*1 On January 4, 2022, plaintiffs Raul Martinez and Philippe Vieux filed a motion to compel additional discovery responses from defendant Knight Transportation, Inc. Docket no. 12. The parties' arguments are set forth in a joint stipulation (“JS”). Plaintiffs' arguments are supported by the declaration of their counsel Jonathan M. Lebe (“Lebe Decl.”) and exhibits. Defendant's arguments are supported by the declarations of its counsel John Ellis (“Ellis Decl.”) and chief administrative officer Kevin Quast (“Quast Decl.”) and exhibits. Both plaintiffs and defendant filed supplemental memoranda on January 11, 2022.

The court considered the papers submitted and held a hearing on January 25, 2022. Defendant filed a supplemental declaration from Quast (“Quast Supp. Decl.”) on January 31, 2022. The court now grants in part and denies in part plaintiffs' motion for the reasons discussed below.

On July 8, 2020, plaintiffs filed the instant putative class action in San Bernardino County Superior Court. They then filed a First Amended Complaint (“FAC”) on January 29, 2021. Defendant removed the case to this court on April 1, 2021.

Plaintiffs worked for defendant, a trucking company, as drivers. See FAC ¶¶ 2, 11. They allege defendant engaged in a systematic pattern of violations of the California Labor Code and Industrial Welfare Commission (“IWC”) wage orders. Id. ¶ 3. Specifically, they claim defendant paid drivers solely by mileage, which did not compensate them for pre-and post-trip inspections and other non-driving work duties. See id. ¶ 4. They seek to represent a class of “current or former California drivers employed by Defendants from April 6, 2016[ ] until the entry of judgment, other than those drivers whose wage and hour claims were released in previous settlements.” Id. ¶ 20. They also seek certification of a “waiting time subclass” of “members of the Class who separated their employment from Defendants from April 6, 2017 up until the entry of judgment, other than those drivers whose wage and hour claims were released in previous settlements.” Id. ¶ 21.

Plaintiffs raise nine California law causes of action in their FAC, including: (1) failure to pay minimum wage; (2) failure to pay overtime and double-time at proper rates; (3) failure to timely pay all earned wages; (4) unlawful deductions; (5) failure to reimburse business expenses; (6) failure to provide meal periods or compensation in lieu thereof; (7) failure to provide rest breaks or compensation in lieu thereof; (8) failure to provide accurate wage statements; (9) failure to pay all wages due upon separation; (10) unfair business practices; and (11) civil penalties pursuant to the California Private Attorney General Act (“PAGA”). See id. ¶¶ 25-104.

At this stage, the court has set deadlines for class certification only. See docket no. 9. Plaintiffs' deadline to move for certification is March 4, 2022, and a hearing on the motion is set for June 24, 2022.

Rule 26(b)(1) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” To be relevant, the information sought “need not be admissible in evidence”; however, it must be “proportional to the needs of the case.” Id. In determining the needs of the case, the court “consider[s] 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.” Id. A “relevant matter” under Rule 26(b)(1) is any matter that “bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978). Relevancy should be “construed ‘liberally and with common sense’ and discovery should be allowed unless the information sought has no conceivable bearing on the case.” Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (quoting Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992)).

*2 A party may serve up to 25 interrogatories relating to “any matter that may be inquired into under Rule 26(b).” Fed. R. Civ. P. 33(a). A party may also request documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). The responding party must respond in writing and is obligated to produce all specified relevant and nonprivileged documents, tangible things, or electronically stored information in its “possession, custody, or control” on the date specified. Fed. R. Civ. P. 34(a). Alternatively, a party may state an objection to a request, including the reasons. Fed. R. Civ. P. 34(b)(2)(A)-(B).

Here, plaintiffs move to compel supplemental responses to interrogatories asking for class contact information (interrogatory no. 1) and the total number of putative class members (interrogatory no. 2). They also move to compel production of time and pay records, training materials, employment manuals, policies, and compensation documents (Requests for Production (“RFPs”) nos. 2-10).

A. Failure to Meet and Confer

As an initial matter, defendant argues plaintiffs failed to meet and confer as required by Local Rule 37 regarding the disputes over the Belaire-West notice and RFP numbers 2, 4, 6, and 8. See JS at 29-30, 37-38, 45-46, 52-53, 59-60. Plaintiffs did not directly address this issue in their briefs. At the hearing, plaintiffs argued there is nothing to meet and confer about regarding the RFPs because defendant has an automatic duty to supplement its responses. Plaintiffs also claimed that they did bring up the RFP dispute on page 3 of their meet-and-confer letter.

Local Rule 37-1 requires parties to confer in good faith prior to the filing of any motion relating to discovery. The moving party must serve a letter requesting a conference and identifying the issues or discovery requests in dispute, provide any legal authority it believes is dispositive of the dispute, and specify the terms of the discovery order sought. L.R. 37-1. “[C]ounsel for the parties must confer in a good-faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible.” Id.

The court finds that plaintiffs failed to fully meet and confer in good faith regarding the Belaire-West notice and RFP numbers 2, 4, 6, and 8. Regarding the Belaire-West notice, plaintiffs repeatedly showed a willingness to distribute a notice prior to the filing of the instant motion. See Lebe Decl., Ex. E (6/4/21 e-mail in which plaintiffs suggest the parties begin to meet and confer about a notice); id., Ex. H at 2 (7/8/21 meet-and-confer letter in which plaintiffs seemingly agree to distribute a notice); id., Ex. J (8/18/21 email in which plaintiffs discuss edits to the notice). In fact, they took the initiative to prepare the first draft for the parties to consider and edit. See id., Ex. H at 2. Defendant claims the parties did not distribute the notice due to their dispute about the scope of the class. See Ellis Decl. ¶ 7. Defendant alleges that it first learned about plaintiffs' objection to distributing a notice at all when plaintiffs served their portion of the JS on December 15, 2021. Id. Although the parties did cover the Belaire-West issue at length, plaintiffs' surprise reversal was improper. Of course, plaintiffs are entitled to change their position on the issue, and at the hearing stated they did so here because the delay in distributing the notice makes it now impracticable. But having changed their position, Local Rule 37 required them to meet and confer with defendant about their reversal to determine whether the dispute could still be resolved without court intervention. This they did not do.

*3 As for RFP numbers 2, 4, 6, and 8, plaintiffs misunderstand the Local Rules. Parties must follow the meet-and-confer requirements for every discovery dispute, regardless of whether they strongly believe that their position is irrefutable. Looking at page 3 of plaintiffs' letter, there is no clear indication that they intended to meet and confer about RFP numbers 2, 4, 6, and 8. See Lebe Decl., Ex. H. For meet-and-confer efforts to be in good faith, parties must unequivocally raise and discuss every dispute.

Accordingly, the court denies plaintiffs' motion as to the Belaire-West notice and RFP numbers 2, 4, 6, and 8 without prejudice.

B. Remaining Discovery Disputes

The crux of the parties' disputes regarding the remaining requests is the scope of the proposed class for which plaintiffs seek discovery. Plaintiffs seek discovery regarding all employees who have driven in California for defendant from April 6, 2016 until the entry of judgment. See JS at 1. They argue that California employment law applies to all work performed in-state, so even non-resident employees who have driven in California should be in the class. See JS at 13-14. They also contend the discovery they seek will help them substantiate their class allegations. See JS at 10-11. Defendant, a corporation incorporated and headquartered in Arizona, is not opposed to providing discovery from all of the disputed categories. But defendant complains that plaintiffs' proposed class would include drivers who spent only a minute driving within California during the relevant period. JS at 24; Quast Decl. ¶ 2. Defendant argues that California law does not apply to the employees of an out-of-state employer who are neither based nor domiciled in California and spend only transitory amounts of time within the state. See JS at 24. For this reason, defendant asks the court to limit all discovery to over-the-road drivers employed by defendant and assigned to a terminal in California during the relevant time period. See JS at 28.

Prior to class certification, discovery lies entirely within the discretion of the court. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009). In seeking pre-certification discovery, the plaintiff bears the burden to either make a prima facie showing that the Rule 23 class action requirements are satisfied, or to show “that discovery is likely to produce substantiation of the class allegations.” Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985). “[T]he need for discovery, the time required, and the probability of discovery providing necessary factual information” are also relevant factors “bearing on the correctness of the trial court's exercise of its discretion.” Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977). Generally, the Ninth Circuit has favored allowing class discovery “unless it is apparent that [p]laintiff cannot maintain the action on behalf of the class.” Goundar v. Redfin Corp., 2014 WL 12524649, at *2 (C.D. Cal. July 21, 2014); Vinole, 571 F.3d at 942 (“Our cases stand for the unremarkable proposition that often the pleadings alone will not resolve the question of class certification and that some discovery will be warranted.”); Maharaj v. Charter Commc'ns, Inc., 2021 WL 1428489, at *7 (S.D. Cal. Apr. 15, 2021) (ordering production of class member contact information to enable plaintiff to determine commonality and typicality of the class claims); Putnam v. Eli Lilly & Co., 508 F. Supp. 2d 812, 814 (C.D. Cal. 2007) (“[I]t seems to the Court that contact with [class members] could well be useful for plaintiff to determine, at minimum, the commonality and typicality prongs of Rule 23.”).

*4 Even when pre-certification discovery is allowed, courts may limit it to plaintiff's job position and work location if his or her company-wide allegations are speculative or defendant introduces evidence of lawful corporate policies. See Coleman v. Jenny Craig, Inc., 2013 WL 2896884, at *8-9 (S.D. Cal. June 12, 2013) (citing cases). Indeed, courts should “balance Plaintiffs' need for discovery to substantiate their class allegations and concerns regarding overly burdensome discovery requests directed on Defendants in situations where Plaintiffs are clearly making a blind shot in the dark, hoping to find evidence supporting what are, at the time, highly speculative claims.” Aldapa v. Fowler Packing Co., 310 F.R.D. 583, 589 (E.D. Cal. 2015).

Plaintiffs here present sufficient evidence to establish that discovery regarding all putative class members, including non-residents, is likely to substantiate their class allegations. Plaintiffs claim the employment law violations at issue stem from policies and practices that defendant applies uniformly to all its employees. See JS at 12. For example, plaintiffs allege that defendant's July 2020 employee handbook states, “Driving Associates are generally compensated by the trip as is customary in our industry.” See Lebe Decl. ¶ 15. Plaintiffs claim that due to this policy, defendant does not lawfully compensate drivers for inspections and other non-driving work duties. See FAC ¶ 4. Defendant does not dispute the existence of this policy; indeed, Quast confirms that defendant's Phoenix headquarters is “responsible for developing policies and protocols for Knight's nationwide operations.” See Quast Supp. Decl. ¶ 2 (stating Phoenix is the “center of direction, control and coordination of all major human resources, payroll, legal and administrative functions for Knight”). Rather than dispute the corporate-wide application of its policies, defendant seeks to limit the scope of discovery by arguing that plaintiffs cannot meet the Rule 23 predominance requirement for the current class.

As an initial matter, defendant distinguishes between its over-the-road employee drivers, who are paid on a piece-rate basis, and other local drivers, who are paid on an hourly basis. See JS at 28; Quast Decl. ¶ 4. Piece-rate pay is calculated by multiplying a mileage rate with the estimated number of miles it should take to complete a trip. See Quast Decl. ¶ 4. Defendant argues that plaintiffs' allegations focus only on employees who are paid on a piece-rate basis. JS at 28. Plaintiffs do not dispute this characterization, which appears to be correct. See FAC ¶ 4 (limiting allegations to drivers paid by mileage). Accordingly, the court limits discovery to over-the-road drivers only.

Defendant also argues that given the claims in the FAC, discovery should be limited to employees to whom California law applies. Defendant does not contest the application of California law to employees who are assigned to California terminals. JS at 22. But it does not agree that employees who are assigned to out-of-state terminals should be included in the class simply because they may have sometimes driven in California. See JS at 25.

In Sullivan v. Oracle Corp., the California Supreme Court held that California employment law applies to work performed in-state by non-resident employees of a California-based employer, even if the employees work mainly out-of-state. 51 Cal. 4th 1191, 1194-95 (2011). The court noted, however, that it had found it was “ ‘not prepared, without more thorough briefing of the issues, to hold that IWC wage orders apply to all employment in California.’ ” Id. at 1199 (quoting Tidewater Marine W., Inc. v. Bradshaw, 14 Cal. 4th 557, 578 (1996)). On one hand, “ ‘the Legislature may not have intended IWC wage orders to govern out-of-state businesses employing nonresidents, though the nonresident employees enter California temporarily during the course of the workday.’ ” Id. On the other hand, the court in Sullivan expressed concern with protecting non-residents who work “entire days or weeks” in California. See id. at 1200.

*5 Since then, courts have extended Sullivan to resident employees of non-resident employers even where the workers spent the vast majority of their time working out-of-state. See Yoder v. W. Express, Inc., 181 F. Supp. 3d 704, 711, 723 (C.D. Cal. 2015) (employee spent 91.5% of his work time outside of California). And at least one court has applied Sullivan to non-resident employees of non-resident employers. See Aguilar v. ZEP Inc., 2014 WL 4245988, at *13 (N.D. Cal. Aug. 27, 2014). But defendant cites to an unpublished California Court of Appeal case in which the court ruled that California law cannot be applied to “nonresidents working for a foreign corporation in interstate and foreign commerce, who make an occasional stop in California.” See Guy v. IASCO, 2004 WL 1354300, at *4 (Cal. Ct. App. June 17, 2004).

To determine whether California law applies in employment cases, courts generally apply a multi-factor test drawn, in part, from Sullivan. Although there are some differences in how courts apply the test, the factors considered generally include: (1) the provision of California law at issue (e.g., overtime, breaks, waiting time, etc.); (2) the residence of the employer and employees; (3) the employer's ties to California; (4) the situs of employment; (5) whether the employee receives pay in California; (6) in the case of a resident who moves for work, whether his or her absence from California is temporary or permanent; and (7) whether the alleged wrongful conduct originated in California (e.g., where the decision to not pay overtime was made). See, e.g., Martinez v. Knight Transp., Inc., 2018 WL 6308110, at *5-6 (E.D. Cal. Dec. 3, 2018) (citations omitted); Bernstein v. Virgin Am., Inc., 227 F. Supp. 3d 1049, 1061-64 (N.D. Cal. 2017); Aguilar, 2014 WL 4245988, at *11-12. The most important factor is the situs of employment. See Aguilar, 2014 WL 4245988, at *12 (compiling cases).

As part of this choice-of-law analysis, courts also consider whether applying California law would be “arbitrary or fundamentally unfair” so as to violate the Due Process Clause of the Constitution. See, e.g., Ayala v. U.S. Xpress Enters., 2016 WL 7586910, at *2-7 (C.D. Cal. Dec. 22, 2016) (denying class certification where plaintiff could not establish that California has “significant contact or aggregation of contacts” to the claims of each putative class member). “Under California law, the class action proponent bears the initial burden to show that California has significant contact or significant aggregation of contacts to the claims of each class member.” Martinez, 2018 WL 6308110, at *7 (cleaned up) (quoting Mazza v. Am. Honda Motor Co., 666 F.3d 581, 589 (9th Cir. 2012)). If this requirement is satisfied, “the burden shifts to the other side to demonstrate that foreign law, rather than California law, should apply to class claims.” Id. (cleaned up) (quoting Mazza, 666 F.3d at 590).

Defendant's argument to restrict discovery to employees assigned to California terminals fails for two main reasons. First, this discovery dispute is not the proper vehicle to litigate whether California employment law applies to employees who are assigned to out-of-state terminals. That is a matter for the assigned District Judge to decide. Indeed, in Martinez v. Knight Transportation, Inc., 2018 WL 6308110 (E.D. Cal. Dec. 3, 2018) – a class certification order involving the same defendant[1] – the court deferred final resolution of this same issue, finding that “[t]he uncertainty regarding the applicability of California labor law does not defeat a finding of predominance in this case.” See id. at *5-10. The court went on to certify the plaintiff's proposed class of non-resident drivers who drove one or more routes of five hours or more entirely within California. Id. at *11. To be clear, the court here takes no position on whether choice-of-law issues should or should not be resolved at the class certification stage. The District Judge has the final say on matters of certification, as well as dismissal of claims from the operative complaint.

*6 Second, at this stage, the Ninth Circuit favors class discovery “unless it is apparent that [p]laintiff cannot maintain the action on behalf of the class.” Goundar, 2014 WL 12524649, at *2. Given the evolving and sometimes conflicting caselaw on the choice-of-law issue, the court is not persuaded by defendant's argument that California law “obviously” does not apply to its non-resident drivers. See JS at 26. In fact, at least some of the factors previously discussed seem to weigh in favor of applying California law to those workers. Although defendant is not a California resident, it has significant ties to California. Namely, it has terminals in the state, and even its out-of-state drivers sometimes conduct business in California. See Quast Decl. ¶ 3. The situs of employment at issue, the key factor, is also California.

To be fair, it may be that a few isolated instances of driving in California may not suffice to trigger the protection of its laws. See Sullivan, 51 Cal. 4th at 1199 (“ ‘[T]he Legislature may not have intended IWC wage orders to govern out-of-state businesses employing nonresidents, though the nonresident employees enter California temporarily during the course of the workday.’ ” (quoting Tidewater, 14 Cal. 4th at 578)). But defendant admits that its drivers are dispatched away from their home terminals for days or weeks at a time, may be assigned to deliver a load to California, and may sometimes have to drive through California on route to another state. See JS at 25; Sullivan, 51 Cal. 4th at 1199 (California law may extend to non-resident employees of non-resident employers who work entire days in California). And Quast states defendant's records do not show the amount of time a driver spent working in California. See Quast Supp. Decl. ¶ 6. Thus, for purposes of discovery, defendant must treat any driver who drove in California as part of the proposed class. Again, it will be up to the District Judge to decide whether the class needs to be narrowed, and if so, how.

Defendant also objects to plaintiffs' requests as unduly burdensome and disproportionate to the needs of the case to the extent they include non-resident drivers. Defendant argues that it “should not be required to incur the massive burden and expense of identifying every single employee driver from the last five and a half years who might have made a single delivery to California or passed through the state on one day.” See JS at 26. Defendant claims that it does not maintain “readily available” records that would show which employees have driven in California. See JS at 27; Quast Decl. ¶ 5. Instead, defendant would need to review individual trip records and service logs. See JS at 27; Quast Decl. ¶ 5.

Quast estimates that defendant has employed about 20,000 over-the-road drivers throughout the U.S. since April 2016. Quast Supp. Decl. ¶ 3. Out of that number, approximately 2,500 drivers were California residents during the subject period of this action. See id. Thus, it appears that defendant would have to review records for about 17,500 drivers to identify the non-resident members of plaintiff's putative class.

As a comparison, Quast claims that it took defendant “several months” to identify the members of the settlement class in the Eastern District's Martinez case. Id. ¶¶ 5-6. He estimates that it would take much longer, probably ten times as long, to identify the entire putative class in this case. See id. ¶ 7. According to Quast, the search would take much longer for two main reasons. First, the class in the other Martinez case was limited to non-residents from only five states, whereas here, plaintiffs have not adopted any such limitation. See id. Second, the proposed class here includes workers who have driven any amount of time in California, as opposed to only entire trips. Because of this, defendant would need to review individual Department of Transportation logs, which apparently it did not have to do in the other Martinez case. See id. ¶ 8. In addition, defendant claims there is no way to ascertain the exact amount of time a particular driver spent in California on any given occasion. See id. ¶ 6.

*7 On balance, the court finds that plaintiffs' requests for discovery on all putative class members, including non-residents, is proportional to the needs of the case, with some limitations. First, the issues at stake in this case are particularly important because of the impact unlawful employment practices have on workers, law-abiding business competitors, and the economy as a whole. See Fed. R. Civ. P. 26 advisory committee's note to 1983 amendment (“[M]any cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved.”); Acosta v. Ginger Green, Inc., 2018 WL 3361397, at *1 (C.D. Cal. May 18, 2018) (issuing temporary restraining order in employment case to avoid irreparable harm to the public, including defendants' law-abiding competitors). Second, defendant calculates the amount in controversy to be at least $25 million, and that amount only takes California-based drivers into account. See Def.'s Notice of Removal ¶¶ 52-53, 56, 59, 63, 66.

Third, defendant does not dispute that it has sole access to the evidence and information that plaintiffs seek. Fourth, defendant argues that it does not have the resources to respond to plaintiffs' requests as they currently stand. See Quast Supp. Decl. ¶¶ 6, 9. But the court is not persuaded that a corporation with 20 terminals throughout the nation that has employed at least 20,000 employees since 2016 – in fact, at the hearing, defense counsel called defendant the “largest carrier in the country” – does not have the resources to compile the requested discovery, even if the court determined that all of it must be produced at once. Fifth, the requested evidence is important and will be helpful to both the certification question and the eventual resolution of the entire action.

Sixth, the court does not doubt that it will be burdensome for defendant to identify all of the non-resident drivers who are members of the putative class. But defendant's argument is undermined by the fact that it chose to use such an unwieldy record-keeping system. Employers are the masters of their record-keeping, so “the fact that a corporation has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.” Lou v. MA Labs., Inc., 2013 WL 12328278, at *2 (N.D. Cal. Mar. 28, 2013). Defendant may argue that it could not have possibly imagined that it would need to know if its non-resident employees ever drove in California for work. But given the state of the law on the issue, that belief would not be reasonable. See, e.g., Aguilar, 2014 WL 4245988, at *13 (applying California law to non-resident employees of a non-resident employer). And even if it were reasonable at one point, defendant has been on notice since at least December 3, 2018, the date on which the Eastern District issued its class certification order, that it may be called upon to litigate about work done in California by its non-resident drivers. Finally, defendant's claim that it took several months to identify the class in the other Martinez case is too vague to be helpful. Notably, defendant does not specify how many individuals worked on the project. Without that information, it is impossible for the court to evaluate whether the process could, and perhaps should, have taken less time.

In summary, at least five of the six proportionality factors weigh in favor of allowing discovery and the sixth, burden, weighs in favor of defendant only slightly. Nevertheless, the court agrees with defendant that sample-based discovery is appropriate given the size of the putative class and the fact that this case is still at the pre-certification stage. See Trujillo v. Chef's Warehouse W. Coast LLC, 2020 WL 7315346, at *26-27 (C.D. Cal. Oct. 19, 2020) (ordering a 50% sample because the smaller the putative class, the larger the sample needed for representativeness); Faraji v. Target Corp., 2017 WL 8292781, at *6 (C.D. Cal. Apr. 28, 2017) (rejecting sampling where putative class size was only 826 workers); Talavera v. Sun Maid Growers of Cal., 2017 WL 495635, at *4 (E.D. Cal. Feb. 6, 2017) (ordering 10% sample based on putative class size of 5,309). Plaintiffs may renew their request for complete records if the District Judge certifies the proposed class, or if other circumstances warrant.

*8 To be sure, determining a reasonable sample is less straightforward in this case because defendant has yet to identify the putative non-resident class members. Without the benefit of knowing the universe of such drivers, the court cannot simply order defendant to produce discovery for a certain percentage of the group. So, for now, the court will order defendant to review a sample of the approximately 17,500 non-resident drivers employed since 2016, some of which may not be putative class members. The intent is that defendant will identify any putative class members from that sample and produce discovery for them. If the chosen sample does not yield a reasonable amount of putative class member discovery, plaintiffs may meet and confer with defendant about a broader review or request the court to order defendant to review more records.

Accordingly, at this stage the court orders defendant to respond to plaintiffs' discovery requests for the following population of non-resident drivers: First, to the extent the current proposed class overlaps with the settlement class in the other Martinez case, defendant shall produce discovery for all of those workers. Defendant has already done the work of identifying those drivers, so this part of the production should not be burdensome. Second, for the remaining non-resident drivers employed since 2016, defendant shall review the records of a random group of 1,000 drivers and produce discovery for any drivers it identifies as being members of plaintiff's proposed class.

Finally, defendant argues the Belaire-West notice must be distributed before it can disclose the names, contact information, and records of the putative class. See JS at 33, 43, 50, 57, 64, 69. The court agrees the parties should resolve that issue first, one way or another, before disclosure of the information. But defendant must begin producing anonymized records. See Trujillo, 2020 WL 7315346, at *27 (ordering production of records without names but with sufficient identifying information, such as employee identification numbers, so that the data can be correlated if needed). The court recognizes that both sides may be burdened by this resolution. On one hand, plaintiff's deadline to move for certification is early next month. On the other, defendant will have to redact records it could have produced without redaction had the Belaire-West issue been resolved already. But the court is concerned that neither party has diligently navigated the pre-certification period. The court issued its pre-certification scheduling order on May 28, 2021, yet the parties are only now bringing these very important issues to the court's attention. As such, they are ultimately responsible for any additional burden they might have been able to avoid.

For these reasons, the court orders as follows:

Should the parties find any of these deadlines unworkable, they must promptly meet and confer in an effort to resolve the issue. Provided the parties agree, these deadlines may be adjusted. If they do not agree, they may raise the matter with the court, which may include requesting an informal telephonic conference with the Magistrate Judge. Nonetheless, the parties should assume the court will stand by these deadlines, and must meet them absent other agreement or order of the court.

C. Requests for Rule 37(a)(5)(A) Sanctions

Both sides move for Rule 37(a)(5) sanctions, contending the other side's arguments are not substantially justified. See JS at 69-70. Rule 37(a)(5) provides that the prevailing party on a discovery motion is entitled to an award of its reasonable expenses incurred in bringing or opposing the motion, including attorney's fees, except no payment should be ordered if: (1) the motion was filed before the moving party made a good faith effort to resolve the dispute; (2) the losing party's position was substantially justified; or (3) other circumstances make award of expenses unjust.

As explained above, there is at least some merit to both sides' positions, hence the court's split ruling. In addition, plaintiffs are not entitled to fees because they failed to fully meet and confer in good faith. Accordingly, the court denies both sides' requests for Rule 37(a)(5) sanctions.

IT IS THEREFORE ORDERED that plaintiffs' motion to compel (docket no. 12) is granted in part and denied in part, as set forth above.