Cruz v. Nike Retail Services, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ADRIANA CRUZ, Case No.: 23-cv-874-L-KSC 12 Plaintiffs, ORDER ON JOINT DISCOVERY 13 v. MOTIONS [Doc. Nos. 47, 48]

14 NIKE RETAIL SERVICES, INC., 15 Defendants. 16 17 Two joint discovery motions are presently before the Court. Doc. Nos. 47, 48. The 18 two motions address the issues of (a) whether defendant needs to produce complete wage 19 statements for class members [Doc. No. 47]; and (b) whether the parties will engage in a 20 Belaire-West opt-out notice1 prior to production of the class list [Doc. No. 48]. Defendant 21 also filed an objection. See Doc. No. 49. The thrust of defendant’s objection is that plaintiff 22 23 24 1 Belaire-West or Belaire notice takes its name from Belaire-West Landscape, Inc. v. 25 Superior Court, 149 Cal. App. 4th 554 (2007); see also Williams v. Superior Court, 3 Cal. 5th 531, 553 (2017) (describing the history of Belaire notice and summarizing the 26 procedure). The crux of a Belaire notice is that, before defendant discloses unnamed class 27 members’ contact information to plaintiff and plaintiff’s counsel, the class members receive a notice of the pending class action and a means of opting out of having their 28 1 did not give defendant enough time to participate in preparing the joint motion to compel 2 the class list. See id. More specifically, it appears defendant did not agree to the inclusion 3 of two exhibits in the joint exhibit list the Court directed the parties to prepare as part of 4 the joint motion. Id. at 4. Defendant apparently misunderstands the “joint” nature of the 5 exhibit list. The Court did not want the parties to agree on all the exhibits that should be 6 submitted. Rather, the Court wanted all the exhibits in one place with no duplicates to 7 simplify its review of the documents purportedly relevant to this dispute. There was 8 therefore no need to “object” because plaintiff did not need defendant’s consent. Defendant 9 also objects to what it considers insufficient efforts by plaintiff to meet and confer about 10 the wage statements. Id. at 5. Defendant had already made that argument in its opposition 11 portion of the joint motion to compel the wage statements. Doc. No. 47 at 5. Nothing in 12 the substance of defendant’s objection moves the needle on the Court’s decision. The 13 objection is OVERRULED. 14 (A) Whether Defendant Must Produce Wage Statements 15 Defendant voluntarily agreed to supplement responses to plaintiff’s Request for 16 Production No. 22, which seeks copies of wage statements for class members. Doc. No. 46 17 at 2; Doc. No. 47 at 2-3. Rather than produce the actual wage statements, defendant 18 produced a spreadsheet that had been exported from defendant’s personnel management 19 software. Id. Plaintiff contends the spreadsheet is inadequate. Doc. No. 47 at 3-4. In a wage 20 and hour class action where plaintiff’s claims include claims for wage statement violations, 21 class members’ wage statements will generally be relevant. The question is whether the 22 payroll data at issue here constitute an adequate substitute for the wage statements 23 themselves. 24 Defendant has given multiple reasons it supposedly cannot produce the actual wage 25 statements. Defendant currently claims it must engage in a labor-intensive process to pull 26 wage statements from its personnel management software. See Doc. No. 47 at 7. But this 27 explanation differs from the one previously offered by defense counsel, namely that 28 defendant did not have control of the wage statements at all because it uses ADP to process 1 its payroll. These shifting explanations give the Court reason to reject defendant’s proffered 2 excuses. The Court overrules any objections based on defendant’s asserted burden. 3 Defendant also argues plaintiff did not give defendant a meaningful chance to 4 participate in preparing the joint motion. Doc. No. 47 at 5-8. Paragraph VIII.E.3 of the 5 Court’s Chambers Rules require any party opposing a joint motion receives a “reasonable” 6 opportunity to respond. Defendant argues plaintiff made no effort to meet-and-confer about 7 the adequacy of the payroll data, and then presented defendant with a joint motion at eleven 8 in the morning the day the motion was due for filing. Id. The Court issued a short briefing 9 schedule on this issue because the period for conducting class certification discovery is 10 quickly closing and, despite the level of apparent contention between the parties’ dispute 11 here, this is a profoundly simple issue. The only question before the parties and the Court 12 is whether “defendant’s alternative to producing wage statements [is] nonetheless 13 adequate?” Plaintiff did not face an onerous task to first meet-and-confer then prepare a 14 joint motion that gave defendant fair opportunity to respond. But plaintiff dropped the ball 15 here, and, whatever the Court’s view of the merits, plaintiff’s lack of failure to involve 16 defendant warrants denial of the motion for failure to comply with the Court’s Rules. 17 Turning to the merits, plaintiff’s justification for seeking the actual wage statements 18 is that defendant’s spreadsheet omits some information that is, in a general sense, required 19 to appear on wage statements. Doc. No. 47 at 3-4. But plaintiff has failed to articulate how 20 or why the supposedly missing information is material to this case, as opposed to wage and 21 hour class action litigation generally. Accordingly, the Court is not persuaded that 22 defendant’s payroll data is inadequate for purposes of this case at the pre-class certification 23 stage of the litigation. The motion to compel production of the wage statements is therefore 24 DENIED. 25 The Court adds this caveat: defendant has repeatedly represented that everything 26 plaintiff needs to move for class certification is contained in the payroll data export. The 27 Court will hold defendant to that representation. If defendant’s repeated assurances on this 28 matter prove untrue, i.e., if defendant tries to oppose plaintiff’s class certification motion 1 by claiming plaintiff cannot certify a class due to lacking evidence, and if the missing 2 evidence that could help certify the class is only contained in the wage statements, the 3 Court will be prepared to revisit this issue. If, however, defendant does not raise the issue, 4 the Court assumes there will be no prejudice to plaintiff from not having the actual wage 5 statements for purposes of seeking and obtaining class certification. 6 (B) Whether the Parties Will Give Belaire-West Notice Prior to Producing the 7 Class List 8 Plaintiff’s Request for Production No. 18 and Interrogatory No. 3 together demand 9 defendant produce the class list in this matter. See Doc. No. 48 at 2-3. The parties appeared 10 to have resolved their disputes as to the class list as far back as October 3, 2023, by having 11 defendant supplement its discovery responses, but only as to 10% of the putative class. See 12 Doc. No. 40 at 2. Defendant specifically “agreed to provide supplemental/further 13 supplemental responses, and responsive documents where applicable.” Id. Defendant 14 produced supplemental discovery responses on October 30, 2023. See Doc. No. 48-1 at 15 171, 187. However, those responses state defendant will not produce the class list until 16 unnamed class members receive Belaire notice. See id. The parties dispute whether Belaire 17 notice was part of their agreement at the time defendant agreed to supplement discovery. 18 See generally Doc. No. 48. They also dispute whether Belaire notice is even appropriate in 19 this case. Id. 20 (1) Whether the Parties Agreed to Belaire Procedures 21 Defendant contends Belaire notice had always been part of the agreement to produce 22 discovery, but plaintiff contends defendant dropped its insistence on Belaire notice prior 23 to the agreement to supplement discovery. See Doc. No. 48 at 7-10, 13-17. The parties both 24 accuse each other of acting in bad faith: plaintiff accuses defendant of belatedly reviving 25 the demand for a Belaire notice as a means of obstructing discovery, while defendant 26 suggests plaintiff is merely claiming ignorance about Belaire notice to cover up for her 27 failure to diligently pursue sending the Belaire notice out in the first place. See id. But the 28 1 parties good faith (or lack thereof) is immaterial to the issue of what the parties objectively 2 agreed to. 3 Plaintiff’s initial discovery requests stated plaintiff would voluntarily go through the 4 Belaire notice period as a means of forestalling defendant’s objections. See, e.g., Doc. No. 5 48-1 at 22. Following service of that discovery, the parties met and conferred for months 6 trying to fine-tune appropriate language for a Belaire notice. See Doc. No. 48-1 Exs. 3, 6- 7 8. There is thus no dispute the parties initially planned to send out Belaire notice to class 8 members prior to defendant producing the class list and class member contact information. 9 On September 15, 2023, the Court held a protracted discovery hearing with counsel 10 for both parties. See Doc. Nos. 32, 39. During that hearing, counsel obliquely addressed 11 the possibility of a Belaire notice, although they seemed nowhere near agreement as to how 12 it should be done. See Doc. No. 39 at 27. On September 20, 2023, counsel met and 13 conferred further about the class list. See Doc. No. 48-1 at 147. Plaintiff’s counsel’s email 14 summarizing the substance of the call makes no mention of a Belaire notice. See id. 15 Defendant does not argue counsel’s email is incomplete or inaccurate, and there is no 16 information before the Court otherwise suggesting plaintiff failed to mention the Belaire 17 notice in the written meet-and-confer summary. 18 When the parties submitted a joint status report on October 4, 2023, they indicated 19 defendant “agreed to provide supplemental/further supplemental responses, and responsive 20 documents where applicable” for the class list, limited to 10 percent of the putative class. 21 See Doc. No. 40 at 2:20-26. The joint status report is silent on the issue of Belaire notice. 22 Defendant’s supplemental discovery responses, served on October 30, 2023, again raised 23 the Belaire issue. See Doc. No. 48-1 at 171, 180, 187, 199. 24 Based on the ambiguity on this issue, the Court concludes that, as of the submission 25 of the joint report, Belaire notice was off the table. Given the importance of the Belaire 26 notice issue, which played such a huge role in the parties’ meet and confer efforts, it is 27 illogical to conclude the parties intended to require such notice yet failed to reference it in 28 their subsequent joint status report and the preceding meet-and-confer summary. Thus, the 1 Court concludes the parties had abandoned the requirement of providing Belaire notice 2 because defendant would produce the entire class. 3 (2) Whether the Court Would Order Belaire Notice Even if the Parties Had 4 Agreed to It 5 If there was an agreement to engage in a Belaire notice period that later fell apart, 6 the Court would only order the parties to go through with it if it were legally warranted 7 based on the facts of the case. Belaire notice is potentially appropriate in a case like this to 8 protect underlying state-law privacy rights. See Williams v. Superior Court, 3 Cal. 5th 531, 9 553 (2017). On the other hand, courts have “frequently” used ordinary protective orders 10 instead of Belaire notices to protect absent class members’ privacy. See Davidson v. Oreilly 11 Auto Enters., LLC, 968 F.3d 955, 965 (9th Cir. 2020). It is settled the party resisting 12 discovery bears the ultimate burden of convincing the Court the discovery sought should 13 not be permitted. See V5 Techs v. Switch, Ltc., 334 F.R.D. 306, 309-10 (D. Nev. 2019) 14 (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)). Opt-out notices 15 are protective orders because the objecting party is the one who does not want to disclose 16 the information without the opt-out procedure in place, whereas the requesting party would 17 be fine with having the information free and clear. See Pioneer Elecs. (USA), Inc. v. 18 Superior Ct., 40 Cal. 4th 360, 368 (2007). Thus, the Court concludes it is defendant’s 19 burden to persuade the Court to issue a protective order requiring Belaire notice. 20 The Court has already recited the history of the meet-and-confer process here, and it 21 appears plaintiff endeavored to negotiate an opt-out notice to avoid defendant’s objection. 22 Defendant, however, appears to have rejected every opt-out notice proposed by plaintiff. 23 Now, defendant claims plaintiff is the one who has not been diligent about the Belaire 24 notice. Doc. No. 48 at 16. Plaintiff is the party who has been pursuing discovery, and 25 ultimately had to file a motion to compel in this case. Although defendant was at all times 26 free to ask the Court to issue a protective order requiring a particular Belaire notice, 27 defendant did not do so 28 1 Defendant relies in part on Davidson, 968 F.3d at 965 for the premise that a plaintiff 2 ||needs to follow through on offers to engage in Belaire notice as a means of securing 3 ||discovery. See Doc. No. 48 at 16. Whatever the import of Davidson, this case is 4 || distinguishable from that case. In Davidson, the defendant offered to do a Belaire notice, 5 || but the plaintiff “did not follow up on” the offer. See 968 F.3d at 965. In this case, the 6 record shows plaintiff followed up on the offer again and again, but defendant refused to 7 || send out any of the notices proposed by plaintiff. If defendant had been reasonable, it could 8 ||have used one of plaintiff's proposed notices. Alternatively, it could have asked the Court 9 || to issue an order requiring defendant’s choice of notice. Unlike the plaintiff in Davidson, 10 plaintiff did not fail to show diligence here. Accordingly, defendant’s right to impose 11 || Belaire notice requirements on plaintiff is forfeited, even if there had previously been an 12 ||informal agreement to engage in a Belaire notice between the parties. The stipulated 13 || protective order already in place here provides suitable protection for any privacy rights at 14 ||issue. Davidson, 968 F.3d at 965. 15 The Court is not amendable to compelling the production of a partial class list. 16 || Defendant had the opportunity to negotiate with plaintiff and produce a sample of the class 17 in exchange for a trouble-free Belaire notice and chose not to do so The Court 18 || previously advised the parties that inability to reach agreement on a sample size might 19 |/result in the obligation to produce class-wide discovery. See Doc. No. 41 at 3. That time 20 ||has come. Defendant SHALL PRODUCE the entire class list to plaintiff within two days 21 || of the issuance of this Order. 22 IT IS SO ORDERED. 23 ||Dated: December 18, 2023 Yy JA 24 Mf We 25 Hori. Karen 8S. Crawford United States Magistrate Judge 26 27 28