Free Reply to Response to Motion - District Court of California - California

Case 3:07-cv-02178-W-AJB

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1 SEYF AR TH SHA W LLP

Samuel T. McAdam (SBN 186084)
2 Brandon R. McKelvey (SBN 217002)

Anthony 1. Musante (SBN 252097)
3 400 Capitol Mall, Suite 2350

Sacramento, California 95814-4428
4 Telephone: (916) 448-0159

Facsimile: (916) 558-4839
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Attorneys for Defendants SPHERION ATLANTIC ENTERPRISES LLC

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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PHILIP J. MARTINET, Individually, On Behalf of All Others Similarly Situated, and on Behalf of the General Public,
Plaintiff,
v.

) ) ) )
)

Case No. 07 CV 2178 W (AJB)

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)

DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER UNDER FEDERAL RULE OF CIVIL PROCEDURE 26(c)
Date: Time:
May 16, 2008 10:00 a.m. Courtroom: A - First Floor

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SPHERION ATLANTIC ENTERPRISES LLC, a Delaware Limited Liabilty
Company; and DOES 1 through 50,

inclusive,
Defendant.

) ) ) )
)

Judge:

Hon. Anthony J. Battaglia

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) )

I.

INTRODUCTION
Defendant Spherion Atlantic Enterprises, LLC ("Spherion") seeks a protective order

pursuant to Federal Rule of Civil Procedure 26( c) prohibiting plaintiff Philip Martinet from

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propounding or compellng oppressive and burdensome state-wide class discovery. In support of
its Motion for a Protective Order ("Motion"), Spherion produced substantial evidence from
multiple company witnesses establishing that state-wide class discovery would be an enormously

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expensive fishing expedition that would have no chance of supporting Martinet's class

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allegations. In his opposition, Martinet produces no evidence (not even a declaration on
information and belief) tending to prove that class discovery would support his class allegations.

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The primary question on this motion is whether the Court should permit oppressive and

burdensome class discovery in the absence of any showing from plaintiff that such discovery is

likely to substantiate class allegations. The answer to this question is a resounding "no."
DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER

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1 Ninth Circuit law prohibits class discovery when plaintiff cannot make a prima facie

2 showing of the class action requirements. By not submitting any evidence demonstrating that

3 class-wide discovery wil substantiate his class allegations, plaintiff has failed to meet the lowest
4 of

thresholds required to move forward with class discovery. The Court should prevent

5 plaintiff s fruitless fishing expedition and issue the requested protective order.

6 Rather than submit evidence demonstrating that class-wide discovery wil support his

7 allegations, plaintiff attempts to distract the Cour from the core issue in three ways. First,
8 plaintiff alleges that the parties have not fully met and conferred. However, the parties have

9 fully met and conferred on the global dispute over class discovery (in writing and telephonically)

10 such that further conferring on individual discovery requests would be futile.

11 Next, plaintiff alleges that defendant failed to keep required records. But Spherion did

12 keep required wage-and-hour records. i The records, however, are unique to thousands of
13 different employees in highly variable working conditions and are scattered throughout the state.
14 The discovery of these records would be unduly burdensome and oppressive and would

15 undermine plaintiff s class allegations rather than support them.
16 Finally, plaintiff attacks Spherion's motion by citing a litany of

inapposite wage-and-hour

17 cases that do not address the primary question at issue. No matter how many cases plaintiff
18 cites, it wil not change the fa~t that he has not met his burden to obtain class discovery.

19 II.
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LEGAL ARGUMENT
A.

Spherion Satisfied Rule 26(c) And Local Rule 16.5 Confer Requirements.

21 Rule 26( c) states that a motion for protective order "must include a certification that the
22 movant has in good faith conferred or attempted to confer with other affected parties in an effort

23 to resolve the dispute without cour action." Local Rule 16.5(k) provides that "(c)ounsel shall

24 'meet and confer' prior to filing any discovery motion and shall seek to resolve the matter
25 informally." The "dispute" and/or "matter" at issue on Spherion's Motion is whether plaintiff

is

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i The Court should disregard Plaintiff s attempt to build a case of record destruction
based on out of context state~ents in Spherion's declarations. Spherion's declarations discuss

the manner in which documents were kept and the diffculty of retrieving those documents in class discovery. Nowhere does Spherion admit or suggest it failed to keep required documents. -2SCI17093141.2
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1 entitled to obtain state-wide class discovery. The parties met and conferred about this dispute on

2 several occasions (including telephonically) and reached an impasse.

3 In support of its motion, Spherion' s counsel submitted a declaration certifying that they

4 had attempted to confer with plaintiffs counsel to resolve the dispute on several occasions to no
5 avaiL. See Declaration of

Brandon McKelvey in Supp. ofDefs Motion ("McKelvey Decl.") irir

6 4, 7, 8, 11-13. Plaintiffs counsel has not submitted a declaration or affidavit to the contrary.

7 Nor has counsel asserted that fuher confer efforts would be helpful to resolving the dispute over

8 class discovery. More importantly, the record demonstrates the parties conferred as much as
9 possible on the issue of state-wide class discovery and agreed, in front of

the Court, that no

10 further meet and confer was necessary on this issue. See McKelvey Decl. 4, 7,8, 11-13.

11 Plaintiff argues in his opposition that Spherion only satisfied Rule 26( c)' s confer

12 requirements with respect to plaintiffs Special Interrogatory Number 1 and Request for
13 Production of

Documents Number 3. (Opposition at p.3.) This is an unreasonably myopic

14 characterization of the dispute at issue and the meet-and-confer correspondence between the
15 parties. Although the dispute at issue was initially identified with respect to Special
16 Interrogatory Number 1 and Request for Production of

Document Number 3, Spherion made

17 clear in both correspondence to plaintiff and the Court that Spherion was objecting to all state-

18 wide class discovery. 2
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propounded class-wide discovery, the parties met and conferred via telephone at the end of February regarding discovery issues and agreed there was a dispute as to state-wide class discovery that required cour resolution. The parties raised the discovery dispute in their Joint Discovery Plan, submitted to the court on March 10:

2 After plaintiff

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pre-class certification discovery seeking information relating to thousands of its state-wide employees at hundreds of different offices and franchises is unreasonably broad, unduly burdensome, and irrelevant to certification of a class common to the Plaintiff. (...) Defendant anticipates moving for a protective order under Rule 26( c) because of the extreme burden posed by Plaintiff s discovery requests.
Defendant contends.. .

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At the Case Management Conference on March 21, Spherion again stated its objection to class discovery and the parties agreed, in front of the Court, that no fuher meet-and-confer efforts would be fruitful as to this dispute. Thereafter, defense counsel confirmed in writing that
no further meet-and-confer efforts were necessary. (See McKelvey Decl. irir 4, 7,8, 11-13.) -3SC117093141.2
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1 The "dispute" at issue is a global one that applies equally to each of plaintiff s discovery
2 requests seeking state-wide class information. The parties have met and conferred both in
3 writing and electronically on the this dispute. There is no requirement that Spherion and plaintiff

4 confer on each discovery request separately based on the same issue or dispute. This would be
5 fruitless and lead to the same result. Spherion's objections to the state-wide scope of Special
6 Interrogatory Number 1 and Request for Production of

Documents Number 3 are the same as its

7 objection to each of

the other discovery requests.3

8 The legal and factual arguments in Spherion's motion for protective order (and plaintiffs
9 responses to those arguments) are the same for each of the propounded class discovery requests.

10 Because the parties disagree on the fudamental and global issue of whether class discovery is
11 permitted in this case there is no negotiation or give and take to be done on each individual
12 request. 4 As such, requiring the parties to further confer on the same issue with respect to

13 different requests would be a futile exercise. The meet and confer requirements of Rule 26( c)
14 and Local Rule 16.5(k) have been satisfied and the Court should consider all of plaintiff s
15 discovery requests that seek state-wide class discovery in ruling on Spherion's Motion.
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B.

Martinet Has Failed To Make A Rule 23 Prima Facie Showing.

In support of its Motion, Spherion submitted multiple declarations from company

witnesses establishing that plaintiffs class accusations were baseless and that plaintiffs class
case was doomed to faiL. Spherion called plaintiff out on numerous vague allegations based on

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"information and belief' and challenged Martinet to come forward with even the slightest bit of
evidence supporting his allegations. (See Motion at p. 14, citing McKelvey Decl. irir 2-3,

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Exhibits A and B irir 32-34,37-38,41-43,46-47,52,57,59,64,66; Exhibit B ir 68.) In response

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3 See McKelvey Decl.irir 14-15, Exhibits M & N pgs. 114-151 (Exhibit A through N were numbered sequentially from 1 to 151). Spherion's response to document request number 3 (Ex. M pgs. 116-117) is the same as its responses to class document requests numbered 4,6, 7,8, 1013, 15-21 (Ex. M pgs. 117-131). Similarly, defendant's response to special interrogatory number 1 (Ex. N pg. 137) is the same as its responses to class interrogatory numbers 2 through 13 (Ex. N
pgs. 137-148). The same objections and dispute over class discovery apply equally to all the

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requests. 4 Martinet's Opposition references the fact that he is wiling to accept a statistical sampling of records. This is premature because plaintiff has not established a prima facie showing of the class action requirements entitling him to class discovery in any form. See Section II. B. infra. -4SC1 17093141.2

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to this challenge, plaintiff did not submit a single piece of evidence or testimony to substantiate

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his class allegations. Neither plaintiff nor his counsel submitted a declaration stating the basis

for their supposed "information and belief." No evidence was submitted to show that, if
discovery was permitted, it would substantiate plaintiffs class claims. Plaintiff

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has completely

failed to meet what is a very low burden of establishing a prima facie showing of the class action
requirements. See Mantolete v. Bolger, 767 F .2d 1416, 1424 (9th Cir. 1985).

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Plaintiff takes the position that he need not submit a credible explanation as to how classwide discovery wil support his allegations. Instead (as plaintiff

would have it), Spherion should

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go through the enormous effort of producing thousand of unrelated and unique employment

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documents for thousands of its diverse employees, and then Plaintiff wil tell the Cour what his
allegations are based upon. This is precisely the type of fishing expedition that is forbidden in
the Ninth Circuit. See Rivera v. NIBCO, Inc. 364 F.3d 1057, 1072 (9th Cir. 2004); Mantolete,
supra, 767 F.2d. at 1424; Blackie v. Barrack, 524 F.2d 891, 906 (9th Cir. 1975); Hatch v.

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Reliance Ins. Co., 758 F.2d 409,416 (9th Cir. 1985).
Plaintiff attempts to, but cannot, distinguish and minimize well-established Ninth Circuit
law the requires a prima facie showing under Rule 23 before class discovery can proceed.5

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Despite plaintiffs arguments to the contrary, Mantolete v. Bolger is applicable and similar to

Martinet's case. In that case, the plaintiff alleged an expansive class consistingofUnited States

Postal Service employees and sought nation-wide class discovery. The Ninth Circuit affrmed
the district court's refusal to allow class discovery and explained its holding as follows:

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Although in some cases a district cour should allow discovery to aid the
determination of whether a class action is maintainable, the plaintiff

bears the

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burden of advancing 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. Mantolete, supra, 767 F.2d. at 1424.

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falsely accuses Spherion of citing a red-flagged decision. (Oppo. p. 20:9-20). The case cited, Del Campo v. Kennedy, 336 F.R.D. 454 (N.D. Cal. 2006), is not a red-flagged decision and has no negative history. The case stands for the proposition for which it was cited: advancing a prima facie showing that the class action requirements "plaintiff 'bears the burden of
ofFed.R.Civ.P. 23 are satisfied, or that discovery is likely to produce substantiation of

5 Plaintiff

the class

allegations.'" Id. at 459.
-5SC1 17093141.2

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In Mantolete, the only evidence that plaintiff offered in support of class discovery was

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two other complaints fied by similar plaintiffs in other jurisdictions. Id. at 1425. The Ninth
Circuit found that:

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Such a showing (referring to the two complaints), however, does not furnish a compellng basis on which to conclude that the district court's refusal to grant expanded discovery for national class action treatment was an abuse of discretion. Nor does such a showing provide a likelihood that discovery measures wil 'produce persuasive information substantiating the class action allegations.'" Id. In the present case, Martinet offers even less than the plaintiff in Mantolete offered to

substantiate his class allegations. Plaintiff offers absolutely no evidence - not even a self serving
declaration - that tends to show that the Rule 23 class action requirements are satisfied or that
the class discovery is likely to produce substantiation of

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his class allegations. In the absence of

even a minimal prima facie showing, class discovery is not permitted in the Ninth Circuit.
Mantolete is sound precedent in this Circuit and is directly applicable in this case.6
C.

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The Litany Of Distinguishable Class Cases Plaintiff Cites Are Unavailng.

14 Rather than submit a credible explanation for how class-wide discovery wil support his

15 allegations, plaintiff cites ad nauseum cases that bear no resemblance to the case he fied. There

16 is nothing compellng about the fact that many wage-and-hour cases have been certified. This is
17 no more enlightening than the fact that many wage-and-hour cases do not get certified or are

18 decertified.7 All cases of any kind have to satisfy Rule 23 to proceed as class actions.
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6 Absent a prima facie showing under Rule 23, Martinet is not entitled to any class-wide discovery. The cases that plaintiff cites allowing statistical sampling (namely Hil v. Eddie Bauer, 242 F.R.D. 556 (C.D. Cal. 2007)), did not address the issue presently before this court. In Hil, defendant objected to the discovery based on confidentiality, privacy, undue burden, and
overbreadth. Id. at 560. Defendant did not object to the discovery on the basis of Mantolete and
did not argue that plaintiff

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7 Brown v. Federal Express Corp., WL 906517, *6-8 (C.D. Cal. Feb. 26,2008) (denying West Airlines, Inc., class certification in California meal and rest period case); Blackwell v. Sky 245 F.R.D. 453, 470 (S.D. Cal. 2007) (denying class certification as to California overtime, meal

had failed to make a prima facie showing under Rule 23.

period, and wage statement and deduction claims); Vinole v. Countryide Home Loans, Inc., 246
F.R.D. 637,641-642 (S.D. Cal. 2007) (denying class certification in California wage-and-hour

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overtime case); Jimenez v. Domino's Pizza, Inc., 238 F.R.D. 241, 253-254 (C.D. Cal. 2006) (denying class certification in putative class action for alleged violations of California's overtime and meal and rest period laws); Walsh v. IKON Offce Solutions, Inc., 148 Cal. App. 4th 1440, 1462-1463 (2007) (affirming decertification of class overtime and meal and rest period claims); Dunbar v. Albertson's, Inc., 141 Cal. App. 4th 1422, 1434 (2006) (affirming trial court order denying class certification on California wage-and-hour claims) -6SC1 17093141.2

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Plaintiffs Opposition proceeds on a strategy of

volume over substance. Plaintiff

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apparently hopes that ifhe cites enough cases in which cours certified wage-and-hour class
actions, the Court wil gravitate to this body of case law and ignore the facts of the case at hand.

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All of the cases that plaintiff cites share several common characteristics. First, all of
these cases are against large corporations with cookie cutter operations (e.g., Wal-Mart, Best
Buy, Rite Aid, Papa John's, Circuit City, FedEx Kinkos, Eddie Bauer) or small corporations with
uniform operations (e.g., Chinese Daily News and Radec). Second, all of

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these cases have as
these cases

their cornerstone uniform, company-wide policies and procedures. Third, none of

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address the issue presently before this court, which is whether class-wide discovery is permitted
where plaintiff has not made a prima facie showing of the class action requirements.

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Spherion is not like any of the companies in the cases plaintiff cites. The evidence
submitted in support of its Mo.tion establishes Spherion does not have uniform policies and

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procedures like the defendants in those cases. Most importantly, unlike the plaintiffs in the cases
cited, Martinet has not made a threshold showing to support his class allegations.

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Plaintiff cites In re Wal-Mart Stores, Inc. Wage and Hour Litigation, 505 F. Supp. 2d 609
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(N.D. Cal. 2007) ("Wal-Mart") and argues that the district cour in that case "rejected nearly

identical arguments made by Defendant in the case at hand." (Opposition 13:17-19.) Plaintiffs
have mischaracterized the Wal-Mart decision. Wal-Mart addressed defendant's motion to

dismiss and strike class allegations under Federal Rule of Civil Procedure 12. 505 F. Supp. 2d at
611. The case did not address class-wide discovery. There is no discussion of

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the law in the

Ninth Circuit that requires plaintiffs to make a prima facie showing under Rule 23 and
demonstrate that class discovery wil substantiate class allegations. Neither of

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the parties made

arguments concerning class discovery. The permissibility of class-wide discovery was simply

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not at issue in Wal-Mart.8 This case - and the other inapposite case plaintiff cites - cannot stand
for a proposition that they do not address.

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8 Wal-Mart certainly did not address the nature or scope of class discovery. In dicta, the cour mentioned that plaintiff should be given the opportunity to "make the case for certification what constitutes "appropriate discovery" was based on appropriate discovery." But the issue of
not before the court. The issue before the cour (whether class allegations were sufficient to

withstand a Rule 12 motion) had nothing to do with class discovery.
-7SC117093141.2
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1 In a footnote, plaintiff

mentions that the court in Wal-Mart eventually certified a portion

2 of

the class. However, the subsequent decision certifying the class does not address the

3 propriety, nature, or scope of class discovery. See In re Wal-Mart Stores, Inc. Litigation, 2008

4 WL 413749 (N.D. Cal. 2008). Moreover, the court's certification order reveals the hallmarks of
5 a viable class case not present here, including a company-wide compensation system (id. at 2), 6 uniform company-wide pay procedures (id at 3-4), and common payroll databases (id. at 5-6).
7 The court's finding of predominance under Rule 23(b)(3) was based on "use of

the records

8 common to members of

the proposed class." Id. at 13.

9 Unlike the plaintiffs in Wal-Mart, Martinet has not and cannot make any showing that
10 there is any cognizable class among thousands of Spherion employees working at thousands of

11 different job assignments with unique policies and procedures. Spherion is not operated or
12 organized like Wal-Mart and Martinet's case bears no resemblance.9

13 In addition to relying on cases involving large monolithic corporations like Wal-Mart,
14 plaintiff also cites cases on the other end of the spectrum involving very small employers with
15 centralized operations. Plaintiff cites Wang v. Chinese Daily News, Inc., 231 F.R.D. 602 (C.D.

16 Cal. 2005) for the proposition that employees in different job categories do not defeat

17 commonality. Wang involved less than 200 employees of a Chinese newspaper company that
18 operated out of a single office in Monterey Park. (Id. at 604.) Class discovery issues were not
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9 Plaintiff cites numerous inapposite cases involving highly standardized chain store
operations like Wal-Mart. Two of the cases plaintiff relies on are not citable under Ninth Circuit Rule 36-3: Whiteway v. FedEx Kinko's Offce and Print Services, Inc., 2006 WL 2642528, 1 (N.D. Cal. 2006) ("Fed

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Ex Kinko 's") and Tierno v. Rite Aid Corp., 2006 WL 2535056, 2 (N.D.

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Cal. 2006) ("Rite Aid'). In these cases, the Northern District certified classes of store managers sharing the same job title, training, policies and procedures, and general responsibilties at "highly standardized chain store operations" throughout the state on the common question of
whether the managers were properly classified as exempt employees. Fed

Ex Kinko 's at 1-2; Rite

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Aid at 5-6. Unlike these cases, Martinet has not and cannot identify a viable class of employees with the same or similar job titles, training, policies and procedures, and responsibilities. The other chain-store cases plaintiff cites are similarly distinguishable. In Kurihara v. Best Buy Co., Inc., 2007 WL 2501698 (N.D. Cal. 2007) the court certified a class to determine whether a "formal, company-wide policy" related to employee inspections violated California
law. Id. at 6. In

Alba v. PapaJohn's USA, Inc., 2007 WL 953849,1 (C.D. Cal. 2007) the court

found common questions of law and fact predominated "because of the presence of standardized practices enforced from a central authority. . . ") These cases are no help in a case against a company like Spherion, which has a splintered management structure and hundreds of different highly customized policies and procedures.
-8DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER
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1 before the court. The court's certification order was based on a showing by plaintiff

that

2 "Defendant applied unlawfl wage and hour-related policies to all members of the proposed
3 class through a centralized management structure and that the application of those policies
4 systematically deprived class members of

their rights." (Id. at 608.) Martinet cannot make a

5 similar showing here (not even a prima facie showing) because Spherion's does not have a

6 centralized management structure and does not have a uniform set of policies that applied to all
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7 employees throughout the state.

8 Spherion is not organized like any of the companies in the cases plaintiff cites. Spherion
9 does not have uniform practices and procedures like these companies. Nor does it transact
10 business like any of these companies. By relying on these cases, plaintiff

has ignored the core

11 issue on this motion. Spherion is not arguing that wage-and-hour cases are not amenable to class

12 treatment. Nor is Spherion arguing that wage-and-hour cases are not subject to class-wide
13 discovery. Spherion is arguing that the unique nature of

its business and the unique facts of

14 Martinet's case distinguish it from the run-of-the-mil class action cases certified against
1 1 Plaintiff 15 companies like Wal-Mart, Best Buy, or other cookie cutter retail businesses.

has

16 ignored this argument altogether, hoping that the Cour will be overwhelmed with a large volume

17 of dissimilar and distinguishable cases where class certification was granted. The Cour should

18 not be sidetracked by these cases.
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D.

Plaintiff's P AGA Claim Must Comply With Rule 23.

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Plaintiff argues that because there are no class action requirements set forth in P AGA

(California Labor Code § 2698 et seq.), his claims under this statute are not subject to class
10 Plaintiff cites Mendez v. Radec Corp., 232 F.R.D. 78 (W.D.N.Y. 2005), which is also

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distinguishable. The case involved a small class of employees (70 opt-ins) who were subject to the "same unlawful policies" and a common practice or scheme. Id. at 91-92. In finding predominance, the court noted that plaintiffs were challenging polices "which have been applied in a more or less uniform fashion to Radec employees." Id. at 93. 11 The case most analogous to Martinet's case is Brown v. Federal Express Corp. WL

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906517 (C.D. Cal. 2008). This was a wage and hour class brought against Fed Ex on behalf of all its drivers, alleging missed meals and rest periods. (Id. at 1.) The court denied certification finding individual issues predominated over common questions. (Id. at 6-7.) The court the drivers, varying experience levels, different work loads, job duties of emphasized the varying different levels of monitoring, different routes, and different facilities throughout California with different management philosophies. (Id. at 6-8.)
-9SC1 17093141.2

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1 certification requirements. Plaintiff forgets that he is in federal cour. It is well established that
2 the Federal Rules of Civil Procedure are to be applied by federal cours over conflcting state

3 law. Hanna v. Plumer, 380 U.S. 460,473-474 (1965). Rule 23 applies to cases brought in
4 federal court even when state law affords a plaintiff

the right to proceed independently. See

5 Ayers v. Thompson, 358 F.3d 356,375 (5th Cir. 2004).

6 The only federal case that Martinet cites on this issue, De Simas v. Big Lots Stores, Inc.,

7 2007 WL 686638 (N.D. Cal. 2007), actually establishes that Federal Procedural rules apply to
8 PAGA claims. Plaintiff

in that case argued that PAGA (Section 2699.3(a)(2)(c)) permitted

9 plaintiffs to amend their complaint to add P AGA claims even though a Federal Rule of Civil

10 Procedure 15 did not permit the amendment. Id. at 4. Citing Hanna v. Plumer, the court held
11 that "pursuant to the Supremacy Clause, U.S. Const. art VI, cl. 2, the Federal Rules govern." Id.

12 at 4. Martinet's PAGA claims are subject to Rule 23 requirements and Ninth Circuit procedural
13 jurisprudence, including the holding in Mantolete v. Bolger discussed supra.
14

III.

CONCLUSION

15 Spherion's Motion12 established that the discovery Martinet seeks has no chance of
16 supporting his class allegations and would require Spherion to expend over a half-milion dollars
17 on a fruitless fishing expedition. Plaintiff

has failed to submit any evidence to the contrary. The

18 Court should issue a protective order prohibiting class-wide discovery.
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DATED: May 9, 2008

SEYFARTH SHAW LLP

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By

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12 It was brought to Spherion's attention that there was a question as to whether

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defendant's opening brief and plaintiff s opposition exceeded the allowable 25 page limit. Defendant's opening brief was 22 pages, with a 4 page table of contents and authorities. Local Rule 7.1 (h) does not address whether the table of contents and authorities is to be included in the motion length. The rule in at least one other district suggests that indices are not included within the page limit. See, e.g., Central District, Local Rule 11-6. -10SCl17093141.
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PROOF OF SERVICE

2 STATE OF CALIFORNIA )
) ss 3 COUNTY OF SACRAMENTO )
4 I am a resident of the State of California, over the age of eighteen years, and not a party

to the within action. My business address is Seyfarth Shaw LLP, 400 Capitol Mall, Suite 2350,
5 Sacramento, California 95814-4428. On May 9, 2008, I served the within documents:

6 DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER UNDER FEDERAL RULE OF CIVIL PROCEDURE 26(c)
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8

o o o
IK

I sent such document from facsimile machine (916) 558-4839 on May 9, 2008. I certify that said transmission was completed and that all pages were received and that a report was generated by facsimile machine (916) 558-4839 which confirms said
transmission and receipt. I, thereafter, mailed a copy to the interested party(ies) in this

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action by placing a true copy thereof enclosed in sealed envelope(s) addressed to the
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paiiies listed below.

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by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at 400 Capitol Mall, Suite 2350, Sacramento, California 95814, addressed as set forth below.
by personally delivering the document(s) listed above to the person(s) at the addressees) set forth below.
by placing the document(s) listed above, together with an unsigned copy of

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this declaration, in a sealed Federal Express envelope with postage paid on account and deposited with Federal Express at Sacramento, California, addressed as set forth below.

Derek J. Emge Emge & Associates
550 West C Street, Suite 1600

David A. Hllch
Law Offces of

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San Diego, CA 92101 (619) 595-1400 (619) 595-1480

David A. Huch 7040 Avenida Encinas, Suite 104 Carlsbad, CA 92011-4654 (760) 402-9528 (760) 683-3245

22 I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
23 day with postage thereon fully prepaid in the ordinary course of motion of

business. I am aware that on

postal cancellation date or postage 24 meter date is more than on day after the date of deposit for mailng in affidavit.
the party served, service is presumed invalid if 25 I declare that I am employed in the offce of a member of the bar of

this court whose

direction the service was made.
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Executed on May 9, 2008, at Sacramento, Califo

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PROOF OF SERVICE
SCI 17088257.1/34991-000232

Case No. 07 CV 2178 W (AJB)