*1 Plaintiff Ahmad Atiqi served his first set of Requests for Production of Documents (“RFPs”) on defendants Parsons Government Services, Inc. and Calnet, Inc. on July 21, 2015 and his second set on August 12, 2015. Kuchinsky Decl. ¶¶ 4-5, Exs. 3-4. Defendants disputed the scope of the second set, and the parties spent considerable time meeting and conferring in an attempt to resolve their disputes. After they were unable to resolve all their disputes, plaintiff moved to compel (docket no. 102).

After reviewing the briefing on the motion, the court held a telephonic conference on December 9, 2015, at which the court gave its tentative thoughts, heard argument from the parties, and directed the parties to further meet and confer. The parties did meet and confer further, and filed joint status reports on December 17 and 21, 2015. They resolved a number of issues, but disputes remain as to RFPs 7, 46, 49-50, 57, 60-61, and 64. Accordingly, the court rules on those disputes herein. The court grants in part and denies in part plaintiffs' motion to compel, as follows.

This is a representative wage-and-hour action. Plaintiff, on behalf of himself and other aggrieved employees, seeks to recover unpaid wages and civil penalties pursuant to California Labor Code sections 2698, et. seq., also known as the Private Attorney General Act of 2004 (“PAGA”). Id. The defendants are private contractors who provided services to the U.S. Army at Fort Irwin, a military base located in California. Defendants hired plaintiff and other aggrieved employees to work at Ft. Irwin as role players in training scenarios to prepare troops for deployment to Iraq and Afghanistan. Id.

Plaintiff alleges that from at least January 2010 through 2013, defendants engaged in a system of willful violations of the California Labor Code, IWC Order 4-2001, and the Fair Labor Standards Act (“FLSA”) by denying Plaintiff and all other aggrieved employees straight wages, overtime compensation, statutorily mandated meal periods, statutory waiting time penalties and penalties for failure to provide accurate semi-monthly itemized wage statements. Id.

Plaintiff's second set of RFPs seek documents related to “all PAGA employees who worked for Defendants at Ft. Irwin from January 2013 through November 2013.” Kuchinsky Decl. ¶ 5, Ex. 4. Many of the parties' discovery disputes concern whether plaintiff is entitled to the employment records of other aggrieved employees.

As the parties have resolved a number of their disputes, the remaining disputes concern just three issues, which are in need of resolution prior to the January 15, 2016 discovery cutoff.

Request for Role-Playing Services Contracts

Request for Production No. 46

Any and all agreements or contracts between YOU and other PERSONS, including but not limited to the U.S. Army, for which PLAINTIFFS provided services under such agreements or contracts on YOUR behalf.

The court finds these contracts relevant and discoverable within the scope of Rule 26 barring an assertion of privilege. Fed. R. Civ. P. 26(b). The relevance of the contracts is not really in dispute. But defendants claim the contracts specifically prohibit disclosure without prior authorization from the U.S. Army and thus must be withheld for national security reasons. Docket 102-1 at 16.

*2 In the moving papers and during the Telephonic Conference, defendants assured the court and plaintiff that guidance from the Army was being sought in relation to the disclosure of the contracts at issue. Id.; docket no. 118 at 2. Defendants have not provided documentation or other evidence of any formal request from the Army or Department of Defense (“DoD”). See generally 32 C.F.R. § 516. Defendants claim the contracts contain specific provisions precluding disclosure without prior authorization, but have not provided the court with the clauses' precise language. The court is mindful of the seriousness of the claims made by defendants and the invocation national security. See Ellsberg v. Mitchell, 709 F.2d 51, 58 n.31 (D.C. Cir. 1983) (elaborating on the “serious problems facing a judge who is attempting to assess [such] a claim”). But since this “the litigation is between private parties and the government has not intervened,” defendants “ha[ve] no standing to enforce military regulations or privilege.” Halliwell v. A-T Sols., 2014 WL 4472724, at *5 (S.D. Cal. Sept. 10, 2014).

Protection of military and state secrets is a “privilege [that] belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party.” U.S. v. Reynolds, 345 U.S. 1, 7-8, 73 S. Ct. 528 97 L. Ed. 727 (1953) (internal citations omitted). The privilege is “not to be lightly invoked” (id.), and “to ensure that the state secrets privilege is asserted no more frequently and sweepingly than necessary, it is essential that the courts continue critically to examine instances of its invocation.” Ellsberg, 709 F.2d at 58. The Reynolds Court “establishe[d] the procedure which must be followed for the privilege to be properly invoked: ‘[1] There must be a formal claim of privilege, [2] lodged by the head of the department which has control over the matter, [3] after actual personal consideration by that officer.’ ” Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C. Cir. 1984) (citing Reynolds, 345 U.S. at 7-8) (footnotes omitted). This court is “in no position to decide that the [contracts are] privileged until there had been a formal claim of privilege.” Reynolds, 345 U.S. at 10.

Since defendants became aware of this request for production approximately six months ago, by now they should have been notified if the military was declining authorization to release the contracts. See 32 C.F.R. §§ 516.40-516.46. As the court has no information suggesting the Army or DoD is asserting a privilege or declining authorization, the court ORDERS defendants to produce copies of the responsive contracts by January 8, 2016, but may do so in a redacted form and subject to the existing protective order. See 32 C.F.R. § 516.44 (“[Army] policy is to make official information reasonably available for use in Federal and state courts and by other governmental bodies unless the information is classified, privileged, or otherwise protected from public disclosure.”); Ellsberg, 709 F.2d at 57 (“[T]he privilege may not be used to shield any material not strictly necessary to prevent injury to national security; and, whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.”) (footnote omitted); see also U.S. for Use & Benefit of Treat Bros. Co. v. Fid. & Deposit Co. of Maryland, 986 F.2d 1110, 1119 (7th Cir. 1993) (noting, under similar circumstances, a violation of military regulation was “a matter between the disclosing party and the Army and not between the parties to the instant action). But defendants are cautioned that a redaction of all relevant information sought by plaintiff, without justification, will be deemed non-compliance with this order. If defendants learn, prior to January 8, that the Army or DoD does intend to deny authorization, they may request a further telephonic conference to discuss this issue.

Requests for “Other Aggrieved Employee” Documents

*3 Request for Production No. 49

All DOCUMENTS and ESI that REFER to any agreements between PLAINTIFF AND OTHER AGGRIEVED EMPLOYEES on the one hand and YOU, on the other hand.

Request for Production No. 50

All DOCUMENTS or ESI that REFER to PLAINTIFF AND OTHER AGGRIEVED EMPLOYEES job duties for each phase of each rotation (i.e. RSOI, STX, FSO) during the PAGA PERIOD.

Request for Production No. 57

All DOCUMENTS or ESI that REFER to the number of hours PLAINTIFF AND OTHER AGGRIEVED EMPLOYEES worked for YOU, including but not limited to time sheets, logs, work schedule, or any other DOCUMENTS that have time stamps during the PAGA PERIOD.

Request for Production No. 60

All DOCUMENTS or ESI that REFER to the exact time PLAINTIFF AND OTHER AGGRIEVED EMPLOYEES took their sleeping rest during each shift for each rotation during the PAGA PERIOD.

Request for Production No. 61

All DOCUMENTS or ESI that REFER to any advance notices given to PLAINTIFF AND OTHER AGGRIEVED EMPLOYEES about being relieved of all duties during each day for each rotation during the PAGA PERIOD.

Request for Production No. 64

All DOCUMENTS or ESI that REFER to the time PLAINTIFF AND OTHER AGGRIEVED EMPLOYEES took their meal breaks during the PAGA PERIOD.

RFPs 49-50, 57, 60-61, and 64 seek documents related to, presented to, or signed by aggrieved employees including plaintiff. PAGA defines an “aggrieved employee” as “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” Cal. Lab. Code § 2699(c). During the December 9, 2015 Telephonic Conference, the parties defined aggrieved employees in this action as those employees who provided role-playing services at Fort Irwin from January 2013 through November 2013. After additional meeting and conferring, the parties agreed to further classify “aggrieved employees” for purposes of discovery into two categories: (1) “Klein Group Clients” and (2) “Non-Clients.” Docket 118 at 2-3. Issues related to the first category have been resolved and defendants agree to produce the responsive documents for approximately sixty aggrieved employees in this category. Additionally, the parties have stipulated to dismiss all PAGA claims against Calnet. Plaintiff now seeks to compel responsive documents related to non-client aggrieved employees only from defendant Parsons. Id. at 2.

The primary argument militating against compelling further disclosure is the privacy protection to which potential unnamed PAGA plaintiffs are entitled – akin to the protection afforded by the Belaire notices sent to putative class members before discovery proceeds in a class action. Docket 102-1 at 12; see Belaire-W. Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554, 556, 57 Cal. Rptr. 3d 197 (2007). The individuals purportedly represented have a reasonable expectation of privacy in their personal employment information. See CAL. CONST. art. I, § 1. “But the protection which is afforded to privacy claims is a qualified protection, rather than an absolute one.” Alvarez v. Hyatt Regency Long Beach, 2010 WL 9505289, at *2 (C.D. Cal. Sept. 21, 2010) (citing Crab Addison, Inc. v. Superior Court, 169 Cal. App. 4th 958, 966, 87 Cal. Rptr. 3d 400 (2008)). To determine if an invasion of that privacy is justified “the court must balance that right of privacy against the need for discovery.” Id. (citing Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal. 4th 360, 372, 53 Cal. Rptr. 3d 513 (2007)).

*4 On balance, the court finds the privacy rights of the other aggrieved employees sufficient to require notice, and the opportunity to opt-out, prior to disclosure of their personally identifiable information and related employment records. See Puerto v. Superior Court, 158 Cal. App. 4th 1242, 1259, 70 Cal. Rptr. 3d 701 (2008) (describing employment records as “vastly more private” than general contact information). The parties have been unable to reach an agreement on the notification method or determine a viable notification schedule within the remaining discovery period. Docket no. 118 at 3-4. But because defendants agreed to produce all the documents requested in RFPs 49-50, 57, 60-61, and 64 for approximately sixty named aggrieved Klein Group Clients, the court finds disclosure of the Non-Client documents in redacted form – that is, redacted of information identifying the particular employees – is sufficient to meet plaintiff's needs.

“Unlike a class action, which allows individuals to seek financial remuneration as a way to redress personal injuries (Deposit Guaranty, N.A. v. Roper, 445 U.S. 326, 339, 100 S. Ct. 1166, 63 L. Ed. 2d 427 (1980)), a PAGA action is brought on behalf of the state labor agencies to punish noncompliant employers.” Alcantar v. Hobart Serv., 2013 WL 146323, at *2 (C.D. Cal. Jan. 14, 2013). Therefore, PAGA plaintiff's are generally not held to the strict requirements of class certification under the Federal Rules of Civil Procedure. See Gallardo v. AT & T Mobility, LLC, 937 F. Supp. 2d 1128, 1137 (N.D. Cal. 2013) (identifying several cases in which federal courts “have found that such representative claims need not be certified”); see Fed. R. Civ. Proc. 23. For example, in a PAGA action “the court does not inquire into the named plaintiffs” or require a showing that counsel is able to “fairly and adequately represent unnamed employees.” Baumann, 747 F.3d at 1122 (9th Cir.) (holding “that PAGA is not sufficiently similar to Rule 23 to establish the original jurisdiction of a federal court under CAFA”). There are also “no notice requirements for unnamed aggrieved employees, nor may such employees opt out of a PAGA action.” Id.

It is clear that “every PAGA action in some way requires some individualized assessment regarding whether a Labor Code violation has occurred.” Plaisted v. Dress Barn, Inc., 2012 WL 4356158, at *2 (C.D. Cal. Sept. 20, 2012). But this assessment is “nowhere close to the individualized and fact-intensive restitution calculations necessary under [California's Unfair Competition Law].” Id. Some courts have suggested that PAGA penalties can be established using properly extrapolated survey evidence and statistical sampling methods. See Alcantar, 2013 WL 146323, at *5; but see Stafford v. Dollar Tree Stores, Inc., 2014 WL 6633396, at *4 (E.D. Cal. Nov. 21, 2014).

Exactly how many contracts, sub-contracts, or employees the defendants employed on Fort Irwin, during the relevant period, is unknown to the court, but plaintiff noted defendants were obligated to supply at least three hundred similarly situated “role players” annually. Docket no 102-1 at 17. If the total number involved is approximately three hundred, then the Klein Group Clients represent twenty percent of the class, from which plaintiff may draw specific testimony. This information, in conjunction with statistical information garnered from the redacted Non-Client records is sufficient to achieve plaintiff's stated purpose in propounding these RFPs – establishing the required “showing that a Labor Code violation has occurred” necessary to substantiate his PAGA claims. Alcantar, 2013 WL 146323, at *4; See docket no. 102-1 at 22 (“These documents are relevant in determining whether Plaintiff and other aggrieved employees are owed minimum wage, overtime compensation, premiums for missed meal and rest breaks and whether Defendants provided itemized wage statements as required.... [The] violations at issue in this case”).

*5 The court also notes that while defendants' report of the meet and confer states they “are considering whether Plaintiff's alternative proposal regarding the production of anonymous data balances its concerns regarding privacy versus the appropriate scope of discovery in a PAGA case” (docket no. 118 at 4), and defendants do not raise any concerns that “the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C)(iii). Given this, and given the numbers involved, the court finds the burden of redaction here should be manageable for defendant Parsons.

As the court finds the requested information is within the scope of permitted discovery in a representative PAGA action, and that redaction of employee identifying information sufficiently addresses the other aggrieved employees' right to privacy, defendant Parsons is ORDERED to produce in redacted form all documents responsive to RFPs 49-50, 57, 60-61, and 64 pertaining to Non-Client employees. Such production must be made by January 8, 2016 unless otherwise agreed by the parties.

Other Disputed Request

Request for Production No. 7

All DOCUMENTS or ESI that REFER to any written complaint made by any of YOUR California employees since 2010 regarding the payment of wages, overtime pay, and missed meal periods during the EMPLOYMENT PERIOD.

Plaintiff argues this information is highly relevant for proving or disproving that the alleged violations were willful. Complaints establishing a pattern and practice of committing wage-and-hour violations would (1) demonstrate that Defendants were on notice about potential Labor Code violations, (2) impact defendant's ability to claim a good-faith defense (docket no. 72 at 15; id. 73 at 15-16), (3) permit the court to award the maximum penalties for those over which it has desecration (see Cal. Lab. Code § 2699(e)(2)), and (4) help establish plaintiff's entitlement to liquidated (see Cal. Lab. Code §§ 1194.2; 29 U.S.C. § 216(b)) and civil penalties. Docket 102-1 at 6-7. The court agrees, but only as relates to complaints from other individuals employed as role-players on Fort Irwin.

Defendants argue third party privacy issues outweigh plaintiff's need for the discovery. The court disagrees. The court is persuaded by plaintiff's argument that co-workers who are similarly situated to him and who have actually made complaints “may reasonably be supposed to want their information disclosed to counsel whose communications in the course of investigating the claims asserted in this lawsuit may alert them to similar claims they may be able to assert.” Puerto v. Superior Court, 158 Cal. App. 4th 1242, 1253, 70 Cal. Rptr. 3d 701 (2008); see Crab Addison, 169 Cal. App. 4th at 970 (“[T]his type of discovery should not be restricted unless the trial court is able to identify privacy concerns or potential discovery abuses which outweigh the plaintiff's right to discovery.”) (citing Lee v. Dynamex, Inc., 166 Cal. App. 4th 1325, 1336, 83 Cal. Rptr. 3d 241 (2008)). The court therefore ORDERS defendants to produce by January 8, 2016, responsive documents, but limited in scope to complaints made by any of YOUR California employees who were employed as role-players on Fort Irwin or state that no such documents exist.

For the foregoing reasons, IT IS HEREBY ORDERED that plaintiff's motion to compel further responses to certain RFPs, as set forth in the Joint Report RE: Plaintiff Atiqi's Motion to Compel (docket no. 118) and plaintiff's Motion to Compel Production of Documents (docket no. 102) is GRANTED IN PART AND DENIED IN PART as described above.