Judge David S. Cunningham, Case Number: 23STCV27214, Date: 2024-09-03 Tentative Ruling

Judge: David S. Cunningham, Case: 23STCV27214, Date: 2024-09-03 Tentative Ruling

The motion to compel is granted with modifications as to document requests 24 through 29.

The hearing is continued as to the parties’ competing requests for monetary sanctions.

KC is a company that supplies eye-care and lens-care products. (See Motion, p. 2.) Plaintiff used to work for KC. (See ibid.) She alleges that KC subjected her and current and former employees to numerous wage-and-hour violations. (See First Amended Complaint, ¶¶ 42-117.)

Here, Plaintiff moves to compel further responses to document requests 9 through 18 and 24 through 29.

The Court finds that the hearing should be continued as to document requests 9 through 18. Plaintiff fails to show that she met and conferred with Defendant about these requests prior to filing the motion. Indeed, the meet-and-confer evidence merely concerns the sample-size issue and Plaintiff’s objections and responses to Defendant’s discovery requests. (See Motion, pp. 3-6; see also Wilkinson Decl., ¶¶ 4-18, Ex. 2; Opposition, pp. 7-8; Riccomini Decl., ¶¶ 4-13, Exs. A, C.)

Defendant’s motion for protective order regards Plaintiff’s special interrogatories 5, 8 through 10, 13, and 21 through 22 and document requests 24 through 29. It is set for hearing on September 3, 2024.

As explained in the tentative ruling on the motion for protective order, the Court is ordering Defendant to (1) provide responses to the special interrogatories and document requests for a 30% random sample of putative class members, and (2) pay the production costs.

The tentative ruling applies with equal force here, so Plaintiff’s motion to compel is granted as to document requests 24 through 29 with the same modifications.

The Court continues the hearing as to the parties’ competing requests for monetary sanctions.

Defendant’s motion for protective order is granted with modifications. The Court orders Defendant to provide responses to the discovery requests for a 30% random sample of putative class members, and Defendant shall pay the production costs.

Here, KC seeks a protective order regarding Plaintiff’s special interrogatories 5, 8 through 10, 13, and 21 through 22 and document requests 24 through 29. KC claims it would be too burdensome to provide responses for all putative class members. KC asks the Court, instead, to allow KC to provide responses for a “randomized 10% sample” of the putative class. (Notice of Motion, p. 2.)

Plaintiff contends the motion for protective order should be denied because Defendant filed it 173 days after Plaintiff propounded her discovery requests and 42 days after Defendant served initial responses. (See Opposition, pp. 2-3.)

The Court disagrees. Normally, a motion for protective order should be filed “[b]efore expiration of the 30-day period within which to respond to the [requests.]” (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2024 Update) ¶ 8:1013, emphasis in original.) The situation here is different. This is a complex case, so the Court has enhanced discretion to manage the action, including as to discovery. Defendant’s initial responses are objections-only responses (see Riccomini Decl., ¶ 23, Exs. F, G); the initial responses state that Defendant will provide substantive responses once the sample-size issue is decided (see ibid.); the parties met and conferred multiple times for months about the sample-size issue (see id. at ¶¶ 10-33; see also Wilkinson Decl., ¶¶ 4-20); they even participated in a discovery conference with the Court to try to resolve the matter informally (see Riccomini Decl., Ex. E); and, since the matter could not be resolved informally, the Court granted Defendant leave to file the motion. (See ibid.; see also Reply, pp. 9-10.) Under these circumstances, the motion is timely.

Next, Defendant claims providing responses would be unduly burdensome and expensive. (See Motion, pp. 3-6, 11-13.) To support the claim, Defendant cites the declaration of Defendant’s manager of human resources and the declaration of defense counsel. The manager declares that she and a former assistant each spent four months and more than 700 hours combined reviewing and scanning documents. (See Pulido Decl., ¶¶ 14-19.) Counsel declares that her firm would need 150 days and hundreds of hours to redact and produce the information for 100% of the putative class and that it would cost $122,000.00. (See Riccomini Decl., ¶¶ 34-44; see also Reply, pp. 2-4.)

As noted above, Defendant’s proposed compromise is to “provide information and records for a 10% sample of the putative employees.” (Motion, p. 13.) Defendant’s expert opines that “30 randomly selected putative class members” is “appropriate” and “will provide sufficient information to evaluate [Plaintiff’s] claims . . . while moderating the cost of producing documents related to those sample members.” (Krock Decl., ¶ 12; see also Reply, pp. 4-6.)

* Defendant’s discussion of past time and effort “is a red herring” (Opposition, p. 4 [stating that a protective order “does nothing” to address previously expended energy]);

* “there is no need for Defendant to redact the information” (ibid. [claiming the parties’ April 16, 2024 protective order makes redactions “unnecessary”]);

* the Code of Civil Procedure does not require “discovery responses to [be limited to] a data sample in class actions” (id. at p. 6); and

* Plaintiff’s need for the information outweighs Defendant’s burden. (See id. at pp. 10.)

Plaintiff also asserts that the sample size must be bigger. She claims the Court should utilize the Raosoft sample-size calculator, which recommends a sample size of 167 putative members. (See id. at pp. 6-10; see also Wilkinson Decl., ¶ 25, Ex. E.)

The Court finds that the motion should be granted with modifications. The special interrogatories and document requests seek contact information and other, standard precertification data. This is information that Plaintiff is entitled to discover. On the other hand, the manager’s declaration and defense counsel’s declaration demonstrate some time-related and expense-related burdens. During the meet-and-confer process, Plaintiff’s counsel proposed a 30% sample size. (See Wilkinson Decl., ¶ 16.) For now, the Court believes the 30% proposal strikes a fair balance between Plaintiff’s need and Defendant’s burden.

Two additional factors support this conclusion. One, Plaintiff is not obligated to accept the defense expert’s opinion about the sufficiency of the 10% sample size. Two, the purpose of precertification discovery goes beyond simply achieving an adequate sample. It is also to locate other employees who might have information that could assist Plaintiff’s prosecution. Ordering production for a 30% sample size will advance this goal.[1] [2]

Also, because the sample size is 30%, the Court finds that Defendant should pay the production costs.

Finally, Defendant’s request for a $28,835.00 monetary sanction is denied. (See Motion, pp. 13-15.) The record tends to show that Plaintiff did meet and confer in good faith.

[1] The Court cannot determine, on the current record, whether the Raosoft sample-size calculator is reliable.

[2] Given Plaintiff’s representation that the April 16^th protective order covers the documents and negates the need for redactions, the Court is inclined to permit Defendant to produce them without redactions, with the understanding that only Plaintiff’s counsel and his team can look at them.