ALLISON CLAIRE, District Judge.
This matter is before the court on plaintiff's motion for discovery. ECF No. 64 (renewed at ECF No. 75, joint statement filed at ECF No. 70
On June 19, 2013, plaintiff Yury Adamov filed a wage-and-hour putative class action against his former employer, PricewaterhouseCoopers LLP ("PwC"). ECF No. 54 at 1 (Second Amended Complaint). Plaintiff alleged that PwC misclassified him and other California employees working as "Attest Associates" at PwC after June 19, 2009.
This case is in phased discovery. Plaintiff's motion for class certification is due on March 9, 2018, and discovery going to class certification must be completed by January 19, 2018. ECF Nos. 65, 74. A motion for summary judgment is pending before the District Judge. ECF No. 58, 62. According to the parties' joint discovery statement, the factual disputes at issue in this case include:
ECF No. 70 at 6-7.
Plaintiff asks the court to compel responses to multiple requests for production ("RFPs"), including RFP 1, 3-9, 17, 27, 32, 36, 37, 50-51, 55, 57, 58, 62, and 74. The parties filed a joint discovery statement on November 15, 2017. ECF No. 70.
The scope of discovery in federal cases is governed by Federal Rule of Civil Procedure 26(b)(1). The current Rule states:
Fed. R. Civ. P. 26(b)(1). Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401. Relevancy to the subject matter of the litigation "has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case."
Discovery in the class action context can be particularly complex. To proceed with a class action, the Ninth Circuit has held that a plaintiff bears the burden of either making a prima facie showing that Federal Rule of Civil Procedure 23 class action requirements are satisfied or that discovery is likely to produce substantiation of the class allegations.
In a putative class action, it is within a court's discretion to set either a bifurcated discovery schedule (creating separate "pre-certification discovery" and "class discovery" deadlines) or non-bifurcated discovery schedule. In bifurcated discovery, pre-certification discovery is generally initially limited to "certification issues such as the number of class members, the existence of common questions, typicality of claims, and the representative's ability to represent the class."
Plaintiff's first request for production seeks the name and last known contact information for each Attest Associate. ECF No. 70 at 7. Defendant objects to the RFP on the grounds that it is not relevant to class certification.
As a preliminary matter, plaintiff is entitled to the discovery requested in RFP 1 because it is directly relevant to class certification. In
Plaintiff's RFPs 3-9 seek information regarding PwC's arbitration program, including information on Attest employees who agreed and/or declined to participate in the arbitration program, information on employees that are subject to the arbitration program, and communications between PwC and Attest employees about the arbitration program. ECF No. 70 at 16-20. Plaintiff alleges that PwC solicited putative class members with participation in an arbitration program while this case was stayed, in an effort to deter class participation. ECF No. 70 at 20-21. PwC asserts that plaintiff is not entitled to discovery about defenses that cannot be asserted against Mr. Adamov himself as the named plaintiff.
Plaintiff is entitled to discovery at this juncture on issues surrounding the arbitration agreement, and PwC must make a full production in response to RFPs 3-9. It is clear that class counsel have the right to communicate with putative class members prior to class certification.
Defendant also presents a standing argument, asserting that plaintiff is not entitled to discovery about defenses that PwC will not, and cannot, assert against Mr. Adamov (who is admittedly not part of the arbitration agreement), and that Mr. Adamov does not have standing to litigate the validity of an arbitration agreement to which he is not a party. Defendant relies on case law from the Eleventh Circuit, in which the appellate court decided that the "District Court lacked jurisdiction to rule on the arbitration obligations of the unnamed putative class members because the named plaintiffs lack standing to raise any arguments on the unnamed putative class members' behalf."
Unlike in
The undersigned also rejects defendant's argument, made at hearing, that plaintiff's is not entitled to discovery that would lead to the potential inclusion of putative class members that are part of the arbitration agreement because defendant will not dispute numerosity. This argument does not withstand scrutiny; it is within plaintiff's discretion to assemble his class, and he is entitled to attempt to include individuals who may be impacted by the arbitration agreement whether or not they are needed for numerosity purposes. Defendant must make a full production in response to RFP's 3-9.
In RFP 17, plaintiff seeks production of any and all transcripts related to auditor malpractice that were commenced or pending from June 19, 2009 to present in which issues were raised regarding the supervision of unlicensed audit staff, their qualifications or competence, their quality of work, their lack of CPA licensure, or the independence between PwC and an audit client. ECF No. 70 at 34. Defendant objects that this RFP seeks irrelevant information generally, that it is not proportional to the needs of the case, and that it seeks information not relevant to the determination of class certification.
Plaintiff has provided a sufficient nexus to the class certification process to demonstrate that this RFP is relevant and proportional to the class certification stage of discovery. Plaintiff is entitled, at this juncture, to discovery on "the existence of common questions, typicality of claims, and the representative's ability to represent the class,"
Plaintiff points out that the common questions described above regarding Attest Associates were central at the class certification stage of a related case,
Plaintiff's RFP 27 requests any and all documents, including email, related to communications between any PwC partner, human resources employee, and/or manager or supervisor related to the development of any job descriptions for Attest Associates. ECF No. 70 at 39. Defendant objects that this request is overbroad, unduly burdensome, and exceeds the scope of permissible discovery.
Plaintiff asserts that, because central issues to be litigated at class certification will require information on expectations of first-year Attest Associates, including educational or work requirements, RFP 27 seeks relevant information. In this case, however, the court agrees with defendant that the request is unduly burdensome and seeks information that is available from other sources. ECF No. 70 at 41, Fed. R. Civ. P. 26(b)(2)(C)(i). The final job descriptions are available to plaintiff, and plaintiff does not make a persuasive case that discovery on the process of developing these descriptions will lead to any non-duplicative information. Further, defendant has offered to produce a Fed. R. Civ. P. 30(b)(6) witness on the topic of job duties and work responsibilities. ECF No. 70 at 42. This witness, combined with production of published job descriptions, is sufficient. Defendant need not make a further production in response to RFP 27.
Plaintiff's RFP 32 seeks all affidavits, declarations, or witness statements, including all drafts, obtained by PwC or its counsel that relate in any way to this case or the job duties and work responsibilities of Attest Associates. ECF No. 70 at 42. Defendant objects to the extent the request seeks privileged information, to the extent that it seeks documents protected by the privacy rights of third parties, and because it is overbroad and unduly burdensome.
The court agrees that defendant must make a full production in response to RFP 32, along with a privilege log in accordance with the local and federal rules. Defendant's broad references to privilege do not warrant a lack of production; instead, they warrant the production of a proper privilege log. Fed. R. Civ. P. 26(b)(5). The request is otherwise relevant and proportional, and defendant's objections with respect to the burden of production are not well supported. Defendant must make a full production, with a privilege log, with respect to RFP 32.
Plaintiff's RFP 36 requests "any and all documents relating to plaintiff." ECF No. 70 at 47. Defendant objects that the request is overbroad and unduly burdensome, but agreed, following entry of an appropriate protective order, to produce the Annual Summary and Periodic Feedback Form for plaintiff Adamov's first year as an Attest Associate and documents related to his sabbatical leave. ECF No. 70 at 47. It its supplemental response, defendant further objects that the request exceeds the scope of discovery, but agreed (without any waiver of objections) to produce additional documents related to Mr. Adamov that it can locate, such as his personnel file, sabbatical leave-related documents, Annual Summaries, Periodic Feedback Forms, Development Plans, and learning history for his full time at PwC.
In the briefing, defendant contends that it has "responded fully and completely to Request for Production No. 36." ECF No. 70 at 48. It contends that there are no further responsive documents to produce.
Plaintiff's RFP 37 requests the complete audit work papers, including complete "MyClient" and "Aura" files, for each PwC audit engagement to which plaintiff was assigned work during the class period. ECF No. 70 at 49. Defendant objects to the RFP on the grounds that it exceeds the scope of production, and seeks irrelevant documents.
Plaintiff will not limit its request to the timeframe proposed by defendant. ECF No. 70 at 50. As plaintiff accurately points out, the issue of the time period during which plaintiff qualified as a "first-year" Attest Associate is currently before the district court in the pending motion for summary judgment.
Plaintiff's RFPs 50-51 seek documents related to educational requirements established by PwC, and documents related to changes in those requirements, for the position of Attest Associates of the "Assurance" Line of Service. Defendant objects that the requests are overbroad and unduly burdensome.
Plaintiff supports his request by arguing that it calls for production of documents "likely to set forth PwC's expectations as to the educational or training requirements needed to perform the work of a first-year Attest Associate," and would "also encompass email and other internal communications" concerning the rationale behind any educational requirements in job postings. ECF No. 70 at 52. While it is clear that the educational requirements of first-year Attest Associates are relevant to questions that will be at issue at the class certification stage, plaintiff does not make a persuasive case that internal e-mails and other communications are necessary or would lead to unique, non-duplicative information; this is especially true in light of the availability of a Rule 30(b)(6) witness on the topic. Given the volume of documents such a production is likely to result in, production of such documents is unduly burdensome. Defendant is not required to make any further production, beyond what it has already agreed to, in response to RFP s 50-51.
Plaintiff's RFP 55 seeks all documents relating to or describing PwC's rationale or reasons for requiring passage of the PA Exam as a prerequisite for advancement to the audit senior associate level. ECF No. 70 at 55. Defendant objects that the request seeks production of documents not relevant to the claims or defense in this litigation, and asserts that it does not have a "policy of promoting first-year Attest Associates to Attest Senior Associate." ECF No. 40 at 55. Defendant asserts this RFP seeks information not relevant to class certification, and objects on the grounds that the request is uncertain as to time.
Plaintiff asserts the documents in response to RFP 55 are necessary to unveil the "rationale or reasons" for PwC's requirement that individuals pass the CPA Exam before promotion to the Senior Associate level. ECF No. 70 at 56. To reveal the rationale, plaintiff seeks internal communications, both formal and otherwise.
Plaintiff's RFP 57 seeks all documents relating to defendant's policy and/or practice of staffing audit engagements with associates from other divisions and/or lines of service, including Systems Process Assurance ("SPA") Associates. ECF No. 70 at 58. Defendant objects to the RFP on the grounds that it exceeds the scope of permissible discovery, is overbroad and unduly burdensome, and the phrase "policy and/or practice" is vague and ambiguous.
Plaintiff justifies RFP No. 57 by asserting that staffing SPA associates, who ordinarily perform work related to computer systems and processes and have little to no accounting knowledge, to Attest rotations is relevant to the issue of whether advanced and specialized accounting knowledge is required to perform the work of a first-year Attest Associate.
The court agrees that the availability of a Rule 30(b)(6) deponent on this topic should be sufficient, and no further production on this RFP is required. To the extent plaintiff seeks internal communications on this topic, such a production would be unduly burdensome and disproportionate to the needs of the case. This is especially true in light of the fact that the less burdensome option of a 30(b)(6) deponent on this topic is being made available, as plaintiff will be able to gather information related to PwC's practices from the deponent. No further production on RFP 57 will be compelled.
Plaintiff's RFP 58 seeks all documents relating to speeches or statements by former PwC Chairman Bob Moritz that refer to or discuss the job duties and work responsivities of Attest Associates. ECF No. 70 at 6. Defendant objects on the grounds that the request exceeds the permissible scope of discovery, the burden and expense on defendant outweigh any likely benefit to the plaintiff, and it is overbroad and unduly burdensome.
The court is not persuaded by plaintiff's reasoning in support of RFP 58. Plaintiff asserts that Mr. Moritz has, in the past, made public statements about his own first few years at PwC that contradict defendant's theory of this case.
Plaintiff's RFP 62 seeks all documents describing accounting as an apprenticeship profession, and refers as an example to PwC's 2014 Audit Quality Report at p. 11. ECF No. 70 at 64. Defendant objects that the request exceeds the permissible scope of discovery, that any documents produced would not be relevant in the context of California wage-and-hour law, and that notwithstanding its objections, it has conducted a "diligent search" for PwC-issued reports similar to PwC's Audit Quality Reports to see if they describe accounting as an "apprenticeship profession" and has found no responsive documents.
Plaintiff argues that the information sought in RFP 62 is highly probative, and that PwC's limited search is unsatisfactory.
Plaintiff's RPF 74 seeks all documents relating to the promotion of unlicensed audit personnel, who have not taken or have failed any section of the Uniform CPA Examination, to the Senior Associate position. ECF No. 70 at 68. Defendant argues the request exceeds the scope of permissible discovery, and asserts that PwC does not have a policy of promoting first-year Attest Associates to Attest Senior Associates.
Plaintiff asserts the partial production agreed to by defendant is inadequate, and contends he needs documents including internal communications, reports (formal and otherwise), and publications.
The court agrees with defendant. Plaintiff has not made a persuasive argument that unspecified internal communications are likely to lead to any unique information in light of the availability of defendant's 30(b)(6) deponent and the production of its official policies. Thus, the burden to defendant would outweigh the potential benefit to plaintiff if production were compelled. Defendant need not make any additional production with respect to RFP 74.
For the reasons explained above, plaintiff's motion to compel, ECF No. 75, is GRANTED in part and DENIED in part as follows: