STANLEY A. BOONE, Magistrate Judge.
Currently before the Court is Defendants' motion to compel further responses at Plaintiffs' depositions. (ECF No. 54).
The hearing on the matter took place on March 16, 2016. Mario Martinez and Erica Deutsch appeared on behalf of Plaintiffs. Howard Sagaser and Ian Wieland appeared on behalf of Defendants. For the reasons set forth below, Defendants' motion to compel further responses at Plaintiffs' depositions is granted.
The complaint in this action was filed on March 17, 2015. (ECF No. 2.) Plaintiffs Beatriz Aldapa and Elmer Avalos ("Plaintiffs") raise claims on behalf of a proposed class of non-exempt agricultural employees of Defendants Fowler Packing Company Inc., AG Force LLC, and Fowler Marketing International LLC ("Defendants") who performed uncompensated work in Defendants' fields in or near Fresno County within the past four years, excluding irrigators, tractor drivers, and swampers. Plaintiffs raise nine causes of action: 1) for violation of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. § 1801, et seq.); 2) for failure to provide rest periods; 3) for failure to pay all wages owed under established employment contracts; 4) for failing to pay overtime; 5) for failing to pay minimum wages; 6) for failing to pay waiting time penalties; 7) for failing to provide tools necessary to the performance of a job and failing to provide reimbursement for tool expenses; 8) for violation of California Business and Professions Code § 17200; and 9) for failing to keep accurate statements on hours worked and wages earned.
Plaintiffs are seasonal agricultural workers involved in the cultivation and harvest of fruit grown by Defendants. Plaintiffs allege that they have not been fully compensated by Defendants for all of their time worked. Plaintiffs allege that their pay is calculated under one of three methods: 1) hourly wages; 2) piece rate for certain work; and 3) a crew piece rate determined by total production by a crew, to be divided evenly among individual members of the crew. Plaintiffs contend that they were not paid for off-the-clock work while organizing materials and equipment for work and were not paid while attending training sessions. Plaintiffs further contend that they did not receive required rest breaks.
Plaintiffs also allege that Defendants added "ghost workers" to crew lists, which resulted in a reduction in pay for jobs paid by the crew piece rate. Plaintiffs contend that supervisors added fictitious names to crew lists, resulting in actual crew members receiving less pay when the piece rate was divided among members of the crew, including fictitious members.
Plaintiffs also allege that they were required to provide their own tools necessary for working, and Defendants did not reimburse Plaintiffs for those tools.
On July 28, 2015, the Court issued a pretrial scheduling order. (ECF No. 22.) The Court ordered Plaintiffs to file a motion for class certification no later than April 25, 2016.
On March 2, 2016, the parties filed a Joint Statement re Discovery Disagreement for Defendants' motion to compel further responses at Plaintiffs' depositions. (ECF No 54.) On March 4, 2016, the Court set Defendants' motion to compel for hearing on March 16, 2016. (ECF No. 55.)
"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. . . . Information within this scope of discovery need not be admissible in evidence to be discoverable." Fed. R. Civ. P. 26(b)(1).
Depositions are governed by Federal Rule of Civil Procedure 30, which states, in pertinent part:
Motions to compel are governed by Federal Rule of Civil Procedure 37, which states, in pertinent part:
If the motion to compel is granted, the court must, after giving an opportunity to be heard, require the deponent whose conduct necessitated the motion to pay the movant's reasonable expenses including attorney's fees. Fed. R. Civ. P. 37(a)(5)(A).
Rule 37(a)(5)(A) provides:
The instant discovery dispute concerns two main discovery issues: 1) the refusal by Plaintiffs' counsel to allow Plaintiffs Elmer Avalos and Beatriz Aldapa to answer questions during their depositions regarding the identities of putative class members who attended meetings with Plaintiffs' counsel; and 2) Defendants' request to reopen Mr. Avalos's deposition because Mr. Avalos made changes to his deposition transcript after review.
In the instant case, Rule 501 of the Federal Rules of Evidence determines applicable privileges in this federal action. Fed. R. Evid. 501;
Defendants argue that Mr. Avalos and Ms. Aldapa should have answered questions during depositions regarding the identities of putative class members who attended meetings with Plaintiffs' counsel. Defendants contend that no privilege applies to the identity of those individuals who attended the meetings. Plaintiffs argue that disclosure of the names of the putative class members who attended the meetings will result in a risk that potential class members may be harassed, intimidated and coerced in connection with the opt-out discovery notice or for other reasons.
In the joint statement, Defendants state:
(ECF No. 54 at 4.)
At the hearing, the Court requested that the parties submit a copy of the relevant portions of the deposition transcripts where Plaintiffs' counsel asserted the privilege. On March 16, 2016, Defendants lodged the relevant portion of the deposition transcript of Ms. Aldapa. (ECF No. 59.) The relevant portion of the deposition transcript of Ms. Aldapa states:
(Aldapa Depo. at 35: 5-36:7).
On March 17, 2016, Plaintiffs lodged the relevant portions of the deposition transcript of Mr. Avalos. (ECF No. 60.) The relevant portion of the deposition transcript of Mr. Avalos states:
(Avalos Depo. 16:1-18:22.)
At the hearing, Plaintiffs' counsel represented to the Court that they "instructed [their] clients not to answer based on [their] view that the question was illegal under California law and that defense counsel had no right to ask the question." Plaintiffs' counsel stated that it was an illegal question, as opposed to a privilege. Later during the hearing, Plaintiffs' counsel stated that there was an assertion of First Amendment privilege during the course of Mr. Avalos's deposition. Upon review of the deposition transcripts of Ms. Aldapa and Mr. Avalos, the Court will review Plaintiffs' assertions of attorney-client privilege, privilege pursuant to the ALRB and NLRB, and privilege pursuant to the First Amendment.
Plaintiffs contend that the identities of the potential class members who met with class counsel and Plaintiffs are protected by attorney-client privilege. Pursuant to California law, the client "has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer. . . . Cal. Evid. Code § 954. A confidential communication is "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship." Cal. Evid. Code § 952.
The attorney-client privilege is absolute and disclosure cannot be ordered regardless of necessity, relevance, or any other circumstance particular in the case.
Defendants argue that putative class members are not represented by Plaintiffs' counsel before class certification, so there is no attorney-client relationship between Plaintiffs' counsel and the putative class members prior to class certification. In this case, the class has not been certified yet. Plaintiffs concede that the weight of authority holds that there is no attorney-client relationship in the context of communications to the entire putative class prior to class certification.
Plaintiffs argue that because the discrete group of putative class members approached counsel regarding potentially pursuing their claims, this created a privilege because it was a confidential communication with counsel.
Here, Plaintiffs have failed to demonstrate how disclosure of the identities of the putative class members who met with Plaintiffs' counsel could lead to the disclosure of any client confidences. The putative class members are all farmworkers and employees or former employees of Defendants. The meetings were regarding this lawsuit and the putative class members' rights in this lawsuit. The disclosure of the identities of those who met with class counsel will not disclose any client confidences.
Plaintiffs argue that ordering the disclosure of putative class member names who attended meetings would force counsel to violate Rule 1.18 of the American Bar Association Model Rules of Professional Conduct to the extent that putative class members relied on Plaintiffs' counsels' assurances that their participation in the meeting with them would be maintained as confidential. The fact that Plaintiffs' counsel may have made assurances to the putative class members who attended the meeting is not sufficient to justify a privilege and deny Defendants' motion. As stated above, the disclosure of the identities of those who met with class counsel will not disclose any client confidences.
Plaintiffs also argue that they should not be required to disclose the identities of putative class members that were obtained through Plaintiffs' counsel's own industry and effort, citing
In
The present case is distinguishable from
Therefore, the Court finds that the attorney-client privilege does not apply to the identities of the putative class members who met with class counsel and Plaintiffs.
Plaintiffs argue that the putative class members are farmworkers who are protected by the California Agricultural Labor Relations Act ("ALRA") and have the right to engage in concerted activity intended to improve their working conditions. Plaintiffs argue that this Court should defer to the ALRB regarding whether Plaintiffs have to disclose the identities of the putative class members who met with Plaintiffs and class counsel. Defendants did not address the preemption issue. In footnote three of the joint statement regarding this discovery dispute, Plaintiffs state:
(ECF No. 54 at 20 n.3.)
The Court finds that Plaintiffs' preemption argument is inapposite because the instant dispute involves discovery in a federal class action lawsuit for wage and hour violations. Further, the issue is not one of preemption, but whether the information sought is privileged within the meaning of Fed. R. Evid. 501, et seq. The Court clearly has the ability to oversee and issue orders regarding discovery in a federal class action. See Fed. R. Civ. P. 23(d). Therefore, the Court finds that it is not preempted from deciding the instant motion.
Plaintiffs argue that employees have the right to engage in concerted activity intended to improve their working conditions. Plaintiffs also argue that employer questions during or in anticipation of litigation about protected concerted activity can violate the NLRA by tending to interfere with the exercise of employee rights.
Plaintiffs have not presented any case law that supports their argument that the ALRA protections are privileges that are applicable to federal class action discovery matters. Courts have supervisory authority pursuant to Federal Rule of Civil Procedure 23(d) to regulate communications in order to protect the interests of class members.
Furthermore, even if the Court considers the applicable standard under the ALRA that the ALRB uses for determining whether an employer's deposition questions were lawful, the Court finds that Defendants' questions were appropriate and Plaintiffs' privilege claim is inapplicable.
In
The Court finds that the information sought is relevant to the instant class action lawsuit, and there is no evidence in the record that Defendants have an illegal objective under the ALRA. Also, the Court notes that the parties will not initiate communications with putative class members during the twenty-one day opt-out period and the five day period of time for the mail to be received. Therefore, Plaintiffs' concerns for the disclosure of the identities because of potential coercion for signing the opt-out postcards are now moot by the Court's order on the opt-out disclosure notice, which restricts the parties from initiating communications with the putative class members during the twenty-one day opt-out disclosure period and the five day period of time for the mail to be received. The Court finds that the employees' confidentiality interests are outweighed by Defendants' need for this information. As stated above, Defendants seek the identities of the putative class members who met with Plaintiffs' counsel regarding this lawsuit. Plaintiffs' counsel has stated that the meetings were only regarding this lawsuit, and did not involve any union activity. Therefore, even if the Court considers the ALRB's three-part test in determining whether an employer's deposition questions were lawful, the Court finds that Defendants' deposition questions regarding the identities of the putative class members who attended meetings with Plaintiffs' counsel did not violate the ALRA. The Court finds that Plaintiffs' assertion of privilege under the ALRA and NLRA does not apply.
Defendants ask the Court to stay Plaintiffs' pending charge before the ALRB regarding Defendants' deposition questioning. However, Defendants have not provided any authority that the Court has the power to stay a matter before the ALRB. Therefore, Defendants' request for the Court to stay Plaintiffs' pending charge before the ALRB regarding Defendants' deposition questioning is denied.
Plaintiffs argue that the First Amendment of the United States Constitution bars disclosure of the identities of employees who meet to discuss protected concerted activity. Plaintiffs argue that workers have the right to assembly, free speech and petition. Defendants reply that Plaintiffs' First Amendment argument is displaced because this is not a situation where the group espouses dissident beliefs.
Courts advert to balancing three factors when conducting the compelling interest/substantial relation inquiry to determine whether First Amendment privilege applies: the relevance of the information sought, the need for that information, and the extent of injury that disclosure may cause to associational rights.
Here, Defendants seek the identities of the putative class members who met with class counsel and Plaintiffs. Defendants are not seeking an anonymous member list or information from a group that espouses dissident beliefs. There is not a dissident organization in the background, such as the Ku Klux Klan, Black Panthers, etc. The putative class members are farmworkers who are or were employed by Defendants and who are seeking class certification in federal court for their proposed class. Plaintiffs have not shown that Defendants are likely to harass or retaliate against the individuals who have met with Plaintiffs and class counsel. There has been no indication that Defendants have engaged in any inappropriate conduct in this case. Disclosing the identities of the potential class members who met with Plaintiffs and class counsel will not have a chilling effect on the putative class members' First Amendment rights. Furthermore, the information that Defendants seek to obtain is relevant to their case. Defendants indicate that they may depose putative class members that Plaintiffs may elicit testimony from to support Plaintiffs' motion for class certification. Accordingly, the Court does not find that Plaintiffs' claim of First Amendment privilege should be applied to preclude discovery in the instant case.
Based on the foregoing, the Court finds that Plaintiffs were not entitled to assert a privilege for not answering Defendants' questions regarding the identities of the putative class members who attended meetings with Plaintiffs and Plaintiffs' counsel. Plaintiffs should have answered Defendants' questions regarding the identities of the putative class members who attended the meetings with Plaintiffs' counsel regarding this lawsuit.
Defendants argue that Plaintiff Elmer Avalos's deposition should be reopened because Mr. Avalos made multiple significant changes to his deposition transcript that rendered the deposition useless or incomplete absent further deposition. Defendants argue that Mr. Avalos completely changed his answers from unequivocally stating he was being paid hourly and not piece rate, to that he was paid piece rate. Further, Defendants argue that these changes materially affect the testimony because they would have elicited further questions if Mr. Avalos had answered that he was paid piece rate. Defendants state that based on Mr. Avalos's unequivocal "yes" or "no" responses to questions at the deposition, further questions were not required.
Plaintiffs respond that Mr. Avalos permissibly made changes to his deposition transcript pursuant to Rule 30 of the Federal Rules of Civil Procedure. Plaintiffs argue that Mr. Avalos provided complete and thorough explanations for the changes to his deposition testimony, and did so in a timely manner.
Federal Rule of Civil Procedure 30(e) reads, in pertinent part, that:
Fed.R.Civ.P. 30(e).
The Court notes that the parties do not dispute that Mr. Avalos made permissible changes to his deposition transcript pursuant to Rule 30 of the Federal Rules of Civil Procedure, and that he did so in a timely manner. The only issue is whether the changes by Mr. Avalos to the deposition transcript rendered his testimony useless or incomplete absent further deposition.
Plaintiffs argue that the changes do not render his testimony incomplete. Plaintiffs point out that Defendants have not explained what follow-up questions they would have asked. Plaintiffs argue that Defendants seek to harass Mr. Avalos for exercising his right to make the changes to his deposition transcript. Plaintiffs argue that the changed answers are not material, unverifiable, or unexplained so as to warrant reopening the deposition. Plaintiffs also argue that the cases where depositions are reopened are ones where the deponent did not provide an explanation for the change to the deposition transcript.
However, it is clear that a deposition may be reopened where the changed answers result in the deposition being incomplete without additional testimony.
In
Furthermore, in Lugtig, the Court found that "[s]ince it is defendant's actions which necessitate reopening the examination of defendant, the costs and attorneys fees connected with the continued deposition will be borne by defendant."
Here, Mr. Avalos made seventeen changes to his deposition transcript. (ECF No. 54-1.) He changed his answers from stating that he was being paid hourly and not piecework, to that he was paid piecework. One change to the deposition transcript was changing "[t]he checks would end up as an hourly rate" to "[t]he checks would end up paying us below the piece rate promised or understood." (ECF No. 54-1 at 3.) Another change to the deposition transcript was changing "[t]hey paid us hourly all the time. They never paid us piecework" to "[t]hey never properly paid us for piecework." (ECF No. 54-1 at 3.) He made these changes reflecting that he was actually paid piecework in multiple places to his deposition testimony.
The Court finds that these are changes that render his deposition incomplete without additional testimony. Defendants did not ask further questions of Mr. Avalos because of his answers that he was paid hourly and not paid piecework. These questions are clearly relevant to the case, as there is an issue about how the employees were paid. Also, Mr. Avalos is a named plaintiff and whether he is typical of the class and subclasses that he seeks to represent is a relevant issue for class certification. Deposing counsel can ask questions which were made necessary by the changed answers, questions about the reasons for the changes, and questions about whether the changes originated with Mr. Avalos or with his attorney.
Therefore, the Court finds that Defendants are entitled to conduct another deposition of Mr. Avalos, and Mr. Avalos must pay for the cost of such further deposition.
Rule 37(a) provides that if the motion to compel discovery is granted: "the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion. . .to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees" unless "the opposing party's nondisclosure, response, or objection was substantially justified; or other circumstances make an award of expenses unjust."
At the hearing, Defendants only requested sanctions for the cost and attorney's fees associated with Defendants' request to reopen Mr. Avalos's deposition because of changes he made to the deposition transcript. Plaintiffs argue that sanctions should not be imposed because Mr. Avalos did what is permitted under the Federal Rules of Civil Procedure and they allege that this is a novel issue of law. The Court notes that the case law cited by Plaintiffs even provides for the reopening of a deposition when the changes to the deposition result in the deposition being incomplete absent further examination. Although Plaintiffs may disagree about whether the changes made to the deposition transcript were material and resulted in the deposition being incomplete absent further examination, the Court does not find that Plaintiffs' objection to reopening Mr. Avalos's deposition based on the changes he made to the deposition transcript is substantially justified. The changes made were clearly material, especially based upon the assertion being made for certifying this class and this person's potential status as a named representative. The sanctions are not imposed by the Court because the deponent made corrections to his deposition under Fed. R. Civ. P. 30(e), but for Plaintiff's refusal and requirement that Defendants bring a motion to compel to re-open the deposition.
As the Court grants Defendants' motion to compel, the Court orders Plaintiffs to pay Defendants' reasonable expenses incurred in making the motion regarding reopening Mr. Avalos's deposition because of the changes to the deposition transcript, including attorney's fees.
The Court will order Defendants to file a motion for reasonable attorney's fees within fourteen (14) days of the date of service of this order. Any opposition to the motion for attorney fees shall be filed within seven (7) days of the date of service of Defendants' filing.
Based upon the foregoing, it is HEREBY ORDERED that:
IT IS SO ORDERED.
