Griego v. Wal-Mart Stores, Inc.

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 BRANDAN GRIEGO, individually and Case No.: 3:20-cv-401-BAS-AHG on behalf of all others similarly situated, 13 ORDER RESOLVING JOINT Plaintiff, MOTION FOR DETERMINATION 14 OF DISCOVERY DISPUTE v. 15 WAL-MART STORES, INC.; et al., [ECF No. 60] 16 Defendants. 17 18 Before the Court is Plaintiff Brendan Griego (“Plaintiff”) and Defendants Wal-Mart 19 Stores, Walmart Inc., Wal-Mart Corporation, and Sam’s West Inc.’s (collectively, 20 “Defendants”) Joint Motion for Determination of Discovery Dispute. ECF No. 60. 21 Defendants seek an order from the Court barring or otherwise limiting the deposition of 22 Todd Stokes, which Plaintiff opposes. Id. For the reasons set forth below, Defendants’ 23 motion for protective order is GRANTED without prejudice. 24 25 I. BACKGROUND 26 On March 8, 2021, Plaintiff filed the operative amended complaint in this matter, 27 alleging that Defendants failed to pay Plaintiff all wages due upon termination of 28 employment, in violation of the California Labor Code. ECF No. 57 at ¶ 2. Plaintiff brings 1 this suit as a putative class action on behalf of: 2 Any and all individuals who worked for Defendants in the State of California 3 whose employment ended at any time from August 27, 2019, through the date of judgment, and who received a Statement of Final Pay and then received 4 any additional wages (regular, overtime and/or vacation) on Defendants on- 5 cycle payroll immediately subsequent to the issuance of the Statement of Final Pay to the individual; [and] 6 7 Any and all individuals who worked for Defendants in the State of California whose employment ended at any time from August 27, 2019, through the date 8 of judgment, and who received a Statement of Final Pay and then received 9 any additional wages (regular, overtime and/or vacation) more than 3 days after the issuance of the Statement of Final Pay on Defendants on-cycle 10 payroll immediately subsequent to the issuance of the Statement of Final Pay 11 to the individual.

12 Id. at ¶ 21. 13 On March 1, 2021, pursuant to the Court’s Chambers Rules, the parties alerted the 14 Court that they disagreed about Mr. Stokes’s deposition, which was noticed for March 5.1 15 Email to Chambers (Mar. 1, 2021 at 4:12 p.m.); see Chmb.R. at 2. Mr. Stokes is a high- 16 ranking Walmart executive for Walmart’s Neighborhood Markets business. ECF No. 60 at 17 3. He has been deposed in certain related cases. Id. The Court held a telephonic discovery 18 conference on March 2, 2021. ECF No. 50. The Court found it appropriate to issue a 19 briefing schedule in this matter. ECF No. 51. The parties timely filed their joint motion on 20 March 12, 2021. ECF No. 60. This order follows. 21 II. LEGAL STANDARD 22 The Federal Rules of Civil Procedure permit parties to obtain nonprivileged 23 24 25 1 The Court notes that neither side included Mr. Stokes’s deposition notice as an exhibit to the instant motion. See ECF No. 60 at 15–17 (only providing Mr. Stokes’s deposition notice 26 from 2018 in another case). Thus, from the papers, it is unclear whether Mr. Stokes is 27 sought for his personal deposition or as a Rule 30(b)(6) witness to address the topics Ms. McChristian did not know. This distinction, however, does not impact the Court’s 28 1 information if it is (1) relevant to any party’s claim or defense, and (2) proportional to the 2 needs of the case. FED. R. CIV. P. 26(b). Courts have broad discretion to determine 3 relevance for discovery purposes. Doherty v. Comenity Capital Bank, No. 16cv1321-H- 4 BGS, 2017 WL 1885677, at *2 (S.D. Cal. May 9, 2017) (citing Hallett v. Morgan, 296 5 F.3d 732, 751 (9th Cir. 2002)); see also Youngevity Int’l, Inc. v. Smith, No. 16cv704-BTM- 6 JLB, 2017 WL 2692928, at *3 (S.D. Cal. June 22, 2017). The question of relevancy “should 7 be construed ‘liberally and with common sense’ and discovery should be allowed unless 8 the information sought has no conceivable bearing on the case.” Soto v. City of Concord, 9 162 F.R.D. 603, 610 (N.D. Cal. 1995) (quoting Miller v. Pancucci, 141 F.R.D. 292, 296 10 (C.D. Cal. 1992)). Regardless of its broad nature, however, relevance is not without 11 “ultimate and necessary boundaries.” Doherty, 2017 WL 1885677, at *2. 12 Information must be “proportional to the needs of the case” to fall within the scope 13 of permissible discovery. FED. R. CIV. P. 26(b)(1). When analyzing the proportionality of 14 a party’s discovery requests, a court should consider the importance of the issues at stake 15 in the action, the amount in controversy, the parties’ relative access to the information, the 16 parties’ resources, the importance of the discovery in resolving the issues, and whether the 17 burden or expense of the proposed discovery outweighs its likely benefit. Id. “The 2015 18 amendments to Rule 26(b)(1) emphasize the need to impose ‘reasonable limits on 19 discovery through increased reliance on the common-sense concept of proportionality.’” 20 Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 603 (D. Nev. 2016) (internal citation 21 omitted). Both discovery and Rule 26 are intended to provide parties with “efficient access 22 to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful 23 discovery.” Id. 24 Rule 26(c)(1), in turn, governs protective orders. For good cause, a court may “issue 25 an order to protect a party from annoyance, embarrassment, oppression, or undue burden 26 or expense[,]” including prohibiting or limiting a deposition. FED. R. CIV. P. 26(c)(1)(A). 27 In order to make the requisite showing of good cause, “the party seeking protection bears 28 the burden of showing specific prejudice or harm will result if no protective order is 1 granted.” Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210–11 2 (9th Cir. 2002); WebSideStory, Inc. v. NetRatings, Inc., No. 06cv408-WQH-AJB, 2007 WL 3 1120567, at *4 (S.D. Cal. Mar. 22, 2007) (“To establish good cause, the moving party must 4 make a clear showing of a particular and specific need for the order.”). “The court has wide 5 discretion to determine what constitutes a showing of good cause and to fashion a 6 protective order that provides the appropriate degree of protection.” Grano v. Sodexo 7 Mgmt., 335 F.R.D. 411, 414 (S.D. Cal. 2020); see Seattle Times Co. v. Rhinehart, 467 U.S. 8 20, 36 (1984) (interpreting Rule 26(c) as conferring “broad discretion on the trial court to 9 decide when a protective order is appropriate and what degree of protection is required”). 10 When seeking to prohibit the deposition of a company representative, other 11 considerations also apply: 12 When a party seeks the deposition of a high-level executive (a so-called “apex” deposition), courts have “observed that such discovery creates a 13 tremendous potential for abuse or harassment.” [] The court therefore has 14 discretion to limit discovery where the discovery sought “can be obtained from some other source that is more convenient, less burdensome, or less 15 expensive.” [] 16 Apple Inc. v. Samsung Electronics Co., Ltd., 282 F.R.D. 259, 262–63 (N.D. Cal. 2012) 17 (internal citations omitted). When deciding whether an apex deposition should go forward, 18 courts look at “(1) whether the deponent has unique first-hand, non-repetitive knowledge 19 of the facts at issue in the case and (2) whether the party seeking the deposition has 20 exhausted other less intrusive discovery methods.” Id. at 263 (quoting In re Google Litig., 21 No. C-08-03172-RMW-PSG, 2011 WL 4985279, at *2 (N.D. Cal. Oct. 19, 2011)). 22 Prior to class certification, discovery lies entirely within the discretion of the court. 23 Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (citing Kamm 24 v. Cal. City Dev. Co., 509 F.2d 205, 209 (9th Cir. 1975)) (“Whether or not discovery will 25 be permitted in a case of this nature lies within the sound discretion of the trial court”). 26 Further, district courts have broad discretion to manage discovery. Laub v. U.S. Dept. of 27 the Interior, 342 F.3d 1080, 1093 (9th Cir. 2003); Hallett, 296 F.3d at 751; see U.S. Fidelity 28 1 & Guar. Co. v. Lee Inv. LLC, 641 F.3d 1126, 1136 (9th Cir. 2011). This discretion extends 2 to crafting discovery orders that may expand, limit, or differ from the relief requested. See 3 Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (trial court has “broad discretion to tailor 4 discovery narrowly and to dictate the sequence of discovery”); UMG Recordings, Inc. v. 5 Doe, No. C 08-1038 SBA, 2008 WL 2949427, at *3 (N.D. Cal. Jul. 30, 2008) (“the district 6 courts wield broad discretion” in fashioning discovery orders). 7 III. DISCUSSION 8 Defendants repeatedly allude to Mr. Stokes’s deposition not being relevant to class 9 certification or Plaintiff individually. See ECF No. 60 at 4 (explaining that Mr. Stokes 10 knows nothing about Plaintiff, has never spoken with Plaintiff, and was not involved in his 11 termination); id. at 6–7 (contending that, since the motion for class certification is pending, 12 that further deposition would likely be irrelevant or duplicative). As a threshold matter, the 13 Court notes that “[t]he Court did not bifurcate discovery [] so the parties are permitted to 14 conduct discovery relevant to both class certification and the merits of the case.” Hawkins 15 v. Kroger, No. 15cv2320-JM-BLM, 2019 WL 4416132, at *10 (S.D. Cal. Sept. 16, 2019); 16 see ECF No. 38 at ¶ 2. Therefore, when considering whether Mr. Stokes’s deposition is 17 relevant, the Court does not restrict relevance to issues related to class certification. 18 Nonetheless, the Court does not find that Mr. Stokes’s deposition is relevant. From 19 September 2018 to August 2020, Mr. Stokes worked in Divisional Human Resources 20 Walmart US. ECF No. 60 at 20. In this role, he was not responsible for human resources 21 functions in California. Id. Since August 2020, Mr. Stokes has held the position of Director, 22 Regional People for Walmart’s Neighborhood Markets. Id. In this role, his responsibilities 23 include human resources oversight for Walmart Neighborhood Markets in his region, 24 which includes California, but he does not oversee human resources for Walmart 25 Supercenters in any region. Id. This case includes individuals who worked in California 26 and whose employment ended from August 27, 2019, to the present. ECF No. 57 at ¶ 21. 27 The Court agrees with Defendants that, since Mr. Stokes has not been responsible for 28 1 California human resources functions for most of the class period, his testimony at this 2 stage is neither relevant nor proportional to the needs of the case. 3 Plaintiff argues that since Mr. Stokes was deposed in other cases, including two 4 California cases, he should be deposed in this case. ECF No. 60 at 9. Plaintiff seeks 5 Mr. Stokes’s deposition because “his testimony was damaging in the Garcia and Magadia 6 cases, where he was deposed and was a witness at trial. … [and because] his testimony is 7 necessary to validate the testimony cited from Garcia in Plaintiff’s motion for Class 8 Certification which is directly on point to this case.” ECF No. 60 at 25. The class periods 9 in the other related cases were different,2 however, so that does not automatically make his 10 testimony relevant here. Further, the Court questions whether deposing Mr. Stokes in this 11 case is the only means to bring in his past testimony (see, e.g., FED. R. EVID. 801(d)(2)(D)) 12 and concludes it would be unnecessarily intrusive at this time. See LF Centennial Ltd. v. 13 Z-Line Designs, Inc., No. 16cv929 JM-NLS, 2017 WL 1281803, at *2–*3 (S.D. Cal. Apr. 14 6, 2017) (granting motion for protective order as to personal deposition of corporate 15 representative when another corporate representative would be testifying as the Rule 16 30(b)(6) witness); In re Google Litig., 2011 WL 4985279, at *2 (granting motion for 17 protective order because party seeking the deposition did not show that the high-ranking 18 executive “ha[d] unique and first-hand knowledge of the facts of this case, or that [it] has 19 exhausted other less intrusive methods of discovery,” and permitting a subsequent motion 20 to be filed if, after further depositions, specific topics were identified that only that 21 particular executive could address); see also Rembrandt Diagnostics, LP v. Innovacon, 22 Inc., No. 16cv698-CAB-NLS, 2018 WL 692259, at *6–*7 (S.D. Cal. Feb. 2, 2018) 23 24 25 2 For example, in Julio Garcia v. Wal-Mart Associates, Inc. and Wal-Mart Stores, Inc., Case No. 3:18-cv-00500-L-MDD (S.D. Cal.), the class period was from February 1, 2015 26 through August 26, 2019. ECF No. 55 at 8. Mr. Stokes held the position of Regional Human 27 Resources Director, Region 57, from 2014 to 2018. ECF No. 60 at 20. In this role, his responsibilities included human resources oversight for California. Id. Thus, his testimony 28 1 || (granting motion for protective order as to high ranking corporate representative, because 2 || plaintiff had not met its burden to show that it had exhausted other discovery methods and 3 ||that he had unique first-hand, non-repetitive knowledge, and permitting the parties to 4 ||reassess the deposition in the future after deposing other lower level employees). 5 IV. CONCLUSION 6 Upon review of the papers and for the reasons set forth above, the Court finds good 7 ||cause to GRANT Defendants’ Motion for Protective Order without prejudice. After the 8 ||pending motion for class certification has been decided, the parties may revisit whether 9 || Mr. Stokes’s deposition is relevant, for example, to whether Defendants’ policies have 10 || changed over time. However, the Court reminds the parties that discovery is supposed to 11 self-executing, and that they are required to meaningfully meet and confer ahead of any 12 future discovery disputes.’ 13 14 IT IS SO ORDERED. 15 || Dated: March 30, 2021 ie H. ! | | 16 Honorable Allison H. Goddard 17 United States Magistrate Judge 18 19 20 21 22 23 24 25 27 See, e.g., ECF No. 60 at 12 4§ 3-5, 25 6 (allegations that Plaintiff's counsel would not 28 give the reason she sought the deposition, and that Defendants’ counsel would not meet and confer regarding page/line stipulations).