Jesse Alvarez, individually and as an aggrieved employee pursuant to the Private Attorneys General Act (“PAGA”) v. Autozone, Inc., a Nevada corporation; and DOES 1 through 10 Case No. ED CV 14-2471-VAP (SPx) United States District Court, C.D. California Filed April 27, 2021 Counsel Kimberly I. Carter, Deputy Clerk, Attorneys Present for Plaintiffs: None None, Court Reporter / Recorder, Attorneys Present for Defendants: None Pym, Sheri, United States Magistrate Judge Proceedings: (In Chambers) Order Granting in Part Plaintiff's Motions to Compel and Directing Further Meet and Confer [160] [161] I. INTRODUCTION *1 On March 16, 2021, plaintiff Jesse Alvarez filed two motions to compel – a Motion to Compel Defendant Autozone, Inc.'s Further Responses to Plaintiff's Second Set of Interrogatories (“MTC Rogs”) and a Motion to Compel Defendant Autozone, Inc.'s Further Responses to Plaintiff's Second Set of Requests for Production of Documents (“MTC RFPs”).[1] Due to technical problems, the parties were unable to collaborate on drafting a joint stipulation for either motion, and so the court allowed them to proceed by filing separate oppositions and replies. Defendant opposed both motions on March 23 (“Opp. Rogs” and “Opp. RFPs”), and plaintiff filed replies on March 30 (“Reply Rogs” and “Reply RFPs”). Plaintiff's arguments are supported by the declarations of plaintiff's counsel Monica Balderrama (“Balderrama Decl. 1” and “Balderrama Suppl. Decl. 1” to MTC Rogs and “Balderrama Decl. 2” and “Balderrama Suppl. Decl. 2” to MTC RFPs) and exhibits attached thereto. Defendant's arguments are supported by the declarations and exhibits of defense counsel Evan R. Moses (“Moses Decl.”); David Fischer, defendant's manager of Process Improvement Store Projects (“Fischer Decl.”); David Vaughan, defendant's manager of Transportation Delivery Operations (“Vaughan Decl.”); and Carly Wexler, defendant's manager of Labor Management (“Wexler Decl.”).[2] Along with his replies, plaintiff filed objections to certain parts of these declarations (“Rogs Objs.” and “RFPs Objs.”).[3] The court considered the papers submitted and held a hearing on April 13, 2021. The court now rules on the scope of discovery in this action and directs the parties to meet and confer regarding the remaining issues raised in the parties' briefs. II. BACKGROUND Plaintiff brings the instant Private Attorneys General Act (“PAGA”) action against defendant on behalf of himself, the state of California, and other current and former employees. PAGA deputizes employees by allowing them to pursue the same civil monetary penalties that otherwise would only be available to state law enforcement agents. Cunningham v. Leslie's Poolmart, Inc., 2013 WL 3233211, at *5 (C.D. Cal. June 25, 2013); Cal. Lab. Code § 2699. On July 1, 2019, following the court's last discovery order, defendant filed: (1) a motion to strike, motion for judgment on the pleadings, and motion in limine related to plaintiff's PAGA claims for rest break and overtime violations (docket no. 120); and (2) a motion for judgment on the pleadings as to claims exceeding the scope of plaintiff's PAGA notice letter (docket no. 124). On October 8, 2019, the District Judge granted in part and denied in part the motion for judgment on the pleadings regarding rest breaks and overtime, denied as moot the motion to strike, declined to rule on the motion in limine, and granted the motion for judgment on the pleadings regarding the scope of the PAGA notice. See Docket no. 141. On July 31, 2020, plaintiff filed a first amended complaint. Docket no. 147. Defendant moved to dismiss plaintiff's amended rest break claims on August 24, 2020. Docket no. 149. The District Judge denied the motion to dismiss on September 25, 2020. Docket no. 158. The instant motions to compel followed several months later. *2 At issue here again – as in the court's September 10, 2018 order – are plaintiff's second sets of RFPs and interrogatories, which he served on January 2, 2018. Balderrama Decl. 1, Ex. 12; Balderrama Decl. 2, Ex. 12. Defendant served its initial responses on March 5, 2018. Balderrama Decl. 1, Ex. 13; Balderrama Decl. 2, Ex. 13. Since then, discovery has been essentially stalled due to the parties' dispute over the scope of plaintiff's PAGA notice. III. DISCUSSION Plaintiff now moves to compel further responses to Interrogatory Nos. 17-19 and 23-25, and to RFP Nos. 83-90, 95-98, 100, 104-06, 108, 111-17, 122-24, 126, 128, and 133-35. These requests generally seek information and documents concerning identification of and positions held by non-exempt employees, how they were paid including pay and time records, and overtime and rest or meal break practices and policies. With respect to all of the information sought, the parties' overarching dispute continues to be the proper scope of discovery. See MTC Rogs at 1; Opp. Rogs at 6-20. A. Scope of Discovery PAGA allows an “aggrieved employee” to bring claims for violations of the California Labor Code that could otherwise only be brought by the California's Labor and Workforce Development Agency (“LWDA”). Cal. Lab. Code § 2699(a); Cunningham, 2013 WL 3233211, at *5. Before an action can be brought, PAGA requires administrative exhaustion by sending a notice to the LWDA with the specific Labor Code provisions alleged to have been violated, “including the facts and theories to support the alleged violation.” Cal. Lab. Code § 2699.3(a)(1)(A). This is to allow for the “possibility of correction without litigation.” Holak v. K Mart Corp., 2015 WL 2384895, at *3 (E.D. Cal. May 19, 2015) (citation omitted). The notice must be specific enough for the LWDA and defendant to be able to “glean the underlying factual basis for the alleged violations.” Id. (citations omitted). PAGA claims are limited to the specific theories and Labor Code violations mentioned in the PAGA notice letter. Id. (citation omitted). In his PAGA notice, plaintiff informed defendant he sought relief on behalf of himself, the state of California, and “other persons who were employed by AUTOZONE in California as non-exempt, hourly-paid employees and worked shifts unloading merchandise from trucks (‘aggrieved employees’).” Docket no. 103, Ex. A (PAGA Notice) at 2. Plaintiff claims defendant assigns employees to the “truck crew,” a work shift during which employees are responsible for loading and unloading freight trucks with store merchandise. Id. at 3. Defendant allegedly has a policy or practice of requiring truck crew employees to wait to clock in until the first delivery truck actually arrives at the store, instead of clocking in at the time defendant requires them to report for their shift. Id. Plaintiff claims that on numerous occasions, he personally had to wait anywhere from 20 to 60 minutes for the delivery truck to arrive before his managers allowed him to clock in. Id. The crux of the parties' dispute is essentially over what it means to “unload” merchandise from trucks. Defendant urges the court to adopt a strictly literal definition of the term “unload,” which would include only employees who perform the physical act of removing merchandise from trucks. Opp. Rogs at 4, 7. Plaintiff argues for a more practical definition that would also include employees who “handle” the delivered merchandise by “moving items from the trucks into the store[ ] and performing any other work necessary to place the delivered merchandise at its designated location.” MTC Rogs at 5. *3 Defendant argues the District Judge already limited the group of aggrieved employees to those who actually unloaded trucks. See Opp. Rogs at 1. This is correct, but does not resolve the dispute at issue here. In the order regarding the scope of plaintiff's PAGA claims, the court rejected plaintiff's argument that the PAGA notice encompasses all days and all violations for sales associates who worked at least one truck day, and instead interpreted the PAGA notice to include only sales employees who personally unloaded trucks on truck crew days. Docket no. 141 at 18-21. But the court did not consider what actions make up the unloading of a truck – that is, whether it is simply taking merchandise off the truck, or also includes moving the merchandise into the store and other related acts. Accordingly, the court rejects defendant's argument that plaintiff's motions constitute an improper attempt at reconsideration of the District Judge's October 8, 2019 order. To the extent the aggrieved employees need to be more finely defined, that will be a matter for the District Judge. The court considers the matter here only for the purpose of determining the proper scope of discovery, which discovery may in any event be needed to better determine who the aggrieved employees are. In resolving what is in many ways a linguistic dispute, the court notes that the California Supreme Court has repeatedly held “the state's labor laws are to be liberally construed in favor of worker protection.” Alvarado v. Dart Container Corp., 4 Cal. 5th 542, 561-62, 229 Cal. Rptr. 3d 347, 411 P.3d 528 (2018); Delgado v. Marketsource, Inc., 2019 WL 1904216, at *5 (N.D. Cal. Apr. 29, 2019) (liberally construing the PAGA requirements). With this in mind, on its face defendant's definition of aggrieved employees is too literal and unduly restrictive to be persuasive, particularly in determining what is discoverable. As discussed at the hearing, interpreting “unload” in a commonsense fashion, a child asked to unload groceries from the family car who responded by leaving the groceries on the garage floor with no regard for melting ice cream would likely face an uphill battle in persuading his parent that he unloaded the groceries from the car as asked. To take a scenario more tied to the instant case, imagine a delivery truck full of car batteries arriving at one of defendant's stores. The batteries come stacked and wrapped in plastic on wooden pallets in groups of one-hundred. The truck's driver uses a forklift to retrieve each of the pallets and place them on the ground by the store's back entrance. A group of defendant's employees cuts open the pallets and carries each of the batteries inside the store to organize them into shelves. Under defendant's interpretation of the PAGA notice, only the truck driver would be an aggrieved employee because the other employees did not personally unload the merchandise from the truck. In other words, in this scenario, the truck crew is the driver only. Yet this interpretation is contrary to the PAGA Notice, which describes a crew of employees waiting for the truck to arrive to clock in and unload merchandise. Defendant nonetheless argues that the unloading process could in fact be so limited, with merchandise sometimes not moved from where it is unloaded from the truck until a later day. In support of this, defendant submits declarations from two corporate managers who state: AutoZone does not have any corporate policy or rule that merchandise has to be “handled” in any particular fashion by an AutoZone employee on the same day that it arrives. It is entirely possible that merchandise could arrive, be physically unloaded from a truck by someone other than an AutoZone employee, and then is not touched by any AutoZone employee until the next day. Fischer Decl. ¶ 9; see Vaughn Decl. ¶ 4 (same). But whether defendant has such a policy is beside the point. The question is what actually happened. The declarations merely state it is “possible” merchandise will not be touched by an employee on the day it is unloaded. Even if it did not happen with every delivery, where employees unloaded merchandise on truck crew days, they are fairly among the aggrieved employees described in the PAGA Notice. *4 The declarations defendant submits say nothing about what duties are fairly encompassed within the unloading process. Based on the record before the court, it is not unreasonable to expect that truck crew members who unloaded merchandise would include employees who do not personally climb up and down a delivery truck's bed or trailer to grab each package. In fact, defendant itself describes truck day duties broadly to include opening sealed boxes, removing merchandise from pallets, inspecting merchandise for spills, and organizing empty pallets. See Balderrama Decl. 1, Ex. 7 (defendant's safety measures for truck days). Of course, not every action on truck day is fairly included within the unloading process; cashiering, assisting customers, and handling merchandise unrelated to the truck's delivery are not. But the duties such as opening boxes, inspecting the delivered merchandise, and so forth appear to be. Given this, and given the PAGA Notice itself, defendant's argument that it should not be required to produce discovery regarding any employee who participated in the unloading process but did not physically retrieve merchandise from the trucks strains credulity. Even so, the question of what precisely the unloading process encompasses remains. Defendant suggests plaintiff should take a Rule 30(b)(6) deposition to learn the particulars of the process. This is something the parties should consider, as discussed below. But it would not affect the court's finding that the scope of discovery in this case fairly includes all employees who participated in the unloading of the trucks, whatever their duties that furthered that process. Defendant argues that because plaintiff has not presented a reasonable plan to identify truck crew employees, he will end up engaging in a fishing expedition that will target a broader group of employees than appropriate. Opp. Rogs at 3. Defendant's position is misplaced. First, it appears that it would be just as hard to identify the aggrieved employees if the court adopted defendant's narrow interpretation of the PAGA notice. That is so because defendant claims there is no way to use employee timecards, schedules, or truck delivery reports to determine who unloaded a truck or otherwise handled merchandise delivered on a truck day. Vaughan Decl. ¶ 5.[4] Thus, this difficulty alone is not a convincing reason to choose defendant's interpretation over plaintiff's. Second, defendant's argument is essentially over the manageability of this PAGA action. There is a split in federal courts over whether PAGA plaintiffs must prove their representative actions are manageable. See Delgado, 2019 WL 1904216, at *4-5 (compiling cases for and against a manageability requirement). PAGA actions are not class actions, and the PAGA statute contains no explicit manageability requirement. But whether plaintiff must prove manageability in this case is not at issue on this discovery motion. Nonetheless, as noted below, the parties should meet and confer about how Rule 26's proportionality requirement might practically limit plaintiff's discovery efforts. *5 For all of these reasons, the court concludes plaintiff is entitled to seek discovery as to all employees who participated in unloading a truck on delivery days, even if the employees did not perform the act of physically removing merchandise from the truck. The question is how to determine which employees are included in such discovery. B. Discovery Methods and the Need for Further Meet and Confer Plaintiff seeks discovery that, inter alia, identifies aggrieved employees and their positions and includes their pay and time records. The parties vigorously disagree as to the method for identifying the aggrieved employees in this action. Plaintiff proposes four different methods to ascertain the identities of the aggrieved employees. First, plaintiff agrees to bear the burden of identifying the aggrieved employees if defendant provides electronic records related to all employees during the relevant time period. MTC Rogs at 7. Second, plaintiff suggests performing a videotaped site inspection with the goal of illustrating how truck crew employees perform their work duties. Id. Third, plaintiff agrees to create a Belaire-West privacy notice with defendant in order to contact a random sample of either thirty percent of all of defendant's employees or employees at thirty percent of the stores. Id. Fourth, plaintiff asks defendant to produce work schedules in native format so that plaintiff can identify the aggrieved employees by looking at which employee identification numbers are scheduled to work “truck hours.” Id. at 8. Defendant also claims to have proposed several methods to identify aggrieved employees. First, defendant agrees to provide a Rule 30(b)(6) witness to answer plaintiff's questions about how to identify the aggrieved employees. Moses Decl. ¶ 11. Second, defense counsel agrees to ask defendant whether it would consider conducting an internal survey to investigate potential ways to identify the aggrieved employees. Id. ¶ 12.[5] Defendant's third and final proposal is unclear. As far as the court can tell, defendant agrees to consider sending a notice to all of its employees asking them to self-identify as aggrieved employees. Id. ¶ 13. As far as providing employee schedules, defendant maintains they do not accurately identify which employees were ultimately assigned to truck crew. Opp. Rogs at 3-4, 13-15. Defendant also argues it would cost hundreds of thousands of dollars to produce such records, which makes such discovery not proportional to the needs of this case. See id. at 4, 14. The court again notes that this discovery may go to ultimately determining who are in fact the aggrieved employees, and therefore production of records and information pertaining to a group of employees somewhat broader than those who may ultimately be determined to have participated in the unloading process and otherwise qualify is to be expected. Nonetheless, defendant has legitimate concerns regarding the cost and burdens of production, and therefore the discovery should be as precise and proportional as practicable. To that end, many of the parties' proposals have merit, but the court will not order any particular method of discovery at this point because both parties claim the other failed to fully meet and confer about each of their proposals. See Reply Rogs at 6; Opp. Rogs at 16; Moses Decl. ¶¶ 5, 11-12. In addition, it appears that defendant has yet to meet and confer with plaintiff about the cost of producing employee schedules. See Reply Rogs at 6. Thus, the court orders the parties to meet and confer about at least the following: each of the parties' proposals for identifying the aggrieved employees as that group is defined for discovery purposes in this order; the extent to which sampling can alleviate proportionality concerns; plaintiff's need for particular records versus the precise burden defendant would face to produce them; the extent to which specific search terms may be used to search for relevant records; and any other issues that may facilitate discovery in this matter. IV. CONCLUSION *6 The parties are directed to meet and confer further regarding their discovery disputes in light of the court's rulings and comments above. After completing their meet and confer efforts, the parties shall notify the court of what disputes remain, if any. If during this process the parties believe it would help to discuss any issues with the Magistrate Judge, they may contact the Magistrate Judge's courtroom deputy clerk to arrange a telephonic conference. Footnotes [1] The main focus of plaintiff's arguments is the same in both motions – the scope of discovery in this PAGA action. In fact, the parties' two sets of briefs for disputed interrogatories and RFPs are mostly identical. The court will not parallel cite to both sets of briefs in this order. In the future, the parties should address all discovery disputes in a single joint stipulation to avoid duplicative briefing. [2] Each of defendant's two oppositions is supported by the same four declarations and exhibits. [3] The court does not rely on all of the statements contained in defendant's declarations, and so plaintiff's evidentiary objections are overruled as moot unless otherwise stated in this order. [4] Plaintiff objects to this part of Vaughan's declaration as lacking foundation, personal knowledge, and constituting improper opinion testimony. Rogs Objs. at 6-7. Plaintiff's boilerplate objections are conclusory and vague. For instance, plaintiff argues Vaughan improperly considered defendant's employment records “in an isolated vacuum” but does not explain what that actually means. Id. In addition, Vaughan does have the foundation and personal knowledge to support his statement, even if it turns out to be wrong. He stated that as manager for transportation delivery operations, he is personally familiar with defendant's practices concerning deliveries and recordkeeping in California. See Vaughan Decl. ¶ 1; Fed. R. Evid. 602 (“Evidence to prove personal knowledge may consist of the witness's own testimony.”). Finally, plaintiff does not explain why Vaughan's statement constitutes improper opinion testimony. For example, plaintiff does not argue that Vaughan's conclusion as to the usefulness of the employment records must be supported by scientific, technical, or other specialized knowledge. See Fed. R. Evid. 701. For these reasons, the court overrules plaintiff's objections. [5] The court overrules plaintiff's objections to defense counsel's statements in paragraphs 12 and 13 of his declaration. See Rogs Objs. at 2-4. Defense counsel's statements are not offered as evidence to prove the merits of defendant's defenses, but rather to explain the parties' meet-and-confer efforts. Defense counsel is entitled to outline defendant's position as the court considers how to proceed with discovery.