Harper v. Charter Communications, LLC

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LIONEL HARPER, et al., No. 2:19-CV-0902-WBS-DMC 12 Plaintiffs, 13 v. ORDER 14 CHARTER COMMUNICATIONS, LLC, 15 Defendant. 16 17 Plaintiffs Lionel Harper, Daniel Sinclair, Hassan Turner, Luis Vasquez, and Pedro 18 Abascal, who are proceeding with retained counsel, bring this civil action pursuant to, among 19 other theories, California’s Private Attorney General Act (PAGA), California Labor Code § 2698, 20 et seq. Plaintiffs allege violations of California statutory law with respect to the failure to pay 21 certain wages. The matter proceeds in this Court based on diversity jurisdiction. Pending before 22 the Court is Defendant’s motion to compel further responses to discovery served on Plaintiff’s 23 Harper, Turner, Vasquez, and Abascal, ECF No. 207. 24 The parties appeared before the undersigned for a hearing in Redding, California, 25 on December 8, 2021, at 10:00 a.m. Jamin Soderstrom, Esq., appeared telephonically for 26 Plaintiffs. Nathan Chapman, Esq., appeared telephonically for Defendant Charter 27 Communications, LLC. After hearing arguments, the matter was submitted. 28 / / / 1 I. BACKGROUND 2 This action currently proceeds on Plaintiffs’ second amended complaint. See ECF 3 No. 147. On October 13, 2021, the District Judge denied leave to file a third amended complaint. 4 See ECF No. 201. In that order, the District Judge outlined the following factual background:

5 Charter is a broadband connectivity company and cable operator serving business and residential customers under the Spectrum 6 brand, among others. Plaintiffs Harper and Sinclair worked as small/medium sized business Account Executives (“AEs”) at Charter’s 7 Redding, California location. (SAC at ¶¶ 5-6, 12.) Plaintiffs Turner, Vazquez, and Abascal worked as Direct Sales Representatives (“DSRs”) 8 at Charter’s Irwindale, Bakersfield, and Anaheim, California locations, respectively. (Id. at ¶¶ 7-9, 12.) Plaintiffs allege that Charter classifies AEs 9 and DSRs as “exempt” employees. (See id. at ¶ 13.) Plaintiffs claim that Charter erroneously classified them as 10 exempt employees by mistakenly classifying them as “outside salespersons.” (See id.; Cal. Code Regs. tit. 8, § 11070.) Under California 11 law, “outside salespersons” are exempt from overtime, minimum wage, meal period, and rest period requirements. See Cal. Lab. Code § 1171. 12 Importantly, under California case law, employees are only subject to the outside salesperson exception if their employer actually had an 13 expectation that they spend more than half their time outside the office engaged in sales activities, and if that expectation was reasonable. See 14 Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 790 (Cal. 1999). Plaintiffs’ claim is essentially that Charter did not actually expect them to 15 spend 50% of their time outside of the office both during and after their training weeks, and that even if it did, that expectation was unreasonable 16 given the number of tasks Charter expected them to complete that required them to be in the office. (See generally SAC (Docket No. 147).) 17 Plaintiffs’ claims of failure to pay overtime wages, failure to provide meal periods or rest breaks (or premium wages in lieu thereof), 18 and failure to provide accurate wage statements are derivative of their misclassification claim. Because Charter misclassified them, plaintiffs 19 contend, Charter necessarily failed to pay them overtime and failed to provide necessary rest and meal breaks. (See id.) Plaintiffs further claim 20 that Charter failed to pay them commission wages to which they were entitled and provided them with inaccurate and misleading wage 21 statements. (Id.)

22 ECF No. 201, pgs. 2-3. 23 At footnote 1, the District Judge added:

24 Plaintiffs also claim that Charter failed to pay them all wages owed upon termination, failed to provide them with employment 25 records, and violated the California UCL. (See generally SAC (Docket No. 147).) Plaintiff Harper also brings a representative claim under PAGA 26 on behalf of aggrieved employees, including plaintiffs, alleging the same aforementioned Labor Code violations. (See id.) 27 ECF No. 201, pg. 3, n.1. 28 1 The District Judge continued:

2 Plaintiffs seek to represent two classes of Charter employees: (1) all California employees who were classified as exempt 3 outside salespersons, and (2) all California employees who were in positions eligible to earn commission wages. (See id. at ¶ 19.) 4 ECF No. 201, pg. 3. 5 6 On October 13, 2021, the District Judge also issued an order addressing 7 Defendant’s motion to dismiss Plaintiffs’ second amended complaint. See ECF No. 203. In its 8 motion, Defendant sought dismissal of Count Five, Count Nine, and Count Ten of the second 9 amended complaint. See id. at 2. The District Judge denied Defendant’s motion as to Counts 10 Five and Count Nine, without prejudice, and granted the motion as to Count Ten, but only insofar 11 as the claim is based on alleged violations of California Labor Code §§ 226 and 1174(d) that 12 occurred prior to July 11, 2017. See ECF No. 203, pg. 24. 13 The District Judge issued an additional order on October 13, 2021, addressing 14 Defendant’s motion to compel arbitration. See ECF No. 202. In that motion, Defendant sought: 15 (1) to compel arbitration of Plaintiff Harper’s claims and stay the action pending arbitration; and 16 (2) compel arbitration of claims by Plaintiffs Turner, Vasquez, and Abascal and dismiss those 17 claims from the case. See id. at 2. The District Judge granted Defendant’s motion and stayed the 18 action as to Counts One through Nine of the second amended complaint pending arbitration of 19 individual claims raised by Plaintiff’s Harper, Turner, Vasquez, and Abascal. See id. at 24-25. 20 On Plaintiffs’ counsel’s request at the hearing, the District Judge also stayed Plaintiff Sinclair’s 21 individual claims pending arbitration. See id. 22 The District Judge did not, however, stay Plaintiff Harper’s PAGA claim. See id. 23 at 24. The District Judge held:

24 However, because a stay would impede vindication of California’s interests in enforcing the Labor Code through representative 25 PAGA actions, discussed above, and because the PAGA claim represents a distinct “action” in this case, the court will not stay Harper’s PAGA 26 claim. See Jarboe v. Hanlees Auto Grp., 53 Cal. App. 5th 539, 557 (1st Dist. 2020) (“Because a PAGA claim is representative and does not 27

28 / / / 1 belong to an employee individually, an employer should not be able dictate how and where the representative action proceeds.”) 2 ECF No. 202, pg. 24. 3 4 On November 30, 2021, the District Judge issued an order addressing Defendant’s 5 motion for reconsideration of the October 13, 2021, order on Defendant’s motion to dismiss. See 6 ECF No. 222. The District Judge amended his prior order to “clarify that the statue of limitations 7 precluded Harper from challenging wage statement violations alleged to have occurred prior to 8 September 14, 2017, rather than prior to July 11, 2017.” Id. at 7. The District Judge denied 9 Defendant’s alternative request for certification of the prior order for interlocutory appeal. See id. 10 at 8. 11 On November 30, 2021, the District Judge also issued an order addressing Plaintiff 12 Sinclair’s motion to lift the stay of proceedings as to his claims and a motion for class 13 certification. See ECF No. 223. The District Judge granted the motion and lifted the stay of 14 proceedings as to Plaintiff Sinclair’s claims. See id. at pg. 3. The District Judge also directed the 15 parties to submit a stipulated briefing schedule as to a renewed motion for class certification. See 16 id. 17 As to scheduling, the District Judge’s November 15, 2021, order, issued pursuant 18 to stipulation of the parties, is the most recent. See ECF No. 213. The order imposes the 19 following schedule:

20 January 14, 2022 Deadline for Defendant to complete its production of additional sampling documents/ESI pursuant to ECF 21 Nos. 112 and 133 for purposes of Plaintiff Harper’s PAGA claim. 22 February 2, 2022 Deadline to disclose expert witnesses. 23 March 18, 2022 Deadline to disclose rebuttal expert witnesses. 24 April 1, 2022 Discovery cut-off. 25 April 25, 2022 Dispositive motions filing deadline. 26 May 23, 2022 Deadline to file oppositions to dispositive motions. 27 June 3, 2022 Deadline to file replies in support of dispositive motions. 28 1 June 13, 2022 Hearing on all dispositive motions (at 1:30 p.m., before District Judge). 2 August 15, 2022 Final pre-trial conference (at 1:30 p.m., before District 3 Judge).

4 October 4, 2022 Commencement of jury trial (at 9:00 a.m., before District Judge). 5 Id. 6 7 8 II. SUMMARY OF CURRENT DISCOVERY DISPUTE 9 This case has been before the Court previously on discovery motions. On October 10 21, 2020, the Court issued an order addressing Plaintiffs’ motion to compel and directed 11 Defendant to serve supplemental responses to interrogatories, provide a contact list, and produce 12 documents reflecting a 10% sampling. See ECF No. 87, pg. 12. On May 5, 2021, the Court 13 issued another order addressing a separate dispute over written discovery. See ECF No. 133. 14 After extensive briefing and expenditure of time by the Court, the matter was resolved by way of 15 a stipulation, which the Court adopted. See id. at 25. In doing so, the Court observed:

16 Charter appears to be engaging in delaying tactics regarding, in particular, discovery associated with sampling of employee 17 data which would support Plaintiffs’ motion for class certification. Following the hearing on the prior discovery motions, the Court ordered 18 discovery be provided by November 2, 2020. Instead of providing discovery, Charter served supplemental responses on November 2, 2020, 19 indicating that it will provide discovery at some unspecified time in the future. Nothing was provided by November 2, 2020. Plaintiffs could have 20 immediately sought Rule 37 sanctions for Charter’s non-compliance but did not. Instead, Plaintiffs engaged in further meet-and-confer efforts 21 culminating in the February 17, 2021, discovery agreement which reduced the sampling size from 10% to 2% and required discovery be provided by 22 March 8, 2021. As part of that agreement, and in a further sign of good faith, Plaintiffs agreed to withdraw a pending motion for Rule 37 23 sanctions. Charter failed to produce documents by the agreed date and this motion followed. The Court will now reduce the parties’ February 17, 24 2021, discovery stipulation to a formal order.

25 Id. at 24-25. 26 Following submission of a supporting declaration, the Court awarded Plaintiff monetary sanctions 27 in the amount of $13,333.00 on August 30, 2021. See ECF No. 168. 28 / / / 1 In the current motion, Defendant seeks further response to Interrogatory Nos. 1, 2, 2 and 21, and Request for Production Nos. 19, 20, and 51, propounded to Plaintiff Harper, and 3 Interrogatory No. 2 and Request for Production Nos. 3 and 12 propounded to Plaintiff’s Abascal, 4 Turner, and Vasquez. See ECF No. 224, pg. 6 (Joint Statement). According to Defendant, 5 Plaintiffs’ counsel attempted to hide the fact that Plaintiff inappropriately sent unsolicited 6 communications to putative class members and aggrieved employees based on confidential 7 employee lists disclosed by Defendant. See id. at 6-7. Plaintiffs assert they engaged in allowable 8 investigation, that Defendant’s claims of wrongdoing are baseless, and that Defendant’s 9 arguments are hypocritical. See id. at 7-9. 10 The current discovery dispute arose amid the following background, according to 11 Defendant:

12 . . . Charter initially requested the subject documents and information in June 2020 discovery requests to Harper. Plaintiffs’ counsel 13 did not produce any documents or information in response to those requests, nor did Plaintiffs’ counsel produce a privilege log or inform 14 Charter that Plaintiff Harper was withholding documents. Over one year later, Charter uncovered the existence of the subject communications by 15 chance during Plaintiff Hassan Turner’s deposition in August 2021, when he testified that he initially learned of this lawsuit in an unsolicited email 16 he received from Plaintiffs’ counsel. Based on Plaintiffs’ responses to Defendant’s subsequent conferral efforts—including a belated and 17 patently deficient privilege log—it appears Plaintiffs’ counsel sent mass, unsolicited communications to putative class members and allegedly 18 aggrieved employees via LinkedIn, and then used the confidential class lists Charter produced in this case to send additional emails to putative 19 class members and allegedly aggrieved employees for the purpose of soliciting additional Plaintiffs to sue Charter. Even worse, Plaintiffs’ 20 counsel did all this while concealing his conduct from Charter for over one year. Only after Charter uncovered the information in Turner’s 21 deposition did Plaintiffs grudgingly produce an untimely and deficiently vague privilege log. . . . 22 ECF No. 224, pgs. 6-7. 23 24 The relevant portion of the transcript of Plaintiff Turner’s August 12, 2021, deposition is attached 25 as Exhibit 4 to the declaration of Defendant’s counsel. See ECF No. 224-1, pgs. 109-118. 26 / / / 27 / / / 28 / / / 1 III. DISCUSSION 2 At issue are discovery requests propounded to Plaintiffs Harper, Abascal, Turner, 3 and Vasquez. As outlined above, on October 13, 2021, the action was stayed by the District 4 Judge as to Counts One through Nine of the second amended complaint pending arbitration of 5 individual claims raised by Plaintiffs Harper, Turner, Vasquez, and Abascal. The action has not 6 been stayed as to Plaintiff Harper’s PAGA claims. Given the stay imposed by the District Judge, 7 Defendant’s motion to compel – which was filed two weeks after the date of the District Judge’s 8 order staying proceedings – is inappropriate as to any discovery propounded to Plaintiffs Abascal, 9 Turner, and Vasquez, and as to non-PAGA discovery propounded to Plaintiff Harper. 10 Defendant’s argument that the Court should disregard the District Judge’s stay is 11 unpersuasive. Without citation to any authority, Defendant asserts:

12 Plaintiffs Harper, Vazquez, Turner, and Abascal have been compelled to arbitrate their individual, non-PAGA claims against Charter, and the case 13 has been stayed as to all Plaintiffs’ non-PAGA claims pending the outcome of arbitration. (Dkt. 202.) By submitting this Joint Statement, Charter does 14 not waive its request to compel Plaintiffs to arbitrate their claims because the parties agreed to take discovery in court, and Charter served these requests 15 and Plaintiffs deficiently responded before Charter filed its successful motion to compel arbitration. Plaintiffs should not benefit from their refusal to 16 properly and adequately respond to Charter’s discovery requests based on the fact that certain of the Plaintiffs have since been compelled to arbitration. 17 Moreover, these discovery requests relate directly to the underlying facts of the case and may impact whether Plaintiffs’ counsel or Plaintiff Sinclair are 18 adequate class representatives once the stay is lifted.

19 ECF No. 224, pg. 6, n.1 (Joint Statement). 20 Nothing in this statement provides a sufficient reason to ignore a stay of proceedings imposed by 21 the District Judge before Defendant’s motion was filed. 22 Because the parties agree that the discovery at issue served on Plaintiff Harper 23 relates to his PAGA claims, which have not been stayed, the Court’s analysis will focus solely on 24 discovery propounded on Harper. Defendant’s motion to compel will be denied as to discovery 25 propounded on Plaintiff’s Turner, Vasquez, and Abascal. 26 / / / 27 / / / 28 / / / 1 The six specific discovery requests at issue served on Harper are as follows:

2 Interrogatory No. 1

3 In Interrogatory No. 1, Defendant asks Plaintiff Harper to identify anyone (other than Harper’s counsel) with whom Harper or anyone acting 4 on his behalf had communication regarding the facts or allegations in this case. See ECF No. 224, pg. 45. 5 Interrogatory No. 2 6 In Interrogatory No. 2, Defendant asks Harper to state, with respect 7 to each person identified in Interrogatory No. 1, the substance of each communication. See ECF No. 224, pg. 46. 8 Interrogatory No. 21 9 In Interrogatory No. 21, Defendant asks Harper to identify all 10 persons who have responded to or inquired about the postings entitled “Employment Claims Against Charter Communications” and/or 11 “Employment Claims Against Charter,” located at two specific internet addresses. See ECF No. 224, pg. 59. 12 Request for Production No. 19 13 In Request for Production No. 19, Defendant asks Harper to 14 produce all correspondence he, his counsel, or anyone else acting on his behalf has sent to any current or former employees of Defendant related to 15 this action, as well as any mailing list used to distribute such correspondence. See ECF No. 224, pg. 48. 16 Request for Production No. 20 17 In Request for Production No. 20, Defendant asks Harper to 18 produce all internet pages or postings that he, his counsel, or anyone acting on his behalf have posted or disseminated to others relating to this 19 lawsuit or Plaintiff Harper’s claims. See ECF No. 224, pg. 50.

20 Request for Production No. 51

21 In Request for Production No. 51, Defendant asks Harper to produce all documents that constitute evidence, refer or relate to any 22 responses to, or inquiry about or regarding, the posting entitled “Employment Claims Against Charter Communications” and/or 23 “Employment Claims Against Charter,” located at two specific internet addresses. See ECF No. 224, pg. 62. 24 25 Attached as Exhibit 3 to the declaration of Defendant’s counsel are the disputed 26 discovery requests and Harper’s responses thereto. See ECF No. 224-1, pgs. 33-108. 27 Interrogatory Nos. 1 and 2 and Request for Production Nos. 19 and 20 were served on Plaintiff 28 Harper on June 29, 2020. See ECF No. 224-1, pg. 2, ¶ 5. Harper served responses on August 10, 1 2020. See id. Interrogatory No. 21 and Request for Production No. 51 were served on Plaintiff 2 Harper on June 29, 2021 – a year after the other disputed discovery was served on Harper. See 3 id. Harper served responses on August 5, 2021. See id. Finally, during the meet-and-confer 4 process, Plaintiff provided Defendant’s counsel a privilege log on September 8, 2021, which is 5 attached as Exhibit 2 to the declaration of Defendant’s counsel. See id. at 28-32. 6 In Plaintiff Harper’s responses, as well as the privilege log, Plaintiff Harper 7 asserted various privileges, including the attorney work product and attorney-client privileges, 8 with respect to the disputed discovery. See id. at 33-108 (responses) and 28-32 (privilege log). 9 In his responses, Plaintiff Harper also objected to the discovery requests at issue on the grounds 10 that they are overbroad, burdensome, and vague. See ECF No. 224-1, pgs. 33-108. In the current 11 motion to compel, the parties address, collectively as to all disputed discovery without distinction 12 among the various specific interrogatories and requests for production at issue, only the adequacy 13 of the asserted privileges. See ECF No. 224, pgs. 22-44. Defendant Charter contends: (1) 14 Plaintiff waived the attorney-client and work product privileges by failing to provide a privilege 15 log in a timely manner and by failing to object during Plaintiffs’ depositions; and (2) in any event, 16 the attorney-client and work product privileges do not apply. See id. at 22-29. Plaintiffs 17 contend: (1) under California law, Plaintiffs have a right of equal access to putative class 18 members; (2) the communications are protected by the work product and attorney-client 19 privileges; and (3) Harper never waived any privileges. See id. at 29-43. 20 Initially, despite Defendant’s contention that Plaintiff has used confidential 21 employee lists to send unsolicited communications to putative class members, Defendant has not 22 cited to any specific provision of the operative protective order Defendant alleges Plaintiffs 23 violated. The Court finds this contention to be unsupported. 24 Also unsupported are any arguments concerning Plaintiff Harper’s objections other 25 than those based on privileges. Eastern District of California Local Rule 251(c)(3) requires the 26 joint statement filed in support of a discovery dispute contain “[t]he contentions of each party as 27 to each contested issue. . . .” Here, the joint statement contains briefing related only to Plaintiff’s 28 various privilege objections. See ECF No. 224. Because Plaintiff’s other objections are not 1 briefed, they are not properly before the Court and are essentially waived. 2 Assuming for the moment that Plaintiff Harper has an equal right to investigate by 3 contacting putative class members, and assuming for the moment that the attorney-client and 4 attorney work product privileges apply, Charter persuasively argues that any privileges were 5 waived by Plaintiffs’ failure to provide a privilege log when the privileges were first asserted in 6 the August 10, 2020, and August 4, 2021, responses to the disputed discovery requests. Under 7 Federal Rule of Civil Procedure 26(b)(5)(A), when, as here, a party withholds information by 8 claiming a privilege, the party must expressly make the claim and provide a privilege log with its 9 discovery responses. See Burlington Northern & Santa Fe Ry. Co. v. U.S. District Ct. For the 10 Dist. Of Mont., 408 F.3d 1142, 1147 (9th Cir. 2005); see also Fed. R. Civ. P. 26(b)(5)(A). Here, 11 Plaintiff Harper did not provide any sort of privilege log with the August 10, 2020, or August 5, 12 2021, responses, and only did so in September 2021 as part of the meet-and-confer process 13 culminating in the instant motion to compel. This delay alone is sufficient to find waiver. See id. 14 at 1149. 15 Moreover, the privilege log that was belatedly produced is insufficient. To be 16 adequate, a privilege log must describe the material withheld, state the identify and position of the 17 withheld material’s author, state the identities of all addresses and recipients, and provide specific 18 reasons for withholding the material. See Friends of Hope Valley v. Frederick Co., 268 F.R.D. 19 643, 651-52 (E.D. Cal. 2010) see also Fed. R. Civ. P. 26(b)(5)(A)(ii). The privilege log supplied 20 by Plaintiff in September 2021 fails to do so. See ECF No. 224-1, pgs. 28-32. 21 Because Plaintiff Harper failed to provide a timely and adequate privilege log, the 22 Court finds that Plaintiff’s assertions of privilege are waived. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IV. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Defendant’s motion to compel, ECF No. 207, is denied as to the discovery 4 | at issue served on Plaintiffs Turner, Vasquez, and Abascal; 5 2. Defendant’s motion to compel, ECF No. 207, is granted as to Interrogatory 6 | Nos. 1, 2, and 21, and Request for Production Nos. 19, 20, and 51, served on Plaintiff Harper, 7 | who shall provide further responses thereto and produce the documents requested, without 8 | objection, within 30 days of the date of this order; 9 3. Defendant’s counsel shall file a declaration in support of reasonable 10 || expenses associated with the instant motion within 30 days of the date of this order; 11 4. Plaintiff's counsel may file a response to any declaration filed in support of 12 | an award of expenses within 14 days of the date of service of Defendant’s declaration. 13 14 || Dated: December 10, 2021 Ssvcqo_ 1S DENNIS M. COTA 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 11