*1 Before the undersigned with oral argument and by referral from the Honorable Salvador J. Mendoza, Jr. (ECF Nos. 230, 254) are Defendant's “Motion to Quash in Part and Modify Subpoena to Produce Documents” (ECF No. 214) and Plaintiffs' “Motion to Compel Defendant's Production of Documents Responsive to Plaintiffs' Requests for Production” (ECF No. 249). The motions are opposed and were heard with oral argument on March 21, 2022. Joachim Morrison and Nathan Nanfelt represented Plaintiffs. Lance Pelletier and Maricarmen Perez-Vargas represented Defendant.

The undersigned has reviewed the record and is fully informed. For the reasons stated herein, the undersigned grants in part and denies in part Defendant's motion to quash and denies Plaintiffs' motion to compel.

Plaintiffs filed suit on July 20, 2020. The operative claims are now set forth in the Fourth Amended Complaint. ECF No. 233. This class action seeks relief on behalf of former H-2A Mexican farm workers against their former employer Stemilt Ag Services LLC, a Wenatchee fruit company that is one of the largest agricultural employers in the United States. Plaintiffs seek relief for violations of the Federal Trafficking Victims Protection Act, 18 U.S.C. §§ 1589(a)(3), (a)(4), 1592(a); 42 U.S.C. § 1981 (for alienage discrimination); the Washington Law Against Discrimination (WLAD), Wash. Rev. Code § 49.60.180(3); Wash. Rev. Code § 49.52.050(2) (for willful refusal to pay wages); Washington's Farm Labor Contractor's Act (FLCA), Wash. Rev. Code § 19.30; and, for breach of contract. The Court previously certified the state FLCA claims covering a class of certain Mexican nationals employed at Stemilt pursuant to two 2017 H-2A contracts but declined to certify other classes proposed by Plaintiffs. ECF No 193. Currently pending is Plaintiffs' Second Motion for Class Certification. ECF No. 208.

The parties have been negotiating the production of Electronically Stored Information since the fall of 2020 and have a formal ESI agreement in place. The discovery matters before the Court concern ESI.

In 2017, Deloitte Financial Advisory Services, LLP performed a private investigation of Stemilt's employees and compiled a report. As part of the investigation, Deloitte obtained ESI from Stemilt. Last year, Plaintiffs served a subpoena upon Deloitte in an effort to obtain the data, as well as Deloitte communications with Stemilt and Stemilt's legal counsel. Meanwhile, Stemilt filed the instant motion to quash and/or modify the third-party subpoena and re-acquired its own data that Deloitte had obtained in the course of its investigation. The data included forensic images of the employer-provided cellphones of former Stemilt human resources employees from the relevant time period.

Stemilt has produced only the subset of materials relied upon in the preparation of Deloitte's final report. Stemilt also searched all of the Deloitte data for responsive discovery using the previously agreed search terms under the ESI agreement and it did not yield any additional hits that had not been previously produced. ECF No. 260 at 2. Plaintiffs seek to compel Stemilt to produce all text messages from four former employees sent within the timeframe of December 1, 2016, and November 2, 2017.

*2 Plaintiffs claim the information sought is relevant to Stemilt's defense that Plaintiffs engaged in a conspiracy with Stemilt's former employees (to contrive evidence of abusive working conditions). Stemilt claims that unfiltered access to the text messages implicates privacy interests and confidential corporate communications unrelated to this litigation. Stemilt further claims it has produced all nonprivileged information that is responsive and proportional to the needs of the case using the search terms agreed by the parties under their ESI agreement. Stemilt denies it is resisting discovery or refusing to answer any request for ESI.

A. Deloitte Report

In September 2017, Stemilt's outside counsel, Wenatchee-based law firm, Jeffers, Danielson, Sonn & Aylward, P.S (Jeffers Danielson), hired Deloitte Financial Advisory Services, LLP to conduct a third-party investigation of Stemilt's employees (Elizabeth Hernandez, human resource manager of employee relations and Christina Medrana), titled Project Fuji. ECF No. 216 at 2. Deloitte was to audit Stemilt's H-2A program, with a focus on expenses involving Stemilt employee Elizabeth Hernandez, and determine whether Hernandez had engaged in misconduct and theft. Id. Deloitte obtained extensive data as part of its investigation including: 1) forensic images of employer-provided cellphones of Stemilt human resource employees from 2017; 2) copies of records from Stemilt server files; 3) emails; and 4) company financial documents including invoices, contracts, and payment records. ECF No. 216 at 2. Deloitte reviewed thousands of text messages, but only relied upon 48 of those texts in the report. Over half of these 48 text messages were in Spanish. ECF No. 263 at 6, n. 2 (citing ECF No. 97-4). Deloitte's findings were summarized in an 18-page report dated October 19, 2017. See ECF No. 97-4. The investigation resulted in the termination of Hernandez and Medrano, and a legal action for theft, breach of contract and tortious interference. ECF No. 214 at 1.

The Deloitte report's section on “Scope and Methodology” describes the data Deloitte obtained and reviewed. It states that Deloitte reviewed “data collected and extracted from the mobile devices of Ms. Hernandez and Ms. Medrano” and indicates Deloitte “collected copies of the iPhone devices and performed a review of these chat and text messages using bi-lingual forensic professionals ...” ECF No. 97-4 at 4.

On August 28, 2020, Ms. Hernandez was interviewed at the law office of Jeffers Danielson. See ECF No. 264. Present conducting the interview were counsel herein for Stemilt (Mr. Pelletier and Brendan Monahan), an attorney from Jeffers Danielson (Robert Siderius), and Stemilt's HR representative (Zachary Williams). See ECF No. 264-1 at 3. Exhibits were discussed during the interview, including an exhibit labeled “Exhibit 2,” containing text messages from January 2016. ECF No. 264-2. This exhibit contains text printed at the top of the page stating “Project Fuji” “Privileged & Confidential/Attorney Work Product” “Extract of Chat Messages from Christina Medrano iPhone 6S – collected on September 29, 2017.” ECF No. 264-2.

C. Stemilt's Response to Plaintiffs' Amended Requests for Production

On November 17, 2020, Plaintiffs issued Amended Requests for Production. ECF No. 219-1. The requests covered the year 2017, unless otherwise stated. ECF No. 219-1 at 3. Relevant here, requests for production numbers 6, 7, and 11-15 requested Plaintiffs produce various “documents” and “communications,” including emails and text messages. See ECF No. 219-1 at 8-11. Request six seeks all documents related to “clearance order applications for H-2A workers,” including visa extensions. ECF No. 219-1 at 8. Request seven seeks documents and communications related to “establishing, communicating, measuring, or tracking of any quotas, production-based bonuses or incentives, productivity requirements, targets or standards for H-2A and domestic farmworkers during the apple harvest at Stemilt.” Id. Request 11 seeks document and communications that relate to “complaints, concerns, or other issues raised by H-2A workers and domestic farmworkers at Stemilt ...” ECF No. 219-1 at 10. Request 12 seeks communications with “any federal or state agency regarding any issue related to H-2A workers ...” ECF No. 219-1 at 10. Request 13 seeks documents related to communications between Stemilt and third parties, related to H-2A workers. ECF No. 219-1 at 10-11. Request 14 seeks communications between Stemilt and Columbia Orchard. ECF No. 219 at 11. Finally, request 15 seeks payroll and timekeeping records for workers employed under an H-2A clearance order in 2017 and “workers employed to supervise or transport the workers.” ECF No. 219-1 at 11.

*3 On December 11, 2020, the parties held a meet and confer discovery conference. ECF No. 251. According to Plaintiffs, Stemilt claimed at this conference that it did not possess employee cellphones from 2017 and “the only possibility of recovering data was if the data were backed up on iCloud ... which was set to auto-delete messages after one year.” ECF No. 251 at 2.

On December 15, 2020, Plaintiffs provided their first proposed ESI search terms. ECF No. 261 a 2.

On December 16, 2020, the parties entered into the Agreement Regarding Discovery of Electronically Stored Information. See ECF No. 250-3. Therein the parties agree to “cooperate in good faith regarding discovery in general, including identification and selection of custodians and other potentially relevant sources of ESI, and the disclosure and formulation of appropriate search methodologies, in advance of any search and/or collection.” Id. at 3. The parties further agree that “subject to principles of reasonableness and proportionality, they are obligated to produce relevant and responsive non-privileged documents of which they have actual knowledge, regardless of whether such documents contain any of the agreed-upon or additional search terms.” Id. at 7. The ESI agreement also requires that the parties “continue to cooperate in revising the appropriateness of the search methodology.” Id. at 8. It allows the producing party to proceed with the application of the “Agreed Terms” and then search the results for “responsiveness and privilege, and for necessary redactions.” Id. at 9.

On December 18, 2020, Stemilt responded to Plaintiffs' Amended Requests for Production. In answering the requests, it searched cellphones, .pst files, and letters in its possession, custody or control. Stemilt identified more than 500 mobile devices and hundreds of gigabytes of ESI with .pst files as locations likely to contain discoverable information. ECF No. 261 at 2; ECF No. 261-2 (spreadsheet of cellphones).

On December 28, 2020, Plaintiffs' counsel participated in a meet and confer with Stemilt's counsel (Mr. Pelletier and Justo Gonzalez) regarding Plaintiffs' discovery requests. ECF No. 219 at 2; ECF No. 250-2 at 3. According to Plaintiffs, Stemilt's counsel informed them again that 2017 text messages for company-provided cellphones “were likely unavailable because the phones were no longer in use.” ECF No. 219 at 2; see also ECF No. 251 at 2-3. According to Plaintiffs' counsel, Stemilt reported that it had “no reason to believe cellphone communications from 2017 existed” and indicated that text messages “were not available” because more than one year had elapsed since their auto-deletion. ECF No. 251 at 2; see also ECF No. 250-1 (“Stemilt also cautioned that it may not have text messages from the relevant time period ...”); ECF No. 261 (Pelletier Decl.) at 4 (Mr. Pelletier “disclosed that Stemilt might not have text messages from 2017 in light of Stemilt's preexisting device replacement schedule” but that his “team would be following up with [the] client to get a better understanding of what information was preserved.”); ECF No. 250-2 at 3 (Pelletier letter stating that during the meet and confer Stemilt cautioned that it “may not have text messages from the relevant time period, given Stemilt's preexisting device replacement schedule.”). According to Plaintiffs, there was no mention of forensic copies of employee cellphones in possession of Deloitte. ECF No. 251 at 2.

*4 In response to Stemilt's objection to the request that Stemilt review data from more than 500 devices, on December 30, 2020, Plaintiffs asked that Stemilt “run the proposed search terms on the phones of the [seven] regional managers for 2017, and thereafter provide Plaintiffs with a search term hit report.” ECF No. 261-4 (Ex. D) at 4; ECF No. 250-2 at 3.

On January 25, 2021, Stemilt produced its ESI disclosures and confirmed that it did not have text messages from the relevant period “in its possession, custody or control.” ECF No. 261 at 3; ECF No. 261-5 (Ex. E); ECF No. 250-2 at 4. Mr. Pelletier's letter to Plaintiffs stated:

ECF No. 261-5 (Ex. E) at 5 (emphasis added).

D. Filing of the Deloitte Report

On March 31, 2021, Stemilt filed the Deloitte report in opposition to the request for class certification. See ECF No. 97-4. Plaintiffs claim this filing was the first they learned of the Deloitte investigation. ECF No. 218 at 2-3; ECF No. 219 at 3.

In defending against class certification, Stemilt claimed Plaintiffs were inadequate class representatives due to their connections to the person investigated by Deloitte and claimed this connection will be “a dominant issue that will be the focus of this litigation.” ECF No. 99 at 28-29. In its Order on class certification, the Court noted that Stemilt had alleged that “certain workers, including named Plaintiffs, had an especially close relationship with Hernandez and Medrano – and for that reason have interests contrary to class members.” ECF No. 193 at 17-18. Stemilt argued that this “subset either conspired to or was manipulated into abandoning their employment with the perpetrators of an elaborate scheme to defraud Stemilt.” ECF No. 99 at 30.[1]

E. April 2021 Production of ESI

On April 13, 2021, the parties agreed on ESI search terms. In response, Stemilt applied the search terms to all custodians and all devices in its possession, producing more than 80,000 pages of documents on April 23, 2021. ECF No. 261 at 4.

F. Stemilt Obtains Data from Deloitte

In early June 2021, Plaintiffs took depositions of Ms. Hernandez and Ana Guerrero. The deponents identified documents that had not been produced to Plaintiffs, including the investigation file for the Deloitte report. ECF No. 250-5 at 2; ECF No. 219 at 3. On June 11, 2021, Plaintiffs requested Stemilt provide the Deloitte investigation file. ECF No. 219-2 at 5.

On June 16, 2021, Stemilt's counsel, Mr. Monahan, emailed Plaintiffs:

*5 ECF No. 250-5 at 2. Mr. Pelletier later indicated to Plaintiffs that it was on June 16, 2021, that “Stemilt first learned ... that Deloitte possessed some information from certain employee cell phones as part of its Project Fuji investigation.” ECF No. 250-2 at 4; ECF No. 261 at 5; ECF No. 261-11.

Deloitte returned all of the Stemilt data it had obtained as part of its internal investigation to Stemilt in encrypted form. ECF No. 261 at 6; ECF No. 222 at 2. This data was furnished to defense counsel in early July 2021. ECF No. 222 at 2. As the data included only “images and electronically stored information,” defense counsel was unable to determine from the data which materials were actually relied upon in creating the Deloitte report. Id. Defense counsel asked Deloitte to provide Stemilt with its investigative file, including “all documents and materials that it relied upon in generating the Project Fuji report.” ECF No. 222 at 2.

F. Request for Production No. 23 re: 2017 Investigation

On July 30, 2021, Plaintiffs served Stemilt additional formal discovery requests, including request for production number 23, seeking “all documents and communications related to any 2017 investigation conducted by Stemilt ...” ECF No. 219-4 at 3. On August 16, 2021, Stemilt wrote to Plaintiffs that it was “working with Deloitte to secure a copy of their investigative file for production and anticipate being able to produce that to you with Stemilt's Responses and Objections to Plaintiffs' Fourth Requests for Production.” ECF No. 219 at 5. On August 30, 2021, Stemilt objected to request for production 23 as being overbroad, disproportionate, unduly burdensome, confusing, contradictory, and seeking privileged documents. ECF No. 219-3 at 4-5. Stemilt interpreted the request as seeking the previously furnished Deloitte report and did not produce any additional responsive documents. ECF No. 219 at 5-6.

On September 8, 2021, Plaintiffs' counsel emailed defense counsel, expressing concern that Stemilt was withholding materials it had committed to produce, including the complete investigation file for the Deloitte report. ECF No. 250-5 (Ex. 5).

G. Stemilt's Production of Deloitte Investigative File

Defense counsel received the requested investigative file materials from Deloitte in September 2021. ECF No. 222 at 2. On September 21, 2021, Stemilt supplemented its response to Plaintiffs' request for production 23, producing 500 pages of documents, including all information Deloitte relied upon in its Project Fuji report, other than interview notes (which were not discovered until November 2021 and were produced in January 2022). ECF No. 251 at 5. The production included hundreds of excerpts of text messages and email communications and every document that Deloitte relied upon in its Project Fuji investigation. It also included a chain of custody identifying the information that Deloitte collected from Stemilt in connection with Project Fuji. See ECF No. 250-6 at 2.

On September 29, 2021, Plaintiffs' counsel followed up with Stemilt, asking if it had access to notes of interviews and whether it had searched the ESI. ECF No. 250-7 at 3. Stemilt's counsel represented in an email response that it was not aware of Deloitte's investigation or what steps it took to preserve its work product and recommended that a subpoena be served on Deloitte.

H. Deloitte Subpoena

*6 On October 15, 2021, Plaintiffs served a subpoena on non-party, Deloitte. ECF No. 215-1 (Ex. A). Relevantly, the subpoena seeks “all electronic data collected, harvested, or extracted from electronic devices related to Deloitte's Project Fuji work” (Request 2) and “all communications ... between Deloitte and [Jeffers Danielson] or Stemilt Growers LLC” (Request 3). ECF No. 215-1 at 5.

On October 29, 2021, Stemilt filed the instant Motion to Quash in Part and Modify Subpoena to Produce Documents. ECF No. 214. Stemilt claims the subpoena requests privileged work product material and is overbroad in that it seeks “mass amounts of irrelevant materials,” including “confidential information that is completely unrelated to any claims or defenses.” ECF No. 214 at 8.

I. Stemilt's Search of Deloitte Data

In November 2021, Stemilt applied Plaintiffs' ESI search terms to the forensic images of the employee cellphones and reviewed all search term hits for responsiveness. ECF No. 261 at 5; ECF No. 250-8 at 3. According to Stemilt, the search yielded no responsive, non-privileged documents that had not been previously produced. Id.

On December 14, 2021, Plaintiffs' counsel emailed defense counsel asking if Stemilt would review the cellphones and/or hard drives of Hernandez, Guerrero, Perez and Medrano “for responsiveness under the parties' ESI protocol and search terms.” ECF No. 261-10 (Ex. J) at 4; ECF No. 250-8 at 4. Plaintiffs also asked Stemilt to review its server from 2017 under the same ESI protocol and search terms. Id. Stemilt responded indicating that it was aware of its duty to supplement and that it did not have a forensic image of its server, but rather server .pst files. ECF No. 261-10 at 2; ECF No. 250-8 at 2-3.

On December 22, 2021, Plaintiffs' counsel requested a meet and confer about “substantive questions about these issues.” ECF No. 250-8 at 2.

J. Efforts to Meet and Confer

On January 10, 2022, the parties held a discovery conference. ECF No. 250 at 2. Stemilt informed Plaintiffs that it had applied the agreed ESI search terms to the cellphones imaged by Deloitte. Id. The search terms were not in Spanish. Id. Plaintiffs inquired as to whether Stemilt would produce the text messages within a date range, but Stemilt “refused and insisted its discovery obligations were complete.” ECF No. 250 at 2.

On January 26, 2022, Plaintiffs requested another discovery conference because it had negotiated the production of ESI under the assumption that the 2017 data was not preserved, and no 2017 text messages were available. ECF No. 250-1 at 1. Plaintiffs noted these text messages “require different protocols, e.g., based on date range or sender/recipient, not keyword search.” ECF No 250-1 at 1. Plaintiffs accused Stemilt of being “less than forthcoming” and then acknowledged the ESI agreement “requires the parties to discuss in good faith any modification to ESI searches.” ECF No. 250-1 at 3. But rather than proposing a modified ESI search, Plaintiffs' proposed “resolution” was to send an email asking Stemilt to produce:

ECF No. 250-1 at 2-3.

On February 8, 2022, Stemilt wrote Plaintiffs rejecting their proposed “resolution” claiming it was “asserted without basis or authority” and “based on false presumptions.” ECF No. 261-11 (Ex. K); ECF No. 250-2 (Ex. 2). Stemilt accused Plaintiffs of making “omnibus demands” and “baseless allegations of misconduct” and “intentional efforts to distort the record.” Id. Stemilt offered to meet and confer the next week. Id.

*7 No further meet and confer occurred.

J. Plaintiffs' Motion to Compel

On February 24, 2022, Plaintiffs filed the instant Motion to Compel asking the Court to compel Stemilt to “immediately produce text messages it possesses of former employees, Ana Guerrero, Elizabeth Hernandez, Christina Medrano, and Miguel Perez, between December 1, 2016 and November 2, 2017.” ECF No. 249 at 3.

A district court has wide discretion in controlling discovery. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). Pretrial discovery is ordinarily “accorded a broad and liberal treatment.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). Both the Federal Rules and this Court strongly encourage parties to resolve discovery disputes privately and discourage them from seeking needless court intervention.

A. Rule 26

Rule 26 the Federal Rules of Civil Procedure provides that if no claim of privilege applies a party may seek discovery of any information 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.” Fed. R. Civ. P. 26(b)(1). Information need not be admissible in evidence to be discoverable. Id. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401.

B. Rule 45

Pursuant to Federal Rule of Civil Procedure 45(a)(1)(C), a party may serve upon a non-party a subpoena, commanding the non-party to produce documents. The scope of allowable discovery is the same as permitted under Rule 26(b).

Generally, “a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action.” In re Rule 45 Subpoenas Issued to Google LLC & LinkedIn Corp. Dated July 23, 2020, 337 F.R.D. 639, 645 (N.D. Cal. 2020). However, there is an exception that allows a party to object when that party “claims some personal right or privilege with regard to the documents sought” from the non-party. Id. A party who is affected by a non-party subpoena (but is not subject to it) may file a motion to quash or modify the subpoena, assuming the party has standing to do so. Fed. R. Civ. P. 45(d)(3)(B). Rule 45(d)(3)(A) identifies circumstances in which a court must grant a motion to quash or modify a subpoena, while Rule 45(d)(3)(B) identifies circumstances in which a court may grant such a motion. Fed. R. Civ. P. 45(d)(3)(A) & (B). The court may also issue a protective order limiting discovery under Rule 26(c). Fed. R. Civ. P. 26(c). The party seeking to quash a subpoena bears the “burden of persuasion.” In re Apple Inc., No. 12-mc-80013 JW, 2012 WL 1570043, at *1 (N.D. Cal. May 2, 2012); Moon v. SCP Pool Corp., 232 F.R.D. 633, 637 (C.D. Cal. 2005).

*8 While Rule 45(d) draws distinctions between the issuing court and the compliance court in which enforcement of a third-party subpoena must be pursued, it is beyond dispute that the issuing court, under Rule 26, retains full control of the overall discovery process. Indeed, Rule 26 requires district courts to “limit the frequency or extent of discovery otherwise allowed by these rules or by local rule 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). Furthermore, because pretrial discovery has a potential for abuse (see Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35-36 (1984)), courts “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).

C. Rule 34

Rule 34 of the Federal Rules of Civil Procedure provides that a party may serve upon any other party a request for production of any tangible thing within the party's possession, custody, or control that is within the scope of Rule 26. Fed. R. Civ. P. 34(a)(1)(B). The party receiving the request has thirty days in which to respond. Fed. R. Civ. P. 34(b)(2).

D. Rule 37

Motions to compel are governed by Federal Rule of Civil Procedure 37. A party may move for an order compelling production where the opposing party fails to produce documents as requested under Rule 34. Fed. R. Civ. P. 37(a)(3(B)(iv). Rule 37 provides in pertinent part:

Fed. R. Civ. P. 37. Rule 37 states that “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4).

If a motion to compel discovery is granted, the Court must order the “party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees” unless: “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A). If the motion is denied, the court must “require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees,” however the court “must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). Where the motion is granted in part and denied in part, the court “may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C).

If a party fails to obey an order to provide or permit discovery, the court may issue further sanctions, as outlined in Federal Rule of Civil Procedure 37(b)(2)(A) and 37(c). The Court may also “order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).

A. Defendant's Motion to Quash and Modify Deloitte Subpoena

*9 Defendant seeks to partially quash and modify the third-party subpoena served on Deloitte. Though the subpoena included three requests, only the second and third requests are in dispute. ECF No. 215-1 at 5.

The second request of the Deloitte subpoena seeks “all electronic data collected, harvested, or extracted from electronic devices related to Deloitte's Project Fuji work.” ECF No. 215-1 at 5.

Stemilt acquired possession of this data from Deloitte in July 2021. This was not known to Plaintiffs at the time they issued the subpoena, nor at the time they responded to the motion to quash. See ECF No. 218. Stemilt disclosed this fact in a declaration filed November 19, 2021 in support of its reply. See ECF No. 222 at 2. A court may prohibit a party from obtaining discovery from a non-party if that same information is available from another party to the litigation. Bada Co. v. Montgomery Ward & Co., 32 F.R.D. 208, 209–210 (S.D. Cal. 1963) (non-parties should not be burdened with the annoyance and expense of producing the documents sought unless the requesting party is unable to discover them from a party); Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement & Power Dist., No. 2:10-CV-00290-DAE-BGM, 2016 U.S. Dist. LEXIS 5674, at *71 (D. Ariz. Jan. 14, 2016) (quashing third party subpoena on the basis that it imposed an “inappropriate ... burden” where the requested documents “would also be in the possession of a party defendant”).

The data sought by Plaintiffs is Stemilt's, not Deloitte's, and it is now in Stemilt's possession. In this context, it is inappropriate to force Deloitte to respond or limit Stemilt's ability to challenge this discovery through the use a third-party subpoena. Accordingly, the proper procedure to request the production of the information sought is under Rule 34.

It is not lost that without disclosing its possession of the data, Stemilt advised Plaintiffs to serve a subpoena on Deloitte. Understandably, Stemilt could not attest to what Deloitte searched, reviewed, relied upon or what steps it took to preserve its work product in preparation of the Deloitte report. Stemilt also did not know Plaintiffs would seek disclosure of all data collected by Deloitte, including the imaged copies of human resources' professionals' mobile devices including all embedded, residual and deleted data. As discussed at the hearing, Plaintiffs are not seeking the production of specific materials that bear on the veracity of the Deloitte report; and Plaintiffs are not seeking what information was reviewed or how the Deloitte report was finalized. Instead, Plaintiffs drafted an overbroad request and blame Stemilt for “not ... explain[ing] how Plaintiffs would obtain the relevant materials by any other means.” ECF No. 218 at 10.

This is the crux of the parties' frustration as to the subpoena's second request. The second request seeks a massive amount of data (“all electronic data collected”) with no reasonable limits. “Requests are unduly intrusive and burdensome where they are not narrowly tailored, request confidential information and appear to be a broad ‘fishing expedition’ for irrelevant information.” In re Ex Parte Application of Qualcomm Inc., 162 F. Supp. 3d 1029, 1043 (N.D. Cal. 2016).

*10 Plaintiffs claim, without citation to authority, that they are entitled “to see if there is any evidence” that Deloitte possesses that is relevant to the claims and defenses in this litigation. ECF No. 218 at 6. Even if Plaintiffs had served a similar formal discovery request on Stemilt to produce “all electronic data” furnished to Deloitte for Project Fuji (which they have not), Plaintiffs have not suggested how the entire contents of Stemilt's data obtained by Deloitte, including the server files, Stemilt emails, financial documents, and imaged cellphones or devices, are relevant and proportional to the needs of the case as required under Rule 26. See ECF No. 218 at 6 (claiming “Stemilt has never objected to the relevance of the discovery requests at issue,” though Plaintiffs have not formally requested production of this data from Stemilt). Given that Plaintiffs seek all data pertaining to human resources employees, it is plain that such a request could encompass commercially sensitive information that has nothing to do with this case.

The second request of the Deloitte subpoena seeks production of Stemilt data in Stemilt's possession. The parties' ESI agreement governs the discovery of ESI in Stemilt's possession. The second request is overbroad. Therefore, the Court quashes the second request of the Deloitte subpoena. As Stemilt has already disclosed all information relied upon by Deloitte in preparation of the Deloitte report, the Court denies Stemilt's request to modify the language of the second request.

This ruling is without prejudice to Plaintiffs right to seek relevant discovery from Deloitte. This also does not preclude the parties from developing a revised search methodology for the Stemilt ESI it obtained from Deloitte.

The third request in the Deloitte subpoena seeks “all communications including, but not limited to, letters, notes, reports, emails, text messages, instant messages or chats, WhatsApp communications inclusive of all attachments and/or enclosures between Deloitte and the law firm of Jeffers, Danielson, Sonn & Aylward, P.S. or Stemilt Growers LLC.” ECF No. 215-1 at 5

Stemilt asks the Court to quash the request because it seeks materials protected by the attorney-client privilege and attorney work product doctrine. ECF No. 214 at 4. Plaintiffs assert that by claiming a conspiracy and placing the Project Fuji investigation at issue, Stemilt's voluntary disclosure of the Deloitte report by implication, waived both protections as to all communications related to Project Fuji. The Court rejects Plaintiffs' formulation of the waiver rule and its application to the facts of this case.

Waiver of the attorney-client privilege or work-product doctrine may be express or implied. “An express waiver occurs when a party discloses privileged information to a third party who is not bound by the privilege, or otherwise shows disregard for the privilege by making the information public.” Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003). Thus, “once documents have been turned over to another party voluntarily, the privilege is gone, and the litigant may not thereafter reassert it to block discovery of the information and related communications by his adversaries.” Id. at 720.

“[I]t has been widely held that voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege as to all other such communications on the same subject.” Weil v. Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981); Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th Cir. 2010) (“[d]isclosing a privileged communication or raising a claim that requires disclosure of a protected communication results in waiver as to all other communications on the same subject.”); see also Fed. R. Evid. 502(a) & advisory committee's note (subject matter waiver of attorney-client privilege or workproduct protection is reserved for “those unusual situations” where 1) the waiver is intentional; 2) the disclosed and undisclosed communications or information concern the same subject matter; and 3) they ought in fairness to be considered together.”). “The rationale for this rule is that it would be unfair for a party to insist on the protection of the attorney-client privilege for damaging communications while disclosing other selected communications because they are self-serving.” McCormick-Morgan, Inc. v. Teledyne Indus., Inc., 765 F. Supp. 611, 613-14 (N.D. Cal. 1991) (citation omitted).

*11 Here, the parties agree, and the case law supports, that Stemilt expressly waived both attorney-client privilege and work product protection as to the Deloitte report that it voluntarily disclosed as part of this litigation; and the scope of this waiver encompasses the underlying documents that the Deloitte report relied upon. See e.g., In re Kidder Peabody Securities Litigation, 168 F.R.D. 459 (S.D. N.Y 1996) (requiring disclosure of documents embodying the substance of any statements of the interviewed employees after corporation's disclosure of investigative report in pending lawsuit triggered a waiver of the privilege); Murray v. S. Route Mar., S.A., No. C12-1854RSL, 2014 WL 1671581, at 2 (W.D. Wash. Apr. 28, 2014) (the waiver applies only “to the matters disclosed or relied upon”).

Plaintiffs claim the scope of the waivers here are broader than the Deloitte report and encompass “the subject matter of Project Fuji” ECF No. 218 at 8. The law clearly disfavors broad subject matter waivers. In Hernandez v. Tanninen, one of the Ninth Circuit cases highlighted by Plaintiffs during oral argument, the Court found the district court had erred in finding a blanket waiver of attorney-client privilege. 604 F.3d at 1101. The court remarked that the “breadth of the waiver finding, untethered to the subject-matter disclosed, constitutes a particularly injurious privilege ruling.” Id. Practically speaking, if the law were as Plaintiffs contend, it would be virtually impossible for a corporate client to have a candid and full discussion with its counsel as to what should be disclosed, because any disclosure would waive privilege as to those communications. At oral argument Plaintiffs admitted, that perhaps in hindsight, they could have drafted a more tailored request if they had been provided a privilege log, perhaps for communications between September 2017 and December 2017. The parties have not discussed this.

The waiver doctrine requires that this Court closely tailor the waiver to the needs of the case and party litigating the claim in question. Though Plaintiffs claim a fairness issue exists here, Plaintiffs have not met their burden of demonstrating any need for unrestricted access to all undisclosed communications at any time between Deloitte and Stemilt or Stemilt's lawyers. Stemilt does not base any of its defenses on privileged, undisclosed attorney-client communications. Stemilt's reliance on the Deloitte report does not give rise to such a broad implied waiver. See Kaiser Foundation Health Plan, Inc. v. Abbott Laboratories, Inc., 552 F.3d 1033 (9th Cir. 2008) (defense was not based on advice of counsel therefore Kaiser was properly denied access to otherwise privileged attorney-client communications).

“Waivers come in various sizes and shapes.” In re Keeper of Records, 348 F.3d 16, 22 (1st Cir. 2003). Plaintiffs' asserted scope of the waiver is overbroad.

Accordingly, the third request of the third-party subpoena served on Deloitte is quashed.

B. Plaintiff's Motion to Compel Production of Documents

Plaintiffs ask the Court to compel Stemilt to “immediately produce text messages it possesses of former employees, Ana Guerrero, Elizabeth Hernandez, Christina Medrano, and Miguel Perez, between December 1, 2016, and November 2, 2017.” ECF No. 249 at 3.

Though not clear from the motion, Plaintiffs Reply claims Stemilt's discovery responses are incomplete as to Requests for Production 6-7, 11-15, 21[2] and 23.

Request for Production No. 6 requests:

Request for Production No. 7 requests:

Requests for Production No. 11 requests:

Request for Production No. 12 requests:

Request for Production No. 13 requests:

Request for Production No. 14 requests:

Request for Production No. 15 requests:

Request for Production No. 23 requests:

ECF No. 219-1; ECF No. 250-4 at 4.

*13 Plaintiffs claim that all of the text messages Ana Guerrero, Elizabeth Hernandez, Christina Medrano, and Miguel Perez, between December 1, 2016, and November 2, 2017, “bear on the credibility of the 2017 Deloitte Report” and Stemilt has “put these four employees at the center of its defense, so their communications are discoverable” ECF No. 249 at 10. Plaintiffs assert the previously agreed ESI keyword search is not an adequate search methodology because text messages often rely upon emojis, abbreviations, and Spanish language.

The parties have yet to meet and confer in order to comply with their significant obligations to work in good faith under the ESI agreement. The agreement requires that the parties “shall continue to cooperate in revising the appropriateness of the search methodology.” ECF No. 250-3 at 8. The parties are expected to work cooperatively to complete discovery and reach the merits in this matter. Stemilt's re-acquisition of additional sources of ESI should have prompted the parties return to the ESI agreement. Though Plaintiffs claim Stemilt has failed to engage in “any good faith discussion about cellphone data and text messages since Plaintiffs uncovered their existence,” ECF No. 263 at 4, the last communication prior to the filing of the motion to compel was Stemilt's February 8, 2022 offer to meet and confer. ECF No. 250-2 at 5. Plaintiffs claim that Stemilt “refused” to consider revising search terms or translation of search terms, however. Stemilt stated on February 8 that it is “willing to update Stemilt's disclosures.” ECF No. 250-2. At the hearing, Stemilt further advised that it is willing to reform the ESI search to allow Spanish word searches tailored to specific discovery requests. The record does not reflect the parties have engaged in any effort to confer about an appropriate revised search methodology of the re-acquired ESI.

Plaintiffs also contend that Stemilt has not furnished the search term hit results for the cellphone data of the seven regional managers, or the four individuals subject of the motion to compel. ECF No. 263 at 7.

Accordingly, the parties are directed as follows:

The parties may mutually agree to adjust these deadlines without seeking leave of Court. Plaintiff's Motion to Compel is denied without prejudice pending the parties' meet and confer, and Stemilt's supplementation of its discovery responses, as directed herein.

C. Attorney Fees

*14 Stemilt asks the Court to include an award of attorney's fees pursuant to Federal Rule of Civil Procedure 37(a)(5). ECF No. 260 at 8. In this instance, the Court does not find that an award of monetary sanctions is appropriate. Both parties filed related discovery motions; both were fully briefed and argued. If the parties had adhered to their obligation to “continue to cooperate in revising the appropriateness of the search methodology” as required by the ESI agreement, the parties might have been able to resolve their differences without the Court's intervention—and thereby avoid the substantial time and expense spent briefing discovery issues. For this reason, the Court finds that both sides share responsibility.

Having considered the parties written submissions and oral argument, IT IS HEREBY ORDERED:

1. Defendant's Motion to Quash (ECF No. 214) is GRANTED IN PART and DENIED IN PART. Request numbers two (2) and three (3) of Plaintiff's third-party subpoena on Deloitte are QUASHED.

2. Plaintiff's Motion to Compel Production of Documents (ECF No. 249) is DENIED without prejudice pending the meet and confer and Stemilt's supplementation of its discovery responses, as directed above.

3. Failure to comply with this Order may result in sanctions outlined in Federal Rule of Civil Procedure 37.

IT IS SO ORDERED. The District Court Executive is directed to file this Order and provide a copy to the parties.

Plaintiffs believe Stemilt will seek to persuade “the jury that all of the Plaintiffs' evidence of abusive working conditions was contrived by the Plaintiffs after their ‘elaborate scheme to defraud Stemilt’ was uncovered.” ECF No. 218 at 5 (emphasis in original).

Request for Production Number 21 is referenced however, the discovery request does not appear to have been furnished.