Hawkins v. Kroger Co.

SHAVONDA HAWKINS, on behalf of herselfand all others similarly situated, Plaintiff, v. THE KROGER COMPANY, Defendant.

Case No.: 3:15-cv-02320-JM-AHG

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

April 23, 2020

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL AND MOTION FOR SANCTIONS

[ECF No. 88]

This matter comes before the Court on Plaintiff's Motion to Compel Further Responses to Discovery Requests and for an Order of Sanctions and Contempt. ECF No. 88. The Court held a hearing on the Motion on April 8, 2020, and provided a tentative ruling. ECF No. 134. This Order follows.

For the reasons explained in more detail below, Plaintiff's Motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

The Court provided an extensive procedural history of this case in its September 16, 2019 Order Granting in Part Plaintiff's Motion to Compel Discovery (the "September 16 Order"), which is incorporated by reference herein. ECF No. 72 at 1-3. Relevant here, Plaintiff brought this class action on October 15, 2015, bringing state law claims of unfair competition and false advertising pursuant to Cal. Bus. & Prof. Code §§ 17200 et seq., §§ 17500 et seq., and Cal. Civ. Code §§ 1750 et seq., breach of implied warranty of merchantability, breach of express warranty, and violation of the California Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq. ECF No. 1. Although all of her claims arise under state law, Plaintiff filed the action in federal court pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). Id. ¶ 1. In support of her claims, Plaintiff contends that Defendant The Kroger Company ("Kroger") sells bread crumb products containing partially hydrogenated oil ("PHO"), a food additive containing artificial trans fat that the FDA determined to be unsafe for use in food in June 2015. Id. ¶¶ 3-6. Plaintiff further alleges that Kroger falsely marketed and falsely represented for years that its bread crumb products contained "0g Trans Fat" despite the PHO content. Id. ¶ 9.

Plaintiff's proposed putative class is defined as "[a]ll persons who purchased in the United States, on or after January 1, 2008, Kroger bread crumb products containing partially hydrogenated oil." Id. ¶ 114. Plaintiff seeks both damages and injunctive relief on behalf of the class. Id. ¶¶ 12, 113-115. Significant here, because of the nature of Plaintiff's claims and Plaintiff's proposed class definition, Plaintiff defines "PRODUCTS" as "Kroger Bread Crumbs containing partially hydrogenated oil(s)" in both her Interrogatories and Document Requests.

Discovery in this case commenced on June 6, 2019, following the Ninth Circuit's reversal of the Court's grant of dismissal and the Court's subsequent denial of Defendant's second motion to dismiss. The discovery process has been marked by repeated disputes since the outset. As detailed in the September 16 Order, Plaintiff served her First Set of Interrogatories and Requests for Production on May 15, 2019, and Defendant served its responses on June 17, 2019. ECF No. 72 at 2. Counsel met and conferred telephonically twice and by letter once regarding Plaintiff's position that Defendant's responses were deficient, but counsel were unable to come to an agreement. Defendant served supplemental responses on July 11, 2019, and produced seventeen pages of documents onJuly 26, 2019. These seventeen pages were the entirety of Kroger's document production in this case, pending since October 15, 2015, until Kroger produced additional documents following the September 16 Order.

In the September 16 Order, issued by Judge Barbara L. Major, the Court began its discussion by declaring that Defendant's "lengthy objections to each request," lack of "substantive response to any of the interrogatories or RFPs," and failure to "produce any responsive documents or indicate a willingness to produce any documents" constituted "unacceptable" behavior "not in compliance with the spirit or requirements of the Federal Rules of Civil Procedure." ECF No. 72 at 4. Accordingly, the Court concluded that Defendant "ha[d] not made a reasonable effort to satisfy its discovery obligations" and proceeded to go through each of Defendant's objections and arguments on which it relied "to avoid providing substantive discovery[.]" Id. at 5.

In a 34-page Order, Judge Major provided a thorough analysis of all outstanding discovery requests and (1) compelled responses or further responses to Plaintiff's Interrogatories ("ROGs") Nos. 1, 3, 4, 5, 7, and 8; (2) denied the motion to compel responses to ROGs Nos. 2 and 6; (3) compelled responses to Plaintiff's Requests for Production ("RFPs") Nos. 1, 2, 4, 5, 6, 7, 8, 10, 11, 16, 18, 20, 24, and 25, and compelled further responses to Plaintiff's RFPs Nos. 14 and 15; (4) granted in part and denied in part the motion to compel a response to Plaintiff's RFP No. 3; and (5) denied the motion to compel responses to Plaintiff's RFPs Nos. 13 and 17. See ECF No. 72 at 33-34.

Although the Court will not rehash the entire September 16 Order here, certain portions are especially relevant to the present disputes. First, Judge Major provided a thorough analysis to support her finding that the relevant time period governing Plaintiff's Interrogatories and Requests for Production began January 1, 2010. Judge Major further ordered that the relevant end date for discovery would be the present, except for discovery requests relating to the CLASS PERIOD, which would be limited to the time period of January 1, 2010 - May 31, 2018. ECF No. 72 at 10-13. Judge Major permitted Kroger, however, to shift the discovery end date earlier "[i]f Defendant provides a declaration froma knowledgeable employee that Defendant stopped selling all relevant products," in which case "the discovery end date will be the date the sales ended." Id. at 12. See also id. at 34.

Second, Judge Major generally addressed Kroger's objections on the basis of privilege asserted throughout its responses. Id. at 13. Judge Major overruled these objections because Kroger had not provided a privilege log and ordered Kroger to "search for and produce responsive documents in accordance with this order." Id. If Kroger identified responsive documents that were privileged, Kroger was ordered to comply with the requirements of Rule 26 that a party objecting on the basis of privilege "expressly make the claim" and "describe the nature of the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Id. (quoting Fed. R. Civ. P. 26(b)(5)). Judge Major reiterated that Kroger could not refuse to produce documents on the basis of privilege without providing a privilege log. Id. at 34.

Third, Judge Major ordered Kroger to serve supplemental responses no later than October 7, 2019, and reiterated the constraints governing the supplemental responses based on her rulings throughout the order. These constraints included the relevant time period for all of Kroger's responses, the requirement that Kroger provide a declaration from a knowledgeable employee that it stopped selling all relevant products before the end of that time period in order to shorten the discovery end date, the requirement to produce a privilege log if Kroger withheld documents on the basis of privilege, the requirement to conduct a diligent search and produce all documents in Kroger's possession custody, or control, and the requirement that Kroger support any objection that a request seeks confidential, proprietary, or trade secret information with evidence establishing that objection and an explanation why the Protective Order in place is insufficient to protect the information. Id. at 34.

After Judge Major issued the Court's September 16 Order, this case was transferred to the undersigned. ECF No. 73. The Court held discovery conferences in this matter on October 9, 2019, October 30, 2019, and November 13, 2019. ECF Nos. 76, 80, 82. Duringthe October conferences, the Court expressed in no uncertain terms that Kroger's failure to produce any additional documents by the October 7 deadline in the September 16 Order was unacceptable, a finding also memorialized in orders issued after the conferences. See, e.g., ECF No. 77 at 2 (issued October 9, 2019) ("Defendant has still not produced additional documents to Plaintiff beyond the seventeen documents produced on July 26, 2019, in direct contravention of the previously assigned Magistrate Judge's Order granting Plaintiff's Motion to Compel Defendant to respond to Plaintiff's Requests for Production Nos. 1, 2, 4, 5, 6, 7, 8, 10, 11, 14, 15, 18, 20, 24, and 25 in whole and Request for Production No. 3 in part, issuing sanctions for non-compliance, and setting a deadline to serve its compelled responsive documents. Judge Major's Order clearly required responses to document requests by October 7, 2019."); ECF No. 81 at 1-2 (issued November 1, 2019) ("Defendant has still failed to produce any documents beyond the seventeen documents it had produced at the time Judge Major issued the Sanctions Order on September 16, 2019. As discussed during the conference, the Court understands to an extent why Defendant needs more information from third-party suppliers before it can comply fully with the Sanctions Order. Nonetheless, Defendant's representation that it is making a good-faith effort to comply is starkly at odds with its failure to produce a single additional document in the 45 days since the Sanctions Order issued.").

In its November 1 Order, the Court set another discovery conference for November 13, 2019, and required Kroger to: 1) lodge a confidential Discovery Status Report with the Court, providing "the status of Defendant's compliance with each discovery item compelled, in whole or in part, by the Sanctions Order;" and 2) verify any currently unverified discovery responses....