Case Name: Carlos Escobar v. Orion Security Patrol, Inc., et al.
Case No.: 17-CV-308491

*The tentative ruling below was issued to the parties on June 5, 2018.

This is a putative class action alleging wage and hour violations by Orion Security Patrol, Inc. Before the Court are motions by plaintiff to compel (1) initial and further responses to special interrogatories (“SI”s), (2) further responses to requests for production of documents (“RPD”s), and (3) initial responses to form interrogatories (“FI”s). Plaintiff also seeks monetary sanctions against Orion. Plaintiff’s motions are unopposed.

I. Factual and Procedural Background

According to the operative complaint, Orion was founded in 1980 and provides security services to clients throughout Silicon Valley and the Bay Area, including mobile patrol security and video security systems and monitoring. (First Amended Class Action Complaint (“FAC”), ¶ 2.) Plaintiff has been employed by Orion as a non-exempt Security Guard from July 2015 to the present. (Id., ¶ 3.) He alleges that Orion fails to provide required meal and rest periods and to compensate Security Guards for missed breaks. (Id., ¶ 5.)

On April 12, 2017, plaintiff filed this action on behalf of a putative class of Security Guards. The FAC sets forth claims for (1) unlawful business practices, (2) failure to provide accurate itemized wage statements, and (3) penalties under the Private Attorneys General Act (“PAGA”).

II. Discovery Dispute

On August 29, 2017, plaintiff served the FIs, SIs, and RPDs at issue in this motion. Plaintiff granted Orion’s request for an extension of its deadline to respond to October 17. However, defendant failed to provide any responses to the FIs and to all but one of the SIs (SI 16) by that date. Defendant agreed to produce documents responsive to several of the RPDs, but failed to do so by October 17. On October 24, plaintiff’s counsel sent a meet and confer letter addressing these issues and disputing Orion’s objections to many of the RPDs. Defendant made an initial document production on November 17.

The parties participated in an informal discovery conference (“IDC”) with the Court on December 1, 2017. At the IDC, the Court directed plaintiff to file motions to compel by January 9, 2018, and ordered the parties to meet and confer in person. Also on December 1, defendant’s counsel sent a meet and confer letter responding to plaintiff’s October 24th letter and promising initial responses to the FIs and SIs by December 15. Counsel defended Orion’s responses to the RPDs and to SI 16, and indicated that he would propose a protective order to facilitate the production of additional documents. The parties met and conferred in person on December 8. According to plaintiff, defendant’s counsel repeated his promise to provide responses to the FIs and SIs by December 15, reiterated defendant’s objections to the RPDs, and stated that a proposed protective order would be forthcoming. However, the promised responses and protective order were never provided.

Plaintiff filed the instant motions on January 5, 2018. On March 28, he filed notices of non-receipt of oppositions. The hearing on plaintiff’s motions was continued by the Court to June 8, but defendant still did not file opposition papers. Plaintiff filed a second notice of non-receipt of oppositions on May 30.

III. The SIs and FIs

Plaintiff moves to compel initial responses to SIs 1-15 and 17-23 and to FIs Employment Law (Set One). He also moves to compel a further response to SI 16.

A. Legal Standards

A party to whom interrogatories are propounded is required to serve a response within 30 days, or any later date to which the parties have agreed. (See Code Civ. Proc., §§ 2030.260, 2030.270.) If the party fails to serve a timely response, it waives any objections to the discovery. (Id., § 2030.290, subd. (a).) The propounding party may move for an order compelling a response. (Id., § 2030.290, subd. (b).) There is no limitation period or meet and confer requirement for bringing a motion to compel an initial response. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411-412; Leach v. Superior Court (Markum) (1980) 111 Cal.App.3d 902, 905-906). The moving party need only show that the discovery was properly propounded and a response was not served. (See Leach v. Superior Court, supra, 111 Cal.App.3d at pp. 905-906.)

A party propounding interrogatories may also move for an order compelling a further response if that party deems an answer is evasive or incomplete and/or an objection is without merit or too general. The statute does not require any showing of good cause in support of such a motion. (See Code Civ. Proc., § 2030.300; see also Coy v. Superior Court (Wolcher) (1962) 58 Cal.2d 210, 220-221.) The burden is on the responding party to justify any objections or failure to fully answer. (Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221.)

B. Analysis

Defendant has repeatedly failed to provide responses to any of the interrogatories served by plaintiff other than SI 16. It also failed to file oppositions to plaintiff’s motions to compel, even though the hearing was continued to a date almost three months later than the originally noticed date. Defendant has accordingly waived its objections to plaintiff’s interrogatories and will be ordered to provide full responses, without objections.

SI 16 asks defendant to identify all class members. Orion responded by objecting based on relevance and employees’ privacy rights, as well as because “the information requested would be used to violate California Rules of Professional Conduct, Rule 1-120, by ‘assisting, soliciting, or inducing violations’ of the Rules of Professional Conduct or the State Bar Act, and Rule 1-400, prohibiting the solicitation of clients.” These objections are waived, and, with the exception of the privacy objection, are clearly meritless. The Court will order defendant to identify class members subject to the Belaire-West procedure, which adequately addresses employee privacy concerns. (See Williams v. Superior Court (Marshall’s of CA, LLC) (2017) 3 Cal.5th 531, 552-559 [in wage and hour actions, employee contact information must generally be produced subject to the Belaire-West procedure].)

IV. The RPDs

Plaintiff moves to compel further responses to RPDs 1, 2, 9, 10, 12, 23, 28, and 31-35.

A. Legal Standard

A party propounding a request for production may move for an order compelling a further response if it deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, or an objection is without merit. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Superior Court (Guess, Inc.?) (2002) 95 Cal.App.4th 92, 98.) Good cause is established simply by a fact-specific showing of relevance. (Kirkland v. Superior Court, supra, 95 Cal.App.4th at p. 98.) If good cause is shown, the burden shifts to the responding party to justify any objections. (Ibid.)

B. Analysis

RPD 1 seeks all documents evidencing the compensation paid to plaintiff. RPD 2 demands the production of plaintiff’s payroll records in “electronic, excel spreadsheet format.” RPD 9 seeks all documents contained in any time recording system showing plaintiff’s time records, including “Tracktick” records,” also in “electronic, excel spreadsheet format.” RPD 12 demands class contact information and employment dates in the same format. RPD 23 seeks documents that “describe the pay structure (including pay ranges, pay dates) for the CLASS MEMBERS.” RPD 31 calls for the production of all class payroll records in “electronic format,” and RPD 32 seeks class members’ time records, including Tracktick records. RPD 33 seeks all wage statements issued to class members, and RPDs 34 and 35 demand all meal break waivers and documents showing when class members signed any such waivers. There is good cause for the production of these documents as class members’ time and pay records are central to this case, and plaintiff is entitled to class member contact information subject to Belaire-West.

Orion responded to these RPDs by interposing objections, stating it does not have the ability to produce records in “electronic, excel spreadsheet format” and indicating that it would not produce any electronically stored information (“ESI”) from its Pensoft and Track-Tick systems, but would produce some of plaintiff’s hard copy payroll information. Orion has waived its objections by failing to defend them in opposition to plaintiff’s motion or to seek a protective order. (See Code Civ. Proc., § 2031.060 [party objecting to the production of ESI may obtain a protective order upon a showing of undue burden or expense].) It must produce all documents—including ESI—that are responsive to plaintiff’s requests. As to the format of the production, the propounding party “may specify the form or forms in which [ESI] is to be produced.” (Code Civ. Proc., § 2031.030, subd. (a)(2).) Orion’s statements of purported inability to produce Excel spreadsheets are not code-compliant responses to such a request. (See Code Civ. Proc., § 2031.280, subd. (c) [“If a party responding to a demand for production of [ESI] objects to a specified form for producing the information, … the responding party shall state in its response the form in which it intends to produce each type of information.”].) Orion must provide code-compliant responses to the requests for ESI in Excel format indicating that it will produce the ESI in this format—which the Court expects it is readily capable of doing—or else stating the alternative form it intends to use. If Orion maintains that it cannot produce Excel spreadsheets, it shall provide a declaration or declarations to this effect at the hearing on the instant motions so the issue may be promptly addressed by the Court.

RPD 10 demands the production of all communications between plaintiff and defendant “in searchable, electronic format.” RPD 28 encompasses communications sent by Orion and/or its counsel to any class member regarding this lawsuit. Good cause supports these requests as the full history of the named plaintiff’s communications with defendant is relevant in a class action, and defendant’s communications with other employees regarding the action itself are also relevant.

Confusingly, after asserting objections, Orion agreed to respond to RPD 10 “[e]xcept for electronically stored information, … by producing hard copies of email communications” with plaintiff. Orion has waived its objections to this request and must provide a code-compliant response indicating that it will produce all communications with plaintiff and stating the format in which it intends to make its production. Orion has also waived its objections to RPD 28 (to which it did not agree to respond), and must provide a code-compliant, substantive response.

V. Requests for Monetary Sanctions

Plaintiff seeks monetary sanctions in connection with all three of his motions. He cites provisions of the discovery statutes that require the Court to impose sanctions where a party unsuccessfully opposes a motion to compel further responses, “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.310, subd. (h).) Here, however, defendant did not oppose plaintiff’s motions. The Court accordingly cannot award sanctions under the authority cited by plaintiff.

VI. Conclusion and Order

Plaintiff’s motions are GRANTED. Within 20 calendar days of the filing of this order, Orion shall serve verified, code-compliant further responses to all of the discovery requests at issue as described above. The responses shall be without objection. If Orion maintains that it cannot produce information that was requested in Excel format in that format, it shall provide a declaration or declarations substantiating that claim at the hearing on these motions. Any such declarations shall be executed by individuals other than Orion’s counsel who are familiar with Orion’s electronic recordkeeping systems. Orion shall produce all remaining documents in compliance with its responses within 30 calendar days of the Court’s order.

The parties shall meet and confer regarding a Belaire-West notice and procedure within 10 calendar days of the filing of this order, and Orion shall provide notice to the putative class within 10 calendar days of the parties’ agreement on these issues, or a later date agreed upon by the parties. The parties shall immediately raise with the Court any issues they cannot resolve themselves in this regard.

Plaintiff’s requests for monetary sanctions are DENIED.

The Court will prepare the order.