*1 On December 13, 2016, the parties filed a joint stipulation regarding defendants’ motion to compel further responses to their document requests (“JS”) (docket no. 56). Defendants ask the court to: compel plaintiff Jesse Perez to provide further responses to request for production (“RFP”) number 28; and to compel plaintiff Sara Ramirez to provide further responses to RFP numbers 1-100.

A telephonic hearing on the motion was held on January 10, 2017. After consider the written and oral arguments of counsel, the court grants as set forth below defendants’ motion to compel, for the reasons that follow.

Defendants Atria Management and Atria Senior Living (collectively “Atria”) removed this case to federal court on May 2, 2016 after plaintiff Destiny Gallegos filed a class action complaint in California state court. On August 4, 2016, the court denied plaintiff's motion to remand the case to state court. Plaintiff Gallegos was the sole named plaintiff in this proposed class action until October 11, 2016, when plaintiffs Sara Ramirez and Jesse Perez were added as plaintiffs in a First Amended Class Action Complaint.

Plaintiffs bring this action on behalf of themselves and all other persons similarly situated. Plaintiffs seek class certification under Rule 23 of the Federal Rules of Civil Procedure. Defendants are a privately-held, for-profit senior housing company based in Louisville, Kentucky. Plaintiffs are former hourly-paid employees of defendants’ California facilities. Plaintiffs claim defendants have violated various state statutes, including but not limited to: unpaid overtime; unpaid minimum wage; meal period violations; rest break violations; non-compliant wage statements and failure to maintain accurate payroll records; wages not timely paid upon termination; unpaid business-related expenses; and unlawful business practices.

On November 8, 2016, a previous motion to compel came before this court. Among other things, defendants sought further responses from plaintiff Gallegos concerning RFPs almost identical to those at issue in the instant motion. The court granted, in part, defendants’ motion to compel with regard to documents directly related to the purported class claims and communications relevant to the case. Docket no. 48 at 6-16. The court also denied, in part, the motion to compel with regard to plaintiff Gallegos's retainer agreement because it was deemed irrelevant in light of the impending withdrawal of her representation by Capstone Law APC (“Capstone”), plaintiffs’ counsel. Id. at 9-10. The court also denied one RFP regarding production of plaintiff Gallegos's Facebook Timeline because it would likely be burdensome and outweighed by plaintiff's privacy interests. Id. at 11-12.

In light of a breakdown in communications between Gallegos and Capstone, the court granted Capstone's motion to withdraw as Gallegos's counsel on November 23, 2016. Capstone continues to represent plaintiffs Ramirez and Perez.

Here, defendants move to compel plaintiffs Perez and Ramirez to provide further responses to, respectively, one and one hundred requests for production of documents. In particular, defendants seek further responses to RFP number 28 from both Ramirez and Perez, while all other RFPs at issue are directed only at Ramirez, who has been tending to an ongoing family emergency. JS at 4. Plaintiffs state Ramirez has agreed to supplement her responses in a manner that would be consistent with those of Perez, whose responses apart from RFP number 28 are not at issue in this motion. Id.

*2 For purposes of this motion, the court groups these requests for production into five categories: (1) documents where plaintiff Ramirez has allegedly been inadequate in her responses (RFP Nos. 1-5, 7, 9-14, 17, 35-38, 41-97, 100); (2) documents where plaintiff Ramirez has allegedly failed to state whether any documents have been withheld on the basis of any privilege objection (RFP Nos. 6, 8, 15, 16, 18, 26, 27, 39, 40, 98, 99); (3) documents regarding both plaintiffs’ retainer agreements with their counsel (RFP No. 28); (4) documents relating to telephonic, electronic, or social media correspondence during plaintiff Ramirez's employment with defendants (RFP Nos. 29-34); and (5) documents possessed by plaintiff Ramirez relating to communications or investigations concerning claims of the putative class (RFP Nos. 19-25). See JS at 10-32.

Federal Rule of Civil Procedure 26 provides that a party 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.” Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “Relevancy, for the purposes of discovery, is defined broadly, although it is not without ultimate and necessary boundaries.” Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006).

“A party seeking class certification must satisfy the requirements of Federal Rule of Civil Procedure 23(a) and the requirements of at least one of the categories under Rule 23(b).” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542 (9th Cir. 2013). “For a named plaintiff to obtain class certification, the court must find: (1) numerosity of plaintiffs; (2) common questions of law or fact predominate; (3) the named plaintiff's claims and defenses are typical; and (4) the named plaintiff can adequately protect the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citing Fed. R. Civ. P. 23(a)). Rule 23(b) provides for three types of class actions. Fed. R. Civ. P. 23(b). Here, plaintiff seeks to certify the class under Rule 23(b)(2) and (b)(3). Compl. at 7. Rule 23(b)(2) allows for a class to be certified if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(3) allows for class certification if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

Prior to class certification under Rule 23, discovery lies entirely within the discretion of the court. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (“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.”) (footnote omitted). Courts generally recognize the need for pre-certification discovery relating to class issues. See id.; Del Campo v. Kennedy, 236 F.R.D. 454, 459 (N.D. Cal. 2006). Discovery is likely warranted where it will help resolve factual issues necessary for the determination of whether the action may be maintained as a class action, such as whether there are grounds for a class or subclass. Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975).

For this first category of RFPs, defendants argue plaintiff Ramirez's discovery responses have been inadequate. JS at 10-11. Each of the RFPs in this category call for documents relating to Ramirez's contentions and class claims of various wage and hour law violations alleged in the complaint or communications relating to the allegations. See Carr Decl., Ex. L. Defendants complain plaintiff has not clearly stated she will produce all responsive documents. JS at 10.

*3 Plaintiffs do not dispute that defendants are entitled to supplemental responses from Ramirez, and state Ramirez will provide supplemental responses along the lines of those provided by Perez, which defendants have not deemed inadequate. JS at 11. The parties’ disagreement lies in the uncertain timing as to when, not whether, Ramirez will supplement her responses upon returning from her ongoing family emergency. Plaintiffs have indicated Ramirez will supplement her discovery responses, and do not appear to contest the relevancy of any of these numerous requests for production.

While the court sympathizes with plaintiff Ramirez's unexpected family circumstances as a cause for delay in responding to defendants’ requests for production, plaintiff must still comply with her discovery obligations. See Hawley v. Business Computer Training Institute, Inc., 2008 WL 4889866, at *2 (W.D. Wash. Nov. 12, 2008) (granting defendants motion to compel responses to written discovery where plaintiffs claimed late responses to discovery were due to “unexpected personal emergency”). But the court recognizes that appropriate accommodations should be afforded to parties experiencing family emergencies. See In re Emami, 2016 WL 3963097, at *2 (Bankr. C.D. Cal. July 18, 2016).

Here, it has been over one month since Ramirez first learned on December 2, 2016 about her family situation, which included her grandfather's initial injuries from a car accident, his subsequent passing, and her grandmother's later hospitalization. The discovery cut-off deadline is January 30, 2017. Unlike in Emami, plaintiff has sought to modify and extend the court's scheduling order to accommodate Ramirez's delay in supplementing her responses to defendants’ discovery requests by four months. Defendants oppose this modification.

Nonetheless, the court finds that since plaintiffs added Ramirez, along with Perez, as a putative class representative in October 2016, they remain responsible for complying with the pre-existing scheduling order at this time. Plaintiffs understood when adding Ramirez and Perez as putative class representatives they had a limited amount of time for the new parties to comply with the discovery deadline. At the hearing, plaintiffs’ counsel stated Ramirez is now back in the United States and in contact with counsel. As such, Ramirez must comply with her discovery obligations within the current limits of the discovery deadline, including producing documents before she is deposed, which must all occur before the January 30 deadline.

The court thus GRANTS defendants’ motion to compel a further response from Ramirez to each of RFP numbers 1-5, 7, 9-14, 17, 35-38, 41-97, and 100. By January 20, 2017, plaintiff must produce all documents in her possession, custody, or control responsive to RFP numbers 1-5, 7, 9-14, 17, 35-38, 41-97, and 100, and produce verified supplemental responses unambiguously stating she has done so or that no such documents exist.

As to this second category of RFPs, defendants contend plaintiff Ramirez failed to unambiguously state whether any documents were being withheld on the basis of any applicable privilege. Id. at 11-13. This category of RFPs, similar to the first category described above, also relates to Ramirez's contentions and class claims alleged in the complaint or in communications relating to the allegations. See Carr Decl., Ex. L.

As the court noted in its November 14, 2016 discovery order, Rule 26(b)(5)(A) requires parties withholding otherwise discoverable information on the ground of privilege to expressly claim the privilege and “describe the nature of the documents, communications, or tangible things not produced or disclosed ... in a manner that ... will enable other parties to assess the claim.” Docket no. 48 at 8 (quoting Fed. R. Civ. P. 26(b)(5)(A)). Boilerplate assertions fail to satisfy this requirement. See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1148-49 (9th Cir. 2005) (boilerplate objections inserted into a response are insufficient to assert a privilege). A privilege log is the most common format for the descriptions of documents withheld from discovery. See Friends of Hope Valley v. Frederick Co., 268 F.R.D. 643, 650-51 (E.D. Cal. 2010).

*4 In their portion of the joint stipulation, plaintiffs acknowledge Ramirez must produce a log or similar description of the nature of any documents withheld if she has withheld any documents based on an asserted privilege, but again, timing is the issue. JS at 13-14. And again, for the reasons discussed above, the court finds Ramirez is obligated to fully comply with her discovery obligations as to these discovery requests within the existing scheduling order.

Accordingly, the court GRANTS defendants’ motion to compel a further response from Ramirez to each of RFP numbers 6, 8, 15, 16, 18, 26, 27, 39, 40, 98, and 99. By January 20, 2017, plaintiff must produce all nonprivileged documents in her possession, custody, or control responsive to RFP numbers 6, 8, 15, 16, 18, 26, 27, 39, 40, 98, and 99, and to produce verified supplemental responses unambiguously stating she has done so or that no such documents exist. If Ramirez withholds any documents based on privilege, she must clearly state this and produce a privilege log describing such documents, and she must do so by January 20, 2017.

Defendants argue RFP number 28, propounded on both plaintiffs Perez and Ramirez, calls for relevant documents. JS at 15-16. RFP number 28 seeks the retainer agreement each plaintiff has with the putative class counsel. Carr Decl., Ex. J at 23; Carr. Decl., Ex. L at 23. As defendants note, the court previously denied the request to compel plaintiff Gallegos to produce her retainer agreement with Capstone largely because it was deemed irrelevant since Gallegos would no longer be represented by Capstone. JS at 16; see also docket no. 48 at 9. Indeed, while Gallegos remains a named plaintiff, she is no longer represented by plaintiffs’ counsel in this case. Plaintiffs state that they “do not object to producing relevant portions of their retainer agreements,” but propose first submitting these agreements to the court for in camera review. JS at 16-17.

The court finds plaintiffs’ retainer agreements with counsel are relevant to determining the adequacy of Ramirez and Perez as class representatives. The Ninth Circuit has held that retainer agreements are not protected by attorney-client privilege or the work product doctrine. See Ralls v. U.S., 52 F.3d 223, 225 (9th Cir. 1995); U.S. v. Blackman, 72 F.3d 1418, 1424 (9th Cir. 1995). Further, Rule 23(a)(4) requires that a class representative “fairly and adequately protect the interests of the class.” Retainer agreements are thus generally relevant in class action disputes because they directly relate to the issue of the adequacy of the class representatives. Rodriguez v. W. Publ'g Corp., 563 F.3d 948, 959 (9th Cir. 2009) (plaintiff ordered to produce retainer agreement because it was relevant to the analysis of whether the plaintiff was an adequate class representative). Contrary to plaintiffs’ argument, the Rodriguez court noted that incentive awards, too, are subject to similar concerns as the incentive agreements in that case. See id. at 960 (citing Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003)). Thus, the court rejects plaintiffs’ position that the retainer agreements pertaining to incentive awards between putative class representatives Ramirez and Perez and Capstone are not relevant to determine whether the named plaintiffs can adequately represent the class.

But the court agrees with plaintiffs that in camera review is appropriate prior to compelling production of the contents of the retainer agreements to determine whether any portions should be redacted. See e.g., Gusman v. Comcast Corp., 298 F.R.D. 592, 600 (S.D. Cal. Apr. 2, 2014) (concluding plaintiff's retainer and fee agreements were relevant to issue of class certification, but agreements should be produced for in camera review to determine whether disclosure would reveal privileged communications). As discussed at the hearing, if plaintiffs wish to submit the agreements to the court for in camera review prior to production, they must do so by January 13, 2017. They may flag any portions they believe should be redacted due to privilege or highly sensitive information.

*5 Plaintiffs also indicated they want the opportunity to file a motion for a protective order to ensure confidential information in the retainer agreements is protected. See JS at 18 n.10. The parties should promptly meet and confer to try to reach agreement on a stipulated order. For an example of an acceptable order, the parties are directed to the Sample Stipulated Protective Order that is attached to the Magistrate Judge's Procedures and Schedules on the court's website.

In sum, the court concludes that Capstone's retainer agreements with Ramirez and Perez are relevant to class certification issues, and thus GRANTS defendants’ motion to compel production of documents responsive to RFP number 28, subject to in camera review by the court.

Each of RFP numbers 29-34 relate to cellular telephone, electronic, or social media communications made by Ramirez concerning either her employment by defendants or to the allegations in the complaint. See Carr Decl., Ex. L at 24-28. As plaintiffs point out, there again does not appear to be a dispute concerning whether most of these documents should be produced, but rather, when Ramirez will do so. See JS at 19, 22, 25.

The court previously found Gallegos must produce documents responsive to RFP numbers 29-32 and 34, and the same is true for Ramirez. Each of these requests are relevant because they directly relate to plaintiff's claims that defendants violated rest break or meal period statutes. Defendants assert that their company policies prohibited employees from using cellular, electronic, or social media communications during work shifts, but such uses were allowed during break periods. Jaquez Decl. ¶ 3, 4. RFP numbers 30-32 and 34 seek text messages, emails, and social media communications concerning the allegations in the complaint and Ramirez's employment with defendants. These communications concern the subject matter of the complaint, and they are plainly relevant because they may reveal percipient witnesses. Moreover, RFP number 29 seeks cell phone records that may show calls Ramirez made during her work shifts while employed with defendants. Further, based on the court's prior order pertaining to Gallegos, objections on the basis of undue burden, privacy, or overbreadth are overruled. Plaintiffs fail to specifically show how each request is overly broad or burdensome. See Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982) (“The party resisting discovery must show specifically how ... each question is overly broad, burdensome or oppressive.”).

RFP number 33, which seeks Ramirez's Facebook Timeline and all postings thereto from June 2013 to the present, is relevant for the same reasons as RFP number 29. But plaintiffs argue RFP number 33 invades her privacy and is unduly burdensome. JS at 27. The court previously denied defendants’ motion to compel a further response to this RFP as to Gallegos on the basis that “plaintiff's privacy interest outweighs defendants’ need for the information,” as it would require plaintiff to reveal communications, most of which would have nothing to do with this case. Docket no. 48 at 12. Defendants now concede they are not entitled to the contents of the postings, but still seek “only the time stamps on Ramirez's Facebook Timeline during the hours she worked at Atria.” JS at 26. Plaintiffs argue the RFP remains unduly burdensome because it would require Ramirez to redact irrelevant postings and cross-reference any posts with her pertinent time records while employed by Atria. Id. at 26-27.

*6 During the hearing, defendants proposed that Ramirez simply produce her Facebook Timeline time stamps during the months she worked at Atria. Under this proposal, plaintiff would need to redact the postings, but would not need to cross-reference her posts with her time records, thus easing the burden somewhat. The court finds this to be a reasonable compromise, preserving the relevant aspects of the request, but not unduly burdening plaintiff or her counsel.

Therefore, the court GRANTS defendants’ motion to compel as to RFP numbers 29-32 and 34, but also GRANTS the motion as to RFP number 33 with the limitation that plaintiff must only produce her Facebook Timeline time stamps for the months she worked at Atria, and may redact the contents of all her postings. With these limitations, by January 20, 2017, plaintiff Ramirez must produce all documents responsive to RFP numbers 29-34, and produce verified supplemental responses unambiguously stating she has done so or that no such documents exist. If Ramirez withholds any documents based on privilege, she must clearly state this and produce a privilege log describing such documents, and she must do so by January 20, 2017.

The last category of the requests for production – RFP numbers 19-25 – concerns communications or “statements” between Ramirez or her attorneys and witnesses or putative class members regarding allegations in the Complaint. See Carr Decl., Ex. L at 18-21. Defendants argue these documents are relevant and any objections are outweighed by their need for this information. JS at 28; see also id. at 29, 31-32.

The court previously found such documents to be relevant and subject to production, and plaintiffs acknowledge that this category of requests is not in dispute, except as to the timing of Ramirez's supplemental responses. JS at 29-32. Again, the issue is the same timing issue discussed above.

Accordingly, the court GRANTS defendants’ motion to compel a further response from Ramirez to each of RFP numbers 19-25. By January 20, 2017, plaintiff must produce all documents responsive to RFP numbers 19-25, and produce verified supplemental responses unambiguously stating she has done so or that no such documents exist. If Ramirez withholds any documents based on privilege, she must clearly state this and produce a privilege log describing such documents, and she must do so by January 20, 2017.

For the foregoing reasons, it is hereby ORDERED that defendants’ motion to compel (docket no. 56) is GRANTED as set forth above. Unless a different date is agreed by the parties, plaintiffs Perez and Ramirez shall provide supplemental responses and any privilege log, and produce responsive documents, as set forth above on or before January 20, 2017. Further, if plaintiffs wish to submit the retainer agreements for in camera review, they must do so by January 13, 2017.