Ludlow v. Flowers Foods, Inc.
Ludlow v. Flowers Foods, Inc.
2023 WL 6370903 (S.D. Cal. 2023)
August 2, 2023
Burkhardt, Jill L., United States Magistrate Judge
Summary
The court granted Plaintiff's motion to compel in part, ordering Defendant to produce the unredacted contracts responsive to RFP No. 45 and supplement its production of discovery responsive to RFP No. 47, as limited. The court found that the requested ESI was relevant to Plaintiff's damage calculations and ordered Defendant to produce the responsive documents without redactions. Defendant did produce a redacted version of one responsive contract, however, Plaintiff contested the redaction.
Additional Decisions
DANIEL LUDLOW, et al., Plaintiffs,
v.
FLOWERS FOODS, INC., et al., Defendants
v.
FLOWERS FOODS, INC., et al., Defendants
Case No.: 18-cv-01190-JO-JLB
United States District Court, S.D. California
Filed August 02, 2023
Counsel
Alex M. Tomasevic, Craig McKenzie Nicholas, Jake W. Schulte, Patsy Jordan Belcastro, Shaun A. Markley, Nicholas and Tomasevic LLP, San Diego, CA, for Plaintiff Daniel Ludlow.Craig McKenzie Nicholas, Patsy Jordan Belcastro, Shaun A. Markley, Alex M. Tomasevic, Nicholas & Tomasevic, LLP, San Diego, CA, for Plaintiff William Lancaster.
Alex M. Tomasevic, Craig McKenzie Nicholas, Shaun A. Markley, Nicholas and Tomasevic LLP, San Diego, CA, for Plaintiffs Jose Maciel, Maciel Distribution, Inc.
Anthony Craig Cleland, Pro Hac Vice, Kevin Patrick Hishta, Pro Hac Vice, Ogletree Deakins Nash Smoak & Stewart, Atlanta, GA, Christopher M. Cascino, Pro Hac Vice, Ogletree Deakins Nash Smoak & Stewart, PC, Tampa, FL, Clint S. Engleson, Procopio, Cory, Hargreaves & Savitch LLP, San Diego, CA, Keenan Patrick O'Connor, Ogletree Deakins Nash Smoak & Stewart P.C., San Diego, CA, Cody Joseph Cocanig, Globant, LLC, San Francisco, CA, Jared Lee Palmer, Ogletree, Deakins, Nash, Smoak & Stewart, PC, San Francisco, CA, Erika Leonard, Pro Hac Vice, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Austin, TX, Francis L. Tobin, Martin Law Firm, PC, Irvine, CA, Paul Brian Maslo, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Houston, TX, Thomas Lidbury, Pro Hac Vice, Ogletree Deakins, Chicago, IL, Alexander Miller Chemers, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Los Angeles, CA, for Defendants Flowers Foods, Inc., Flowers Bakeries, LLC.
Christopher M. Cascino, Pro Hac Vice, Ogletree Deakins Nash Smoak & Stewart, PC, Tampa, FL, Cody Joseph Cocanig, Globant, LLC, San Francisco, CA, Jared Lee Palmer, Ogletree, Deakins, Nash, Smoak & Stewart, PC, San Francisco, CA, Erika Leonard, Pro Hac Vice, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Austin, TX, Francis L. Tobin, Martin Law Firm, PC, Irvine, CA, Keenan Patrick O'Connor, Ogletree Deakins Nash Smoak & Stewart P.C., San Diego, CA, Clint S. Engleson, Procopio, Cory, Hargreaves & Savitch LLP, San Diego, CA, Paul Brian Maslo, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Houston, TX, Thomas Lidbury, Pro Hac Vice, Ogletree Deakins, Chicago, IL, Alexander Miller Chemers, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Los Angeles, CA, for Defendant Flowers Finance, LLC.
Burkhardt, Jill L., United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL
*1 Before the Court is a motion to compel filed by Plaintiff Daniel Ludlow (“Plaintiff”), regarding Request Nos. 45, 47, and 48 from Plaintiff's Fourth Set of Document Requests. (ECF No. 368.)[1] Defendant Flowers Foods, Inc. (“Defendant”) filed an opposition (ECF No. 373), to which Plaintiff replied (ECF No. 377). For the reasons stated below, Plaintiff's Motion to Compel is GRANTED in part and DENIED in part.
I. BACKGROUND
A. Factual Background
Defendant is a national bakery company that bakes, sells, and distributes bakery products to retail and foodservice customers. (ECF No. 56, First Amended Complaint (“FAC”), ¶ 21.) Central to this case, Defendant's subsidiary companies enter into “Distributor Agreements” with individuals such as Plaintiffs to deliver bakery products from warehouses to retail locations.[2] (Id. ¶¶ 22, 42, 51.) Plaintiffs allege that Defendants willfully misclassified them and their distributor co-workers as independent contractors rather than employees, resulting in multiple violations of the Fair Labor Standards Act (“FLSA”) and the California Labor Code. (Id. ¶¶ 1, 63–125.) Specifically, Plaintiffs allege, inter alia, a failure to pay overtime under the FLSA and California Labor Code § 510 (id. ¶¶ 63–68, 93–98), unlawful deductions from wages under California Labor Code § 221 (id. ¶¶ 99–103), and failure to indemnify for necessary expenditures under California Labor Code § 2802 (id. ¶¶ 104–108). Defendants deny misclassification. (See generally ECF No. 59.)
The instant dispute revolves around three requests for production (RFPs) concerning Defendant's relationship with a third party—ABM Industry Groups, LLC (“ABM”). (See ECF Nos. 331; 366; 368-1 at 8–10.)[3] Defendant's subsidiaries—Flowers Baking Co. of Modesto, LLC (“FBC Modesto”) and Flowers Baking Co. of Henderson, LLC (“FBC Henderson”)—contract with ABM to provide leased labor to service territories. (ECF No. 373 at 2–3.) Specifically, FBC Modesto and FBC Henderson contracted with ABM to provide “Merchandisers,” “Drivers/Sales Representatives,” and “Prospective Distributors” to service territories not yet owned by a Distributor, territories abandoned by a Distributor, or territories for which the Distributor Agreement was terminated due to the Distributor's incurable breach.[4] (ECF Nos. 373 at 4; 373-1 (“Brobst Decl.”) ¶ 6; 373-2 (“Daigle Decl.”) ¶ 6.) When an ABM employee services a territory owned by a Distributor, the Distributor is charged for the service and any associated expenses, documentation of which is placed in the Distributor's file.[5] (Brobst Decl. ¶ 8; Daigle Decl. ¶ 8.)
*2 Some Plaintiffs were hired by ABM as Prospective Distributors before purchasing the territory they serviced, signing a Distributor Agreement, and becoming a franchise-owning Distributor. (ECF Nos. 368 at 2; 368-1 at 13[6]; 377 at 3; 377-1 at 10, 15–16.) At least some of ABM's Prospective Distributor employees had the same duties as a Distributor. (See ECF No. 377-1 at 10 (“[While a Prospective Distributor,] I ran the route I was interested in purchasing .... They were the exact same duties I have now as a driver .... We were merely running a route as we are now except we were under ABM.”).) In fact, ABM's Prospective Distributor position was advertised as a “paid training period” before which Defendants would “determine [to] who[m] to offer the opportunity to purchase an independent distributorship.” (Id. at 6–7.)
However, when ABM provides Merchandisers and Drivers/Sales Representatives as leased labor to Defendant's subsidiaries, those ABM employees service customers in multiple territories, overlap territories with each other, and perform additional tasks beyond those of franchise-owning Distributors. (Brobst Decl. ¶ 9; ECF Nos. 368-1 at 16 (“[T]heir first responsibility was to operate the open territory or the company route. Then after that, they did their other duties.”); 390-2 at 4 (“[S]ome of the day-to-day things would be the same as distributors did. But all of the same things that the distributors did, the temp employees would not have necessarily [ ] done.”).)
B. Procedural Background
On August 31, 2022, Plaintiff served his fourth set of RFPs on Defendant, which contains the following three requests:
RFP No. 45: All contracts, agreements, and memoranda of understanding relating to services ABM Industry Groups, LLC (“ABM”) has provided to YOU in California from 2014 through the present.
RFP No. 47: All DOCUMENTS and/or ESI reflecting how much ABM charged YOU for the workers ABM engaged that are involved in providing services pursuant to YOUR contracts with ABM.
RFP No. 48: All DOCUMENTS and/or ESI reflecting how much ABM charged YOU for expenses incurred when ABM engaged workers to provide services pursuant to YOUR contracts with ABM.
(ECF Nos. 331 at 3; 368-1 at 8–10.)
On September 30, 2022, Defendant served its objections. (ECF Nos. 331 at 3; 368-1 at 4–11.) Defendant objected on a multitude of grounds: vague and ambiguous; overbroad, unduly burdensome, and harassing; unintelligible; irrelevant and not proportional; seeks information not reasonably calculated to lead to the discovery of admissible evidence; calls for confidential, proprietary, and trade secret information; calls for information protected by the attorney–client privilege and/or attorney work-product doctrine; and seeks information about third parties protected by the right to privacy under the California Constitution. (ECF No. 368-1 at 8–11.)
Attempting to resolve the dispute informally, the parties requested and were granted multiple extensions to continue meeting and conferring before raising any remaining dispute with the Court. (See ECF Nos. 331; 333; 337; 338; 340; 341; 346; 347.) On January 17, 2023, the parties raised a dispute with the Court regarding, inter alia, nine document requests from Plaintiff's fourth set of requests. (See ECF No. 352.) On January 25, 2023, the Court held a Discovery Conference in which the issues were narrowed, and the parties were ordered to continue to meet and confer. (See ECF No. 353.) On February 24, 2023, the parties raised a narrowed dispute with the Court regarding, inter alia, four requests. (ECF No. 360.) On February 27, 2023, the Court held a further Discovery Conference to address the dispute. (ECF No. 361.) The Court thereafter ordered the parties to continue to meet and confer and set a briefing schedule to resolve the remaining disputes. (ECF Nos. 361; 366.)
II. LEGAL STANDARD
*3 A party is entitled to seek discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Information need not be admissible to be discoverable. Id. Rule 34 further provides that a party may serve requests for documents, electronically stored information, or tangible things on any other party within the scope of discovery defined in Rule 26(b).[7] Fed. R. Civ. P. 34(a). The propounding party may move to compel a response if a party fails to produce documents requested under Rule 34. See Fed. R. Civ. P. 37(a).
“The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1).” Bryant v. Ochoa, No. 07cv200 JM (PCL), 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009) (citing Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995)). “District courts have broad discretion in determining relevancy for discovery purposes.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005) (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)). “Once the propounding party establishes that the request seeks relevant information, ‘[t]he party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.’ ” Jensen v. BMW of N. Am., LLC, 328 F.R.D. 557, 559–60 (S.D. Cal. 2019) (quoting Superior Commc'ns v. Earhugger, Inc., 257 F.R.D. 215, 217 (C.D. Cal. 2009)); see also Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (noting those opposing discovery are “required to carry a heavy burden of showing why discovery [should be] denied”).
However, the court must—either on motion or sua sponte—“limit the frequency or extent” of otherwise permissible discovery if the court finds the request “unreasonably cumulative or duplicative” or the discovery sought is obtainable from a “more convenient, less burdensome, or less expensive” source. Fed. R. Civ. P. 26(b)(2)(C)(i).
III. DISCUSSION
Defendant opposes Plaintiff's Motion on the bases of “appropriateness” and relevance.[8] (See generally ECF No. 373.) Plaintiff argues information regarding Defendant's relationship with ABM, such as expenses, wages, and hours ABM billed Defendant, is relevant to damage calculations. (ECF Nos. 368 at 8–9; 377 at 5–6.)
A. “Appropriateness”
*4 First, Defendant argues that the requested discovery should be denied because this is not a case in which representative damages evidence is “appropriate.” (ECF No. 373 at 6–8 (citing Bowerman v. Field Asset Servs., Inc., 60 F.4th 459 (9th Cir. 2023)).) Specifically, Defendant argues the differences in how Plaintiffs operated their franchisee businesses mean only individualized discovery would be appropriate. (Id.) Plaintiff contends representative evidence is both relevant and admissible to support damage models. (ECF Nos. 368 at 6; 377 at 4–5 (citing Ridgeway v. Walmart, Inc., 946 F.3d 1066 (9th Cir. 2020)).)
As a threshold matter, Bowerman does not address discoverability of information. As Plaintiff notes (ECF No. 377 at 4), Bowerman addresses whether class certification was proper where the plaintiffs failed to proffer representative evidence and individualized questions predominated the issue of damages. See Bowerman, 60 F.4th at 468–71. Ridgeway addresses the admissibility of representative evidence at trial. See Ridgeway, 946 F.3d at 1086–89. Defendant's focus on admissibility or propriety of evidence ignores the legal standard for the instant Motion. Rule 26 is clear that information “need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).
If Plaintiffs' theory for the admissibility of representative evidence were indisputably wrong as a matter of law, the Court could perhaps recognize an objection of “appropriateness” rather than addressing relevance and proportionality. However, that is not the case here. Plaintiffs have a cognizable argument for admissibility of representative damages evidence. Defendant will no doubt make its arguments against the ultimate admissibility of this evidence to the District Judge, but the merits of those arguments will not be decided here. Accordingly, Defendant's arguments regarding “appropriateness” are unavailing and the Court will proceed to address Defendant's relevance objections.
B. Request No. 45
Plaintiff argues that the ABM contracts are relevant because “the contract may at least lead to further lines of meaningful inquiry.” (ECF No. 368 at 7.) Specifically, Plaintiff asserts the signatories to the contract “may be witnesses able to help the parties and the [C]ourt with the disputed issue of whether the ABM jobs are truly equivalent to or tell us anything meaningful about the ‘independent’ distributor jobs they evolved into.” (Id.) Further, Plaintiff asserts the “billings or rates may tip [Plaintiff] off to the existence of additional documents or lines of inquiry that would help Plaintiffs further piece together a damages model assisted by the charges incurred for the equivalent ABM work.” (Id.)
In opposition, Defendant argues that RFP No. 45 is irrelevant because the work performed by ABM employees is not equivalent to work performed by Distributors and the territories serviced are not coextensive. (ECF No. 373 at 5–6, 9.) Further, the contracts at issue do not refer to specific territories, provide job descriptions, or include hourly rates. (Id. at 8–9.) However, Defendant is “willing to produce redacted versions of the two contracts as well as associated memoranda or addenda showing the ABM employee wage rates for the Merchandiser, Prospective Distributor, and Driver/Sales Representative positions to resolve any dispute concerning this request.”[9] (ECF No. 373 at 9.)
*5 In reply, Plaintiff notes that the contract has sections describing the leasing relationship between Defendants and ABM and their mutual duties. (ECF No. 377 at 5.) Pointing to a partially redacted section listing the ABM leased labor positions, Plaintiff adds that he “should be allowed to follow up to learn what positions might compare with the distributor role.” (Id. at 6.)
Plaintiff is correct that evidence need not be perfectly representative to be discoverable (see ECF Nos. 368 at 6; 377 at 2); rather, it must only have some bearing on a claim or defense. Fed. R. Civ. P. 26(b)(1); see also Cont'l Cirs. LLC v. Intel Corp., 435 F. Supp. 3d 1014, 1018–19 (D. Ariz. 2020) (noting relevancy in discovery is even more broad than the low bar under the Federal Rules of Evidence). In the instant Motion, Plaintiff argues he seeks the ABM contracts as an additional representative data point in his damages model. If the duties of ABM employees servicing Defendants' territories are similar or identical to the duties of Distributors, Plaintiff could use the hourly wages, leased labor charges, and territories serviced to create an estimate of how long it took a Distributor to service the territory, which bears on Plaintiffs' unpaid overtime claims.
Defendant's arguments regarding the co-extensiveness of territories and duties performed do not defeat the relevance of the documents sought. Plaintiff has proffered evidence that the ABM Prospective Distributor position was a “paid training period” for some Plaintiffs before they became Distributors. (See, e.g., ECF Nos. 368 at 2; 368-1 at 13; 377 at 3; 377-1 at 6–7, 10, 15–16.) For some Plaintiffs, the ABM Prospective Distributor role was comprised of the “exact same duties” spanning the same territory as when they became a Distributor contracting directly with Defendants. (ECF No. 377-1 at 10 (“We were merely running a route as we are now except we were under ABM”).) Any further arguments regarding co-extensiveness of territories and duties would go to the admissibility, weight, or value of Plaintiffs' representative evidence, not undermine the contracts' relevance to Plaintiffs' damages model for discovery purposes.
Accordingly, although the value of this information may be low due to its representative nature, the Court finds RFP No. 45 relevant.
As Plaintiff notes (ECF No. 377 at 2 n.1), Defendant does not argue against the proportionality of Plaintiff's requests (see generally ECF No. 373).
“The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Fed. R. Civ. P. 26 advisory committee's note to 2015 amendment; see also Scherer v. FCA US, LLC, 538 F. Supp. 3d 1002, 1006 (S.D. Cal. 2021) (“The inquiry to be conducted under the proportionality requirement ... requires input from both sides.”). Although “[the] party claiming undue burden or expense ordinarily has far better information—perhaps the only information—with respect to that part of the determination,” the propounding party “should be able to explain the ways in which the underlying information bears on the issues as that party understands them.” Fed. R. Civ. P. 26 advisory committee's note to 2015 amendment; see also Lopez v. United States, No. 15-CV-180-JAH-WVG, 2017 WL 1062581, at *5 (S.D. Cal. Mar. 21, 2017) (“Although there are conflicting views on which party has the burden of proving proportionality, this Court believes the better approach is that both parties share the responsibility of explaining their positions regarding the proportionality factors.”) (internal citation omitted). It is “[t]he court's responsibility, using all the information provided by the parties, [ ] to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.” In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 565 (D. Ariz. 2016) (quoting Fed. R. Civ. P. 26 advisory committee's note to 2015 amendment).
*6 Regardless of Defendant's failure to put forth any argument addressing proportionality, the Court finds RFP No. 45 proportional. In fact, production cannot be disproportionately burdensome here, where Defendant identified the only two responsive contracts, one of which it has already produced.
Having found RFP No. 45 both relevant and proportional, the Court turns to whether Defendant's production of a redacted version of one responsive contract is sufficient.
Initially in its opposition brief, Defendant offered to produce redacted versions of the contracts “[d]espite the confidential nature of the leased labor contracts and their lack of relevance ....” (ECF No. 373 at 9.) Defendant subsequently produced a redacted version of one responsive contract, the fee and benefits addendum, and a written job description for the ABM prospective Bakery Distributor role. (See ECF Nos. 377 at 5–6; 377-1 at 23–29.) However, Plaintiff contests Defendant's redactions. (ECF No. 377 at 6 n.4.)
First, any redactions Defendant made based on a claim of irrelevance are inappropriate under the circumstances. “Redaction is generally an inappropriate tool for excluding information that a party considers to be irrelevant or nonresponsive from documents that are otherwise responsive to a discovery request.” Doe v. Trump, 329 F.R.D. 262, 276 (W.D. Wash. 2018) (noting such redactions “give[ ] rise to suspicion that relevant material harmful to the producing party has been obscured’ and ‘tend[ ] to make documents confusing or difficult to use’ ”). Further, “courts generally view ‘documents’ as relevant or irrelevant—not portions thereof—for purposes of Rule 34.” Id. As Defendant fails to make any argument for why redactions are appropriate in the instant case, the Court finds any redactions based on a lack of relevance inappropriate.
Second, despite initially serving a litany of boilerplate objections on privilege and privacy grounds (see ECF No. 368-1 at 8), Defendant failed to provide any argument or legal analysis in its opposition brief that the responsive documents were subject to privilege or otherwise protectable beyond a conclusory statement of their “confidential nature” (ECF No. 373 at 8–9). Whether asserting privilege under the Federal Rules or a right to privacy under the California Constitution, the initial burden rests with the party withholding information to sufficiently assert the privilege or privacy interest. See Fed. R. Civ. P. 26(b)(5)(A) (“When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”); Williams v. Superior Court, 3 Cal. 5th 531, 557 (2017) (“Courts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies.”). Furthermore, if the contracts indeed contain confidential information, their production, handling, and use would be governed by the stipulated protective order previously entered by the Court. (See ECF No. 219.)
*7 Accordingly, Defendant failed to provide sufficient legal analysis or argument to support redaction of the two responsive documents, particularly in light of the existence of a protective order.
Because the Court finds Plaintiff's RFP No. 45 relevant and proportional and Defendant failed to raise or support any claim of privilege in its brief, Plaintiff's Motion to Compel regarding RFP No. 45 is granted. Defendant must produce the responsive documents without redactions.
C. Request No. 47
Plaintiff argues RFP 47 is relevant because it will be used “to help craft [Plaintiffs'] damages calculations.” (ECF No. 368 at 8.) Specifically, Plaintiff seeks to discover the ABM hourly rate in order to calculate the hours a leased ABM worker spent serving a Distributor's territory, where the Distributor's file shows a total “ABM Labor” charge. (ECF No. 377 at 6.) Plaintiff contends the hours spent by a leased ABM worker servicing a Distributor's territory would demonstrate whether the Distributor's estimates of hours worked were reasonable. (ECF No. 368 at 8.)
In opposition, as with RFP No. 45, Defendant asserts that RFP No. 47 is irrelevant because the hourly work performed by ABM employees is not equivalent to work performed by Distributors. (ECF No. 373 at 9–10.) Additionally, Defendant argues that, for new Distributors since 2016 and all Distributors since 2018, Defendants charge Distributors a flat rate or a percentage of weekly net sales—not the hourly rate—for an ABM employee servicing their territory. (Id. at 10.) However, Defendant admits that, prior to 2018, FBC Modesto sometimes charged the Distributor the hourly rate that ABM charged FBC Modesto. (Id.)
For both of Plaintiffs' unpaid overtime claims (see FAC ¶¶ 63–68, 93–98), documentation supporting the hours Plaintiffs worked is relevant to demonstrating whether and how much Plaintiffs worked in excess of the 40 hours a week limitation set forth under federal and state law. Here, the ABM hourly wages could be used in conjunction with weekly distributor statements in the history reports and distributor files Defendants previously produced (see ECF Nos. 373 at 10; 390-3) to calculate the amount of time a Distributor was charged for ABM leased labor servicing a Distributor's territory in a given week. Such information is relevant to estimating how long it took a Distributor to service the territory and, thus, how many hours a Distributor worked in a week. Accordingly, the Court finds relevant the hourly wage ABM paid its Merchandisers, Drivers/Sales Representatives, and Prospective Distributors who serviced Distributor territories.
However, Plaintiff's arguments are limited solely to discovering these hourly rates. Plaintiff provides no explanation for, nor can the Court ascertain, why “all documents and/or ESI” reflecting ABM's charges of Defendant are relevant beyond the hourly wage. (ECF Nos. 368 at 7–8; 377 at 6.) As written, RFP No. 47 broadly encompasses more than the hourly wages, capturing irrelevant charges such as any “percentage markup” ABM charged Defendants. (ECF No. 373 at 8–9.) As such, the Court finds RFP No. 47 relevant only to the extent it requires Defendant to produce information regarding the hourly rate ABM employees received as leased labor to Defendants.
*8 Further, despite focusing solely on the need for hourly rates in his reply brief, Plaintiff included the fee addendum Defendant already produced, showing the hourly rates for ABM leased labor. (ECF Nos. 377 at 5–6; 377-1 at 29 (listing the rates for Merchandiser, Merchandiser (Experienced), Merchandiser (Over 2 Years), and Prospective Distributor).) Because Plaintiff is already in possession of the information he purportedly seeks, the value of the discovery captured by Plaintiff's overbroad request would be minimal. Accordingly, the Court finds RFP No. 47 relevant and proportional only to the extent it requires Defendant to produce information regarding the hourly rate ABM employees received as leased labor to Defendants in the roles of Merchandisers, Drivers/Sales Representatives, and Prospective Distributors.
Accordingly, Plaintiff's Motion to Compel regarding RFP No. 47 is granted in part. The Court orders Defendant supplement its production only to the extent other fee agreements between ABM and Defendants exist that reflect hourly rates different from the fee addendum Defendant already produced (see ECF No. 377-1 at 29) for leased labor positions during the temporal scope of the instant litigation.
D. Request No. 48
Plaintiff argues RFP No. 48 is relevant because it will be used “to help craft [Plaintiffs'] damages calculations.” (ECF No. 368 at 8.) Specifically, Plaintiff contends that requests for unreimbursed expenses, such as gas, mileage, and equipment, could be supported by what ABM charged Defendants for such expenses incurred by leased ABM employees servicing a Distributor's territory. (Id. at 8–9.)
In opposition, Defendant first asserts that RFP No. 48 is irrelevant for the same reasons as the previous requests. (ECF No. 373 at 9–10.) Further, Defendant argues that any expenses or deductions incurred by Distributors due to an ABM employee servicing their territory “is reflected in the history reports and distributor files Defendants previously produced as well as the class members' distributorships' business records and Schedule Cs signed under penalty of perjury.” (Id. at 10; see Brobst Decl. ¶ 8, Daigle Decl. ¶ 8; see, e.g., ECF No. 390-3.)
Unlike his arguments for RFP No. 47, Plaintiff fails to explain how the expenses ABM charged Defendants would bear on the expenses incurred by Plaintiffs. (See ECF No. 377 at 6.) Plaintiffs' expenses, such as mileage and gas, are specific to Plaintiffs' own territories and operations. Further, Plaintiffs have the actual charges Defendants recorded in the distributor file for each Plaintiff whose territory was serviced by a leased ABM employee. (See ECF No. 390-3 at 2.) As Plaintiff has failed to meet his burden, the Court denies Plaintiff's Motion to Compel regarding RFP No. 48 for lack of relevance.
IV. CONCLUSION
For the foregoing reasons, Plaintiff's Motion to Compel is GRANTED in part and DENIED in part. Within fourteen (14) days of the electronic docketing of this Order, Defendant shall:
1. Produce the unredacted contracts responsive to RFP No. 45; and
2. Supplement its production of discovery responsive to RFP No. 47, as limited above.
IT IS SO ORDERED.
Footnotes
Plaintiff initially sought to file Exhibits D–F under seal. (See ECF Nos. 368-1 at 21–23; 369; 370.) The Court denied the motion to file under seal without prejudice for lack of cause and failure to comply with the Court's Stipulated Protective Order. (ECF No. 387.) Thereafter, Plaintiff refiled all three Exhibits publicly. (ECF Nos. 390-1; 390-2; 390-3.)
The parties refer to geographically delineated areas that incapsulate delivery routes as “territories.” (See, e.g., FAC ¶ 24.)
This Order cites page numbers electronically generated by the Court's CM/ECF system unless otherwise noted.
Although Plaintiff claims without the support of a declaration that ABM also provided leased labor to cover routes on an “ad hoc fill-in basis” like when a Distributor is sick, two declarations provided by Defendant refute Plaintiff's claim. (See Brobst Decl. ¶ 7; Daigle Decl. ¶ 7.)
Defendant's subsidiaries “maintain[ ] distributor files for all Distributors it has (or had) contracts with. These files contain executed Distributor Agreements, any promissory note(s), insurance documentation for the vehicle(s) and business, any breach of contract letters, any documents reflecting transactions such as purchase or sale of distribution rights (partial territory sales), and documents pertaining to charges or expenses incurred when an ABM or FBC [Henderson/Modesto] employee operates a Distributor's territory on his or her behalf.” (Brobst Decl. ¶ 3; Daigle Decl. ¶ 3.)
As Defendant points out (ECF No. 373 at 3), Plaintiff includes and relies upon the first page of a declaration by Heather Cunha, for which the signature page is omitted. (See ECF Nos. 368 at 4; 368-1 at 12–13.)
All references to Rule or Rules are to the Federal Rules of Civil Procedure unless otherwise stated.
The Court declines to address any objections raised in Defendant's discovery responses that it did not reassert within its opposition brief to the instant Motion. See Hall v. Marriott Int'l, Inc., No. 19-cv-01715-JLS-AHG, 2021 WL 1906464, at *9 (S.D. Cal. May 12, 2021) (quoting SolarCity Corp. v. Doria, No. 16-cv-3085-JAH-RBB, 2018 WL 467898, at *3 (S.D. Cal. Jan. 18, 2018)) (“When ruling on a motion to compel, courts in this district ‘generally consider[ ] only those objections that have been timely asserted in the initial response to the discovery request and that are subsequently reasserted and relied upon in response to the motion to compel.’ ”); Sherwin-Williams Co. v. Earl Scheib of Cal., Inc., No. 12-cv-2646-JAH-JMA, 2013 WL 12073836, at *2 n.1 (S.D. Cal. Mar. 4, 2013) (deeming all objections raised in response to the discovery requests but not addressed in the discovery motion to be moot or waived, and limiting its review to arguments presented in the parties' briefs).
In fact, Plaintiff acknowledges Defendant did produce a redacted version of one responsive contract, the fee and benefits addendum, and a written job description for the ABM Prospective Bakery Distributor. (See ECF Nos. 377 at 5–6; 377-1 at 23–29.) However, Plaintiff contests Defendant's unilateral redaction of purportedly nonrelevant portions of an otherwise relevant document. (ECF No. 377 at 6 n.4.)