Free Motion for Protective Order - District Court of California - California

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

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1 SEYFARTH SHAW 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 6 SPHERION ATLANTIC ENTERPRISES LLC
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
) Case No. 07 CV 2178 W (AJB) ) ) DEFENDANT SPHERION ATLANTIC ) ENTERPRISES LLC'S ) MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT OF ITS ) MOTION FOR A PROTECTIVE ) ORDER PURSUANT TO FEDERAL ) . RULE OF CIVIL PROCEDURE 26(c) ) May 16, 2008 ) Date: 10:00 a.m. ) Time:
) ) )

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10 PHILIP J. MARTINET, Individually, On Behalf of All Others Similarly Situated, and 11 on Behalf of the General Public,
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Plaintiff,
v.

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

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inclusive,

Defendant.

Courtroom: A - First Floor Judge: Hon. Anthony J. Battaglia

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SPHERION ATLANTIC ENTERPRISES LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER
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1 TABLE OF CONTENTS
2 i. INTRODUCTION AND SUMMARY OF ARGUMENT..........................................................

1

3 II. SUMMARY OF RELEVANT FACTS .......... ....... ........... ....... ................ ....................... ...........2
4
5

A.
B. C.

Spherion Is A Multifàceted And Complex Staffng Company................................l

Spherion Personnel Serve Thousands Of Clients On Multitudinous Assignments. .............................................................................. 4
Plaintiff

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Worked On A Very Unique Assignment For Two Months. .....................5

D.
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Plaintiff

Sued Spherion Seeking To Represent A State-Wide Class.......................6

E.
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Plaintiff Served Exhaustive State-Wide Discovery To Which Spherion Objected. .................................................................................................. 7
The Parties Met And Conferred On The Discovery But Reached An Impasse. ..... 8

F.
G.

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Responding To State-Wide Class Discovery Would Require Thousands Of Man Hours And Cost Spherion Or Plaintiff Hundreds Of Thousands Of Dollars. .......................................................................8

13 III. LEGAL STANDARD ............................................................................................................ 10

14 IV. LEGAL ARGUMENT........................................................................................................... 11
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A.

PlaintiffIs Not Entitled To State-Wide Class Discovery
Because He Cannot Make A Prima Facie Showing Of

Rule 23

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Class-Action Requirements. .................................................................................. 11 .
B.
C.

The Court Should Prohibit All State-Wide Class Discovery Because It Wil Not Substantiate Any Of Plaintiff's Baseless Class Allegations. ..............14: .

The Cour Should Prohibit All Class-Wide Discovery Because
It Is A Fruitless Fishing Expedition.......................................................................

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15

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D.
E.

There Is Good Cause For A Protective Order Prohibiting Or Prescribing Class Discovery. ................................................................................. 17

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Plaintiff's Discovery Violates The Privacy Rights ofSpherion Employees. ........18
1. Plaintiff's Case Is Far Different Than The Pioneer Electronics Case. ......19

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2.
3.

The Belaire-West Landscaping Case Is Distinguishable...........................

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Plaintiff's Discovery Is Unlike The Discovery At Issue In Putnam v. Eli Lilly. ...............................................................................21

26 V. CONCLUSION... .................... ... .... ...... .......... .... ............ ............. ... ...................... ....... .......... ... 22
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i SPHERION ÁTLANTIC ENTERPRISES LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER

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2 FEDERAL CASES
3 Blackie v. Barrack,

1 TABLE OF AUTHORITIES
524 F.2d 891 (9th Cir. 1975) .............................................................................................16

4
5

In re Coordinated Pretrial Proceedings" 669 F.2d 620 (lOth Cir. 1982) ...........................................................................................1 l
Del Campo v. Kennedy, 236 F.R.D. 454 (N.D. CaL. 2006) ................................................................................10,1 L
Doninger v. Pactfic Northwest Bell,

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8

564 F.2d 1304 (9th Cir. 1977) ..............................~..................................................1, 11, 15

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10

Hatch v. Reliance Ins. Co., 758 F.2d 409 (9th Cir. 1985) ................................................................................. 10, 16, 17
Heenvagen v. Clear Channel Communications,

11 435 F.3d 219 (2nd Cir. 2006) ............................................................................................10
12 Hil v. Eddie Bauer,

242 F.R.D. 556 (C..D. CaL. 2007).......................................................................................10
13

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Hoffmann-La Roche, Inc. v. Sperling, 493 U. S. 165 (1989) .............................. ................................................................. ........... 18

Kamm v. California City Development Co., 509 F.2d 205 (9th Cir. 1975) ................................................................................. 10, 17, 18;
1

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Little v. City o/Seattle, 863 F.2d 681 (9th Cir. 1988) ............................................................................................. 10

Lumpkin v. E.I Du Pont de Nemours & Co., ..
161 F.R.D. 480 (M.D. Ga. 1995).......................................................................................15.

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20 767 F.2d 1416 (9th Cir. 1985) .................................................................... 1,11,14,16,22
21 Putnam v. Eli Lily and Co., 508 F. Supp. 2d 812 (2007) .........................................................................................21, 22
22

Mantolete v. Bolger, .

Ricotta v. Allstate Ins. Co., 23 211 F.R.D. 622 (SD Cal 2002) ..........................................................................................17
24 Rivera v. NIB

CO, Inc., 364 F .3d 1057 (9th Cir. 2004) ............................................................................... 1 1, 16, 17

25

Rodriguez v. Department o/the Treasury,

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108 F.R.D. 360 (D.C. Dist. 1985)...................................................................................... 15
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SPHERION ATLANTIC ENTERPRISES LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER
Error! Unknown document property name.
07 CV 2178 W (A.TB)

Case No.

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1

Severtson v. Philips Beverage Co., 2 13 7 F .R.D. 264 (D. Minn. 1991)....................................................................................... 22
3 Tracy v. Dean Witter Reynolds,

185 F.R.D. 303 (D. Col. 1998) ....................................................................... 10, 14, 15, 17
4

United States v. CBS. Inc.,

5 666 F.2d 364 (9th Cir. 1982) ............................................................................................. 1 1
6 Wood v. McEwen,

644 F.2d 797 (9th Cir. 1981) .............................................................................................11
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STATE CASES
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Belaire-West Landscaping, Inc. v. Superior Court, 9 149 CaL. App. 4th 554 (2007) ...................................................................................... 19,20

LO Board o/Trustees v. Superior Court,
119 CaL. App. 3d 516 (1981) .............................................................................................18.
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Pioneer Electronics, Inc. v. Superior Court,

12 40 CaL. 4th 360 (2007) ....................................................................................................... 19
13 Puerto v. Superior Court (Wild Oats Markets, Inc.),
158 CaL. App. 4th 1242 (2008).......................................................................................:.. 21
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FEDERAL STATUTES
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Federal Rule of

Civil Procedure 26(c).................................................................................I, 11,12

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STATE STATUTES
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Cal Const. art. 1, § 1 ...................................................................................................................... 18
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II
SPHERION ATLANTIC ENTERPRISES LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER
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07 CV 2178 W (A.IB)

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1 i. INTRODUCTION AND SUMMARY OF ARGUMENT
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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 against
Spherion. There is good cause for a protective order because the state-wide discovery Martinet
seeks has no chance of supporting his class allegations and would require Spherion to expend over a half-milion dollars on what amounts to a fishing expe,dition.

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Spherion is a staffing company with over 50 local offces in California that place
thousands of employees at tens of thousands of different job assignments throughout the state.

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Martinet is a fonner employee who worked at Spherion for less than six weeks on a small project' that provided IT support to a customer (Electronic Data Systems, Inc.) of one of Spherion's

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clients (Dell). There is only a small handful of Spherion employees who share the same job
duties, procedures, and working conditions applicable to Martinet.

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Despite the uniqueness ofMartinets employment, he fied a formulaic class-action
complaint seeking to represent a state-wide class of all non-exempt Spherion employees from
September 2003 to the present. Plaintiff's overbroad class definition consists of

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well over

10,000 employees working in almost every industry imaginable and subject to 15 different

California Wage Orders. The proposed class includes employees placed by Spherion at tens of
thousands of different projects over a four-year period, many with their own unique set of

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practices, procedures, and operative employment documents. There is no conceivable way
Martinet can demonstrate he is an adequate representative for a putative class of diverse statewide Spherion employees in thousands of different job assignments across multiple industries.

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The class allegations in his complaint are baseless and class discovery wil only undermine his
class allegations.
The Ninth Circuit has long required that a plaintiff make a prima facie showing of

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the

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Rule 23 class-action requirements prior to permitting class discovery. Doninger v. Pactfc
Northwest Bell, 564 F.2d 1304,1312-13 (9th Cir. 1977); Mantolete v. Bolger, 767 F.2d 1416,
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SPHERION ATLANTIC ENTERPRISES LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER
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1 1424 (9th Cir. 1985). Plaintiff canot make this showing and no amount of discovery wil
2 substantiate his class allegations. Spherion is not an employer like Wal-Mart or Starbucks with

3 standardized operations and employees performing similar job functions under the guise of

4 unifonn company-wide policies and procedures. Spherion is a unique, multifàceted recruiting
5 agency that provides employees to more than 3,000 diverse businesses, govemrent agencies,

6 and non-profit entities at over 15,000 different locations throughout California. The job titles,
7 job descriptions, working conditions, and operative employment documents for Spheriön

8 employees are legion.

9 Without a basis to support his class-allegations, plaintiff propounded state-wide class

10 discovery seeking, among other things, all policies and procedures, handbooks, meal and rest
11 period compliance records, and training documentation for all Spherion employees in California.
12 To comply with such a request, Spherion would have to spend hundreds of

thousands of dollars
thousands of unique and individualized

13 and thousands of

hours culling through the records of

job

14 placement assignments throughout the state. In the process, Spherion also would be required to
15 disclose the personal information of thousands of its personnel (many of whom only worked with
16 the company for a few days or less) in violation of

their privacy rights. A protective order is

17 necessary to prevent this oppressive and unecessary fishing expedition.

18 II.
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SUMMARY OF RELEVANT FACTS
A.

Spherion Is A Multifaceted And Complex Staffing Company.

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Spherion is a staffng company that provides job assignments to thousands of individuals

in California and throughout the United States and Canada. (Declaration of Joan L. Orzo in
Suppoii of

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Defendants Motion ("Orzo Decl.") ir 4.) Spherion recruits and hires individuals and

assigns them to businesses, govemrent agencies, non-profit entities, and other organizations
throughout the country under a variety of different contracts and service agreements. (Orzo

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Dec1 ir 4.) Spherion supplies recruits to almost every industry imaginable, including: retail,
healthcare, construction, legal services, manufacturing, pharaceuticals, commercial and

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residential real estate, insurance, mortgage and loan, automotive, plumbing, financial services
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and banking, securities, consumer credit, engineering, waste collection, education, public

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utilities, airline, cable and internet, media, business services, packaging and shipping, food
services, beverage and wine, bottling, computers and electronics, entertainment and motion picture, transportation, travel and hotel, agriculture, marketing and advertising,

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telecommunications, publishing, internet, infonnation technology, charitable and religious,

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military, county and city govemrent, and numerous state agencies. (Orzo DecL. ir 4.)
There are currently over 600 local Spherion offices throughout the United States.
(Declaration of Alfredo Echeverria in Support of

Defendant's Motion ("Echeverria Decl.") ir 4.)

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Over the last four years there have been between 45 and 58 local offices in California. In
addition, there are currently 9 Spherion licensees and 2 Spherion franchisees in California.
(Echeverria DecL. ir 4.) Some Spherion offces are operated directly by the company and service

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a number of clients in a particular area. (Orzo DecL. ir 7.) Other offces are on the premises of a

paiiicular client's office, where Spherion only services that particular client. Yet other offces
are run by the franchisees or licensees. i (Orzo DecL. ir 7.)

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Spherion is a multifaceted business with a multi-layered organizational structure.

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Spherion has two primary business units/divisions - Staffng Services and Professional Services.
(Orzo DecL. ir 11.) Recently, however, Spherion has acquired several businesses and these
units/divisions have splintered into multiple divisions or groups. (Orzo DecL. ir 11; Declaration

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of Scott Holland in Support of

Defendant's Motion ("Holland Decl.") ir 8.) Within each

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unit/division there are multiple employee classifications with thousands of different job titles.
(Orzo Dec1 ir 11; Holland DecL. ir 3.) Within each classification and

job title there are

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employees performing a wide range of activities and duties in a variety of different industries for
a variety of different clients. (Orzo DecL. ir 11; Holland DecL. ir 3.) In addition to personnel that

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Spherion places on assignment, Spherion has a number of

full-time employees who work in local

offices and manage Spherion's day-to-day operations. (Orzo DecL. ir 6; Holland Dec1 ir 3.)

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1 Spherion licensees have and manage their own office employees, while Spherion provides support and management for temporary staff recruited and placed by the licensee. Spherion franchisees on the other hand manage and control both their on-site offce staff as well as the
temporary staff

recruited and placed by the franchisee. (Orzo DecL. ir 7.)
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SPHERION ATLANTIC ENTERPRISES LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER

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B.

Spherion Personnel Serve Thousands Of Clients On
Multitudinous Assignments.

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Spherion serves over 3,000 clients with over 15,000 locations in California on thousands'
of different projects and assignments. (Echeverria DecL. ir 5.) Spherion's clients range from
large foiiune 500 companies to small local (mom-and-pop) businesses. Spherion's clients also

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include govemrent agencies, charitable and religious organizations, and non-profit entities.
(Echeverria DecL. ir 5.) Although Spherion has some longstanding clients, there is a high rate of

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attrition among a portion of Spherion' s clientele as businesses and organizations come and go or
sporadically use Spherion's services. Spherion's clientele and the assignments it recruits for
change on a daily basis. (Orzo DecL. ir 9.)

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Each year Spherion recruits thousands of individuals in California for assignments at
thousands of different locations with thousands of different clients. (Echeverria DecL. ir 6.)

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Spherion personnel provide a wide range of services including general labor and production

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work, administrative and office support, managerial and professional work, and skiled, technici;l
and scientific work. (Orzo DecL. ir 5.) Spherion personnel may support or supplement regular

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workforces; provide assistance in special work situations such as employee absences, skil
shortages, and seasonal workloads; or perform special assignments or projects. (Orzo DecL. ir 5.)

Assignments last anywhere from a few hours to multiple days, weeks, months, or even years.
(Orzo DecL. ir 5; Holland DecL. ir 3.)

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The duties and working conditions of Spherion personnel vary according to the account

and project to which they are assigned. (Orzo DecL. ir 6.) Spherion personnel have thousands of

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different job titles and perform thousands of different job duties. An employee's job title mayor
may not accurately describe what he or she actually does on a day-to-day basis as job duties and
requirements are unique to each client. (Orzo DecL. ir 11; Holland DecL. ir 3.) The job duties of a,

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Spherion employee are highly dependent on individual client and customer needs. (Orzo DeclJi

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11.) Work assignments and projects are often very unique and specifically tailored to a client or
the client's customer's needs. (Holland DecL. ir 4.)
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1 The terms of an assignment frequently are dictated by a contractual agreement between

2 Spherion and its client. (Orzo Decl. ir 10; Holland Decl. ir 4.) These contractual agreements
3 often involve multiple parties when, for example, Spherion provides staffng for the customers of
4 a client. (Orzo Decl. ir 10.) Working conditions, procedures, and practices for Spherion

5 personnel may vary by client and the client's customer, and often depend on the nature ofthe

6 relationship between Spherion, its clients, and the clients' customers. Some clients require that
7 their own procedures or their customers' procedures affecting employees be utilized, while
8 others follow Spherion's general policies.2 (Orzo Decl. ir 10.)
'..)i

9 Although Spherion has general policies, many of Spherion's policies are customized or

10 modified at the local branch offices or by the franchisees or licensees. These policies are further

11 modified and customized for individual clients, their customers, and various projects. Actual
12 procedures and practices vary widely from office to offce, client to client, and project to project.

13 (Orzo Decl. ir 8; Holland Decl. ir 4.)
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c.
Plaintiff

Plaintiff

Worked On A Very Unique Assignment For Two Months.
was recruited by Spherion's

Philip Martinet's assignment was unique. Plaintiff

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Professional Services unit/division out of a branch offce in San Diego. (Orzo Decl. ir 12;
Holland ir 5; Declaration of Joel Scully in Support of

Defendant's Motion ("Scully Decl.") ir 3.)

He was recruited for a project called the Dell Very Small Site Deployment-Navy Marine Corps
Intranet ("VSSD-NMCI") project. (Scully Decl. ir 2-3.) Plaintiff

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was recruited as a PC

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Technician on the project. (Scully Decl. ir 3.)

The VSSD-NMCI project serviced Spherion's client, Dell Marketing L.P. ("Dell"), and

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Dell's customer Electronic Data Systems ("EDS"). (Scully Decl. ir 2.) The project was
governed by an addendum to a general service agreement between Spherion and Dell in which

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EDS was a third-party beneficiary. (Scully Decl. ir 4, Exhibit A.) Under the addendum,
Spherion provided a number of

technicians, including plaintiff, to Dell and EDS. (Scully Decl. ir

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2 Spherion's human resource managers have provided

just a few examples in their declarations of

the different

job assignments and unique working conditions ofSpherion personneL. (Orzo Decl.

irir 13-14; Holland Decl. irir 6-7.) The actual permutations ofSpherionjob assignments are legion.
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1 4-5.) The addendum addressed management of

the technicians on the project, their roles,

2 responsibilities, schedules, travel, time sheets, and payment. (Scully Decl. ir 4, Exhibit A.)

3 Pursuant to the addendum between Spherion and Dell, the VSSD-NMCI project was
4 serviced by a sales executive in Austin, Texas, who acted as a liaison between Spherion and
5 Dell. (Scully Decl. irir 1-2.) The techncians were to perform technical service and support at
6 Navy Marine Recruiting Stations throughout the United States that EDS serviced. Plaintiff

was

7 one of

those technicians responsible for setting up and troubleshooting the computer hardware

8 and software used at the recruiting stations. (Scully Decl. ir 5.)
9 Plaintiff's project and

job duties were unique. There were only 8 employees who worked

10 as traveling PC technicians supporting this project, and only 4 were based out of California.

11 (Scully Decl. ir 6.) Dell and EDS were responsible for coordinating technician activities on the
12 VSSD-NMCI project. Plaintiff

worked independently and was not supervised by any Spherion
the recruiting stations. (Scully Decl. ir 7.) Plaintiff

13 personnel at any of

worked on the project

14 from July 5, 2007 to August 17,2007 before he quit his employment at Spherion. (Scully Decl.

15 ir 8.)
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D.

Plaintiff Sued Spherion Seeking To Represent A State-Wide Class.

17 After working for less than six weeks on a unique assignment, plaintiff quit his job with
18 Spherion. Five weeks later, plaintiff

fied a formulaic class-action complaint seeking to

19 represent all "current and former California-based, hourly non-exempt employees" employed by

20 Spherion from September 25, 2003 to the present. (Declaration of Brandon R. McKelvey in
2l Support of

Defendant's Motion ("McKelvey Decl.") ir 2, Exhibit A ir 25.) The complaint alleged

22 state-wide violations of California's wage-and-hour laws related primarily to the payment of
23 overtime, business expenses, and the provision for meals and rest periods. (McKelvey Decl. ir2,
24 Exhibit A irir 31-66.) Plaintiff

fied a First Amended Complaint ("FAC") on December 19,2007

25 making the same allegations while adding a cause of action for penalties under the California

26 Labor Code Private Attorney General Act of2004. (McKelvey Decl. ir 3, Exhibit B irir 67-77.)
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1 Plaintiff's F AC estimates that there are 50,000 members in the proposed class. (McKelvey Decl.

2 ir 3, Exhibit B ir 26.)
3

E.

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Plaintiff Served Exhaustive State-Wide Discovery To Which Spherion Objected.

On February 8, 2008 plaintiff served requests for production of documents seeking state;.

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wide discovery of "any and all documents" from January 2003 to the present "pertaining to"
policies and procedures, training manuals, employee handbooks, meal-and-rest-period
compliance and studies, and other employment information for all non-exempt California former
and CWTent employees (Document Requests 3-8, 10-13, 15-21). (McKelvey Decl. ir 5, Exhibit

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D.) Plaintiff also served interrogatories seeking additional state-wide information including the
names, addresses, employment dates, job titles, and job descriptions of all Spherion's California

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employees from September 2003 to the present and the total number of those employees

(Interrogatories 1-3). The interrogatories also requested detailed information about various meal
break, overtime, and payroll policies for all non-exempt employees in California from September

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2003 to the present (Interrogatories 4-13). (McKelvey Decl. ir 6, Exhibit E.)

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Spherion timely served objections and responses to plaintiff's discovery. Spherion
objected to each of

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the document requests and interrogatories callng for state-wide class

discovery on multiple grounds. First, Spherion objected that the discovery was premature
because plaintiff

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had not yet established a prima facie showing that the class-action requirements

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of Rule 23 were satisfied or that the discovery would likely produce substantiation class

allegations. Second, Spherion objected that class discovery was not reasonably calculated to
lead to discovery of admissible evidence as the information and documents sought were
irrelevant to certification of a class of employees similarly situated to and sharing typicality and

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commonality with the plàintifI. Third, Spherion objected that class discovery was an oppressive
and burdensome fishing expedition as the discovery related to thousands of employees at

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hundreds oflocations throughout the state subject to diverse working conditions. Finally, as to
the interrogatories that requested personal information for thousands of Spherion employees,
7 SPHERION ATLANTIC ENTERPRISES LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER

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1 Spherion objected on the grounds of state privacy rights. (McKelvey Decl. irir 9, 10, 14, 15,

2 Exhibits H, I, M, N.)
3

F.

The Parties Met And Conferred On The Discovery But Reached An Impasse.

4 The parties met and conferred on the subject of state-wide discovery on several different

5 occasions during which counsel agreed there was a dispute as to whether and to what extent
6 state-wide class discovery was appropriate. (McKelvey Decl. irir 4, 7, 9.) The parties brought
7 this issue to the attention of

the magistrate in their joint discovery plan, which was submitted on

8 March 10, 2008. (McKelvey Dec1 ir 8, Exhibit G.) Thereafter, pursuant to an agreement
9 between the parties, Spherion served plaintiff with Qbjections to several of

the discovery requests

lOin dispute. (McKelvey Decl. irir 9- 1 0, Exhibits H, I.) On March 19, 2008 plaintiff sent a lengthy
11 meet and confer letter to defense counsel stating his position on state-wide discovery.

12 (McKelvey Decl. ir 11, Exhibit J.) Spherion served responses and objections to the remainder of
13 the discovery on April 2,2008. (McKelvey Decl. irir 14-15, Exhibits M, N.)
14 On March 21, 2008, a case management conference was held with the Honorable

15 Magistrate Anthony Battaglia. At the conference, the dispute between the parties regarding

16 state-wide class discovery was discussed. The parties agreed that no furher meet and confer was

17 necessary, and the issue was ripe for the magistrate's review. This Cour issued an order setting
18 a hearing on defendant's motion for protective order on May 16,2008. (McKelvey Dec1 ir 12,

19 Exhibit K.)
20
21

G.

Responding To State-Wide Class Discovery Would Require Thousands Of Man Hours And Cost Spherion Or Plaintiff Hundreds Of Thousands Of Dollars.

22
23

Joan Orzo, a corporate HR manager for Spherion, has reviewed plaintiff's state-wide

discovery requests and has concluded that responding to the requests "would be a gargantuan
task" that would require 24,800 man hours at a total expense exceeding $550,000. (Orzo Decl. ir

24
25

15.) Another HR manager has reviewed Orzo' s estimates and believes they are conservative,

26 27
28

and that responding to plaintiff's discovery actually could take significantly longer and cost
significantly more. (Holland Decl. ir 8.)
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1 As Spherion's HR managers describe in their declarations, searching for and gathering all
2 the requested documents and information would take an inordinate amount of time because
3 thousands of individualized inquiries would have to be made - client by client and assignment

by :

4 assignment. (Orzo Decl. ir 15; Holland Decl. ir 8.) The location of

various employee handbooks,

5 human resources documentation, and procedures varies from offce to office, division to

6 division, client to client, and project to project. (Orzo Decl. ir 15.) Hundreds, ifnot thousands,
7 of contracts would have to be pulled and consulted. Many clients would have to be individually

8 contacted and document searches would have to take place at nurerous branch offces and client
9 locations. (Orzo Decl. ir 23.) There have been thousands of different projects staffed by

10 Spherion recruits over the last several years. To identify, review and gather all the different
11 policies, procedures, handbooks, training materials, and other documents requested by plaintiff

12 for thousands of employees with thousands of different job duties and titles would require a
13 tremendous amount of

work. (Orzo Decl. ir 23.)
.. ~

14
15

Orzo's declaration describes an elaborate three step information gathering process,
involving over one hundred diffèrent Spherion employees at three different levels of

;" :

the

16 17 18 19

company (not including the frequent involvement of Spherion's clients). (Orzo Dec1 ir 23-26.)

The first step would involve an HR manager initiating contact with each branch offce, licensee,
or franchisee (of

which combined there are over 50 in California), and communicating the

requested infonnation and identifying a plan of action. (Orzo Decl. ir 24.) The next step would
require a branch manager, with the help of a branch-level employee (such as a Client Services
Supervisor ("CSS"J) to generate a list of clients and accounts for the time period in question, and

20
21

22
23

to search for any responsive documents kept at the branch offce leveL. (Orzo Decl. ir 25.)
The third step would be the most taxing and would require at least one CSS employee at

24
25

each offce location to inquire as to the policies, procedures, and practices applicable to each

client/customer site, and/or each project or assignment. (Orzo Decl. ir 26.) This would require
the CSS to reach out to the client directly to determine: (a) what policies, procedures, and
practices were observed on various projects and assignments; and (b) what documents, if

26 27
28

any, the

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1 client retained related to policies, procedures, and working conditions. In some instances,
2 customers of

the client may have to be contacted and asked to search for information and/or

3 documents. This step alone likely would take an estimated 8 hours for each of over 3,000 clients
4 (over 24,000 man hours).3 (Orzo Decl. ir 26,29.)

5 In summary, responding to plaintiff's discovery requests at issue here would require an

6 estimated 25,160 man hours, which is the equivalent of3,145 work days or over 12 work years.
7 (Orzo Dec1 irir 23-29; Echeverria Decl. ir 8.) The total cost of

responding to plaintiff's statewide:,

8 discovery requests is estimated at $585,000. (Orzo Decl. irir 23-29; Echeverria Decl. ir 8.)

9 III. LEGAL STANDARD
10 A district court enjoys broad discretion in controlling discovery. Little v. City o/Seattle,
11 863 F .2d 681, 685 (9th Cir. 1988). Prior to certification of a class action, discovery is generally
12 limited and in the discretion of

the cour. Kamm v. California City Development Co., 509 F.2d

13 205,209-210 (9th Cir. 1975); Del Campo v. Kennedy, 236 F.R.D. 454, 459 (N.D. Cal. 2006).

14 District cours have the authority to and often exercise their discretion to impose prohibitions or

15 limitations on class discovery. See Hatch v. Reliance Ins. Co., 758 F.2d 409,416 (9th Cir. 1985)
16 (finding cour has discretion to deny plaintiff's attempt to obtain discovery in order to solicit
17 support for his effort to certify a class); Heerwagen v. Clear Channel Communications, 435 F.3d
18 219, 234 (2nd Cir. 2006) (holding significant limitations on pre-class certification discovery
19

implemented by district court were not an abuse of discretion); Hil v. Eddie Bauer, 242 F.R.D,

20
21

556,564-565 (C.D. Cal. 2007) (limiting pre-class certification discovery to a sample of
defèndant's docurents); Tracy v. Deem Witter Reynolds. 185 F.R.D. 303, 304 (D. Col. 1998)

22
23

(restricting discovery to one of defendant's 400 offces prior to class certification).
Upon a showing of good cause, the district court may issue any protective order "which

24
25

justice requires to protect a party or person from annoyance, embarrassment, oppression, or
3 The above estimates could easily be overrun because in many instances it likely wil be more diffcult and wil take longer to locate docurents due to many factors including: client and employee attrition; short duration assignments; Spherion's recent acquisitions of several staffng companies; client businesses that are no longer operating; employees or managers who have contact inforn1ation regarding clients but are no longer employed with Spherion; and documents
or data that have been archived and are not easily accessible. (Orzo Decl. ir 30; Holland ir 8.)
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1 undue burden or expense, including any order prohibiting the requested discovery altogether,
2 limiting the scope of

the discovery, or fixing the terms of disclosure." Rivera v. NIBCO, Inc.

3 364 F.3d 1057,1063 (9th Cir. 2004) (quoting Federal Rule of

Civil Procedure 26(c)(I)).
the otherwise broad

4 Protective orders provide a safeguard for parties and other persons in light of

5 reach of discovery. See Fed. R. Civ. Proc. 26( c), Advisory Comm. Notes (1970); United States
6 v. CBS. Inc... 666 F.2d 364,368-369 (9th Cir. 1982). In determining whether good cause exits
7 for the protective order, the Cour must balance the interests in allowing discovery against the

8 relative burdens to the parties and non parties. In re Coordinated Pretrial Proceedings, 669 F.2d

9 620,623 (lOth Cir. 1982); see also Woodv. McEwen, 644 F.2d 797,801-801 (9th Cir. 1981).

10 iv.
11

LEGAL ARGUMENT
A.

12
13

Is Not Entitled To State-Wide Class Discovery Because He Cannot Make A Prima Facie Showing Of Rule 23 Class-Action Requirements.
Plaintiff

The Ninth Circuit has long required that a plaintiflmake a prima facie showing of

the

14
15

Rule 23 class-action requirements prior to permitting class-wide discovery. Doninger, supra,
564 F.2d at 1312-13; Mantolete, supra, 767 F.2d at 1424; Del Campo, supra, 236 F.R.D. at 459.

16 17
18

"Although in some cases a district court should allow discovery to aid the determination of
whether a class action is maintainable, the plaintiff bears the burden of advancing a prima fàcie
showing that the class action requirements of (Rule 23) are satisfied or that discovery is likely

to

19

produce substantiation of

the class allegations." Mantolete, supra, 767 F.2d. at 1424.

20
21

Under Federal Rule of Civil Procedure 23(a), the requirements for a class action are:

22
23

are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties wil fairly and adequately protect the interest of the class.

(1) the class is so nurerous that joinder of all members is impracticable, (2) there

24
25

In addition to these requirements, Rule 23(b) requires that "the questions of law or fact
common to the members of the class predominate over any questions affecting only individual

26 27
28

members, and that a class action is superior to other available methods for the fair and effcient
adjudication of

the controversy." Fed. R. Civ. Proc. 23(b)(3).
11

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1

With the exception of showing that the proposed class is numerous, Martinet cannot make a prima facie showing that any of the class action requirements likely would be satisfied or
that discovery is likely to produce substantiation of

2
3

his class allegations.

4
5

No Common Questions of Law or Fact: Plaintiff's overbroad class definition consists
of well over 10,000 employees working in almost every industry imaginable, with thousands of

6
7
8

dif1èrentjob descriptions, and subject to 15 different California Wage Orders. There are no
common questions of law or fact among a group of employees this diverse and subject to

numerous different regulations. There is no authority or precedent for finding commonality
among a group of employees that crosses so many different industries and job descriptions.

9 10
11

Indeed, Martinet's purorted class in this case is analogous to a class-action lawsuit brought
against 3,000 of

the state's employers in nurerous different industries across the state.

12
13

Obviously, that broad of a class would fail to meet Rule 23 requirements.

The proposed class includes employees placed by Spherion at tens of thousands of
different projects, each with their own unique set of

14
15

practices, procedures, and operative

employment docurents. Spherion employees are not subject to a singular set of w1Iform

16 17 18

policies and procedures like large companies such as Wal-Mart or Hewlett Packard. The policies
and procedures applicable to Spherion employees are customized and specifically tailored to

thousands of clients and tens of thousands of different job assignments. Spherion employees at
different assignments on different projects bear as much similarity to one another as a retail clerk

19

20
21

at Wal-Mart shares with a Hewlett Packard IT consultant. There is no shared common experience among Spherion's employees to serve as the basis for a class action. Common
questions of law and fàct simply do not exist among this broadly diverse group of employees.

22
23 24
25

No Typical Claims Or Defenses: Because the proposed class is so diverse and crosses
so many industries, Spherion may have nurerous unique defenses to the wage-and-hour
allegations in the complaint. In addition to asserting unique defenses based on the application of
15 dif1èrent California Wage Orders, Spherion also wil have individualized fàctual defenses

26
27
28

based on the unique assignments, job duties, working conditions, and operative policies and
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1 procedures for each employee. Even if plaintiff could prove that policies or procedures
2 applicable to him violated California law, defendant wil

have hundreds, if not thousands, of

3 other policies or procedures to present as a defènse to class-wide liabilty. To determine whether
4 meal, rest period, and overtime laws were violated thousands of individual inquiries wil

have to

5 be made.
6 Martinet Is Not An Adequate Representative: Martinet cannot demonstrate he is an

7 adequate representative for a putative class of diverse state-wide Spherion employees in
8 thousands of different job assignments across multiple industries. Martinet's

job duties,

9 assignment, and employment were very unique. His employment was subject to a unique

10 contract and very specific policies and procedures. Only 4 other California employees perform a
11 job similar to Martinet. He cannot adequately represent thousands of Spherion employees in

12 unique assignments no more than a Hewlett Packard IT consultant could represent a Wal-Mart

13 retail clerk in a class action.

14 Common Issues Cannot Predominate: With thousands of diffèrent job titles, countless
15 job duties, and a plethora of individualized job assignments, a legion of individual issues wil
16 surely predominate over any common issues plaintiff might be able to raise. Perhaps the only

17 common thread among the entire proposed class is at one time or another they were paid by

18 Spherion. Beyond this sole shared experience, each employee or set of employees working on a
19 particular assignment has been subject to different working environments, different job types,
20 dif1èrent client-specific procedures, different management and supervision structures, different

21 site or assignment-specific practices and customs, diffèrent work orders or contracts, different

22 instruction and training, and different time-recording practices and systems. For every alleged

23 common issue, there wil be at least 3,000 individual inquiries that must be made (representing
24 the number of Spherion's California clients). The issues wil further splinter from there to
25 15,000 different site-specific inquiries with a staggering nurber of

job assignment permutations.

26
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1

B.

The Court Should Prohibit All State-Wide Class Discovery Because It Wil Not Substantiate Any Of Plaintiff's Baseless Class Allegations.

2
3 A reading of the complaint and F AC reveals nothing more than a form class complaint.

4 The pleadings are devoid of any substantive allegations regarding Spherion's corporate structure,
5 policies, or practices. All of

plaintiff's allegations regarding Spherion's policies and practices

6 are preceded by the disclaimer "on the basis of information and belief." (McKelvey Decl. irir 2-

7 3, Exhibits A and B irir 32-34,37-38,41-43,46-47,52,57,59,64,66; Exhibit B ir 68.) Martinet

8 worked with the company for less than six weeks on a unique assignment for a customer (EDS)

9 of Spherion' s client (Dell) at locations all over the country. It defies credulity to believe that
10 Martinet could have come to even a basic understanding of how a company as complex and

11 multifaceted as Spherion works or how its employees are given assignments at thousands of
12 dif1èrent locations in California. Despite repeated canned phrases to the contrary, the allegations
13 in the complaint are not based on any specific information or belief but on speculation. Plaintiff

14 cannot make even the most basic showing that his class as plead is viable.
15 Cours have routinely denied class-wide discovery in cases where plaintiff

has alleged an

16 overbroad class and has not made a basic showing the class is viable. In Mantolete, the Ninth 17 Circuit held that the district cour did not abuse its discretion in denying class-wide discovery in
18 an asserted national class of disabled individuals against the United States Postal Service.
19 Mantolete, supra, 767 F.2d. at 1424. In upholding the district court's denial of

class-wide

',!.

20
21

discovery, the Ninth Circuit suggested discovery was not necessary because it was apparent

individual inquiries would have to be made on a case-by-case basis to determine who was par of i
the class. Id. at 1425.

22
23

In Tracy v. Dean Witter Reynolds, Inc., the district court limited class discovery to one of defèndant's offices and rejected plaintiffs' attempt to extend discovery to 400 of defendant's
geographically dispersed offces. 185 F.R.D. 303, 304 -305 (D. Colo. 1998). Citing Mantolete,
the court found that before class-wide

24
25

26 27
28

discovery was allowed, plaintiffs must demonstrate that

there was some factual basis for plaintiffs' claims of class-wide har. !d. at 305. The cour
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1 went on to say, "plaintiffs have not persuaded me that any discovery beyond (defendant's local
2 office) is likely to produce substantiation of the class allegations which they have

3 made. . . (E)xtended discovery should not be allowed to plaintiffs if they can present no evidence,
4 or if they present insuffcient evidence, to warrant a conclusion that extended discovery is

5 reasonably likely to yield support for the class allegations which have been made, particularly if
6 the extended discovery wil result in prejudice to (defendant)." !d. at 305,312.
7 Courts also have denied class certification without permitting any class certification

8 discovery where plaintiff failed to establish a reasonable basis for class treatment. See Doninger
9 supra, 564 F.2d at 1312-13 (upholding district court's denial of class certification prior to
10 discovery because there was no reasonable possibility that plaintiff could satisfy Rule 23);

11 Lumpkin v. E.I Du Pont de Nemours & Co., 161 F.R.D. 480, 481 (M.D. Ga. 1995) (refusing to

12 order discovery from defendant and striking class allegations because the record failed to show
13 any basis for further pursuit of a class action); Rodriguez v. Department of the Treasury, 108

14 F.R.D. 360, 361-362 (D.C. Dist. 1985) (denying class certification before discovery based on
15 evidence demonstrating the Rule 23 requirements of

numerosity and typicality were not met).

16 Reading the F AC and comparing it to the facts presented on this motion, it is clear that

17 plaintiff filed his complaint not on information or belief, but on a speculative theory he hoped to
18 substantiate with discovery. However, no amount of discovery wil serve to substantiate

19 plaintiff's fonn allegations against Spherion. The nature of Spherion' s corporate structure and
20 the manner in which its employees are assigned to diverse jobs throughout the state cannot be
21 changed through discovery. As such, the court should prohibit class discovery and limit
22 plaintiff's discovery to his individual

job assignment.

23

C.

The Court Should Prohibit All Class-Wide Discovery Because It Is A
Fruitless Fishing Expedition.

24
25

Although plaintiffs are typically permitted to conduct some pre-class certification

26 27
28

discovery, courts may prevent "fishing expedition" type discovery and impose reasonable
limitations as to scope. Mantolete, supra, 767 F.2d. at 1424 (citing Donninger, supra, 564 F.2d
15 SPHERION ATLANTIC ENTERPRISES LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER

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1 at 1313). "The district judge may reasonably control discovery to keep the suit within
2 manageable bounds, and to prevent fruitless fishing expeditions with little promise of success."
3 Blackie v. Barrack, 524 F.2d 891, 906 (9th Cir. 1975); see also Rivera, supra, 364 F.3d at 1072
4 (stating "District courts need not condone the use of discovery to engage in "fishing

5 expedition( s). ") It is within the district cour's discretion to deny plaintiff's attempt to obtain
6 discovery in order to solicit support for his effort to certify a class. Hatch v. Reliance Ins.
7 Co., 758 F.2d 409,416 (9th Cir. 1985).
8 Martinet's broad-based, state-wide discovery requests are part of a belated effort to find
9 facts and plaintiffs to support the form allegations in his complaint, which are curently based on

10 "information and belief." Plaintiff's discovery asks whether Spherion has different meal and rest
1 1 period policies and overtime policies, and demands that Spherion produce all such policies and

12 explain the diffèrence between these policies. (McKelvey Decl. ir 6, Exhibit E.) The results of
13 such an enormous undertaking would reveal countless different policies, practices, and
14 procedures in numerous job assignments across scores of

industries, which would furher

15 undeimine plaintifI's class allegations. This is precisely the type of fruitless fishing expedition
16 that the court has the authority to prohibit under federal law. See Blackie, supra, 524 F.2d at

17 906; see also Rivera, supra, 364 F.3d at 1072.
18 Plaintiff's discovery also asks Spherion to identify by name, address, phone nurber,job
19 title, job description, and dates of employment all of its California employees over the last four
20 and a half years. (McKelvey Decl. ir 6, Exhibit E.) At this stage of the litigation, this request is
21 nothing more than a search for potential clients. Given that plaintiff has no basis to support his

22 class claims, the production of this information is irrelevant and an unwarranted intrusion on

23 Spherion's employee's right to privacy (discussed infra). The Court should deny plaintiff's

24 request for the identity of all state-wide employees as an improper attempt to obtain discovery in
25 order to solicit support for his effort to certify a class. Hatch, supra, 758 F.2d at 416.
26
27
28
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1

D.

There Is Good Cause For A Protective Order Prohibiting Or Prescribing
Class Discovery.

2

3 Upon a showing of good cause, the district court may issue any protective order "'which
4 justice requires to protect a party or person from annoyance, embarrassment, oppression, or

5 undue burden or expense,' including any order prohibiting the requested discovery altogether,
6 limiting the scope of

the discovery, or fixing the terms of disclosure." Rivera, supra, 364 F.3d at
Civil Procedure 26(c)(l)). As demonstrated above, responding to

7 1063 (quoting Federal Rule of

8 discovery would require an estimated 25,160 man hours at a total monetary cost of$585,000.
9 (Orzo Decl. irir 23-29; Echeverria Decl. ir 8.) Thus, plaintiff's class discovery is oppressive

and

10 constitutes an enormous and undue burden on Spherion.
11 In determining the maner and scope of pre-

class-certification discovery, the cour must

12 consider its need, the time required, and the probability of discovery resolving any factual issue

13 necessary for class determination. Kamm, supra, 509 F.2d at 209 -210. District courts should

14 also balance the need to promote effective case management, the need to prevent potential abuse,
15 and the need to protect the rights of

all paries. Tracy, supra, 185 F.R.D. at 305. The discovery

16 should not be "so broad that the discovery efforts present an undue burden to the defendant." ¡d.

17 "Where the necessary factual issues (related to class certification) may be resolved without
18 discovery, it is not required." Kamm, supra, 509 F.2d at 209-210.

19 The unlikely benefits plaintiff wil gain from receiving thousands of individualized
20 docurents (undermining his class case) cannot outweigh the enormous burden on defèndants.
21 See Ricotta v. Allstate Ins. Co., 211 F.R.D. 622 (SD Cal 2002) (motion to compel denied because

22 burden and expense of producing every report created by an insurance company outweighed the
23 likely benefit). The burden associated with the time and effort required to produce this discovery
24 far outweighs the probability of

the discovery resolving any factual issue necessary for class

25 determination. See Kamm, supra, 509 F.2d at 209-210 (9th Cir. 1975). Spherion has adequately 26 demonstrated good cause for the issuance of a protective order.
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1

E.

Plaintiff's Discovery Violates The Privacy Rights of Spherion Employees.

2 There is no mandatory duty that a defèndant disclose the names and addresses of putative

3 class members whenever a plaintiff fies suit on behalf of a class. See Holfmann-La Roche. Inc.
4 v. Sperling, 493 U.S. 165, 169 (l989). Spherion's employees have a constitutionally guaranteed
5 right to the privacy of

their contact information. CAL CüNST. art. 1, § 1. As noted in Board of

6 Trustees v. Superior Court, 119 Cal.App.3d 516,525 (1981) (citations omitted), "(t)he
7 constitutional right of

privacy is 'not absolute'; it may be abridged when, but only when, thereis.
private information

8 a 'compellng' and opposing state interest." Id. at 525. The disclosure of

9 "wil not be constitutionally justified simply because inadmissible, and irrelevant, matter sought

10 to be discovered might lead to other, and relevant evidence." Id. (emphasis in original). Even

11 when the discovery of private information is found to be directly relevant to the issues of
12 ongoing litigation, it is not automatically allowed; there must then be a "careful balancing" of

the

13 "compelling public need" for discovery against the "fundamental right of

privacy." Id. Even if

14 the infonnation sought is found to on balance require disclosure "the scope of such disclosure
15 wil be narrowly circumscribed; such an invasion of the right of

privacy 'must be drawn with

16 narrow

specificity.'" (Id.)

17 Plaintiff has propounded class discovery that seeks the names, addresses, telephone
18 numbers, job titles, job descriptions, and dates of employment for every Spherion employee fropl

19 September 2003 to the present. (McKelvey Decl. ir 6, Exhibit ir E.) Defèndant objected to this

20 discovery on the grounds that it violated Spherion employees' right to privacy. (McKelvey Decl.

21 irir 10, 15, Exhibits I, N.) In his meet -and-confer letter, plaintiff cited a litany of cases
22 purportedly standing for the proposition that Spherion's privacy objection is invalid under
23 California law. None of

the decisions factually resemble the situation curently before the court.

24 Plaintiff has not and canot cite a single case wherein a company (let alone a temporary staffng

25 company) was required to disclose the names, addresses, phone nurbers, job descriptions, and
26 dates of employment for thousands of unelated employees in different positions and at different
27
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1 locations. None of

the cases plaintiff cites stand for this broad of a proposition. Each case can

2 be factually distinguished from the issues curently before the Cour.

3

1.

Plaintiff's Case Is Far Different Than The Pioneer Electronics Case.

4 First, Plaintiff cites to Pioneer Electronics, Inc. v. Superior Court, 40 Cal. 4th 360 (2007)
5 for the proposition that the contact information of putative class members is discoverable. In

6 Pioneer, a consumer class action, plaintiff sought the contact information of each individual who
7 complained about a specific defèctive DVD player after he had received, in separate discovery,
8 copies of customer complaints with redacting to obscure the customers' infonnation. The cour
9 held that Plaintiff was entitled to the information, reasoning that the individuals who complained

10 had a reduced expectation of privacy, because they had "already voluntarily disclosed their

11 identifying information to the company." Id. at 372. The court authorized an opt-out notice
12 procedure, requiring notice to each DVD purchaser of

the proposed disclosure and an

13 opportunity to object. !d.

14 Martinet has not brought a consurer class action. Nor has he made a nan'ow request for
15 the identifying information of individuals previously disclosed

in discovery as potential

16 witnesses. Instead, Martinet seeks the contact information of over 10,000 past and curent
17 Spherion employees without first having established that there were any complaints against the

18 company, or that Spherion has a policy in place that violates California's wage-and-hour laws.
i 9 Martinet's request is akin to a request by the plaintiff in Pioneer for the identifying information

20 of all Pioneer customers for all products (as opposed to just DVD players) over a four and a half
21 year period. Such a request was not made or adjudicated in Pioneer and would likely have been

22 rejected by the court in that case. Plaintiff cannot rely on Pioneer to authorize the disclosure of

23 the identities ofthousands of unelated Spherion employees.
24
25

2.

The Belaire-West Landscaping Case Is Distinguishable.

Plaintiff also cites Belaire-West Landscaping, Inc. v. Superior Court, 149 Cal. App. 4th

26 27
28

554 (2007). Relying almost exclusively on the court's ruling in Pioneer, the court in BelaireWest held that the contact information of curent and former employees of a 50-person
19 SPHERION ATLANTIC ENTERPRISES LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR A PROTECTIVE ORDER

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1

landscaping service was discoverable. The court authorized an opt-out procedure that required
notice to the individuals allowing them to object to the dissemination of

2
3

their personal

information in writing. (Id. at 561) The cour pointed out that the "privacy concerns here are
more significant than those in Pioneer, where the complaining consurers voluntarily disclosed
their information to the company in the hope of gaining some relief for their allegedly defective
DVD players." Id.

4
5

6
7
8

Belaire-West was based on the following premise:

Just as the dissatisfied Pioneer customers could be expected to want their

9 10
11

information revealed to a class action plaintiff who might obtain relief for the defective DVD players (citing Pioneer) so can current and former Belaire-West employees reasonably be expected to want their information disclosed to a class action plaintiff who may ultimately recover for them unpaid wages that they are
owed. Id.

12
13

The same premise is not present in Martinet's case. Unlike the Belaire-West employees,
many ofSpherion's employees are temporary employees. Many of

these employees may have

14
15

worked at an assignment for Spherion for only one or several days. These employees may
actually not want their information disclosed to a class action plaintiff. Temporary

employment

16

has an entirely different stigma and set of expectations associated with it than full time

17
18

employment. Some employees may be embarassed or may not want to reveal that they sought
out temporary employment. This is especially true in a situation like this where (as discussed
supra) plaintiff

19

has no real chance of sustaining a class action. Many Spherion employees

20
21

(especially those employed for only a few days) may decide that the value of any potential de

minimus recovery is not worth the disclosure oftheir infonnation or their time.
The discovery Martinet seeks is more vast and invasive than the information sought in
Belaire- West. The plaintiff in that case sought the name and addresses of employees for a 50

22
23

24
25

person landscaping finn in a single geographic location. Martinet, however, seeks far more than the basic contact information sought in Belaire West and Pioneer. Martinet seeks the job title,
job description, and dates of employment for thousands of

26

unelated employees all over

27
28

California. This information is far more detailed and private than the basic contact information
20

SC 1 17092533.1 134991-000232 Case No. 07 CV 2178 W (AJB)

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1 requested in Pioneer and Belaire West. This information actually discloses a piece of

plaintiff's

2 employment history akin to what would be submitted on a resure or job application. A
3 Spherion employee, who worked for the company for a few weeks doing something outside of
4 their education or job training, may not want others to know they took ajob below their
5 qualifications. Plaintiff cannot cite any authority that would permit such a broad and intrusive

6 disclosure of information for thousands of California citizens across the state.4
7
8
9 Finally, plaintiff's reliance on Putnam v. Eli Lily and Co., 508 F. Supp. 2d 812 (2007) is

3.

Plaintiff's Discovery Is Unlike The Discovery At Issue In Putnam v. Eli Lilly.

10 misplaced. In Putnam, a suit brought on behalf of Eli Lily pharmaceutical representatives for

11 fàilure to pay overtime wages, the court balanced the employees' privacy rights with plaintiff's
12 need for their contact information, and determined that plaintiff's needs were greater. Id.

13 However, in so ruling, the cour noted that it ordered defendant to provide the information
14 because defèndant failed to offer an "adequate explanation as to why information about

15 pharmaceutical representatives in sales divisions other than the one in which plaintiff worked is

16 not relevant to the inquiry." Id. at 814. Here, Spherion has offered numerous legitimate reasons
17 why PlaintifI's wide-ranging and overly inclusive request concerning all of Spherion's
18 California-based employees is not relevant. Unlike in Putnam, Marinet's request here is not

19 limited to a single employee classification. Rather, Plaintiff seeks information concerning all of .
20 Spherion's California-based employees with thousands of different job titles and even more

21 diverse job duties.

22 In all, the request in Putnam involved 348 pharmaceutical representatives and the court
23 concluded that the