Case Name:   Forrest Huff vs. Securitas Security Services USA, Inc.

Case No.:       1-10-CV-172614

 

In this action, plaintiff Forrest Huff (“Plaintiff”) sues defendant Securitas Security Services USA, Inc. (“Defendant”) for failure to pay overtime wages and to timely pay regular wages.  The operative Second Amended Complaint (“SAC”), filed on May 17, 2013, asserts two causes of action for: (1) failure to pay overtime compensation in violation of California Labor Code section 1194; and (2) violation of Labor Code provisions and Private Attorney General Act of 2004 (“PAGA”) (Cal. Lab. Code, §§ 2698 through 2699.5) penalties.[1]  In the second cause of action, Plaintiff alleges he was paid twice per month even though Defendant is a “temporary services employer” subject to California Labor Code section 201.3, which requires Defendant to pay security officers on a weekly basis.[2]

 

On February 13, 2014, the Court made the following rulings on the parties’ cross-motions for summary adjudication of issues: (1) Plaintiff’s motion for summary adjudication that Defendant is a “temporary services employer” within the meaning of California Labor Code section 201.3 was granted; (2) Defendant’s cross-motion on the same issue was denied; (3) Defendant’s motion for summary adjudication based on the exception in Labor Code section 201.3 subdivision (b)(6) was denied; (4) Plaintiff’s motion for summary adjudication on Defendant’s violation of Labor Code section 201.3 subdivision (b)(1) was granted; and (5) Defendant’s motion for summary adjudication of Plaintiff’s PAGA claim on standing grounds was denied.

 

Throughout the litigation, Plaintiff has propounded multiple sets of discovery upon Defendant, including five sets of Requests for Admissions (“RFA”), five sets of Form Interrogatories (“FI”), seven sets of Special Interrogatories (“SI”), and seven sets of Requests for Production of Documents (“RPD”).  On or about June 6, 2014, the parties participated in an informal discovery conference with the Court, during which Plaintiff’s counsel proposed to temporarily limit discovery to sampling of 50 employees per branch.[3]  (Plaintiff submits there are 31 branch locations; Defendant claims the number is in dispute but does not confirm the actual number.)  The Court ordered the parties to meet and confer as to this proposal and scheduled the instant discovery motions.  On June 20, 2014, the parties reported to the Court that they did not reach agreement as to the scope of discovery.[4]

 

Plaintiff now moves to compel Defendant to provide further responses to Plaintiff’s RPD Set 6, and SI Set 6.

 

Defendant moves for a protective order preventing Plaintiff from pursuing further discovery in the absence of a trial plan.  Defendant also raises procedural challenges to Plaintiff’s RFA Set 5, FI Set 5, SI Set 5, SI Set 7, and RPD Set 7.

 

Discussion

 

The parties’ papers in connection with these motions raise mostly the same issues.  Plaintiff has served a number of discovery requests seeking information and documents regarding Securitas’ approximately 42,000 current and former employees.  Defendant has timely responded to some of this discovery and is seeking a protective order with regard to the outstanding discovery.  Defendant contends the discovery is overbroad, unduly burdensome and irrelevant, calls for a legal conclusion regarding employees who worked over 90 days on an assignment, and violates the privacy rights of its employees.  Defendant argues the interrogatories and requests for admission are compound because they call for responses as to each of Defendant’s 42,000 current and former employees.  Defendant argues that due process requires a manageable trial plan to be established and implemented before discovery proceeds.  Plaintiff proposes to temporarily limit the scope of discovery to a sample of 50 security officer employees from each of Defendant’s branch locations, but Defendant argues that Plaintiff’s sampling proposal is flawed.  Both parties submit declarations of statistics experts.[5]

 

In the discovery requests at issue, Plaintiff seeks to determine the number of Defendant’s security officers who worked more than 90 consecutive days for a client and how those employees were paid.  Plaintiff also seeks to determine how many of Defendant’s security officers worked on Fridays and Saturdays and when they were paid.  These subjects are clearly relevant to the affirmative defense of Labor Code section 201.3 subdivision (b)(6) and Defendant’s violation of Labor Code section 201.3 subdivision (b)(1).  Thus, there is good cause for RPD Set 6.  (See Cal. Code Civ. Proc., § 2031.310, subd. (b)(1) [good cause requirement on motion to compel further responses to inspection demand].)  Defendants’ objections to RPD Set 6 on the grounds that the demands are vague, ambiguous, overbroad and call for a legal conclusion are not justified.  Defendant’s attorney-client privilege/work product objection to RPD Set 6 nos. 35 is not justified.

 

Defendant’s privacy objections in opposition to the motion to compel and in support of the motion for protective order are not persuasive.  Plaintiff seeks to discover the identity, work days and hours, and dates of pay from similarly-situated current and former employees of Defendant in order to determine how many were harmed by the same Labor Code violations.  Furthermore, Plaintiff proposes to use unique employee ID numbers.[6]  Under these circumstances, this is not a “serious invasion” of the employees’ expectations of privacy (see Pioneer Electronics (USA) Inc. v. Superior Court (2007) 40 Cal.4th 360, 370), particularly since Plaintiff is acting as an agent of the State in enforcing the Labor Code on behalf of the Labor and Workforce Development Agency.  (See Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 380.)  “While employees would not likely want their contact information broadly disseminated, this does not mean they would want it withheld ‘from plaintiffs seeking relief for violations of employment laws in the workplace that they shared.’  [Citation.]  Rather, employees similarly situated to [Plaintiff] ‘may reasonably be supposed to want their information disclosed to counsel whose communications in the course of investigating the claims asserted in [Plaintiff’s] lawsuit may alert them to similar claims they may be able to assert.’ [Citation.]”  (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 967.)

 

However, interrogatories and requests for admission cannot contain subparts, or a compound, conjunctive or disjunctive question/request.  (See Cal. Code Civ. Proc., §§ 2030.060, subd. (f), 2033.060, subd. (f).)  Here, Defendants’ point is well-taken that RFA Set 5, SI Set 6 no. 46, and SI Set 7 (with the exception of SI nos. 69, 82 and 83) violate the rule against subparts in asking for information on “each” or “as to each” security officer.  In essence, each of these interrogatories and requests for admission involve potentially thousands of separate subjects.  Thus, there is good cause for a protective order excusing Defendant from responding to this discovery.

 

Defendant’s criticisms of Plaintiff’s proposed sampling are well-taken.  As Defendant’s expert Richard Goldberg points out, the proposal does not explain how extrapolations can reliably be made from the sample.[7]  Mr. Goldberg contends that individual inquiries must be made to determine whether security officers worked more than 90 consecutive calendar days and/or were not timely paid after working on a Friday or Saturday.

 

Defendant asks for the implementation of a trial plan based on Duran v. US Bank Nat’l Assoc. (2014) 59 Cal.4th 1 before discovery can commence.  However, Duran recommends the use of pre-certification trial plans “[i]f statistical evidence will comprise part of the proof on class action claims[.]”  (Duran, supra, 59 Cal.4th at p. 31.)  Here, if statistical sampling is not used, then Duran is inapplicable.  Defendant cites a number of federal cases discussing the pleading standard for PAGA claims in support of its argument that a trial plan is necessary.  However, the instant motions are not pleadings challenges, and pleading deficiencies generally do not affect either party’s right to conduct discovery.  (See Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1436, fn. 3.)

 

Defendant argues that an individualized inquiry as to each security officer would be unduly burdensome.  For a discovery request to be unduly burdensome, it must be shown that the burden of answering is so unjust that it amounts to oppression.  (See West Pico Furniture Co. v. Sup. Ct. (Pacific Finance Loans) (1961) 56 Cal.2d 407, 418.)  Oppression means the amount of work is so great and utility of information so minimal that it would defeat the ends of justice to require the answers.  (See Columbia Broadcasting System, Inc. v. Superior Court (Rolfe) (1968) 263 Cal.App.2d 12, 19.)  Here, the information sought by Plaintiff is hardly minimal; it is central to Plaintiff’s case in support of PAGA penalties.  Defendant’s SAFES timekeeping and billing software seems to provide a useable way to generate the information that is in Defendant’s sole possession, and the Supplemental Declaration of Michael Millen pertaining to the deposition of Beth Hansen, Vice President of Information Technology for Defendant, suggests there are reasonable ways in which Worked Hours reports with Friday/Saturday work information could be generated in less time than Ms. Hansen originally estimates.[8]  Even if this process requires considerable burden and expense, it does not outweigh the benefits and importance of the information so as to excuse Defendant from responding to Plaintiff’s inspection demands.

 

With that said, the Court finds that RPD Set 7 nos. 66-69 are overly broad and invasive.  If Defendant provides documents in response to the other RPDs, there is no good cause for giving Plaintiff unfettered access to Defendant’s SAFES system or giving Plaintiff complete copies of Defendant’s electronic databases containing employment data and payroll information.

 

For all of these reasons, Plaintiff’s motion to compel further responses is GRANTED as to RPD Set 6, but DENIED as to SI 46.  Defendant’s motion for a protective order is GRANTED at to RFA Set 5, FI 17.1 (with regard to RFA Set 5), SI Set 6 no. 46, SI Set 7 (with the exception of SI nos. 69, 82 and 83), and RPD Set 7 nos. 66-69.  Otherwise, Defendant’s motion for a protective order is DENIED.

 

To facilitate management of this document production, the Court invites input from the parties on the following issues:

 

• Cost-shifting.  California Code of Civil Procedure section 2031.310 (f) provides that if there is good cause for the production of electronically stored information (“ESI”) from a source that is not reasonable accessible, the Court may set conditions for the discovery of the ESI, including the allocation of the expense of discovery.  Here, the information contained on Defendants’ SAFES systems constitutes ESI, and the particular information Plaintiffs need is not readily accessible without generating reports.  Arguably, the costs for this process should be allocated to Plaintiffs.
• Sampling (No Extrapolation).  The Court suggests a sampling procedure as suggested by Plaintiff, not for the purpose of extrapolating findings for all of Defendant’s security officers, but simply to examine whether and at what cost Defendants’ SAFES system can provide the information necessary for the sample.
• Client Identities.  The Court suggests the use of a unique client ID number instead of client identities, which should be sufficient for Plaintiffs’ purposes.
• Timetable.  The parties should meet and confer on a proposed timetable for Defendants’ production of responsive documents.