ORDER REGARDING DISCOVERY DISPUTE
Re: ECF No. 53
JON S. TIGAR, District Judge.
Now before the Court is the parties' second joint discovery letter brief. ECF No. 53. In their first discovery letter brief, the parties identified a variety of disputes concerning the production of documents, the production of class member identity information, the Defendants' response to Plaintiffs' contention interrogatories, and other issues. ECF No. 48. In a prior order, the Court resolved many of these disagreements, and ordered the parties to meet and confer about others. ECF No. 50. This most recent joint letter brief identifies the issues as to which disputes remain.
In the introduction to their letter, the parties state that "[t]wo general issues remain outstanding: 1) to what extent Defendants are required to state all facts and produce all documents relating to Defendants' denial of Plaintiffs' class action allegations, 2) the scope and authentication of the production of all data relating to putative class members' compensation, hours and bonus multipliers." ECF No. 53 at 1.
A. Plaintiffs' Contention Interrogatories
Plaintiffs served Defendants with requests for admission, accompanied by (1) interrogatories asking the Defendants to identify all facts and all documents supporting any denials, and (2) requests for production asking that such documents be produced. Such discovery requests are frequently referred to as "contention interrogatories." Although Plaintiffs' discovery requests cover a variety of topics, Plaintiffs now seek to compel Defendants to state all facts and produce all documents in support of Defendants' denial of Plaintiffs' class action allegations.
Defendants object to these requests on a number of grounds. First, Defendants object that identification of the facts and documents they intend to rely on is protected by the attorney work product privilege. The case they cite,
Second, Defendants object on grounds of burden. As to Plaintiffs' document requests, they state that "Plaintiffs are not entitled to every document in Defendants' possession." ECF No. 53 at 5;
This objection is not persuasive. Defendants are correct insofar as they suggest that the Court has the power to limit or prevent discovery when it is unduly burdensome, i.e., when the burden imposed by the discovery outweighs its likely benefit considering the parties' resources and the amount in controversy.
Finally, Defendants also argue that the document requests accompanying the interrogatories would require them to produce documents containing the confidential information of putative class members. This objection also is unconvincing. "Numerous courts in the Northern District of California have allowed pre-certification discovery of putative class members' confidential information subject to a protective order, without requiring prior notice to the putative class members."
As to Plaintiffs' "state all facts" interrogatories, however, Defendants' burden objection is more persuasive. Courts have wide discretion to decide whether and when a party must answer contention interrogatories. Rule 33(a)(2) of the Federal Rules of Civil Procedure provides that "the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time." "Commenting on this passage, the Advisory Committee notes that `Since interrogatories involving mixed questions of law and fact may create disputes between the parties which are best resolved after much or all of the other discovery has been completed, the court is expressly authorized to defer an answer.'" In re
At this stage of the litigation, requiring the Defendants to "state all facts" amounts to requiring Defendants to give Plaintiffs a preview of Defendants' opposition to class certification. Once Defendants have produced the discovery materials relevant to certification, both sides will have access to the same evidence, and the burden of identifying relevant facts will be the same. And while contention interrogatories seeking the identification of facts are appropriate in some instances, at this early stage of the litigation they are premature.
B. Defendants' Compensation Information, Including Wage Statements, Bonus Calculation Documentation, Monthly Spreadsheets Used to Calculate Bonus Multipliers and Authentication of Previously Produced Compensation Information
The next dispute relates to Plaintiffs' request that Defendants produce certain documents relating to putative class members' compensation. Specifically, Plaintiffs request that Defendants produce the putative class members' wage statements, accompanying documentation that details how the bonuses were calculated (such as Drivers Income Report and Technician Parts) and spreadsheets/evaluations (such as weekly reviews) used to calculate the bonus multipliers. Plaintiffs also requested that Defendants authenticate information that was previously provided by Defendants to Plaintiffs at a mediation conducted earlier in the case. The Court addresses these requests separately.
As to the production of documents related to putative class members' compensation, Defendants objection on grounds of undue burden is overruled. Defendants have not quantified either the number of documents or the number of hours required to retrieve them, so there is no way for the Court to conclude that the burden of producing the documents is unreasonable. Furthermore, the information the Court does have suggests the opposite: in a telephonic hearing regarding the parties' discovery dispute, ECF No. 58, Defendants acknowledged that there are fewer than 100 class members.
With regard to Plaintiffs' request that Defendants authenticate summaries Defendants provided at mediation, Defendants argue that production or authentication of the summaries would violate California's mediation privilege. That privilege "bars discovery or admission in evidence of any `writing . . . prepared for the purpose of, in the course of, or pursuant to, a mediation.'"
Plaintiffs do not dispute that the privilege applies, but note only that documents which were prepared independently of a mediation do not become privileged simply by virtue of having been exchanged at that mediation. So far as it goes, Plaintiffs' argument is correct. But Plaintiffs make no showing that the summaries provided at the mediation in this case fit that description.
Defendants' objection to the further production of, or request that they authenticate, summaries provided at the parties' mediation is sustained.
Defendants' objections to Plaintiffs' "state all facts" contention interrogatories related to Defendants' denials of Plaintiffs' class action allegations are sustained. Defendants' objections to Plaintiffs' "identify all documents" contention interrogatories related to Defendants' denials of Plaintiffs' class action allegations are overruled. Defendants' objections to Plaintiffs' requests for Defendants' compensation-related documents as set forth above are overruled. Defendants' objections to Plaintiffs' requests for production or authentication of documents provided at mediation are sustained.
The parties are ordered to file either a stipulated request for entry of protective order or competing proposals for such an order within seven days of issuance of this order. Defendants are ordered to produce the foregoing documents within seven days of the entry of that order by the Court.