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Secretary of Labor v. Kazu Construction, LLC

United States District Court, D. Hawaii

February 15, 2017

KAZU CONSTRUCTION, LLC, a corporation; and VERNON LOWRY, an individual, Defendants.


          Kevin S.C. Chang United States Magistrate Judge.

         Before 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.


         This case involves allegations that Defendants violated the minimum wage, overtime, and record keeping requirements of the Fair Labor Standards Act of 1938 (“FLSA”).

         A. Motion to Compel

         On 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, 2016.

         Counsel 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.

         B. Motion to Quash

         On 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.

         On November 17, 2016, Plaintiff filed his Motion to Quash, or in the Alternative, to Modify Subpoena.

         On 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.


         A. Motion to Compel

         Federal 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. 2002)).

         The 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.

         District 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.

         In the 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).

         B. Motion for Protective Order

         FRCP 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)).

         If the 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.” Fed.R.Civ.P. 26(c)(2).

         C. Motion to Quash Subpoenas

         When a 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).

         A 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).


         A. Motion to Compel

         Defendants 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, undated;
• the factual basis for Plaintiff's determination that Richard Napierala was exempt;
• Plaintiff's record of phone calls with Dennis Tadio;
• 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.

         In addition, Defendants ask the Court to compel responses to interrogatory nos. 2(b)(ii), 3, 8, 10, and 12-14.

         1. Waiver

         As an 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.

         FRCP 34 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, 2012).

         Although 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).

         2. Governmen ...

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