Landon v. Ernst & Young LLP et al, No. 5:2008cv02853 - Document 62 (N.D. Cal. 2009)
Court Description: ORDER GRANTING 50 Motion to Compel; GRANTING 53 Motion to Compel by Magistrate Judge Howard R. Lloyd. The December 8, 2009 hearing is vacated. (hrllc1, COURT STAFF) (Filed on 12/2/2009)
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Landon v. Ernst & Young LLP et al Doc. 62 1 ** E-filed December 2, 2009 ** 2 3 4 5 For the Northern District of California United States District Court 6 7 NOT FOR CITATION 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 JOSEPH LANDON, individually and on behalf of others similarly situated, No. C08-02853 JF (HRL) [Consolidated for Class Certification purposes with Case Nos. 05-04867 and 0804988] 12 Plaintiff, 13 14 15 v. ERNST & YOUNG LLP, a limited liability partnership; ERNST & YOUNG U.S. LLP, a limited liability partnership; and DOES 1– 100, inclusive; ORDER GRANTING PLAINTIFF’S MOTIONS TO COMPEL [Re: Docket Nos. 50, 53] 16 17 18 Defendants. ____________________________________/ Plaintiff Joseph Landon sued defendants on behalf of himself and a putative class of Ernst & 19 Young LLP (“E&Y”) employees for allegedly refusing to pay overtime in violation of California 20 labor laws. Landon’s case was consolidated in March 2009 with two others for class certification 21 purposes. Landon now moves to compel E&Y to provide further responses to interrogatories and 22 requests for production that he propounded in January 2009, but to which E&Y did not respond until 23 July 2009. E&Y opposes the motion. Pursuant to Civil Local Rule 7-1(b), the court finds the matter 24 suitable for determination without oral argument, and the December 8, 2009 hearing is vacated. 25 26 DISCUSSION As an initial matter, E&Y argues that Landon failed to properly meet and confer because he 27 sent only one letter after E&Y’s production that did not address many of the specific concerns that 28 he now raises in his motion. Plaintiff counters that in addition to the post-response letter, the parties Dockets.Justia.com For the Northern District of California United States District Court 1 communicated about this discovery on several occasions even before E&Y responded, because 2 E&Y claimed that it did not have to respond to his requests at all. It is clear from the parties’ 3 motion papers that further meet and confer efforts would have done little to resolve their seemingly 4 intractable positions concerning the primary issues of waiver and duplicative discovery. Therefore, 5 Landon’s meet and confer efforts were sufficient under the circumstances. 6 A. Waiver 7 Landon propounded the discovery at issue on January 15, 2009. Pursuant to the Federal 8 Rules of Civil Procedure, E&Y’s responses were due February 17. However, it did not respond 9 until July 20. E&Y’s responses contained various objections, including those asserting that 10 Landon’s requests were duplicative to those already propounded in the consolidated action in 11 violation of Judge Fogel’s consolidation order. Yet Landon argues that because E&Y did not 12 respond until well after the February deadline, it waived these objections. “It is well established that a failure to object to discovery requests within the time required 13 14 constitutes a waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 15 1468, 1473 (9th Cir. 1992) (citing Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)). This 16 failure may be excused if the responding party shows good cause. Davis, 650 F.2d at 1160. In 17 determining whether a party has good cause, the court will consider factors such as the length of the 18 delay, the reason for the delay, bad faith, prejudice to the propounding party, the appropriateness of 19 the requests, and whether waiver would result in an “excessively harsh result.” Hall v. Sullivan, 231 20 F.R.D. 468, 474 (D. Md. 2005). Because E&Y did not serve its responses until five months after 21 they were due, it waived its objections unless it can show good cause for its delay. E&Y says that its five-month delay is because it believed that Judge Fogel stayed discovery 22 23 in the case during a Case Management Conference (“CMC”) on January 16, 2009. In the parties’ 24 joint CMC statement, filed on September 15, 2008, E&Y requested such a stay “pending resolution 25 of Ernst & Young’s summary judgment motion in the Ho1 action.” (Blanchard Decl. Ex. B, at 2:24– 26 26.) It further proposed that “within thirty (30) days of resolution of [the Ho summary judgment] 27 1 28 Ho is one of the two cases with which the instant case is consolidated for class certification purposes. See Ho v. Ernst & Young, LLP, No. 05-04867 (N.D. Cal. filed Nov. 29, 2005); see also Richards v. Ernst & Young, LLP, No. 08-04988 (N.D. Cal. filed Oct. 31, 2008). 2 1 motion,” the parties would submit a revised statement either addressing “whether consolidation of 2 the cases solely for class certification purposes is proper” or suggesting a schedule for discovery and 3 class certification. (Id. at 3:4–9.) Landon opposed a stay “absent knowledge of the basis for the 4 [Ho motion],” which was filed under seal. (Id. at 3:14–15.) The CMC was continued several times 5 and ultimately took place on January 16, 2009. However, the day before the CMC, Judge Fogel 6 denied the Ho motion for summary judgment, Ho v. Ernst & Young, No. 05-04867, 2009 WL 7 111729 (N.D. Cal. Jan. 15, 2009), and Landon propounded the discovery at issue that same day. E&Y’s counsel avers that it was her understanding after the CMC that because “the 8 For the Northern District of California United States District Court 9 summary judgment motion was no longer pending in the related action and that the Court set a 10 further case management conference for consideration of whether the related cases should be 11 consolidated, the Court had stayed this action consistent with the request made by [E&Y].” 12 (Conway Decl. ¶ 5 (emphasis added).) E&Y asserts that the joint CMC statement provides further 13 evidence in support of its belief as “Landon had only opposed a stay because he needed to learn 14 more about the summary judgment motion, which was no longer an issue.” (Opp’n 3.) However, E&Y’s reason for its delay is not reasonable under the circumstances. First, it 15 16 presents no evidence that Judge Fogel did, in fact, stay discovery at the January CMC. A review of 17 the minute order from that CMC makes no mention of a stay. (Docket No. 30.) Landon’s counsel 18 also avers that Judge Fogel did not grant a stay during this CMC. (Elster Decl. ¶ 2.) Second, 19 E&Y’s belief is inconsistent with the plain language of its own request for a stay. Indeed, nowhere 20 in the joint CMC statement did E&Y request a stay until after consolidation. Instead, it only asked 21 for a stay until a decision on the Ho motion—a request that became moot the day before the January 22 CMC. 23 A consideration of the remaining good-cause factors does not tip the balance in E&Y’s 24 favor. Landon asserts that he has been prejudiced by the five-month delay because his requests are 25 not duplicative of those propounded in Ho. Furthermore, E&Y does not allege that Landon’s 26 requests are improper in general—rather, it argues that he is not entitled to receive such discovery 27 directly from E&Y on account of the consolidation order. Even in the absence of bad faith, under 28 these circumstances, E&Y has failed to show good cause for its delay. 3 Accordingly, E&Y has waived its objections that the discovery requests at issue in Landon’s 1 2 motions are impermissibly duplicative. It has also waived its other objections as to the discovery 3 requests at issue, but, to avoid a “harsh result,” it has not waived its objections concerning attorney- 4 client privilege and work-product doctrine. It is apparent that E&Y’s refusal to respond to Landon’s 5 requests is not premised on an assertion of privilege or work product, but rather on its belief that no 6 production was required at all—even if nonprivileged and non-work product. Although E&Y’s 7 belief is not sufficient to support a finding of good cause for its delay, it is sufficient to avoid a 8 waiver of its right to withhold discovery to the extent that such production would require disclosure 9 of privileged material. For the Northern District of California United States District Court 10 11 B. Interrogatories Even if E&Y had not waived the bulk of its objections, its responses to the interrogatories in 12 question would still be improper. The Federal Rules require that “[e]ach interrogatory must, to the 13 extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 14 33(b)(3). “It is well established that an answer to an interrogatory must be responsive to the 15 question. It should be complete in itself and should not refer to the pleadings, or to depositions or 16 other documents, or to other interrogatories.” Scaife v. Boenne, 191 F.R.D. 590, 594 (N.D. Ind. 17 2000) (internal citations omitted). An exception may apply where such references do not “make it 18 impossible to determine whether an adequate answer has been given without an elaborate 19 comparison of answers.” Id. 20 E&Y’s responses to Landon’s interrogatories include references to production it made in the 21 Ho action, including depositions, responses to interrogatories, and documents. E&Y argues that 22 these references are acceptable because they “do not obscure the answer.” (Opp’n 7.) Yet to 23 determine whether E&Y’s responses are complete by reference, plaintiff (and the court) would have 24 to scour the deposition transcripts and painstakingly compare the requests and responses in Ho with 25 Landon’s own requests. E&Y has thus failed to provide complete answers to Landon’s 26 interrogatories. Consequently, plaintiff’s motion to compel further responses to interrogatories 1, 4, 27 7–14, 16–17, and 21–22 is GRANTED. E&Y shall provide updated responses within ten days of 28 this order. 4 1 For the Northern District of California United States District Court 2 C. Requests for Production E&Y’s waiver also extends to Landon’s requests for production (“RFPs”). However, it 3 would be inefficient, given the consolidation order, to require E&Y to reproduce responsive 4 documents that it has already provided to interim lead counsel. Accordingly, Landon’s motion to 5 compel further responses for RFPs 15, 23–25, and 28–29 is GRANTED with the following 6 limitations: E&Y shall provide the Bates numbers of responsive documents that it has already 7 provided to interim lead counsel, but it shall also produce any responsive documents that it has not 8 yet produced, along with an appropriate privilege log, as necessary. E&Y shall provide updated 9 responses within ten days of this order. 10 IT IS SO ORDERED. 11 12 Dated: December 2, 2009 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 1 C 08-02853 Notice will be electronically mailed to: 2 Anastasia Melinda Boles Catherine A. Conway 3 4 Christopher Blanchard Daria Dub Carlson Gregory William Knopp 5 6 7 8 Jeffrey Karl Compton Steven Stone Elster William Anthony Baird aboles@akingump.com, westdocketing@akingump.com cconway@akingump.com, thowe@akingump.com, westdocketing@akingump.com cblanchard@akingump.com, jfukai@akingump.com dcarlson@mzclaw.com gknopp@akingump.com, dkucko@akingump.com, ltolbert@akingump.com, westdocketing@akingump.com jcompton@mzclaw.com manfromcal@sbcglobal.net tbaird@mzclaw.com, anicolai@mzclaw.com, dcarlson@mzclaw.com, fmcnally@mzclaw.com, jcompton@mzclaw.com, sjison@mzclaw.com Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court’s CM/ECF program. 9 For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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