DISCOVERY ORDER; NOTICE AND ORDER REGARDING DISCOVERY PROCEDURES

Re: ECF No. 48

LAUREL BEELER, Magistrate Judge.

The court held a discovery hearing on October 24, 2019 regarding the disputes raised in the parties' joint discovery letter1 and issues this order to memorialize the rulings on the record.

First, Kronos represented that it fully responded to the plaintiff's discovery requests and produced what it has, with the substantial caveat that it does not have the plaintiff's emails or Mike Solomon's emails due to its document-retention policy.2 Under that policy, Kronos deletes all employees' emails 30 days after termination of employment.3 Kronos clarified at the hearing that the issue is not the expense of restoration of emails and instead is the impossibility of restoring them.

It is the court's understanding from today's hearing that Kronos has produced what it can (e.g., emails between the plaintiff and her still-employed former supervisor). In any event, under General Order 71, which is self-executing, Kronos must produce all communications between the plaintiff's managers and supervisors and the defendant's human-resources representatives concerning the factual allegations or claims at issue. Gen. Order 71 pt. 2(2)(a). If Kronos has complied with this obligation, then the court can order no further production, but the court emphasizes that Kronos must comply with General Order 71.

Because the document-retention policy resulted in Kronos's inability to fully comply with General Order 71, the court ordered Kronos to produce its document-retention policy. More specifically, under General Order 71, Kronos must produce all communications between the plaintiff and the defendant concerning the factual allegations or claims at issue. Id. But Kronos (possibly) cannot comply with this obligation because — under its document-retention policy — Kronos no longer has the emails of its departed employees. Kronos opposed the plaintiff's request to produce the document-retention policy and argued that the plaintiff did not (1) diligently pursue the email discovery and (2) never made a formal document request.4 As to diligence, again, General Order 71 is self-executing. As to the need for a formal document request, parties exchange this information as part of the general discovery meet-and-confer process without the need for formal "discovery-on-discovery" requests. Cf. Apple, Inc. v. Samsung Elecs. Co. Ltd., No. 12-CV-0630-LHK (PSG), 2013 WL 1942163, at *1, *3 (N.D. Cal. May 9, 2013) (ordering third-party subpoena recipient to produce information about adequacy of its searches after requesting party asked for this information "not as part of a formal Request for Production nor as an Interrogatory but rather as a request following a meet-and-confer").

Second, the plaintiff challenges Kronos's failure to produce her job application.5 Kronos responded that it "made several searches" for it over the course of several months and was "unable to locate it."6 The court is not in a position to second-guess the diligence of Kronos's search. That said, this is another reason that the court ordered Kronos to produce its document-retention policy. Kronos also contended that the application did not have real significance to the lawsuit,7 but under General Order 71, a defendant must turn over the plaintiff's personnel file. Gen. Order 71 pt. 2(2)(d).

Third, the plaintiff asked for Kronos's financial information, which is relevant to her punitive-damages claim.8 Kronos did not dispute its relevancy, but it conditioned its production on the plaintiff's agreement to produce her financial information (pursuant to a trial subpoena) because it too claims punitive damages for its counterclaims, which are predicated on the plaintiff's alleged unlawful recording of telephone calls in 2017, in violation of California and Massachusetts law.9 The court ordered Kronos to produce its financial information because it cannot condition its discovery production on its view of the plaintiff's reciprocal discovery obligation.

Fourth, the final, related issue is whether Kronos can have the plaintiff's financial information. The plaintiff resists the production — which (again) Kronos asked for by way of a trial subpoena — because "issues concerning a trial subpoena are premature, Plaintiff's financial condition is irrelevant, and Defendant failed to request such documents despite Defendant propounding a second request for documents after it filed its counterclaim."10

As to the timeliness of the request, Kronos said that it did not learn about the recordings until plaintiff's counsel produced them on June 14, 2019.11 The trial judge did not authorize the filing of the counterclaim until August 28, 2019.12 Fact discovery ended October 15, 2019.13 The letter brief was filed on October 18, 2019, within the seven days contemplated by Civil Local Rule 37-3. The court cannot tell from the joint letter when Kronos raised the issue of discovery (by trial subpoena), but given the date that the parties filed the joint letter, it almost certainly was before the discovery cut-off. Given the tight timing between the authorization of the countercomplaint on August 28 and the end of discovery, the court does not preclude the discovery because of the timing and instead concludes — on this record — that the issue was fairly raised before fact discovery closed. Moreover, meeting and conferring about the appropriate mechanisms for disclosing relevant evidence — especially on tight time frames — is the kind of collaboration that the court encourages, which further militates in favor of not precluding discovery that was raised on a tight time frame before fact discovery closed.

As to the availability of punitive damages, the parties did not cite any cases but the court's quick, independent research revealed that — under California law — punitive damages do not appear to be available. See Bona Fide Conglomerate, Inc. v. SourceAmerica, No. 3:14-cv-00751-GPC-DHB, 2016 WL 3543699, at *10 (S.D. Cal. June 29, 2016) (dismissing counterclaim for punitive damages under Cal. Penal Code § 632 because "[counterdefendant] does not cite and the Court is not aware of any cases where punitive damages have been awarded"); Powell v. Union Pac. R.R. Co., No. CIV. S-09-1857 KJM-CKD, 2012 WL 3647715, at *5 (E.D. Cal. Aug. 22, 2012) (holding that plaintiff is not entitled to punitive damages under Cal. Penal Code § 637.2). But Kronos also claims a violation of Massachusetts law based on the allegedly surreptitious audio recording.14 Kronos said (at the hearing) that (1) the plaintiff (who made the calls from Oakland to — apparently — Massachusetts) contends that California law does not apply, which is why it pled a claim for relief under Massachusetts law, and (2) under the relevant Massachusetts statute, punitive damages are available. See Mass. Gen. Laws ch. 272, § 99.15 The plaintiff's counsel responded (at the hearing) that she disputed that punitive damages were available. Given that the parties did not cite cases or brief the issue, the court does not rule dispositively on this record and instead directs the parties to confer and, if they cannot resolve this dispute, to submit a joint letter that cites relevant authority. That said, the court notes that the civil-remedies section of the Massachusetts statute provides for punitive damages. Id. § 99(Q) (remedies include (1) actual damages but not less than liquidated damages of $100 per day for each day of violation or $1,000, whichever is higher, (2) punitive damages, and (3) reasonable attorney's fees and other litigation disbursements reasonably incurred). That apparently makes the plaintiff's financial information relevant. Also, Kronos asks for the financial information only at trial by way of a trial subpoena, which addresses the plaintiff's concern that the issue is premature.16

Going forward, if any further discovery disputes arise, the parties must comply with the undersigned's standing order (attached). The dispute procedures in it require, among other things, that if a meet-and-confer by other means does not resolve the parties' dispute, lead counsel for the parties must meet and confer (in person if counsel are local, or by telephone if they are not) and then submit a joint letter brief with information about any unresolved disputes. The letter brief must be filed under the Civil Events category of "Motions and Related Filings > Motions — General > Discovery Letter Brief." After reviewing the joint letter brief, the undersigned will evaluate whether further proceedings are necessary, including any further briefing or argument.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

STANDING ORDER FOR UNITED STATES MAGISTRATE JUDGE LAUREL BEELER (Effective October 17, 2018)

Parties must comply with the procedures in the Federal Rules of Civil and Criminal Procedure, the local rules, the general orders, this standing order, and the Northern District's standing order for civil cases titled "Contents of Joint Case Management Statement." These rules and a summary of electronic-filing requirements (including the procedures for emailing proposed orders to chambers) are available at http://www.cand.uscourts.gov (click "Rules" or "ECF-PACER"). A failure to comply with any of the rules may be a ground for monetary sanctions, dismissal, entry of judgment, or other appropriate sanctions.

I. CALENDAR DATES AND SCHEDULING

Motions are heard each Thursday: civil motions at 9:30 a.m. and criminal motions at 10:30 a.m. Case-management conferences are every Thursday: criminal cases at 10:30 a.m. and civil cases at 11:00 a.m. Parties must notice motions under the local rules and need not reserve a hearing date in advance if the date is available on the court's calendar (click "Calendars" at http://www.cand.uscourts.gov). Depending on its schedule, the court may reset or vacate hearings. Please call courtroom deputy Elaine Kabiling at (415) 522-3140 with scheduling questions.

II. CHAMBERS COPIES

Under Civil Local Rule 5-1(b), parties must lodge a paper "Chambers" copy of any filing unless another format makes more sense (such as for spreadsheets, pictures, or exhibits that are better lodged electronically). Paper copies must be printed on both sides and three-hole punched, and they must be the electronically filed copies with the PACER/ECF-generated header (with the case number, docket number, date, and ECF page number). Exhibits must be tabbed. Parties do not need to submit copies of certificates of service, certificates of interested entities or persons, consents or declinations to the court's jurisdiction, stipulations that do not require a court order (see Civil Local Rule 6-1), or notices of appearance or substitution of counsel. Please read Civil Local Rule 79-5 regarding the requirements for filing documents under seal and providing copies.

III. CIVIL DISCOVERY

1. Evidence Preservation. After a party has notice of this order, it must take the steps needed to preserve information relevant to the issues in this action, including suspending any document-destruction programs (including destruction programs for electronically maintained material).

2. Production of Documents In Original Form. When searching for material under Federal Rule of Civil Procedure 26(a)(1) or after a Federal Rule of Civil Procedure 34(a) request, parties (a) must search all locations — electronic and otherwise — where responsive materials might plausibly exist, and (b) to the extent feasible, produce or make available for copying and/or inspection the materials in their original form, sequence, and organization (including, for example, file folders).

3. Privilege Logs. If a party withholds material as privileged, see Fed. R. Civ. P. 26(b)(5) and 45(d)(2)(A), it must produce a privilege log that is sufficiently detailed for the opposing party to assess whether the assertion of privilege is justified. The log must be produced as quickly as possible but no later than fourteen days after the party's disclosures or discovery responses are due unless the parties stipulate to, or the court sets, another date. Unless the parties agree to a different logging method, privilege logs must contain the following: (a) the title and description of the document, the number of pages, and the Bates-number range; (b) the subject matter or general nature of the document (without disclosing its contents); (c) the identity and position of its author; (d) the date it was communicated (or prepared, if that is the more relevant date); (e) the identity and position of all addressees and recipients of the communication; (f) the document's present location; (g) the specific basis for the assertion that the document is privileged or protected (including a brief summary of any supporting facts); and (h) the steps taken to ensure the confidentiality of the communication, including an affirmation that no unauthorized persons received the communication.

4. Expedited Procedures for Discovery Disputes. The parties may not file formal discovery motions. Instead, and as required by the federal rules and local rules, the parties must meet and confer to try to resolve their disagreements. See Fed. R. Civ. P. 37(a)(1); Civil L. R. 37-1. Counsel may confer initially by email, letter, or telephone to try to narrow their disputes. After trying those means, lead trial counsel then must meet and confer in person to try to resolve the dispute. (If counsel are located outside of the Bay Area and cannot confer in person, lead counsel may meet and confer by telephone.) Either party may demand such a meeting with ten days' notice. If the parties cannot agree on the location, the location for meetings will alternate. The plaintiff's counsel will select the first location, defense counsel will select the second location, and so forth. If the parties do not resolve their disagreements through this procedure, lead counsel must file a joint letter brief no later than five days after lead counsels' in-person meet-and-confer. The letter brief must be filed under the Civil Events category of "Motions and Related Filings > Motions — General > Discovery Letter Brief." It may be no more than five pages (12-point font or greater, margins of no less than one inch) without leave of the court. Lead counsel for both parties must sign the letter and attest that they met and conferred in person. Each issue must be set forth in a separate section that includes (1) a statement of the unresolved issue, (2) a summary of each parties' position (with citations to supporting facts and legal authority), and (3) each party's final proposed compromise. (This process allows a side-by-side, stand-alone analysis of each disputed issue.) If the disagreement concerns specific discovery that a party has propounded, such as interrogatories, requests for production of documents, or answers or objections to such discovery, the parties must reproduce the question/request and the response in full either in the letter or, if the page limits in the letter are not sufficient, in a single joint exhibit. The court then will review the letter brief and determine whether formal briefing or future proceedings are necessary. In emergencies during discovery events such as depositions, the parties may contact the court through the court's courtroom deputy pursuant to Civil Local Rule 37-1(b) but first must send a short joint email describing the nature of the dispute to lbpo@cand.uscourts.gov.

IV. CONSENT CASES

1. In cases that are assigned to Judge Beeler for all purposes, the parties must file their written consent or declination of consent to the assignment of a United States Magistrate Judge for all purposes as soon as possible. If a party files a dispositive motion (such as a motion to dismiss or a motion for remand), the moving party must file the consent or declination simultaneously with the motion, and the party opposing the motion must file the consent or declination simultaneously with the opposition.

2. The first joint case-management conference statement in a case must contain all of the information in the Northern District's standing order titled "Contents of Joint Case Management Statement." Subsequent statements for further case-management conferences must not repeat information contained in an earlier statement and instead must report only progress or changes since the last case-management conference and any new recommendations for case management.

V. SUMMARY-JUDGMENT MOTIONS

The parties may not file separate statements of undisputed facts. See Civil L. R. 56-2. Joint statements of undisputed facts are not required but are helpful. Any joint statement must include — for each undisputed fact — citations to admissible evidence. A joint statement generally must be filed with the opening brief, and the briefs should cite to that statement. A reasonable process for drafting a joint statement is as follows: (1) two weeks before the filing date, the moving party proposes its undisputed facts, and (2) one week later, the responding party replies and the parties meet and confer about any disagreements. For oppositions, a responding party may propose additional undisputed facts to the moving party within seven days after the motion is filed and ask for a response within two business days.

IT IS SO ORDERED.