Marko Cavka v. SoulCycle Inc.

NOTICE OF MOTION AND MOTION to Compel Discovery Joint Stipulation Per Local Rule 37

C.D. Cal.September 12, 2017

N E W M E Y E R & D I L L I O N L L P NEWMEYER & DILLION LLP ROBERT K. SCOTT, CBN 67466 STEPHEN M. HAUPTMAN, CBN 226123 895 Dove Street, 5th Floor Newport Beach, California 92660 (949 854-7000; (949) 854-7099 (Fax Attorneys for Plaintiff and the Proposed Class SHIRLI F. WEISS (Bar No. 079225) shirli.weiss@dla_pier.com DLA PIPER LLP (US) 401 B Streetuite 1700 CaliforniaCSan Diego, 92101 Tel: 619.699.2700 Fax: 619.699.2701 KEARA M. GORDON (pro hac vice) keara.gordon dla iper.com DLA PIPER P (US) 1251 Avenue of the Americas, 27th Floor New York, NY 10020 Tel: 212.335.4500 Fax: 212.335.4501 Attorneys for Defendant SOULCYCLE, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA — SOUTHERN DIVISION MARKO CAVKA, individually and on behalf of all other similarly situated, Plaintiff, vs. SOULCYCLE, INC., a Delaware corporation, and DOES 1-25, inc usive, Defendants. CASE NO.: 8:16-CV-01821 JLS (KESx) JUDGE: Josephine L. Staton DISCOVERY MATTER: JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL DEFENDANT SOULCYCLE INC. TO PRODUCE SUPPLEMENTAL RESPONSES TO SPECIAL INTERROGATORIES AND REQUESTS FOR PRODUCTION AND TO PRODUCE ITS WITNESSES FOR DEPOSITION Magistrate: Hon. Karen E. Scott Date: October 3, 2017 Time: 10:00 a.m. Courtroom: 6D Discovery Cutoff: April 6, 2018 Pretrial Conference: August 10, 2018 Trial Date: September 4, 2018 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 1 of 57 Page ID #:722 N E W M E Y E R & D [ L L I O N L L P TABLE OF CONTENTS Page 1. INTRODUCTION 1 A. PLAINTIFF'S PRELIMINARY STATEMENT 1 B. SOULCYCLE'S PRELIMINARY STATEMENT 5 2. SPECIAL INTERROGATORIES IN DISPUTE 8 A. INTERROGATORY NOS. 1, 2, 4 & 5 8 INTERROGATORY NO. 1: 8 AMENDED RESPONSE TO INTERROGATORY NO. 1 8 INTERROGATORY NO. 2: 8 AMENDED RESPONSE TO INTERROGATORY NO. 2 9 INTERROGATORY NO. 4: 9 AMENDED RESPONSE TO INTERROGATORY NO. 2 [SIC]• 9 INTERROGATORY NO. 5: 10 AMENDED RESPONSE TO INTERROGATORY NO. 3 [SIC]• 10 PLAINTIFF'S POSITION: 11 SOULCYCLE'S POSITION: 13 B. INTERROGATORY NOS. 3 & 6 18 INTERROGATORY NO. 3: 18 AMENDED RESPONSE TO INTERROGATORY NO. 3. 18 INTERROGATORY NO. 6: 19 AMENDED RESPONSE TO INTERROGATORY NO. 4 [SIC]. 19 PLAINTIFF'S POSITION: 20 SOULCYCLE'S POSITION: 21 C. INTERROGATORY NOS. 8-10 23 INTERROGATORY NO. 8: 23 AMENDED RESPONSE TO INTERROGATORY NO. 5 [SIC]• 23 INTERROGATORY NO. 9: 24 AMENDED RESPONSE TO INTERROGATORY NO. 6 [SIC]• 24 INTERROGATORY NO. 10: 24 AMENDED RESPONSE TO INTERROGATORY NO. 7 [SIC]• 25 PLAINTIFF'S POSITION: 25 SOULCYCLE'S POSITION: 26 D. INTERROGATORY NOS. 22-25 26 INTERROGATORY NO. 22: 26 AMENDED RESPONSE TO INTERROGATORY NO. 19 [SIC]• 27 7099528.1 Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 2 of 57 Page ID #:723 N E W M E Y E R & D I L L I O N L L P TABLE OF CONTENTS (continued) Page INTERROGATORY NO. 23: 27 AMENDED RESPONSE TO INTERROGATORY NO. 20 [SIC] 27 INTERROGATORY NO. 24: 28 AMENDED RESPONSE TO INTERROGATORY NO. 21 [SIC] 28 INTERROGATORY NO. 25: 29 AMENDED RESPONSE TO INTERROGATORY NO. 22 [SIC] 29 PLAINTIFF'S POSITION: 29 SOULCYCLE'S POSITION: 30 3. REQUESTS FOR PRODUCTION IN DISPUTE 32 A. REQUESTS FOR PRODUCTION NOS. 2-6, 15-17 32 REQUEST FOR PRODUCTION NO. 2 32 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 2 33 REQUEST FOR PRODUCTION NO. 3 33 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 3 33 REQUEST FOR PRODUCTION NO. 4 33 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 4 33 REQUEST FOR PRODUCTION NO. 5 33 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 5 34 REQUEST FOR PRODUCTION NO. 6 34 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 6 34 REQUEST FOR PRODUCTION NO. 15 34 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 15 34 REQUEST FOR PRODUCTION NO. 16 35 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 16 35 REQUEST FOR PRODUCTION NO. 17 35 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 17 36 PLAINTIFF'S POSITION: 36 SOULCYCLE'S POSITION: 37 Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 3 of 57 Page ID #:724 N E W M E Y E R & D I L L I O N L L P TABLE OF CONTENTS (continued) Page B. REQUESTS FOR PRODUCTION NOS. 13, 27 & 28 37 REQUEST FOR PRODUCTION NO. 13 37 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 13 37 REQUEST FOR PRODUCTION NO. 27 38 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 27 38 REQUEST FOR PRODUCTION NO. 28 39 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 28 39 PLAINTIFF'S POSITION: 39 SOULCYCLE'S POSITION: 42 C. REQUESTS FOR PRODUCTION NOS. 29-30 43 REQUEST FOR PRODUCTION NO. 29 43 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 29 43 REQUEST FOR PRODUCTION NO. 30 44 AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 30 44 PLAINTIFF'S POSITION: 44 SOULCYCLE'S POSITION: 45 4. DISPUTES REGARDING DEPOSITIONS 47 PLAINTIFF'S POSITION: 47 SOULCYCLE'S POSITION: 49 7099528.1 Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 4 of 57 Page ID #:725 N E W M E Y E R & D I L L I O N L L P 1. INTRODUCTION. Pursuant to Rule 37 of the Federal Rules of Civil Procedure and Local Rule 37-2, Plaintiff Marko Cavka, individually and on behalf of all others similarly situated, ("Plaintiff') and Defendant SoulCycle, Inc. ("SoulCycle"), by and through their respective counsel, hereby submit this joint stipulation regarding Plaintiffs motion to compel SoulCycle to produce supplemental responses to Plaintiff's special interrogatories and requests for production of documents and to produce its witnesses for deposition in this litigation in this district. Pursuant to Local Rule 37- 1, the parties conducted a pre-filing conference of counsel telephonically on July 31, 2017, and also on various other dates by e-mail and telephone. A. PLAINTIFF'S PRELIMINARY STATEMENT. Plaintiff respectfully requests an order compelling SoulCycle to produce: (1) supplemental responses to Plaintiffs special interrogatories; (2) supplemental responses to Plaintiffs request for production, including supplementing its document productions to date; and (3) its designated corporate representative witnesses for deposition within the district where this case is pending. Plaintiff filed this class action lawsuit as a result of SoulCycle's violations of California Health Studio Services Contract Law, Civil Code §§ 1812.80 et seq. ("HSSCL") and California's Unfair Competition Law, Business and Professions Code §§ 17200 et seq. ("UCL"). Plaintiff alleges that every one of SoulCycle's contracts for indoor cycling classes entered into in California during the class period violates the HSSCL and is therefore "void and unenforceable as contrary to public policy." (Civil Code § 1812.91.) Pursuant to the complaint, Plaintiff seeks to certify a class of California customers who have been subjected to and damaged by SoulCycle's violations of HSSCL, where Plaintiff would serve as the class representative and the undersigned would be designated as class counsel, and Plaintiff also requests that judgment be entered against SoulCycle for, among other forms of relief, compensatory damages, -1- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 5 of 57 Page ID #:726 N E W M E Y E R & D I L L I O N L L P trebled per statute, restitution, disgorgement, rescission, injunctive relief, punitive damages and attorney's fees. Plaintiff filed this class action on August 26, 2016, and after the Court denied SoulCycle's most recent motion to dismiss, SoulCycle answered the complaint on or about June 30, 2017. Plaintiff served its first sets of special interrogatories and requests for production of documents on SoulCycle on April 28, 2017. SoulCycle served its initial responses to such discovery on May 30, 2017; however, such responses contained only objections, contending that the discovery was premature due to SoulCycle's then-pending motion to dismiss. Following the Court's denial of SoulCycle's motion to dismiss, counsel for the parties met and conferred and SoulCycle agreed to provide amended responses. SoulCycle's amended responses to Plaintiff's special interrogatories and requests for production of documents were served on July 14, 2017. Notwithstanding, SoulCycle's amended responses remain defective. SoulCycle has made three document productions in this matter amounting to in excess of 11,000 pages of documents. However, the entirety of the documents produced by SoulCycle to date are responsive to only two of the numerous categories of documents requested by Plaintiffs; and, moreover, the documents produced and information provided is otherwise incomplete. In addition, Plaintiff has requested that SoulCycle provide dates that its designated corporate witnesses can be made available for deposition. Pursuant to the request of SoulCycle's counsel, Plaintiff has agreed to wait until after the mediation, presently scheduled for September 26, 2017, before moving forward with the depositions; however, this agreement was conditioned on the depositions proceeding immediately after mediation since the deadline for Plaintiff s motion for class certification is November 3, 2017. Not only has SoulCycle failed to provide dates for the depositions, SoulCycle is now taking the position that the depositions must take place in New York and South Carolina, which is contrary to well-settled - 2 - 7099528 I JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 6 of 57 Page ID #:727 N E W M E Y E R & D I L L I O N L L P law and would put an undue and unfair burden on Plaintiff. Accordingly, and based on the points and authorities identified below, and the declaration of Plaintiff's counsel with exhibits attached hereto, Plaintiff respectfully requests an order compelling SoulCycle to produce supplemental responses to Plaintiff's special interrogatories and requests for production, and to produce its corporate representative witnesses for deposition within this district. B. SOULCYCLE'S PRELIMINARY STATEMENT. Despite the Plaintiff's assertions and innuendo, the record demonstrates that SoulCycle is taking seriously its discovery obligations. To date, SoulCycle has served written responses to requests for admissions, interrogatories, and document requests, and it has made three rolling document productions consisting of over 11,000 pages of documents. Among other things, SoulCycle has already produced a 607-page spreadsheet that details every Class purchased where, like the Plaintiff, the purchaser allowed their Class to expire unused. This information is, of course, in itself overbroad because it is inconceivable that each of the individuals on that spreadsheet (1) did not know about the right to cancel his or her Class or Classes, given that SoulCycle explicitly disclosed that fact on its website, (2) that each such person then actually had a conflict arise within the statutory five day period, (3) that then prevented him or her from using his or her Class or Classes within the time allotted — even though some of those riders may have purchased Class packages that allowed them a full year to use all the Classes. In contrast to SoulCycle's actions, the Plaintiff has produced only 11 pages of documents, and his discovery responses consist primarily of baseless objections.' While SoulCycle addresses each specific document request and interrogatory Plaintiff alleges in the Second Amended Complaint ("SAC") that he "experienced feelings of frustration, annoyance and/or anxiety because he believed he was not able to cancel the contract" (SAC, ¶ 26), yet he has now admitted that he lacks any documentary support for this conclusory (and improbable) allegation. (See 9/8/17 Declaration of Steven R. Marino ("Marino Decl."), Ex. 1, Interrogatory Response No. 6; Marino Decl., Ex. 2, Request for Production Response No. 17). -3- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 7 of 57 Page ID #:728 N E W M E Y E R & D I L L I O N L L P 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 below, for convenience of the Court, the disputes can be grouped into roughly six categories. First, the Plaintiff seeks to compel SoulCycle to produce voluminous amounts of blatantly irrelevant information: information regarding every Class that SoulCycle has sold in California during the relevant period including data on sales where the rider purchased a Class or Classes, and used every single one of them. In each of those circumstances, those individuals got the full benefit of their bargain; there is no basis on which to award them a windfall now. SoulCycle made clear to the Plaintiff that the information sought is burdensome and can never be a basis for a damages award in this case. Despite the utter lack of relevance and the burden of gathering and producing that information, SoulCycle explained to the Plaintiff two separate times that if he could provide authority for his position, SoulCycle would consider that authority. Plaintiff refused. Without a shred of case authority to support his sweeping requests, the Plaintiff chose to initiate this Joint Stipulation process. Even here, he continues to fail to provide any case law support for his quest to impose on SoulCycle the burden of producing detailed, personally identifiable information regarding every Class that SoulCycle has sold in California during the statute of limitations period. Second, even though SoulCycle produced information regarding riders who purchased a class that went unused and delineated each Rider ID, which is the unique identifier SoulCycle employs, the Plaintiff seeks to discover personally identifiable information regarding those riders, including name and address. It is unclear why the Plaintiff supposedly needs the associated customer's name and addresses. The plaintiff has never articulated exactly what he intends to do with this information. It would be inappropriate and unnecessary for the Plaintiff to contact SoulCycle's riders, particularly given SoulCycle's need to protect the privacy of its customers. To the extent that the Plaintiff is attempting to embark on -4- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 8 of 57 Page ID #:729 N E W M E Y E R & D I L L I O N L L P 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a fishing expedition to obtain the names of SoulCycle's customers, that effort should be rejected. Third, SoulCycle appropriately responded to certain interrogatories by referring to documents as permitted by Federal Rule of Civil Procedure 33(d). Fourth, SoulCycle appropriately declined to answer those interrogatories that exceeded the 25 interrogatory limit imposed by Federal Rule of Civil Procedure 33(a)(1). A review of the Plaintiff's interrogatories demonstrates that the Plaintiff has compacted multiple questions-within-questions into his 25 interrogatories, which is improper. Fifth, as to some categories of document production, the Plaintiff speculates as to whether SoulCycle will locate and produce responsive documents. But, in each of the challenged categories of document requests, SoulCycle stated that it will produce responsive documents "if any." SoulCycle has produced thousands of documents in response to the Plaintiff's requests and it is currently in the process of determining whether it has any additional responsive documents in its possession, custody, or control. Fact discovery is open for four more months—until January 19, 2018—and the parties have not otherwise set a date certain by which all documents are to be produced. In sum, therefore, Plaintiff's motion is premature. Finally, SoulCycle is willing to produce its witnesses for deposition in New York, where its witnesses are located, and it was in the process of collecting dates for those depositions when the Plaintiff demanded that all depositions occur in California. The law is clear that depositions should proceed where the deponents are located, and there is no reason to deviate from that well-settled practice here. Unfortunately, many of the Plaintiff's objections appear to be manufactured in an attempt to exert leverage on SoulCycle prior to the scheduled mediation of this matter on September 26, 2017. For that reason, and for the additional reasons that Plaintiff has failed to meet his burden in demonstrating relevancy for the information requested or to support his positions with applicable law, Plaintiffs -5- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 9 of 57 Page ID #:730 N E W M E Y E R & D I L L I O N L L P Motion to Compel should be denied. In the alternative, SoulCycle is, of course, willing to further meet and confer with Plaintiff in an effort to narrow the broad disputes that Plaintiff raises to this Court. 2. SPECIAL INTERROGATORIES IN DISPUTE. A. INTERROGATORY NOS. 1, 2, 4 & 5 INTERROGATORY NO. 1: DESCRIBE IN DETAIL all contracts between YOU and YOUR customers for cycling classes in California entered into in the past five years. For purposes of this interrogatory, please provide, without limitation, the name, mailing address, telephone number and e-mail address for each customer, the type of contract, the number of classes purchased, the date the contract was entered or purchase was made and the amount of money paid by the customer. AMENDED RESPONSE TO INTERROGATORY NO. 1: SoulCycle objects to this Interrogatory on the grounds that it is premature in that it requests detailed individualized information pertaining to each putative class member although a class has not been certified. Particularly given the intrusive and burdensome nature of the individualized classwide information Plaintiff seeks, Plaintiff's desire for this discovery at this time is outweighed by the burden of responding. SoulCycle objects to this Interrogatory as a premature contention interrogatory and on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, compound, and not proportional to the needs of the case. SoulCycle further objects on the grounds that it seeks information, documents or things protected by a third-party right to privacy and constitutes an improper fishing expedition. INTERROGATORY NO. 2: DESCRIBE IN DETAIL all sales of cycling classes in California by YOU in the past five years. For purposes of this interrogatory, please provide, without limitation, the name, mailing address, telephone number and e-mail address for -6- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 10 of 57 Page ID #:731 N E W M E Y E R & D I L L I O N L L P each customer, the type of contract, the number of classes purchased, the date the contract was entered or purchase was made and the amount of money paid by the customer. AMENDED RESPONSE TO INTERROGATORY NO. 2: SoulCycle objects to this Interrogatory on the grounds that it is premature in that it requests detailed individualized information pertaining to each putative class member although a class has not been certified. Particularly given the intrusive and burdensome nature of the individualized classwide information Plaintiff seeks, Plaintiffs desire for this discovery at this time is outweighed by the burden of responding. SoulCycle objects to this Interrogatory as a premature contention interrogatory and on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, compound, and not proportional to the needs of the case. SoulCycle further objects on the grounds that it seeks information, documents or things protected by a third-party right to privacy and constitutes an improper fishing expedition. INTERROGATORY NO. 4: DESCRIBE IN DETAIL all sales revenue and gross profits generated and/or received by YOU from contracts with customers for cycling classes in California in the past five years. AMENDED RESPONSE TO INTERROGATORY NO. 2 fSIC1: SoulCycle objects to this Interrogatory on the grounds that it is premature in that it requests detailed individualized information pertaining to each putative class member although a class has not been certified. Particularly given the instrusive and burdensome nature of the individualized classwide information Plaintiff seeks, Plaintiff's desire for this discovery at this time is outweighed by the burden of responding. SoulCycle objects to this Interrogatory on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, compound, and not proportional to the needs of the case. SoulCycle further objects on the -7- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 11 of 57 Page ID #:732 N E W M E Y E R & D I L L I O N L L P grounds that it seeks irrelevant information and a legal conclusion. Subject to and without waiving the foregoing objections, SoulCycle states that, subject to the execution of an appropriate protective order, SoulCycle will produce summary financial information regarding the revenue it has derived from the sale of Classes in California that riders have not used during the relevant period, to the extent that it is able to do so. SoulCycle states that it is unable definitely to identify which riders purchased their Class or Classes for use in California, rather than for use in another jurisdiction. INTERROGATORY NO. 5: DESCRIBE IN DETAIL all sales revenue and gross profits generated and/or received by YOU from the sale of cycling classes in California in the past five years. AMENDED RESPONSE TO INTERROGATORY NO. 3 fSIC1: SoulCycle objects to this Interrogatory on the grounds that it is premature in that it requests detailed individualized information pertaining to each putative class member although a class has not been certified. Particularly given the intrusive and burdensome nature of the individualized classwide information Plaintiff seeks, Plaintiff's desire for this discovery at this time is outweighed by the burden of responding. SoulCycle objects to this Interrogatory on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, compound, and not proportional to the needs of the case. SoulCycle further objects on the grounds that it seeks irrelevant information and a legal conclusion. Subject to and without waiving the foregoing objections, SoulCycle states that, subject to the execution of an appropriate protective order, SoulCycle will produce summary financial information regarding the revenue it has derived from the sale of Classes in California that riders have not used during the relevant period, to the extent that it is able to do so. SoulCycle states that it is unable definitively to identify whichwhich riders purchased their Class or Classes for use in California, rather -8- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 12 of 57 Page ID #:733 N E W M E Y E R & D I L L I O N L L P than for use in another jurisdiction. PLAINTIFF'S POSITION: Interrogatory Nos. 1, 2, 4 & 5 request information related to all contracts and all sales of cycling classes between SoulCycle and its California customers during the relevant time period (i.e., the past five years). Such information is directly relevant to the central issues in this action. However, in its responses to these interrogatories, SoulCycle either fails to provide any substantive responses whatsoever or places inappropriate limitations on the information it will produce — i.e., only information related to contracts and sales where the customer did not use all of the classes purchased. SoulCycle's failure to provide responsive information, as well as its unilateral decision to limit the information to be produced in response to these interrogatories, is improper. Plaintiff alleges that all of SoulCycle's contracts with its California customers during the class period are void and unenforceable as a result of its violations of the HSSCL. California Civil Code §1812.91 specifically provides that lalny contract for health studio services which does not comply with the applicable provisions of this title shall be void and unenforceable as contrary to public policy." Plaintiff is therefore seeking relief in this action related to all of the contracts and all of the sales between SoulCycle and its California customers, which sales and contracts are all in violation of California law. SoulCycle must be required to produce information related to all of its contracts and sales during the relevant time period, and not just a limited subset of such contracts and sales. The information sought in these interrogatories is exceedingly relevant and directly related to the claims made by Plaintiff and the relief sought against SoulCycle in this action. "Relevant information for purposes of discovery is information 'reasonably calculated to lead to the discovery of admissible evidence[.]' " (Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir.2005) (citation omitted).) In addition, Rule 26(b)(1) provides the appropriate -9- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 13 of 57 Page ID #:734 N E W M E Y E R & D I L L I O N L L P scope of discovery in civil actions as follows: "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." SoulCycle's objections that the interrogatories are premature because Plaintiff has not yet certified a class are without merit. Plaintiff is permitted to perfoiiii pre-certification discovery relevant to substantiating the class allegations or satisfying the specific criteria for a class action under Rule 23. (See, e.g., Vallabharpurapu v. Burger King Corp., 276 F.R.D. 611 (N.D. Cal. 2011).) These interrogatories are directly related to substantiating Plaintiffs claims in this case, as well as satisfying the requirements of Rule 23, such as, but not limited to, numerosity, commonality, and typicality, all of which is within the scope of permissible discovery prior to class certification. Additionally, SoulCycle's objections based upon the purported privacy rights of its customers are moot since there is now in place a stipulated protective order; and SoulCycle's contention that it is unable to determine the jurisdiction for which any customer purchased their classes is also moot as counsel for parties have agreed that SoulCycle need only produce information, from the relevant time period, for customers with a California billing address. SoulCycle's contentions that producing responsive information would present an undue or unfair burden are also without merit, as counsel for Plaintiff has agreed that SoulCycle would be permitted to produce responsive information in summary format, so long as the primary information is provided — e.g., the number of contracts entered into or sales made during the relevant time period, the number of classes purchased pursuant to each contract or sale, the dates each contract were -10- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 14 of 57 Page ID #:735 N E W M E Y E R & D I L L I O N L L P entered into or sale was made, the total payments made per each contract or sale and the total revenue and profits generated pursuant to each contract or sale. The information sought by these interrogatories is relevant to the issues directly at the heart of this case, and the inability of Plaintiff to obtain such information by any other means would outweigh any purported burden imposed on SoulCycle to respond. It is therefore requested that SoulCycle be compelled to provide supplemental responses to these interrogatories. SOULCYCLE'S POSITION: Interrogatories Nos. 1, 2, 4, and 5 request information that is not relevant to either the Plaintiff's HSSCL or UCL claims. See Fed. R. Civ. P. 26(b)(1). The starting point here is that the Plaintiff is an individual who resides in California, purchased a single SoulCycle Class for $30 on July 5, 2016, but purports to have learned by July 10, 2016 that he would be unable to use his Class within 30 days "[d]ue to unforeseen conflicts with his schedule." (SAC, TT 4, 21, 26). He further claims that, had he known he could cancel his Class, he would have done so, thereby recovering his $30. It is therefore plain that, even in the event the Plaintiff could establish a violation of the HSSCL, (which he cannot), his only monetary remedy is the recovery of actual damages—the $30 he paid—with the potential for it to be trebled under circumstances that are not applicable here. See Cal Civ. Code § 1812.94(a). The Plaintiff seeks to represent a putative class of similarly-situated SoulCycle customers—i.e., those who purchased a Class (or Classes), but, within five days, supposedly learned that they would be unable to use their Class (or Classes) within the time allotted and failed to cancel or otherwise seek a refund for those unused Classes within the five-day statutory period. SoulCycle has already produced to the Plaintiff summary information that lists out not just these customers, but every rider with a California address who bought a Class that later expired unused during the statute of limitations period. Specifically, SoulCycle -11- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 15 of 57 Page ID #:736 N E W M E Y E R & D I L L I O N L L P produced a 607-page spreadsheet that lists the "Rider ID" of its customers with at least one California address,2 the number of Classes each of those customers purchased during the relevant time frame, and the number of Classes and associated value of Classes that each of those customers did not use (the "Spreadsheet").3 This Spreadsheet therefore provides Plaintiff with the (i) total number of Classes that individuals with at least one California address paid for but did not ultimately use and (ii) the total dollars paid by those customers for the Classes that they did not ultimately use. Again, this information is over-inclusive and encompasses more than just the putative class that Plaintiff seeks to represent, because it includes riders (1) who were well aware of their right to cancel, (2) who had no conflict arise during the first five days after purchase, (3) who chose not to use their Classes for reasons unrelated to the right to cancel and (4) who were not Californian residents nor intended to ride in California. In regard to the third point, it should be noted that SoulCycle sells Class packages that permit riders to use Classes for up to one year; as a result, there is necessarily a group of individuals who, even if a conflict arose within five days, that conflict was insufficient to render it impossible for those riders to use their Classes during the entire year, and there is also necessarily a group of riders who had every intention to use their Classes on days one through five, but for some reason ended up not using all of their Classes. Interrogatories Nos. 1, 2, 4, and 5 seek, however, additional information from 2 The "Rider ID" is a unique number assigned by SoulCycle to each customer for internal tracking purposes. It is used by SoulCycle in lieu of the customer's personal information, such as his or her name. It should be noted that the Spreadsheet is likely over-inclusive because the fact that a customer provided a California address to SoulCycle at some time does not mean that that the customer (i) actually resided in California when he or she made the purchase or (ii) intended to use their Class in California. 3 Upon request, SoulCycle can make a copy of the Spreadsheet available to Your Honor for review. SoulCycle refrained from providing it as an exhibit in support of its opposition due to its size and because it would require a separate application to seal given the confidential information included therein. -12- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 16 of 57 Page ID #:737 N E W M E Y E R & D I L L I O N L L P SoulCycle. For example, Interrogatories Nos. 1 and 2 seek information about "all" contracts and sales made by SoulCycle for "cycling classes in California," and Interrogatories Nos. 4 and 5 seek "all sales revenues and gross profits" from those contracts and sales. Stated otherwise, in addition to those customers similarly- situated to the Plaintiff, the Plaintiff is also seeking information about SoulCycle customers who, unlike the Plaintiff, did in fact use every single one of their purchased Classes and received the benefit of their bargain. Those individuals have not been harmed: they got exactly what they paid for. And equity dictates that such individuals cannot now get a windfall. The Plaintiff has not met his burden in demonstrating why this additional information about individuals who suffered no harm is relevant to either his HSSCL or UCL claims. See ExxonMobil Oil Corp. v. S. California Edison Co., Case No. CV 12-10001-GHK (VBKx), 2014 WL 12629698, at *3 (C.D. Cal. Apr. 3, 2014) ("The party seeking to compel discovery bears the initial burden of establishing that the request is relevant."). The Plaintiff hangs his hat on California Civil Code § 1812.91, which provides: "Any contract for health studio services which does not comply with the applicable provisions of this title shall be void and unenforceable as contrary to public policy." Based on that provision, the Plaintiff argues that he is "seeking relief in this action related to all of the contacts and all of the sales between SoulCycle and its California customers." (Emphasis omitted). The Plaintiff has not, however, harmonized § 1812.91 with his position by articulating what "relief' he is seeking for the allegedly "void" contracts that were nonetheless fully performed. For example, whereas the HSSCL provides for actual damages, the Plaintiff has not articulated any basis to establish that a customer who took all of his or her Classes suffered actual damages even assuming arguendo that the underlying contract was void. Moreover, whereas the UCL provides for equitable remedies -13- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 17 of 57 Page ID #:738 N E W M E Y E R & D I L L I O N L L P such as restitution, the Plaintiff has not articulated any basis to establish that the value of the purported void class is less than a non-void class. See Adelman v. Spark Networks, Ltd., Nos. B195332, B1970972008, WL 2108667, at *7 (Cal. Ct. App. May 20, 2008) ("We reject [Plaintiff s] argument that services provided under a void contract necessarily have a lesser value to the subscriber than services provided under a valid contact. [Plaintiff] does not explain why the services he received were any less valuable because of the omission from the contact of certain allegedly required provisions that he never sought to invoke and that were of no value to him.").4 In other words, any recovery by these customers would constitute an improper windfall. SoulCycle squarely raised its concerns on this issue to the Plaintiff multiple times. First, in its July 31, 2017 letter to the Plaintiff, SoulCycle inquired as follows: [W]hat is the relevance of information relating to all revenue generated from sales in California? In the event that the Plaintiff were successful in his claims,. . . he would not be able to recover "all sales revenue" derived from California sales, as those riders who used their classes got exactly what they paid for and thus were not harmed. Finally, SoulCycle objects to the request that it provide information regarding its "gross profits." Why does the Plaintiff need such information? Please explain why you contend gross profit information to be relevant. (Hauptman Decl., Ex. A, 7/31/17 Letter at 4-5). The Plaintiff never served a written response to the July 31, 2017 letter. 4 While District courts in California "generally decline to consider an unpublished California decision when there is other published persuasive or binding authority on which to rely" . . ."when there is no other binding authority on which to rely, federal courts may consider unpublished California opinions as persuasive authority." Am. Zurich Insurance Co. v. Country Villa Service Corp., 2015 WL 4163008, at *12 n.24 (citing Empirs Ins. of Wausau v. Granite St. Ins. Co., 330 F.3d 1214, 1220 n. 8 (9th Cir.2003) (stating that the Court "may consider unpublished state decisions, even though such opinions have no precedential value" and that unpublished opinions, "while certainly not dispositive of how the California Supreme Court would rule," may still "lend[ ] support" to a certain position regarding California law).) Because SoulCycle's research has not located any other relevant authority addressing this issue, it is proper for the Court to consider this unpublished decision in its analysis. - 14 - 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 18 of 57 Page ID #:739 N E W M E Y E R & D 1 L L I 0 N L L P Second, in an August 8, 2017, e-mail, SoulCycle stated as follows: Our research has disclosed no circumstance supporting a refund to riders under the HSSCL or otherwise in a situation where they took the class purchased. This is not surprising as such a remedy would obviously result in unjust enrichment, indeed a windfall, to the putative class. So, we think your requests Numbers 1 and 2 are overbroad and designed to harass our client. If you have cases where a court has awarded a refund in a case where the defendant has performed and the plaintiff has obtained the consideration purchased, even under an alleged "void" contract, please send them. (Id., Ex. A, 8/8/17 E-mail from S. Weiss). The Plaintiff did not respond with any authority, but instead stated that he would not "debate you [SoulCycle] on the underlying merits of Plaintiffs' claims or the availability of the relief sought in this action[.]" (Id.). Third, in an August 10, 2017 e-mail, SoulCycle again reiterated its request for the Plaintiff to provide authority supporting its requests pursuant to the Local Civil Rules: In the meet and confer process, it is typical for the moving side to share the cases he thinks supports his position. Indeed, Local Rule 37-1 provides that a letter requesting a meet and confer shall providq any legal authority which the moving party believes is dispositive of the dispute as to that issue/request." And, of course, if there is any case law supporting your contention, you will have to provide that authority in the 'plaintiff's section of the Joint Stipulation required by Local Rule 37-2.1. Because you will have to share your authorities — if they exist — in the jojnt stipulation, why wont you provide them now? We may be able to resolve this dispute if you could provide support for your position. Absent some authority that indicates that courts award damages to customers who got the full benefit of their bargain, we decline to facilitate a fishing expedition. (Id., Ex. A, 8/10/17 E-mail from S. Weiss). In response, the Plaintiff stated that he was "aware of no requirement that Plaintiff would need to provide SoulCycle with legal authorities or any other support for his claims and damages[.]" (Id.). The Plaintiff then proceeded to file this Joint Stipulation, which also fails to cite any authority on this issue. -15- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 19 of 57 Page ID #:740 N E W M E Y E R & D I L L 1 O N L L P The information requested in Interrogatories Nos. 1, 2, 4, and 5 is therefore not relevant to the extent it seeks to compel SoulCycle to produce any information about its customers who bought Classes, used all of them, and thus and received the full benefit of their bargain. Not only is this information not relevant, but providing the detailed level of information that the Plaintiff seeks would be unduly burdensome, as explained in the next section. B. INTERROGATORY NOS. 3 & 6 INTERROGATORY NO. 3: DESCRIBE IN DETAIL all contracts between YOU and YOUR customers for cycling classes in California entered into in the past five years, and all sales of cycling classes in California in the past five years, where the customer never registered for or attended a class. For purposes of this interrogatory, please provide, without limitation, the name, mailing address, telephone number and e- mail address for each customer, the type of contract, the number of classes purchased, the date the contract was entered or purchase was made and the amount of money paid by the customer. AMENDED RESPONSE TO INTERROGATORY NO. 3: SoulCycle objects to this Interrogatory on the grounds that it is premature in that it requests detailed individualized information pertaining to each putative class member although a class has not been certified. Particularly given the intrusive and burdensome nature of the individualized classwide information Plaintiff seeks, Plaintiff's desire for this discovery at this time is outweighed by the burden of responding. SoulCycle objects to this Interrogatory as a premature contention interrogatory and on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, compound, and not proportional to the needs of the case. SoulCycle further objects on the grounds that it seeks information, documents or things protected by a third-party right to privacy and constitutes an - 16 - 7099528 1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 20 of 57 Page ID #:741 N E W M E Y E R & D I L L I O N L L P improper fishing expedition. Subject to and without waiving the foregoing objections, SoulCycle states that, subject to the execution of an appropriate protective order, SoulCycle will produce summary financial information regarding the revenue it has derived from the sale of Classes in California that riders have not used during the relevant period, to the extent that it is able to do so. SoulCycle states that it is unable definitively to identify which riders purchased their Class or Classes for use in California, rather than for use in another jurisdiction. INTERROGATORY NO. 6: DESCRIBE IN DETAIL all sales revenue and gross profits generated and/or received by YOU from contracts with YOUR customers for cycling classes in California in the past five years, and all sales of cycling classes in California in the past five years, where the customer never registered for or attended a class. AMENDED RESPONSE TO INTERROGATORY NO. 4 'SIC,: SoulCycle objects to this Interrogatory on the grounds that it is premature in that it requests detailed individualized information pertaining to each putative class member although a class has not been certified. Particularly given the intrusive and burdensome nature of the individualized classwide information Plaintiff seeks, Plaintiff's desire for this discovery at this time is outweighed by the burden of responding. SoulCycle objects to this Interrogatory on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, compound, and not proportional to the needs of the case. SoulCycle further objects on the grounds that it seeks irrelevant information and a legal conclusion. Subject to and without waiving the foregoing objections, SoulCycle states that, subject to the execution of an appropriate protective order, SoulCycle will produce summary financial information regarding the revenue it has derived from the sale of Classes in California that riders have not used during the relevant period, to the extent that it is able to do so. SoulCycle states that it is unable definitively to -17- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 21 of 57 Page ID #:742 N E W M E Y E R & D I L L I O N L L P identify which riders purchased their Class or Classes for use in California, rather than for use in another jurisdiction. PLAINTIFF'S POSITION: In response to Interrogatory Nos. 3 & 6, SoulCycle has produced a 600-page summary/chart purportedly identifying the revenue it has generated from August 25, 2012 through February 10, 2017 for all contracts and sales with California customers where the customer did not use all of the classes purchased. However, such information provided by SoulCycle is nevertheless incomplete. At the outset, the summary/chart provided by SoulCycle does not identify the dates for each contract or purchase. Moreover, SoulCycle neglects to provide any information peiiiiitting identification of the customers, determination of the total contract payments made by the customer, reference to the number of contracts entered into by the customer (as opposed to only the number of classes purchased), and so on. SoulCycle's objections that the interrogatories are premature because Plaintiff has not yet certified a class are without merit. Plaintiff is permitted to perform pre-certification discovery relevant to substantiating the class allegations or satisfying the specific criteria for a class action under Rule 23. (See, e.g., Vallabharpurapu v. Burger King Corp., 276 F.R.D. 611 (N.D. Cal. 2011).) These interrogatories are directly related to substantiating Plaintiff's claims in this case, as well as satisfying the requirements of Rule 23, such as, but not limited to, numerosity, commonality, and typicality, all of which is within the scope of permissible discovery prior to class certification. Additionally, SoulCycle's objections based upon the purported privacy rights of its customers are moot since there is now in place a stipulated protective order; and SoulCycle's contention that it is unable to determine the jurisdiction for which any customer purchased their classes is also moot as counsel for parties have agreed that SoulCycle need only produce information, from the relevant time period, for customers with a California billing address. -18- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 22 of 57 Page ID #:743 N E W M E Y E R & D I L L I O N L L P Accordingly, it is requested that SoulCycle be compelled to provide supplemental responses to these interrogatories. SOULCYCLE'S POSITION: The Plaintiff's objections to SoulCycle's responses to Interrogatories Nos. 3 and 6 are premised on the information contained in the Spreadsheet. As explained above, the Spreadsheet lists the "Rider ID" of its riders with at least one California address, the number of Classes each of those riders purchased during the relevant time frame, and the number of Classes and associated value of Classes that each of those individuals did not use. The additional information the Plaintiff seeks to compel is not relevant or "proportional to the needs to the case," and/or the "burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(1). The Plaintiff first seeks to compel "information permitting identification of the customers," which presumably means their name and address. The Plaintiff has not articulated why the "Rider ID" listed in the Spreadsheet is insufficient for their purposes. In other words, it is unclear why the Plaintiff supposedly needs the associated customer's name and addresses. What does the Plaintiff intend to do with this information? Does the Plaintiff intend to contact SoulCycle's riders? If so, that is troubling for SoulCycle given its utmost desire and responsibility to protect the privacy of its riders (and to avoid a situation in which its riders receive unsolicited phone calls from the Plaintiff's lawyers). To the extent that the Plaintiff is attempting to embark on a fishing expedition to obtain the names of SoulCycle's riders, that effort should be rejected. See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004) ("District courts need not condone the use of discovery to engage in 'fishing expeditions.'") (citation omitted); Douglas v. Talk Am., Inc., 266 F.R.D. 464, 467 (C.D. Cal. 2010) (denying motion to compel because plaintiff was merely attempting "to use the discovery process to go 'fishing' through defendant's list of customers to find a new class - 19 - 7099528 1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 23 of 57 Page ID #:744 N E W M E Y E R & D I L L I O N L L P representative"); Dziennik v. Sealift, Inc., 2006 WL 1455464, at *1 (E.D.N.Y. May 23, 2006) ("Courts have ordinarily refused to allow discovery of class members' identities at the pre-certification stage out of concern that plaintiffs' attorneys may be seeking such information to identify potential new clients, rather than to establish the appropriateness of certification") (citing, inter alia, Hatch v. Reliance Ins. Co., 58 F.2d 409, 416 (9th Cir.1985)); cf. Briggs v. Bd. of Trustees Columbus State Cmty. Coll., 2009 WL 2047899, at *3 (S.D. Ohio July 8, 2009) ("Plaintiff s request for the names of every student taught by [defendant] in the last four years is more of a fishing expedition than a legitimate discovery request, and defendants need not respond to that request."). Plaintiff next seeks to compel more detailed information about the underlying purchases referenced in the Spreadsheet: Total Contract Payments Made by the Customer: The Spreadsheet identifies the number of Classes each of the identified riders purchased during the relevant time frame, but does not identify the revenue associated with all of those Classes. Instead, the Spreadsheet identifies only the revenue associated with the Classes that each identified rider did not ultimately use. SoulCycle did not disclose the revenue associated with those Classes that the rider did use because that information is not relevant. (See supra Responses to Interrogatories Nos. 1, 2, 4, and 5). Reference to the Number of Contracts Entered Into: A SoulCycle rider may enter into a contract with SoulCycle for the purchase of a single Class or multiple Classes to be used within a range of one month to one year. Thus, if a SoulCycle rider purchased but did not then use ten Classes as reflected in the Spreadsheet, that may be either ten or less separate contracts—i. e. two contracts for five classes or ten contracts for a single Class. At issue in this case are those Classes that customers like the Plaintiff purchased but realized within five days that they could not use, and then did not cancel the Classes and did not use them. What is delineated in the Spreadsheet is -20- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 24 of 57 Page ID #:745 N E W M E Y E R & D I L L I O N L L P thus over-inclusive, as it includes riders who would never have canceled within five days. The Plaintiff has not articulated why further identifying information such as the corresponding number of contracts is relevant. The only conceivable instance in which the number of contracts would be relevant is if the remedy sought by the Plaintiff was tied to a per contract violation. That is not the case here because the Plaintiff cannot obtain any such remedy.5 The Dates of Each Contract or Purchase: SoulCycle represented to the Plaintiff in its cover letter enclosing the Spreadsheet that the Spreadsheet contains "revenue derived from unused Classes from August 25, 2012 to February 10, 2017 where the rider provided a California address." (Marino Decl., Ex. 3, 8/4/17 Letter at 1). That is the applicable time frame at issue, and the Plaintiff has not articulated why additional temporal information is required. Moreover, because the Plaintiff seeks the date of each "contract or purchase"—as opposed to the date of each of the relevant Classes SoulCycle incorporates by reference its objections that infoiniation about contracts is not relevant. C. INTERROGATORY NOS. 8-10 INTERROGATORY NO. 8: Did YOU disclose to PLAINTIFF the length of the term of his contract with YOU for cycling classes in at least 14-point type in the written contract? If YOUR answer to this interrogatory is in the affirmative, IDENTIFY ALL DOCUMENTS in which the length of the term of the contract was disclosed to PLAINTIFF and DESCRIBE IN DETAIL how and in what manner the length of the term of the contract was disclosed to PLAINTIFF. AMENDED RESPONSE TO INTERROGATORY NO. 5 ISIC1: SoulCycle objects to this Interrogatory on the grounds that it is compound and 5 Whereas the UCL provides for a "civil penalty for each violation" not to exceed $2,500, that remedy is only available in an action brought by the Attorney General of the State of California (or other appropriate prosecutor). See Cal. Bus. & Prof. Code § 17206(a), (b). - 21 - 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 25 of 57 Page ID #:746 N E W M E Y E R & D I L L I O N L L P seeks a legal conclusion. Subject to and without waiving the foregoing objections, SoulCycle states that, pursuant to Federal Rule of Civil Procedure 33(d), it will produce all documents consisting of the contract between SoulCycle and Plaintiff. INTERROGATORY NO. 9: Did YOU disclose the following language in YOUR written contract with PLAINTIFF for cycling classes: "You, the buyer, may cancel this agreement at any time prior to midnight of the fifth business day of the health studio after the date of this agreement, excluding Sundays and holidays. To cancel this agreement, mail or deliver a signed and dated notice, or send a telegram which states that you, the buyer, are canceling this agreement, or words of similar effect"? If YOUR answer to this interrogatory is in the affirmative, IDENTIFY ALL DOCUMENTS in which this language was disclosed to PLAINTIFF and DESCRIBE IN DETAIL how and in what manner this language was disclosed to PLAINTIFF. AMENDED RESPONSE TO INTERROGATORY NO. 6 [SICJ: SoulCycle objects to this Interrogatory on the grounds that it is compound and seeks a legal conclusion. Subject to and without waiving the foregoing objections, SoulCycle states that, pursuant to Federal Rule of Civil Procedure 33(d), it will produce all documents consisting of the contract between SoulCycle and Plaintiff. INTERROGATORY NO. 10: Did YOU include the following language, or similar language, in YOUR written contract with PLAINTIFF for cycling classes: "if, by reason of death or disability, the person agreeing to receive services is unable to receive all services for which he has contracted, he and his estate shall be relieved from the obligation of making payment for services other than those received prior to death or the onset of disability, and that if he has prepaid any sum for services, so much of the such sum as is allocable to services he has not taken shall be promptly refunded to him or his -22- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 26 of 57 Page ID #:747 N E W M E Y E R & D I L L I O N L L P representative"? If YOUR answer to this interrogatory is in the affirmative, IDENTIFY ALL DOCUMENTS in which this language was disclosed to PLAINTIFF and DESCRIBE IN DETAIL how and in what manner this language was disclosed to PLAINTIFF. AMENDED RESPONSE TO INTERROGATORY NO. 7 WO: SoulCycle objects to this Interrogatory on the grounds that it is compound, premature, and seeks a legal conclusion. SoulCycle further objects to this Interrogatory on the grounds that it is not relevant to any claim properly in this case because Plaintiff does not allege that he suffered from any disability and thus he lacks standing to maintain claims on behalf of persons unable to receive health tudio services due to death or disability. Subject to and without waiving the foregoing objections, SoulCycle states that, pursuant to Federal Rule of Civil Procedure 33(d), it will produce all documents consisting of the contract between SoulCycle and Plaintiff. PLAINTIFF'S POSITION: Interrogatory Nos. 8-10 are directly relevant to the central issues involved in this lawsuit as they seek information pertaining to the specific violations of the HSSCL alleged by Plaintiff. Moreover, each of the interrogatories simply calls for SoulCycle to answer in the affirmative or negative. Notwithstanding, in response to each of these interrogatories, SoulCycle has not provided a "Yes" or a "No" answer, but has instead indicated that it would produce all documents that constitute the contract between SoulCycle and Plaintiff (which, as explained below, have not otherwise even been produced to date by SoulCycle). SoulCycle's failure to answer in the affirmative or negative in response to these interrogatories is improper, and SoulCycle should therefore be compelled to provide supplemental responses. (See, e.g., Satchell v. Fedex Express, No. C 03-02659 SI, 2006 WL 2884318, at *5 (N.D. Cal. Oct. 10, 2006); Rogers v. Emerson, No. 1:12CV01827 AWI DLB, 2013 WL 6383239, at *2 (E.D. Cal. Dec. 4, 2013).) - 23 - 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 27 of 57 Page ID #:748 N E W M E Y E R & D I L L I O N L L P SOULCYCLE'S POSITION: Providing documents responsive to Interrogatories Nos. 8-10 is a proper response pursuant to Federal Rule of Civil Procedure 33(d). No further written response is required by SoulCycle. The case-law cited by the Plaintiff does not provide otherwise. First, in Satchell, the interrogatories at issue requested the responding party to answer whether documents on a certain topic currently "exist' or "did exist." 2006 WL 2884318, at *5. The responding party answered only whether documents currently exist, and the court required the responding party to supplement because its answer was "incomplete because it does not answer whether any such documents have ever existed; if such documents did exist, defendant would also be required to answer[.]" (Id.). It is premature to conclude that SoulCycle's responses to Interrogatories Nos. 8-10 are similarly "incomplete." Such a dispute will be ripe only after SoulCycle completes its document production (which will be further discussed below). Second, in Rogers, the interrogatories were straightforward questions that did not seek additional responsive information depending on whether the answer was "Yes" or "No." 2013 WL 6383239, at *1-2 ("Plaintiff is correct that the interrogatories, as written, simply require a 'yes' or no answer. They do not request production of any related documents."). Interrogatories Nos. 8-10 are distinguishable from those in Rogers in that they do seek additional responsive information. D. INTERROGATORY NOS. 22-25 INTERROGATORY NO. 22: DESCRIBE IN DETAIL YOUR company policy(ies) RELATED TO the following: a. Responding to requests from California customers for a refund for cycling classes sold by YOU or contract payments made to YOU; b. Responding to requests from California customers for an extension of time to register for or attend cycling classes,. and -24- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 28 of 57 Page ID #:749 N E W M E Y E R & D I L L I O N L L P c. Responding to requests or attempts from California customers to cancel contracts for cycling classes. For purposes of this interrogatory, please provide, without limitation, the current company policy, and, if there have been any revisions, modifications, amendments or other changes to the particular policy, identify all such changes over the past five years. AMENDED RESPONSE TO INTERROGATORY NO. 19 fSIC1: SoulCycle objects to this Interrogatory on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, compound, and not proportional to the needs of the case. SoulCycle further objects on the ground that it seeks a legal conclusion. SoulCycle further objects on the ground that this Interrogatory, and all of its subparts, exceeds the number of interrogatories permitted under Federal Rule of Civil Procedure 33(a)(1). INTERROGATORY NO. 23: DESCRIBE IN DETAIL all lawsuits filed against YOU by YOUR California customers in the past five years. For purposes of this interrogatory, please provide, without limitation, the name of each customer, the date that the lawsuit was filed, the state and county in which the lawsuit was filed, the general nature of the claims in the lawsuit (e.g., contract, personal injury, fraud) and the current status of the lawsuit. AMENDED RESPONSE TO INTERROGATORY NO. 20 ISIC1: SoulCycle objects to this Interrogatory on the grounds that it is overly broad, not sufficiently limited in time and scope, compound, and is not proportional to the needs of the case. SoulCycle further objects to this Interrogatory to the extent it seeks Privileged Information. SoulCycle further objects on the ground that this Interrogatory, and all of its subparts, exceeds the number of interrogatories permitted under Federal Rule of Civil Procedure 33(a)(1). -25- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 29 of 57 Page ID #:750 N E W M E Y E R & D I L L I O N L L P INTERROGATORY NO. 24: IDENTIFY ALL PERSONS with knowledge of the following: a. YOUR defenses to the allegations in Plaintiff's Complaint in this b. YOUR process of contracting with customers for cycling classes in California,. c. YOUR process for selling cycling classes to California customers; d. YOUR sales revenue and gross profits generated and/or received by YOU from contracts for and sales of cycling classes in California; e. YOUR customer service procedures and policies related to California customers,. f. YOUR company policy(ies) regarding responding to requests and providing refunds for purchased cycling classes or contract payments; g. YOUR company policy(ies) regarding responding to requests and providing extensions of time to register for or attend cycling classes,. h. YOUR company policy(ies) regarding responding to requests to cancel or cancelling contracts for cycling classes with California customers,. and i. YOUR storage and maintenance of customer information and contracts with YOUR California customers. AMENDED RESPONSE TO INTERROGATORY NO. 21 ISICJ: SoulCycle objects to this Interrogatory on the grounds that it is premature in that it requests detailed individualized information pertaining to each putative class member although a class has not been certified. Particularly given the intrusive and burdensome nature of the individualized classwide information Plaintiff seeks, Plaintiff's desire for this discovery at this time is outweighed by the burden of responding. SoulCycle objects to this Interrogatory on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, compound, and not proportional to the needs of the case. SoulCycle further objects to this - 26 - 7099528 1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 30 of 57 Page ID #:751 N E W M E Y E R & D I L L I O N L L P Interrogatory to the extent it seeks Privileged Information. SoulCycle objects on the grounds that this Interrogatory seeks trade secrets and other proprietary business information. SoulCycle further objects on the ground that this Interrogatory exceeds the number of interrogatories permitted under Federal Rule of Civil Procedure 33 (a) (1). INTERROGATORY NO. 25: Is YOUR response to each Request for Admission served concurrently with these Interrogatories an unqualified admission? If not, for each response that is not an unqualified admission.. a. State the number of the request,. b. State all facts upon which YOU base YOUR response; c. State the names, addresses and telephone numbers of all PERSONS who have knowledge of those facts; and d. IDENTIFY ALL DOCUMENTS that support YOUR response. AMENDED RESPONSE TO INTERROGATORY NO. 22 [SIC]: SoulCycle objects to this Interrogatory on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, compound, and not proportional to the needs of the case. SoulCycle further objects on the ground that this Interrogatory, and all of its subparts, exceeds the number of interrogatories permitted under Federal Rule of Civil Procedure 33(a)(1). PLAINTIFF'S POSITION: SoulCycle has failed to provide any substantive responses to Interrogatory Nos. 22-25. SoulCycle contends that it does need to respond to Interrogatory Nos. 22- 25 because Plaintiff's interrogatories, and all of their subparts, exceed the number of interrogatories permitted under Rule 33(a)(1). SoulCycle's contentions, however, are incorrect. Although Rule 33(a)(1) does not define the term "discrete subparts," Courts have construed it to mean that "interrogatory subparts are to be counted as one -27- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 31 of 57 Page ID #:752 N E W M E Y E R & D I L L I O N L L P interrogatory ... if they are logically or factually subsumed within and necessarily related to the primary question." (Safeco ofAm. v. Rawstron, 181 F.R.D. 441, 445 (C.D. Cal. 1998) (citation omitted); Synopsys, Inc. v. ATopTech, Inc, 319 F.R.D. 293, 294 (N.D. Cal. 2016).) Although several of Plaintiff's interrogatories contain subparts, such subparts are, as a matter of law, to be counted as one interrogatory since each of the subparts are logically and factually subsumed within and necessarily related to the primary question. SoulCycle has unilaterally and incorrectly determined that Plaintiff's interrogatories, including their subparts, exceed the allowable number of interrogatories permitted by the Rules, and thereby refused to provide any substantive responses to these relevant and proper discovery requests. Accordingly, SoulCycle should be compelled to provide supplemental responses. SOULCYCLE'S POSITION: A review of the Plaintiff's interrogatories as a whole demonstrates that Plaintiff has compacted multiple questions-within-questions into his 25 interrogatories. Interrogatories Nos. 22-25 are prime examples of an abuse of the 25 interrogatory limit, and SoulCycle stands on its objections pursuant to Federal Rule of Civil Procedure 33(a)(1) for the reasons stated below. Rule 33(a)(1) provides that a "party may serve on any other party no more than 25 written interrogatories, including all discrete subparts." Courts in the Ninth Circuit generally hold that if the subparts are "logically or factually subsumed within and necessarily related to the primary question," they can be treated as a single interrogatory. See Safeco, 181 F.R.D. at 444. If not, they will be treated as separate interrogatories, regardless of how they are labeled by the propounding party. Interrogatory No. 22: The Plaintiff seeks "company policies" related to: (a) "a refund for cycling classes"; (b) "an extension of time to register for or attend"; and (c) "requests or attempts . . . to cancel contracts for cycling classes." In -28- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 32 of 57 Page ID #:753 N E W M E Y E R & D I L L I O N L L P addition, for each of those three subparts, the Plaintiff further seeks "the current company policy and, if there has been any revisions, modifications, amendments, or other changes to the particular policy, identify all such changes over the past five years." Subparts (a), (b), and (c) are not "factually subsumed" because they cover factually distinct topics and should therefore be counted as three interrogatories. In other words, the Plaintiff should have drafted one interrogatory for the information requested in (a) plus any related historical information as to that policy, a second interrogatory for the information requested in (b) plus any related historical information for that policy, and third interrogatory for the information requested in (c) plus any related historical information for that policy. Interrogatory No. 23: The Plaintiff seeks information about "all lawsuits" filed by its California customers in the past five years without limitation to subject matter of the lawsuit. At the outset, the Plaintiff has not establish why "all lawsuits"—such as employment disputes—are even relevant to his HSSCL or UCL claims. They are not and the motion to compel should be denied on that basis alone. As to the subparts, in Trevino v. ACB American, Inc., 232 F.R.D. 612, 616 (N.D. Cal. 2006), the court found the following interrogatory contained factually subsumed subparts so as to count as a single interrogatory: Identify by caption, court, civil action number, and result of all litigation filed against you alleging violations of the Fair Debt Collection Practices Act. Interrogatory No. 23 tracks the interrogatory in Trevino, excepted that Trevino was limited to the statutory scheme at issue in that case, whereas Interrogatory No. 23 is without such limitation. Had the Plaintiff framed Interrogatory No. 23 to be limited to alleged violations of the HSSCL or UCL, then it would be proper under the rationale of Trevino. The Plaintiff has not, however, done so. Interrogatory No. 24: The Plaintiff seeks the identity of individuals with knowledge on nine separate topics. SoulCycle already identified in its Initial -29- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 33 of 57 Page ID #:754 N E W M E Y E R & D I L L I O N L L P Disclosures those individuals with knowledge relevant to the claims and defenses in this litigation. Thus, in addition to its subparts objection, the information requested in Interrogatory No. 24 has already been provided to the Plaintiff. Interrogatory No. 25: The Plaintiff seeks four separate pieces of information for each response to the Plaintiff's Requests for Admissions ("RFAs") that "is not an unqualified admission." The Plaintiff served 13 RFAs, and SoulCycle denied (at least in part) each one. (See Marino Decl., Ex. 4, RFAs). Thus, Interrogatory No. 25 contains 13 separate subparts. See Safeco, 181 F.R.D. at 446 ("an interrogatory that asks the responding party to state facts, identify witnesses, or identify documents supporting the denial of each request for admission contained in a set of requests for admissions usually should be construed as containing a subpart for each request for admission contained in the set"); L.L. Benas v. Baca, 2003 WL 21697750, at *2 (C.D. Cal. July 16, 2003) (agreeing with Safeco court); see also Nguyen v. Lowe's Home Centers, LLC, 2015 WL 12672153, at *3 (S.D. Cal. Nov. 18, 2015) (agreeing with Safeco court); McClellan v. Kern Cnty. Sheriff's Office, 2015 WL 4598871, at *7 (E.D. Cal. July 28, 2015) (denying motion to compel and finding that "[w]here an interrogatory asks the responding party to provide the basis for denials of requests for admission, there is a presumption that each of the underlying requests for admission counts as a separate interrogatory"); Subject to and without waiving SoulCycle's other objections, if Plaintiff is willing to re-draft Interrogatories Nos. 22-25 to be narrowly tailored and on relevant topics, SoulCycle is willing to respond those revised interrogatories. 3. REQUESTS FOR PRODUCTION IN DISPUTE A. REQUESTS FOR PRODUCTION NOS. 2-6, 15-17 REOUEST FOR PRODUCTION NO. 2: All DOCUMENTS that YOU gave to PLAINTIFF at the time he signed or entered into a contract with YOU for cycling classes. - 30 - 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 34 of 57 Page ID #:755 N E W M E Y E R & D I L L I O N L L P AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 2: SoulCycle objects to this Request on the ground that it seeks a legal conclusion. Subject to and without waiving the foregoing objections, and subject to the execution of an appropriate protective order, SoulCycle will produce responsive and non privileged documents, if any. REQUEST FOR PRODUCTION NO. 3: All DOCUMENTS that constitute the written contract between YOU and PLAINTIFF for cycling classes. AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 3: SoulCycle objects to this Request on the ground that it seeks a legal conclusion. Subject to and without waiving the foregoing objections, and subject to the execution of an appropriate protective order, SoulCycle will produce responsive and non privileged documents, if any. REQUEST FOR PRODUCTION NO. 4: All DOCUMENTS that YOU gave to PLAINTIFF at the time he signed or entered into a contract with YOU for cycling classes that disclose the length of the term of the contract. AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 4: SoulCycle objects to this Request on the ground that it seeks a legal conclusion. Subject to and without waiving the foregoing objections, and subject to the execution of an appropriate protective order, SoulCycle will produce responsive and non privileged documents, if any. REQUEST FOR PRODUCTION NO. 5: All DOCUMENTS that YOU gave to PLAINTIFF at the time he signed or entered into a contract with YOU for cycling classes that disclose the following language: "You, the buyer, may cancel this agreement at any time prior to midnight of the fifth business day of the health studio after the date of this agreement, excluding Sundays and holidays. To cancel this agreement, mail or deliver a signed and dated - 31 - 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 35 of 57 Page ID #:756 N E W M E Y E R & D I L L I O N L L P notice, or send a telegram which states that you, the buyer, are canceling this agreement, or words of similar effect." AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 5: SoulCycle objects to this Request on the ground that it seeks a legal conclusion. Subject to and without waiving the foregoing objections, and subject to the execution of an appropriate protective order, SoulCycle will produce responsive and non privileged documents, if any. REQUEST FOR PRODUCTION NO. 6: All DOCUMENTS that YOU gave to PLAINTIFF at the time he signed or entered into a contract with YOU for cycling classes that disclose the following, or similar, language: "if, by reason of death or disability, the person agreeing to receive services is unable to receive all services for which he has contracted, he and his estate shall be relieved form the obligation of making payment for services other than those received prior to death or the onset of disability, and that if he has prepaid any sum for services, so much of the such sum as is allocable to services he has not taken shall be promptly refunded to him or his representative." AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 6: SoulCycle objects to this Request on the ground that it seeks a legal conclusion. Subject to and without waiving the foregoing objections, and subject to the execution of an appropriate protective order, SoulCycle will produce responsive and non privileged documents, if any. REQUEST FOR PRODUCTION NO. 15: All Frequently Asked Questions pages posted on YOUR website in the past five years. AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 15: SoulCycle further objects to this Request on the grounds that it is premature in that it requests documents pertaining to putative class members although a class has not been certified. Particularly given the burdensome nature of producing the - 32 - 7099528 I JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 36 of 57 Page ID #:757 N E W M E Y E R & D I L L 1 O N L L P classwide documents the plaintiff seeks, discovery into the merits of the dispute at this time is outweighed by the burden of production. SoulCycle objects to this Request on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, and not proportional to the needs of the case. Subject to and without waiving the foregoing objections, SoulCycle will produce responsive and non privileged documents, if any. REQUEST FOR PRODUCTION NO. 16: All Terms and Conditions pages posted on YOUR website in the past five years. AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 16: SoulCycle further objects to this Request on the grounds that it is premature in that it requests documents pertaining to putative class members although a class has not been certified. Particularly given the burdensome nature of producing the classwide documents the plaintiff seeks, discovery into the merits of the dispute at this time is outweighed by the burden of production. SoulCycle objects to this Request on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, and not proportional to the needs of the case. Subject to and without waiving the foregoing objections, SoulCycle will produce responsive and non privileged documents, if any. REQUEST FOR PRODUCTION NO. 17: All DOCUMENTS RELATED TO YOUR company policies and procedures for the past five years RELATED TO the following: a. Contracting with customers for cycling classes in California; b. Selling cycling classes in California; c. Handling and responding to requests from California customers for refunds of cycling classes sold by YOU or contract payments made to YOU; d. Handling and responding to requests from California customers for extensions of time to register for or attend a cycling class; e. Handling and responding to requests from California customers to cancel -33- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 37 of 57 Page ID #:758 N E W M E Y E R & D I L L I O N L L P contracts for cycling classes,. and f Customer service procedures, protocols, and guidelines. AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 17: SoulCycle objects to this Request on the ground that it seeks information not relevant to the dispute under Federal Rule of Civil Procedure 26. SoulCycle objects to this Request on the ground that it seeks trade secrets and other protected business documents. SoulCycle further objects to this Request on the grounds that it is premature in that it requests documents pertaining to putative class members although a class has not been certified. Particularly given the burdensome nature of producing the classwide documents the plaintiff seeks, discovery into the merits of the dispute at this time is outweighed by the burden of production. SoulCycle objects to this Request on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, compound, and not proportional to the needs of the case. SoulCycle further objects to the extent it seeks Privileged Information. SoulCycle further objects because it is unable in certain instances to determine whether a rider purchased Classes in California or for use in California and it would be unduly burdensome, if not impossible, for SoulCycle to identify definitively which of its riders actually bought their Classes for use in California, particularly in the instances in which Classes remain unused. Subject to and without waiving the foregoing objections, and subject to the execution of an appropriate protective order, SoulCycle will produce responsive and non privileged documents pertaining to categories c through f PLAINTIFF'S POSITION: SoulCycle stated in their amended responses to requests for production nos. 2-6 and 15-17 that "SoulCycle will produce responsive and non-privileged documents, if any." As of today's date, SoulCycle has failed to produce any documents responsive to these requests. SoulCycle should be ordered to produce such documents immediately. -34- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 38 of 57 Page ID #:759 N E W M E Y E R & D I L L I O N L L P SOULCYCLE'S POSITION: As recognized by the Plaintiff in its position above, SoulCycle stated that it will produce responsive documents "if any." SoulCycle has produced thousands of documents in response to the Plaintiff's requests and it is currently in the process of determining whether it has any additional responsive documents in its possession, custody, or control. Fact discovery is open for four more months—until January 19, 2018—and the parties have not otherwise set a date certain by which all documents are to be produced. If and when SoulCycle locates additional responsive documents to RFP Nos. 2-6 and 15-17, SoulCycle will promptly produce them to the Plaintiff. B. REQUESTS FOR PRODUCTION NOS. 13, 27 & 28 REQUEST FOR PRODUCTION NO. 13: All sales receipts for cycling classes sold to YOUR California customers in the past five years. AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 13: SoulCycle objects to this Request on the grounds that it is premature in that it requests documents pertaining to putative class members although a class has not been certified. Particularly given the burdensome nature of producing the classwide documents the plaintiff seeks, discovery into the merits of the dispute at this time is outweighed by the burden of production. SoulCycle objects to this Request on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, and not proportional to the needs of the case. SoulCycle further objects on the grounds that it seeks information, documents or things protected by a third party right to privacy, constitutes an improper fishing expedition, and seeks a legal conclusion. SoulCycle further objects because it is unable in certain instances to determine whether a rider purchased Classes in California or for use in California and it would be unduly burdensome, if not impossible, for SoulCycle to identify definitively which of its riders actually bought -35- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 39 of 57 Page ID #:760 N E W M E Y E R & D I L L I O N L L P their Classes for use in California, particularly in the instances in which Classes remain unused. REQUEST FOR PRODUCTION NO. 27: All DOCUMENTS RELATED TO sales revenue and gross profits generated and/or received by YOU from contracts with YOUR customers for cycling classes in California in the past five years. AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 27: SoulCycle objects to this Request on the grounds that it is premature in that it requests documents pertaining to putative class members although a class has not been certified. Particularly given the burdensome nature of producing the classwide documents the plaintiff seeks, discovery into the merits of the dispute at this time is outweighed by the burden of production. SoulCycle objects to this Request on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, compound, and not proportional to the needs of the case. SoulCycle further objects to the extent it seeks Privileged Information and a legal conclusion. SoulCycle further objects because it is unable in certain instances to determine whether a rider purchased Classes in California or for use in California and it would be unduly burdensome, if not impossible, for SoulCycle to identify definitively which of its riders actually bought their Classes for use in California, particularly in the instances in which Classes remain unused. Subject to and without waiving the foregoing objections, and subject to the execution of an appropriate protective order, SoulCycle will produce summary financial information regarding the revenue it has derived from the sale of Classes in California that riders have not used during the relevant period, to the extent that it is able to do so. SoulCycle states that it is unable definitively to identify whichwhich riders purchased their Class or Classes for use in California, rather than for use in another jurisdiction. -36- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 40 of 57 Page ID #:761 N E W M E Y E R & D I L L I O N L L P REQUEST FOR PRODUCTION NO. 28: All DOCUMENTS RELATED TO sales revenue and gross profits generated and/or received by YOU from the sale of cycling classes in California in the past five years. AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 28: SoulCycle objects to this Request on the grounds that it is premature in that it requests documents pertaining to putative class members although a class has not been certified. Particularly given the burdensome nature of producing the classwide documents the plaintiff seeks, discovery into the merits of the dispute at this time is outweighed by the burden of production. SoulCycle objects to this Request on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, compound, and not proportional to the needs of the case. SoulCycle further objects to the extent it seeks Privileged Information and a legal conclusion. SoulCycle further objects because it is unable in certain instances to determine whether a rider purchased Classes in California or for use in California and it would be unduly burdensome, if not impossible, for SoulCycle to identify definitively which of its riders actually bought their Classes for use in California, particularly in the instances in which Classes remain unused. Subject to and without waiving the foregoing objections, and subject to the execution of an appropriate protective order, SoulCycle will produce summary financial information regarding the revenue it has derived from the sale of Classes in California that riders have not used during the relevant period, to the extent that it is able to do so. SoulCycle states that it is unable definitively to identify which riders purchased their Class or Classes for use in California, rather than for use in another jurisdiction. PLAINTIFF'S POSITION: These requests call for the production of documents and information related to all contracts and all sales of cycling classes between SoulCycle and its California -37- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 41 of 57 Page ID #:762 N E W M E Y E R & D I L L I O N L L P 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 customers during the relevant time period (i.e., the past five years). Such information is directly relevant to the central issues in this action. However, in its responses to these requests, SoulCycle either fails to provide any substantive responses whatsoever or places inappropriate limitations on the information it will produce — i.e., only information related to contracts and sales where the customer did not use all of the classes purchased. SoulCycle's failure to provide responsive information, as well as its unilateral decision to limit the information to be produced in response to these requests, is improper. Plaintiff alleges that all of SoulCycle's contracts with its California customers during the class period are void and unenforceable as a result of its violations of the HSSCL. California Civil Code §1812.91 specifically provides that "[a]ny contract for health studio services which does not comply with the applicable provisions of this title shall be void and unenforceable as contrary to public policy." Plaintiff is therefore seeking relief in this action related to all of the contracts and all of the sales between SoulCycle and its California customers, which sales and contracts are all in violation of California law. SoulCycle must be required to produce information related to all of its contracts and sales during the relevant time period, and not just a limited subset of such contracts and sales. The information sought in these requests is exceedingly relevant and directly related to the claims made by Plaintiff and the relief sought against SoulCycle in this action. "Relevant information for purposes of discovery is information `reasonably calculated to lead to the discovery of admissible evidence[.]' " (Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir.2005) (citation omitted).) In addition, Rule 26(b)(1) provides the appropriate scope of discovery in civil actions as follows: "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 infounation, -38- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 42 of 57 Page ID #:763 N E W M E Y E R & D I L L I O N L L P 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." SoulCycle's objections that the requests are premature because Plaintiff has not yet certified a class are without merit. Plaintiff is permitted to perform pre- certification discovery relevant to substantiating the class allegations or satisfying the specific criteria for a class action under Rule 23. (See, e.g., Vallabharpurapu v. Burger King Corp., 276 F.R.D. 611 (N.D. Cal. 2011).) These requests are directly related to substantiating Plaintiff's claims in this case, as well as satisfying the requirements of Rule 23, such as, but not limited to, numerosity, commonality, and typicality, all of which is within the scope of permissible discovery prior to class certification. Additionally, SoulCycle's objections based upon the purported privacy rights of its customers are moot since there is now in place a stipulated protective order; and SoulCycle's contention that it is unable to determine the jurisdiction for which any customer purchased their classes is also moot as counsel for parties have agreed that SoulCycle need only produce information, from the relevant time period, for customers with a California billing address. SoulCycle's contentions that producing responsive information would present an undue or unfair burden are also without merit, as counsel for Plaintiff has agreed that SoulCycle would be permitted to produce responsive information in summary format, so long as the primary information is provided — e.g., the number of contracts entered into or sales made during the relevant time period, the number of classes purchased pursuant to each contract or sale, the dates each contract were entered into or sale was made, the total payments made per each contract or sale and the total revenue and profits generated pursuant to each contract or sale. The information sought by these requests is relevant to the issues directly at -39- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 43 of 57 Page ID #:764 N E W M E Y E R & D I L L I O N L L P the heart of this case, and the inability of Plaintiff to obtain such information by any other means would outweigh any purported burden imposed on SoulCycle to respond. It is therefore requested that SoulCycle be compelled to provide supplemental responses to these requests. SOULCYCLE'S POSITION: RFP Nos. 13, 27, and 28 seek information that is either not relevant to or not proportional to either the HSSCL or UCL claims, and/or is unduly burdensome. See Fed. R. Civ. P. 26(b)(1). RFP No. 13: The Plaintiff seeks "all sales receipts for cycling classes sold" by SoulCycle to its California customers. Because "all sales" receipts includes those riders who bought Classes and then used all of them thereby getting the full benefit of their bargain, the information requested in RFP No. 13 is, in part, not relevant for the reasons previously stated. As to those customers who are similarly-situated to the Plaintiff, the Plaintiff has not articulated why "all sales receipts" are proportional to either his HSSCL or UCL claims. The Spreadsheet already identifies the number of Classes that SoulCycle's riders bought but did not use, as well as the associated dollar amount of those Classes. Requiring SoulCycle to produce each and every sales receipt (which were typically e-mailed) for its California customers over a five year period is unduly burdensome and has no practical benefit to Plaintiff or relevance to this case. Even if SoulCycle could produce all of these e-mails, it would then have to redact the name and e-mail addresses of its riders, which would be a tremendous undertaking entailing significant cost with no material benefit. Is the Plaintiff seriously going to comb through tens of thousands (if not hundreds of thousands) receipts? Why? RFP Nos. 27 and 28: RFPs Nos. 27 and 28 seek information related to "sales revenue and gross profits." SoulCycle incorporates by reference its responses here from Interrogatories Nos. 4 and 5. 7099528.1 - 40 - JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 44 of 57 Page ID #:765 N E W M E Y E R & D I L L 1 O N L L P C. REQUESTS FOR PRODUCTION NOS. 29-30 REQUEST FOR PRODUCTION NO. 29: All DOCUMENTS RELATED TO sales revenue and gross profits generated and/or received by YOU from contracts with YOUR customers for cycling classes in California in the past five years where the customer never registered for or attended a class. AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 29: SoulCycle objects to this Request on the grounds that it is premature in that it requests documents pertaining to putative class members although a class has not been certified. Particularly given the burdensome nature of producing the classwide documents the plaintiff seeks, discovery into the merits of the dispute at this time is outweighed by the burden of production. SoulCycle objects to this Request on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, compound, and not proportional to the needs of the case. SoulCycle further objects to the extent it seeks Privileged Information and a legal conclusion. SoulCycle further objects because it is unable in certain instances to determine whether a rider purchased Classes in California or for use in California and it would be unduly burdensome, if not impossible, for SoulCycle to identify definitively which of its riders actually bought their Classes for use in California, particularly in the instances in which Classes remain unused. Subject to and without waiving the foregoing objections, and subject to the execution of an appropriate protective order, SoulCycle will produce summary financial information regarding the revenue it has derived from the sale of Classes in California that riders have not used during the relevant period, to the extent that it is able to do so. SoulCycle states that it is unable definitively to identify which riders purchased their Class or Classes for use in California, rather than for use in another jurisdiction. -41- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 45 of 57 Page ID #:766 N E W M E Y E R & D I L L I O N L L P REQUEST FOR PRODUCTION NO. 30: All DOCUMENTS RELATED TO sales revenue and gross profits generated and/or received by YOU from the sale of cycling classes in California in the past five years where the customer never registered for or attended a class. AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO. 30: SoulCycle objects to this Request on the grounds that it is premature in that it requests documents pertaining to putative class members although a class has not been certified. Particularly given the burdensome nature of producing the classwide documents the plaintiff seeks, discovery into the merits of the dispute at this time is outweighed by the burden of production. SoulCycle objects to this Request on the grounds that it is overly broad, unduly burdensome, not sufficiently limited in time and scope, compound, and not proportional to the needs of the case. SoulCycle further objects to the extent it seeks Privileged Information. SoulCycle further objects because it is unable in certain instances to determine whether a rider purchased Classes in California or for use in California and it would be unduly burdensome, if not impossible, for SoulCycle to identify definitively which of its riders actually bought their Classes for use in California, particularly in the instances in which Classes remain unused. Subject to and without waiving the foregoing objections, and subject to the execution of an appropriate protective order, SoulCycle will produce summary financial information regarding the revenue it has derived from the sale of Classes in California that riders have not used during the relevant period, to the extent that it is able to do so. SoulCycle states that it is unable definitively to identify which riders purchased their Class or Classes for use in California, rather than for use in another jurisdiction. PLAINTIFF'S POSITION: In response to requests for production nos. 29-30, SoulCycle has produced a 600-page summary/chart purportedly identifying the revenue it has generated from -42- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 46 of 57 Page ID #:767 N E W M E Y E R & D I L L I O N L L P August 25, 2012 through February 10, 2017 for all contracts and sales with California customers where the customer did not use all of the classes purchased. However, such information provided by SoulCycle is nevertheless incomplete. At the outset, the summary/chart provided by SoulCycle does not identify the dates for each contract or purchase. Moreover, SoulCycle neglects to provide any information permitting identification of the customers, determination of the total contract payments made by the customer, reference to the number of contracts entered into by the customer (as opposed to only the number of classes purchased), and so on. SoulCycle's objections that the requests are premature because Plaintiff has not yet certified a class are without merit. Plaintiff is permitted to perform pre- certification discovery relevant to substantiating the class allegations or satisfying the specific criteria for a class action under Rule 23. (See, e.g., Vallabharpurapu v. Burger King Corp., 276 F.R.D. 611 (N.D. Cal. 2011).) These requests are directly related to substantiating Plaintiff's claims in this case, as well as satisfying the requirements of Rule 23, such as, but not limited to, numerosity, commonality, and typicality, all of which is within the scope of permissible discovery prior to class certification. Additionally, SoulCycle's objections based upon the purported privacy rights of its customers are moot since there is now in place a stipulated protective order; and SoulCycle's contention that it is unable to determine the jurisdiction for which any customer purchased their classes is also moot as counsel for parties have agreed that SoulCycle need only produce information, from the relevant time period, for customers with a California billing address. Accordingly, it is requested that SoulCycle be compelled to provide supplemental responses to these requests. SOULCYCLE'S POSITION: RFP Nos. 29 and 30: RFPs Nos. 29 and 30 seek information related to "sales - 43 - 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 47 of 57 Page ID #:768 N E W M E Y E R & D I L L I O N L L P revenue and gross profits." SoulCycle incorporates by reference its responses here from Interrogatories Nos. 4 and 5. -44- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 48 of 57 Page ID #:769 N E W M E Y E R & D I L L I O N L L P 4. DISPUTES REGARDING DEPOSITIONS. PLAINTIFF'S POSITION: Plaintiff has requested that SoulCycle provide dates that its witnesses would be produced for deposition, which witnesses were specifically designated in SoulCycle's Rule 26(a)(1) Initial Disclosures. Since the deadline for Plaintiff to file its motion for class certification is November 3, 2017, which deadline has already once been continued by the Court, it was and is Plaintiffs intention to conduct and complete the depositions of SoulCycle's witnesses as soon as possible. Notwithstanding, in conjunction with the scheduling of mediation for September 26, 2017, SoulCycle has requested that the depositions in this case proceed thereafter. Plaintiff's agreement to delay the depositions, however, was expressly conditioned upon SoulCycle providing dates for such depositions to proceed immediately after the mediation. Plaintiff has requested that SoulCycle provide dates for 4 individual corporate representatives, as well as a Rule 30(b)(6) representative(s) for specific categories that have been provided to SoulCycle's counsel. However, as of today's date, SoulCycle has only provided dates for the deposition of one witness; and SoulCycle is now also asserting this particular deposition, as well as the deposition of all of SoulCycle's witnesses, must be conducted in New York or South Carolina. -45- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 49 of 57 Page ID #:770 N E W M E Y E R & D I L L 1 O N L L P SoulCycle's contention that the depositions of its witnesses must move forward in New York and South Carolina is both unreasonable and contrary to the law. Pursuant to Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625 (C.D. Cal. 2005), for example, "[a] party may unilaterally choose the place for deposing an opposing party, subject to the granting of a protective order by the Court pursuant to Rule 26(c)(2), FedR.Civ.P., designating a different location." In addition, the general rule for setting the location of a corporate party's deposition at its principal place of business is subject to modification when justice requires. (Id.) The factors that "dissipate the presumption" that a corporate party's deposition should be held at its principal place of business include the "location of counsel for the parties in the forum district, the number of corporate representatives a party is seeking to depose, the likelihood of significant discovery disputes arising which would necessitate resolution by the forum court; whether the persons sought to be deposed often engage in travel for business purposes; and the equities with regard to the nature of the claim and the parties' relationship." (Id.) All of the foregoing factors weigh in favor of conducting the depositions of SoulCycle's corporate representatives in the forum where this case is pending. The case is presently pending in the Central District of California, where SoulCycle performs substantive business; the claims in this case are premised exclusively on California law; and Plaintiff and SoulCycle both have local counsel in this district. In addition, any purported burden on SoulCycle to produce its designated corporate representatives for deposition would be substantially outweighed by the burden imposed on Plaintiff to make various trips to New York and South Carolina in order to conduct depositions in this case. Accordingly, it is requested that SoulCycle be compelled to produce its corporate representative witnesses for deposition in this district, and to provide dates for such depositions to proceed immediately after the mediation presently scheduled for September 26, 2017. -46- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 50 of 57 Page ID #:771 N E W M E Y E R & D I L L I O N L L P SOULCYCLE'S POSITION: SoulCycle identified in its Initial Disclosures four individuals employed by SoulCycle with relevant knowledge. Plaintiff seeks to depose each of those individuals in their individual capacity and to take a Rule 30(b)(6) deposition on numerous topics. Prior to the Plaintiff initiating this dispute, SoulCycle was in the process of determining the availability of its witnesses to testify in their individual capacities. During that process, SoulCycle wrote to the Plaintiff's counsel and raised the question of whether he would seek 30(b)(6) testimony, as SoulCycle will produce its witnesses only once. (See Hauptman Decl., Ex. A, 8/17/17 Email from K. Gordon). The Plaintiff initially provided seven draft Rule 30(b)(6) topics "without limitation," and later added one additional topic. (See id., Ex. A, 8/19/17 and 8/25 Emails from S. Hauptman). SoulCycle provided available dates for one of its individuals to be deposed in New York (see id., Ex. A, 8/25/17 Email from K. Gordon), and SoulCycle continued the process of ascertaining other dates for its individual witnesses and its corporate designees. Among other things, SoulCycle explained that one of its witnesses was pregnant and due on October 20, 2017, and, as a result, she would have to be deposed in South Carolina, where she works and resides, as she could not travel to a deposition while nine-months pregnant. (See id., Ex. A, 8/17/17 E-mail from K. Gordon). The Plaintiff then insisted that all depositions take place in California, which derailed SoulCycle's scheduling efforts until the location of the depositions was set. (See generally id., Ex. A). The Plaintiff is apparently willing to travel to New York, New York, the location of SoulCycle's principal place of business, for the requested depositions. For the reasons stated below, the depositions of SoulCycle's witnesses (whether in their individual capacity or as corporate designees) should be in New York City. Once the location of New York City is confirmed, SoulCycle is then more than willing to provide dates for and produce its witnesses, subject to all -47- 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 51 of 57 Page ID #:772 N E W M E Y E R & D I L L I O N L L P other objections it may have to the yet-to-be issued 30(b)(6) and individual deposition notices. As to the location of the depositions, "case law indicates that it will be presumed that the defendant will be examined at his residence or place of business or employment." U.S. v. $160,066.98 from Bank of Am., 202 F.R.D. 624, 627 (S.D. Cal. 2001) (quoting Farquhar v. Sheldon, 116 F.R.D. 70, 72 (E.D. Mich. 1987)) (internal quotations omitted). Unless there are special circumstances present, "a party seeking discovery must go where the desired witnesses are normally located." Id.; accord McArthur v. Rock Woodfired Pizza & Spirits, 318 F.R.D. 136, 2016 WL 7015287, at *2 (W.D. Wash. Dec. 1, 2016) ("in the absence of exceptional or unusual circumstances, when a deponent resides at a substantial distance from the deposing party's residence, the deposing party should be required to take the deposition at a location in the vicinity in which the deponent resides, even if the deponent is a party") (quoting Metrex Research Corp. v. United States, 151 F.R.D. 122 (D. Colo. 1993)). The MacArthur court found that if the plaintiff, who had noticed the deposition of one of the individual defendants for Everett, Washington, wanted to depose the defendant in person, she had to travel to California, where the defendant had recently moved, or to another "nearby location amenable to [the defendant's] schedule. Otherwise, she must take the deposition by telephone." As a result, the depositions of fact witnesses must occur in those locations where SoulCycle's witnesses are located. "[T]he general rule for setting the location of a corporate party's deposition" is that the deposition "should ordinarily be taken at its principal place of business." Cadent, 232 F.R.D. at 628. There is nothing unique about this case that warrants a divergence from the common practice of plaintiff going to defendant, and defendant going to plaintiff. For example, SoulCycle is willing to travel to Newport Beach to depose Plaintiff, and that deposition is currently scheduled for October 3,2017. See Kelora Sys., LLC v. Target Corp., 2011 WL 3895303, at *3 (N.D. Cal. Aug. 29, 48 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 52 of 57 Page ID #:773 N E W M E Y E R & D I L L I O N L L P 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2011) ("The court finds that there is no adequate reason to deviate from the general presumption that the deposition of the designee of a corporate defendant should be conducted at the corporation's principal place of business."). Indeed, in prior litigation filed against SoulCycle in this District, Cody, et al. v. SoulCycle, Inc., Case No. 16-6457 MWF (JEMx), counsel for plaintiffs was located in California and traveled to New York City depose all of SoulCycle's witnesses, and that same process should follow here. In Cadent, the Central District of California outlined five factors that "may" rebut the general rule "when justice requires": "[1] location of counsel for the parties in the forum district, [2] the number of corporate representatives a party is seeking to depose, [3] the likelihood of significant discovery disputes arising which would necessitate resolution by the forum court; [4] whether the persons sought to be deposed often engage in travel for business purposes; and [5] the equities with regard to the nature of the claim and the parties' relationship." (Id.) (alterations added). The Plaintiff hastily concludes that "All" five factors weigh in favor of conducting the depositions in California. That is not correct. As to the first factor, it is a wash because there are counsel in California and New York. As to the second factor, it is unclear how the Plaintiff arrived at its conclusion without SoulCycle first disclosing to the Plaintiff an estimate as to the number of corporate representatives it intends to produce in response to the draft 30(b)(6) topics. The Plaintiff has not provided a comprehensive list of 30(b)(6) topics, so it impossible for SoulCycle definitively to identify its witnesses, but based upon the draft topics Plaintiff has provided to date, and without waiving its objections, SoulCycle currently estimates that testimony from three or four individuals will be required. None of those individuals reside in California or even on the West Coast. Therefore, this is not a situation in which one or two deponents will be required to travel, but potentially the Plaintiff is trying to force as many as - 49 - 7099528 I JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 53 of 57 Page ID #:774 N E W M E Y E R & D I L L I O N L L P four individuals to travel thousands of miles. The second factor therefore weighs in SoulCycle's favor. As to the third factor, there is no reason to assume that any dispute will arise during the deposition that will necessitate involving the Court. The third factor is therefore neutral and, as a result, weighs in favor of maintaining the presumption. As to the four factor, it is again unclear how the Plaintiff arrived at its conclusion that SoulCycle's witnesses often travel for business purposes. As a general matter, SoulCycle employees do not engage in extensive business travel, let alone travel across country. (See 9/8/17 Declaration of Michael Urcinoli). The only potential 30(b)(6) witness who does travel for business is the company's Chief Executive Officer, and the demands on her time favor the deposition proceeding in New York, where she lives and works. As to the fifth factor, the only "equities" on the Plaintiff's side is the location of the forum and his counsel. On the other hand, SoulCycle's principal place of business is in New York City and all of its designees can and will be made available there in an effort to avoid the time, burden, and distraction to its business from cross-country travel. The Plaintiff's counsel has associated with a New York lawyer in another case that they have filed against SoulCycle in New York, so presumably they can use that lawyer for the depositions, should they decide not to travel. The fifth favor weighs in SoulCycle's favor. In addition to the above analysis, the Plaintiff's reliance on Cadent is further refuted as factual matter. In Cadent, the "plaintiff proffer[ed] absolutely no rationale for requiring the depositions in this case not to be taken in Los Angeles." (232 F.R.D. at 630) (emphasis added). SoulCycle has done so and, unlike the plaintiff in Cadent, SoulCycle has supported its positions with a declaration of Michael Urcinoli, SoulCycle's Vice President of IT. (See 9/8/17 Declaration of Michael Urcinoli). Finally, as discussed above, SoulCycle had initially informed the Plaintiff - 50 - 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 54 of 57 Page ID #:775 N E W M E Y E R & D I L L I O N L L P that one of its witnesses listed on its Initial Disclosures, Mary Fields Mote, was to be deposed in South Carolina (where she resides and works) given the fact that she will be nine-months pregnant in October and is unable to avoid travel. The Plaintiff initially agreed to depose Ms. Mote in Charleston, South Carolina, but now asks this Court to order that all depositions proceed in California (including, presumably Ms. Mote's deposition). (See also Hauptman Decl., Ex. A, 8/25/17 Email from S. Hauptman) ("We are not going to be flying all over the country to conduct the depositions of SoulCycle's corporate representatives . . . ."). As Ms. Mote is scheduled to give birth on October 20, 2017, just weeks after her anticipated deposition, she has now decided that the stress of preparing and sitting for a deposition would be too much for her and her baby, as SoulCycle trusts counsel for the Plaintiff can appreciate. As a result, SoulCycle will make available for deposition another individual with similar knowledge to Ms. Mote, and SoulCycle will also make that individual available to testify in New York, New York. Dated: September 12, 2017 NEWMEYER & DILLION LLP By:/s/Stephen M Hauptman ROBERT K. SCOTT STEPHEN M. HAUPTMAN Attorneys for Plaintiff and the Proposed Class Dated: September 12, 2017 DLA PIPER LLP (US) By:/s/Steven R. Marino SHIRLI F. WEISS KEARA M. GORDON Attorneys for Defendant - 51 - 7099528.1 JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 55 of 57 Page ID #:776 N E W M E Y E R & D I L L I O N L L P PROOF OF SERVICE Marko Cavka v. SoulCycle Inc. USDC - Central District — Southern Division Case No. 8:16-CV-01821 JLS (KESx) STATE OF CALIFORNIA ss. COUNTY OF ORANGE I, Martha V. Ramirez, hereby certify that: I am a citizen of the United States and employed in Orange County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 895 Dove Street, Fifth Floor, Newport Beach, CA 92660. On September 12, 2017, I served a copy of the within document(s): JOINT STIPULATION REGARDING PLAINTIFF'S MOTION TO COMPEL DEFENDANT SOULCYCLE INC. TO PRODUCE SUPPLEMENTAL RESPONSES TO SPECIAL INTERROGATORIES AND REQUESTS FOR PRODUCTION AND TO PRODUCE ITS WITNESSES FOR DEPOSITION (VIA CM/ECF SYSTEM — NOTICE OF ELECTRONIC FILING "NEF") I certify that on the date referenced above, I electronically transmitted the document(s) listed for submission to the United States District Court Central District, using the ECF registrants/recipients registered with the United States District Court Central District at the e-mail address(es) set forth below. by transmitting via e-mail or electronic transmission the document(s) listed above to the person(s) at the e-mail address(es) set forth below. El by placing the document(s) listed above in a sealed envelope with postage thereonfully prepaid, in the United States mail at Newport Beach, California addressed as set forth below. Please see attached service list. I am readily familiar with the firm s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day witzi postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare that I am a member of the bar of this court at whose direction the service was made. Executed on September 12, 2017, 2017, at port Beach, California. 6366178.1 PROOF OF SERVICE a V. Ramir z Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 56 of 57 Page ID #:777 SERVICE LIST N E W M E Y E R & D I L L I O N L L P Marko Cavka v. Soulcycle, Inc. USDC - Central District — Southern Division Case No. 8:16-cv-01821 JLS (KESx) Shirli F. Weiss, Es Katherine J. Page, DLA PIPER LLP (U 401 B Street, Suite 1700 San Diego, CA 92101-4297 Keara M. Gordon, Esq. (pro hac vice) Colleen M. Gulliver, Esq. (pro hac vice) DLA PIPER LLP (US) 1251 Avenue of the Americas, 27th Floor New York, NY 10020-1104 6366178.1 - 2 - Tel: (619) 699-2700 Fax: (619) 699-2701 shirli.weiss@dlapiper.com katherine.page!Alapiper.com [SOULCYCLE, INC.] Tel: (212) 335-4500 Fax: (212) 335-4501 keara.gordongdlapiper.com colleen.gulliver@dlapiper.com [CO-COUNSEL FOR SOULCYCLE, INC.] SERVICE LIST Case 8:16-cv-01821-JLS-KES Document 58 Filed 09/12/17 Page 57 of 57 Page ID #:778