Trevino v. Golden State FC LLC

• Court: District Court, E.D. California
• Decided: August 19, 2019
• Docket: 1:18-cv-00120
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN TREVINO, CHRISTOPHER Lead Case No: 1:18-cv-00120-DAD-BAM WARD, LINDA QUINTEROS, ROMEO 12 PALMA, BRITTANY HAGMAN, Member Case: 1:18-cv-00121-DAD-BAM ALBERTO GIANNINI and JUAN C. Member Case: 1:18-cv-00567-DAD-BAM 13 AVALOS, on behalf of themselves and all Member Case: 1:18-cv-01176-DAD-BAM 14 others similarly situated, Member Case: 1:17-cv-01300-DAD-BAM

15 Plaintiffs, ORDER GRANTING IN PART AND 16 v. DENYING IN PART DEFENDANTS’ MOTION FOR ORDER COMPELLING 17 GOLDEN STATE FC LLC, a Delaware PLAINTIFFS TO PRODUCE DOCUMENTS Limited Liability Company; 18 AMAZON.COM, INC., a Delaware Corporation, AMAZON FULFILLMENT (Doc. No. 76) 19 CENTERS, INC., a Delaware Corporation, 20 and Does 1 through 10, inclusive, 21 Defendants. 22 23 Currently before the Court is the motion of Defendants Golden State FC LLC (now 24 known as Amazon.com Services, Inc.), Amazon.com, Inc. and Amazon Fulfillment Services, Inc. 25 (now known as Amazon.com Services, Inc.) (collectively “Defendants”) to compel Plaintiffs Juan 26 Trevino, Christopher Ward, Linda Quinteros, Romeo Palma, Brittany Hagman, Alberto Giannini 27 and Juan C. Avalos (“Plaintiffs”) to produce documents responsive to the following Requests for 28 Production (“RFPs”): (1) Nos. 21, 22, 23, 24, and 41 (Plaintiffs Avalos, Gianini, and Hagman); 1 (2) Nos. 33, 34, 35, 36, and 36 (Plaintiff Palma); (3) Nos. 44, 45, 46, 47, and 48 (Plaintiff 2 Trevino); and (4) Nos. 47, 48, 49, 50, and 51 (Plaintiffs Quinteros and Ward). (Doc. No. 76.) On 3 August 9, 2019, the parties filed a Joint Statement Re: Discovery Disagreement pursuant to Local 4 Rule 251. (Doc. No. 78.) The Court deemed the matter suitable for determination without 5 hearing, vacated the hearing set for August 16, 2019, and deemed the matter submitted upon the 6 records and joint statement pursuant to Local Rule 230(g). (Doc. No. 80.) 7 Having considered the record and joint statement, Defendants’ motion to compel is 8 GRANTED IN PART and DENIED IN PART. 9 I. BACKGROUND 10 This matter is a consolidated action comprised of five wage and hour lawsuits originally 11 filed in the Central and Eastern Districts of California. On March 28, 2019, Plaintiffs filed a First 12 Amended Consolidated Class Action Complaint (the “Complaint”) alleging the following wage 13 and hour violations: (1) failure to pay wages for all hours worked, (2) failure to pay overtime, (3) 14 meal period violations, (4) rest period violations, (5) wage statement violations, (6) failure to pay 15 waiting time wages under Labor Code § 203, and (7) violations of the California Business and 16 Professions Code. (Doc. No. 65.) The proposed class is defined as follows:

17 All individuals employed by Defendant at any time during the period of four (4) years prior [to] July 12, 2017 and ending on the date of certification or as 18 otherwise determined by the Court (“the Class Period”) who have been employed by Defendants as non-exempt employees in California. 19

20 (Id. at ¶ 21.) 21 Relevant here, the Complaint alleges that “Defendants uniformly and consistently failed to 22 authorize and permit Plaintiff and the Class members to take timely, uninterrupted, net ten- 23 minute, duty-free rest periods.” (Id. at ¶ 51.) The Complaint further alleges that “Plaintiffs and 24 Class Members never took a third ten-minute rest breaks when they worked over 10 hours in a 25 work shift.” (Id. at ¶ 48.) Finally, the Complaint alleges that Amazon “required [Plaintiffs] to 26 walk to remote break room locations during rest breaks, during which time they were under 27 Amazon’s control and not receiving a duty-free, net 10-minute rest period.” (Id. at ¶ 49.) 28 On May 17, 2019, Defendants propounded Requests for Production (“Requests”) on each 1 Plaintiff. (Doc. No. 78-1, Declaration of Katherine V.A. Smith (“Smith Decl.”) ¶¶ 2–4, Exs. A– 2 G.) These requests seek, among other items, discovery on allegations in the complaint, and 3 included Requests 21–24,1 which ask for electronic records that evidence any telephone calls, text 4 messages, e-mails, and social media activity by Plaintiffs that occurred during any shifts while 5 employed by Amazon. (Id. at ¶ 4–7, Ex. H at RFPs 21–24.) In consideration of Plaintiffs’ privacy 6 interests, each Request provided that Plaintiffs “may redact, for the purpose of privacy” phone 7 numbers, email addresses, and substantive content of these documents.” (Id. at ¶ 5, Ex. H at RFPs 8 21–24.) 9 In addition, the Requests also seek all non-privileged documents with any attorneys 10 regarding “the allegations set forth in the Complaint that YOU or anyone acting on YOUR behalf 11 had with any attorney(s) before the attorney client relationship was formed.” (Id. ¶ 4, Ex. H at 12 RFP No. 41.)2 Plaintiffs Avalos, Gianini, Hagman, Palma, and Trevino served objection-only 13 responses to this Request. Id. 14 On July 26, 2019, Defendants filed the instant motion to compel.3 (Doc. No. 76.) On 15 August 9, 2019, the parties filed a Joint Statement Re: Discovery Disagreement, which totaled 16 more than 300 pages inclusive of exhibits. (Doc. No. 78.) The discovery disagreement concerns

17 1 Although identical requests were submitted to each of the Plaintiffs, not every request has the same number. (Doc. No. 78 at 3 n.1.) For convenience and simplicity, the Request numbers 18 in this Order correspond to the Requests served on Plaintiff Juan C. Avalos. However, the 19 corresponding Request numbers for each Plaintiff are as follows: (a) Plaintiffs Avalos, Gianini, and Hagman: Requests 21–24; (b) Plaintiff Palma: Requests 33–36; (c) Plaintiff Trevino: 20 Requests 44–47; and (d) Plaintiffs Quinteros and Ward: Requests 47–50. (Doc. 78-1, Smith Decl. at ¶ 4.) 21 2 As indicated above, the Request number corresponds to the Requests served on Plaintiff 22 Avalos. The corresponding Request number for each Plaintiff is as follows: (a) Plaintiffs Avalos, 23 Gianini, and Hagman: Request 41; (b) Plaintiff Palma: Request 37; and (c) Plaintiff Trevino: Request 48. (Doc. 78-1, Smith Decl. at ¶ 4.) Defendants are not moving to compel further 24 responses from Plaintiffs Quinteros and Ward because they substantively responded to their corresponding request. (Doc. No. 78 at 3 n.2.) 25

3 Defendants also have filed a Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), 26 which is currently pending before District Judge Dale A. Drozd. (Doc. No. 72.) The ruling on 27 the instant motion to compel is unrelated to the motion to transfer venue and should not be considered by the parties as an indication or suggestion as to the District Court’s intended ruling 28 on the transfer motion. 1 two primary issues: (1) whether Requests 21–24 seek discovery that is (i) irrelevant, (ii) not 2 narrowly tailored, and/or (iii) unduly burdensome, such that Plaintiffs should not be required to 3 respond and produce responsive documents; and (2) whether Rule 26(b) requires Plaintiffs to 4 provide a substantive response to Request 41. (Id. at 3.) 5 The deadline to complete non-expert discovery is September 30, 2019. (Doc. No. 69.) 6 II. DISCUSSION 7 A. Legal Standard 8 Pursuant to Federal Rule of Civil Procedure 26(b), the scope of discovery is as follows:

9 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, 10 considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ 11 resources, the importance of the discovery in resolving the issue, and whether the burden or expense of the proposed discovery outweighs its likely benefit. 12 13 Fed. R. Civ. P. 26(b)(1). Information within the scope of discovery need not be admissible in 14 evidence to be discoverable. Id. However, the court must limit the extent of discovery if it 15 determines that (1) the discovery sought is unreasonably cumulative, duplicative or can be 16 obtained from other source that is more convenient, less burdensome, or less expensive, (2) the 17 party seeking discovery has had ample opportunity to obtain the information by discovery, or (3) 18 the proposed discovery is outside the permissible scope. Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). 19 A party may serve on any other party a request within the scope of Rule 26(b) to produce 20 and permit the requesting party or its representative to inspect, copy, test, or sample the following 21 items in the responding party’s possession, custody or control: any designated documents or 22 tangible things. Fed. R. Civ. P. 34(a)(1). “For each item or category, the response must either 23 state that inspection and related activities will be permitted as requested or state with specificity 24 the grounds for objecting to the request, including the reasons.” Id. at 34(b)(2)(B). The 25 responding party is responsible for production of all documents in “the responding party’s 26 possession, custody, or control.” Id. at 34(a)(1). “[A]ctual possession of the documents is not 27 required.” Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995). Rather, “[a] party 28 may be ordered to produce a document in the possession of a non-party entity if that party has a 1 legal right to obtain the document or has control over the entity who is in possession of the 2 document.” Id. 3 B. Defendants’ Motion to Compel Production 4 Requests for Production Nos. 21-24 5 Defendants served the following identical requests on all Plaintiffs:

6 RFP 21: All DOCUMENTS that evidence any telephone calls YOU initiated or accepted during any WORKING DAY while employed by and and/or all 7 DEFENDANTS during YOUR EMPLOYMENT PERIOD, including, but not limited to, mobile phone call records, service charge statements/bills, and usage 8 summaries. (For purposes of this Request only, YOU may redact, for the purpose of privacy, the telephone numbers identified in any such DOCUMENTS.) 9 RFP 22: All DOCUMENTS that evidence any electronic mail sent by YOU 10 during any WORKING DAY while employed by and and/or all DEFENDANTS during YOUR EMPLOYMENT PERIOD. (For purposes of this Request only, 11 YOU may redact, for the purpose of privacy, the content, subject line, and recipient(s) identified for any such DOCUMENTS.) 12 RFP 23: All DOCUMENTS that evidence any text messages, including, but not 13 limited to, messages sent via iMessage, Facebook Messenger, WhatsApp, Telegram, Skype, Signal, Snapchat, Tango, Google Allo, or any other SMS, 14 MMS, RCS, or similar messaging application, sent by YOU during any WORKING DAY while employed by and and/or all DEFENDANTS during 15 YOUR EMPLOYMENT PERIOD. (For purposes of this Request only, YOU may redact, for the purpose of privacy, the content, subject line, and recipient(s) 16 identified for any such DOCUMENTS.)

17 RFP 24: All DOCUMENTS that evidence social media posts, activity, or messages, including, but not limited to, posts, activity, or messages posted, 18 forwarded, liked, favorited, retweeted, pinned, commented on, or shared by you on Facebook, Instagram, Tumblr, Twitter, Google+, YouTube, WeChat, Reddit, 19 Pinterest, LinkedIn, or any other social media site during any WORKING DAY while employed by any and/or all DEFENDANTS during YOUR 20 EMPLOYMENT PERIOD. (For purposes of this Request only, YOU may redact, for the purpose of privacy, the content, subject matter, and recipient(s), of any 21 such DOCUMENTS.) 22 Responses to Requests for Production Nos. 21-24 23 Plaintiffs objected to these requests as follows: 24 Plaintiffs Avalos, Gianini, Hagman, and Palma’s Objections to Requests 21–24

25 Objections: vague, ambiguous, overly broad, unduly burdensome, privacy rights, neither relevant nor reasonably calculated to lead to the discovery of admissible 26 evidence. 27 Plaintiff Trevino’s Objections to Requests 21–24

28 Objections: Vague, Ambiguous, Overly Broad, Unduly Burdensome, Privilege, 1 Privacy, Relevance. This request is not reasonably calculated to lead to the discovery of admissible evidence. 2 Plaintiffs Quinteros and Ward’s Objections to Requests 21–24 3 Plaintiff objects to this request on the grounds that it is overbroad, unduly 4 burdensome, oppressive, vague, and ambiguous, as any number of documents could be responsive. This request is further objectionable to the extent it seeks 5 information that is neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. This 6 request also fails to reasonably particularize each item or category sought to be produced or inspected. This request is also calls for speculation, calls for a legal 7 conclusion as to the meaning of its terms, and is compound.

8 Plaintiff further objects to this request in that it invades Plaintiff’s right to privacy, as well as the privacy rights of third parties under either the California and/or the 9 United States Constitution. Plaintiff also objects to this request on the grounds that it seeks information and documents protected by the attorney-client privilege 10 and/or work-product doctrine. A party need not, under Rule 34, produce privileged or attorney work product material. See Fed. R. Civ. P. 34(a); Fed. R. 11 Civ. P. 26(b)(1); Fed. R. Civ. P. 26(b)(3), Code of Civil Procedure § 2018.010, et seq. Plaintiff further objects to this request to the extent it seeks disclosure of 12 documents protected by the joint defense privilege, the common interest privilege, or similar privileges; and/or protected by any other applicable privilege, doctrine, 13 or immunity.

14 Plaintiff further objects to this request to the extent the requested documents are available to Defendants in their own files or are otherwise in Defendants’ 15 possession, custody or control or are readily available to Defendants through their own reasonable search and investigation. Plaintiff also objects to this request to 16 the extent it purports to impose on Plaintiff a burden of identifying documents or providing Defendants with information which are not in Plaintiff’s possession, 17 custody, or control or which cannot be found in the course of a reasonable search. This request calls for information which is available to all parties equally or only 18 to Defendants, and is therefore oppressive and burdensome to Plaintiff in that the sought material is unreasonably cumulative or duplicative, or is more readily 19 obtainable from some other source, including Defendants’ own files and publicly available materials, and the party seeking the information has had ample 20 opportunity to obtain it or already does and has not produced it in response to Plaintiff’s relevant discovery requests. See Fed. R. Civ. P. 26(b)(2). 21 Plaintiff further objects to the subject request to the extent that it is vague, 22 ambiguous, misleading, uncertain, and unintelligible and/or fails to specifically describe the information sought. The request is overly broad and requires 23 production of documents that are completely irrelevant to the claims and defenses in this action, and seeks to intrude upon Plaintiff’s confidential and personal daily 24 activities and transactions. As such, the Request is objectionable to the extent it seeks confidential or personal or business information of Plaintiff and infringes 25 upon Plaintiff’s Constitutional right to privacy. The request is therefore over- broad and unduly burdensome under Rule 26(b)(1), including because it is not 26 likely to lead to discovery of any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the 27 importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the 28 importance of the discovery in resolving the issues, and whether the burden or 1 expense of the proposed discovery outweighs its likely benefit, which it does not here. 2 Summary of Defendants’ Position 3 Defendants generally contend that Requests 21-24 are relevant to the allegations that 4 Plaintiffs were repeatedly deprived of, or failed to take, statutorily required rest and meal break 5 periods. Defendants assert that records of Plaintiffs’ activities on their personal phones (such as 6 email, text messaging, social media activity, and phone calls) could establish the amount of time 7 they spent on personal communications on break after passing through security because 8 Amazon’s hourly associates are generally required to keep their personal phones in lockers or in 9 their cars on the external side of the security screening. (Id. at 7-8; see also Doc. No. 78-1, Smith 10 Decl. at ¶ 5.) Defendants also assert that these records are highly probative with respect to 11 Plaintiffs’ rest break claims because Plaintiffs do not clock in or out for rest breaks. (Doc. No. 12 78-1, Smith Decl. at ¶ 5.) In sum, Defendants contend that Requests 21–24 seek documentary 13 evidence solely in Plaintiffs’ possession that will help to establish, with contemporaneously 14 created records: (1) how long it may have taken each individual Plaintiff to reach his or her phone 15 after beginning their meal or rest breaks on a given workday; and (2) how long each Plaintiff took 16 a break on a given workday. (Doc. 78 at 8.) 17 As to Plaintiffs’ remaining objections, Defendants contend that Plaintiffs have failed to 18 articulate why producing cell phone records and records of sent emails, text messages, or social 19 media activity is unduly burdensome. Indeed, Defendants fault Plaintiffs for failing to offer any 20 evidence to support their contention that production would be burdensome and by failing to 21 quantify any purported burden. Defendants urge that most cell phone companies provide 22 customers with monthly statements that itemize all calls to and from the customer’s cell phone. 23 Defendants similarly claim that Plaintiffs should have no difficulty providing records of sent 24 emails, text messages or social media activity because these services automatically generate 25 records specific to a users’ activity over time. Defendants also contend that because the requests 26 expressly authorize Plaintiffs to redact any confidential information from the records, such as 27 phone numbers, there can be no real objection based on privacy. 28 1 Summary of Plaintiffs’ Position 2 Plaintiffs’ argue that Requests 21-24 are irrelevant, substantially burdensome and 3 intrusive. Plaintiffs point out that cases cited by Defendants compelling production of these types 4 of records involve single plaintiffs, not class proceedings encompassing numerous facilities and 5 thousands of employees. (Doc. No. 78 at 13.) Plaintiffs also argue that Defendants’ need for 6 these records is based purely on speculation that the records will establish that Plaintiffs were 7 taking breaks and the time and duration of those breaks. Plaintiffs urge that the better source of 8 such information is Defendants’ own time-keeping records for Plaintiffs and the putative class 9 members. (Id.) Plaintiff believe that these timekeeping records, in conjunction with evidence of 10 Defendants’ policies and practices both written and unwritten, are the best evidence of whether 11 the claimed violations as alleged in the Consolidated Complaint occurred or can be adjudicated 12 on a class basis. (Id. at 15.) Plaintiffs further argue that the proportional needs of the case, in 13 contrast to the burden and intrusion of the Requests, cannot justify further responses and 14 production. Plaintiffs posit that that the records here are of negligible relevance, based on “an 15 attenuated string of speculation of what might come from this highly intrusive probe into 16 Plaintiffs’ personal communications. (Id. at 13-14.) 17 Analysis and Ruling 18 Defendants seek access to records of Plaintiffs’ activities on their personal phones (such 19 as email, text messaging, social media activity, and phone calls) to assess Plaintiffs' claim that 20 they were denied meal and rest breaks and worked hours for which they were not paid throughout 21 their entire employment. Courts have compelled production of such documents in similar 22 circumstances, finding this evidence relevant to allegations of rest and meal break violations. 23 See Calleros v. Rural Metro of San Diego, Inc., 2017 WL 4391714, at *3 (S.D. Cal. Oct. 3, 2017) 24 (granting defendants’ motion to compel plaintiffs to provide “cell phone records or other 25 documents that show whether, when, and for how long Plaintiffs engaged in personal activities, 26 such as cellular phone calls, text messaging, or internet access, during the workday,” which 27 defendants asserted were relevant to plaintiffs’ claims that they were not provided with breaks, 28 but precluding production of documents establishing the internet sites visited or the content of the 1 posts or messages); Crews v. Domino’s Pizza Corp., 2009 WL 10672572, at *3 (C.D. Cal. July 2 31, 2009) (granting defendant’s motion to compel cell phone records and noting that “[c]ell phone 3 records indicating that plaintiffs engaged in personal conversation while on a work shift is 4 directly relevant to Plaintiffs' claim that they were not allowed adequate break time.”); see also 5 Quintana v. Claire's Boutiques, Inc., 2014 WL 3371847, at *2 (N.D. Cal. July 9, 2014) (stating 6 that “the court agrees, that cell phone records establishing that Plaintiffs engaged in personal 7 activities while on the clock and/or had the opportunity to take meal and rest breaks are relevant 8 to this litigation.”). The Court finds no basis to deviate from these decisions. Records 9 establishing whether and for how long Plaintiffs engaged in personal activities, such as telephone 10 calls, texts or internet use, during the working day are relevant to whether Plaintiffs were 11 provided with compliant meal and rest breaks. 12 Plaintiffs’ objection regarding the burden of production is not persuasive. On a motion to 13 compel discovery, the burden is on the responding party to show that the electronically-stored 14 information is “not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 15 26(b)(2)(B). In this instance, Plaintiffs have not offered any evidence to support their contention 16 that production is burdensome, nor have they quantified any purported burden. Further, the 17 Requests are not seeking responses from all potential class members and are instead limited to the 18 seven named Plaintiffs. 19 Plaintiff’s objection that the requested documents are available to Defendants in their own 20 files or are otherwise in Defendants’ possession, custody or control or are readily available to 21 Defendants through their own reasonable search and investigation also is not persuasive. Federal 22 Rule of Civil Procedure 26(b)(2)(C)(i) requires a court to limit a responding party’s obligation to 23 produce discovery if the information sought is available from some other source that is more 24 convenient, less burdensome, or less expensive. Here, however, Plaintiffs have not provided a 25 cogent explanation as to how the requested documents are equally available to Defendants, in 26 Defendants’ possession, custody or control, or readily available through some other source, such 27 as Defendants’ files or publicly available documents. Although Plaintiffs have urged that 28 Defendants’ own time-keeping records are the best evidence regarding meal and rest breaks, 1 Defendants have expressly indicated that employees do not clock in or out for rest breaks. (Doc. 2 No. 78 at 4.) Thus, Defendants do not appear to have readily available electronic records 3 demonstrating the timing and duration of any rest breaks. 4 Finally, as to Plaintiffs’ privacy objections, any such objections have been ameliorated by 5 Defendants’ willingness to allow for redaction of cell phone telephone numbers, email and text 6 message content, subject line and recipient(s), and social media activity content, subject matter 7 and recipient(s). Defendant have confirmed that they are not seeking production of substantive 8 content contained in any responsive electronic records. 9 Because the Court finds that the records are relevant to Plaintiffs’ claims and that 10 Plaintiffs’ objections to the discovery are not persuasive, Defendants’ motion to compel further 11 responses to RFP Nos. 21-24 is GRANTED. No later than September 6, 2019, Plaintiffs must 12 produce cell phone records or other documents that show records of Plaintiffs’ activities on their 13 personal phones (such as email, text messaging, social media activity, and phone calls) during the 14 workday. As noted above, Plaintiffs are not required to provide information such as telephone 15 numbers, e-mail and text message content, subject line or recipient(s), and social media activity 16 content, subject matter or recipient(s). 17 Request for Production No. 41

18 RFP 41: All DOCUMENTS that RELATE TO any COMMUNICATIONS RELATING TO the allegations set forth in the COMPLAINT that YOU or 19 anyone acting on YOUR behalf had with any attorney(s) at any time before an attorney-client relationship was formed. 20 Responses to Request for Production No. 41 21 Plaintiffs Avalos, Gianini, Hagman, Palma, and Trevino served objection-only response to 22 Request 41. Plaintiffs Quinteros and Ward indicated that they have produced non-privileged 23 documents responsive to this request. (Doc. No. 78-1, Smith Decl. at ¶ 4, Ex. M–N). 24 Plaintiffs Avalos, Gianini, Hagman, and Palma’s Objections to Request 41 25 Objections: attorney client privilege, attorney work product, vague, ambiguous, overly 26 broad. 27 Plaintiff Trevino’s Objections to Request 41 28 Objections: Privilege, Privacy, Vague, Ambiguous, Overly Broad. 1 Summary of Defendants’ Position 2 Defendants contend that Plaintiffs cannot assert a blanket claim of privilege in response to 3 a discovery request, and that Plaintiffs have improperly asserted privilege “without ever actually 4 searching for potentially responsive documents.” (Doc. 78. at 24.) Defendants further contend 5 that Plaintiffs’ position regarding the attorney-client privilege is contrary to California law, 6 arguing that parties only may assert attorney-client privilege over confidential communications 7 made in furtherance of the attorney-client relationship, suggesting there was no such relationship 8 if the attorney was not retained. Defendants believe the Court “should compel Plaintiffs to adhere 9 to their obligation under the Federal Rules to conduct a reasonable investigation as to the 10 existence of any responsive documents.” (Id.) Following that investigation, Plaintiffs can either 11 indicate that they have discovered no responsive documents or prepare a privilege log. 12 Summary of Plaintiffs’ Position 13 Plaintiffs assert that Defendants are overreaching, claiming that they are entitled to 14 communications between Plaintiffs and any other attorneys besides those in the present case and 15 before the attorney-client relationship was formed with present counsel. Plaintiffs asserts that it is 16 the client that holds the privilege, whether or not that communication is with a current or former 17 attorney. Plaintiffs do not desire to waive their privilege as to communications with current 18 or former attorneys regarding their claims. 19 Analysis and Ruling 20 Since this court's subject matter jurisdiction is based on diversity of citizenship, California 21 law governs disposition of issues about the attorney-client privilege. Fed. R. Evid. 501 (state law 22 governs privilege regarding a claim or defense for which state law supplies the rule of decision); 23 First Pac. Networks, Inc. v. Atlantic Mut. Ins. Co., 163 F.R.D. 574, 577 (N.D.Cal.1995); Bank of 24 the West v. Valley Nat'l Bank of Ariz., 132 F.R.D. 250, 251 (N.D. Cal. 1990). 25 Under California law, “evidentiary privileges such as the attorney-client privilege are 26 governed by statute.” See Larsen v. Coldwell Banker Real Estate Corp., No. SACV 10-00401- 27 AG, 2012 WL 359466, at *4 (C.D. Cal. Feb. 2, 2012) (quoting HLC Props., Ltd. v. Superior 28 Court, 35 Cal.4th 54, 59, 24 Cal.Rptr.3d 199, 105 P.3d 560 (2005)). The attorney-client privilege 1 allows a client “to refuse to disclose, and to prevent another from disclosing, a confidential 2 communication between client and lawyer....” Cal. Evid. Code § 954. The attorney-client 3 privilege attaches to a “confidential communication between client and lawyer” during the course 4 of the attorney-client relationship. Cal. Evid. Code § 952. 5 Here, Defendants’ position appears to be that communications with attorneys who were 6 not subsequently retained are not protected by the privilege. However, “[a]n attorney-client 7 relationship exists for purposes of the privilege whenever a person consults an attorney for the 8 purpose of obtaining the attorney’s legal service or advice.” Edwards Wildman Palmer LLP v. 9 Superior Court, 231 Cal.App.4th 1214, 1226, 180 Cal.Rptr. 3d 620, 628 (2014) (citation and 10 quotation omitted). “No formal agreement or compensation is necessary to create an attorney- 11 client relationship for purposes of the privilege.” Id. Furthermore, “[p]rospective clients' 12 communications with a view to obtaining legal services are plainly covered by the attorney-client 13 privilege under California law, regardless of whether they have retained the lawyer, and 14 regardless of whether they ever retain the lawyer.” See Barton v. U.S. Dist. Court for Cent. Dist. 15 of Cal., 410 F.3d 1104, 1111 (9th Cir. 2005). 16 Insofar as Defendants seek production of documents relating to communications that 17 Plaintiffs had with any prospective attorneys regarding the allegations in the Complaint, those 18 communications appear to be privileged. The Court will not require Plaintiffs to produce any 19 such documents. Accordingly, Defendants’ motion to compel Plaintiffs to produce documents in 20 response to RFP No. 41 is DENIED. 21 IT IS SO ORDERED. 22

23 Dated: August 19, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24

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