’ in a class action.” Oppo. at 4.

In fact, absent class members are considered “parties for some purposes and not for others.” Devlin v. Scardelletti, 536 U.S. 1, 10 (2002). Other cases have analyzed a party's ability to obtain discovery from absent class members using discovery tools limited to parties (such as interrogatories) by applying the Clark criteria. See, e.g., Clark, 501 F.2d at 340-41; McPhail 251 F.R.D. at 518. The Court, therefore, disagrees that the Federal Rules of Civil Procedure mandate following Rule 45 rather than Rule 30 when seeking to depose absent class members post-certification.

D. Whether the party seeking discovery obtains leave of court before or after serving the discovery is not dispositive.

Plaintiffs argue that Genesis was required to obtain a court order before serving the deposition notices, and that its failure to do so is fatal to its efforts now to obtain the noticed depositions. Oppo. at 2. Genesis argues that it was attempting to schedule these depositions via informal agreement, but filed an ex parte application when it became apparent no agreement could be reached. App. at 10 (arguing Plaintiffs' objection to the lack of a court order is now “moot”).

*4 In Arredondo, the question of what discovery could be propounded on absent class members came before the court via plaintiffs' motion for a protective order, which meant that the defendants had likely already noticed the depositions. That fact did not cause the Arredondo court to disallow the proposed depositions.

Here, the Court notes that Genesis did contact class counsel on November 18, 2015, by email before serving the depostion notice. Dkt. 220-1 at 9. A paralegal from class counsel's office responded, “Currently [Mr. Desai] is not available on the 9th, but we are working on trying to move appointments. In the meantime we are attempting to coordinate with our clients on their availability. Perhaps you should notice the depositions so we know who to contact, thank you.” Id.

There is no basis to penalize Genesis for using a procedure suggested by class counsel's office.

E. Genesis needs to provide phone numbers for the Subject Deponents.

Class counsel argues that as a practical matter, he cannot contact the Subject Deponents efficiently because the only contact information that Genesis has provided to date are mailing addresses. Oppo. at 3.

Genesis, as the Subject Deponents' employer, admits that it has “home phone numbers for these witnesses, but we do not have authority to disclose the numbers. If the court orders us to disclose the phone numbers, we will do so.” Dkt. 220-1 at 25.

To facilitate the requested discovery with minimal burden, the Court hereby orders Gensis to provide class counsel with home phone numbers for the Subject Deponents.

F. Genesis' alleged delay and failure to proceed under Local Rule 37-1 does not justify disallowing the requested discovery.

Plaintiffs argue that Genesis should have sought a court order to depose the Subject Deponents sufficiently in advance of discovery cutoff so that the parties could have utilized Local Rule 37-1.

Genesis contends that it did not pursue this discovery earlier, because it did not believe that the meal and rest break claims would be part of the trial until the Court reversed its earlier preemption ruling. App. at 4 n.1. Plaintiffs respond that “Genesis has had almost six months, and two separate hearings, since the Court reversed course on the FAAAA preemption defense.” Oppo. at 8. Plaintiffs conclude that the real reason for the delay is “bad faith.” Id.

The documents submitted show that counsel for Genesis was trying to schedule these depositions as early as November 18, and sent an email on November 24 formally asking to “meet and confer” about these depositions. Dkt. 220-1 at 32. Class counsel did not respond by advising that it was already too late, because the Local Rule 37-1 process is mandatory and requires approximately 38 days to complete. Instead, emails were sent suggesting class counsel would work with Genesis to schedule the requested depositions. While ex parte applications to resolve discovery disputes are disfavored, given the parties' communications, the Court is unwilling to disallow the requested discovery simply because Genesis did not resort to Rule 37-1 earlier.

IV. CONCLUSION.

For the reasons stated above,

IT IS SO ORDERED.

MINUTES FORM 11 CIVIL-GEN

klh

Initials of Deputy Clerk