Licea v. Beshay Foods, Inc.

• Court: District Court, S.D. California
• Decided: April 23, 2020
• Docket: 3:19-cv-01565
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SEAN LICEA, individually and on behalf Case No.: 3:19-cv-1565-JM-AHG of all others similarly situated, 12 ORDER RESOLVING JOINT Plaintiff, MOTION FOR DETERMINATION 13 OF DISCOVERY DISPUTE, v. 14 GRANTING PLAINTIFF’S BESHAY FOODS, INC., MOTIONS TO COMPEL, AND 15 DENYING DEFENDANT’S MOTION Defendant. 16 TO COMPEL

17 [ECF No. 16] 18

21 Before the Court is Plaintiff Sean Licea (“Plaintiff”) and Defendant Beshay Foods, 22 Inc.’s (“Defendant”) Joint Motion for Determination of Discovery Dispute. ECF No. 16. 23 Plaintiff seeks an order from the Court compelling responses to Interrogatory Nos. 12–16 24 and to discovery requests relating to “Defendant’s Facilities.” Id. Defendant seeks an order 25 from the Court compelling Plaintiff to submit to an Ophthalmologic Independent Medical 26 Examination (“IME”). Id. For the reasons set forth below, the Court GRANTS Plaintiff’s 27 motions to compel and DENIES Defendant’s motion to compel. 28 1 I. BACKGROUND 2 In his complaint, Plaintiff alleges that when he visited Defendant’s restaurant, he 3 was denied access to its Coca-Cola Freestyle touch-screen fountain soda machine 4 (“Freestyle machine”) because he is a legally blind individual. ECF No. 1 at ¶¶ 2, 41–43. 5 Specifically, Plaintiff alleges that, upon receiving his meal, he was handed an empty soft 6 drink cup to be filled up at the self-service Freestyle machine and was not offered assistance 7 by any of Defendant’s employees, even though he has an obvious visual disability and uses 8 a white cane. Id. at ¶¶ 51, 55–56. Plaintiff further alleges that, during one visit, his request 9 to an employee for assistance in operating the Freestyle machine was denied. Id. at ¶ 57. 10 Additionally, Plaintiff alleges that Defendant has no policies or procedures in place at its 11 restaurants to provide assistance to customers with visual disabilities. Id. at ¶¶ 45, 74. 12 Therefore, Plaintiff brings this action “on behalf of himself and all individuals who have 13 an obvious visual disability (e.g., use a white cane or guide dog) who have attempted to 14 access, or will attempt to access, Freestyle machines at Defendant’s Restaurants during the 15 relevant statutory period and were not affirmatively offered assistance with the Freestyle 16 machine.” Id. at ¶ 78. 17 The specific discovery requests at issue in the instant motion arise from Plaintiff’s 18 Omnibus Discovery Requests Directed to Defendant, which include interrogatories, 19 requests for admissions, and requests for production of documents. ECF No. 16-2. Plaintiff 20 propounded these discovery requests on December 9, 2019, and Defendant served its 21 responses on January 13, 2020. ECF No. 16-1 at 20, 34; ECF No. 16-2 at 29. Pursuant to 22 the Court’s Chambers Rules, the parties jointly emailed the Court to request a telephonic 23 conference regarding multiple discovery disputes. See Chmb.R. at 3. After a telephonic 24 discovery conference with the parties on February 24, 2020, the Court found it appropriate 25 to issue a briefing scheduling in this matter, requiring a joint motion for determination of 26 the discovery disputes to be filed by March 30, 2020. ECF Nos. 14, 15. The parties 27 untimely filed their joint motion on March 31, 2020. ECF No. 16. 28 / / 1 II. LEGAL STANDARD 2 “The party who resists discovery has the burden to show discovery should not be 3 allowed, and has the burden of clarifying, explaining, and supporting its objections.” 4 Superior Commc’ns v. Earhugger, Inc., 257 F.R.D. 215, 217 (C.D. Cal. 2009); see 5 Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (requiring defendants “to 6 carry a heavy burden of showing why discovery was denied”); see also Bryant v. Ochoa, 7 No. 07cv200-JM-PCL, 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009) (“The party 8 seeking to compel discovery has the burden of establishing that its request satisfies the 9 relevancy requirements of Rule 26(b)(1). Thereafter, the party opposing discovery has the 10 burden of showing that the discovery should be prohibited, and the burden of clarifying, 11 explaining or supporting its objections.”). The party resisting discovery must specifically 12 detail the reasons why each request is objectionable, and may not rely on boilerplate, 13 generalized, conclusory, or speculative arguments. F.T.C. v. AMG Servs., Inc., 291 F.R.D. 14 544, 553 (D. Nev. 2013). Arguments against discovery must be supported by “specific 15 examples and articulated reasoning.” U.S. E.E.O.C. v. Caesars Ent., 237 F.R.D. 428, 432 16 (D. Nev. 2006). 17 District courts have broad discretion to manage discovery. Laub v. United States 18 DOI, 342 F.3d 1080, 1093 (9th Cir. 2003); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 19 2002). This discretion extends to crafting discovery orders that may expand, limit, or differ 20 from the relief requested. See Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (trial court 21 has “broad discretion to tailor discovery narrowly and to dictate the sequence of 22 discovery”); UMG Recordings, Inc. v. Doe, No. C 08-1038 SBA, 2008 WL 2949427, at *3 23 (N.D. Cal. Jul. 30, 2008) (“[T]he district courts wield broad discretion” in fashioning 24 discovery orders). 25 III. DISCUSSION 26 The parties raise three issues within their joint motion for determination of discovery 27 dispute: (1) Plaintiff seeks to compel responses to certain interrogatories (Nos. 12–16); 28 (2) Plaintiff seeks to compel responses to interrogatories and requests for production of 1 documents relating to “Defendant’s Facilities;” and (3) Defendant seeks to compel an 2 ophthalmologic IME of Plaintiff. ECF No. 16 at 2, 4, 8. The Court will address these in 3 turn. 4 A. Whether the Subparts in Interrogatory Nos. 3, 4, 6, 8, and 11 Cause 5 the Total Number of Interrogatories to Exceed the Limit Imposed 6 by the Federal Rules 7 Plaintiff seeks to compel responses to Interrogatory Nos. 12–16. ECF No. 16 at 2. 8 Defendant has refused to provide responses to these interrogatories because it claims that 9 Interrogatory Nos. 3, 4, 6, 8, and 11 contain subparts that cause the number of 10 interrogatories to exceed the limit imposed by the Federal Rules, and therefore, Plaintiff’s 11 last five interrogatories are improper. ECF No. 16-1 at 10–12; ECF No. 16 at 12. Plaintiff 12 and Defendant disagree about whether the interrogatories’ subparts are sufficiently related. 13 i. Legal Standard 14 “Unless otherwise stipulated or ordered by the court, a party may serve on any other 15 party no more than 25 written interrogatories, including all discrete subparts.” FED. R. CIV. 16 P. 33(a)(1). “The aim [of Rule 33(a)] is not to prevent needed discovery, but to provide 17 judicial scrutiny before parties make potentially excessive use of this discovery device.” 18 FED. R. CIV. P. 33(a) advisory committee’s notes to 1993 amendments. Although Rule 19 33(a) states that “discrete subparts” should be counted as separate interrogatories, it does 20 not define that term. Safeco Ins. Co. of Am. v. Rawstron, 181 F.R.D. 441, 442–43 (C.D. 21 Cal. 1998) (noting that the extensive use of subparts could defeat the purpose of the 22 numerical limit contained in Rule 33(a) by rendering it meaningless, while also recognizing 23 that if all subparts count as separate interrogatories, the use of interrogatories might be 24 unduly restricted). However, “courts generally agree that ‘interrogatory subparts are to be 25 counted as one interrogatory ... if they are logically or factually subsumed within and 26 necessarily related to the primary question.’” Trevino v. ACB Am., Inc., 232 F.R.D. 612, 27 614 (N.D. Cal. 2006) (quoting Safeco, 181 F.R.D. at 445); see Montgomery v. Wal-Mart 28 Stores, Inc., No. 12cv3057-JLS-DHB, 2015 WL 11233384, at *3 (S.D. Cal. July 17, 2015); 1 Makaeff v. Trump Univ., LLC, No. 10cv940-GPC-WVG, 2014 WL 3490356, at *4 (S.D. 2 Cal. July 11, 2014); accord Erfindergemeinschaft UroPep GbR v. Eli Lilly & Co., 315 3 F.R.D. 191, 196 (E.D. Tex. 2016) (collecting cases from numerous circuits to show a 4 general consensus on the “related question” approach, i.e., “subparts that are logically or 5 factually subsumed within and necessarily related to the primary question should not be 6 treated as separate interrogatories”). “Subparts asking for facts, documents, and witnesses 7 relating to a primary contention or allegation are logically or factually related, and [] should 8 be construed as subsumed in the primary question” and therefore do not count as separate 9 interrogatories. Synopsys, Inc. v. Atoptech, Inc., 319 F.R.D. 293, 297 (N.D. Cal. 2016). 10 Such an inquiry requires a case-specific and interrogatory-specific assessment. Id. at 295. 11 ii. Analysis 12 Although Plaintiff seeks to compel responses to Interrogatory Nos. 12–16, because 13 Defendant objected to them solely because Plaintiff had exceeded his 25 permitted 14 interrogatories, the Court will focus on whether Interrogatory Nos. 3, 4, 6, 8, or 11 include 15 discrete subparts. See ECF No. 16-1 at 10–12. 16 In Interrogatory No. 3, Plaintiff requests: 17 Please provide the following information for each of Defendant’s Facilities: (i) the street address; (ii) whether the property is owned or leased (and by 18 whom); (iii) the General Manager during the Relevant Time Period; (iv) the 19 number of Freestyle machines at the location (if any); (v) the date the Freestyle machine(s) was installed at the location; and (vi) the owner of the 20 Freestyle machine(s) at the location. 21 ECF No. 16-2 at 11. In its responses to Plaintiff’s discovery requests, and again reaffirmed 22 in the joint motion, Defendant objects to this request, stating that the subparts cause the 23 number of interrogatories to exceed the limit imposed by the Federal Rules. ECF No. 16 at 24 12; ECF No. 16-1 at 3–4. Defendant argues that Interrogatory No. 3 contains “not just 25 subparts but entirely unrelated subject matter.” ECF No. 16 at 12–13. The Court disagrees, 26 and finds that the subparts relate to the overall subject matter of the interrogatory, i.e., 27 describing Defendant’s Facilities. The Court finds that distinctions between location, 28 1 ownership, management, and information about each location’s Freestyle machines do not 2 create discrete subparts that should be treated as separate interrogatories. See Synopsys, 3 319 F.R.D. at 294 (“it would appear that an interrogatory containing subparts directed at 4 eliciting details concerning a common theme should be considered a single question, 5 although the breadth of the area inquired about may be disputable”) (quoting 8A CHARLES 6 A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2168.1, at 39–40 (3d ed. 2010)); 7 Erfindergemeinschaft, 315 F.R.D. at 196 (“the issue of ‘discreteness’ often cannot be 8 resolved by resort to a crisp verbal formula; [] the reality [is] that ‘discreteness’ is a matter 9 of degree and that deciding whether a subpart of an interrogatory is sufficiently ‘discrete’ 10 to be regarded as a separate interrogatory will frequently depend on the particular 11 circumstances of each case and may not always be answerable with complete confidence”). 12 Therefore, Defendant’s objection is overruled. 13 In Interrogatory No. 4, Plaintiff requests: 14 Please describe in detail the policies, practices and/or procedures Defendant uses to ensure Defendant’s Facilities comply with 42 U.S.C. § 15 12182(b)(2)(A)(iii) and 28 C.F.R. § 36.303. 16 ECF No. 16-2 at 11. In its responses to Plaintiff’s discovery requests, Defendant objects to 17 this request, stating that the subparts cause the number of interrogatories to exceed the limit 18 imposed by the Federal Rules. ECF No. 16-1 at 4–5. The Court notes that Defendant’s 19 objection to this interrogatory in its discovery response is identical to the remaining 20 interrogatories at issue, and, further, Defendant does not mention this interrogatory in its 21 portion of the joint motion, let alone expand on why it believes these subparts are not 22 related. See SolarCity Corp. v. Doria, No. 16cv3085-JAH-RBB, 2018 WL 467898, at *3 23 (S.D. Cal. Jan. 18, 2018) (overruling boilerplate objections based on the party’s failure to 24 “offer any explanation or supporting legal authority in its opposition”); Medina v. County 25 of San Diego, No. 08cv1252-BAS-RBB, 2014 WL 4793026, at *8 (S.D. Cal. Sept. 25, 26 2014) (only considering objections “subsequently reasserted and relied upon” in the 27 discovery motion). Additionally, the Court finds that the subparts relate to the overall 28 1 subject matter of the interrogatory. Compare 42 U.S.C. § 12182(b)(2)(A)(iii) (explaining 2 that discrimination includes failing to take steps to ensure that no individual with a 3 disability is denied services or treated differently because of the lack of auxiliary aids) with 4 28 C.F.R. § 36.303 (defining auxiliary aids). Listing the statute and agency regulation 5 interpreting that statute does not create discrete subparts that should be treated as separate 6 interrogatories. Therefore, Defendant’s objection is overruled. 7 In Interrogatory No. 6, Plaintiff requests: 8 Please identify all persons with knowledge of any fact listed in response to Interrogatory Nos. 4–5.1 9

ECF No. 16-2 at 12. In its responses to Plaintiff’s discovery requests, and again reaffirmed 10 in the joint motion, Defendant objects to this request, stating that the subparts cause the 11 number of interrogatories to exceed the limit imposed by the Federal Rules. ECF No. 16 at 12 12; ECF No. 16-1 at 6. In its portion of the joint motion, Defendant defends its position: 13 “How does a response to Interrogatory 6 as to 4 relate to 5? Other than that both call for 14 the identification of human beings?” ECF No. 16 at 14. However, the Court notes that 15 Interrogatory No. 4 requests policies, practices, and procedures regarding compliance with 16 42 U.S.C. § 12182(b)(2)(A)(iii) and 28 C.F.R. § 36.303, and Interrogatory No. 5 requests 17 policies, practices, and procedures regarding compliance with 28 C.F.R. § 36.211. ECF 18 No. 16-2 at 11–12. The Court finds that the subparts relate to the overall subject matter of 19 the interrogatory, i.e., which potential witnesses know information about Defendant’s 20 compliance with the accessibility requirements of the ADA. Compare 42 U.S.C. § 21 12182(b)(2)(A)(iii) (explaining that discrimination includes failing to take steps to ensure 22 23

24 25 1 For completeness, the text of Interrogatory No. 5 is as follows:

26 Please describe in detail the policies, practices and/or procedures Defendant uses to ensure the accessibility of the Freestyle machines are maintained as 27 required by 28 C.F.R. § 36.211. 28 1 that no individual with a disability is denied services or treated differently because of the 2 lack of auxiliary aids) with 28 C.F.R. § 36.303 (defining auxiliary aids) and 28 C.F.R. § 3 36.211 (requiring that accessibility features be maintained in operable working condition). 4 In this case, requesting a list of potential witnesses regarding compliance with the statute 5 and agency regulations interpreting that statute does not create discrete subparts that should 6 be treated as separate interrogatories. Therefore, Defendant’s objection is overruled. 7 In Interrogatory No. 8, Plaintiff requests: 8 If you contend the Freestyle machines are in compliance with the ADA, or ever have been in compliance with the ADA during the Relevant Time Period, 9 please state the basis for that contention. 10 ECF No. 16-2 at 12. In its responses to Plaintiff’s discovery requests, Defendant objects to 11 this request, stating that the subparts cause the number of interrogatories to exceed the limit 12 imposed by the Federal Rules. ECF No. 16-1 at 7. The Court notes that Defendant’s 13 objection to this interrogatory in its discovery response is identical to the remaining 14 interrogatories at issue, and, further, Defendant does not mention this interrogatory in its 15 portion of the joint motion, let alone expand on why it believes these subparts are not 16 related. See SolarCity Corp., 2018 WL 467898, at *3 (overruling boilerplate objections 17 based on the party’s failure to “offer any explanation or supporting legal authority in its 18 opposition”); Medina, 2014 WL 4793026, at *8 (only considering objections 19 “subsequently reasserted and relied upon” in the discovery motion). The Court notes that 20 Defendant separated its response by “are in compliance” and “ever have been in 21 compliance.” ECF No. 16-1 at 7–8. Asserting that these are not related is a strained 22 interpretation, at best. The Court finds that this distinction does not create discrete subparts 23 that should be treated as separate interrogatories. Additionally, the Court finds that this 24 interrogatory is essentially a “contention interrogatory,” and that Defendant needs to 25 address its contents in its defense of this case. See FED. R. CIV. P. 33(a)(2); Largan 26 Precision Co. v. Samsung Elecs. Co., No. 13cv2740-DMS-NLS, 2015 WL 11251730, at 27 *2 (S.D. Cal. May 5, 2015) (explaining that contention interrogatories are “not to obtain 28 1 facts, but rather to narrow the issues that will be addressed at trial and to enable the 2 propounding party to determine the proof required to rebut the respondent’s position”). 3 Therefore, Defendant’s objection is overruled. 4 In Interrogatory No. 11, Plaintiff requests: 5 Please identify all lawsuits to which Defendant is a party, whether filed in state or federal court, or DOJ enforcement actions that concern the ADA, 6 Unruh, or the DPA, and/or relate to Defendant’s Facilities and/or the Freestyle 7 machines.

8 ECF No. 16-2 at 13. In its responses to Plaintiff’s discovery requests, Defendant objects to 9 this request, stating that the subparts cause the number of interrogatories to exceed the limit 10 imposed by the Federal Rules. ECF No. 16-1 at 9. The Court notes that Defendant’s 11 objection to this interrogatory in its discovery response is identical to the remaining 12 interrogatories at issue, and, further, Defendant does not mention this interrogatory in its 13 portion of the joint motion, let alone expand on why it believes these subparts are not 14 related. See SolarCity Corp., 2018 WL 467898, at *3 (overruling boilerplate objections 15 based on the party’s failure to “offer any explanation or supporting legal authority in its 16 opposition”); Medina, 2014 WL 4793026, at *8 (only considering objections 17 “subsequently reasserted and relied upon” in the discovery motion). The Court notes that 18 Defendant separated its response into six subsections: (1) “lawsuits relating to the ADA, 19 Unruh, or DPA,” (2) “DOJ enforcement actions relating to the ADA, Unruh, or DPA,” (3) 20 “lawsuits relating to Defendant’s Facilities,” (4) “DOJ actions relating to Defendant’s 21 Facilities,” (5) “lawsuits relating to Freestyle machines,” and (6) “DOJ actions relating to 22 Freestyle machines.” ECF No. 16-1 at 9–10. The Court finds that the subparts relate to the 23 overall subject matter of the interrogatory, i.e., whether Defendant has faced lawsuits or 24 other enforcement action regarding its restaurants or use of the Freestyle machines. The 25 Court finds that distinctions between the statutes or the kind of action do not create discrete 26 subparts that should be treated as separate interrogatories. Therefore, Defendant’s 27 objection is overruled. 28 / / 1 iii. Summary 2 The purpose of the limit on interrogatories is to ensure that discovery is conducted 3 in an efficient manner. Defendant’s strategy defeats this purpose and unnecessarily 4 duplicates discovery. First, the Court disagrees that the interrogatories are compound; 5 second, if they are, the better course of action would have been for Defendant to notify 6 Plaintiff of that prior to its response and work out a reasonable compromise. 7 For the reasons set forth above, the Court overrules Defendant’s objections and 8 deems that Interrogatory Nos. 3, 4, 6, 8, and 11 count as one interrogatory each. Therefore, 9 the 25 interrogatory limit imposed by the Federal Rules has not been reached. As such, the 10 Court GRANTS Plaintiff’s motion to compel and ORDERS that Defendant respond to 11 Interrogatory Nos. 12–16 by May 8, 2020. 12 B. Whether “Defendant’s Facilities” Definition is Overly Broad, 13 Unduly Burdensome, or Irrelevant 14 Plaintiff seeks to compel responses to interrogatories and requests for production of 15 documents relating to “Defendant’s Facilities.” ECF No. 16 at 4. Plaintiff defines 16 “Defendant’s Facilities” as “the Jack In the Box branded restaurants owned or operated by 17 Defendant.” ECF No. 16-2 at 7. Defendant, instead, responded to many of Plaintiff’s 18 discovery requests with information solely related to the Oceanside location visited by 19 Plaintiff. See, e.g., ECF No. 16-1 at 4. In the joint motion for determination of discovery 20 dispute, Defendant does not substantively oppose Plaintiff’s request, and instead raises a 21 procedural argument. 22 The Court requires that the parties bring any discovery dispute to its attention no 23 later than 45 days after the date of service of the written discovery response that is in 24 dispute. Chmb.R. at 3. To bring the discovery dispute to the Court’s attention, the parties 25 must send a joint email to Chambers, requesting a telephonic discovery conference and 26 describing the dispute and each party’s position. Id. “No discovery motion may be filed 27 until the Court has conducted its pre-motion telephonic conference,” and “[f]ailure to meet 28 1 motion[,]” i.e., any topics not brought to the Court’s attention by the deadline are not 2 permitted in a discovery motion. Id. Here, Defendant contends that the dispute regarding 3 compelling responses to interrogatories and requests for production of documents relating 4 to “Defendant’s Facilities” was not raised in the parties’ email submission to the Court. 5 ECF No. 16 at 14. 6 However, pursuant to the Court’s chambers rules, the parties jointly emailed 7 Chambers to initiate the Court’s discovery dispute resolution process on February 19, 2020. 8 The email specifically mentions the same discovery disputes at issue in the instant motion. 9 The fourth issue was described as “whether Plaintiff’s definition of ‘Defendant’s Facilities’ 10 is proper and not overly broad and burdensome.” Email to Chambers, at 2 (Feb. 19, 2020). 11 In the email, Plaintiff contended that his definition of “Defendant’s Facilities” is proper, 12 not overly broad, and not unduly burdensome, while Defendant contended that Plaintiff 13 was improperly targeting restaurant locations that he never patronized. Id. Upon receipt 14 of the joint email, the Court scheduled a telephonic discovery conference for 15 February 24, 2020, and found that the issues presented in the email were ripe for motion 16 practice. ECF No. 15. Therefore, Defendant’s argument that this issue was not raised prior 17 to the joint motion is without merit. 18 Since Defendant’s procedural argument has been denied, the Court notes 19 Defendant’s failure to make any substantive arguments in opposition to Plaintiff’s request. 20 When ruling on a motion to compel, courts in this district “generally consider[ ] only those 21 objections that have been timely asserted in the initial response to the discovery request 22 and that are subsequently reasserted and relied upon in response to the motion to compel.” 23 SolarCity Corp., 2018 WL 467898, at *3 (quoting Medina, 2014 WL 4793026, at *8); 24 Sherwin-Williams Co. v. Earl Scheib of Cal., Inc., No. 12cv2646-JAH-JMA, 2013 WL 25 12073836, at *2 n.1 (S.D. Cal. Mar. 4, 2013) (deeming all objections raised in response to 26 the discovery requests but not addressed in the discovery motion to be moot or waived, 27 limiting its review to arguments presented in the parties’ briefs). 28 Even if the Court were to rule on Defendant’s objections raised solely in its 1 responses to Plaintiff’s discovery requests, they would be overruled. There, Defendant 2 objects “on the grounds that ‘Defendant’s Facilities’ as defined is grossly overly broad and 3 overly inclusive and thusly burdensome, seeking information that is not likely to result in 4 the discovery of admissible evidence. The burden is grossly disproportionate to the 5 probative value of any such information. Plaintiff lacks standing to target locations in 6 discovery that he has expressed no interest in patronizing and as to which he has not alleged 7 any violations.” See, e.g., ECF No. 16-1 at 4, 9, 31. 8 First, “boiler plate objections that a request for discovery is ‘overbroad and unduly 9 burdensome, and not reasonably calculated to lead to the discovery of material admissible 10 in evidence,’ [] are improper unless based on particularized facts.” Vietnam Veterans of 11 Am. v. CIA, No. C 09-37-CW-JL, 2010 U.S. Dist. LEXIS 143865, at *32 (N.D. Cal. Nov. 12 12, 2010) (internal quotations omitted); A. Farber & Ptnrs., Inc. v. Garber, 234 F.R.D. 13 186, 188 (C.D. Cal. 2006) (stating that “general or boilerplate objections such as ‘overly 14 burdensome …’ are improper—especially when a party fails to submit any evidentiary 15 declarations supporting such objections” and collecting cases with similar holdings); 16 accord Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358–59 (D. Md. 2008) 17 (collecting cases from multiple circuits). “Conclusory or speculative statements of harm, 18 inconvenience, or expense are plainly insufficient.” Nationstar Mortg., LLC v. Flamingo 19 Trails No. 7 Landscape Maint. Ass’n, 316 F.R.D. 327, 334 (D. Nev. 2016). The Court finds 20 that Defendant has failed to make a sufficient showing to support its objections based on 21 burden or overbreadth. 22 Second, the Court finds that the information sought by Plaintiff is relevant. When 23 analyzing relevance, Rule 26(b) no longer limits discovery to information “reasonably 24 calculated to lead to the discovery of admissible evidence.” In Re Bard IVC Filters Prods. 25 Liab. Litig., 317 F.R.D. 562, 563–64, 564 n.1 (D. Ariz. 2016) (discussing the 2015 26 amendments to the Federal Rules of Civil Procedure and the advisory committee’s explicit 27 removal of the phrase “reasonably calculated,” and listing cases that continue to use the 28 outdated pre-2015 standard). The relevance standard is commonly recognized as one that 1 is necessarily broad in scope in order “to encompass any matter that bears on, or that 2 reasonably could lead to other matter[s] that could bear on, any issue that is or may be in 3 the case.” Doherty v. Comenity Capital Bank, No. 16cv1321-H-BGS, 2017 WL 1885677, 4 at *2 (S.D. Cal. May 9, 2017) (internal quotation omitted). Courts have broad discretion to 5 determine relevance for discovery purposes. Id. (citing Hallett, 296 F.3d at 751); see also 6 Youngevity Int’l, Inc. v. Smith, No. 16cv704-BTM-JLB, 2017 WL 2692928, at *3 (S.D. 7 Cal. June 22, 2017). 8 This action was brought as a class action, and Plaintiff needs to obtain discovery on 9 whether Defendant’s restaurants are governed by common policies and practices. See, e.g., 10 ECF No. 1 at ¶ 78 (bringing case as a putative class action on behalf of himself and other 11 individuals who have visited any of Defendant’s restaurants, not solely the restaurant 12 Plaintiff visited); id. at ¶ 45 (alleging that “Defendant has no policies or procedures in place 13 at its Restaurants requiring its employees to affirmatively offer and provide assistance with 14 the Freestyle to individuals with visual disabilities”); id. at ¶ 74 (alleging that “Defendant 15 has centralized policies regarding the management and operation of its Restaurants. 16 Despite this, Defendant does not have a plan or policy that is reasonably calculated to cause 17 its facilities to be in compliance with the ADA”); see also Gutierrez v. Johnson & Johnson, 18 Inc., No. CIV.A. 01-5302 WHW, 2002 WL 34717245, at *4 (D.N.J. Aug. 13, 2002) (“The 19 relevant issue for many Courts in considering whether to allow company-wide or otherwise 20 expanded discovery is the extent to which the case involves a common [] policy or 21 practice”). 22 Further, the Ninth Circuit has explained that “‘the better and more advisable practice 23 for a District Court to follow is to afford the litigants an opportunity to present evidence as 24 to whether a class action was maintainable.’” Vinole v. Countrywide Home Loans, Inc., 25 571 F.3d 935, 942, (9th Cir. 2009) (quoting Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 26 1313 (9th Cir. 1977)). As such, the Court finds that information regarding “Defendant’s 27 Facilities” is relevant here and GRANTS Plaintiff’s motion to compel. See, e.g., Brum v. 28 MarketSource, Inc., No. 17cv241-JAM-EFB, 2018 WL 3861558, at *3, *5–*6 (E.D. Cal. 1 Aug. 14, 2018) (requiring the defendant, in a putative wage-and-hour class action, to 2 produce a 30% sampling of state-wide discovery, including stores in which the plaintiff 3 did not work, including over 2100 employees’ wage statements, because the plaintiff 4 sought “information relevant to numerosity, commonality, and typicality, which plaintiffs 5 must establish to certify the proposed class and subclass”); Putnam v. Eli Lilly & Co., 508 6 F. Supp. 2d 812, 814 (E.D. Cal. Aug. 23, 2007) (requiring the defendant, in a putative 7 wage-and-hour class action, to provide discovery regarding putative class members who 8 worked in a sales division other than the plaintiff’s own, deeming that contacting 9 individuals from other sales divisions “could well be useful for plaintiff to determine, at a 10 minimum, the commonality and typicality prongs of Rule 23”); Gutierrez, 2002 WL 11 34717245, at *5 (denying defendant’s request to only provide discovery regarding 12 companies where plaintiffs worked, in a putative employment discrimination class action, 13 because “[p]ermitting a broader range of discovery, as advocated by plaintiffs, will present 14 a more complete and reliable picture of the effects of [defendant]’s practices. . . . Moreover, 15 all parties will benefit from a broad examination of the data. First and foremost, the Court, 16 when asked to rule on class certification, will have the necessary data before it to determine 17 if the requirements of Fed. R. Civ. P. 23(a) are met”). The Court ORDERS that Defendant 18 respond to Plaintiff’s discovery requests regarding “Defendant’s Facilities” by 19 May 8, 2020. 20 C. Whether Plaintiff should be Compelled to Submit to an IME 21 Defendant asserts that good cause exists for the Court to issue an order compelling 22 Plaintiff to submit to an ophthalmologic IME. ECF No. 16 at 8–12. Plaintiff opposes 23 Defendant’s request, arguing that Plaintiff’s disability is not in controversy. Id. at 5–7. 24 i. Legal Standard 25 Federal Rule of Civil Procedure 35 provides that a Court “may order a party whose 26 mental or physical condition . . . is in controversy to submit to a physical or mental 27 examination by a suitably licensed or certified examiner.” FED. R. CIV. P. 35(a)(1). For the 28 1 controversy” and there must be “good cause” for the examination. See Schlagenhauf v. 2 Holder, 379 U.S. 104, 118–19 (1964) (explaining that the court must decide “whether the 3 party requesting a mental or physical examination or examinations has adequately 4 demonstrated the existence of the Rule’s requirements of ‘in controversy’ and ‘good 5 cause[]’”); FED. R. CIV. P. 35(a)(2)(A). “Like other rules of discovery, Rule 35 should be 6 ‘construed liberally in favor of examination, but the Court must balance the right of the 7 party to be examined to avoid personal invasion against the moving party’s right to a fair 8 trial.’” Ashby v. Mortimer, 329 F.R.D. 650, 653 (D. Idaho 2019) (quoting Does I-XIX v. 9 Boy Scouts of Am., No. 13cv275-BLW, 2017 WL 4226401, at *1 (D. Idaho Sept. 22, 10 2017)). 11 As the movant, Defendant bears the burden of showing that Plaintiff’s disability is 12 “in controversy” and that “good cause” supports the request. See, e.g., Schlagenhauf, 379 13 U.S. at 118 (explaining that the “in controversy” and “good cause” requirements of Rule 14 35 “are not met by mere conclusory allegations—nor by mere relevance to the case—but 15 require an affirmative showing by the movant”); Mendoza v. City of Peoria, No. 13cv258- 16 PHX-NVW, 2013 WL 5705365, at *2 (D. Ariz. Oct. 21, 2013) (“The burden is on the 17 moving party to show that a person’s medical condition is in controversy and good cause 18 exists for a mental or physical examination”); Kob v. County of Marin, No. C-07-2211-JL, 19 2009 WL 3706820, at *1 (N.D. Cal. Nov. 3, 2009) (“It is the moving party’s burden to 20 provide enough information for the court to find that the condition for which the 21 examination is sought is ‘in controversy’ and that there is ‘good cause’ for the exam”). 22 The “in controversy” and “good cause” requirements of Rule 35 are “necessarily 23 related.” Schlagenhauf, 379 U.S. at 118–19. “A plaintiff’s physical condition is ‘in 24 controversy’ when the condition is a subject of the litigation.” Nava v. City of Shafter, No. 25 12cv10-AWI-JLT, 2013 WL 5278890, at *2–*3 (E.D. Cal. Sept. 17, 2013); see, e.g., 26 Franco v. Boston Sci. Corp., No. 05cv1774-RS, 2006 WL 3065580, at *1 (N.D. Cal. Oct. 27 27, 2006). To establish that “good cause” exists for the IME, “the moving party generally 28 must offer specific facts showing the examination is necessary and relevant to the case.” 1 Nguyen v. Qualcomm Inc., No. 09cv1925-MMA-WVG, 2013 WL 3353840, at *8–*12 2 (S.D. Cal. July 3, 2013); Franco, 2006 WL 3065580, at *1–*2. “Factors that courts have 3 considered include, but are not limited to, the possibility of obtaining desired information 4 by other means, whether plaintiff plans to prove her claim through testimony of expert 5 witnesses, whether the desired materials are relevant. . .” Franco, 2006 WL 3065580, at 6 *1; see, e.g., Hanna v. Fresno County, No. 14cv142-LJO-SKO, 2015 WL 7458691, at *3 7 (E.D. Cal. Nov. 24, 2015); Juarez v. Autozone Stores, Inc., No. 08cv417-L-BLM, 2011 8 WL 1532070, at *1 (S.D. Cal. Apr. 21, 2011). However, a finding that the examination 9 would yield relevant information is not enough, on its own, to establish good cause. 10 Schlagenhauf, 379 U.S. at 118 (“The specific requirement of good cause would be 11 meaningless if good cause could be sufficiently established by merely showing that the 12 desired materials are relevant, for the relevancy standard has already been imposed by Rule 13 26(b). Thus, by adding the words [‘]good cause[,’] the Rules indicate that there must be 14 greater showing of need under Rules 34 and 35 than under the other discovery rules”). 15 “Granting or denying a motion for a physical examination ‘rests in the sound 16 discretion of the trial court.’” Ashby, 329 F.R.D. at 653 (quoting Coca-Cola Bottling Co. 17 of Puerto Rico v. Negron Torres, 255 F.2d 149, 153 (1st Cir. 1958)); see, e.g., Nguyen, 18 2013 WL 3353840, at *4 (“Regardless of whether the ‘good cause’ requirement is met, it 19 is within the Court’s discretion to determine whether to order an examination”); Storlie v. 20 State Farm Mut. Auto. Ins. Co., No. 09cv2205-GMN-PAL, 2010 WL 3488982, at *4 (D. 21 Nev. Aug. 25, 2010) (“even if the moving party establishes both elements, it is still within 22 the sound discretion of the trial court to determine whether to order the examination”); 23 Williams v. Troehler, No. 08cv1523-OWW-DLB, 2010 WL 121104, at *4 (E.D. Cal. Jan. 24 7, 2010) (“Even if good cause is shown, it is still within the court’s discretion to determine 25 whether to order an examination”); Gattegno v. Pricewaterhousecoopers, LLP, 204 F.R.D. 26 228, 230 (D. Conn. 2001) (“The decision as to whether such showing was made, and thus 27 that an examination is warranted, ultimately lies in the sound discretion of the trial court”). 28 / / 1 ii. Plaintiff’s Disability is not in Controversy 2 Defendant contends that Plaintiff’s disability is in controversy. Defendant notes that, 3 in his complaint, Plaintiff “alleges that because of his disability he was not provided full 4 and equal access” and also “asserts that he plans on returning” to Defendant’s restaurant. 5 ECF No. 16 at 11 (emphasis added). According to Defendant, this “plac[es] [Plaintiff’s] 6 current physical state at issue.” Id. Though Defendant bears the burden to prove that 7 Plaintiff’s disability is in controversy, Defendant did not cite any authority to support its 8 position. 9 As defined by the Americans with Disabilities Act (“ADA”), disability is “(A) a 10 physical or mental impairment that substantially limits one or more major life activities of 11 such individual; (B) a record of such an impairment; or (C) being regarded as having such 12 an impairment.” 42 U.S.C. § 12102(1). The ADA Amendments Act of 2008 “substantially 13 reworked the language of Section 12102,” the section which defines disability. Hilton v. 14 Wright, 673 F.3d 120, 128, (2d Cir. 2012). There, Congress added an entire paragraph 15 defining the “regarded as” prong. Compare 104 Stat. 327, 330 at § 3(2) (1990) with 122 16 Stat. 3553, 3555 at § 4(a) (2008) (amending section 3 of the ADA). Now, “[a]n individual 17 meets the requirement of ‘being regarded as having such an impairment’ if the individual 18 establishes that he or she has been subjected to an action prohibited under this Act because 19 of an actual or perceived physical or mental impairment whether or not the impairment 20 limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A) (emphasis 21 added). Further, Congress instructed that the definition of disability “shall be construed in 22 favor of broad coverage of individuals under this Act[.]” 42 U.S.C. § 12102(4)(A). 23 In his complaint, Plaintiff alleges this he “is self-evidently blind, in that he requires 24 the use of a white cane, and was obviously visibly impaired during each visit he made to 25 the Oceanside Location.” ECF No. 1 at ¶ 51. Plaintiff brings this putative class action “on 26 behalf of himself and all individuals who have an obvious visual disability (e.g., use a white 27 cane or guide dog) . . .” Id. at ¶ 78. Using the “regarded as” definition of disability, Plaintiff 28 could prosecute his case without ever having to allege that he was totally blind and instead 1 rely on the fact that he was regarded as disabled because he carried a white cane. 2 Therefore, Defendant has not met its burden to prove that Plaintiff’s disability is in 3 controversy. 4 iii. Defendant did not Show Good Cause for an IME 5 Defendant contends that there is good cause to compel Plaintiff to submit to an IME 6 because (1) the results of the IME would weigh heavily on Plaintiff’s ability to maintain 7 standing, and (2) no comparable means exists to obtain the specifics of Plaintiff’s visual 8 limitations. ECF No. 16 at 11–12. 9 First, Defendant argues that, “[i]f Plaintiff can use the machines independently, his 10 entire case falls apart.” Id. at 9. The Court disagrees. The Court notes that, in the 11 employment discrimination context, employers have “no duty to provide reasonable 12 accommodation to an employee who fits the statutory definition of ‘disabled’ by virtue of 13 a history of disability or being regarded as disabled, but has no actual disability.” Marrazzo 14 v. Leavitt, 719 F. Supp. 2d 1297, 1306 (D. Or. 2010); see e.g., Walker v. Venetian Casino 15 Resort, LLC, 2012 WL 4794149, at *14–*15 (D. Nev. Oct. 9, 2012). “This makes sense 16 because a person who is only perceived to be disabled, but not actually disabled, would not 17 need any accommodation to enable her to fulfill her job duties.” Poole v. Centennial Imps., 18 Inc., No. 12cv647-APG-VCF, 2014 WL 2090810, at *4 (D. Nev. May 19, 2014). However, 19 this does not extend to the equal access to public accommodations context. See 29 C.F.R. 20 § 1630.2(g)(2)–(3) (in these cases [which do not challenge an employer’s failure to make 21 reasonable accommodations], the evaluation of coverage can be made solely under the 22 ‘regarded as’ prong of the definition of disability, which does not require a showing of an 23

24 25 2 To be clear, this order does not pass judgment on whether Plaintiff will prevail in this action based on a “regarded as” definition of disability. Instead, the Court points out 26 Defendant’s failure to address the use of the “regarded as” prong in this case. In requesting 27 an IME, Defendant holds the burden to provide the Court with enough information to find that Plaintiff’s disability is, in fact, in controversy. See Schlagenhauf, 379 U.S. at 118; 28 1 impairment that substantially limits a major life activity or a record of such an 2 impairment”); see, e.g., Lovely H. v. Eggleston, 235 F.R.D. 248, 254–58, 263 (S.D.N.Y. 3 2006) (certifying a sub-class within the main class of recipients of public assistance who 4 “(a) have a physical or mental impairment that substantially limits one or more major life 5 activities within the meaning of the Americans with Disabilities Act of 1990, (b) have a 6 record of such an impairment, or (c) are regarded as having such an impairment” in a case 7 involving allegations that transferring assistance to three hub centers in lieu of the 29 8 neighborhood offices makes them inaccessible places of public accommodation, in 9 violation of the ADA) (emphasis added). 10 Defendant also cites Harris v. Del Taco for the proposition that “Plaintiff must allege 11 that he suffered a particularized and concrete injury that affects him in a personal and 12 individual way.” ECF No. 16 at 11 (citing Harris v. Del Taco #342, No. CV04-730-DOC- 13 MLGx, 2004 WL 3744291, at *2 (E.D. Cal. Sept. 13, 2004)). Though a correct reference, 14 Harris is not analogous to the instant case.3 There, the wheelchair-using plaintiff alleged 15 that the defendant violated the ADA by denying him access the restaurant, and he claimed 16 he was deterred from visiting again because he knew that other disabled people would also 17 not enjoy full access. Harris, 2004 WL 3744291, at *1. In considering the defendant’s 18 motion to dismiss the complaint for lack of standing, the court held that the plaintiff 19 established the requisite injury in fact with respect to the ADA violations which would 20 impede his access, but he had not established an injury in fact with regard to violations not 21 related to his disability of limited mobility, such as that the “public telephone has no 22 volume control” and “restroom door [was] not identified in Braille[.]” Id. at *2–*3. Here, 23 Plaintiff is not alleging violations completely unrelated to his own visual disability such as 24 for those with hearing loss, as in Harris. Instead, here, Plaintiff is alleging that he is visually 25 disabled, uses a white cane, and was not given assistance in operating the Freestyle 26

27 28 3 The Court also notes that this case pre-dates the 2008 amendments to the ADA. 1 machine. ECF No. 1 at ¶¶ 51, 56, 57, 78. Defendant has not met its burden to prove why 2 finding out whether Plaintiff is totally blind impacts his ability to maintain standing and 3 thus requires an IME.4 Compare ECF No. 16 at 11 (“While there may be little basis at this 4 time for disputing that Plaintiff has significant or even total loss of vision in the center 5 portion of his eyes, Plaintiff has offered no evidence of complete lack of vision – total 6 blindness) with 42 U.S.C. § 12102(3)(A) (“An individual meets the requirement of ‘being 7 regarded as having such an impairment’ if the individual establishes that he [] has been 8 subjected to an action prohibited under this Act because of an actual or perceived physical 9 or mental impairment whether or not the impairment limits or is perceived to limit a major 10 life activity”); see, e.g., Boyer v. Five Guys Enters., LLC, No. 15cv1417-L-JLB, 2018 WL 11 4680007, at *3–*4 (S.D. Cal. Sept. 28, 2018) (denying defendant’s motion for summary 12 judgment where it asserted that plaintiff did not have standing, and noting that “[i]t is 13 undisputed that Plaintiff uses a white cane. [] His blindness was therefore apparent. He 14 cannot use the visual interface of the Freestyle machine like the non-visually impaired 15 customers”). 16 Second, Defendant contends that no comparable means exists to obtain the specifics 17 of Plaintiff’s visual limitations, because medical records and relying on Plaintiff’s 18 testimony is insufficient. ECF No. 16 at 12. The Court disagrees. As discussed above, 19 Defendant has not met its burden to show why evidence of complete blindness is 20 imperative, especially given the “regarded as” prong which was expanded by the 2008 21 amendments to the ADA. See Schlagenhauf, 379 U.S. at 118–19 (explaining that the “in 22 controversy” and “good cause” requirements of Rule 35 “are necessarily related”). The 23 Court finds that medical records, expert testimony, and Plaintiff’s deposition testimony are 24 sufficient in this case, and that an IME would be unduly invasive, especially given the 25

26 27 4 To be clear, the Court is not passing judgment on whether Plaintiff has standing in this case. The Court is instead noting that Defendant failed to meet its burden in explaining 28 1 security video showing that Plaintiff used a while cane during his visits. See Hanna, 2015 2 WL 7458691, at *3 (“A court must balance the unnecessary invasion of privacy against the 3 compelling party’s right to a fair trial”). 4 Therefore, even if Defendant had met its burden to prove that Plaintiff’s disability is 5 in controversy, the Court finds that good cause does not exist for an IME. Schlagenhauf, 6 379 U.S. at 121 (“physical examinations are only to be ordered upon a discriminating 7 application by the [] judge of the limitations prescribed by [] Rule [35]”). 8 iv. Summary 9 Because Defendant did not meet its burden to show that Plaintiff’s disability is in 10 controversy and that good cause exists, Defendant’s motion to compel is DENIED. 11 D. Additional Considerations 12 Defendant’s portion of the joint motion is replete with unnecessary and disparaging 13 comments about Plaintiff—including statements like: “Plaintiff decided to improve on the 14 system of numbering[;]” “Was plaintiff testing the definition of insanity, stacking damages, 15 or exaggerating with respect to 72 visits?” and “Plaintiff’s view would be more informed 16 were discovery governed by the ‘Federal Suggestions of Civil Procedure.’” See ECF No. 17 16 at 8 n.2, 12:18, 14:1–4 (emphasis in original). The Court points Defendant’s counsel to 18 the Code of Conduct that governs attorney practice in this district, see CivLR 2.1, and 19 reminds all counsel that they are expected to abide by this Code of Conduct and treat 20 opposing parties with civility and respect. 21 IV. CONCLUSION 22 For the reasons set forth above, the Court orders as follows: 23 1. Plaintiff’s motion to compel Defendant’s responses to Interrogatory Nos. 24 12–16 is GRANTED. Defendant shall serve supplemental discovery 25 responses consistent with this Order no later than May 8, 2020; 26 2. Plaintiff’s motion to compel Defendant’s responses to its discovery requests 27 regarding “Defendant’s Facilities” is GRANTED. Defendant shall serve 28 1 supplemental discovery responses consistent with this Order no later than 2 May 8, 2020; and 3 3. Defendant’s motion to compel Plaintiff to submit to an Ophthalmologic IME 4 is DENIED. 5 6 IT IS SO ORDERED. 7 ||Dated: April 23, 2020 JpwornH. Xho Honorable Allison H. Goddard 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28