Motion to Compel Discovery with Sanctions in YVONNE COVARRUBIAS VS MACY'S CORPORATE SERVICES, I| Trellis.Law

On March 08, 2016 a Motion,Ex Parte was filed involving a dispute between Covarrubias, Yvonne, Zahabi, Atieh, and Does 1 Through 100, Inclusive, Macy'S West Stores, Inc., Macy'S West Stores, Inc., An Ohio Corporation, for (15) Unlimited Other Employment in the District Court of San Mateo County.

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Scott Edward Cole, Esq.
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Jeremy A. Graham, Esq.
SCOTT COLE & ASSOCIATES, APC
(S.B. #160744)
(S.B. #234166) F L E D
1970 Broadway, Ninth Floor
SAN MATEO COUNTY
3 Oakland, California 94612
.
Telephone: (510) 891-9800
W; 4 Facsimile: (510) 891—7030
\Q Email: scole@scalaw.com
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\)\ 5 Email: j graham scalaw.com
Web: www.sca aw.com
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Attorneys for Representative Plaintiffs
7 and the Aggrieved Employees

8
.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SAN MATEO
10

ll YVONNE COVARRUBIAS, and ) Case No. CIV537692
o ATIEH ZAHABI, individually, and on ~)
Q 12 behalf of all other similarly situated ) -

g; g aggrieved employees, ) PLAINTIFFS’ NOTICE OF MOTION AND
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N o ) MOTION TO COMPEL COMPLIANCE
53 § E 31% Plaintiffs, WITH COURT ORDER AND
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) MONETARY SANCTIONS; MEMORANDUM
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) Date: March 23, 2017
) Time: 9:00 a.m.
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Plaintiffs’ Notice of Motion and Motion to Compel Compliance
with Court Order
NOTICE OF MOTION

NOTICE IS HEREBY GIVEN that on March 23, 2017 at 9:00 am, or as soon thereafter as
the matter may be heard in Department Wﬁof the above-entitled Court, located at 400 County Center,

Department medwood City, California 94063, Representative Plaintiffs Yvonne Covarrubias and
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Atieh Zahabi (“Plaintiffs”) will and hereby do move this Court for anOrder compellingDefendant
Macy’s Inc (“Defendant”) with this Cburt’sDecember 2016 Order
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West Stores, to comply 6,

compelling Defendant to provide a full and complete response to Plaintiffs’ Special Interrogatory

No. 1. Additionally, Plaintiffs request that the Court sanction Defendant and/or its counsel for its
1

diSobedience of the Court’s Order in the amount of $3,345.
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This Motion is based upon the accompanying Memorandum of Points and Authorities, the

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H Declaration of Jeremy A. Graham, Esq. and exhibitsthereto and such other oral argument and
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APC HN documentary evidence as may be presented to the Court at the. hearing of this Motion.
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Plaintiffs’ Notice of Motion and Motion to Compel Compliance with Court? Order
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MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION AND STATEMENT OF FACTS
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In its ruling on plaintiffs Yvonne Covarrubias’ and Atieh Zahabi’s (“Plaintiffs”) motion to

compel a further response to Plaintiffs’ Special Interrogatory No. 1, requesting identiﬁcation of the

aggrieved employees
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and their contact information, this Court ordered defendant Macy’s West

Stores, Inc. (“Defendant”) to “serve a full and complete, veriﬁed response no later than December
16, 2016.”1 Defendant did not contest the tentative ruling and did not appear at the hearing.

Moreover, Defendant failed to serve any ﬁlrther response whatsoever until over a month after the

date ordered by. the Court. As of the ﬁling of this motion, ithas failed to serve either a formal

response or a veriﬁcation, electing to produce a document instead. More importantly, Defendant has

produced the information requested in a PDF format that is useless for litigation purposes and

APC continues to refuse to produce the same information in a searchable database format, such as Excel,
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as repeatedly requested by Plaintiff.2 In so doing, Defendant has violated the Court’s order, its
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obligations under the Code of Civil Procedure, and customary practice in similar cases.
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Without expressly stating so, Defendant nonetheless appears to have exercised its right under
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the Civil Discovery Act to produce documents 1n lieu of an interrogatory response, in that “the
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answer to [the] interrogatory necessitate[d] the making of a compilation, abstract, audit, or summary
of Or from the documents of a party to whom the interrogatory is directed,” without, however,
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“afford[ing] the propounding party a reasonable opportunity to examine, audit, or inspect these
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documents . ..” Cal. Civ. Proc. Code § 2030.230.3

Defendant’s counsel indicated in an email dated January 11,2017, that he had “been working

with the computer programmer to work out the ‘bugs’ in the program to compile the data you

requested for the 70,000 or so associates. Because of company reorganizations, associates who

regularly leave and renew their employment, and multiple changes in positions, responsibilities, and

Declaration of Jeremy A Graham, Esq. in Support of Plaintiffs’
1
Motion for Contempt
Order (“Graham Decl. ”) 1] 3, Exhibit “A,” Dec. 6, 2016 Tentative Ruling. All exhibits cited
herein aire attached to the Graham Decl.
3Graham Decl. 1] 4
3Graham Dec]. 1] 5.
-1- -

Memorandum of Points and Authorities 1nSupport of PlaintiffsMotion to Compel Compliance with Court Order
work locations, multiple ‘bugs’ have surfaced which, over the last ten days, we have explored and

attempted to ﬁx. By the end of the week, the computer programmer is to provide me with a new
I

list.”4

Defendant labeled the document itproduced “Data Extract Setting Forth Macy’s Response to

Special Interrogatories No. 1.” Thus, Defendant itself has made clear that the information contained
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in the PDF it served on Plaintiffs was created in a database format derived from a larger set of raw
data contained in a database, or databases, that it maintains in the regular course of its business.

Defendant has not, however, identiﬁed the set of raw data or database(s) ﬁ'om which the information

produced was derived, nor has it afforded Plaintiffs with any opportunity to examine or inspect them.

Further, to the extent that it has produced the information sought in document form, it has failed to

produce documents “as they are kept in the regular course of business.” Cal. Civ. Proc. Code §

APC 2031.280.5
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Upon receipt of Defendant’s production, Plaintiffs’ counsel informed Defendant that the PDF ,

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it produced was useless for litigation purposes.6 The parties met and conferred between January 23 .

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and 26, 2017, but Defendant maintained its refusal to produce the information in usable format.7
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II. LEGAL ARGUMENT
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A. LEGAL STANDARD
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Courts have the power to compel obedience with their orders and amend them as necessary to

ensure that they “conform to law and justice.” Cal. Civ. Proc. Code §§ 128, 177. Case law also
recognizes that courts have inherent supervisory powers that enable them to carry out their duties

and oversee and enforce the execution of their decrees. See, Asbestos Claims Facility v. Berry &
e. g.,

Berry, 219 Cal.App.3d 9, 19 (1990); Brown v. Brown, 22 Cal.App.3d 82 (1971).

4
Graham Decl. 11 6; Exhibit “B,” Email from‘David E. Martin, Esq., Counsel for
Defendant, to Jeremy A. Graham, Esq., Counsel for Plaintiffs (Jan. 11, 2017, 12:19 pm. PST)
Graham Decl.11 7. .
'.
5
Graham Decl. 11 8; Exhibit “C,” Email from Jeremy A. Graham, Esq., Counsel for
Plaintiffs, to David E. Martin, Esq., Counsel for Defendant (Jan. 19, 2017, 6:36 pm. PST).
Graham Decl. 11 8; Exhibit “D,” Email Correspondence Between the Parties.
7

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Memorandum of Pointsand Authorities in Supportof Plaintiffs’ Motion to Compel Compliance with Court Order
B. DEFENDANT VIO LAT ED THE COURT’S ORDER BY FAILING TO
‘
PRODUCE THE REQUESTED DATA IN USABLE F ORVIAT
N Plaintiffs’ arguments in support of their motion to compel. set out at great length that

W Plaintiffs’ purpose in requesting the list of aggrieved employees and their contact information was to
41> facilitate commimications between their counsel and the larger group Whose interests are at stake in
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this litigation. That the'Court endorsed this proposition is implicit in the cases cited in the Order

granting the motion 8See Puerro v Superior Court, 158 Cal. App. 4th 1242,1253 (2008) (non-party

employees “may reasonably be supposed to want their information disclosed to counsel whose
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. communications in the course of investigating the claims asserted in this lawsuit may alert them to
similar claims they may able to assert”); York v. Starbucks Corp. , 2009 US. Dist. LEXIS 92274 at

, *4- S (C. D. Cal. June 30, 2009). Given that there are approximately 70,000 aggrieved employees 111

this matter, the only way for Plaintiffs’ counsel to effectively communicatewith the group is en .

APC masse, either through a mass mailing or mass electronic mailing. While this is easily facilitated by
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having the information in a searchable database format, such as Excel, itis virtually impossible with
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the PDF produced by Defendant.
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In Lozoya v.-Allphase Landscape Constr., Inc, 2013 US. Dist. LEXIS 14462 at,*14-15
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(D.Colo. Feb. 1, 2013) the court took the defendant to task for producing employee indentifying
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information in PDF format:

Defendants offer no explanation for their refusal to provide the identifying
information in an importable format, stating only that they will provide information
in an electronic format By stating that they will provide the information in electronic
but not importable format, it appears Defendants intend to provide the contact
information in PDF format. Plaintiffs rightly complain that, for the purposes of
*

uploading and creating an electronic mailing list, a PDF document isno better than a
handwritten document and would require Plaintiffs to manually input the contact
information into a spreadsheet 1n order to create address labels and mail the notice to
potential opt—ins.

This Court requires all JCMPS, Jury Instructions, etc. not only to be e-filed, but also
to be sent directly to the Kane Chambers email address in an importable format for
exactly the same reason. There is no reason to increase costs. Thus, I believe
Defendants shall be required to provide the contact information for potential opt-in
plaintiffs in an importable format.

8
Exhibit “A,” Dec. 6, 2016 Tentative Ruling.
-3-
Memorandum of Points and Authorities 111Support of Plaintiffs
Motion to Compel Compliance with court Order
Similarly, in Barton v.RC], LLC, 2013 U.S. Dist. LEXIS 46590 at *60-62 (D.N.J. Mar. 28,

2013), a dispute arose where the defendant had “indicated it would produce an ‘electronic
3”
spreadsheet and subsequently produced a PDF document cOntaining the same information instead.
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As in Lozoya, the plaintiffs “contend[ed] that PDF format is not a spreadsheet and causes
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substantial burden and expense for Plaintiffs given that it will require retyping more than 16,000

lines of data . .. [and] argue[d] that Defendant must be compelled to produce this information in a

tab-delimited format such as Excel.” Id. Despite the fact that the defendant had not kept the

information in a database format in its regular course of business, it nonetheless ageed to voluntarily
produce the information in anelectronic spreadsheet format as requested by the plaintiffs. Although

this renders the Court’s discussion of the matter dicta, it is nonetheless informative and properly

indicates the type of burden that Plaintiffs would face here, Where over 70,000 lines of data would
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need to be manually retyped, or at least each separate ﬁeld cut and pasted and checked for error, into
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It is for this very reason that in class action litigation, class lists are routinely produced, both
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to counsel and to claims administrators, in a searchable format. Misra
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Decision One Mortg. Co.',LLC, 673 F. Supp. 2d 987, 998 (CD. Cal. 2008) (class list in Excel
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format); Upshaw v. Ga. Catalog Sales, Inc., 206 F.R.D. 694, 702 (M.D. Ga. April 3, 2002) (“The

Court directs the Defendants .. . to provide a class list to Plaintiffs, in a readily useable computer
format .”); Foster
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.. v. Nova Hardbanding, LLC, 2016 U.S. Dist.’LEXIS 53426 at * 19 (D.N.M.
April 20, 2016) (“The Court grants Plaintiff‘s request for a class list With the names, all addresses, all
telephone numbers, all email addresses, and dates of employment. Defendants must provide this

information in a computer readableforma ”); Dibb v. AllianceOne Receivables Mgmt., 2016 U.S.

Dist. LEXIS 44163 at *13 (W.D.Wash. March 31, 2016) (class list in a “usable format”); Coates v.

Farmers Grp., Inc, 2015 U.S. Dist. LEXIS 165817 at *46 (ND. Cal. Dec. 9, 2015) (“The Court

ORDERS Defendants to produce to Plaintiffs counsel in Microsoft Excel or comparable format . . .

the names, all known addresses, all knoWn e—mail addresses, all known telephone numbers, of all
. . .

proposed class members”); Chao v. Aurora Loan Servs., LLC, 2014 U.S. Dist. LEXIS 124575 at

*21 (N .D. Cal. Sept. 5, 2014) (class list in electronic format); Deatrick v. Securitas Sec. Servs. USA,
.4-
Memorandum of Points and Authorities in Support of Plaintiffs’rMotion to Compel Compliance with Court Order
2014 U.S. Dist. LEXIS 148835 at *16 (ND. Cal Oct. 20, 2014) (class list in “Microsoft Excel or

comparable forma ”); Jones v. Agilysys, Inc, 2014 U.S. Dist. LEXIS 4058 at * 14 (ND. Cal. Jan. 10,

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2014) (class list “formatted as a Microsoft Excel spreadsheet”); Arnold v. DirecTV, Inc. , 2012 U.S.

Dist. LEXIS 171672 at *6-7 (E.D.Mo. Dec. 4, 2012) (class list in database format); Garner v.

Butterball, LLC, 2012 U.S. Dist. LEXIS 21859 at *29 (E.D.Ark. Feb. 22, 2012) (“The Class List

shall be producedto the plaintiffs’ counsel in an electronic format that can be used to create a mail
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merge”); Alix v. Wal-Mart Stores, Inc. , 2010 NY. Misc. LEXIS 1402 at *29 (Sup. Ct. of NY. May

26, 2010) (“The Class List shall be provided in Excel, Access or other similar format as reasonably

requested”); Wong v. HSBC Mortg. Corp. (USA), 2008 U.S. Dist. LEXIS 21729 at *25 (ND. Cal.
March 19, 2008) (class list “in Excel format”).

11 Additionally, since Defendant continues to have access to the identities and contact

APC
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12 information for the aggrieved employees in a usable format, while denying the same to Plaintiffs, it
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13 maintains an unfair advantage in the litigation. See Puerto, 158 Ca1.App.4th at 1256-57. Defendant
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should not be allowed to benefit from this prejudicial imbalance.
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16 C. DEFENDANT SHOULD BE SANCTIONED FOR ITS MISCONDUCT
If a party fails to obey an order compelling a further reSponse to interrogatories, the Court
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18 may impose a monetary sanction. Ca1.rCiv.Proc. Code § 2030.3 00(e); see also Cal. Civ. Proc. Code

19, § 2023.010(g) (“Disobeying a court order to provide discovery” is a misuse of the discovery

20 process). Here, Defendant disobeyed the Court’s December 6, 2016 Order compelling it tofully
21 respond to Plaintiffs’ Special Interrogatory No. 1, and in so doing caused Plaintiffs to bring the
I

22 instant motion. Plaintiffs’ counsel has incurred reasonable attorneys’ fees due to Defendant’s refusal

23 to comply with the Court’s 'Order. The hours and billing rates for this work are detailed in the

24 Declaration of Jeremy A. Graham, Esq. ﬁled herewith and have been carefully reviewed and vetted

25 in order to exercise appropriate billing judgment. Plaintiffs thus request monetary sanctions against

26 Defendant and/or its counsel in the amount of $3,345.9

28
9
Graham Decl. 9-16.
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Memorandum of Points of Plaintiffs’ Motion to Compel Compliance with Court Order
and Authorities in Support
III. CONCLUSION
For the foregoing reasons, Plaintiffs request the Court order Defendant to comply with its

December 6, 2016 Order, speciﬁcally by producing the requested information in Excel or other

similar searchable database format: and sanction Defendant for its disobedience.

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Dated: February 16, 2017

SCOTT COLE & ASSOCIATES, APC

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Memorandum of Points of Plaintiffs’ Motion to Compel Compliance with Court Order
and Authorities in Support

Case Info

Judge

Grandsaert, John L. Track Judge’s New Case

Case No.

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Document Filed Date

February 16, 2017

Case Filing Date

March 08, 2016

County

Parties

COVARRUBIAS, YVONNE Plaintiff
DOES 1 THROUGH 100, INCLUSIVE Defendant
GRAHAM, JEREMY A. Attorney for the Plaintiff
KATZ, STEVEN B Attorney for the Defendant
MACY'S WEST STORES, INC. Defendant
MACY'S WEST STORES, INC., AN OHIO CORPORATION Defendant
ZAHABI, ATIEH Plaintiff
Scott Cole Attorney
Matthew Bainer Attorneys for Plaintiffs
Corey Bennett Attorneys for Plaintiffs
Steven Stoltz Attorney
Teresa Allen Attorney
Matthew Russo Attorneys for Plaintiffs
David Mainzer Attorney
Kenneth Sulzer Attorneys for Plaintiffs
Hannah Salassi Attorney
Catherine Selin Attorney
Jeremy Apple Attorneys for Plaintiffs

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Motion,Ex Parte: YVONNE COVARRUBIAS VS MACY'S CORPORATE SERVICES, I

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