Free Motion for Discovery - District Court of California - California

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

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Filed 03/10/2008

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14 Attorneys for Plaintiff, PHILIP MARTINET, Individually, On Behalf of All Others Similarly the General Public Situated, All Other Aggrieved Employees and on Behalf of
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Behalf of All Others Similarly Situated, and on )
of

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18 PHILIP 1. MARTINET, Individually, On ) Case No. 07 CV 2178 W (AJB)

20 Plaintiff,) ) 21 v.
19 Behalf

the General Public, ) JOINT MOTION REGARDING
) PARTIES' DISCOVERY PLAN
)

) DISCOVERY MATTER

22 SPHERION ATLANTIC ENTERPRISES LLC, )

a Delaware Limited Liability Company; and )

23 DOES 1 through 50, inclusive, )

24 Defendant. )
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) Complaint Filed: September 25, 2007

)

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JOINT MOTION REGARDING PARTIES' DISCOVERY PLAN
07CV2178 W (AJB)
SCI17091472.1 /34991-000232

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

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TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA:

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PLEASE TAKE NOTICE that, pursuant to F.R.C.P. 26(f), counsel for
Defendant Spherion Atlantic Enterprises LLC ("Spherion" or "Defendant") and counsel

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for Plaintiff Philp Marinet ("Martinet" or "Plaintiff'), met and conferred via telephone
on February 29, 2008, in accordance with the February 7, 2008 Order of the Honorable

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Anthony 1. Battaglia. Counsel discussed the nature and bases of their claims and
defenses and the possibilities for a prompt settlement but were unable to resolve the case.
Counsel further agreed to the following stipulation regarding the parties' discovery plan:
1. Required disclosures under F.R.C.P. 26(a)(1)A-D wil be made, in accordance

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with Judge Battaglia's Order, by no later than March 14,2008.
2. Pursuant to an agreement reached by the parties in Judge Battaglia's

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conference room at the ENE Conference on February 5, 2008, the parties
stipulated to the commencement of discovery on certain pre-certification
issues prior to the submission of the present discovery plan. Accordingly,
Plaintiffs first set of written discovery, addressing only pre-certification

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issues, was propounded on February 8, 2008. The parties have met and
conferred and agreed to extend the time Defendant has to respond to a

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significant portion of this discovery until April 2, 2008. The remainder is due

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on March 12,2008.
3. There is a dispute between the parties as to the scope of pre-class certification

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discovery.

Plaintiff maintains that Defendant's disclosure of the identification and

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contact information of all aggrieved employees under Plaintiff s Labor Code

Private Attorney General Act (California Labor Code § 2699 et. seq.)
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JOINT DISCOVERY PLAN
07CV2178 W (AJB)
SCI17091472.1

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

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("P AGA") and putative class members under Plaintiff s other California

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Labor Code claims is allowed prior to certification of the class. Plaintiff
further contends that aspects of class-certification discovery and merits

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discovery overlap. Accordingly, Plaintiff contends that the following issues
are discoverable prior to the Cour's ruling on Plaintiffs anticipated motion to

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certify Plaintiffs class claims: (a) identification of all employees during the
putative class period; (b) the basis for penalties, including but not limited to,
employee time records and employee wage records on a per-pay-period basis
from December 19, 2006 to the present.

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Defendant contends that Spherion is a unique business entity with numerous

decentralized offces and franchises throughout the state and pre-class
certification discovery seeking information relating to thousands of its state-

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wide employees at hundreds of different offces and franchises is
unreasonably broad, unduly burdensome, and irrelevant to certification of a
class common to the Plaintiff. This discovery also violates employee privacy.
Defendant further contends that Plaintiff

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must first establish prima-facie class-

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certification requirements under F.R.C.P. 23 before seeking broad,
voluminous, and costly state-wide discovery related to thousands of
employees who share no commonality or typicality with the named Plaintiff.

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Although the parties intend to continue to meet and confer in good faith
regarding this discovery issue, it is anticipated that judicial intervention may

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be required to resolve this issue.

Plaintiffs counsel believes this dispute can be resolved quickly and
informally at the March 21, 2008 Case Management Conference. Although
Defense counsel is not opposed to an expedited or informal resolution process,
-3JOINT DISCOVERY PLAN
07CV2178 W (AJB)
SC1 17091472.1

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

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Defendant would prefer to have this dispute heard pursuant to a motion and

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hearing because the dispute is complex, there are a number of legal and
factual issues that need to be presented to the Cour, and the expense and
burden associated with complying with Plaintiff s state-wide discovery is
enormous. Defendant anticipates moving for a protective order under Rule

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26( c) because of the extreme burden posed by Plaintiff s discovery requests.
4.

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Counsel have agreed that the following specific discovery wil be necessary to

evaluate this case: (a) Defendant's deposition of Plaintiff and Plaintiffs
percipient witnesses; (b) Plaintiff s deposition of the Defendant's Persons
Most Knowledgeable with respect to the following issues: (i) Defendant's
meal break policies with respect to its non-exempt California employees from

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September 2003 to the present; (ii) Defendant's rest period policies with
respect to its non-exempt California employees from September 2003 to the
present; (iii) Defendant's time-keeping policies with respect to its non-exempt
California employees from September 2003 to the present; (iv) Defendant's

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overtime policies with respect to its non-exempt California employees from
September 2003 to the present; (v) Defendant's reimbursement of employee

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expenditures policies with respect to its non-exempt California employees
from September 2003 to the present; (vi) Defendant's payroll record keeping
policies with respect to its non-exempt California employees from September
2003 to the present; (vii) Defendant's policies related to itemized wage

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statements with respect to its non-exempt California employees from

September 2003 to the present; and (viii) Defe~dant's policies related to

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. payment of all compensation upon employees' separation of employment with

respect to its non-exempt California employees from September 2003 to the
-4JOINT DISCOVERY PLAN
07CV2178 W (AJB)
SCl17091472.1

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

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present; and (c) Plaintiffs deposition of an agreed-upon limited number of

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Defendant's offcers and managing agents regarding Defendant's corporate
structure and its business relationships with its affiiated corporations, limited
liability companies, and other business entities.
8. Defendant wil make its employee and management witnesses available for

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deposition in their city of residence, without the need for subpoena.
9. Prior to Plaintiff s motion for class certification Defendant anticipates the

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following discovery: (a) written interrogatories to Plaintiff; (b) document
requests to Plaintiff; (c) depositions of the Plaintiff; and (d) depositions of any

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percipient witnesses identified in discovery. Defendant wil also seek to

depose any witnesses who submits evidence or testimony in support of
Plaintiffs motion for class certification.
10. Counsel fully reserve the right to conduct additional discovery that may be

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required, including but not limited to depositions not identified herein (subject

to the limitations set by Federal Rules of Civil Procedure and local rules), and
expert witness discovery.
1 1. Counsel presently foresee the need for changes in the limitations on discovery

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imposed under the Federal Rules of Civil Procedure. Specifically, Defendant
anticipates that Plaintiffs deposition may take more than 7 hours. Similarly,

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Plaintiff anticipates that the depositions of Defendant's Person(s) Most
Knowledgeable may take more than 7 hours. Counsel have agreed to enter
into separate agreements, as necessary, to protect any information and/or

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documents protected by confidentiality or right to privacy.

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This Joint Discovery Plan is being lodged with Judge Battaglia pursuant to the
Court's February 7, 2008 Order.
-5-

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JOINT DISCOVERY PLAN
07CV2178 W (AJB)
SC1 17091472.1

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

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DATED: March 10,2008
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SEYFARTH SHAW LLP

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_:~GE & ASS~S.~l.,ESH

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7 DA TED: March 10, 2008
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Samuel T. McAdam Brandon R. McKelvey Attorneys for Defendants SPHERION A TLANTlC ENTERPRISES LLC; SPHERION P ACIFlC WORKFORCE LLC

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BY' --t~;::::,~,;~.:t:~ 7 /../

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Derek J. Emfte :. ,/' / .--_.

Attorneys for PJaint,S'

PHILIP .MARTINE. Individually, On Behalf of All Others Similarly Situated, and the General Public on Behalf of
DATED: March 10, 2008
LAW OFFICES OF DA VID A. HUCH

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By David A. HllCh ~ ' , i',
on Behalfofthe General Public

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Attorneys for Plaintiffs PHILIP MARTINET Individually, 011 Behalf of All Others Similarly Situated, and

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07CV2178 W (AJB)

SCl 170914721