2016-00202022-CU-OE

Adrian Aguirre vs. Bitech, Inc.

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Mukherjee, Piya

Plaintiff’s motion to compel defendant Bitech, Inc. dba Performance Bike Shop’s further responses to Requests for Production is GRANTED IN PART and DENIED IN PART, as follows.

*** 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 separate statement is incomplete in that it fails to include any of the definitions found in the subject discovery and fails to include any of the responses which were effectively incorporated into those responses at issue in this motion. Counsel is reminded that the purpose of the separate statement is to enable the court to resolve the discovery dispute without having to consult any other document. (See, CRC Rule 3.1345(c) [requirements for separate statement].)

Factual Background

This putative class and representative action arises out of plaintiff’s employment with defendant Bitech, Inc. Plaintiff alleges a variety of violations of the Labor Code’s wage -and-hour provisions. Plaintiff now seeks an order compelling defendant to provide further responses to a handful of requests for production on the grounds defendant’s objections are “improper and without merit.”

Defendant opposes, arguing first that plaintiff continues to utilize “shotgun” litigation tactics to gain unfettered access to non-party personnel records without regard to privacy concerns and the undue burden such discovery will cause defendant. The opposition also asserts that plaintiff’s moving papers fail to ‘set forth specific facts showing good cause’ to compel further responses to the requests, as explicitly required by Code of Civil Procedure §2031.310(b)(1) and that each of the questioned responses was appropriate under the circumstances here.

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 finite judicial resources.

The only requests for production (“RFP”) at issue are RFP Nos. 2, 6, 16, 17 and 18.

Each will now be addressed.

RFP 2. This request asks for all of plaintiff’s “work schedules” for “the relevant time period.” In response, defendant asserted various objections but then stated:

From approximately January 2013 through December 2016, Defendant used an electronic scheduling software, Crew Connector, in its retail stores. Defendant no longer has access to Plaintiff[’]s schedules as it no longer has access to the Crew Connector software. Consequently, Defendant has no records responsive to this request under its possession, custody or control. Defendant is informed and believes that records responsive to this request are under the possession, custody or control of Sierra Vista Associates, LLC.

According to plaintiff, defendant subsequently agreed to produce plaintiff’s “work schedules” but as of 1/19/2018, they have not been produced.

As plaintiff has failed to demonstrate how or why defendant’s response is improper or incomplete and has also failed to ‘set forth specific facts showing good cause’ to compel further responses to the requests as required by Code of Civil Procedure §2031.310(b)(1), the court declines on the present record to compel a further response to RFP 2. The court also declines to compel defendant to produce the documents responsive to this request since, as shown above, defendant’s response to this request did not include any agreement to produce responsive documents and thus, defendant cannot being compelled pursuant to Code of Civil Procedure §2031.320 to comply with its response.

RFP 6. This request asks defendant to produce in electronic form an Excel spreadsheet the names, addresses, telephone numbers, email addresses, dates of employment and rates of pay for every putative class member. In response, defendant asserted various objections including overly broad, unduly burdensome, not reasonably calculated and improperly seeking private information of non-parties but then offered to meet-and-confer on the proper scope of this request.

While plaintiff maintains that this request is proper under Williams v. Superior Court (2017) 3 Cal.5th 531, the court finds Williams merely stands for the proposition that a plaintiff seeking redress for Labor Code violations may obtain co-workers’ contact information following the issuance of an opt-out notice but does not establish plaintiff’s entitlement to the putative class members’ rates of pay. For these reasons and since no opt-out notice has yet been distributed to the putative class members, defendant was justified in asserting the objections to this request.

However, as the court has issued a tentative ruling granting in part plaintiff’s motion for order for an opt-out notice to be sent to the putative class members, defendant shall

provide a further response to this request which further response shall agree to provide plaintiff with the names, addresses, telephone numbers, email addresses and dates of employment (but not rates of pay) for every putative class member who does not timely object to (i.e., opt out of) the eventual disclosure of such contact information.

RFP 16. This request asks defendant to produce in electronic form an Excel spreadsheet “all payroll records” for every putative class member. In response, defendant asserted various objections including overly broad, unduly burdensome, not reasonably calculated and improperly seeking private information of non-parties but did nevertheless agree to produce plaintiff’s own payroll records for the relevant time period.

As explained in the tentative ruling on plaintiff’s concurrent motion for an opt-out notice, the California Supreme Court’s decision in Williams v. Superior Court does not hold that plaintiff is entitled to the payroll records of all other aggrieved employees even after the distribution of an opt-out notice. Instead, the primary question presented in Williams was whether a party filing a representative action based on his/her employer’s violations of the Labor Code was entitled to discovery of the names, addresses and telephone numbers of each potentially aggrieved co-worker and whether an opt-notice sent to the last known address is sufficient to protect the right to privacy. Although the Court answered both questions in the affirmative, Williams did not contemplate the issue presented here: Whether plaintiff is entitled to his co-workers’ payroll records even after an opt-out notice is distributed to these putative class members.

Since this court finds that a person’s privacy interest in his/her payroll records is more significant than in his/her mere contact information and may therefore necessitate greater protection than is provided by a mere opt-out notice (where the failure to timely object results in the disclosure of private financial information), the court declines on the present record to compel a further response to RFP 16 notwithstanding the anticipated distribution of an opt-notice for the contact information and time records of the each potentially aggrieved co-worker.

RFP 17. This request seeks all records reflecting the hours worked by each putative class member during the relevant time period. In response, defendant asserted various objections including overly broad, unduly burdensome, not reasonably calculated and improperly seeking private information of non-parties but then agreed to produce only plaintiff’s own payroll records.

Because the court has posted a tentative ruling authorizing the distribution of an opt-out notice to all putative class members regarding the disclosure of their contact information and “time records,” defendant shall provide a further response to this request which further response shall agree to provide plaintiff with hours worked during the relevant time period by each putative class member who does not timely object to ( i.e., opt out of) the eventual disclosure of such information.

RFP 18. This request asks defendant to produce copies of all “wage statements” provided to all putative class members from 10/19/2015 to the present. In response, defendant asserted various objections including overly broad, unduly burdensome, not reasonably calculated and improperly seeking private information of non-parties but did nevertheless agree to produce plaintiff’s own payroll records.

The court finds RFP 18 to be substantively indistinguishable from RFP 16 and will therefore decline to compel a further response to RFP 18 for the same reasons explained above.

Conclusion

In light of the foregoing, the present motion to compel is granted in part as to RFP Nos. 6 (contact information and rates of pay) and 17 (hours worked) but is on the present record denied as to RFP Nos. 2 (plaintiff’s work schedules), 16 (“payroll records”) and 18 (“wage statements”).

Where the motion is granted, defendant shall provide verified responses, without additional objections, to plaintiff’s RFP Nos. 6 and 17 no later than 4/2/2018 (unless the moving party agrees to a later date memorialized in writing).

Neither side requested monetary sanctions.