2017-00210770-CU-OE

Candace Dugue vs. Sierra Forever Families

Nature of Proceeding: Motion to Compel 1. Form 2. Special 3. Production

Filed By: Sembrano, Erika R.C.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the specific discovery requests that will be addressed at the hearing. Counsel are also reminded that pursuant to local court rules, only limited oral argument is permitted on law and motion matters. ***

Plaintiff’s motion to compel defendant Sierra Forever Families’ further responses to Form and Special Interrogatories and to Requests for Production is GRANTED IN PART and DENIED IN PART, as follows.

Factual Background

This putative class and representative action arises out of plaintiff’s employment with defendant Sierra Forever Families. Plaintiff alleges a variety of violations of the Labor Code’s wage-and-hour provisions. Plaintiff now seeks to compel defendant employer’s further responses to several form and special interrogatories and to requests for production, all bearing on information relating to the prospective class members. While not included in the notice, plaintiff also requests the Court approve plaintiff’s proposed opt-out notice to be sent to prospective class members. Plaintiff

also requests monetary sanctions of nearly $3,300.

Defendant opposes, arguing primarily that plaintiff is attempting to compel the production of private personnel records of non-party employees including their paychecks and compensation records. Although the recent decision of Williams v. Superior Court (2017) 3 Cal.5th 531 permits a plaintiff to discover the identify and contact information of putative class members for purposes of providing them an opportunity to opt out of the disclosure of their private, personal information, defendant contends there is no authority entitling plaintiff in this case to obtain the production of private employment records of all employees. With respect to the interrogatories at issue, defendant maintains these can be resolved through further meet-and-confer efforts which plaintiff terminated before filing this motion.

Analysis

At the outset, the Court must remind all counsel but especially plaintiff’s that given the number of motions such as this which must be addressed on a daily basis, there are simply not enough judicial resources available to resolve each and every discovery dispute that could have and should have been resolved informally. This serves to highlight the critical need for all counsel’s legitimate, reasonable and good faith meet-and-confer efforts before filing any discovery motion. Although it dealt with a motion to compel answers to deposition questions, the decision of Townsend v. Superior Court (1998) 61 Cal.App.4th 1431 is instructive in that it clarifies that the meet-and-confer process is not intended to be some perfunctory formality but rather it “requires…a serious effort at negotiation and informal resolution.” (Id., at 1438.) Nevertheless, this Court will address yet another unremarkable discovery dispute which could have and should have been resolved by counsel via the meet-and-confer process without the use of already scarce judicial resources.

Additionally, plaintiff’s separate statements filed in support of this motion which do little more than reiterate verbatim the contents of the moving memorandum of points & authorities are not helpful to the Court’s analysis particularly when the moving party is required to provide specific reasons why a further response should be compelled to each individual discovery request. Generic discussion of unremarkable principles governing discovery do not satisfy this requirement. Moreover, with respect to the requests for production, plaintiff’s reiteration of her points & authorities focusing primarily on the merits of defendant’s objections, does not in this Court’s view satisfy the express requirement of Code of Civil Procedure §2031.310(b)(1) that the moving party “set forth specific facts showing good cause” justifying the discovery sought by the documents requests. Plaintiff’s separate statement relative to the requests for production does not appear to address at all this “good cause” requirement.

Opt-Out Notice. Plaintiff’s request for an order approving a proposed privacy opt-out notice is denied without prejudice since this relief was not specified in the notice of motion and since the fundamental principles of due process preclude the Court from granting relief without there being proper notice to the opposing party.

Requests for Production. Requests for Production Nos. 16-17, 34-35, 37-38 and 40-41 are at issue here:

16. All paycheck stubs YOU issued to SALARIED MEMBERS during the COVERED PERIOD. (For privacy purposes identifying information can be redacted.)

17. All paycheck stubs YOU issued to HOURLY MEMBERS during the COVERED PERIOD. (For privacy purposes identifying information can be redacted.)

34. Any and all WRITINGS…reflecting SALARIED MEMBERS’ hours worked during the COVERED PERIOD.

35. Any and all WRITINGS…reflecting HOURLY MEMBERS’ hours worked during the COVERED PERIOD.

37. Any and all WRITINGS…reflecting compensation YOU paid to SALARIED MEMBERS during the COVERED PERIOD.

38. Any and all WRITINGS…reflecting compensation YOU paid to HOURLY MEMBERS during the COVERED PERIOD.

40. Any and all WRITINGS…reflecting wage statements YOU paid to SALARIED MEMBERS during the COVERED PERIOD.

41. Any and all WRITINGS…reflecting wage statements YOU paid to HOURLY MEMBERS during the COVERED PERIOD.

Defendant response to each of these requests was substantively identical and consisted of objections based on the privacy rights of the non-party potential class members whose information is being sought, oppression and undue burden, and premature pre-class certification discovery.

Plaintiff contends that further responses to these requests are warranted because defendant’s objections lack merit and should be overruled.

The Court will deny plaintiff’s motion as it relates to these requests for production. First, as pointed out above, plaintiff’s moving papers fail to demonstrate “good cause” to compel further responses to the requests for production as explicitly required by Code of Civil Procedure §2031.310(b)(1). In particular, while the type of information sought here may generally be considered relevant to the issues in this case and therefore within the permissible scope of discovery, plaintiff has failed to explain why the production of documents (as distinguished from merely providing the responsive information) is justified here. For this reason alone, the motion to compel further responses to the requests for production is denied.

Moreover, the Court finds meritorious defendant’s objection based on the privacy rights of the non-party employees who records and information is being sought. It is well-established in California that where privacy rights are involved, the party seeking discovery must show far more than mere legal relevance or likely to lead to admissible evidence. He/she must establish that the information sought is not only “directly relevant” to the parties’ claims but also “essential” to a fair resolution of the lawsuit. (See, e.g., Alch v. Superior Court (Time Warner Entertainment Co.) (2008) 165 Cal.App.4th 1412, 1432-1433.) Additionally, in order to pass constitutional scrutiny, any discovery into matters deemed private must be “narrowly tailored” to obtain only the “essential” information and the party seeking discovery must show there is no less intrusive means to obtain this information. (See, e.g., Tien v. Superior Court (Tenet Healthcare Corp.) (2006) 139 Cal.App.4th 528, 539-540; In re Marriage of Harris (2004) 34 Cal.4th 210, 244.) Even where these prerequisites are met, there is still no categorical right to conduct discovery on private matters as the trial court is still required to carefully balance the rights and interests involved before permitting the proposed invasion of privacy. (See, e.g., Alch, at 1423-1425.)

Each of these requests clearly relate to the work hours and compensation of any and all of those employed by defendant during the relevant class period and thus, seek information which is fundamentally protected by the constitutional right to privacy. Although it may be true that the type of information which plaintiff now seeks from defendant is “directly relevant” to the claims alleged in this case and “essential” to a fair resolution of the lawsuit, plaintiff’s moving papers have failed to demonstrate not only these eight requests are “narrowly tailored” to obtain only the truly “essential” information but also that there is no less intrusive means of obtain this information. Even if plaintiff could somehow overcome these preliminary hurdles, she would not necessarily be entitled to the documents sought since this Court must still “carefully balance” the rights and interests involved and since plaintiff’s claimed need for these documents does not come close to equaling the non-parties’ right to privacy in their financial affairs especially in light of the fact they have not been given notice of the proposed invasion or the opportunity to object to the proposed disclosure of their privacy information. The Williams decision does not mandate a different conclusion because the documents sought go well beyond the identity and contact information for putative class members. Finally, plaintiff’s offer of having identifying information redacted does not salvage these requests inasmuch as there will still be an invasion of privacy and this invasion is not otherwise justified under current law. For these reasons as well, the Court will not compel further responses to the requests for production.

Special Interrogatories. The interrogatories at issue in the moving papers are identified as Nos. 4-7, 16-17 and 19 but according to plaintiff’s reply, defendant has since this motion was filed voluntarily provided further responses to the interrogatories which narrows the present dispute to the following three:

16. IDENTIFY all DOCUMENTS that show the hours SALARIED MEMBERS worked for YOU during the COVERED PERIOD.
17. IDENTIFY all DOCUMENTS that show the hours HOURLY MEMBERS worked for YOU during the COVERED PERIOD.

19. IDENTIFY all agreements governing the COVERED PERIOD.

Defendant responded to interrogatory Nos. 16-17 with objections based on the privacy rights of the non-party potential class members whose information is being sought, oppression and undue burden, and premature pre-class certification discovery. In response to No. 19, defendant objected on the ground the interrogatory is overly broad, ambiguous and unintelligible but indicated that all agreements governing plaintiff’s employment were already being produced in response to interrogatory No. 18 (where defendant invoked its right under Code of Civil Procedure §2030.210(a)(2) by “producing all documents related to this interrogatory in Responding Party’s possession, custody, or control, including…”)

According to plaintiff, defendant’s objections are meritless and further responses are necessary.

The Court holds that defendant must provide further responses to interrogatory Nos. 16 and 17. However, these further responses need not be particularized to each individual employee but rather provide only a general description of the categories of documents which reflect the hours worked by the hourly and salaried employees.

These generic interrogatories do not in this Court’s view implicate the non-party employee privacy rights discussed above in connection with the requests for production.

On the other hand, the motion is denied as to interrogatory No. 19 because defendant’s objections are not meritless. In particular, the Court finds this interrogatory to be overly broad and unintelligible such that it remains unclear what information is being sought. Moreover, defendant has properly invoked its right to produce documents in lieu of providing the information sought. Plaintiff’s contention that the documents identified by defendant are not responsive does not change the outcome since the interrogatory itself is too vague and ambiguous for a reasonable person to understand exactly what information is being sought.

Form Interrogatories. The only Form Interrogatory at issue here is No. 2.17, which in turn relates to defendant’s failure to admit in response to plaintiff’s request for admissions Nos. 6-11, 13, 17-18, 20-21 and 54-61.

The motion to compel further response to Form Interrogatories is granted as to request for admissions Nos. 6, 8, 10, 13, 17-18 and 20-21 but is denied as to request for admissions Nos. 7, 9, 11 and 54-61.

Conclusion

In light of the foregoing, the present motion to compel is granted in part and denied in part.

Where the motion is granted, defendant shall provide verified responses, without additional objections, to plaintiff’s form and special interrogatories no later than 2/16/2018 (unless the moving party agrees to a later date memorialized in writing).

The Court declines to award monetary sanctions under the circumstances here.