ORDER RE DISCOVERY DISPUTE JOINT REPORT NO. 1
[Re: Dkt. 29]
HOWARD R. LLOYD, Magistrate Judge.
In this wage-and-hour case, plaintiff Isaac Rodriguez sues for himself and on behalf of a putative class of all current and former non-exempt retail store employees of defendant Nike Retail Services, Inc. (Nike) who worked in California during the period from February 25, 2010 to the present. Rodriguez alleges that Nike has a policy or practice of forcing its employees to submit to a security inspection after they clock-out from work, leaving employees uncompensated for the time spent in these security checks. (Dkt. 27, First Amended Class Action Complaint ¶¶ 23, 32, 38). Plaintiff asserts two claims for violation of various provisions of the California Labor Code, as well as a claim for violation of California Business and Professions Code § 17200. Federal jurisdiction is premised on diversity, 28 U.S.C. § 1132, and the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). Nike says that simply having managers look in an employee's bag as they walk out the door does not constitute compensable time.
At issue in Discovery Dispute Joint Report (DDJR) No. 1 is whether defendant should be compelled to provide the names, last known addresses, and telephone numbers of putative class members in response to plaintiff's Interrogatory No. 1.
Preliminarily, Nike contends that the instant DDJR is untimely because it was not filed within 14 days after the parties' in-person meet-and-confer, as required by the undersigned's Standing Order re Civil Discovery Disputes. Nike says that the delay was plaintiff's fault. However, defendant does not deny that, following their in-person meeting, the parties agreed to hold open the meet-and-confer process, for the purpose of conducting further negotiations after Nike's Fed. R. Civ. P. 30(b)(6) deposition. Parties are encouraged to meet-and-confer as much and as often as necessary to attempt to resolve their discovery disputes without court intervention. DDJR No. 1 was filed within 14 days after defendant confirmed in a January 30, 2015 email that it would not provide the requested discovery. Thus, while the DDJR was not filed in strict compliance with the timing requirements of the Standing Order, this court declines to find that the report is untimely.
Plaintiff contends that he is entitled to the contact information of all potential class members "as a matter of law." To the extent plaintiff means that he is automatically entitled to such discovery, he is wrong. In order to obtain pre-certification discovery, plaintiff bears the burden of making a prima facie showing that the class action requirements of Rule 23 are satisfied, or that discovery is likely to produce substantiation of the class allegations.
This court is told that there are over 6,000 potential class members who worked in more than 31 stores over the requested five-year period from February 25, 2010 to the present. There appears to be no serious dispute that plaintiff is entitled to at least some pre-certification discovery. The crux of the parties' disagreement is whether plaintiff should be permitted the requested discovery of all putative class members (plaintiff's position) or whether he should be limited to employees at Nike's Gilroy location where plaintiff worked (Nike's contention).
Plaintiff maintains that he is entitled to discovery of the entire class because, in Nike's Fed. R. Civ. P. 30(b)(6) deposition, defendant's designated witness, Jeffrey McPike, confirmed that bag security checks are conducted after an employee clocks out: "There is a bag check policy that any time an employee leaves the store if they are on shift they are to get their bag checked which is a process which we just look in the bag on their way out the door." (Dkt. 29, DDJR No. 1 at 5 (McPike Depo. at 50: 2-7)). According to the DDJR, McPike also testified that Nike does its best to ensure that all of its stores know and follow the company's policy. (
Nike says that Rodriguez worked at defendant's Gilroy location as a seasonal part-time employee for a total of 10 shifts in 2011 and argues that, like the plaintiff in
To the extent plaintiff is complaining about huddles being conducted off-the-clock, there may be a disconnect with the alleged violation asserted in his complaint, i.e., off-the-clock security checks. Nevertheless, his testimony does not contradict his allegations that Nike violated labor laws through a policy requiring off-the-clock security checks. Whether the security checks occurred during off-the-clock huddles or whether they occurred in accordance with defendant's acknowledged policy re security checks, all security checks plaintiff complains about occurred off-the-clock. In view of Nike's testimony that it has a company-wide policy requiring off-the-clock security checks, this court finds that "[t]he better and more advisable practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to whether a class action [is] maintainable."
Nike nevertheless maintains that disclosure of the requested contact information violates the putative class members' privacy rights. Plaintiff's need for the requested information must be balanced against defendant's asserted objections, including the privacy rights of potential class members.
While no protective order has been entered in this case, the parties each suggest other means of protecting the privacy of potential class members, particularly those who may not wish to be contacted at all. In his April 27 filing, plaintiff alludes to use of an opt-out
Additionally, the parties are encouraged to meet-and-confer on the terms of a protective order to protect any sensitive or private information that is produced. Meanwhile, any contact information that is produced shall be kept confidential and used solely for purposes of this litigation. The parties shall not further disclose any potential member's contact information, absent consent from the particular putative class member in question. To further minimize the possibility for abuse, the court reminds the parties that their communications must be fair and accurate and that misleading, intimidating, or coercive communications are prohibited.