Arredondo v. Univ. of La Verne
Arredondo v. Univ. of La Verne
2022 WL 1178017 (C.D. Cal. 2022)
March 1, 2022

Oliver, Rozella A.,  United States Magistrate Judge

Exclusion of Evidence
Privacy
Failure to Produce
Proportionality
Download PDF
To Cite List
Summary
The Court denied Plaintiff's request to compel production of electronically-stored information (“ESI”) as it was not legally relevant to her breach of contract claim. The Defendant had already provided amended supplemental responses to the Plaintiff's requests for production, so the Court did not make any specific rulings on the ESI.
Additional Decisions
Brianna Arredondo
v.
University of La Verne
Case No.: CV 20-07665 MCS (RAO)
United States District Court, C.D. California
Filed March 01, 2022

Counsel

Perry Leonard Segal, Charon Law, Redwood City, CA, Brett R. Cohen, Jeffrey K. Brown, Pro Hac Vice, Michael A. Tompkins, Pro Hac Vice, Leeds Brown Law PC, Carle Place, NY, David R. Shoop, Thomas S. Alch, Shoop APLC, Beverly Hills, CA, Jason P. Sultzer, Pro Hac Vice, The Sultzer Law Group PC, Poughkeepsie, NY, Mindy Dolgoff, Pro Hac Vice, The Sultzer Law Group PC, New York, NY, for Brianna Arredondo.
David Richard Sugden, Marlynn P. Howe, Delavan J Dickson, Julie R. Trotter, Call and Jensen, Newport Beach, CA, for University of La Verne.
Oliver, Rozella A., United States Magistrate Judge

Proceedings: (In Chambers) ORDER RE DISCOVERY DISPUTES [90][109]

Before the Court is Plaintiff Brianna Arredondo's request to compel production of (1) electronically-stored information (“ESI”) concerning Defendant University of La Verne (“Defendant's”) tuition and fee refund policies and practices, including internal communications on the same; and (2) putative class discovery as it relates to the defined class. Plaintiff further requests that the Court preclude Defendant from introducing or relying on any evidence it has withheld in response to Plaintiff's discovery requests and from taking the depositions of putative class members who provided declarations in support of Plaintiff's motion for class certification until after Defendant has produced the responses Plaintiff seeks. Dkt. No. 110.
 
The parties requested an informal discovery conference (“IDC”). See Dkt. No. 90. In lieu of holding an IDC, the Court directed the parties to file letter briefs. Dkt. No. 109. On January 12, 2022, Plaintiff filed her letter brief. Dkt. No. 110 (“Pl. Br.”). On January 20, 2022, Defendant filed its letter brief in opposition. Dkt. No. 111 (“Def. Br.”). On February 7, 2022, Plaintiff filed a supplemental brief. Dkt. No. 115. Later that day, Defendant filed a declaration requesting the Court strike Plaintiff's supplemental brief. Dkt. No. 116. On February 10, 2022, Defendant filed a further declaration regarding Plaintiff's supplemental brief. Dkt. No. 118. On February 16, 2022, Defendant filed a letter brief providing an update on the status of the pending IDC issues as suggested by Plaintiff's counsel. Dkt. No. 119 (“Status Report”).
 
For the reasons set forth below, the Court DENIES Plaintiff's request to compel and DENIES Plaintiff's request to preclude the depositions of three class members.
 
I. INTRODUCTION
On August 23, 2020, Plaintiff commenced this suit against Defendant. Dkt. No. 1. On February 22, 2021, Plaintiff filed a Second Amended Complaint (“SAC”) on behalf of a putative class of all persons who paid tuition and/or fees to attend La Verne in person in the spring 2020 semester but who had their course work moved to online-only instruction. Dkt. No. 44 at 2. Plaintiff raised claims for breach of contract, unjust enrichment, and conversion and theft of property. Id. at 23-29.
 
On April 21, 2021, the District Judge granted Defendant's motion to dismiss as to Plaintiff's unjust enrichment and conversion and theft of property claims but denied the motion as to her breach of contract claim. Dkt. No. 50.
 
On November 8, 2021, Plaintiff filed a motion for class certification. Dkt. No. 70. On that same day, Defendant moved to dismiss the action, arguing that the District Judge should decline jurisdiction under two exceptions set forth in the Class Action Fairness Act, codified in relevant part at 28 U.S.C. § 1332(d). Dkt. No. 71. On December 15, 2021, the District Judge denied Defendant's motion to dismiss for lack of jurisdiction. Dkt. No. 89.
 
On February 8, 2022, the District Judge granted Plaintiff's motion for class certification and certified the following class: “All University of La Verne undergraduate students who paid tuition and/or the Mandatory Fees at La Verne's Main/Central campus location during the Spring 2020 term/semester.” Dkt. No. 117.
 
On February 25, 2022, the District Judge issued an Order for Rule 23 and FERPA[1] Notice to Class Members and set the remaining case deadlines. Dkt. Nos. 131, 132.
 
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” On motion or on its own, the Court must limit the frequency or extent of discovery if it determines that the proposed discovery is outside the scope permitted by Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C).
 
III. DISCUSSION
A. ESI Regarding COVID-19 and Tuition Refunds
First, Plaintiff seeks to compel Defendant to produce supplemental ESI in response to her Request for Production (“RFP”) Nos. 6, 7, 12, 13, 16, and 17. Pl Br. at 2-4. These RFPs, which were served on July 9, 2021, seek the following:
RFP No. 6: All documents and communications concerning Defendant's decision to not issue refunds for tuition paid for the Spring 2020 semester, including internal discussions amongst presidents, deans, financial directors, provosts, and other positions involved in such decision-making including but not limited to the individuals identified in Defendant's initial disclosure.
RFP No. 7: All documents concerning Defendant's COVID-19 responses, including but not limited to training manuals, handbooks, internal policies and communications, communications with parents, communications with students, communications with alumni, communications with donors, communications with any government agencies or officials, and communications with any outside consultants or experts.
RFP No. 12: All documents showing requests or complaints by students or parents for refunds for the Spring 2020 Semester, and Defendant's responses to said requests or complaints.
RFP No. 13: All documents from your students or parents of your students regarding your response to COVID-19 including communications regarding your decision to suspend in-person classes and/or cancel on-campus services.
RFP No. 16: All documents pertaining to any agreement, including insurance or indemnification agreements, under which any person or entity may be liable to satisfy in part or in whole a judgment which may be entered in this action or to indemnify or reimburse for payments made to satisfy the judgment.[2]
RFP No. 17: All documents and communications pertaining to your financial planning or internal discussions of financial or budget matters related to changes in operation due to COVID-19, including any discussions on tuition or fee refunds, rebates, or credits.
Pl. Br., Ex. A at 14-16.
 
Defendant served its initial responses on September 9, 2021. Pl. Br., Ex. B at 2. Defendant objected generally to RFP Nos. 6, 7, 12, 13, and 17 on the grounds that they sought “confidential, trade secret, or proprietary information, or materials protected from disclosure by the attorney-client privilege, attorney work product doctrine, or the Family Educational Rights and Privacy Act (‘FERPA’),” and that the requests were “unduly invasive of constitutionally protected privacy rights of third parties.” Defendant further objected that all of the above requests were overly broad, burdensome, and disproportionate. See, e.g., id. at 7. Its objections notwithstanding, Defendant responded to Plaintiff's RFP No. 16 as follows: “Responding Party is unaware of any insurance policy or indemnity agreement providing coverage, indemnification or reimbursement to satisfy any judgment in this matter.” Id. at 14. As to RFP Nos. 6, 7, 12, 13, and 17, Defendant stated that it would be “willing to confer to reach agreement on the reasonable scope of discovery for this Request” as to each. Id. at 7, 8, 11-12, 14-15.
 
On October 8, 2021, Defendant served supplemental responses and produced documents in response to Plaintiff's RFP Nos. 6, 7, 17, and 18, but did not produce additional documents in response to RFP Nos. 12 and 13. Pl. Br., Ex. C at 7, 8, 13, 14, 18, 19.[3]
 
In her letter brief, Plaintiff argues that “these requests cover the breaching act (i.e., the decision not to refund a partial portion of tuition and/or fees at the conclusion of the semester), but such communications will also speak to the understanding of these policymakers as to what obligations they believed [Defendant] was required to perform under the university-student contract.” Pl. Br. at 3. Plaintiff characterizes the “reasonableness of [her] expectations” as a “primary legal and factual question in the case.” Id. Plaintiff further argues that complaints from students or others regarding the “policy” to not issue a refund must have been reviewed by policymakers and they undoubtedly must have evaluated the implications of that policy. Id. at 3-4. Plaintiff, therefore, contends that she is entitled to discover ESI regarding communications between Defendant's policymakers on these issues. Id. at 4. Plaintiff proposes custodians and search terms for the period from March 1, 2020 through September 1, 2020. Id.
 
Defendant counters that “[t]he ESI production that Plaintiff demands cannot be compelled because any such comments by students or by [Defendant], after the alleged contract formation and after the alleged breach, are legally irrelevant to a breach of contract claim.” Def. Br. at 2. Defendant cites to a number of state and federal court decisions for the proposition that “California law is adamant that one contracting party's subjective statements of its understanding of the terms of a contract are irrelevant on a breach of contract claim.” Id. (citing, inter alia, Zalkind v. Ceradyne, Inc., 194 Cal. App. 4th 1010, 1022 n.2 (2011); St. Paul Mercury Ins. Co. v. Amer. Safety Indem. Co., 2014 WL 120347, at *13 (N.D. Cal. May 21, 2014); Atencio v. TuneCore, Inc., 2018 WL 6164787, at *8 (C.D. Cal. Sept. 21, 2018), aff'd 843 Fed. App'x 42 (9th Cir. 2021)). Consequently, Defendant argues, evidence of its communications responding to complaints or formulating its “decision” not to issue a tuition refund cannot establish the terms of the contract or show that Defendant breached the contract because its subjective intent is irrelevant to that question. Id. at 3.
 
Although Defendant relies on cases involving written contracts, see, e.g., Zalkind, 194 Cal. App. 4th (discussing terms of asset purchase agreement); Atencio, 2018 WL 6164787 (analyzing terms of stock option agreements), which are inapposite here, the Court concludes that Defendant is correct that Plaintiff primarily seeks information that is not legally relevant to her breach of contract claim because it postdates the contract formation and alleged breach.
 
As Judge Scarsi found in his order denying Defendant's motion to dismiss Plaintiff's breach of contract claim, this case involves an alleged implied-in-fact contract between Defendant and its students. See Dkt. No. 50 at 3 (“Because no formal contract typically exists between a student and university, the general nature and terms of the agreement are usually implied.”). The terms of an implied-in-fact contract may be inferred from “the reasonableness of the parties' expectations at the time the contract was formed by considering the totality of the circumstances.” Id. (emphasis added); see also Saroya v. University of the Pacific, 503 F. Supp. 3d 986, 996 (N.D. Cal. 2020) (“When interpreting the enforceable terms of the agreement, courts will look to the reasonable expectation of the student at the time of contracting measured by the definiteness, specificity, or explicit nature of the representation at issue.”). Here, Plaintiff requests an ESI search for the period of March 1, 2020 through September 1, 2020. This period post-dates the beginning of the Spring 2020 semester and therefore post-dates the formation of the contract between students and Defendant for the Spring 2020 semester and any representations made as part of that implied contract.
 
Defendant points to legal authority that a party's motive to breach and a party's subjective statement of its understanding of the terms of a contract are irrelevant to a breach of contract claim. Def. Br. at 3. Plaintiff provides a list of topics that her requested discovery may show, Pl. Br. at 4, but does not sufficiently connect these topics to elements of her breach of contract claim. Rather, it appears that most if not all of these topics show motive and subjective understanding of the terms of the contract after formation.
 
In sum, communications involving Defendant's policymakers or their understanding of what their obligations were after the fact do not appear relevant or reasonably calculated to lead to the discovery of admissible evidence based on Plaintiff's theory of the case. To the extent there is some marginal relevance to the information sought by Plaintiff, the requested ESI discovery is overbroad and not proportional to the needs of the case. Accordingly, the Court DENIES Plaintiff's motion to compel this information.
 
B. Records of Individual Class Members[4]
Defendant provides in its February 16, 2022 Status Report that it is preparing a list of class members with names and contact information in light of the District Judge's class certification. Status Report at 2. Additionally, Defendant is preparing a separate spreadsheet without personal identifying information that provides additional financial and educational information regarding the class members. Id. at 2-3.
 
On February 25, 2022, the District Judge ordered Defendant to produce its list of class members within 15 days. Dkt. No. 131. The District Judge also approved a Notice of class action, and a schedule for providing notice. Id. The order provides that 30 days after notice is provided, it shall be deemed that Defendant has satisfied its obligations under FERPA. Id. Once FERPA obligations are satisfied, FERPA privacy concerns will not serve as a bar to the production of various categories of educational and financial records as part of discovery. Id.
 
Accordingly, it appears that any dispute over Plaintiff's request for information regarding individual class members has been mooted by the District Judge's orders regarding class certification and notice. Similarly, Plaintiff's request for an order precluding Defendant from relying on such records if records are not produced is also moot.
 
Additionally, as Defendant noted in its letter brief, Plaintiff did not raise the issue of compelling individual student records or a preclusion order in the joint IDC request. To the extent Plaintiff's letter brief requests relief beyond what Defendant has agreed to provide, the Court denies Plaintiff's request as not properly raised with the Court.
 
C. Deposition of Declarants in Support of Plaintiff's Class Certification Motion
Plaintiff argues that that “discovery of absent class members is permitted” only “if the proponent of the deposition demonstrates discovery is not sought to take undue advantage of class members or to harass class members, and is necessary to the trial preparation (or in this instance for preparation of the opposition to class certification).” Pl. Br. at 7 (quoting Moreno v. Autozone, Inc., No. C-05-4432 MJJ (EMC), 2007 WL 2288165, at *1 (N.D. Cal. Aug. 3, 2007)). Plaintiff does not, however, appear to oppose Defendant's request to depose these three declarants. Id. at 8. Rather, Plaintiff requests that the depositions be ordered as part of an order on narrow putative class discovery. Id.
 
Defendant counters that “[w]hen putative class members inject themselves into litigation by submitting declarations in support of class certification, the law allows defendants to take short depositions of those putative class member declarants.” Def. Br. at 4 (citing, inter alia, Vasquez v. Leprino Foods, No. 1:17-cv-00796-AWI-BAM, 2019 WL 4670871, at *3–4 (E.D. Cal. Sept. 25, 2019)). In its Status Report, Defendant provides that now that a class has been certified, Plaintiff's counsel represents the three declarants and that counsel will not voluntarily produce the declarants for deposition until there is a decision on the IDC disputes. Status Report at 1.
 
The Court concludes that Defendant is entitled to take the three depositions. Although discovery from absent class members is ordinarily not permitted, courts have permitted depositions of class members who have injected themselves into the litigation by submitting declarations in support of motions. See, e.g., Moreno, 2007 WL 2288165, at *1 (holding that the defendant was entitled to take depositions “only of those absent class members who have injected themselves into the class certification motion by filing factual declarations”); see also Vasquez, 2019 WL 4670871, at *4 (collecting cases where courts permitted defendant to take depositions of class members who “either by submitting declarations in support of the motion for class certification or in other ways, have ‘injected’ themselves into class action litigation.”). Defendant's proposed discovery is not overbroad or harassing. Defendant requests depositions of only three absent class members, and Defendant has agreed to limit the depositions to no longer than four hours each, excluding breaks. See Def. Br. at 4.
 
Although Plaintiff argues that Defendant should be precluded from taking these depositions until after it has produced the individual student records, Plaintiff provides no legal basis for the Court imposing such a requirement. The District Judge has approved a schedule for disclosure of such records. See Dkt. No. 131. Other discovery, including these depositions, must take place prior to the fact discovery cut-off, which is currently March 18, 2022.[5]
 
Accordingly, Defendant may take the depositions of these three deponents and Plaintiff's counsel must make the deponents available on mutually-agreeable dates prior to the non-expert discovery cut-off.
 
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff's request to compel production. The Court also DENIES Plaintiff's request to preclude the depositions of three class members. The depositions of these three individuals must take place on mutually-agreeable dates prior to the non-expert discovery cut-off.
 
IT IS SO ORDERED


Footnotes
Family Education Rights and Privacy Act.
Although Plaintiff lists this RFP, Defendant responded that it is unaware of any responsive insurance or indemnification agreement. Plaintiff has not explained how Defendant's response is deficient or what further documents Plaintiff seeks in response to this RFP.
On November 7, 2021, Defendant served “Amended Supplemental Responses” to Plaintiff's RFPs to correct a numbering error in its supplemental responses. Pl Br., Ex. K.
Plaintiff filed an unauthorized supplemental letter brief regarding “FERPA-Belaire notice.” Dkt. No. 115. Defendant filed two declarations objecting to this supplemental brief. Dkt. Nos. 116, 118. The Court declines to consider these unauthorized filings. The Court will consider the February 16, 2022 Status Report, Dkt. No. 119, to the extent it provides updates on the progress of the discovery disputes at issue but not as to any arguments.
The District Judge has denied requests to extend the discovery deadlines on multiple occasions. On October 12, 2021, the District Judge granted the parties' stipulation to continue various deadlines. Dkt. No. 64. The parties requested a six-week extension of various case deadlines, including the discovery cut-offs. See id. The District Judge found that the parties failed to show good cause, but granted a shorter, two-week extension. Id. On November 10, 2021, Defendant moved ex parte for a continuance of the class certification hearing and associated deadlines. Dkt. No. 73. On November 17, 2021, the District Judge denied the request. Dkt. No. 81. On January 7, 2022, Plaintiff moved ex parte for an extension of time to file her initial expert disclosures. Dkt. No. 103. On January 11, 2022, the District Judge denied the request. Dkt. No. 108. And on February 22 and 25, 2022, Plaintiff filed her proposed scheduling order, which included a proposed extension of the fact discovery cut-off to April 15, 2022. See Dkt. Nos. 121, 130. The District did not extend the discovery deadlines. See Dkt. No. 132.