1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SIMON GORO, et al., Case No.: 17-cv-02580-JLS-JLB

12 Plaintiffs,

ORDER:

13 v. (1) DENYING PLAINTIFFS’ 14 FLOWERS FOODS, INC., et al.,

MOTION TO COMPEL; AND

15 Defendants. (2) DENYING AS MOOT 16

DEFENDANTS’ MOTION FOR

17 PROTECTIVE ORDER

18

19 [ECF No. 130]

20 21 Before the Court is Defendants’ Motion for Protective Order filed in Ludlow v. 22 Flowers Foods, Inc., 18-cv-01190-JLS-JLB (“Ludlow”). (Ludlow ECF No. 74.) 23 Defendants request that the Court issue a protective order barring Plaintiffs from seeking 24 documents in response to Ludlow Requests for Production (“RFP”) Nos. 14 and 15. (Id.) 25 Also before the Court is Plaintiffs’ Motion to Compel, filed in both Ludlow and the 26 related case, Goro v. Flowers Foods, Inc., 17-cv-2580-JLS-JLB (“Goro”). (Goro ECF No. 27 130; Ludlow ECF No. 75.) Plaintiffs’ Motion to Compel seeks an order compelling 28 Defendants to produce two specific documents in response to RFP Nos. 3, 5, 18, and 19 1 propounded in Goro and RFP Nos. 6, 14, and 15 propounded in Ludlow. For the reasons 2 set forth below, Plaintiffs’ Motion to Compel is DENIED, and Defendants’ Motion for 3 Protective Order is DENIED as moot. 4 I. BACKGROUND 5 Both cases center around Plaintiffs’ challenge to their employment classification and 6 allegation that Defendants willfully misclassified them and their distributor co-workers as 7 independent contractors rather than employees. In Goro, Plaintiffs allege violations of 8 California law stemming from their alleged misclassification. (See Goro ECF No. 95 9 ¶¶ 28–74.) In Ludlow, Plaintiffs likewise allege violations under California law stemming 10 from their alleged misclassification, in addition to the Fair Labor Standards Act (“FLSA”). 11 (See Ludlow ECF No. 56 ¶¶ 63–125.) In response to Plaintiffs’ claims in both cases, 12 Defendants deny misclassification and assert a good faith affirmative defense, arguing that 13 they “acted in good faith and had reasonable grounds for believing that they did not violate” 14 California or federal law. (Goro ECF No. 98 at 15–16; Ludlow ECF No. 59 at 23, 25.) 15 The parties’ current dispute involves the discovery of information pertaining to 16 Defendants’ initial, and any subsequent, decision to classify the distributor Plaintiffs as 17 independent contractors. Specifically, Plaintiffs seek two documents that Flowers Foods, 18 Inc. (“Flowers”) inadvertently produced and then clawed back in a securities class action 19 currently pending in the Middle District of Georgia, where Flowers is a named defendant.2 20 Plaintiffs believe that these documents contain information related to Defendants’ decision 21 to classify California distributors as independent contractors, and by extension, 22 Defendants’ good faith affirmative defense. Defendants here object to producing the 23

24 1 Because the parties have agreed to share discovery between the two cases, Plaintiffs’ 25 motion seeks to compel Defendants to produce documents in response to RFPs propounded 26 in both cases. 2 In re Flowers Foods, Inc. Securities Litigation, Case No. 7:16-cv-222 (WLS) (M.D. 27 Ga.). The plaintiffs in this securities class action allege that Flowers knowingly 28 misclassified its distributors as independent contractors, creating inflated stock prices 1 clawed-back documents (“Disputed Documents”) and describe them as privileged 2 “quarterly meeting materials packets prepared in anticipation of litigation and reflecting 3 the mental impressions, opinions[,] and legal advice, including legal strategy, of Flowers 4 attorneys regarding known or anticipated litigation.” (Goro ECF No. 133 at 6.) After 5 learning of the Disputed Documents’ existence on April 25, 2019, via a dispute on the 6 securities class action docket, Plaintiffs brought this dispute to the Court’s attention on 7 May 8, 2019. (Ludlow ECF No. 69.) 8 On May 10, 2019, the Court held a telephonic Discovery Conference with counsel 9 for the parties. (Ludlow ECF No. 70.) During the Conference, Plaintiffs argued that the 10 Disputed Documents were responsive to Goro RFP Nos. 3 and 5 (responded to on May 2, 11 2018) and Nos. 18 and 19 (responded to on August 15, 2018), as well as Ludlow RFP No. 12 6 (responded to on April 15, 2019), yet Defendants neither produced nor logged them on a 13 privilege log. Plaintiffs further argued that because Defendants had not properly and timely 14 asserted attorney–client privilege through a privilege log, they waived privilege as to the 15 Disputed Documents. Defendants countered that Plaintiffs’ dispute was untimely with 16 respect to the Goro requests, for Defendants had objected to those requests and Plaintiffs 17 never moved to compel further responses. Defendants further argued that because the 18 Disputed Documents were not responsive to any of Plaintiffs’ RFPs, Defendants were not 19 obligated to log them on a privilege log, and therefore did not waive privilege. 20 In addressing Defendants’ argument that the Disputed Documents were not 21 responsive to Plaintiffs’ RFPs, the Court raised the possibility of in camera review, but 22 Defendants were not amenable to this approach. The Court also echoed Defendants’ 23 concerns about the timeliness of the dispute with respect to the Goro RFPs, as discovery 24 in Goro had closed on October 4, 2018. (See Goro ECF No. 59.) In response, Plaintiffs 25 argued that the Disputed Documents were also responsive to Ludlow RFP No. 6, to which 26 the parties had not yet completed their meet and confer efforts. Plaintiffs also stated that 27 they had recently propounded RFP Nos. 14 and 15 in Ludlow, which specifically identified 28 the Disputed Documents by bates numbers, so neither responsiveness nor timeliness would 1 pose a bar to those RFPs. Because the parties had not finished their meet and confer efforts 2 with respect to Ludlow RFP No. 6, and Defendants’ responses to Ludlow RFP Nos. 14 and 3 15 were not yet due, the Court continued the Conference. (See Ludlow ECF No. 70.) 4 On June 6, 2019, the Court held the continued, telephonic Discovery Conference. 5 (Ludlow ECF No. 71.) During the Conference, Plaintiffs informed the Court that 6 Defendants had continued to stand on their objections to Ludlow RFP No. 6 and served 7 only objections in response to Ludlow RFP Nos. 14 and 15, including attorney–client 8 privilege objections, but did not produce a privilege log. Defendants contended that 9 because Ludlow RFP Nos. 14 and 15 were “broken” requests—irrelevant, overbroad, and 10 disproportional to the needs of the case—Defendants were not obligated to produce a 11 privilege log despite their privilege objections. 12 With the parties at an impasse, the Court determined that a briefing schedule for a 13 motion to compel was necessary. The Court informed Defendants that it believed their 14 obligation to produce a privilege log had been triggered with respect to Ludlow RFP Nos. 15 14 and 15, as those RFPs specifically identified the Disputed Documents, and Defendants’ 16 objections included privilege objections. The Court directed Defendants to either produce 17 a privilege log or move for a protective order with authority setting forth they were not 18 required to do so. The Court also reasoned that it may need to review the Disputed 19 Documents in camera to determine whether they are responsive to the Goro RFPs and 20 Ludlow RFP No. 6. However, the Court assured Defendants it would not review the 21 documents if it determined that in camera review was improper or unnecessary. The Court 22 invited Defendants to also move for a protective order if they believed it would be improper 23 for the Court to review attorney–client privileged documents in camera. 24 Following the Conference, the Court issued a Briefing Schedule which instructed 25 Defendants to either: (1) log the Disputed Documents on a privilege log and submit them 26 for in camera review; or (2) move for a protective order setting forth why they should not 27 be required to do either. (Goro ECF No. 129; Ludlow ECF No. 73.) If Defendants did not 28 move for a protective order with respect to producing a privilege log, a privilege log 1 identifying the Disputed Documents was to be served on Plaintiffs no later than June 12, 2 2019. (Id.) The Court also set a deadline for Plaintiffs to file a motion to compel with 3 respect to the RFPs at issue. (Id.) 4 On June 12, 2019, Defendants served a privilege log on Plaintiffs listing the two 5 clawed-back documents, that is, the Disputed Documents. (Ludlow ECF No. 74-2 ¶ 7.) 6 On June 17, 2019, Defendants filed the instant Motion for Protective Order. (Ludlow ECF 7 No. 74.) Defendants, however, do not request a protective order based on an argument that 8 a privilege log was not necessary or that it would be improper for the Court to review the 9 Disputed Documents in camera, as contemplated during the Conference and in the Court’s 10 Briefing Schedule. Instead, Defendants argue that they should not be forced to produce 11 the Disputed Documents because the documents are privileged and irrelevant, and Ludlow 12 RFP Nos. 14 and 15 are unduly burdensome and disproportionate to the needs of the case. 13 (See id.) 14 On June 17, 2019, Plaintiffs filed the instant Motion to Compel in both cases. (Goro 15 ECF No. 130; Ludlow ECF No. 75.) On June 24, 2019, Defendants filed separate 16 oppositions to the motion in each case. (Goro ECF No. 133; Ludlow ECF No. 85.) On 17 June 28, 2019, Plaintiffs filed separate replies to Defendants’ oppositions. (Goro ECF No. 18 134; Ludlow ECF No. 89.) 19 II. LEGAL STANDARD 20 A party is entitled to seek discovery of any non-privileged matter that is relevant to 21 his claims and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Federal Rule 22 of Civil Procedure 34 further provides that a party may serve requests for documents or 23 tangible things on any other party that relate to any matter within the scope of discovery 24 defined in Rule 26(b). Fed. R. Civ. P. 34(a). The propounding party may move to compel 25 a response if a party fails to produce documents requested under Rule 34. See Fed. R. Civ. 26 P. 37(a). 27 /// 28 /// 1 “The party seeking to compel discovery has the burden of establishing that his 2 request satisfies the relevancy requirements of Rule 26(b)(1).” Bryant v. Ochoa, No. 3 07cv200 JM (PCL), 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009) (citing Soto v. City 4 of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995)). District courts have broad discretion 5 to determine relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 6 (9th Cir. 2002). “Thereafter, the party opposing discovery has the burden of showing that 7 the discovery should be prohibited, and the burden of clarifying, explaining[,] or supporting 8 its objections.” Bryant, 2009 WL 1390794, at *1 (citing DIRECTV, Inc. v. Trone, 209 9 F.R.D. 455, 458 (C.D. Cal. 2002)). 10 III. DISCUSSION 11 By this motion, Plaintiffs seek an order compelling Defendants to produce the 12 “Disputed Documents,” 3 and further ask the Court to grant sanctions in the form of striking 13 Defendants’ “good faith” affirmative defenses. (Goro ECF No. 130-1 at 11; Ludlow ECF 14 No. 75-1 at 11.) Plaintiffs also request the Court to compel Defendants to “identify any 15 other withheld responsive documents that Plaintiffs were not able to independently 16 identify.” (Id.) In their motion, Plaintiffs identify seven document requests to which they 17 18 19 3 As an initial matter, Plaintiffs fail to clearly state what documents they seek through 20 their Motion to Compel. Plaintiffs move to compel “Disputed Documents,” which they do not ever actually define, but which they refer to initially as “documents circulated among 21 [senior] executives that speak to [Defendants’] knowledge of the law regarding distributor 22 classification.” (Goro ECF No. 130-1 at 2; Ludlow ECF No. 75-1 at 2.) Plaintiffs later describe the Disputed Documents as “documents from a discovery dispute in a nation-wide 23 securities class action,” and “Flowers’ 2016 ‘Review of Operations.’” (Id. at 4, 6.) 24 Plaintiffs more clearly indicate what they mean by Disputed Documents when they state that “the Disputed Documents consist of roughly 250 pages making up two reports,” a 25 reference to the two clawed-back documents from the securities class action. (Goro ECF 26 No. 130-1 at 10; Ludlow ECF No. 75-1 at 9.) Because it is Plaintiffs’ burden to clearly set forth what relief they seek through their motion, the Court will only analyze each RFP with 27 respect to whether Defendants must produce the two documents clawed back in the 28 securities class action. See Fed. R. Civ. P. 7(b)(1) (requiring a party to state with 1 believe the Disputed Documents are responsive. Plaintiffs, however, do not address the 2 seven requests individually. Instead, they focus almost exclusively on the relevance of the 3 Disputed Documents in general. Because even relevant documents need only be produced 4 when responsive to requests for production, the Court addresses each request in turn. 5 A. Goro RFP No. 5 6 Plaintiffs identify Goro RFP No. 5 as a request to which they believe the Disputed 7 Documents are responsive. (Goro ECF No. 130-1 at 6.) In response to this request 8 Defendants did not produce the Disputed Documents or log them on a privilege log despite 9 their privilege objections. Defendants argue that Plaintiffs’ Motion to Compel with respect 10 to Goro RFP No. 5 is untimely. (Goro ECF No. 133 at 6.) 11 The Court agrees with Defendants and finds that Plaintiffs’ Motion to Compel is 12 time-barred with respect to RFP No. 5. Defendants responded to RFP No. 5 on May 2, 13 2018. (Goro ECF No. 130-2 ¶ 3.) In their response, Defendants “provided objections 14 only,” and did not produce any documents. (Goro ECF No. 133 at 6; see Goro ECF No. 15 130-2 ¶ 3.) On June 21, 2018, the Court held a Discovery Conference where it addressed, 16 inter alia, RFP No. 5. (Goro ECF Nos. 40; 133-1 ¶ 3.) After the Conference, the Court 17 issued a Briefing Schedule for Plaintiffs to file a motion to compel. (Goro ECF No. 41.) 18 On July 5, 2019, Plaintiff brought a Motion to Compel, but the motion did not include RFP 19 No. 5. (See Goro ECF No. 43.) Subsequently, fact discovery in this case closed, after 20 several extensions, on October 4, 2018. (Goro ECF No. 59.) 21 During the May 10 and June 6, 2019 Discovery Conferences, the Court advised 22 Plaintiffs that their dispute would not be timely with respect to any RFPs to which 23 Defendants objected in their entirety and about which Plaintiffs never formally moved to 24 compel responses. RFP No. 5 is one such RFP. Defendants never produced any documents 25 in response to RFP No. 5 and stood on their objections. Moreover, Plaintiffs had an 26 opportunity to include RFP No. 5 in their July 5, 2018 Motion to Compel, yet chose not to. 27 Plaintiffs argue that “no local or chambers rule addresses compelling unknown[,] withheld 28 documents that were never logged or made known to another party.” (Goro ECF No. 130- 1 1 at 5.) However, the fact that Plaintiffs did not have knowledge of the Disputed 2 Documents’ existence until April 25, 2019 is immaterial because Defendants objected to 3 RFP No. 5 in its entirety and never produced any documents in response. Plaintiffs chose 4 not to include RFP No. 5 in their July 5, 2018 Motion to Compel, and the Court will not 5 entertain such a motion now, over a year after discovery in Goro closed. 6 Accordingly, because Plaintiffs’ Motion to Compel is untimely with respect to Goro 7 RFP No. 5, Plaintiffs’ Motion to Compel is DENIED as to this RFP. 8 B. Goro RFP Nos. 3, 18, and 19 9 1. Timeliness 10 Plaintiffs also identify Goro RFP Nos. 3, 18, and 19 as requests to which they believe 11 the Disputed Documents are responsive. (Goro ECF No. 130-1 at 6.) Defendants did not 12 produce the documents or log them on a privilege log in response to RFPs 3, 18, and 19. 13 Defendants again argue that Plaintiffs’ dispute with respect to these three Goro RFPs is 14 untimely. (Goro ECF No. 133 at 6.) 15 The Court disagrees with Defendants and finds that Plaintiffs’ Motion to Compel 16 with respect to these RFPs is not time-barred. Defendants responded to RFP No. 3 on May 17 2, 2018, and agreed to produce “relevant, non-privileged documents in [their] custody or 18 control that may be responsive to [RFP No. 3] to the extent [it] pertains to Plaintiffs,” 19 notwithstanding their objections. (Goro ECF No. 130-2 ¶ 3; 130-5 at 4.) Defendants 20 produced “two documents it understood to be responsive” to RFP No. 3: the Distributor 21 Agreement and the Franchise Disclosure Document. (Goro ECF No. 133 at 6.) Plaintiffs 22 never brought any dispute concerning RFP No. 3 to the Court’s attention informally during 23 a discovery conference or moved to compel further responses. 24 Defendants responded to RFP Nos. 18 and 19 on August 18, 2018, with objections 25 only. (Goro ECF Nos. 130-2 ¶ 3; 133 at 6.) On September 28, 2018, the Court held a 26 telephonic, counsel-only Discovery Conference wherein it addressed the parties’ dispute 27 with respect to RFP Nos. 18 and 19, among many other disputes. (See Goro ECF No. 58.) 28 During the Conference, and in the parties’ joint discovery statement lodged with the Court, 1 Defendants argued that RFP Nos. 18 and 19 were duplicative of RFP No. 3 because they 2 “seek the same set of documents.” (Goro ECF No. 133-4 at 5 (emphasis omitted).) 3 Plaintiffs did not move to compel responses to RFP Nos. 18 or 19 following the Discovery 4 Conference in their October 22, 2018 Motion to Compel. (See Goro ECF No. 64.) 5 Plaintiffs, however, now argue that because Defendants promised to produce documents 6 responsive to RFP No. 3, “[they] did not need to compel” responses to RFP Nos. 18 and 7 19. (Goro ECF No. 130-1 at 9.) 8 Because Defendants took the position that RFP Nos. 18 and 19 were duplicative of 9 RFP No. 3, and Defendants produced documents in response to RFP No. 3, Defendants 10 cannot fairly argue that they produced only objections in response to RFP Nos. 18 or 19. 11 For purposes of this dispute, the Court therefore finds that Defendants produced responses, 12 and not solely objections, with respect to RFP Nos. 18 and 19. 13 As addressed above with respect to RFP No. 5, Plaintiffs’ dispute as to that request 14 is untimely because Plaintiffs, in essence, abandoned the request; Defendants produced 15 only objections, stood on those objections, and Plaintiffs never moved to compel further 16 responses. In contrast, Defendants produced documents in response to RFP No. 3, and by 17 extension RFP Nos. 18 and 19, and Plaintiffs relied on the completeness of that production 18 when choosing not to include them in their October 22, 2018 Motion to Compel. Plaintiffs’ 19 argument that they could not have moved to compel Defendants to produce the Disputed 20 Documents before they knew of their existence is persuasive in this context. Therefore, 21 with respect to RFP Nos. 3, 18, and 19, the Court finds that the event giving rise to the 22 instant discovery dispute, and therefore the event controlling the timeliness of Plaintiffs’ 23 Motion to Compel with respect to these RFPs, is Plaintiffs’ discovery of the Disputed 24 Documents. 25 /// 26 /// 27 /// 28 /// 1 Plaintiffs learned of the Disputed Documents’ existence on April 25, 2019, and 2 brought the issue to the Court promptly on May 8, 2019, after failed meet and confer 3 efforts. (Goro ECF No. 130-2 ¶ 11; Ludlow ECF No. 69.) May 8 is within 30 days of 4 April 25, so the dispute is timely.4 See J. Burkhardt Civ. Chambers R. § IV.A. (“Any 5 discovery disputes must be brought to the attention of the Court no later than 30 calendar 6 days after the date upon which the event giving rise to the dispute occurred.”). 7 Accordingly, the Court finds that Plaintiffs’ Motion to Compel with respect to RFP 8 Nos. 3, 18, and 19 is timely. The Court therefore addresses Defendants’ objections to these 9 RFPs.5 10 2. Defendants’ Objections 11 a. RFP No. 18 12 Goro RFP No. 18 requests “[a]ll DOCUMENTS and ESI reflecting opinions 13 regarding the proper classification of distributors as employees versus independent 14 contractors.” (Goro ECF No. 130-7 at 3.) Defendants objected to this request on the 15 grounds that, inter alia, it is vague and ambiguous, unintelligible, overbroad as to time and 16 scope, and unduly burdensome. (Id.) Defendants reassert those objections here and further 17 argue that RFP No. 18 is “broken” and fails to meet Federal Rule of Civil Procedure 34’s 18 particularity requirement. (Goro ECF No. 133 at 4, 8.) Plaintiffs in reply argue generally 19 20 21 4 Plaintiffs contend that the event giving rise to this discovery dispute is the parties’ 22 failed meet and confer efforts on April 30, 2019. (Goro ECF No. 130-2 ¶ 11.) The Court disagrees and views the event giving rise to this dispute as Plaintiffs’ discovery of the 23 Disputed Documents on April 25, 2019, five days earlier. This distinction is immaterial, 24 however, for the dispute is timely with respect to Goro RFP Nos. 3, 18, and 19 either way. 5 Defendants dispute the relevance of the Disputed Documents (Goro ECF No. 133 at 25 7), but they do not argue that Goro RFP Nos. 3, 18, and 19 seek irrelevant information. 26 The Court finds that Defendants’ relevancy objections made only in their responses to RFPs 3 and 19, if not abandoned, are overruled. See SolarCity Corp. v. Doria, No. 27 16cv3085-JAH (RBB), 2018 WL 467898, at *3 (S.D. Cal. Jan. 18, 2018) (“If a party fails 28 to continue to assert an objection in opposition to a motion to compel, courts deem the 1 that their RFPs are not unintelligible and simply “seek documents reflecting the central 2 business decision relevant to this case—classifying California distributors as independent 3 contractors.” (Goro ECF No. 134 at 3.) Plaintiffs contend that Defendants cannot now 4 claim that “the very RFPs they responded to and agreed to produce are allegedly impossible 5 to understand.” (Id.) 6 Federal Rule of Civil Procedure 34 requires that a document request “describe with 7 reasonable particularity each item or category of items to be inspected.” Fed. R. Civ. P. 8 34(b)(1)(A). “The test regarding ‘particularity’ is relative . . . and necessarily turns on 9 whether the [requesting party’s] degree of knowledge would be such that she can designate, 10 identify[,] and enumerate with precision the documents to be produced.” Krause v. Nev. 11 Mut. Ins. Co., No. 2:12–cv–00342–JCM–CWH, 2017 WL 496936, at *5 (D. Nev. Feb. 6, 12 2014) (citing 8B Wright, et al., Federal Practice and Procedure § 2211 (3d ed. 2010)). Rule 13 34, however, “does not require the impossible,” and a “generalized designation should be 14 sufficient when the party seeking discovery cannot give a more particular description and 15 the party from whom discovery is sought will have no difficulty in understanding what is 16 wanted.” Id. (quoting 8B Wright, et al., supra, § 2211). Nonetheless, “‘all-encompassing 17 demands’ that do not allow a reasonable person to ascertain which documents are required 18 do not meet” Rule 34’s particularity requirement. Moser v. Health Ins. Innovations, Inc., 19 No. 17cv1127-WQH(KSC), 2018 WL 6735710, at *13 (S.D. Cal. Dec. 21, 2018) (quoting 20 In re Asbestos Prod. Liab. Litig. (No. VI), 256 F.R.D. 151, 157 (E.D. Pa. 2009)). 21 RFP No. 18, which broadly requests all documents “reflecting opinions” regarding 22 the proper classification of distributors, does not meet Rule 34’s particularity requirement. 23 The request as phrased does not provide Defendants with adequate direction as to what 24 documents they must search for in response.6 Plaintiffs here hypothesize that documents 25

26 6 Compare the language of RFP No. 18 (“[a]ll DOCUMENTS and ESI reflecting 27 opinions regarding the proper classification of distributors as employees versus 28 independent contractors” to the language of RFP No. 3 (“[a]ll DOCUMENTS and ESI that 1 responsive to their RFPs could be documents created from “a single internal meeting” or 2 “a months-long process involving teams of employees that undergoes regular review and 3 update,” but they “have no way to know.” (Goro ECF No. 134 at 3–4.) But the same can 4 be said for Defendants. It would be difficult and burdensome for Defendants to determine, 5 without further particularity, what types of documents exist that would be responsive to 6 this request or the types of documents that Plaintiffs attempt to capture. As to Plaintiffs’ 7 argument that Defendants produced documents in response to RFP No. 3, and therefore 8 cannot claim that their requests are “impossible to understand,” Defendants here identified 9 and produced only two documents that were responsive to RFP No. 3, and by extension, 10 RFP No. 18. (Goro ECF No. 133 at 7.) The Court, however, does not share the view that 11 RFP No. 18 is duplicative of RFP No. 3 in the sense that it is co-extensive with RFP No. 12 3.7 13 Moreover, Plaintiffs’ request is not limited temporally or geographically. See 14 Sanchez Ritchie v. Sempra Energy, No. 10cv1513-CAB(KSC), 2015 WL 12914435, at *2 15 (S.D. Cal. Mar. 20, 2015) (“Generally, a discovery request without any temporal or other 16 reasonable limitation is objectionable on its face as overly broad.”). The Goro Plaintiffs 17 18 19 20 21 Plaintiffs and similarly situated individuals in California as not employees.” A decision is 22 an action, an event, tied to a point in time. A party can search for and review documents to determine whether the documents relate to an initial decision or a reconsideration of that 23 decision. It is unreasonably more difficult to expect a party to search for and determine 24 which documents do and do not “reflect” any “opinions” on whether that decision was or was not proper. 25 7 Goro RFP No. 3 requests “[a]ll DOCUMENTS and ESI that relate to the initial 26 decision and any subsequent reconsideration of the decision to classify Plaintiffs and similarly situated individuals in California as not employees.” (Goro ECF No. 130-5 at 3.) 27 Goro RFP No. 18 dissimilarly requests “[a]ll DOCUMENTS and ESI reflecting opinions 28 regarding the proper classification of distributors as employees versus independent 1 are California employees who began working for Defendants as distributors in 2013. 2 (Goro ECF No. 95 ¶¶ 6–11.) However, Defendants’ business is not limited to California, 3 and Defendants did not enter the “California market” until 2008. (Goro ECF No. 133-2 at 4 3.) RFP No. 18, which requests all documents reflecting opinions regarding the proper 5 classification of unspecified distributors without a timeframe is therefore overboard. In 6 light of RFP No. 18’s lack of particularity, the Court declines to rewrite the request to 7 include appropriate geographical or temporal limitations. 8 Defendants’ objections to Goro RFP No. 18 are sustained. Accordingly, Plaintiffs’ 9 Motion to Compel with respect to Goro RFP No. 18 is DENIED. 10 b. RFP Nos. 3 and 19 11 Goro RFP No. 3 requests “[a]ll DOCUMENTS and ESI that relate to the initial 12 decision and any subsequent reconsideration of the decision to classify Plaintiffs and 13 similarly situated individuals in California as not employees.” (Goro ECF No. 130-5 at 3.) 14 Defendants responded to RFP No. 3 with a multitude of objections: vague and ambiguous; 15 vague as to time; overbroad; unintelligible; calls for a legal conclusion; seeks irrelevant 16 information; assumes facts; seeks confidential, proprietary, and trade secret information; 17 seeks information protected by the attorney–client privilege and/or work product doctrine; 18 and seeks information protected by the right to privacy under the California Constitution. 19 (Id.) As previously mentioned, notwithstanding these objections, Defendants also 20 responded by stating that they would “produce relevant, non-privileged documents in 21 [their] custody or control that may be responsive to [RFP No. 3] to the extent [it] pertains 22 to Plaintiffs.”9 (Id.) 23

24 8 Plaintiffs also assert a cause of action under the California Private Attorneys General 25 Act (“PAGA”) on behalf of themselves and other similarly situated California distributors. 26 (Goro ECF No. 95 ¶¶ 67–71.) 9 The Court notes that courts in this District have found conditional responses to 27 discovery requests, i.e., using the phrase “subject to and without waiving the foregoing 28 objections,” to be “improper and ultimately hav[ing] the effect of waiving the objections 1 Goro RFP No. 19 requests “[a]ll DOCUMENTS and ESI relating to any decision or 2 subsequent reconsideration of the decision to classify distributors operating under a 3 Distributor Agreement as independent contractors.” (Goro ECF No. 130-7 at 4.) 4 Defendants likewise responded to RFP No. 19 with a multitude of objections: 5 impermissibly duplicative or [RFP] No. 3; vague and ambiguous; unintelligible; overbroad 6 as to time and scope; unduly burdensome; calls for a legal conclusion; seeks irrelevant 7 information; assumes facts; seeks confidential, proprietary, and trade secret information; 8 seeks information protected by the attorney–client privilege and/or work product doctrine; 9 and seeks private information protected by the right to privacy under the California 10 Constitution. (Id.) 11 In their opposition, Defendants argue that RFP Nos. 3 and 19 are objectionable on 12 the same grounds as RFP No. 18. Defendants argue that these requests are “vague and 13 disproportionate to the needs of the case” and they do not meet Rule 34’s reasonable 14 particularity requirement because “[t]hey are sweeping, all-encompassing requests that are 15 not tailored to the claims or defenses in this case.” (Goro ECF No. 133 at 8.) Defendants 16 further argue that RFP No. 19 does not contain any temporal or geographical limitations. 17 (Id. at 9.) 18 /// 19 /// 20

21 22 1844-BTM (WVG), 2016 WL 1182751, at *3 (S.D. Cal. Mar. 28, 2016). However, “if the response puts the requesting party on notice that the responding party is withholding certain 23 documents, that objection is preserved so long as the requesting party is not left guessing 24 as to what documents are being withheld.” Del Socorro Quintero Perez v. United States, No. 13cv1417-WQH-BGS, 2016 WL 304877, at *2 (S.D. Cal. Jan. 25, 2016). Here, the 25 remaining language after Defendants’ conditional response is “Defendant will produce 26 relevant, non-privileged documents in its custody or control that may be responsive to this request to the extent this request pertains to Plaintiffs.” (Goro ECF No. 130-5 at 4.) The 27 Court does not find this response confusing and would sufficiently put Plaintiffs on notice 28 that Defendants were not withholding any non-privileged, responsive documents. See Del 1 The Court finds that RFP No. 3, even though it contains the phrase “relating to,” 2 meets Rule 34’s particularity requirement. Unlike RFP No. 18, RFP No. 3 is not so vague 3 that it would not allow Defendants to determine which documents in their control Plaintiffs 4 seek. Although RFP No. 3 does not contain any temporal limitations, the request asks for 5 documents relating to the classification of Plaintiffs and similarly situated individuals in 6 California. Plaintiffs began working for Defendants in 2013 and Defendants entered the 7 California market in 2008. The substance of request itself, therefore, contains a temporal 8 limitation. Defendants could therefore narrow this request to an appropriate, and not 9 unduly burdensome, timeframe. See Sanchez Ritchie, 2015 WL 12914435, at *2 (“Despite 10 the overly broad nature of a [discovery request], a party typically has a duty to respond to 11 it to the extent the [discovery request] is not objectionable and can be narrowed to an 12 appropriate scope.” (alterations in original)). Therefore, Defendants’ objections to RFP 13 No. 3 that they reassert in their opposition, with the exception of attorney–client privilege 14 and attorney work product objections, are overruled. 15 As to RFP No. 19, the Court likewise finds that it is not vague or ambiguous and 16 meets Rule 34’s particularity requirement. However, the request is overbroad and calls for 17 all documents relating to any decision or subsequent reconsideration of the decision to 18 classify unspecified distributors operating under a Distributor Agreement as independent 19 contractors during an unspecified timeframe. Unlike RFP No. 3, the request is not tailored 20 to Plaintiffs or California distributors, so Defendants could not narrow this request to a 21 particular timeframe without further guidance. The Court declines to rewrite the request 22 for Plaintiffs.10 Defendants’ objections to RFP No. 19 are therefore sustained. 23 Accordingly, Plaintiffs’ Motion to Compel with respect to Goro RFP No. 19 is DENIED. 24 /// 25 26 27 10 In any event, if the Court were to rewrite RFP No. 19 to include geographical or 28 temporal limitations, it would capture the same documents as RFP No. 3. With limitations, 1 3. Disputed Documents’ Responsiveness to Goro RFP No. 3 2 a. Determination of Responsiveness Without In Camera Review 3 The Court turns next to whether the Disputed Documents are responsive to RFP 4 No. 3. As previously stated, Defendants describe the Disputed Documents as “quarterly 5 meeting materials packets from 2016 prepared with the involvement of counsel and 6 circulated among client personnel, with redacted portions prepared by Flowers attorneys 7 in anticipation of litigation and reflecting the mental impressions, opinions[,] and legal 8 advice, including legal strategy, of Flowers attorneys regarding known or anticipated 9 litigation.” (Goro ECF No. 133 at 6.) Plaintiffs discovered the existence of the Disputed 10 Documents on April 25, 2019, by reviewing the filings on the docket in the securities class 11 action. (Goro ECF No. 130-2 ¶ 5.) In the securities class action, Flowers inadvertently 12 produced and then sought to claw back the Disputed Documents, which the securities 13 plaintiffs describe as “documents related to the status of, and future steps in, the 14 [distributor] misclassification lawsuits.” (Goro ECF No. 130-17 at 3.) The inadvertent 15 production led to a dispute between the securities parties, and ultimately a motion to 16 compel, concerning whether Flowers was allowed to claw back the documents. (See Goro 17 ECF No. 130-15.) As the securities class action is stayed pending possible settlement, the 18 court has yet to rule on the securities parties’ dispute. 19 Here, Plaintiffs argue that the Disputed Documents are “surely relevant and 20 responsive” to RFP No. 3 because they “contain opinions, legal advice, and strategy about 21 pending/anticipated misclassification claims in California.” (Goro ECF No. 130-1 at 7.) 22 Plaintiffs base their assessment of the documents’ responsiveness solely on the descriptions 23 of the documents made by the securities plaintiffs in their motion to compel the clawed- 24 back documents. (See Goro ECF No. 130-2 ¶ 7.) Plaintiffs further argue that because the 25 documents are responsive, and Defendants did not timely assert their attorney–client 26 privilege objections on a privilege log, Defendants have waived privilege. (Goro ECF No. 27 130-1 at 9–10.) 28 /// 1 In their opposition, Defendants argue that the Disputed Documents are not 2 responsive to Goro RFP No. 3, or any of the Goro RFPs at issue, because the “documents 3 have nothing to do with any decision to classify California distributors as independent 4 contractors.” (Goro ECF No. 133 at 7.) Defendants assert that the “documents were 5 prepared by Flowers’ legal department in 2016, with input from outside counsel, and 6 contain the impressions of both in-house and outside counsel regarding litigation and other 7 matters.”11 (Id.) Plaintiffs provide no argument regarding the responsiveness of the 8 Disputed Documents in reply. 9 In their arguments, Plaintiffs gloss over whether the Disputed Documents are 10 actually responsive to any of their specific RFPs and focus almost exclusively on the 11 relevance of the documents. Plaintiffs have not reviewed the Disputed Documents, yet 12 urge the Court that the documents are “surely” responsive based on their understanding of 13 the securities plaintiffs’ characterization of the documents. Again, the securities plaintiffs 14 describe the Disputed Documents as “documents related to the status of, and future steps 15 in, the [distributor] misclassification lawsuits.” (Goro ECF No. 130-17 at 3.) Plaintiffs 16 here highlight that the securities plaintiffs disputed the claw back of the documents in part 17 because “the documents speak to Flowers’ state of mind regarding distributors’ 18 classification and whether Flowers believed it was in fact in compliance with the law as it 19 relates to this classification.” (Goro ECF No. 130-2 ¶ 7.) However, after reviewing the 20 securities plaintiffs’ motion to compel (Goro ECF No. 130-15), the Court finds that is does 21 not shed any light on what topics the Disputed Documents specifically cover. Although 22

23 24 11 Defendants also argue that the Disputed Documents are not responsive because of the parties’ understanding that Plaintiffs were not seeking “post-litigation work product 25 and attorney–client privileged materials.” (Goro ECF No. 133 at 3.) Plaintiffs dispute 26 Defendants’ characterization of the parties’ understanding. (Goro ECF No. 134 at 3.) The Court need not address this argument because, as detailed below, it finds that the Disputed 27 Documents are not responsive to RFP No. 3 regardless of any understanding of the parties 28 with respect to the treatment of post-litigation work product. 1 the securities plaintiffs do seem to argue that the Disputed Documents contain information 2 that would help them rebut Flowers’ arguments that it did not knowingly or intentionally 3 misclassify its distributors, the motion is redacted as to specifics of the Disputed 4 Documents and consists almost entirely of case law from the Eleventh Circuit and its 5 district courts. The motion is not helpful in determining whether the Disputed Documents 6 “relate to the initial decision and any subsequent reconsideration to classify Plaintiffs and 7 similarly situated individuals in California as not employees,” as RFP No. 3 requests. 8 In a footnote, Plaintiffs posit that because there were two California distributor 9 misclassification cases pending in 2016 when the Disputed Documents were created, 10 “[d]iscussion of these cases would be included.” (Goro ECF No. 130-1 at 7 n.5.) However, 11 this is speculation based solely on the year that the Disputed Documents were created. 12 Additionally, even if “the status of, and future steps in” these two California distributor 13 misclassification cases are included in the Disputed Documents, that would not affect this 14 Court’s determination of whether the documents are responsive to RFP No. 3. 15 On the other hand, as noted above, Defendants, who are familiar with and have 16 reviewed the Disputed Documents, represent that the documents are not responsive to RFP 17 No. 3 because they “have nothing to do with any decision to classify California distributors 18 as independent contractors.” (Goro ECF No. 133 at 7 (emphasis added).) The only true 19 description of the Disputed Documents by the securities plaintiffs that this Court has is that 20 they are “documents related to the status of, and future steps in, the [distributor] 21 misclassification lawsuits.” (Goro ECF No. 130-17 at 3.) 22 Civil litigation under our judicial system operates first on an honor system. Each 23 party is responsible for conducting its own search of its own documents for responsive 24 material, and Courts only intercede when there is an indication of a breach of this 25 responsibility. See, e.g., ClearValue, Inc. v. Pearl River Polymers, Inc., 242 F.R.D. 362, 26 384 (E.D. Texas 2007), reversed in part on other grounds by 560 F.3d 1291 (Fed. Cir. 27 2009). Plaintiffs assert their belief that the Disputed Documents are responsive to their 28 discovery requests, but nothing they put forward is sufficient to call into doubt the 1 truthfulness of Defendants unequivocal representation that they are not. Absent some 2 showing to the contrary, the Court accepts Defendants’ representation and presumes that 3 they have satisfied their obligation to produce responsive documents. 4 b. Availability of In Camera Review to Determine Responsiveness 5 Under other circumstances, even without more of a showing by Plaintiffs on the 6 issue of potential responsiveness, the Court might consider conducting an in camera review 7 of the Disputed Documents to determine definitively whether the documents are responsive 8 to RFP No. 3. However, because Defendants are also asserting attorney–client and work 9 product privilege as to these documents, and because of the unique interplay with 10 California law, the Court declines to conduct such an in camera review here. 11 With respect to the Goro case, the Court has subject matter jurisdiction based on 12 diversity, so the Court must apply California law with respect to substantive matters of 13 attorney–client privilege in Goro. Fed. R. Evid. 501; In re Cal. Pub. Utils. Comm’n, 892 14 F.2d 778, 781 (9th Cir. 1989) (“In diversity actions, questions of privilege are controlled 15 by state law.”). Under California Evidence Code § 915, with exceptions not applicable 16 here, a court is prohibited from reviewing documents protected by the attorney–client 17 privilege in camera for the purpose of determining whether the documents are in fact 18 privileged. Cal. Evid. Code § 915(a). A split exists among districts in the Ninth Circuit as 19 to whether § 915 is procedural or substantive, but courts in this District have found § 915 20 to be a substantive law that governs in a diversity action. E.g., Lincoln Gen. Ins. Co. v. 21 Ryan Mercaldo LLP, No.: 13cv2192-W (DHB), 2015 WL 12672143, at *5 (S.D. Cal. July 22 31, 2015); Sanchez Ritchie, 2015 WL 12912030, at *14; Garcia v. Progressive Choice Ins. 23 Co., No. 11–CV–466–BEN (NLS), 2012 WL 3113172, at *2 (S.D. Cal. July 30, 2012); see 24 generally Laub v. Horbaczewski, No. LA CV17-06210 JAK (KS), 2019 WL 1744846, at 25 *4–6 (C.D. Cal. Feb. 8, 2019) (discussing the applicability of § 915 to federal courts sitting 26 in diversity). 27 Here, Plaintiffs do not dispute that the Disputed Documents are protected by the 28 attorney–client privilege. Instead, and as discussed below, Plaintiffs argue on two different 1 grounds that Defendants have waived attorney–client privilege. (See Goro ECF No. 130- 2 1 at 9–11.) Under California law, the attorney–client privilege protects confidential 3 communications between a client and an attorney that are made in the course of the 4 relationship. Cal. Evid. Code § 952. “Confidential communications include information 5 transmitted between attorney and client and ‘a legal opinion formed and the advice given 6 by the lawyer in the course of that relationship.’” Calvert v. State Bar, 54 Cal. 3d 765, 779 7 (1991) (quoting Cal. Evid. Code § 952). “The party claiming the privilege has the burden 8 of establishing the preliminary facts necessary to support its exercise, i.e., a communication 9 made in the course of the attorney–client relationship.” Costco Wholesale Corp. v. 10 Superior Court, 47 Cal. 4th 725, 734 (2009). 11 In their privilege log, Defendants describe each of the two Disputed Documents as 12 a “[q]uarterly meeting materials packet prepared with the involvement of counsel and 13 circulated among client personnel, with redacted portions prepared by Flowers attorneys 14 in anticipation of litigation and reflecting the mental impressions, opinions, and legal 15 advice, including legal strategy, of Flowers’ attorneys regarding known or anticipated 16 litigation.” (Goro ECF No. 133-5 at 5, 7.) The Court finds this description sufficient to 17 make a prima facie showing of privilege—the Disputed Documents contain legal advice 18 and strategy communicated to Flowers by its attorneys. Absent a basis to question whether 19 the Disputed Documents are privileged, the Court accepts Defendants’ designation. 20 The text of California Evidence Code § 915 does not specifically prohibit a court 21 from reviewing privileged documents in camera for responsiveness, but by precluding in 22 camera review of claimed privileged documents, California creates strong substantive 23 protections of potentially attorney–client privileged documents. See Costco Wholesale 24 Corp., 47 Cal. 4th at 743 (“No comparable provision [to § 915] permits in camera 25 disclosure of information alleged to be protected by the attorney–client privilege.” (citing 26 S. Cal. Gas. Co. v. Pub. Utils. Comm’n, 50 Cal. 3d 31, 45 n.19 (1990))); see also S. Cal. 27 Gas. Co., 50 Cal. 3d at 45 n.19 (noting that in camera review of privileged documents for 28 privilege and relevance would violate § 915). In the Goro case, the Court would be 1 violating California law and policy if it were to conduct an in camera review of the 2 Disputed Documents for purposes of determining privilege. The Court will not, under 3 these circumstances, undertake a review it could not conduct for purposes of privilege 4 analysis in order to second-guess Defendants’ responsiveness determination.12 5 Because the Court accepts Defendants’ representations that the Disputed Documents 6 are not responsive to Goro RFP No. 3, Defendants were not obligated to log the documents 7 on a privilege log in response to RFP No. 3 and have not waived privilege in this context. 8 Accordingly, Plaintiffs’ Motion to Compel with respect to Goro RFP No. 3 is DENIED. 9 C. Ludlow RFP No. 6 10 The Court turns next to Ludlow RFP No. 6, which Plaintiffs also argue the Disputed 11 Documents are responsive to. Plaintiffs’ Motion to Compel with Respect to RFP No. 6 is 12 timely.13 13 1. Defendants’ Objections 14 Ludlow RFP No. 6 requests “[a]ll DOCUMENTS and ESI relating to the decision to 15 implement the independent contractor model in California (i.e. for Flowers California, 16 Flowers Henderson, and Flowers Modesto).” (Ludlow ECF No. 75-10 at 4.) Defendants 17 objected to RFP No. 6 on a multitude of grounds: vague and ambiguous; overbroad as to 18 time and scope; unintelligible; irrelevant and not proportional; unduly burdensome and 19 harassing; calls for confidential, proprietary, and trade secret information; calls for 20

21 22 12 The Court notes that even if it had found Plaintiffs’ Motion to Compel timely with respect to Goro RFP No. 5, or overruled Defendants’ objections to Goro RFP Nos. 18 and 23 19, the Court could likewise not review the Disputed Documents for responsiveness to any 24 of these requests under California law. 13 The Parties do not dispute the timeliness of the Motion to Compel as to Ludlow RFP 25 No. 6. The Court conducted its own analysis concerning the timeliness of the raising of 26 this matter. Without setting forth the entire timeline here, suffice it to say that the motion is timely in part because of a joint voicemail message the parties represent they left with 27 chambers on May 15, 2019. The Court has no record of this message but accepts that this 28 call was timely placed by the parties and that there must have been a technological problem 1 information protected by the attorney–client privilege and/or attorney work product 2 doctrine; and seeks information protected by the right to privacy under the California 3 Constitution. (Id.) In their opposition, Defendants reassert their objections on the grounds 4 that RFP No. 6 is “vague, ambiguous, and overbroad to the point of absurdity.” (Ludlow 5 ECF No. 85 at 6.) Defendants also argue that RFP No. 6 does not meet Rule 34’s 6 reasonable particularity requirement because it “seeks ‘all documents relating to’ a 7 nebulous, undefiled topic or concept,” and is a sweeping request without a time limitation. 8 (Id. at 5.) 9 In reply, Plaintiffs contend that they attempted to narrow the request through the 10 meet and confer process, but Defendants “ignored Plaintiffs’ invitation to narrow and 11 simply stood on their objections.” (Ludlow ECF No. 89 at 3.) Plaintiffs further argue that 12 Defendants failed to identify “what categories or types of documents it believes RFP [No.] 13 6 wrongfully or burdensomely captures.” (Id.) 14 As previously stated, Rule 34 requires that a document request “describe with 15 reasonable particularity each item or category of items to be inspected.” Fed. R. Civ. P. 16 34(b)(1)(A). However, Rule 34 “does not require the impossible,” and a “generalized 17 designation should be sufficient when the party seeking discovery cannot give a more 18 particular description and the party from whom discovery is sought will have no difficulty 19 in understanding what is wanted.” Krause, 2017 WL 496936, at *5 (quoting 8B Wright, 20 et al., supra, § 2211). Additionally, “a discovery request will not be objectionable as overly 21 broad if it uses an omnibus term to modify ‘a sufficiently specific type of information or 22 group of documents.’” Moser, 2018 WL 6735710, at *13 (quoting Dauska v. Green Bay 23 Packaging Inc., 291 F.R.D. 251, 261–62 (W.D. Wisc. 2013)). 24 Through RFP No. 6, Plaintiffs seek all documents “relating to the decision to 25 implement the independent contractor model in California.” (Ludlow ECF No. 75-10 at 26 4.) Plaintiffs use the phrase “relating to” in their request, but the phrase modifies “the 27 decision to implement the independent contractor model in California,” which is 28 sufficiently specific. Although RFP No. 6 does not contain any temporal limitations, the 1 request asks for documents relating to the decision to implement the independent contractor 2 model in California specifically. Defendants entered the California market in 2008. The 3 substance of request itself, therefore, contains a temporal limitation, and Defendants could 4 narrow this request to an appropriate, and not unduly burdensome, timeframe. See Sanchez 5 Ritchie, 2015 WL 12914435, at *2 (“Despite the overly broad nature of a [discovery 6 request], a party typically has a duty to respond to it to the extent the [discovery request] 7 is not objectionable and can be narrowed to an appropriate scope.” (alterations in original)). 8 Accordingly, the Court overrules Defendants’ objections to Ludlow RFP No. 8 on the 9 grounds that it is vague, ambiguous, and overbroad. 10 2. Waiver of Attorney–Client Privilege for Failure to Properly Assert Privilege 11 Having determined that Ludlow RFP No. 6 is a proper discovery request, the Court 12 turns next to Plaintiffs’ argument that Defendants waived the attorney–client privilege with 13 respect to the Disputed Documents because Defendants did not timely produce a privilege 14 log. As further addressed below, Defendants responded to RFP No. 6 with objections only, 15 including attorney–client privilege and attorney work product objections, on April 15, 16 2019. (Ludlow ECF No. 75-2 ¶ 3.) Defendants did not produce a privilege log containing 17 the Disputed Documents in Ludlow until June 12, 2019. (Ludlow ECF No. 85-1 ¶ 6.) 18 a. Parties’ Arguments 19 Plaintiffs’ waiver argument appears to be addressed mainly to the Goro RFPs. (See 20 Ludlow ECF No. 9–10.) Plaintiffs identify the balancing test for waiver of attorney–client 21 privilege as set forth in Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court, 408 F.3d 22 1142 (9th Cir. 2005), but provide little analysis of its application to Ludlow. Plaintiffs 23 argue that the three-part test in Burlington is met because: (1) “until recent Court order,” 24 Defendants never provided a privilege log, and Defendants “erroneously told Plaintiffs that 25 it withheld nothing”; (2) “Defendants’ refusal to log or identify documents spans more 26 than a year since they responded to RFP [No.] 3 in Goro”; and (3) the Disputed Documents 27 “consist of roughly 250 pages making up two reports.” (Ludlow ECF No. 75-1 at 9.) 28 /// 1 Defendants do not address any of the Burlington factors with respect to RFP No. 6 2 and argue instead that the Disputed Documents are not responsive to RFP No. 6. (See 3 Ludlow ECF No. 85 at 9.) However, the Court finds it need not address the issue of 4 responsiveness, for it determines, as set forth below, that Defendants did not waive the 5 attorney–client privilege with respect to the Disputed Documents and RFP No. 6. 6 b. Legal Standard 7 Responses and objections to requests for production are due within 30 days after 8 being served. Fed. R. Civ. P. 34(b)(2)(A). Rule 26(b)(5)(A) provides that, when claiming 9 a privilege, a party must: “(i) expressly make the claim; and (ii) describe the nature of the 10 documents, communications, or tangible things not produced or disclosed—and do so in a 11 manner that, without revealing information itself privileged or protected, will enable other 12 parties to assess the claim.” A privilege log is the format most typically used to comply 13 with Rule 26(b)(5)(A). See Friends of Hope Valley v. Frederick Co., 268 F.R.D. 643, 650– 14 51 (E.D. Cal. 2010). 15 In analyzing how Rule 34 and Rule 26(b)(5) interact, the Ninth Circuit in Burlington 16 held that “boilerplate objections or blanket refusals inserted into a response to a Rule 34 17 request for production of documents are insufficient to assert a privilege.” 408 F.3d at 18 1149. However, the Burlington court rejected a “per se waiver rule that deems a privilege 19 waived if a privilege log is not produced within Rule 34’s 30-day time limit.” Id. Instead, 20 the Ninth Circuit instructed district courts, using the 30-day period as a default guideline, 21 to “make a case-by-case determination” of waiver considering: 22 the degree to which the objection or assertion of privilege enables the litigant 23 seeking discovery and the court to evaluate whether each of the withheld 24 documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are 25 presumptively insufficient); the timeliness of the objection and accompanying 26 information about the withheld documents (where service within 30 days, as a default guideline, is sufficient); the magnitude of the document production; 27 and other particular circumstances of the litigation that make responding to 28 discovery unusually easy (such as, here, the fact that many of the same 1 documents were the subject of discovery in an earlier action) or unusually hard. 2 3 Id. In determining whether a party has waived the privilege, district courts apply these 4 factors “in the context of a holistic reasonableness analysis.” Id. 5 c. Analysis 6 Here, the first Burlington factor—the degree the assertion of privilege enables 7 Plaintiffs and the Court to assess the asserted privilege—does not favor waiver. Plaintiffs 8 do not squarely address the first Burlington factor and argue only that “until the recent 9 Court order to do so, Defendants never provided any means of assessing their boilerplate, 10 pervasive privilege objections.” (Ludlow ECF No. 75-1 at 9.) Plaintiffs do not make any 11 argument as to their ability to assess Defendants’ assertion of privilege over the Disputed 12 Documents. From the description of the Disputed Documents in Defendants’ privilege log, 13 the Court is satisfied that Defendants have made a good faith effort to comply with Rule 14 26(b)(5)’s requirements, and their privilege log constitutes more than a boilerplate 15 privilege objection. See also United States v. Al-Shawaf, No. ED CV 16-1539-ODW 16 (SPx), 2017 WL 5997440, at *3 (C.D. Cal. Sept. 5, 2017) (“While plaintiff surely would 17 like as much description as possible for each document, defendants cannot be expected to 18 divulge the particulars of every document without undermining their privilege objections. 19 Defendants’ objections are not boilerplate where they provide information about the 20 subject matter of each document.” (citations omitted)). 21 The second Burlington factor—timeliness of Defendants’ privilege objection and 22 accompanying information—does not favor waiver. As stated above, Defendants 23 responded to RFP No. 6 with attorney–client privilege objections on April 15, 2019. 24 (Ludlow ECF No. 75-2 ¶ 3.) Defendants did not produce a privilege log containing the 25 Disputed Documents in Ludlow until June 12, 2019, almost two months later. (Ludlow 26 ECF No. 85-1 ¶ 6.) Plaintiffs here focus only on the fact that Defendants produced this 27 privilege log more than a year after they responded to Goro RFP No. 3 and do not address 28 the timeliness of Defendants’ privilege log in connection with any other RFP. (Ludlow 1 ECF No. 75-1 at 9.) In evaluating timeliness, the Court finds that, with respect to RFP No. 2 6, the production of a privilege log about two months late is not sufficiently egregious to 3 weigh in favor of waiver. This is not inconsistent with how other courts in this Circuit 4 have ruled when evaluating the second Burlington factor.14 Moreover, even though 5 Defendants did not serve Plaintiffs with a formal privilege log until June 12, 2019, 6 Plaintiffs were aware at least a month earlier that that Defendants considered the Disputed 7 Documents to be protected by privilege and that they were withholding15 the documents on 8 that basis. In the parties’ May 9, 2019 Joint Discovery Statement, Defendants stated that 9 the Disputed Documents were “summaries of ongoing litigation and regulatory matters for 10 Flowers Foods and its subsidiaries, nationwide, including but not limited to 11 misclassification cases. Such documents are prepared by Flowers’ legal department, with 12 input from outside counsel, and contain the impressions of both in-house and outside 13 14 15 14 E.g., United States v. Al-Shawaf, Case No. ED CV 16-1539-ODW (SPx), 2017 WL 16 5997440, *3 (C.D. Cal. Sept. 5, 2017) (“While eight weeks certainly exceeds the thirty- day guideline, this is not an egregious delay . . . .”); McKeen-Chaplin v. Provident Savings 17 Bank, FSB, No. 2:12–cv–03035 GEB AC, 2015 WL 502697, at *11 (E.D. Cal. Feb. 5, 18 2015) (finding a seven-month delay in producing a privilege log “not so unreasonable that waiver of . . . attorney–client privilege is justified”); Jumping Turtle Bar & Grill v. City of 19 San Marcos, No. 10–CV–270–IEG (BGS), 2010 WL 4687805, at *3 (S.D. Cal. Nov. 10, 20 2010) (finding that the production of a privilege log “one and one half months” late was not unreasonable); see also Jones v. Hernandez, 322 F.R.D. 411, at 414 (S.D. Cal. 2017) 21 (finding that a 31-day delay in producing a privilege log weighed in favor of waiver but 22 noting that “had untimeliness been Plaintiff’s only transgression here, the Court could potentially find no waiver occurred”). 23 15 Defendants’ position with respect to RFP No. 6 has always been that they were not 24 obligated to log the Disputed Documents on a privilege log because the Disputed Documents are not responsive to RFP No. 6. Defendants’ production of a privilege log 25 containing the Disputed Documents occurred in response to Ludlow RFP Nos. 14 and 15, 26 which both identify the Disputed Documents specifically by bates numbers. As there was, and is, no question that the Disputed Documents are responsive to those RFPs, the Court 27 gave Defendants the choice of either producing a privilege log or moving for a protective 28 order. The Court again notes that it conducts its waiver analysis assuming arguendo that 1 counsel regarding such litigation and other matters.” The purpose of a privilege log is to 2 allow the parties and the Court to assess the propriety of the privilege asserted, as required 3 by Rule 26(b)(5)(A)(ii). Although Plaintiffs may not have been able to fully assess 4 Defendants’ privilege claim by this description, Plaintiffs were not in the dark as to the 5 privileged nature of these documents even without the benefit of a proper privilege log. 6 Even though Defendants’ nearly two-month delay in providing a formal privilege log 7 would be outside of the default guideline, the Court does not find such a delay so 8 unreasonable that waiver of attorney–client privilege is justified. 9 The Court finds the third Burlington factor—the magnitude of the document 10 production—to be neutral. Plaintiffs argue that the Disputed Documents are two reports 11 consisting of about 250 pages. (Ludlow ECF No. 75-1 at 9.) However, most courts analyze 12 this factor in terms of the magnitude of the document production in the entire case 13 compared to the magnitude of the specific documents subject to the waiver analysis.17 14 Neither party presents information as to the magnitude of the total document production in 15 Ludlow. Nonetheless, based on the many discovery disputes the parties have brought to 16 the Court, the Court is aware that document production in this case has been substantial. 17 The Court therefore finds that Defendants’ withholding of only two documents, even if not 18 particularly lengthy, does not weigh in favor of or against waiver. 19 Finally, the Court finds the fourth Burlington factor—any particular circumstances 20 of the litigation that make responding to discovery unusually easy—to be neutral as well. 21 Neither party analyzes this factor. In addressing this factor, the Ninth Circuit specifically 22 suggests that “the fact that many of the same documents were the subject of discovery in 23

24 16 The parties lodged this document with the Court in advance of the May 10, 2019 25 Discovery Conference, and it is not attached as an exhibit to either party’s briefings. 26 17 E.g., McKeen-Chaplin, 2015 WL 502697, at *11 (finding that the third Burlington factor weighed against waiver when the party asserting the privilege had produced 12,000 27 pages of documents and sought to withhold only three); Jumping Turtle Bar & Grill, 2010 28 WL 4687805, at *4 (finding that the third Burlington factor weighed against waiver when 1 an earlier action” may be one such circumstance making discovery less difficult. The 2 parties here have agreed to share discovery between the two related cases, but the Court 3 does not find that this fact, without further argument from either party, weighs in favor of 4 or against wavier. 5 The Court finds that the Burlington factors do not support a finding of waiver with 6 respect to the Disputed Documents and Ludlow RFP No. 6, even if the Disputed Documents 7 are responsive. Plaintiffs’ waiver argument focuses almost entirely on the timeliness of 8 Defendants’ privilege log, and therefore, what Plaintiffs ask the Court to order would 9 amount to the “mechanistic determination” the Ninth Circuit cautioned against in 10 Burlington. Applying these factors in the context of holistic reasonableness, the Court 11 cannot conclude that Defendants’ delay in producing a privilege log operates as a waiver 12 of the attorney–client privilege, which is “an exceedingly severe outcome.” Al-Shawaf, 13 2017 WL 5997440, at *4. Moreover, the consequences of waiver in this case would be 14 harsh, given that the Disputed Documents contain legal advice and case strategies 15 pertaining to other misclassification cases. 16 3. Implied or “At-Issue” Waiver 17 a. Parties’ Arguments 18 Lastly, the Court addresses Plaintiffs’ alternative waiver argument. Plaintiffs assert 19 that Defendants implicitly waived the attorney–client privilege with respect to the Disputed 20 Documents and RFP No. 6 by asserting a “good faith defense to punitive damages.” 21 (Ludlow ECF No. 75-1 at 10.) Applying the Ninth Circuit’s three-part waiver test 22 articulated in United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999), Plaintiffs argue 23 in a general manner that Defendants have waived privilege because Defendants “(1) 24 asserted affirmative good faith defenses (2) putting [their] good faith belief, though the 25 mental state of [their] senior executives at issue, (3) such that Plaintiffs need to see what 26 [Defendants’] executives . . . actually knew about the state of the law.” (Id. at 11.) 27 In response, Defendants argue that Plaintiffs have grossly mischaracterized 28 Defendants’ good faith affirmative defense and “take a giant leap by arguing that 1 Defendants put their ‘good faith belief, through the mental state of [their] senior executives 2 at issue.’” (Ludlow ECF No. 85 at 9.) Defendants contend that “the issue is not the 3 [subjective] mental state of Defendants’ executives,” but instead, the objective, 4 “independent third-party decisions upholding the independent contractor model.” (Id. at 5 10–11.) Defendants assert that “it is clear” they did not willfully, or in bad faith, 6 misclassify Plaintiffs “as shown by third-party judicial and administrative decision 7 concluding Flowers’ distributorship model (and under similar models in the baking 8 industry), IRS treatment of [d]istributors as independent contractors, previous litigation, 9 and the ongoing efforts made by Flowers to maintain the independent contractor business 10 model.” (Id. at 10.) 11 b. Legal Standard 12 The attorney–client privilege may be implicitly waived “[w]here a party raises a 13 claim which in fairness requires disclosure of the protected communication.” Kaiser 14 Found. Health Plan Inc. v. Abbott Labs., Inc., 552 F.3d 1033, 1042 (9th Cir. 2009) (quoting 15 Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992)). As mentioned, the 16 Ninth Circuit employs a three-part test to determine whether an implied waiver of the 17 attorney–client privilege has occurred: 18 First, the court considers whether the party is asserting the “privilege as the 19 result of some affirmative act, such as filing suit.” Second, the court examines whether “through this affirmative act, the asserting party puts the privileged 20 information at issue.” Finally, the court evaluates whether “allowing the 21 privilege would deny the opposing party access to information vital to its defense.” 22 23 Amlani, 169 F.3d at 1195 (citations omitted) (quoting Home Indem. Co. v. Lane Powell 24 Moss & Miller, 43 F.3d 1322, 1326 (9th Cir. 1995)). 25 c. Analysis 26 As an initial matter, the Court addresses Defendants’ relevance argument that “the 27 mental state of [their] executives” is not at issue with respect to their good faith affirmative 28 defenses. (Ludlow ECF No. 85 at 10.) The Court has already rejected this argument. In a 1 previous order, the Court compelled Defendants to produce a Federal Rule of Civil 2 Procedure 30(b)(6) witness to produce testimony on their good faith affirmative defense, 3 specifically with respect to any decision by Defendants to revisit their California 4 distributors’ classifications as independent contractors. (See Ludlow ECF No. 124 at 7– 5 11.) Defendants argued that because their good faith defense relies solely on the 6 reasonableness of their actions and the “ample support in the law,” evidence of their 7 subjective intent was irrelevant. (Id. at 10.) In its Order, the Court discussed that a 8 successful good faith affirmative defense under the FLSA would require Defendants to 9 show that they acted with both objective and subjective good faith in violating the FLSA. 10 (See id.) Likewise, a good faith affirmative defense to certain California Labor Code 11 violations made in bad faith would defeat the defense. (Id.) The Court will not repeat that 12 analysis here, but again finds that irrespective of how Defendants choose to argue their 13 good faith affirmative defense, any evidence of Defendants’ subjective bad faith in 14 classifying their distributors as independent contractors would be relevant to Plaintiffs’ 15 challenge to the defense under both the FLSA and the California Labor Code. 16 Plaintiffs, however, have not made a strong case for implied waiver. As to the first 17 waiver requirement under Amlani, Defendants do not dispute that their assertion of a good 18 faith affirmative defense is an affirmative act that can result in an implied waiver. See 19 Rambus Inc. v. Samsung Elecs. Co., Nos. C-05-02298 RMW, C-05-00334 RMW, 2007 20 WL 3444376, at *3 (N.D. Cal. Nov. 13, 2007). However, it is not as to the first requirement 21 where Plaintiffs’ argument falls flat, but the second and third. 22 The second waiver requirement directs the Court to examine whether Defendants 23 have put privileged information “at issue” through their assertion of a good faith 24 affirmative defense. See Amlani, 169 F.3d at 1195. The Court finds that Defendants have 25 not. Plaintiffs urge that it is Defendants’ assertion of a good faith affirmative defense that 26 puts their “good faith belief, through the mental state of [their] senior executive, at issue.” 27 (Ludlow ECF No. 75-1 at 10.) However, district courts in the Ninth Circuit have declined 28 to find implied waiver of the attorney–client privilege simply because a defendant asserted 1 a good faith affirmative defense to a plaintiff’s claims, specifically in the context of implied 2 waiver arguments and good faith affirmative defenses to claims under the FLSA and 3 California Labor Code. Instead, courts have found that implied waiver applies only if the 4 defendant affirmatively relies on and asserts the advice of counsel or communications with 5 counsel in support of its defense.18 The Court finds this authority persuasive and therefore 6 will find that Defendants put their privileged communications “at-issue” only if they have 7 affirmatively put the content of privileged communications or advice behind its claim of 8 good faith. See also Sorensen v. Black & Decker Corp., No. 06cv1572-BTM (CAB), 2007 9 WL 1976652, at *2 (S.D. Cal. Apr. 9, 2007) (“The privilege is waived only when a party 10 chooses to utilize the [privileged] information to advance a claim or defense.”); cf. Phelps 11 v. MC Comm., Inc. No. 2:11–cv–00423–PMP–VCF, 2013 WL 3944268, at *19 (D. Nev. 12 July 22, 2013) (finding waiver of attorney–client communications that “could arguabl[y] 13 form the basis for defendants’ ‘reasonable belief’ that they were acting in ‘good faith’ and 14 did not intentionally violate the FLSA”). 15 16 17 18 E.g., Aboudara v. City of Santa Rosa, No 17-cv-01661-HSG (JSC), 2018 WL 18 748968, at *1 (N.D. Cal. Jan. 22, 2018) (rejecting the plaintiff’s argument that the defendant’s “good faith defense in itself waives the privilege” when the defendant had 19 stipulated to in no “way rely on the advice of counsel in support of its good faith affirmative 20 defense” under the FLSA); McKeen-Chaplin, 2015 WL 502697, at *9 (“Although defendant argues that it classified plaintiffs as exempt in good faith, it does not allege that 21 it relied upon the advice of counsel in making its good faith determination. Defendant 22 must support its good faith defense by citing the advice of counsel in order to put it in issue.”); Bennett v. SimplexGinnell LP, No. 11–cv–01854–JST (NJV), 2013 WL 5781316, 23 at *3 (N.D. Cal. Oct. 25, 2013) (finding no implied waiver because the defendant relied 24 only on “external factors, such as the requirements imposed by state agencies and industry standards” to establish its good faith dispute defense under the California Labor Code and 25 not the advice of or communications with counsel); Harter v. CPS Security (USA) Inc., No. 26 2:12–cv–00084–MDD–PAL, 2013 WL 5882712, at *2–3 (D. Nev. Oct. 30, 2013) (finding no implied waiver because the defendants’ good faith affirmative defense under the FLSA 27 was based on non-privileged communications and advice from an individual not retained 28 as an attorney). 1 Applying this standard, the Court finds Defendants have not put their attorney–client 2 communications “at issue.” In their opposition, Defendants represent that the factual bases 3 of their good faith affirmative defense are not and will not be based on the advice of or 4 communications with counsel. (See Ludlow ECF No. 85 at 10.) Instead, and as stated 5 above, Defendants represent that they will support their defense with “third-party judicial 6 and administrative decisions concluding Flowers’ distributorship model (and under similar 7 models in the baking industry), IRS treatment of [d]istributors as independent contractors, 8 previous litigation, and the ongoing efforts made by Flowers to maintain the independent 9 contractor business model.”19 (Id.) 10 Finally, the court must evaluate whether “allowing the privilege would deny 11 [Plaintiffs] access to information vital to [their] defense.” Amlani, 169 F.3d at 1195. 12 Plaintiffs argue that because a good faith defense under the California Labor Code 13 presented in bad faith will preclude a finding of good faith, a “defendant’s subjective mind 14 state bears directly on the issue of bad faith.” (Ludlow ECF No. 89 at 6.) Plaintiffs also 15 argue that Defendants’ “subjective understanding is also a necessary element to proving 16 [their] FLSA good faith defense.” (Id.) The Court agrees with Plaintiffs that Defendants’ 17 subjective intent in classifying their distributors is relevant information to rebut 18 Defendants’ good faith affirmative defense. However, Plaintiffs have not made a case that 19 attorney–client communications pertaining to Defendants’ subject intent is vital to their 20 rebuttal of the defense. A good faith dispute under the California Labor Code is not 21 analyzed subjectively,20 and “the mere possibility that communications between 22 23

24 19 The Court has reviewed Defendants’ good faith affirmative defense as articulated in 25 their Motion for Summary Judgement in Goro and notes that the bases Defendants identify 26 here in support of their defense are identical to those argued in the currently pending motion. (See Goro ECF No. 104-1 at 26–27.) 27 20 FEI Enters. Inc. v. Kee Man Yoon, 194 Cal. App. 4th 790, 802 n.9 (2011) (“The 28 appearance of the language “or are presented in bad faith” in the list of circumstances 1 Defendant[s] and [their] counsel might contain evidence relevant to a ‘bad faith’ argument 2 that Plaintiffs could assert against Defendant[s’] ‘good faith dispute defense’ is insufficient 3 to vitiate the privilege.” Bennett v. SimplexGrinnell LP, 2013 WL 5781316, at *3. Further, 4 Plaintiffs’ argument that knowledge of Defendants’ subjective understanding is necessary 5 to their good faith defense under the FLSA is particularly unavailing. It is Defendants’ 6 burden to prove good faith under the FLSA, and if they choose to argue the subjective 7 intent component of an FLSA good faith defense without including the advice of counsel, 8 Defendants can assume that risk. See also Harter, 2013 WL 5882712, at *3 (affirming the 9 magistrate judge’s determination that “Plaintiffs would not be deprived of information vital 10 to their case if Defendants are allowed to assert privilege over communications with their 11 attorneys because Defendants do not base their [FLSA good faith] defense on any advice 12 of these attorneys”). 13 Based on the forgoing, the Court finds that Defendants have not implicitly waived 14 the attorney–client privilege by asserting a good faith affirmative defense. Therefore, even 15 if the Disputed Documents are responsive to RFP No. 6, their privileged nature prevents 16 their disclosure. Accordingly, Plaintiffs’ Motion to Compel with respect to Ludlow RFP 17 No. 6 is DENIED. 18 D. Ludlow RFP Nos. 14 and 15 19 Finally, the Court turns to Ludlow RFP Nos. 14 and 15. Plaintiffs first brought a 20 potential dispute with respect to these RFPs during the May 10, 2019 Discovery 21 Conference. (See Ludlow ECF No. 69.) Because Defendants’ responses were not yet due 22 at the time of the Conference, the Court continued the Conference to June 6, 2019, to allow 23 time for Defendants to respond and for the parties to meet and confer. Defendants provided 24 objections only to these RFPs on May 28, 2019, and as anticipated, the Court discussed the 25 parties’ dispute with respect to these RFPs during the June 6 Conference. (See ECF No. 26

27 28 indicates that subjective bad faith may be of evidentiary value in the objective bad faith 1 71.) Accordingly, Plaintiffs’ Motion to Compel is timely with respect to RFP Nos. 14 2 and 15. 3 Defendants’ Objections 4 RFP No. 14 requests “[a]ll DOCUMENTS and ESI relating to the classification of 5 distributors as independent contractors produced in Flowers Foods, Inc. Securities 6 Litigation, Case No. 7:16-cv-00222-WLS (M.D. Georgia March 14, 2019), including but 7 not limited to SECLITFLO 00155165 – 422 and SECLITFLO 00351582 – 839.” (Ludlow 8 ECF No. 75-12 at 3.) RFP No. 15 requests “[a]ll DOCUMENTS and ESI relating to any 9 privilege logs or other similar documents used to identify withheld responsive information 10 in connection with Flowers Foods, Inc. Securities Litigation, Case No. 7:16-cv-00222- 11 WLS (M.D. Georgia March 14, 2019), including any logs identifying the documents 12 produced as SECLITFLO 00155165 – 422 and SECLITFLO 00351582 – 839.” (Id. at 5.) 13 In their opposition, Defendants object to both requests on the grounds that they 14 impermissibly seek “cloned” discovery by asking for documents produced in the securities 15 class action. (Ludlow ECF No. 85 at 6.) Defendants object to RFP No. 14 on relevancy 16 grounds, as well, arguing that the securities class action “is not based on any decision to 17 classify California distributors as independent contractors,” and this case is “limited to 18 California distributors.” (Id. at 6–7.) Defendants further object to RFP No. 14 on the basis 19 that “it would be extremely burdensome” to respond to. (Id.) Defendants state that 20 “Flowers produced approximately 31,377 documents totaling 363,294 pages in the 21 Securities Litigation,” and “[t]o comply with RFP [No.] 14, [they] would have to analyze 22 this voluminous production to identify which documents, if any, are ‘relating to the 23 classification of distributors as independent contractors,’ as opposed to other allegations 24 unique to the Securities Litigation.” (Id.) Additionally, Defendants contend that RFP No. 25 15 is likewise not “limited to the issues in the case,” for it “seeks logs identifying thousands 26 of privileged documents withheld in the Securities Litigation . . . without regard to whether 27 those documents are actually relevant to this case, or even what discovery requests or 28 negotiated search terms those documents were responsive to.” (Id. at 7.) 1 The Court agrees with Defendants. Asking for all documents produced in another 2 matter is not generally proper. The propounding party cannot meet its burden to establish 3 relevance, as the propounding party is not in a position to even know what they are actually 4 asking for. There could be a number of reasons why documents appropriately requested 5 and provided in another case—even if the subject matter of those cases seem to overlap— 6 would be irrelevant or burdensome to provide in another case. 7 If relevant and proportional documents exist in the custody or control of the 8 responding party, the appropriate thing to do is to request those documents. The fact that 9 the documents were or were not produced in other litigation is irrelevant. Moreover, 10 compelling a responding party to do duplicate searches—one for responsive documents in 11 their custody and control and one for all documents in their custody and control that were 12 previously produced in other litigation—is definitionally unduly burdensome, as it would 13 consume resources without providing any additional benefit to the propounding party. 14 Here, Plaintiffs have already propounded discovery requests that capture the 15 documents they seek through RFP No. 14, yet by propounding RFP No. 14, they are 16 demanding that Defendants comb through the 363,294 pages of documents produced in the 17 securities class action to search for those documents again.21 Plaintiffs argue that they 18 would agree to filtering the securities class action documents by search terms, but this 19 would not change the fact that Defendants would be searching for duplicative discovery. 20 (Ludlow ECF No. 89 at 4 n.3.) Plaintiffs have not identified, nor sufficiently argued, what 21 22 23

24 21 Plaintiffs’ only argument concerning whether RFP No. 14 is a proper request is that 25 the Ninth Circuit “strongly favors discovery relating to other, relevant litigation.” (Ludlow 26 ECF No. 89 at 4.) However, the case Plaintiffs cite to in support, Foltz v. State Farm Mut. Auto. Co., 331 F.3d 1122 (9th Cir. 2003), addressed whether interveners engaged in 27 collateral litigation could intervene and gain access to discovery materials subject to a 28 protective order. The Foltz court also stressed the importance of eliminating duplicative 1 additional benefit they would receive from Defendants’ search that is proportional to the 2 needs of this case.22 3 As to RFP No. 15, which requests all documents “relating to any privilege logs or 4 similar documents used to identify withheld responsive information” in the securities class 5 action, Plaintiffs have not remotely met their burden of establishing the relevancy of these 6 documents. And, as Defendants highlight, RFP No. 15 seeks privilege logs from the 7 securities class action that identify “thousands of privileged documents . . . without regard 8 to whether those documents are actually relevant to this case, or even what discovery 9 requests or negotiated search terms those documents were responsive to.” (Ludlow ECF 10 No. 85 at 7 (emphasis omitted).) The request is both irrelevant and overbroad. Defendants’ 11 objections on the grounds of relevancy, proportionality, and undue burden to RFP Nos. 14 12 and 15 are therefore sustained. Accordingly, Plaintiffs’ Motion to Compel with respect to 13 Ludlow RFP Nos. 14 and 15 is DENIED. 14 IV. CONCLUSION 15 For the reasons stated above, Plaintiffs’ Motion to Compel (Goro ECF No. 130; 16 Ludlow ECF No. 75) is DENIED.23 Because the Court has denied Plaintiffs’ Motion to 17 18 19 22 Even if the Court were to narrow RFP No. 14 to only the Disputed Documents, the 20 documents are privileged, and the Court has already determined that Defendants’ have not waived attorney–client privilege under a theory of implied waiver. Additionally, the 21 Court’s foregoing analysis with respect to Ludlow RFP No. 6 and waiver of privilege for 22 Defendants’ failure to timely produce a privilege is likewise applicable to RFP No. 14. However, the second Burlington factor—the timeliness factor—weighs even more against 23 waiver with respect to RFP No. 14. Defendants responded to RFP No. 14 on May 28, 24 2019, and served a privilege log on Plaintiffs only fifteen days later on June 12, 2019. 23 Plaintiffs also request that the Court “strike [Defendants’] ‘good faith’ affirmative 25 defenses as sanctions for [their] blatant withholding of evidence related to this topic.” 26 (Ludlow ECF No. 75-1 at 11.) Plaintiffs appear to request sanctions under Federal Rule of Civil Procedure 37(b) for failure to comply with a court order. However, Plaintiffs do not 27 make the case that Defendants have violated any of the Court’s orders. Further, any motion 28 to strike affirmative defenses would need to be brought in a motion before the district judge. 1 || Compel, Defendants’ Motion for Protective Order (Ludlow ECF No. 74), which seeks 2 protection from producing documents in response to Ludlow RFP Nos. 14 and 15, is 3 || DENIED as moot. 4 IT IS SO ORDERED. 5 ||Dated: November 22, 2019 - pe Buldot n. Jill L. Burkhardt 7 ited States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ail 28 || withheld responsive documents that Plaintiffs were not able to independently identify.” (Id.)