United States District Court, D. Hawaii
SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, THOMAS PEREZ, Plaintiff,
KAZU CONSTRUCTION, LLC, a corporation; and VERNON LOWRY, an individual, Defendants.
GRANTING IN PART AND DENYING IN PART: (1) PLAINTIFF'S
MOTION TO QUASH, OR IN THE ALTERNATIVE, TO MODIFY SUBPOENA;
(2) PLAINTIFF'S SECOND MOTION TO QUASH SUBPOENAS AND FOR
THE ENTRY OF A PROTECTIVE ORDER; AND (3) DEFENDANTS'
MOTION TO COMPEL DISCOVERY
S.C. Chang United States Magistrate Judge.
the Court are: (1) Plaintiff Secretary of Labor, U.S.
Department of Labor, Thomas Perez's
(“Plaintiff”) Motion to Quash, or in the
Alternative, to Modify Subpoena, filed November 17, 2016; (2)
Plaintiff's Second Motion to Quash Subpoenas and for the
Entry of a Protective Order, filed December 16, 2016; and (3)
Defendants Kazu Construction, LLC (“Kazu”) and
Vernon Lowry's (“Lowry”) (collectively
“Defendants”) Motion to Compel Discovery, filed
November 30, 2016. These matters came on for hearing on
January 27, 2017. Senior Trial Attorney Abigail Daquiz and
Trial Attorney Cristopher Santos appeared by phone on behalf
of Plaintiff. Christopher Yeh, Esq. and Darin Leong, Esq.
appeared on behalf of Defendants. After careful consideration
of the parties' submissions, the applicable law, and the
arguments of counsel, the Court HEREBY GRANTS IN PART AND
DENIES IN PART the Motions for the reason set forth below.
case involves allegations that Defendants violated the
minimum wage, overtime, and record keeping requirements of
the Fair Labor Standards Act of 1938 (“FLSA”).
Motion to Compel
August 30, 2016, Kazu served its First Request for Production
of Documents (“RPOD”) and First Request for
Answers to Interrogatories (“RAI”). On September
29, 2016, Plaintiff requested an extension of time to respond
to the discovery requests by October 14, 2016. Kazu agreed to
the requested extension. On October 14, 2016, Plaintiff
provided responses to the RAI, but indicated that he would
provide responses and responsive documents to the RPOD the
next week. Plaintiff provided written responses to the RPOD
on October 21, 2016, and responsive documents on October 25,
for the parties communicated throughout November concerning
outstanding discovery. On November 29, 2016, Plaintiff
produced additional documents and informed Defendants about
what documents it would and would not produce. Defendants
then filed the Motion to Compel.
Motion to Quash
August 30, 2016, Defendants issued subpoenas to Dennis Tadio
and Hawaii News Now. On November 3, 2016, Defendants issued
subpoenas for several Claimants, but were only able to effect
service upon Kevin MacGregor and Stanley Napierala. On
November 8, 2016, subpoenas were issued for multiple
Claimants and entities, but service was only successfully
effected on Arnold Leedy, Makaha Oceanview Estates, Nakamura
Electric, Mark Kramer, and Suzanne Yen.
November 17, 2016, Plaintiff filed his Motion to Quash, or in
the Alternative, to Modify Subpoena.
December 2, 2016, subpoenas were served on Preston Cummings,
Richard Napierala, Andrew Davis, Laretta Dubin, Joseph
Nunuha, Melanie Abad, and T.J. Mahoney. Plaintiff's
Second Motion to Quash Subpoenas and for the Entry of a
Protective Order followed on December 16, 2016.
Motion to Compel
Rule of Civil Procedure (“FRCP”) 26 provides:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Relevance “has been construed
broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on, any
issue that is or may be in the case.” Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). At the
same time, it has its “ultimate and necessary
boundaries.” Id. “District courts have
broad discretion in determining relevancy for discovery
purposes.” Surfvivor Media, Inc. v. Survivor
Prods., 406 F.3d 625, 635 (9th Cir. 2005) (citing
Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.
2015 amendment to FRCP 26 added proportionality as a
requirement for obtaining discovery. Thus, “relevancy
alone is no longer sufficient to obtain discovery, the
discovery requested must also be proportional to the needs of
the case.” Centeno v. City of Fresno, Case No.
1:16-cv-00653-DAD-SAB, 2016 WL 7491634, at *4 (E.D. Cal. Dec.
29, 2016) (citing In re Bard IVC Filters Prod. Liab.
Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016)). Addressing
all proportionality considerations does not rest solely with
the party seeking discovery. Fed.R.Civ.P. 26(b)(1) advisory
committee's note to 2015 amendment. Instead, “[t]he
parties and the court have a collective responsibility to
consider the proportionality of all discovery and consider it
in resolving discovery disputes.” Id.
courts have broad discretion to limit discovery where the
discovery sought is “unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less
expensive.” Fed.R.Civ.P. 26(b)(2)(C). Limits also
should be imposed where the requesting party has had ample
opportunity to obtain the information through discovery in
the action or the discovery is outside the scope of
permissible discovery under FRCP 26(b)(1). Id.
event a party fails to respond to a discovery request, the
party who served the discovery request may file a motion to
compel. Fed.R.Civ.P. 37(a)(3)(B)(iii)-(iv). An incomplete or
evasive answer or response is deemed a failure to answer or
respond. Fed.R.Civ.P. 37(a)(4). The motion to compel must
include a certification that the “movant has in good
faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to
obtain it without court action.” Fed.R.Civ.P. 37(a)(1);
see also Local Rule 37.1(a), (b).
Motion for Protective Order
26(c) governs the granting of a protective order. A
protective order may be granted, for “good cause”
to “protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.”
Fed.R.Civ.P. 26(c)(1). “If a court finds particularized
harm will result from disclosure of information to the
public, then it balances the public and private interests to
decide whether a protective order is necessary.”
Rivera v. NIBCO, Inc., 384 F.3d 822, 827 (9th Cir.
2004) (citations omitted). Generally, the party seeking the
protective order has the heavy burden of demonstrating that
“good cause” exists for the protection of the
materials. Id. (citation omitted).
“‘Good cause' is established where it is
specifically demonstrated that disclosure will cause a
‘specific prejudice or harm.'” Id.
(quoting Phillips ex rel. Estates of Byrd v. Gen. Motors
Corp., 307 F.3d 1206, 1211-12 (9th Cir. 2002)). This
standard is not satisfied by “[b]road allegations of
harm, unsubstantiated by specific examples or articulated
reasoning.” Id. (citing Phillips, 307
F.3d at 1211-12). Rather, a party seeking to obtain a
protective order must make a “particularized showing of
good cause with respect to any individual document.”
Phillips, 307 F.3d at 1211 (quoting San Jose
Mercury News, Inc. v. U.S. Dist. Court--Northern Dist. (San
Jose), 187 F.3d 1096, 1103 (9th Cir. 1999)).
Court denies the motion for protective order in whole or in
part, “the court may, on just terms, order that any
party or person provide or permit discovery.”
Motion to Quash Subpoenas
party or attorney issues a subpoena, he or she “must
take reasonable steps to avoid imposing undue burden or
expense on a person subject to the subpoena.”
Fed.R.Civ.P. 45(d)(1). Any order compelling production or
inspection following an objection to a subpoena “must
protect a person who is neither a party nor a party's
officer from significant expense resulting from
compliance.” Fed.R.Civ.P. 45(d)(2)(B).
subpoenaed party may move to quash or modify subpoenas on
various grounds. On timely motion, a court must
quash or modify a subpoena that: “(i) fails to allow a
reasonable time to comply; (ii) requires a person to comply
beyond the geographical limits specified in Rule 45(c); (iii)
requires disclosure of privileged or other protected matter,
if no exception or waiver applies; or (iv) subjects a person
to undue burden.” Fed.R.Civ.P. 45(d)(3)(A). On the
other hand, a court may quash or modify a subpoena
if it requires: “disclosing a trade secret or other
confidential research, development, or commercial
information.” Fed.R.Civ.P. 45(d)(3)(B)(I). “[A]
court determining the propriety of a subpoena balances the
relevance of the discovery sought, the requesting party's
need, and the potential hardship to the party subject to the
subpoena.” Am. Broad. Cos., Inc. v. Aereo,
Inc., No. CV-12-80300-RMW, 2013 WL 1508894, at *3 (N.D.
Cal. Apr. 10, 2013).
Motion to Compel
seek to compel the production of the following:
• documents identified in Plaintiff's privilege log:
1) 16 undated witness statements written by Investigator
Jefferson Caparas; 2) 6 internal memoranda written by Caparas
to file; and 3) WHI Caparas notes written by Caparas,
• the factual basis for Plaintiff's determination
that Richard Napierala was exempt;
• Plaintiff's record of phone calls with Dennis
• Plaintiff's communications with its witnesses; and
• documents relating to claimants, including records
showing appointments, travel, purchases, and other non-work
activities during each individual's specific period of
employment with Kazu.
addition, Defendants ask the Court to compel responses to
interrogatory nos. 2(b)(ii), 3, 8, 10, and 12-14.
initial matter, the Court addresses Defendants'
contention that Plaintiff waived all objections by failing to
assert them in a timely manner. Plaintiff counters that he
did not waive objections by producing responses one week
after the extended deadline agreed to by Defendants.
provides that “[t]he party to whom the request is
directed must respond in writing within 30 days after being
served . . . . [a] shorter or longer time may be stipulated
to under Rule 29 or be ordered by the court.”
Fed.R.Civ.P. 34 (emphasis added). “It is well
established that a failure to object to discovery requests
within the time required constitutes a waiver of any
objection.” Richmark Corp. v. Timber Falling
Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (citing
Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.
1981)); Pham v. Hartford Fire Ins. Co., 193 F.R.D.
659, 661-62 (D. Colo. 2000)) (same). However, courts
“retain discretion to relieve a late or non-responding
party from the potentially harsh consequences associated with
waiver.” Liguori v. Hansen, No.
2:11-CV-00492-GMN, 2012 WL 760747, at *11 (D. Nev. Mar. 6,
Plaintiff admittedly submitted untimely responses, the delay
was minimal and did not unduly prejudice Defendants.
Burlington Ins. Co. v. Okie Dokie, Inc., 368
F.Supp.2d 83, 91 (D.D.C. 2005) (declining to bar the
plaintiff from asserting objections, reasoning that the
defendant would not suffer prejudice by a nine-day delay and
that the plaintiff had “not demonstrated a pattern of
misconduct that would warrant the relatively harsh punishment
sought at this stage”). Consequently, the Court finds
that under the circumstances, Plaintiff did not waive his
general objections to the discovery requests.
Liguori, 2012 WL 760747, at *13 (“Certainly
the Court may hold that untimely objections are not waived
where delay in response is not substantial.”);
Blumenthal v. Drudge, 186 F.R.D. 236, 240 (D.D.C.
1999) (In the exercise of its broad discretion, finding that
the plaintiffs did not waive their right to raise their
objections even though their responses were provided
approximately one week after they were due).