Gilmore v. Safe Box Logistics, Inc.

Opinion

JANICE GILMORE, Case No. 21-cv-06917-TLT (RMI)

Plaintiff, ORDER RE: DISCOVERY DISPUTE v. LETTER BRIEF

SAFE BOX LOGISTICS, INC., et al., Re: Dkt. No. 89 Defendants.

Now pending before the court is a discovery dispute letter brief through which Plaintiff seeks to compel certain interrogatory responses and document production. See Ltr. Br. (dkt. 89) at 1-3. Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the court finds the matter suitable for disposition without oral argument. By way of background, Plaintiff has filed a putative wage and hour class action lawsuit against Defendant FedEx Ground (“FedExG”) and one of its many contract service providers, Defendant Safe Box Logistics, Inc. (“SafeBox”). Id. at 1. The essence of this case can be distilled down to the following disagreement: while FedExG disputes “that it ever had an employment relationship with Plaintiff or, for that matter, any of the thousands of service providers’ employee drivers comprising Plaintiff’s putative class (see id. at 3-4), Plaintiff has alleged that FedExG “is not only a joint employer, but also a ‘client employer’ as that term is defined under Labor Code [S]ection 2810.3 along with SafeBox and [FedExG’s] other contracted service providers [], and therefore [Plaintiff] seeks relevant discovery from [FedExG] necessary to prosecute her claims as a class action, including in relevant part contact information of class members, timekeeping and payroll records, ‘reports’ of scanner data [contracted service providers].” Id. at 1. For the reasons stated below, Plaintiff’s requests are denied. Plaintiff requests the compelled production of information under four categories. Through the first and second categories, Plaintiff requests an order compelling a response (or, perhaps, a different response) to an interrogatory that sought contact information for putative class members (SROG1), as well as documents and records that show the payroll and timekeeping records (including U.S. Department of Transportation “scanner data” relating to the elapsed time on duty for all putative class members). See id. at 1-2. As to the putative class members’ contact information, as well as their payroll and timekeeping records, FedExG submits that “Plaintiff seeks information that FedEx Ground does not have” because it “does not maintain employment records for service provider drivers and disputes [Plaintiff’s] joint employ[ment] status.” Id. at 5. Instead, FedExG submits that Plaintiff must seek that information from the entities that possess it – namely, the service providers. Id. FedExG then adds that it “is providing Plaintiff contact information for all service providers that employed putative class members so that Plaintiff can do just that.” Id. Plaintiff’s portion of the letter brief (see id. at 1-3) does not address FedExG’s assertion that it does not possess the information Plaintiff seeks, nor does it address the assertion that FedExG is providing Plaintiff with contact information for all service providers that employed the putative class members so that Plaintiff can seek that information from the entities that possess it. Because FedExG represents, and Plaintiff does not dispute, that FedExG does not possess (or otherwise control) the information sought by Plaintiff, FedExG clearly does not have possession or control for the purposes of Plaintiff’s request to compel; therefore, FedExG cannot be compelled to produce what it does not have. See e.g., Cont’l W. Ins. Co. v. Opechee Constr. Corp., 2016 U.S. Dist. LEXIS 54716 *10 (D. N.H. 2016). Naturally, therefore, Plaintiff’s request to compel FedExG to produce information and documents that it does not possess or otherwise control is DENIED. As for the scanner data – FedExG does possess such data, but it maintains that it is attended with minimal (if any) probative value and that its production would represent such effort Ltr. Br. (dkt. 89) at 5. As described by FedExG, this scanner data “is not compensable timekeeping data but, rather . . . hours of service data.” Id. FedEx explains further that “[t]he DOT requires recording of ‘on-duty’ hours as the DOT defines [it].” Id. The scanner data simply logs the total elapsed “on duty” time pertaining to each driver’s shift and a driver “is not considered [for these purposes] off duty until he [or she] is done with all work responsibilities.” Id. In other words, the scanner data does not reflect break times because the DOT’s regulation for this data category “does not permit exclusion of any break times.” Id. As explained by FedExG, “[t]he only location [where] such information would be recorded would be in compensable time records maintained by [the] service providers [and] [g]iven the minimal, to no, probative value of the scanner data, force[ing] FedExG [] to gather and produce that information for a five-year period for over 20,000 drivers is unduly burdensome and disproportionate to the needs of the case.” Id. Once again, Plaintiff’s portion of the letter brief gives this issue short shrift. See id. at 2. Plaintiff simply states that she wants the scanner data – neither does Plaintiff explain or discuss what probative value may attend this scanner data, nor does she address FedExG’s assertions about the burdensome nature of this request or its disproportionality to the needs of the case. For these reasons, Plaintiff’s request to compel the scanner data in question is DENIED. As to the third category, Plaintiff “seeks production of all documents between Defendant and its ISPs relating to transporting and delivering packages for putative class members during the relevant period.” Id. at 2-3. While requesting the compelled production of “all documents” that were exchanged between FedExG and all of its service providers during the relevant time period and relating to transporting and delivering packages by putative class members in California – a wildly broad phrasing – Plaintiff’s justification for this request focuses only on the agreements governing FedExG’s relationship with each of these service providers. See id. Plaintiff’s effort as establishing relevance (which is, once again, limited to the agreements governing these relationships, rather than “all documents between Defendant and its ISPs”) is limited to the following explanation:

Given that FXG contends it did not employ putative class members, ISP agreements (evidencing the relationship between FXG and its ISP’s) prior to certification is warranted and necessary. Such agreements will demonstrate the degree and means of control that FXG exercises over the ISPs (and in turn its control over putative class members) and is relevant to establishing Rule 23 certification factors such as numerosity, typicality, commonality, and ascertainability. FXG unilaterally limits its response to SafeBox and no other ISPs. This response is incomplete, and Plaintiff is entitled to this discovery. A party is obligated to produce all specified relevant and nonprivileged documents which are in the responding party’s possession, custody or control on the date and place specified in the request. FRCP 34(a)(1). The purported contracts between FXG and its ISPs are directly at issue in this case and will either support or refute Plaintiff’s claims or Defendant’s defenses.

See id. Initially, as to Plaintiff’s request to compel “all documents” exchanged between FedExG and every ISP – that request is undeveloped and unsupported by argument; accordingly, the court deems that portion of this request as abandoned. See e.g., Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (deeming abandoned all issues raised in a brief not supported by argument); Grewal v. Choudhury, 377 F. App’x 617 (9th Cir. 2010) (undeveloped issue not supported by argument is deemed abandoned). As to the component of this request that seeks the compelled production of all agreements between FedExG and every ISP relating to all putative class members in California during the relevant time period, FedExG objects to the effect that this request too is overly burdensome and disproportionate to the needs of the case as it would require FedExG to gather and produce thousands of separate contracts. Id. at 5. Instead, FedExG states that it “has produced agreements and other documents concerning its relationship with Safe Box” and that it “has also agreed to provide Plaintiff with exemplars of the Agreements for each year in the putative class period,” which FedExG submits “is more than sufficient to meet Plaintiff’s needs at the class certification stage.” Id. Once again, Plaintiff does not address these contentions, or otherwise venture to explain why the Safe Box documents, and the exemplars offered by FedExG are insufficient for Plaintiff’s purposes at this stage of the case. Consequently, Plaintiff’s request to compel FedExG to produce its entire repository of such agreements is DENIED. After receiving and reviewing the Safe Box documents, and the exemplars that FedExG has agreed to provide, if Plaintiff is able to articulate this stage of the case, and assuming an impasse continues to persist after good-faith meet-and- confer efforts, Plaintiff is free to cause that dispute to be brought back before the court through another jointly-filed letter brief at the appropriate time. Regarding the final category of documents sought – Plaintiff seeks “documents related to any internal financial analysis prepared by [FedExG] related to any decision to contract with ISPs rather than directly employing its own drivers.” Id. at 3. Plaintiff’s explanation of the relevance of this information appears to rely on a great deal of speculation in that Plaintiff only contends that this information “could support or refute each [party’s] contentions with respect to the nature of [FedExG’s] relationship with putative class members.” Id. (emphasis supplied). For its part, FedExG claims: (1) that its transition to this business model (and any financial analysis underlying that decision) predates the relevant period involved in this case to such a substantial degree that this information cannot be said to even possibly lead to admissible evidence; and, (2) that the information is not even “remotely captured by the factors and considerations under California law for establishing joint employment.” Id. (citing Salazar v. McDonald’s Corp., 944 F.3d 1024, 1029-33 (9th Cir. 2019) (discussing the requirements for a joint employment finding under California law). The court agrees with FedExG and finds Plaintiff’s effort at establishing the relevance of the financial analysis she seeks as half-hearted at best. Plaintiff only claims that this information might support or refute some party’s contentions (either hers or FedEx’s) with respect to the nature of FedExG’s relationship with putative class members. See Ltr. Br. (dkt. 89) at 3. This effort at establishing relevance is so sweeping and so generic that – under this reasoning – “relevant evidence” would exclude nearly nothing and would include nearly everything. Relevance must be established with a concrete logical chain, as opposed to speculation, guesswork or hopes and wishes as to what the documents or information might reveal. See generally Ramirez v. City of Gilroy, No. 17-cv-00625-VKD, 2018 U.S. Dist. LEXIS 202706, at *4 (N.D. Cal. Nov. 29, 2018) (“Their theory of relevance appears to be entirely speculative, and the Court has serious concerns about its admissibility for any purpose at trial . . .”); United States v. Mason, Nos. CR 05-324-RE, CR 05-326-RE, CR 05-328-RE, CR 05-329-RE, CR 05-330-RE, 2008 U.S. Dist. 1 Portland records at issue is speculative. The mere hope that the pawn slips, if produced, may 2 contain evidence favorable to the defendant’s case is not sufficient to sustain a Rule 17(c) 3 subpoena.”) (emphasis supplied); see also Shipley v. Forest Labs., No. 1:06-cv-00048-TC-DBP, 4 2014 U.S. Dist. LEXIS 98204, at *8 (D. Utah July 18, 2014) (“Defendant argued that a prior 5 settlement agreement in other litigation was relevant because the defendants in that case would “be 6 important witnesses in this case” and their settlement agreement’s “terms could have an impact on 7 [their] witness credibility and bias,” however, the court denied the request and noted that 8 “[w]ithout more information about the Julien defendants’ credibility and bias issues, Defendant’s 9 arguments on these issues are too speculative to demonstrate relevance.) (emphasis supplied). 10 Thus, in addition to FedExG’s objection based on the temporal problems attending this request, 11 Plaintiffs request to compel the production of this data is DENIED because Plaintiff has failed to 12 establish its relevance given the highly speculative and generalized nature of Plaintiff's assertion 13 that this information could support or refute either party’s contentions with respect to FedExG’s 14 relationship with putative class members. See Ltr. Br. (dkt. 89) at 3. 15 IT IS SO ORDERED. 16 Dated: January 23, 2023 Me Zo —

RQ@BERT M. ILLMAN 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28