ORDER GRANTING IN PART AND DENYING IN PART JOINT MOTION REGARDING DEFENDANTS' COLLECTION OF ELECTRONICALLY STORED INFORMATION, TO COMPEL THE PRODUCTION OF DOCUMENTS AND INFORMATION, AND FOR AN IN-PERSON CONFERENCE

[Doc. No. 183]

KAREN S. CRAWFORD, Magistrate Judge.

Before the Court is a Joint Motion Regarding Defendants' Collection of Electronically Stored Information, to Compel the Production of Documents and Information, and for an In-Person Conference. [Doc. No. 183.] In the Joint Motion, plaintiffs seek an order compelling defendants to provide further responses to interrogatories and requests for production of documents. Plaintiffs also seek an order compelling defendants to produce all relevant documents in response to its requests for production of documents. Finally, plaintiffs request an in-person discovery conference with the Court to discuss a number of discovery issues. For the reasons addressed more thoroughly below, the Joint Motion is GRANTED in part and DENIED in part. [Doc. No. 183.]

I. BACKGROUND

This is a collective action in which plaintiffs Erik Kellgren ("Kellgren") and others employed as Assistant Managers in defendants' stores claim to have been misclassified as "exempt" from the overtime provisions of the Fair Labor Standards Act of 1938,29 U.S.C. § 201, et seq. ("FLSA"). The central issues in the case relate to the duties plaintiffs performed in the course of their employment, and whether they worked over forty hours a week during the relevant time frame.

On September 3, 2015, the Court conditionally certified a collective action consisting of: "All persons residing in the United States (except California) who are formerly or currently employed by Petco Animal Supplies, Inc. as an assistant manager at any time from March 19, 2010 to the present." [Doc. No. 78, at p. 11.] A Second Amended Scheduling Order (hereinafter "Scheduling Order"), filed on November 18,2016, gives the parties until August 2, 2017 to complete fact discovery. [Doc. No. 184, at p. 1.] The Scheduling Order also provides that any pretrial motions, including decertification and final certification of the collective action, must be filed by September 15, 2017. Id. at p. 3.

The instant Joint Motion was filed by the parties on November 17, 2016, and concerns: (1) plaintiffs' request for an in-person conference with the Court; (2) plaintiffs' motion to compel regional and corporate e-mail; and (3) plaintiffs' motion to compel further responses to certain interrogatories and requests for production in plaintiffs' third set of interrogatories and requests for production (hereinafter "RFP 3").

II. DISCUSSION

Federal Rule of Civil Procedure 26(b), as amended, provides in relevant part as follows:

Fed. R. Civ. P. 26(b)(1); Fed. R. Civ. P. 26(b)(2)(B). "The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. . . ." Fed. R. Civ. P. 26(c)(1).

A. Plaintiffs' Request for an In-Person Conference with the Court.

Plaintiffs request an "in-person conference with the Court to discuss a number of discovery disputes that have reached such a mass that it would appear most effiacious [sic] and sensible to address them in person, including . . . (1) the scope of, and methodology for, Defendants' collection, search and production of electronically stored information ("ESI"), including e-mails; and (2) [p]laintiff's motion to compel [defendants to produce documents and information responsive to Plaintiffs' Third Set of Interrogatories and Request for Production of Documents. [Doc. No. 183, at p. 11.] Defendants do not oppose plaintiffs' request for an in-person discovery conference, but suggest that plaintiffs first provide a written list of the specific issues in advance of the conference. [Doc. No. 183, at p. 43.] Defendants assert that "[w]hile plaintiff listed numerous items that they seek to have the Court address at a conference, the topics are general. Plaintiffs do not identify the relief they seek, and Petco is not even aware there is a dispute as to several of the items." Id. Here, the Court finds that an in-person discovery conference is not necessary to resolve the instant discovery dispute as the parties have submitted sufficient briefing on the issues in dispute. The parties filed over eighty pages of briefing, excluding exhibits, regarding their respective positions. [Doc. No. 183.] Accordingly, plaintiffs' request for an in-person discovery conference at this time is DENIED.

B. Plaintiffs' Motion to Compel Regional and Corporate E-mail.

Plaintiffs assert that "a core aspect of discovery in a retail chain misclassification case is usually e-mails at the regional and corporate level, but Defendants refuse to produce them here, much less even suggest when they might possibly be forthcoming." [Doc. No. 183, at p. 11.] In connection with their request for regional and corporate e-mail, plaintiffs request broadly "the Court's guidance regarding the parameters of Defendants' collection and production of ESI and other discovery to which they are entitled." Id. at p. 12. Plaintiffs further note that "[n]o ESI protocol was in place in this action until August 26, 2016," and claim that "[defendants appear to relieve themselves of their obligation under Fed. R. Civ. P. 26(e)(1) to supplement their responses to Plaintiffs' [previous discovery] requests." [Doc. No. 183, atpp. 14,15.]

Defendants oppose plaintiffs' request for regional and corporate e-mails on the following grounds: (1) plaintiffs do not identify the specific requests at issue; and (2) the only discovery requests which sought regional and corporate e-mail were plaintiffs' fifth set of requests for production (hereinafter "RFP 5"), for which no meet and confer has occurred. [Doc. No. 183, at pp. 44, 63.] Defendants further note that "to the extent [plaintiffs' request for `regional and corporate e-mail' is a request for materials responsive to their Requests for Production, Set 1 (`RFP 1'), Set 2 (`RFP 2'), or Set 4 (`RFP 4'), this request is untimely, as this Court's deadlines for filing relevant motions to compel have long passed." [Doc. No. 183, at p. 44.]

The Court notes that plaintiffs did not brief the Joint Motion in the manner required by Chambers' Rules. In this regard, Chambers' Rules state as follows:

Chambers' Rules, § V.D.

In the instant Motion, plaintiffs make general arguments about the collection, search and production of ESI at the regional and corporate level in the context of defendants' responses. For example, plaintiffs contend they have made repeated attempts to reach agreement with defendants regarding "discovery previously sought by Plaintiffs, including as to Defendants' affirmative defenses and other areas which implicate corporate-level decision-making, where corporate-level custodians must be identified and their ESI searched." [Doc. No. 183, at pp. 13, 31.] However, plaintiffs do not identify the discovery requests previously sought by plaintiffs on a request-by-request basis. Instead, plaintiffs broadly take issue with the "search terms" used by defendants and the use of a "delimiter." [Doc. No. 183, at p. 14.] Plaintiffs further assert that "Defendants have baulked at identifying relevant custodians, including at the corporate-level, and otherwise have stymied Plaintiffs' attempts to obtain corporate-level ESI. . . ." [Doc. No. 183, at p. 14.] However, plaintiffs fail to address on a request-by-request basis, either the relevant search terms, or the identity or job titles of the document custodians plaintiffs believe would be appropriate. By contrast, defendants made a reasonable attempt in the instant Motion to narrow the scope of the overly broad arguments made by plaintiffs about regional and corporate e-mail and ESI based on its view of the case. [Doc. No. 183, at pp. 63-66.] Defendants also attempted to provide substantive responses to each of plaintiffs' arguments about regional and corporate e-mail and ESI, and to explain why defendants believe its responses were appropriate under the circumstances. Id. Defendants assert that they "ha[ve] insisted that any discussion of electronic systems, potential custodians of documents, and possible search terms must be tethered to specific document requests Plaintiffs have propounded. . . . Petco has resisted discussing `regional and corporate' e-mail in a vacuum and not in relation to a specific request." [Doc. No. 183, at p. 65.]

In sum, plaintiffs failed to abide by the Chambers' Rules requiring them to include, among other things, the exact wording of the discovery request at issue. [Chambers' Rules, § V.D.] Plaintiffs' failure to comply with this protocol has unnecessarily resulted in difficulty deciphering the precise nature of plaintiffs' objections. This Chambers' Rule is in place to allow for the expedient review of disputed discovery requests. Going forward, any joint discovery motions filed that fail to meet the briefing requirements in Chambers' Rules will be subject to denial.

Federal Rule of Civil Procedure 7(b)(1) requires a party state with particularity the grounds for a court order and the relief sought. Here, plaintiffs fail to clearly state what relief they seek and why they are entitled to a court order compelling that relief. Particularly when a party stands on an overly broad request and does not make a reasonable attempt to narrow it or to explain the need for such a broad range of documents and/or information, the Court will not "rewrite a party's discovery request to obtain the optimum result for that party. That is counsel's job." Bartolome v. City & Cty. of Honolulu, No. Civil 0-176 SOM/LEK, 2008 WL 2736016, at *14 (D. Hawaii July 14, 2008). The Court agrees with defendants that plaintiffs have not made a fair and appropriate attempt to identify with particularity the scope of the ESI as it relates to regional and corporate e-mail.

Further, plaintiffs' Motion to Compel as it relates to the collection, search and production of ESI at the regional and corporate level is premature. As of the date the instant Motion was filed, the parties had not meaningfully met and conferred as to all of the disputed discovery requests on a request-by-request basis. Defendants note that they served written responses to RFP 5 on October 27, 2016. [Doc. No. 183, at p. 64.] The parties exchanged one letter and a request for a sample of documents, but the parties had no discussion of any perceived deficiencies as of the date that the Joint Motion was filed. Id. The prematurity of plaintiffs' inclusion of the regional and corporate e-mail issue is further evidenced by the fact that on January 25, 2017, counsel for the parties jointly called the Court seeking leave for plaintiff to file a Motion to Compel regarding defendants' responses to plaintiffs' RFP 5. [Doc. No. 210.] The parties represented to the Court that as of that date, they had satisfied their meet and confer obligations. Id. Based on this representation, the Court granted plaintiffs leave to file and serve a Motion to Compel regarding RFP 5 and issued a briefing schedule accordingly. Id.

To the extent that plaintiffs claim that their "prior requests . . . specifically sought . . . corporate decision-making ESI," including regional and corporate e-mail, and that they are entitled to these documents in response to their earlier discovery requests (RFP 1,2 and 4), the Court finds this argument has no merit and is untimely. [Doc. No. 183, at pp. 14-15.]

Accordingly, plaintiffs' Motion to Compel defendants to collect, search and produce ESI at the regional and corporate-level regarding RFP 5 is DENIED as untimely and for failure to properly meet and confer.

C. Plaintiffs' Motion to Compel Further Responses to Certain Interrogatories and Requests for Production in Plaintiffs' Third Set of Interrogatories and Requests for Production [hereinafter "RFP 3"].

1. Search Terms.

With respect to the search terms to be used by defendants to collect and produce responsive documents, the parties appear to have engaged in significant meet and confer efforts and have fundamental differences regarding the ESI search terms to be used. [Doc. No. 183-1, at ¶¶ 7, 15, 19, 24, 25, 27; see also Doc. No. 183, at pp. 55-57.] According to defendant, on November 8,2016, plaintiffs sent their final search term proposal. [Doc. No. 183, at p. 57.] Defendants contend it is "elaborate and complex" and none of the searches are limited to e-mail with the Discovery Opt-Ins' names. Id. Defendants contend that plaintiffs' proposed selection of search terms would result in more than 400,000 documents to review for possible production if limited to the 30 Discovery Opt-In Deponents, and more than 1.5 million if the search terms include the 118 Discovery Opt-Ins. Petco has not agreed to plaintiffs' proposal and on November 15, 2016, defendants contend they made an alternative proposal. Plaintiffs had not yet responded as of the filing of this Joint Motion, on November 17,2016. Id.

Under defendants' proposal, Petco will search for the terms it has identified and almost all of the 90+ terms proposed by plaintiffs, subject to certain limits designed to generate a manageable volume of responses likely to be responsive, within e-mail files of the 30 Discovery Opt-In Deponents. [Doc. No. 183, at p. 57 (citing Ex. M to ManekerDeck at 124-25).] Plaintiffs take issue with defendants' use of certain limits on its proposed search terms, including, for example, the first or last name of the Discovery Opt-In. [Doc. No. 183, at p. 14.] Plaintiffs' proposal is unreasonable and overbroad. Based on the Court's review of the discovery requests at issue, and in light of the proportionality standard set forth in Rule 26(b), it appears that defendants' proposal to search for responsive documents using the search terms as set forth in Exhibit M in Maneker's Declaration is sufficient. Consequently, plaintiffs' request for a court order related to the expanded search terms is DENIED.

2. Plaintiffs' Interrogatory No. 3 of RFP 3.

On November 29, 2016, the Court held an informal discovery telephonic conference regarding, among other things, the instant Joint Motion. [Doc. No. 189.] Counsel for plaintiffs, Mr. Seth Lesser, advised the Court that plaintiffs seek to withdraw the dispute regarding defendants' response to Plaintiffs' Interrogatory No. 3. Id. Accordingly, any issues in the Joint Motion regarding Interrogatory No. 3 are denied as MOOT.

3. Plaintiffs' Interrogatory No. 5 of RFP 3.

Interrogatory No. 5 asks Petco to identify "all communications that the General Managers and District Managers of the Subject Plaintiffs have had concerning this lawsuit" and for each communication to identify "whom the communication was with, as well as the date, form and substance of the communication." [Doc. No. 183, at p. 19.] Plaintiffs define "Subject Plaintiffs" as the 118 Discovery Opt-Ins and Plaintiff Kellgren. Id. at p. 16. Plaintiffs contend that Interrogatory No. 5 "seek[s] clearly relevant information and [is] not overly broad, unduly burdensome or disproportionate to the needs of this case" and "is the same type of information that Defendants have sought (and obtained) from each and every Discovery Opt-In to whom they have directed written discovery." Id. at p. 35. Defendants objected to this Interrogatory on various grounds, including that "the interrogatory is overly broad and unduly burdensome." Id. at p. 69. Defendants noted that there are 240 current and former General Managers (hereinafter "GMs") and District Managers (hereinafter "DMs") and argue that they "cannot readily determine `all communications' that may have taken place by or between any of several hundred employees." Id.

Defendants assert that the "cost and time associated with tracking down and interviewing each of these individuals outweighs any benefit that would be derived." Id. To the extent that plaintiffs seek to compel defendants to interview or speak with each of the current and former GMs and DMs about this discovery request (or similar requests at issue herein), the Court finds it unnecessary in light of the limited e-mail files that defendants have already agreed to produce.

Defendants state that they have "agreed to search for and produce, e-mail that appears designed to obtain this information for a sample of the [30] Discovery Opt-Ins [Deponents]." Id. at p. 70 (citing to Exhibit M to Maneker Deck at 124-25, 125-37). Defendants explain in the Declaration of Meryl Maneker that they have agreed to search for e-mail to obtain responsive information related to 30 subject plaintiffs who will be selected for deposition (hereinafter "Discovery Opt-In Deponents") because they estimate the volume of e-mail to be collected from the stores and DMs, related to 118 Discovery Opt-Ins would comprise four to five terabytes of data. [Doc. No. 183-18, at p. 5, ¶ 18.] "The estimate to process, load and host that volume of data Petco received ranged from $277,000 to almost $1 million (depending on the amount of e-mail that contained a search term)." Id. Petco further estimated attorneys' fees related to the review of search results of this volume of data would be hundreds of thousands of dollars. Id. The Court finds that the significant cost associated with searching for and producing information related to all of the 118 Discovery Opt-Ins is not proportional to the needs of the case. Fed. R. Civ. P. 26(b)(2)(B). Without more, plaintiffs have not shown that a sampling of responsive information for the 30 Discovery Opt-In Deponents is insufficient for them to pursue their theory of the case.

Accordingly, at this time, the Court DENIES plaintiffs' request to compel defendants to interview or speak with each of the current and former GMs and DMs about this discovery request. Defendants are to produce the e-mail files for the 30 Discovery Opt-In Deponents during the time they worked as Assistant Managers during the relevant time period using the search methodology and search terms set forth in Exhibit M of the Maneker Declaration. To the extent that defendants have produced documents sought as represented, their response to Interrogatory No. 5 is sufficient.

4. Plaintiffs' Interrogatory No. 6 of RFP 3.

Interrogatory No. 6 asks Petco to "identify and describe any communication(s) Defendants' General Managers and District Managers] [sic] have had relating to or concerning any complaints made by any Subject Plaintiffs or AM regarding hours worked, the manner in which they were paid, staffing levels, and/or labor budgets at the stores where they worked." [Doc. No. 183, at p. 19.] Plaintiffs contend that Interrogatory No. 6 "seek[s] clearly relevant information and [is] not overly broad, unduly burdensome or disproportionate to the needs of this case" and again assert that it "is the same type of information that Defendants have sought (and obtained) from each and every Discovery Opt-In to whom they have directed written discovery." Id. at p. 35.

Defendants contend that they have "appropriately responded to Interrogatory No. 6." [Doc. No. 183, at p. 70.] Notwithstanding defendants' objections to this Interrogatory, defendants directed plaintiffs to their response to RFP 3, Request for Production No. 2, "wherein Petco agreed to search for and produce, responsive, non-privileged e-mails, from select store and District manager e-mail files, including those containing the root term `complain*' and an Opt-In's name." [Doc. No. 183, at p. 70 (citing Ex. A to Conway Deck, at pp. 7-10, 31-32).] Defendants also contend that they "agreed to search for e-mail files with the term `labor' in close proximity to the terms `budget' or `hours' and for e-mail files with the word `hours' and either `AM,' `Assistant Manager,' or the Opt-In's name." [Doc. No. 183, at p. 70 (citing Ex. A to Conway Decl., at pp. 7-10, 31-32).] Defendants contend that "this interrogatory seeks information similar to that sought in RFP 2, Request [for Production] No. 14, which sought documents `concerning complaints by AMs, whether formal or informal' regarding `failure to pay AMs for all hours worked, including overtime hours, and the number of hours an AM was working." [Doc. No. 183, atpp. 70-71 (internal citation omitted).] Defendants note that they have "searched various sources for such complaints and produced the same." Id.

Notably, plaintiffs' fail to acknowledge in the Joint Motion that defendants agreed to search for and produce certain responsive documents to this Interrogatory in connection with similar requests made by plaintiffs in RFP 3, Request for Production No. 2 and RFP 2, Request for Production No. 14. In fact, plaintiffs' argument regarding Interrogatory Nos. 5, 6, 7 and 8 is summarized in just a few paragraphs containing general arguments. [Doc. No. 183, at pp. 33-35.] Instead, plaintiffs claim that "these requests seek clearly relevant information and are not overly broad, unduly burdensome or disproportionate to the needs of the case." [Doc. No. 183, at p. 35.]

For the reasons outlined in the previous discussion, the Court DENIES plaintiffs' request to compel defendants to interview or speak with each of the current and former GMs and DMs about this discovery request. This demand is also inconsistent with the permissible scope of interrogatories under the Federal Rules. Defendants have already agreed to produce certain documents sought as represented herein, which the Court finds sufficient.

5. Plaintiffs' Interrogatory No. 7 of RFP 3.

Interrogatory No. 7 asks Petco to "describe any communications Defendants' General Managers and District Managers had with any store employee where the Subject Plaintiffs worked wherein they recommended, mandated and/or directed the reduction of the number of employees and/or labor hours for a particular day or given time period." [Doc. No. 183, at p. 20.] Plaintiffs contend that Interrogatory No. 7 "seek[s] clearly relevant information and [is] not overly broad, unduly burdensome or disproportionate to the needs of this case" and "is the same type of information that Defendants have sought (and obtained) from each and every Discovery Opt-In to whom they have directed written discovery." Id. at p. 35. Petco objected to this request on various grounds, including that it is overly broad and unduly burdensome explaining that "Petco cannot readily determine `any communication' that may have taken place by or between hundreds of employees." [Doc. No. 183, at p. 71.]

Defendants argue that there are 240 current and former GMs and DMs and contend that "this request is not proportional to the needs of the case, considering the time and resources to complete this task balanced against the materiality of the information and the ability to obtain the information through a less intrusive means." [Doc. No. 183, at p. 71.] Notwithstanding their objections, defendants note that they have "agreed to collect, search and review e-mail from select store and DM e-mail files using Plaintiffs' search terms — such as `labor[,]' `budget[,]' or `hours' that appear designed to obtain the information sought." Id. (emphasis added) (citing Ex. M to Maneker Deck at 124-25, 135-37.) Additionally, defendants assert that "plaintiffs may depose up to nine GMs or DMs if they seek yet further information." Id. As set forth in Exhibit M of the Maneker Declaration, defendants have agreed to "search the Store and DM e-mail for the 30 Opt-In Plaintiffs selected as deponents" using Petco's search terms and plaintiffs' search terms, with certain limitations. [Ex. M to Maneker Deck at 124-125, 135-37.] The Court finds defendants' response to Interrogatory No. 7 sufficient in light of the proportionality standards set forth in Rule 26.

Accordingly, at this time, the Court DENIES plaintiffs' request to compel defendants to interview or speak with each of the current and former GMs and DMs about this discovery request. Defendants are to produce the responsive, non-privileged store and DM e-mail files for the 30 Discovery Opt-In Deponents using the search methodology and search terms set forth in Exhibit M of the Maneker Declaration. To the extent that defendants have produced documents sought as represented, their response to Interrogatory No. 7 is sufficient.

6. Plaintiffs' Interrogatory No. 8 of RFP 3.

Interrogatory No. 8 asks Petco to: "identify all communication(s) that Defendants' General Managers and District Managers have had concerning the classification and/or reclassification of the Subject Plaintiffs or AMs as exempt or non-exempt from overtime, including the dissolution or discontinuance of the AM position." [Doc. No. 183, at p. 20.] Interrogatory No. 8 further requests "[f]or each communication, identify whom the communication was with and the date, form and substance of the communication." Id. Interrogatory No. 8 "has no date limitation." Plaintiffs contend that Interrogatory No. 8 "seek[s] clearly relevant information and [is] not overly broad, unduly burdensome or disproportionate to the needs of this case" and "is the same type of information that Defendants have sought (and obtained) from each and every Discovery Opt-In to whom they have directed written discovery." Id. at p. 35.

Defendants assert that they have "appropriately responded to Interrogatory No. 8." [Doc. No. 183, at p. 72.] Defendants objected to this Interrogatory and explained that "[Petco] cannot readily determine `any communication' that may have taken place by or between hundreds of employees.'" Id. Notwithstanding their objections to this Interrogatory, defendants directed plaintiffs to the "documents produced in response to RFP 4, specifically identifying the set of talking points distributed to GMs and DMs regarding the elimination of the AM position." Id. Defendants contend that they asked plaintiffs to clarify how this response was deficient during the meet and confer process, but plaintiffs failed to do so. Id. Defendants also agreed to search select store and DM e-mail files apparently intended to locate the information sought by plaintiffs, in addition to the documents identified above. Id.

For the reasons outlined in the previous discussion, the Court DENIES plaintiffs' request to compel defendants to interview or speak with each of the current and former GMs and DMs about this discovery request. Defendants have already agreed to produce certain documents sought as represented herein, which Court finds sufficient.

7. Plaintiffs' Requests for Production Nos. 1-6 and 8-10 of RFP 3.

In the Joint Motion, plaintiffs combine their arguments regarding why the Court should compel further responses to Requests for Production Nos. 1-6 and 8-10. [Doc. No. 183, at pp. 36-38.] Plaintiffs assert generally that the Requests for Production in RFP 3 "seek relevant communications sent and received by the GMs and DMs who supervised the Subject Plaintiffs." [Doc. No. 183, at pp. 35-36.] The Court will consider plaintiffs' arguments (and defendants' responses) regarding these Requests for Production together as they all relate to communications sent or received by the GMs and DMs who supervised the Discovery Opt-Ins. However, certain requests, including text messages sent or received, will be discussed separately.

Plaintiffs' Requests for Production Nos. 1-6 and 8-10 seek the following:

[Doc. No. 183, at pp. 21-28 (emphasis added).]

Defendants objected to these document requests on various grounds, including that the requests are unduly burdensome and not proportional to the needs of this case.1 [Doc. No. 183, at p. 22.] Notwithstanding their objections, defendants agreed to search for and produce store and DM e-mails for a sample of 30 Discovery Opt-Ins. [Doc. No. 183, at pp. 21-25, 74.] For example, in response to plaintiffs' Request for Production No. 1, defendants agreed to search for and produce the following documents for each Subject Plaintiff:

[Doc. No. 183, at pp. 22, 24.] Defendants also agreed to search for and produce, on a rolling basis, responsive, non-privileged e-mails with respect to the 30 Opt-In Deponents pursuant to the procedure set forth in their responses. [Doc. No. 183, at pp. 24-25.]

Plaintiffs contend that defendants' responses to each of plaintiffs' Requests for Production Nos. 1-6 and 8-10 are deficient because "it appears that Defendants did not speak with any of its General Managers and District Managers about plaintiffs' requests, and Defendants did not include any specific GM or DM communications or documents in their responses." [Doc. No. 183, at pp. 36, 37.] Plaintiffs assert that "the requests are directly proportional to the needs of the case and relate specifically to the 118 Discovery Opt-Ins (including Plaintiff Kellgren) whom Defendants have similarly obtained discovery from (or are in the process of doing so)." Id. at p. 37. Plaintiffs cite National Association ofRadiation Survivors v. Turnage, 115 F.R.D. 543, 556 (N.D. Cal. 1987), and assert that "a reasonable inquiry requires, `at a minimum, a reasonable procedure to distribute discovery requests to all employees and agents of the [party] potentially possessing responsive information, and to account for the collection and subsequent production of the information to [the opposing party] `" [Doc. No. 183, at p. 37.] Finally, plaintiffs take issue with defendants' indication that "they will `consider' searching, in some instances, their e-mail boxes for responsive documents" as opposed to actually performing any substantive inquiries with their GMs and DMs. [Doc. No. 183, at p. 38.]

Defendants counter by noting that, on their face, these requests are directed to Petco, not to individual GMs or DMs. [Doc. No. 183, at p. 73]. Defendants further note that they are not required to speak to each GM or DM to respond to these requests because it would be overly burdensome and not proportional to the needs of this case. Id. To the extent that plaintiffs seek information from specific GMs and/or DMs, they will have the opportunity to depose up to nine supervisors. Id.

Further, defendants contend that they are not required to speak with the GMs and/or DMs because the reasonably responsive documents sought could be identified and gathered without their involvement. Id. at p. 73. Defendants explain in the Joint Motion that at Petco, each store (as opposed to any individual GM) has a Petco-issued e-mail account accessible by the GM and DM. Id. Further, Petco manages and/or maintains personnel records for and complaints related to its employees, including the Discovery Opt-Ins, centrally. Id. Petco contends it "conducted a reasonable inquiry into the factual basis of each response to RFP 3 as contemplated by Natl Ass `n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 556 (N.D. Cal. 1987)." [Doc. No. 183, at p. 74.] Specifically, Petco contends it "has produced, or is in the process of producing personnel records as well as any complaint(s) by or regarding them made to the Petco Hotline and Petco has agreed to search for and produce responsive, non-privileged e-mail from stores and DMs related to the 30 Opt-Ins selected for deposition during the time when they were an AM." [Doc. No. 183, atp. 74.]

Finally, with respect to Requests for Production Nos. 4-6 and 9-10, defendants counter by noting that "plaintiffs grossly mischaracterize Petco's willingness to `consider' searching for additional documents as indicia of its failure to perform a substantive inquiry with its GMs and DMs." Id. at p. 75. Specifically, Petco has agreed to search the store and DM e-mail files for the 30 Opt-In Deponents using both Petco's search terms and plaintiffs' search terms, with "appropriate limitations.2" [Doc. No. 183, at p. 75.]

The Court agrees with defendants that they are not required to speak with the GMs and/or DMs because the reasonably responsive documents sought can be identified and gathered without their involvement. In light of the significant cost for defendants to collect, search and produce the volume of e-mail for all 118 Discovery Opt-Ins and their respective DMs, the Court also agrees that defendants' search, review, and production of non-privileged, responsive e-mail from the mailboxes of the stores and DMs of the 30 Discovery Opt-In Deponents using both Petco's search terms and plaintiffs' search terms is sufficient.

The Court DENIES plaintiffs' motion to compel further responses to Requests for Production Nos. 1-6 and 8-10. For the reasons outlined in the previous discussion, the Court DENIES plaintiffs' request to compel defendants to interview or speak with each of the current and former GMs and DMs about these discovery requests. Defendants have already agreed to produce certain documents sought as represented herein, which the Court finds sufficient.

a. Plaintiffs' Requests for Text Messages Sent or Received by GMs and DMs.

Plaintiffs' Requests for Production Nos. 1-3 include requests for defendants to produce text messages sent or received by GMs and DMs regarding the Discovery Opt-Ins (Request for Production No. 1); complaints about staffing levels or labor budgets (Request for Production No. 2); and text messages sent or received by GMs or DMs with instructions to send hourly-paid employees home during shifts at the stores where Subject Plaintiffs worked (Request for Production No. 3). [Doc. No. 183, at pp. 21-25.]

Defendants object to plaintiffs' requests for text messages sent or received by GMs and DMs on various grounds, including that they are unduly burdensome and not proportional to the needs of this case. Id. Defendants argue that the GMs do not have company-issued phones and that the GMs' personal phones are "outside Petco's custody, control or possession and would invade these individuals' privacy rights." [Doc. No. 183, at p. 76.] Defendants note "Petco's Store Communications Policy," which advises that DMs are permitted to communicate with stores through e-mail or voice-mail, to support their argument that the text messages sought by plaintiffs are not likely to contain significant information relevant to whether the Discovery Opt-Ins were properly classified as exempt. [Doc. No. 183, at pp. 76-77.] Finally, defendants reiterate that "[s]ince Petco has agreed to search for and produce a substantial sample of responsive e-mails to and from DMs, the burden to search text messages simply is not justified." Id. at p. 77.

Plaintiffs' argument in support of their need for text messages sent or received by GMs and DMs is vague, at best. Plaintiffs claim that defendants have "acknowledged that DMs, for example, were issued with company phones and, therefore, may have texted with store-level employees, including the Discovery Opt-Ins, about their job duties." [Doc. No. 183, at p. 38.] Notably, plaintiffs do not cite anything in support of this "acknowledgement." Id. In response to defendants' arguments that the GMs' personal phones are outside of Petco's possession, custody or control, plaintiffs contend that "this claim is spurious at best" and that "the company has direct control over what information GMs and DMs' [sic] can post and send using these mediums, and indicates that individuals can be terminated for not complying with their corporately-mandated rules." Id. (citing generally to Defendants' Social Media and Networking Policy and Corporate Voice and Data Communications Policy). Plaintiffs cite to Defendants' Social Media and Networking Policy and Corporate Voice and Data Communications Policy in support of its argument that "GMs and DMs have no expectation of privacy," without any analysis or citation of authority. [Doc. No. 183, at p. 39.] Defendants counter plaintiffs' characterization of Petco's Social Media and Networking Policy noting that it simply "sets forth guidelines [for] individuals identifying themselves as Petco employees that they should follow when using social media in their personal capacity." [Id. at p. 78.]

The Court finds that plaintiffs fail to clearly state why they are entitled to a court order compelling production of text messages sent or received by GMs and DMs on their personal cell phones in connection with plaintiffs' Requests for Production Nos. 1-3. The Court agrees with the arguments made by defendants in opposition to plaintiffs' requests to produce text messages sent or received by GMs and DMs regarding the Discovery Opt-Ins. Accordingly, the Court DENIES plaintiffs' motion to compel production of text messages sent or received by GMs and DMs in connection with plaintiffs' Requests for Production Nos. 1-3.

b. Plaintiffs' Requests for "Internet Messages" Made or Received by GMs or DMs.

Plaintiffs' Requests for Production Nos. 1-3 include requests for "internet messages, tweets and posts on social media" made or received by the Discovery Opt-Ins' GMs or DMs. [Doc. No. 183, at pp. 21-25.] Similarly, Requests for Production Nos. 4-5 and 9-10 include requests for "tweets and posts on social media" made or received by the Discovery Opt-Ins' GMs or DMs. Id. at p. 26.

Defendants object to plaintiffs' requests for this material on various grounds and further contend that this information is not within Petco's possession, custody or control. [Doc. No. 183, at p. 78.] Defendant explains in the Joint Motion that "while Petco maintains social media accounts, such as a Facebook page, GMs and DMs do not have access to or the ability to post on these accounts on behalf of Petco" [Id. (emphasis included in original).] Defendants further explain that any personal social media accounts of the GMs and DMs are personal and not available to Petco, invoking these individuals' privacy rights. Id.

Plaintiffs make the same argument in support of internet messages, including tweets and posts on social media, made or received by GMs and DMs, as made in support of text messages, summarized above. [Doc. No. 183, atp. 38:23-26; p. 39:1-17,]

For the same reasons explained above, the Court agrees with the arguments made by defendants in opposition to plaintiffs' requests to produce internet messages, tweets and posts on social media made or received by the Discovery Opt-Ins' GMs or DMs. Accordingly, the Court DENIES plaintiffs' motion to compel production of internet messages, tweets and posts on social media in connection with plaintiffs' Requests for Production Nos. 1-5 and 9-10.

8. Plaintiffs' Request for Production No. 7. including Planograms, Ad Planners. Floor Resets and Floor Plans.

Request for Production No. 7 seeks "[a]ll documents sent or received by Defendants' General Managers and/or District Managers that reflect the tasks, assignments, duties, and/or functions performed by the Subject Plaintiffs including, but not limited to, all policies and procedures related to the Subject Plaintiffs' job duties, all instructions on the performance of manual tasks performed by the Subject Plaintiffs, and all planograms, ad planners, floor resets, floor plans and all other documents providing instruction concerning the layout of the stores where the Subject Plaintiffs worked." [Doc. No. 183, at pp. 39-40.]

Defendants object to the production of planograms, ad planners, floor resets or floor plans, on various grounds, including because they are "not relevant to a party's claim or defense, because [they] ha[ve] no bearing on whether Petco's Assistant Managers were properly classified as exempt." [Doc. No. 183-2, at p. 22.]

Plaintiffs contend that planograms, ad planners, floor resets, and floor plans (hereinafter "planogram documents") are received by defendants' GMs and DMs through defendants' intranet portal. [Doc. No. 183, at p. 40.] Plaintiffs further contend that the manner in which "Petco micromanages their stores, including with respect to store layout, is central to whether AMs are properly classified as exempt under the FLSA, an analysis which turns on: (1) the nature of Plaintiffs' primary duties; and (2) the degree of discretion (or, in this case, lack of discretion) that Plaintiffs had both in the performance of their duties generally and by completing pre-determined planograms and other corporately-derived plans." Id. Plaintiffs contend that the refusal to produce these documents prejudices plaintiffs' ability to prosecute this action. [Doc. No. 183, at p. 41.] Plaintiffs claim that these documents are "regularly produced during the course of FLSA retail misclassification cases." Id. at pp. 40-42. Plaintiffs cite case law in support of its argument that courts have relied on these types of documents as evidence of corporate control over managers in FLSA cases and as evidence of assistant managers' lack of discretion. [Doc. No. 183, at pp. 40-41; see, e.g., Indergitv. Rite Aid Corp., No. 08 Civ. 9361(PGG), 2010 WL 2465488, at *5 (S.D.N.Y. June 16, 2010).]

Defendants counter plaintiffs' arguments for the planogram documents on multiple grounds, generally asserting that they are not responsive to Request for Production No. 7 and are not relevant. [Doc. No. 183, at p. 78.] More specifically, defendants contend that the fact that Petco provides its stores with uniform instructions, such as planograms, does not, in and of itself, establish that AMs lack discretion. Id. at pp. 78-79; see, e.g., Mitchell v. Abercrombie & Fitch, Co., 428 F.Supp.2d 725, 743 (S.D. Ohio 2006).] Defendants attempt to distinguish the authority cited by plaintiffs in support of their argument, and contend that none of the cases cited by plaintiffs "specifically found that planograms and the like are evidence of non-exempt status, and none of them specifically considered their impact on a retail manager's level of discretion." Id. at p. 80. "Rather this evidence was cited to either show plaintiffs performed similar duties for conditional class certification purposes or focused on numerous non-exempt tasks including but not limited to setting up planograms as evidence in a particular case that plaintiffs were non-exempt." Id.

Second, defendants contend that the planogram documents are not responsive to Request for Production No. 7 because it seeks documents "sent or received by GMs and/or DMs" related to tasks performed by the Discovery Opt-Ins, including documents "providing instruction concerning the layout of the stores where the" Discovery Opt-Ins worked. [Doc. No. 183, at p. 80.] GMs and DMs do not individually receive these four types of documents, but rather these documents are made available to all of the management team of a particular store. Id. at pp. 80-81. Third, defendants contend that the planogram documents "are factually of little value as they would shed no light on the Discovery Opt-Ins' duties or hours or whether AMs were properly classified as exempt" because merchandising was not one of the AMs' duties. [Doc. No. 183, at p. 81.] Further, defendants contend that producing such documents would be extremely burdensome in that Request for Production No. 7 seeks these related to more than 100 stores. Id. Defendants note that they have agreed to provide plaintiffs "a three-month sample of Action Memos, which will include ad planners and floor resets, as well as other documents sent to a single store," and that plaintiff should be required to review this sample before obtaining more. Id. atpp. 81-82.

Despite defendants' arguments to the contrary, plaintiffs have argued convincingly that the planogram documents are relevant as evidence of corporate control and considered by courts for certification motions of nationwide FLSA actions. Plaintiffs are entitled to pursue their theory of the case. To test this theory, plaintiffs are at least entitled to a broader sampling of defendants' Action Memos, including ad planners and floor resets.

On the other hand, the Court agrees with defendants' objection that the request for planogram documents is overly broad and unduly burdensome. Generally, a discovery request without any temporal or other reasonable limitation is objectionable on its face as overly broad. See, e.g., Ehrlich v. Union Pac. R.R. Co., 302 F.R.D. 620, 625 (D. Kan. 2014); Johnson v. Kraft Foods N. Am., Inc., 236 F.R.D. 535, 541-542 (D. Kan. 2006). A document request or interrogatory is also overly broad or unduly burdensome on its face if it: "(1) uses an omnibus term such as `relating to' or `concerning,' and (2) applies to a general category or group of document or a broad range of information." Moses v. Halstead, 236 F.R.D. 667, 672 (D. Kan. 2006). "Despite the overly broad nature of [a discovery request], a party typically has a duty to respond to it to the extent the [discovery request] is not objectionable and can be narrowed to an appropriate scope." Id. "This rule does not apply, however, and the Court will not compel further response, when inadequate guidance exists to determine the proper scope of the [discovery request]." Id. In addition, when a discovery request "is overly broad on its face or when relevancy is not readily apparent, the party seeking discovery has the burden to show the relevancy of the request." Johnson v. Kraft, 236 F.R.D. at 542 n.20 (citing Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 649, 652 (D. Kan. 2004)).

Defendants have agreed to "produce a three-month sample of Action Memos, which will include ad planners and floor resets, as well as other documents sent to a single store." [Doc. No. 183, at pp. 81-82.] Notably, plaintiffs fail to acknowledge this proposal in the Motion, and also fail to argue why it is insufficient or too narrow. Instead, plaintiffs stand on their overly broad request for "all planograms, ad planners, floor resets, floor plans and all other documents providing instruction concerning the layout of the stores where the Subject Plaintiffs worked," notwithstanding there is no date limitation, limitation on the number of stores, or other reasonable limitations on the scope of discovery to be produced in response to this request.

The Court finds that defendants' proposed limitation of a three-month sample of Action Memos sent to a single store is too narrow based on the allegations in plaintiffs' operative Complaint. Accordingly, the Court ORDERS defendants to produce a three-month sample of Action Memos for the stores where the 30 Opt-In Deponents worked.

III. CONCLUSION

For the foregoing reasons, the Joint Motion is DENIED. [Doc. No. 183.]

ORDERED to produce them within twenty (20) days of the date of this Order.

IT IS SO ORDERED.