. 

• " 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MICHAEL MAKANEOLE, 

Plaintiff, 

v. 

SOLARWORLD INDUSTRIES AMERICA, 

INC., SOLARWORLD INDUSTRIES 

AMERICA, LP, SOLAR WORLD INDUSTRIES 

SERVICES, LLC, SOLARWORLD POWER 

PROJECTS, INC., RANDSTAD US, LP, and 

KELLY SERVICES, INC., 

Defendants. 

PAP AK, Magistrate Judge: 

3:14-CV-1528-PK 

OPINION AND 

ORDER 

Plaintiff Michael Makaneole brought this putative class action on behalf of himself and 

all others similarly situated against defendants Solarworld Industries America, Inc., SolarWorld 

Industries America, LP, SolarWorld Industries Services, LLC, SolarWorld Power Projects, Inc. 

(collectively with Solarworld Industries America, Inc., SolarWorld Industries America, LP, and 

SolarWorld Industries Services, LLC, "Solarworld" or the "Solarworld defendants"), Randstad 

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US, LP ("Randstad")', and Kelly Services, Inc. ("Kelly" or "KSI"), in the Multnomah County 

Circuit Court on August 26, 2014. Defendant Randstad removed Makaneole's action to this 

court effective September 24, 2014. Effective April 6, 2015, Makaneole amended his complaint 

in this court. 

By and through his amended complaint, Makaneole alleges that defendants Kelly and 

Randstad are both in the business of providing tempormy workers to employers in need of 

sho1t-term staff, whereas defendant Solarworld is in the business of manufacturing and selling 

photovoltaic products. Makaneole alleges that he was employed first by Kelly, then by Randstad, 

and then by Solarworld, and while serially employed by the three employers performed services 

on behalf of Solmworld at a Solarworld facility in Oregon. It is Makaneole's allegation that 

during all three periods of employment, Solarworld engaged in a practice of programming an 

electronic time-keeping system to deduct minutes from his hours worked prior to reporting them 

to payroll for purposes of computing his compensation, and that Kelly and Randstad used the 

hours rep01ted to them by Solarworld following such deduction in calculating his compensation 

during the periods when he worked for those employers; it is further Makaneole's position that 

each of the three employers treated all of their similarly situated employees' hours worked in the 

same fashion during approximately the same time period. Arising out of that practice, 

Makaneole alleges all defendants' liability for violation of Oregon's Or. Rev. Stat. 652.120 and 

653.010 by failing to pay all wages owed, for violation of Oregon's Or. Rev. Stat. 652.120 and 

653.010 by failing to pay overtime wages owed, and for violation of Oregon's Or. Rev. Stat. 

1 Makaneole identifies Randstad as "Randstad Professionals US, LP" in his complaint, 

apparently inaccurately. 

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652.140 by failing to pay all wages owed at the termination of employment. In connection with 

his claims, Makaneole seeks damages for unpaid wages in an unspecified amount, as well as 

award of his attorney fees and costs. This court has original federal subject-matter jurisdiction 

over Makaneole's putative class action pursuant to 28 U.S.C. § 1332(d)(2). 

Now before the court is Kelly's motion (#61) to compel discovery responses. I have 

considered the motions, oral argument on behalf of Kelly and Makaneole, and all of the 

pleadings and papers on file. For the reasons set fotth below, Kelly's motion is granted in part 

and denied in part as discussed below. 

LEGAL STANDARDS 

I. Scope of Permissible Discovery, Generally 

Federal Civil Procedure Rule 26(b)(l) provides that "[p]arties may obtain discovery 

regarding any nonprivileged matter that is relevant to any patty's claim or defense - including the 

existence, description, nature, custody, condition, and location of atty documents or other 

tangible things and the identity and location of persons who know of any discoverable matter." 

Fed. R. Civ. P. 26(b)(l). The Rule specifies that "[r]elevant infotmationneed not be admissible 

at the trial if the discovery appears reasonably calculated to lead to the discovety of admissible 

evidence." Id. However, the district coutts should limit the scope of discovety under specified 

circumstances, as follows: 

On motion or on its own, the court must limit the frequency or extent of discovery 

otherwise allowed by these rules or by local rule if it determines that: 

(i) the discove1y sought is unreasonably cumulative or duplicative, or can be 

obtained from some other source that is more convenient, less burdensome, or less 

expensive; 

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(ii) the party seeking discovery has had ample opportunity to obtain the 

information by discovery in the action; or 

(iii) the burden or expense of the proposed discove1y outweighs its likely benefit, 

considering the needs of the case, the amount in controversy, the patiies' 

resources, the imp01iance of the issues at stake in the action, and the imp01iance 

of the discove1y in resolving the issues. 

Fed. R. Civ. P. 26(b )(2)(C). 

II. Motion to Compel 

As noted above, Federal Civil Procedure Rule 26(b )(1) authorizes discove1y regarding 

any matter, not privileged, that is relevant to the claim or defense of any patiy. Rule 26(b )(1) is 

to be constrned broadly, and encompasses any matter that bears on, or that reasonably could lead 

to other matters that would bear on, any issue that is or may be in the case. See, e.g., 

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 351 n. 12 (1978). 

If a party elects to oppose a propounding patiy's discove1y requests, the opposing party 

bears the burden of establishing that the discovery is overly broad, unduly burdensome or not 

relevant. See Graham v. Casey's General Stores, 206 F.R.D. 251, 253-4 (S.D. Ind. 2000). 

"Boilerplate, generalized objections are inadequate and tantamount to not making any objection 

at all." Walker v. Lakewood Condominium Owners Assoc., 186 F.R.D. 584, 587 (C.D. Cal. 

1999); see also Farber and Partners, Inc. v. Garber, 234 F.R.D. 186 (C.D. Cal. 2006). 

Federal Civil Procedure Rule 37(a)(3)(B) empowers a propounding patiy to "move for an 

order compelling an answer, designation, production, or inspection" if: 

(i) a deponent fails to answer a question asked under Rules 30 or 31; 

(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 

3 l(a)(4); 

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(iii) a party fails to answer an intell'ogatory submitted under Rule 33, or 

(iv) a party fails to respond that inspection will be pe1mitted - or fails to permit 

inspection - as requested under Rule 34. 

Fed. R. Civ. Pro. 37(a)(3)(B). Moreover, Rule 37(a)(4) provides that "an evasive or incomplete 

disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed. 

R. Civ. P. 37(a)(4). Rule 26 provides that "[fjor good cause, the court may order discove1y of 

any matter relevant to the subject matter involved in the action." Fed. R. Civ. Pro. 26(b )(1 ). 

FACTUAL BACKGROUND 

I. The Parties 

Defendant Solarworld Industries America, Inc., is an Oregon corporation with its 

principal place of business in Hillsboro, Oregon. Defendant SolarWorld Industries America, LP, 

is a limited paiinership organized under the laws of the State of Delaware with its principal place 

of business in Bonn, Ge1many. Defendant SolarWorld Industries Services, LLC, is a limited 

liability company organized under the laws of the State of Delaware with its principal place of 

business in Hillsboro, Oregon. Defendant SolarWorld Power Projects, Inc., appears to have 

ceased to exist following an October 2012 merger with a sister company (SolarWorld Americas, 

LLC, a liability company organized under the laws of the State of California with its principal 

place of business in Hillsboro, Oregon), and appears formerly to have been a California 

corporation with its principal place of business in Camarillo, California. The Solarworld 

defendants are collectively in the business of manufacturing and marketing photovoltaic 

products, and appear to operate as U.S. subsidiaries of SolarWorld AG, a German 

Aktiengesellschaft with its principal place of business in Bonn, Ge1many. 

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Defendant Kelly is a Delaware corporation with its principal place of business in Troy, 

Michigan. Kelly is in the business of providing temporary employees to employers in need of 

short-term staff. 

Defendant Randstad is a limited pa1inership organized under the laws of the State of 

Delaware with its principal place of business in Woburn, Massachusetts. Randstad is in the 

business of providing tempora1y employees to employers in need of short-te1m staff. 

PlaintiffMakaneole is a former employee of defendants Kelly, Randstad, and one or more 

of the Solarworld defendants. Whether employed directly by Kelly, by Randstad, or one or more 

of the Solarworld defendants, at all material times Makaneole provided services to the 

Solarworld defendants at a Solarworld facility in Oregon. 

II. The Parties' Discovery Dispute 

On Februaiy 9, 2015, Kelly served Makaneole with its first set of Requests for Production 

of Documents. As discussed in greater detail below, Kelly's Requests for Production Nos. 33-41 

either directly or indirectly seek production of documents acquired by Makaneole's counsel in his 

capacity as the legal representative of Fred Bey in connection with a currently ongoing wage-andhour class action lawsuit Bey filed against the Solarworld defendants as to which Makaneole is 

not a paiiy. On March 13, 2015, Makaneole responded to Kelly's discove1y requests, and on May 

22, 2015, he supplemented his response. 

In response to Kelly's Requests for Production Nos. 33-41, Makaneole generally refused 

to produce documents associated with Bey's action against the Solaiworld defendants on the 

grounds that those documents were not his to produce, and that most of them were held by his 

counsel on Bey's behalf subject to a protective order forbidding their disclosure to third parties to 

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Bey's action. It is Requests for Production Nos. 33-41 that are the subject of Kelly's motion to 

compel now before the cou11. Those requests, and Makaneole's responses thereto, are as follows: 

Request No. 33: All DOCUMENTS that RELATE TO YOUR 

allegations in Paragraph 40 of the COMPLAINT that "The class is believed to 

exceed 500 persons ... " 

Plaintiff's Response: In addition to the general objections, Plaintiff 

objects that the request fails to identify documents with reasonable particularity 

and is overbroad. Plaintiff further objects that the response requires Plaintiff and 

his attorneys to first make a legal conclusion then to provide documents which 

support that legal conclusion. Subject to and without wavier of these objections 

and the general objections, Plaintiff infonns Defendant that no such documents 

are in his possession, custody or control. 

Request No. 34: All deposition transcripts from the Frederick Bey v. 

SolarWorld Industries America, Inc. et al., action, Case No. 1212-16562. 

Plaintiff's Response: In addition to the general objections, Plaintiff 

objects that this seeks documents in a case where Plaintiff is not a party and which 

are outside his possession, custody or control. 

Request No. 35: All documents produced in the Frederick Bey v. 

So/arWorld Industries America, Inc. et al., action, Case No. 1212-16562. 

Plaintiff's Response: In addition to the general objections, Plaintiff 

objects that this seeks documents in a case where Plaintiff is not a party and which 

are outside his possession, custody or control. 

Request No. 36: All discovery responses served in the Frederick Bey v. 

Solar World Industries America, Inc. et al., action, Case No. 1212-16562. 

Plaintiff's Response: In addition to the general objections, Plaintiff 

objects that this seeks documents in a case where Plaintiff is not a pmiy and which 

are outside his possession, custody or control. 

Request No. 37: All pleadings and motions filed in the Frederick Bey v. 

SolarWorld Industries America, Inc. et al., action, Case No. 1212-16562. 

Plaintiff's Response: In addition to the general objections, Plaintiff 

objects that this seeks documents in a case where Plaintiff is not a party and which 

are outside his possession, custody or control. Fmiher, Defendant has access to 

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these public documents in the Circuit Couii for the State of Oregon for the County 

of Multnomah County. 

Request No. 38: All DOCUMENTS that RELATE TO any 

COMMUNICATIONS between YOU and Frederick Bey regarding this action or 

the Frederick Bey v. Solar World Industries America, Inc. et al., action, Case No. 

1212-16562. 

Plaintiffs Response: In addition to the general objections, Plaintiff 

objects in so far as it seeks documents not relevant to the claims in the case nor 

appears reasonably calculated to lead to the discovery of admissible evidence in so 

far as Defendant seeks communications regarding the Frederick Bey v. Solarworld 

Industries America, Inc. et all, action, Case No. 1212-16562. Subject to and 

without wavier of these objections and the general objections, Plaintiff informs 

Defendant that no such documents are in his possession, custody or control. 

Request No. 39: All DOCUMENTS that RELATE TO YOUR 

allegations in Paragraph 51 of the COMPLAINT that "Plaintiff has a good faith 

belief that wages are due absent class members based in pati upon data provided 

from Employers in other cases", including but not limited to all data provided in 

the Frederick Bey v. Solar World Industries America, Inc. et al., action, Case No. 

1212-16562. 

Plaintiffs Response: In addition to the general objections, Plaintiff 

objects that the request fails to identify documents with reasonable patiicularity 

and is overbroad. Plaintifffutiher objects that the response requires Plaintiff and 

his attorneys to first make a legal conclusion then to provide documents which 

suppoti that legal conclusion. Subject to and without waiver of these objections 

and the general objections, Plaintiff informs Defendant that no such documents 

are in his possession custody or control. 

Request No. 40: All DOCUMENTS that RELATE TO YOUR 

allegations in Paragraph 52 of the COMPLAINT that "Plaintiff has a good faith 

belief that wages are due absent class members based on the fact that Defendants 

have admitted how they programmed their electronic time keeping system and 

further how that system operates with payroll." 

Plaintiffs Response: In addition to the general objections, Plaintiff 

objects that the request fails to identify documents with reasonable particularity 

and is overbroad'. Plaintifffutiher objects that the response requires Plaintiff and 

his attorneys to first make a legal conclusion then to provide documents which 

suppoti that legal conclusion. Subject to and without waiver of these objections 

and the general objections, Plaintiff informs Defendant that no such documents 

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are in his possession custody or control. 

Request No. 41: All DOCUMENTS that RELATE TO YOUR 

allegations in Paragraph 53 of the COMPLAINT that "Employers suffered and 

permitted Plaintiff and similarly situated individuals to work hours for which 

Employers did not compensate them. Employers did so by not including all hours 

worked and recorded on the electronic time keeping system when computing 

employee pay. Employers also did this by altering lunch punches such that the 

lunch was deducted in its entirety or by failing to pay for the intenupted lunch." 

Plaintiff's Response: In addition to the general objections, Plaintiff 

objects that the request fails to identify documents with reasonable pmiicularity 

and is overbroad. Plaintiff further objects that the response requires Plaintiff and 

his attorneys to first make a legal conclusion then to provide documents which 

support that legal conclusion. Subject to and without waiver of these objections 

and the general objections, Plaintiff informs Defendant that no such documents 

are in his possession custody or control. 2 

In supp01i of his opposition to Kelly's motion to compel, Makaneole proffers a copy of 

the protective order filed in Bey's action against the Solarworld defendants. Pursuant to that 

protective order, documents produced to Bey by Solarworld that are marked as "Confidential" 

may be disclosed by Bey or his counsel only to: 

a. Outside counsel of record for the pmiies, and the administrative staff of 

2 As to Request for Production No. 33, I note that Paragraph 40 ofMakaneole's 

complaint indicates that it is "[d]eposition testimony" that forms the basis ofMakaneole's belief 

that the class exceeds 500 persons; the pmiies appear tacitly to accept that the deposition 

testimony in question was provided in connection with the Bey litigation. As to Requests for 

Production Nos. 40 and 41, I similarly note that in connection with the allegations of Paragraph 

52 of Makaneole's complaint, the pmiies appear tacitly to accept that the admission in question 

was made in connection with the Bey litigation, and that in connection with the allegations of 

Paragraph 53 of Makaneole's complaint, the patiies appear tacitly to accept that the allegations 

regarding the employers' practices are made on the basis of infonnation acquired in connection 

with the Bey litigation. 

In light of the foregoing, the parties appear to share the understanding that the documents 

at issue in connection with the nine discovety requests within the scope of Kelly's motion fall 

into tlu·ee categories: (i) transcripts of depositions taken in connection with the Bey litigation, 

(ii) discovety documents and documents produced in discovery in the course of the Bey 

litigation, and (iii) pleadings and motions filed in the course of the Bey litigation. 

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outside counsel's films. 

b. In-house counsel for the parties, and the administrative staff for each inhouse counsel. 

c. Any paiiy to [Bey's] action who is an individual, and every employee, 

director, officer, or manager of any patiy to [Bey's] action who is not an 

individual, but only to the extent necessary to fmiher the interest ofthe 

parties in [Bey's] litigation. 

d. Independent consultants or expert witnesses ... retained by a patiy or its 

attorneys for purposes of [Bey's] litigation, but only to the extent necessary 

to fmther the interest of the parties in [Bey's] litigation. 

e. The Comt and its personnel. ... 

f. The authors and the original recipients of the documents. 

g. Any comt rep01ter or videographer reporting a deposition. 

h. Employees of copy services, microfilming or database services, trial 

supp01t films and/or translators who are engaged by the parties during the 

litigation of [Bey's] action. 

ANALYSIS 

As a preliminaiy matter, I find that all of the requests within the scope of Kelly's motion 

seek relevant inf01mation reasonably calculated to lead to the discove1y of admissible evidence. 

Requests for Production Nos. 33 and 39-41 seek documents containing info1mation underlying 

specific allegations in support of Makaneole's claims in this action, and are therefore clearly 

relevant to Makaneole's claims; Requests for Production Nos. 34-37 respectively seek all 

deposition transcripts produced during the course of Bey's action against the Solarworld 

defendants, all documents produced in discovery in the Bey litigation, all discove1y responses 

served in the Bey litigation, and all pleadings and motions filed in the Bey litigation, all of which 

can be expected to bear on the legal and factual issues arising out of the Solarworld defendants' 

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timekeeping system as it was employed during times material to Bey's claims against the 

Solarworld defendants and therefore can be characterized as calculated to lead to the production 

of evidence admissible in this litigation; Request for Production No. 38 seeks documents 

reflecting communications between Bey and Makaneole regarding either Bey's action against the 

Solarworld defendants or Makaneole's claims against the defendants herein, and therefore 

likewise can be characterized as calculated to lead to the production of evidence admissible in 

this litigation. 3 

The primary gravamen ofMakaneole's opposition to Kelly's motion is that he does not 

possess or control any responsive documents, becau8e to the extent responsive documents exist, 

they are within the custody of his attorney not on Makaneole's behalf but rather on behalf of Bey, 

a third party to this litigation. That is, it is Makaneole's position that he, rather than his counsel, 

is the party to whom Kelly's discovery requests are properly addressed, and that he lacks 

authority to compel his counsel to disclose documents provided to his counsel in confidence by 

another of his counsel's clients. Makaneole notes, co1Tectly, that a case file maintained by an 

attorney on behalf of a client is the property of the client rather than of the attorney, and argues 

that to the extent his counsel possesses documents responsive to the requests at issue, those 

documents are Bey's, and not his to produce in this litigation. Makaneole's argument is entirely 

conect as a matter of general principle. 

The complication that arises in applying that general principle to this discove1y dispute 

stems from the fact that several allegations of Makaneole's complaint expressly rely on 

3 Makaneole does not dispute the relevance of the discovery sought other than with 

regard to Request for Production No. 38, a request as to which he asserts no responsive 

documents exist. 

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information gleaned from the Bey litigation. Those allegations are paragraphs 40 and 51-53 of 

Makaneole's complaint as originally filed - the allegations specifically referenced in Requests for 

Production Nos. 33 and 39-41 -which are not materially distinguishable from paragraphs 41 and 

53-55 ofMakaneole's amended complaint, which likewise expressly rely on information gleaned 

from the Bey litigation. To the extent Makaneole's counsel, in drafting those or any other 

paragraphs ofMakaneole's complaint, specifically relied upon documents produced, served, filed, 

or issued in the Bey litigation, counsel effectively disclosed the contents of any such documents 

to Makaneole. As such, Makaneole's counsel effectively holds all such documents not merely on 

Bey's behalf but also on Makaneole's behalf, rendering them discoverable in response to Kelly's 

requests. 

For the same reason, the Bey protective order, which prohibits disclosure of discovery 

documents produced to Bey by the Solarworld defendants to third parties not listed therein as 

authorized recipients, is not at issue here. To the extent Makaneole's counsel may, in the course 

of speaking on Makaneole's behalf, have effectively disclosed the contents of documents within 

the scope of the protective order to Makaneole, such disclosure could potentially have violated 

the strictures of that order. Makaneole, however, is not a patty to the Bey protective order, and 

therefore to the extent the contents of such documents have been disclosed to him (whether 

properly or improperly) he is not prohibited from producing them in discovery in this litigation. 

To be sure, the foregoing discussion does not establish that discove1y documents 

produced to Bey by the Solarworld defendants were at any time disclosed to Makaneole. Indeed, 

it is entirely possible that all of the documents forming the basis ofMakaneole's information and 

belief underlying his allegations, including paragraphs 41 and 53-55 of his amended complaint, 

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were pleadings, motions, or court orders filed or issued publicly in the course of the Bey 

litigation, such that no confidentiality concerns would be implicated by Makaneole's express 

reliance on facts gleaned from the Bey litigation. I make no finding at this time regarding the 

information underlying Makaneole's allegations. 

Kelly concurs with the analysis set forth above, and argues further that Makaneole's 

express reliance on info1mation gleaned from the Bey litigation (specifically, Makaneole's 

reliance on such information in support of the factual allegations that the class Makaneole 

purports to represent "is believed to exceed 500 persons," that "wages are due [to] absent 

[putative] class members" in consequence of the Solarworld defendants' timekeeping system, and 

that the Solarworld defendants' timekeeping system improperly truncated employee hours 

worked for compensation purposes) in some sense "opened the door" to discovery of all 

information produced or discussed in the course of the Bey litigation. Kelly's argument is that it 

would be unfair to permit Makaneole to select for production documents containing info1mation 

tending to support the factual allegations made in express reliance on facts gleaned from the Bey 

litigation without also requiring him additionally to produce documents tending to exculpate the 

Solarworld defendants, to mitigate against class treatment of Makaneole's claims, or otherwise to 

undercut Makaneole's position. I disagree. Makaneole's reliance on information gleaned from 

the Bey litigation was as to a limited number of specific, testable factual propositions, and did 

not have any tendency to implicate all evidence underlying litigation of the claims and defenses 

asserted in Bey's lawsuit. Moreover, to the extent Kelly believes it requires all such evidence in 

order to litigate its own defenses herein, other procedural mechanisms are available for obtaining 

it, including the issuance of discove1y requests to the Solarworld defendants themselves or, 

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possibly, the issuance of a third-party records subpoena addressed directly to Makaneole's 

counsel. 

For the foregoing reasons, Kelly's motion is granted in pmi and denied in pmi. 

Specifically, Kelly's motion is granted as to Requests for Production Nos. 33 and 39-41 and 

further granted as to Requests for Production Nos. 34-37 to the extent documents responsive to 

those requests necessarily underlie any other specific allegation of Makaneole's amended 

complaint, including without limitation the factual allegations of paragraphs 74-86 thereof, and is 

otherwise denied. To the extent that any document responsive to Request for Production No. 34 

constitutes a deposition transcript containing infotmation necessarily underlying any of 

Makaneole's allegations herein, and to the further extent that production of such a transcript in 

discovery would trigger an obligation to pay a fee to the stenographer who created it, Kelly shall 

bear the obligation to pay the required fee. The parties shall otherwise bear their own costs and 

fees associated with litigating Kelly's motion to compel. 

CONCLUSION 

For the reasons set forth above, Kelly's motion (#61) to compel is granted in part and 

denied in pati as discussed above. 

Dated this 25th day of June, 2015. 

Honorable Paul Papak 

United States Magistrate Judge 

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