Howell v. Leprino Foods Company

Opinion

ANDREW HOWELL, on behalf of himself No. 1:18-cv-01404-AWI-BAM and on behalf of all other similarly situated individuals, ORDER DENYING PLAINTIFF’S MOTION Plaintiff, TO COMPEL DISCOVERY v. (Doc. 119) LEPRINO FOODS COMPANY, et al., Defendants. Currently before the Court is Plaintiff Andrew Howell’s (“Plaintiff”) Motion to Compel Discovery. (Doc. 119.) At issue are Defendant Leprino Foods Company’s (“Defendant”) responses to Plaintiff’s Request for Production of Documents (Set Three), specifically: (1) Defendant’s responses to Requests No. 136-147; (2) Defendant’s lack of response to Request No. 148; and (3) Defendant’s response to Request No. 149. (Id.) The parties filed their Joint Statement Regarding Discovery Disagreement on January 27, 2023 with a supporting declaration from Plaintiff’s counsel. (Docs. 124, 124-1.) Defendant’s counsel subsequently filed supporting declarations. (Docs. 126, 128.) The Court deemed the matter suitable for decision without oral argument, vacated the February 10, 2023, hearing date, and the matter is deemed submitted on the papers. E.D. Cal. L.R. 230(g); (Doc. 127.) Having considered the parties’ briefs and the record in this action, and for the reasons explained below, Plaintiff’s motion to compel is denied. Plaintiff filed this putative class action against Leprino Foods Company, Leprino Foods Dairy Products Company, and Doe Defendants on April 24, 2018. (Doc. 1.) Plaintiff alleges that Defendants violated California Labor Codes §§ 201 et seq. and California Business and Professions Code §§ 17200 et seq. through failure to pay minimum wages, failure to compensate workers for all hours worked, failure to pay overtime wages, failure to provide lawful meal and rest periods, failure to pay wages and waiting time penalties, failure to properly itemize paystubs, unlawful deductions from wages, and acts of unfair competition. (Id.) On November 28, 2022, Plaintiff served Defendant with his Requests for Production of Documents (Set Three), seeking time and payroll information, personnel files, disciplinary records of the class members, and all video footage Defendant Leprino intends to use at trial of the Tracy facility where class members worked. (Doc. 124-1, Declaration of Ryan Crist ¶ 2, Ex. A.) Defendant served its responses without production of responsive documents on January 3, 2023. (Id. ¶ 4, Ex. C.) Plaintiff’s counsel sent a meet and confer letter to defense counsel regarding the lack of document production related to Request Nos. 136-149 on January 13, 2023, and requested the parties discuss via conference call on January 16, 2023. (Id. ¶ 5, Ex. D.) Defense counsel responded on January 17, 2023, and suggested that the parties discuss these production issues on January 23, 2023. (Id. ¶ 6, Ex. E.) On January 23, 2023, the parties met and conferred telephonically regarding the production dispute. (Id. ¶ 7-8.) At this meet and confer, Plaintiff’s counsel requested production of class members’ time and payroll records in response to Request Nos. 136-147, which Defendant’s counsel agreed to provide. (Doc. 126, Declaration of Lisa M. Pooley Concerning Joint Statement Regarding Discovery Disagreement ¶ 8.) In response to Plaintiff’s counsel’s request for a privilege log related to Request No. 149, Defendant’s counsel informed Plaintiff’s counsel that there was nothing to include in a privilege log as no responsive footage existed for that request. (Id.) Plaintiff’s counsel then requested Defendant serve verified supplemental responses, which Defendant’s counsel rejected as unnecessary given her view that Defendant’s prior responses were proper. (Id.) Request No. 148 regarding class members’ disciplinary records was not discussed at the meet and confer, and Defendant’s counsel was not aware of Defendant’s non-response until preparing the Joint Statement Regarding Discovery Dispute on January 26, 2023. (Id. ¶ 9.) On January 27, 2023, Plaintiff filed the instant motion to compel, and the parties filed a Joint Statement Re Discovery Disagreement. (Docs. 119, 124.) Defendant’s counsel filed declarations concerning the parties’ Joint Statement. (Docs. 126, 128.) The motion was taken under submission. (Doc. 127.) Broad discretion is vested in the trial court to permit or deny discovery . . . .” Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Federal Rule of Civil Procedure 26 provides that parties “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 the scope of discovery need not be admissible in evidence to be discoverable. Id. However, the Court must limit the extent of discovery if it determines that (1) the discovery sought is unreasonably cumulative, duplicative or can be obtained from other source that is more convenient, less burdensome, or less expensive, (2) the party seeking discovery has had ample opportunity to obtain the information by discovery, or (3) the proposed discovery is outside the permissible scope. Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). Pursuant to Rule 34 of the Federal Rules of Civil Procedure, any party may serve on any other party a request within the scope of Rule 26(b) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody or control: any designated documents, electronically stored information or tangible things. Fed. R. Civ. P. 34(a)(1). “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). A. Meet and Confer Federal Rule of Civil Procedure 37(a)(1) permits a party to move for an order compelling discovery, upon certification that the movant has in good faith conferred or attempted to confer with the opposing party in an effort to obtain the requested discovery without court action. Fed. R. Civ. P. 37(a)(1). Local Rule 251 requires that a motion made pursuant to Federal Rule of Civil Procedure 37 “shall not be heard unless… the parties have conferred and attempted to resolve their differences.” E.D. Cal. L.R. 251(b). Local Rule 251 further notes that the meet and confer shall be conducted in “a good faith effort to resolve the differences that are the subject of the motion.” Id. It appears that Plaintiff did not adequately meet and confer regarding these requests prior to filing the motion to compel. While the parties discussed Requests Nos. 136-147 and Request No. 149, Defendant’s counsel notes that Defendant’s non-response to Request No. 148 was not discussed, and she did not become aware of Defendant’s non-response until preparing the Joint Statement on January 26, 2023. (Doc. 126, Declaration of Lisa M. Pooley Concerning Joint Statement Regarding Discovery Disagreement ¶ 8.) Given the extensive discovery disputes in this action, and in the interests of judicial and party economy, the Court will consider the merits of Plaintiff’s motion to compel. See Rogers v. Giurbino, 288 F.R.D. 469, 477-478 (S.D. Cal. 2012) (finding that a court can deny a motion to compel solely because of a party’s failure to meet and confer prior to filing the motion, but that a court still has discretion to address the merits of the motion despite the failure). However, the parties are reminded that Federal Rule of Civil Procedure 37 and Local Rule 251 require good faith attempts to resolve differences. Fed. R. Civ. P. 37(a)(1); E.D. Cal. L.R. 251(b). The Court now turns to the specific requests at issue. B. Disputed Requests – No. 136-147 Plaintiff’s disputed requests seek databases, documents, and personnel files related to time and payroll information of the class members. Defendant responded to each of these requests identically, informing Plaintiff that it would provide responsive documents by February 28, 2023. Plaintiff’s Request for Production No. 1361 Any computerized and machine-readable databases, reports and other DOCUMENTS containing payroll information regarding each CLASS MEMBER during the CLASS PERIOD. This request includes, but is not limited to, databases, reports and other DOCUMENTS identifying the employees’ job titles, part-time or full-time status, permanent or temporary status, casual and permanent hire dates, initial job assignment and subsequent jobs held, workplace location, work schedules, initial pay rates, any subsequent pay rates or adjustments (including the dates of such subsequent rates or adjustments), amounts and dates of any wages paid, total compensation and other information fields compiled for DEFENDANT’s payroll functions. This request includes a key for interpreting ANY codes used to interpret the data, as well as ANY DOCUMENTS describing, explaining or pertaining to the methods and techniques used in compiling, editing, modifying or updating these computer databases. Defendant’s Response to Request for Production No. 136 Defendant will produce responsive documents on or before February 28, 2023. Plaintiff’s Request for Production No. 137 Any computerized and machine-readable databases, reports and other DOCUMENTS containing time records and/or original punch records and/or punch detail reports, for each CLASS MEMBER, including records of clock-in

1 The relevant definitions are:

“DOCUMENT(S)” refers to any written, printed, typed, or other graphic matter of any kind or nature, however produced or reproduced, whether or not sent or received, private or confidential, wherever located, including drafts and copies bearing notations or marks not found on the original; and includes, but is not limited to, all memoranda, reports, financial reports, notes, transcripts, letters, envelopes, telegrams, cables, telex messages, messages (including reports, notes, notations and memoranda of or relating to telephone conversations, telegrams, messages, conversations and any oral communications), tabulations, studies analyses, evaluations, projections, work papers, statements, summaries, opinions, journals, statistical records, desk calendars, appointment books, diaries, lists, comparisons, questionnaires, surveys, charts, graphs, books, articles, magazines, newspapers, booklets, circulars, bulletins, notices, instructions, manuals, minutes or transcriptions of meetings, written communications of any type, electronic mail messages (e-mail), photographs, videotapes, audiotapes, microfilm, punch cards, magnetic tape, discs, data cells, drums, printouts, and other data compilations from which information can be obtained, (translated by Defendant into the English language or through detection devices in usable form).

The term “CLASS MEMBERS” is defined as all non-exempt hourly workers who are currently employees, or formerly have been employed, as non-exempt hourly employees at DEFENDANT’s Tracy facility at any time during the CLASS PERIOD, excluding individuals who timely and validly opted out of the class. The term “CLASS PERIOD” shall be defined as the period between April 24, 2014 and March 23, 2022.

“DEFENDANT”, “YOU”, and “YOUR” refers to Defendant Leprino Foods Company.

(Doc. 124 at 7-8.) and clockout times, time worked and meal and rest breaks taken by all CLASS MEMBERS during the CLASS PERIOD. Defendant’s Response to Request for Production No. 137 Defendant will produce responsive documents on or before February 28, 2023. Plaintiff’s Request for Production No. 138 Any computerized and machine-readable databases, reports and other DOCUMENTS reflecting the dates of employment of each CLASS MEMBER during the CLASS PERIOD, including the start and end dates of their employment with YOU.

Defendant’s Response to Request for Production No. 138 Defendant will produce responsive documents on or before February 28, 2023. Plaintiff’s Request for Production No. 139 Any computerized and machine-readable databases, reports and other DOCUMENTS reflecting the STRAIGHT TIME RATE (for purposes of these requests “STRAIGHT TIME RATE” shall mean the hourly wage rate) of each CLASS MEMBER during the CLASS PERIOD, including any changes to their STRAIGHT TIME RATE(s), during their employment with YOU. Defendant’s Response to Request for Production No. 139 Defendant will produce responsive documents on or before February 28, 2023.

Plaintiff’s Request for Production No. 140 Any computerized and machine-readable databases, reports and other DOCUMENTS reflecting the REGULAR RATE OF PAY (for purposes of these requests “REGULAR RATE OF PAY” shall mean the hourly rate of pay YOU paid per hour worked, including shift differentials and the per-hour value of any nonhourly compensation each employee has earned as defined by Labor Code section 510) for each CLASS MEMBER during the CLASS PERIOD, including any changes to their REGULAR RATE OF PAY during their employment with YOU. Defendant’s Response to Request for Production No. 140 Defendant will produce responsive documents on or before February 28, 2023.

Plaintiff’s Request for Production No. 141 Any DOCUMENTS reflecting the number of WORKWEEKS (for purposes of these requests “WORKWEEK(s)” shall mean the time from 12:00 (Midnight) Sunday and ending Saturday at 11:59 p.m.) worked by each CLASS MEMBER during the CLASS PERIOD. Defendant’s Response to Request for Production No. 141 Defendant will produce responsive documents on or before February 28, 2023.

Plaintiff’s Request for Production No. 142 Any DOCUMENTS reflecting the number of WORKWEEKS worked by each CLASS MEMBER currently employed by YOU during the CLASS PERIOD. Defendant’s Response to Request for Production No. 142 Defendant will produce responsive documents on or before February 28, 2023. Plaintiff’s Request for Production No. 143 Any DOCUMENTS reflecting the number of WORKWEEKS worked by each CLASS MEMBER formerly employed by YOU during the CLASS PERIOD.

Defendant’s Response to Request for Production No. 143 Defendant will produce responsive documents on or before February 28, 2023. Plaintiff’s Request for Production No. 144 Any DOCUMENTS reflecting the number of PAY PERIODS (for purpose of these requests “PAY PERIOD” shall mean each week or weeks a CLASS MEMBER worked and was subsequently issued a pay check by YOU) for each CLASS MEMBER during the CLASS PERIOD.

Defendant’s Response to Request for Production No. 144 Defendant will produce responsive documents on or before February 28, 2023. Plaintiff’s Request for Production No. 145 Any DOCUMENTS reflecting the number of MEAL PREMIUMS (for purposes of this request “MEAL PREMIUM” shall mean the additional hour of pay paid at the employee’s regular rate of compensation as defined by Labor Code section 226.7 for YOUR failure to provide an employee each CLASS MEMBER a meal period) paid by YOU to each CLASS MEMBER during the CLASS PERIOD and the dates reflecting the meal breaks for which those MEAL PREMIUMS were issued.

Defendant’s Response to Request for Production No. 145 Defendant will produce responsive documents on or before February 28, 2023. Plaintiff’s Request for Production No. 146 Any DOCUMENTS reflecting the number of REST PREMIUMS (for purposes of this request “REST PREMIUM” shall mean shall mean the additional hour of pay paid at the employee’s regular rate of compensation as defined by Labor Code section 226.7 for YOUR failure to provide, authorize, or permit each CLASS MEMBER a rest period) paid by YOU to CLASS MEMBERS during the CLASS PERIOD and the dates reflecting the rest breaks for which those REST PREMIUMS were issued.

Defendant’s Response to Request for Production No. 146 Defendant will produce responsive documents on or before February 28, 2023. Plaintiff’s Request for Production No. 147 Each CLASS MEMBER’s personnel file.

Defendant’s Response to Request for Production No. 147 Defendant will produce responsive documents on or before February 28, 2023. (Doc. 124 at 7-10.) Plaintiff contends that Defendant has not produced responsive documents for Requests No. 136-147 and has only responded that it will “produce responsive documents on or before February 28, 2023” without further explanation. (Doc. 124 at 11.) Plaintiff argues that Defendant’s responses are vague and do not state whether documents will be produced as requested. (Id.) Plaintiff further argues that the February 28, 2023 production deadline Defendant Leprino set is improper and prejudices Plaintiff. (Doc. 124 at 11-12.) Defendant Leprino contends that its responses are proper, as it provided unambiguous responses without objections stating that it would produce documents responsive to each request. (Doc. 124 at 13.) Defendant Leprino further contends that the February 28, 2023 production is permissible under Federal Rule of Civil Procedure 34. (Doc. 124 at 13-14.) First, the Court finds Plaintiff’s argument that Defendant Leprino’s responses are vague unconvincing. Federal Rule of Civil Procedure 34 states that a “response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). Here, Defendant has simply responded that it would produce “responsive documents” as requested by Plaintiff and provides no objections. Defendant’s counsel also notes that during a meet and confer call, she advised Plaintiff’s counsel that “Leprino would be producing what was requested” in Requests Nos. 136-147. (Doc. 126, Declaration of Lisa M. Pooley Concerning Joint Statement Regarding Discovery Disagreement at ¶ 8.) Defendant’s failure to specify any objections here means that any objections they may later attempt to bring are waived. Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). However, the clear language of Defendant’s responses, lack of objection, and counsel’s reiteration that Defendant would provide responsive documents belie Plaintiff’s argument of vagueness. Second, Plaintiff argues that the February 28, 2023 production deadline is improper. Federal Rule of Civil Procedure 34 states that the “responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” Fed. R. Civ. P. 34(b)(2)(B). Here, Plaintiff’s Requests did not specify a date for inspection or production. (Doc. 124-1, Declaration of Ryan Crist, Ex. A.) Instead, Defendant informed Plaintiff that it would produce responsive documents on or before February 28, 2023. (Doc. 124 at 7-10.) Given that the February 28, 2023 date complies with Federal Rule of Civil Procedure 34, production of responsive documents on or before that date would be proper. As the February 28, 2023 date has not yet passed, Defendant’s production is not yet untimely. Plaintiff’s motion to compel Defendant’s further response to Request Nos. 136-147 of Plaintiff’s Requests for Production of Documents (Set Three) is therefore DENIED. C. Disputed Request – No. 148 Plaintiff’s disputed request seeks written disciplinary records for class members during the class period. Defendant provided no response to this request. Plaintiff’s Request for Production No. 148 All written disciplinary records for the CLASS MEMBERS during the CLASS

Defendant’s Response to Request for Production No. 148 No response given. (Doc. 124 at 14.) Plaintiff argues that Defendant’s failure to respond constitutes a waiver of any objection and Defendant is required to respond to this Request. (Doc. 124 at 15.) Defendant contends that the failure to respond was inadvertent, and it will serve the missing response. (Id.) As the Ninth Circuit has noted, “[i]t is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection.” Richmark Corp., 959 F.2d at 1473. However, Defendant has not yet responded to Plaintiff’s Request and Defendant’s counsel states that she “will ensure that a response to Request No. 148 is served prior to the hearing on Plaintiff's Motion to Compel Discovery.” (Doc. 126, Declaration of Lisa M. Pooley Concerning Joint Statement Regarding Discovery Disagreement at ¶ 9.) Given that Defendant has committed to providing a response, Plaintiff’s motion to compel discovery of Request No. 148 is moot. Plaintiff’s motion to compel Defendant’s further response to Request No. 148 of Plaintiff’s Requests for Production of Documents (Set Three) is therefore DENIED. D. Disputed Request – No. 149 Plaintiff’s disputed request seeks video footage of all areas of the Tracy facility where class members worked during the class period that Defendant intends to use at trial. Defendant objected on attorney-client privilege, work-product doctrine, and early disclosure of evidence grounds and stated that there were no responsive documents as Defendant did not intend to use any video footage at trial. Plaintiff’s Request for Production No. 149 All video footage of each area of the Tracy facility where CLASS MEMBERS worked during the CLASS PERIOD that DEFENDANT intends to use at trial.

Defendant’s Response to Request for Production No. 149 Defendant objects to this request on the grounds that it violates the attorney-client privilege and/or the attorney work-product doctrine.

Defendant also objects to this request on the grounds that it improperly seeks the early disclosure of evidence for trial before required by Rule 16 of the Federal Rules of Civil Procedure and Local Rule 281.

Subject to and without waiving the foregoing objections and despite a diligent search and reasonable inquiry, Defendant is unable to comply with this request on the grounds that it presently has no intention to use any video footage at trial and, thus, there are no responsive documents in the possession, custody, or control of Defendant. (Doc. 124 at 15.) Plaintiff argues that Defendant’s invocation of privilege without providing a privilege log constitutes waiver of the privilege. (Id. at 16.) Plaintiff also argues that Defendant’s conditioning of its response “subject to” its objections is improper. (Id. at 17.) Plaintiff also contends that Defendant is shielding responsive video surveillance footage behind qualifying language to conduct a trial by ambush. (Id. at 17-18.) Defendant counters that it is not withholding any video based on privilege, and instead the requested video footage does not exist. (Id. at 19.) Defendant has explained that it does not have video footage responsive to the request as propounded by Plaintiff. Thus, the Court cannot compel documents which do not exist. Plaintiff’s motion to compel Defendant’s further response to Request No. 149 of Plaintiff’s Requests for Production of Documents (Set Three) is therefore DENIED. /// /// For the reasons stated, Plaintiff’s motion to compel Defendant Leprino Foods Company to provide further responses to Plaintiff’s Request for Production of Documents (Set Three) is IT IS SO ORDERED.

Dated: February 27, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE