Case 2:22-cv-00047-GW-GJS Document 74-7 Filed 09/26/22 Page 1 of 22 Page ID #:1023
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`Exhibit G
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`Exhibit G
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`Case 3:19-cv-07545-WHA Document 156 Filed 12/27/19 Page 1 of 21Case 2:22-cv-00047-GW-GJS Document 74-7 Filed 09/26/22 Page 2 of 22 Page ID #:1024
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`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`Before The Honorable William H. Alsup, Judge
`
`TERRELL ABERNATHY, et al., )
` )
` Petitioner, )
` )
` VS. ) NO. C 19-07545 WHA
` )
`DOORDASH, INC.,
`)
` )
` Respondent. )
` )
`
` San Francisco, California
` Friday, December 20, 2019
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Petitioner:
` KELLER LENKNER LLC
` 1300 I Street N.W.
` Suite 400E
` Washington, D.C. 20005
` BY: WARREN D. POSTMAN
` ATTORNEY AT LAW
`
`For Third Party CPR:
` MORGAN, LEWIS & BOCKIUS LLP
` 101 Park Avenue
` New York, New York 10178-0060
` BY: KIMBERLEY E. LUNETTA
` ATTORNEY AT LAW
`
` MORGAN, LEWIS & BOCKIUS LLP
` 1400 Page Mill Road
` Palo Alto, California 94304
` BY: ANDREW P. FREDERICK
` ATTORNEY AT LAW
`
`Reported By: Ana M. Dub, RDR, CRR, CCRR, CRG, CCG
` Official Reporter, CSR No. 7445
`
`
`
`
`
`Case 3:19-cv-07545-WHA Document 156 Filed 12/27/19 Page 2 of 21Case 2:22-cv-00047-GW-GJS Document 74-7 Filed 09/26/22 Page 3 of 22 Page ID #:1025
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`Friday - December 20, 2019
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` 10:55 a.m.
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`P R O C E E D I N G S
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`---o0o---
`
`THE CLERK: Calling Civil Action 19-7545, Abernathy,
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`et al. versus DoorDash, Inc.
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`Counsel, please step forward and state your appearances
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`for the record.
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`MR. POSTMAN: Good morning, Your Honor. Warren
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`Postman from Keller Lenkner for the petitioners.
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`MS. LUNETTA: Good morning, Your Honor. Kimberley
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`Lunetta from Morgan Lewis & Bockius on behalf of third party
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`CPR. And I have with me my colleague.
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`MR. FREDERICK: Hi. Good morning, Your Honor. Andrew
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`Frederick from Morgan Lewis as well.
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`THE COURT: Welcome to all of you.
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`So have you solved your problem?
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`MS. LUNETTA: We're close. If we could potentially --
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`if I could just share with Your Honor what the issue seems to
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`be and we can maybe get some help resolving, that would be
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`great.
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`First of all, we've come to a lot of additional
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`understanding today. So your method works, of having everyone
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`sit in the room.
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`Basically, what I understand the issue to be is that while
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`CPR believes that under Ninth Circuit law, all that matters for
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`an assessment of substantive unconscionability, all that
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`matters is what's on the face of the protocol or the rules of
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`the arbitral forum, Mr. Postman is concerned that there's some
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`back -- and I'm not casting aspersions. What he believes is
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`that there may be a motive on behalf of the defendant in this
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`case, DoorDash, to slow roll, if you will, the assignment of
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`arbitrators if this initial mediation process fails and that
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`that would allow Gibson Dunn and DoorDash to sort of delay
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`paying the fees over time for the arbitrations and it would
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`encourage them, incentivize them to not resolve the case and
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`just to have, basically, an annuitized legal spend over a
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`number of years when arbitrations are not going forward.
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`That is certainly not CPR's intention or understanding of
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`what they're doing. But I understand Mr. Postman would plan to
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`argue that we need -- he needs that discovery about Gibson
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`Dunn's communications with CPR to see if that was the ask.
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`And so what I would like to do is -- I think we've come to
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`a -- we may have come to a resolution where, if we could just
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`place on the record our understanding that that is the
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`concern -- that Gibson Dunn and DoorDash had motivated, on the
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`back-end, these other processes for assigning arbitrators that
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`are not on the face of the protocol -- that if they've asked to
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`slow roll that and that's not on the face of the protocol but
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`it could be -- and it's not -- but it could be an understanding
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`between CPR and Gibson Dunn that would affect the process, I
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`understand why he would be concerned if that is the case.
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`I can represent to the Court that it's not. I've looked
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`at the documents. But we'd be willing to produce those
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`communications between Gibson Dunn, DoorDash, and CPR and any
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`internal discussions about those communications.
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`So DoorDash told us this on a call today. We would be
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`willing to produce that to address that concern, that perhaps
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`DoorDash and Gibson Dunn asked for some delay in the procedures
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`that do not appear on the face of the protocol.
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`It's my understanding that if we were to do that, we could
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`do that with a confidentiality order in place so that those
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`documents wouldn't be used outside this case and that that
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`would alleviate the concern that Mr. Postman had about wanting
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`to get all communications that CPR had with anyone and
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`everyone, internally and externally, about the protocol, their
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`finances, and all the other things that we found troublesome.
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`THE COURT: Go ahead.
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`MR. POSTMAN: Your Honor, and I'm sorry. I think
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`before we had come in, we thought we were close to an
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`understanding.
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`My understanding was, actually, that what we were close to
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`was something different, which was CPR, it sounds like, was not
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`aware that DoorDash had pending arbitrations that they would
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`seek to apply the new protocol to; and they thought they were
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`being asked to create something for other arbitrations, not
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`ones that had already been filed with AAA; and they actually
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`thought, I believe, that DoorDash in this matter may not have
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`been attempting to still apply the CPR agreement to any of the
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`petitioners.
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`THE COURT: Too many double negatives in there. I
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`can't follow what you're saying.
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`MR. POSTMAN: I'm sorry. CPR's understanding was that
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`DoorDash agreed everyone here was subject to the AAA agreement,
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`not the --
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`THE COURT: "Here." What do you mean?
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`MR. POSTMAN: In this case, all the petitioners.
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`THE COURT: Yes. So DoorDash agreed what now?
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`MR. POSTMAN: I apologize. I'm not --
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`THE COURT: You're not being very clear.
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`MR. POSTMAN: I will take a --
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`THE COURT: Say it again.
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`MR. POSTMAN: I will take a step back, if I may.
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`We plan to file a revised petition to compel arbitration
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`pursuant to the stipulated scheduling order; that we'll argue
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`that the vast majority of our clients have either never signed
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`the CPR agreement and therefore get to go to AAA or have signed
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`it and then opted out.
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`But there's this third bucket, which Your Honor raised in
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`the last hearing, of people who have signed the CPR agreement
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`but have either not submitted the opt-out in time or have not
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`yet submitted an opt-out at all.
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`DoorDash's position, as I understand it, is that those
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`people, even though they've already filed at AAA and were
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`closed out there due to DoorDash's refusal to proceed, now have
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`to go to the new process at CPR.
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`My understanding is that Ms. Lunetta didn't realize, CPR
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`didn't realize that that was DoorDash's position. They
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`thought --
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`THE COURT: Wait. Okay. Wait. So what did CPR think
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`was going to happen?
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`MR. POSTMAN: It would only be for other people, not
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`petitioners. None of the petitioners would go. It would just
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`be some other DoorDash driver who brings a claim for the first
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`time in arbitration after the agreement was rolled out.
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`THE COURT: All right. So now I understand what
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`you're saying.
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`MR. POSTMAN: I'm sorry.
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`THE COURT: How does that affect today's proceeding?
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`MR. POSTMAN: In light of that, we thought one way to
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`resolve it would be to just ask for CPR to ask DoorDash to
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`agree that that was what they would document.
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`And DoorDash -- Ms. Lunetta called them; they declined.
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`They said they still may -- they're willing to discuss it on a
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`case-by-case basis, but they may attempt to enforce the CPR
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`agreement against some of the petitioners in this case.
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`So the issue, as we see it, is still in the case.
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`MS. LUNETTA: If I could just clarify, because I spoke
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`to Gibson Dunn just a few minutes ago.
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`Their position is people who had filed a petition in AAA
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`but subsequently agreed to the CPR agreement and did not opt
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`out of that would be able -- would still have the option, if
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`they want -- they would be bound by the CPR agreement and, if
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`they didn't opt out, would continue to be bound by the CPR
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`agreement.
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`What I was told was, there are some people who may choose
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`to stay with the CPR agreement, and those people should be
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`allowed to do that. Those who do not wish to can opt out and
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`go back to AAA. And the people in the middle, who maybe didn't
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`get notice or didn't realize what they were signing, those
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`people could raise the issue to Gibson Dunn and DoorDash; and
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`they would probably allow those people, with good cause, to
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`not -- to go to back to AAA.
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`I think that's not -- CPR isn't part of that piece.
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`I think that's a question of contract probably, but that's not
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`CPR's piece of this.
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`THE COURT: What do you mean, it's not your -- it's
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`not CPR's piece of it?
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`MS. LUNETTA: So CPR is just there -- it's just their
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`rules that have been referenced and designated in the new
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`DoorDash agreement. Anybody who signs this agreement will be
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`subject to arbitration under the rules of CPR, including the
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`mass arbitration protocol, if applicable. Right? So they're
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`just sitting there as the arbitral forum.
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`And whether DoorDash has a contract with somebody to go to
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`AAA or a contract to go to CPR isn't for CPR to decide.
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`They're going to be there for people who are subject to
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`arbitration before CPR.
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`THE COURT: How does this -- look, this is --
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`all right. I'm pleased to hear all this argument about the
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`broader issues in the case, but you're here for a discovery
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`dispute. So --
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`MR. POSTMAN: If I may explain why I don't think that
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`we actually resolved it and what I would ask for, given
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`DoorDash's position that we still need to litigate over whether
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`some of the petitioners have to go to CPR.
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`I thought CPR was going to consider, because they didn't
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`realize that was going to be the case, saying CPR would not --
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`would refuse to take any of petitioners' cases because turns
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`out they were already at AAA and CPR is not going to use this
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`for people who already started at AAA.
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`It sounds like, based on Ms. Lunetta's proposal just now,
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`that CPR is not willing to do that.
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`Is that correct?
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`MS. LUNETTA: So my hope was that that was always the
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`understanding on the DoorDash side, but I'm not sure whether
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`that was their understanding or not.
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`The problem that CPR has is they contracted to handle
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`arbitrations that DoorDash brings them with people who have
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`agreements saying that they'll arbitrate through CPR. So CPR
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`has to take all comers, so to speak. People who opted to keep
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`and not opt out of the CPR agreement have a valid agreement
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`that CPR has to abide by. So that piece of it, I believe, will
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`have to be decided by you, Your Honor.
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`However, the reason that it matters to our discovery
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`dispute is that the Ninth Circuit case law and California state
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`case law says that in determining whether a protocol like CPR's
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`protocol is unconscionable goes to the process itself. Is the
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`process fair? And we -- I think we agree that on the face of
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`the protocol, it appears to be fair.
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`What Mr. Postman is concerned about is that if there --
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`there are all of these sort of soft administrative decisions
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`that are made by CPR or AAA or any arbitral provider about how
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`quickly cases will be assigned to an arbitrator, how long it
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`may take to schedule discovery and schedule hearings.
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`And Mr. Postman's concern is that there may have been
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`conversations by Gibson Dunn to CPR in developing the protocol
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`where they said, "Hey, we don't want these to go quickly. We
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`want to slow roll this process."
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`And so there weren't. I can represent that to the Court.
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`However, Mr. Postman, understandably, doesn't want to take my
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`word for it.
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`So what --
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`THE COURT: Were you the one who did this? Were you
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`an actor in the thing? How can you be so sure?
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`MS. LUNETTA: I reviewed all the documents,
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`Your Honor. I reviewed all the communications.
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`THE COURT: Well, maybe there were slow roll
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`conversations that were verbal.
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`MS. LUNETTA: There may have been. But I've spoken to
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`the people who were involved, and they've represented to me
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`that there weren't. And they would testify -- if we had a
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`deposition, they would testify that there were not. So that's
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`that piece.
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`However, I would be willing to provide all of the
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`documentations -- all of the documentation between Gibson Dunn,
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`DoorDash, and CPR to the plaintiffs as long as -- I think we've
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`discussed doing it under a protective order before, but I would
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`be willing to produce that stuff.
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`The concern that I have is that we not -- that CPR's
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`reputation as a neutral is not sullied in this process. And
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`CPR is willing to discuss how they could potentially -- and
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`maybe it's with DoorDash and with petitioners' counsel -- how
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`they can, on the back-end process, handle some of these
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`concerns that they have about timing and about the assignment
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`of arbitrators and the timing in which arbitrations would
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`happen and some escape valves if that process is not fast
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`enough. They're perfectly willing to undertake that effort,
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`and they have no intention of slow rolling anything.
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`And they certainly don't want to appear to anyone to be
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`not neutral or to be not working as efficiently as possible to
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`adjudicate arbitrations.
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`MR. POSTMAN: So, Your Honor, if I may, I do have to
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`say, I mentioned those other two options because that's what we
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`were discussing and what I thought we were close to agreeing
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`to. We did not agree to any of that.
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`We agreed to potentially pulling back a bunch of discovery
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`if our clients were not going to be subjected to the CPR
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`protocol.
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`It sounds like Ms. Lunetta's client was not willing to
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`agree to that, and we've walked in, and now I need to address
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`the basic issue, which is -- these facts are undisputed; and
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`Ms. Lunetta can please jump in if anything I'm saying is
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`inaccurate -- Gibson Dunn knew, before it reached out to CPR
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`about the protocol, that Keller Lenkner was representing a
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`large number of clients against two of its clients, DoorDash
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`and Postmates. It reached out in May.
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`My understanding is that there really wasn't much
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`discussion in earnest of the new protocol until mid-September,
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`which was right after Keller Lenkner filed the large number of
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`demands and AAA made the administrative rulings DoorDash did
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`not like.
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`The rulings DoorDash did not like were that all of the
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`arbitrations had to proceed without delay. DoorDash, through
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`its counsel, Gibson Dunn, who is one of the largest donors,
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`among the largest level -- the highest category of donors to
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`CPR, was on six substantive phone calls -- we don't know how
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`many scheduling calls or other calls -- but six substantive
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`calls, three of which had in-house counsel at DoorDash, to
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`review the rules and comment on them. So it was actively
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`involved in the review process.
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`Gibson Dunn, quote, made some suggestions. And as they
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`face their payment deadline for our clients at AAA, they urged
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`CPR to publish the rules as soon as possible. Then, when our
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`clients' claims were closed out, they rolled out the new rules,
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`incorporating the CPR agreement the next day.
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`I do think there are things that are unconscionable on the
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`face of the protocol. I think the protocol allows our clients'
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`claims to be staged in a way that could take years for them to
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`even have a hearing or even be assigned to an arbitrator.
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`I believe that there is a lot of circumstantial
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`evidence -- I don't have the actual communications right now --
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`but circumstantial evidence, based on the development of the
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`case, that Gibson Dunn and DoorDash went to CPR, with their
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`intention being to come up with a set of rules that would stage
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`these arbitrations to undo the decision of AAA.
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`Now, I understand that Ms. Lunetta feels like CPR didn't
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`know that; they didn't join Gibson Dunn in the endeavor of
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`writing the rules that way. But based on the way this rule
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`developed and what has been --
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`THE COURT: What is the name of the rule?
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`MR. POSTMAN: The CPR Mass Employment Claims Protocol.
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`MS. LUNETTA: I brought a copy for Your Honor.
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`(Document handed up to the Court.)
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`MS. LUNETTA: These are the main rules, and then the
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`protocol comes right after.
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`THE COURT: What do you object to about this protocol?
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`What's so bad about this?
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`MR. POSTMAN: Under the protocol, if more than 30
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`plaintiffs bring related similar claims against a single
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`defendant, the defendant only has to face ten at first. The
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`rest are stayed. The ten are bellwethered. And then there is
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`a mediation process where the rest remain stayed.
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`And, of course, parties mediate knowing what's coming
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`next. And what's coming next in this case is, unlike a class
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`where you do your initial decision and it gets applied to
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`everyone else, none of the other plaintiffs get any benefit
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`from the initial rulings. They'd have to litigate it again.
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`And when it comes time to litigate it again, everybody is
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`assigned a number and put in order and they proceed
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`sequentially, to the extent practicable.
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`To our understanding, CPR right now has 63 employment
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`arbitrators; whereas AAA has thousands. As I discussed in the
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`last hearing, I think that could mean it could take years
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`before any individual has even been assigned to an arbitrator.
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`This is at the very core of the dispute between the
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`parties at AAA, the very issue DoorDash was trying to undo, and
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`I think it's unfair.
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`As I said, to take an extreme example, if a set of rules
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`said that only five arbitrations could proceed against any
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`defendant each year, and everyone else has to wait, and this is
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`a defendant that is, in our view, misclassifying hundreds of
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`thousands of people in an obvious way, paying them below
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`minimum wage, saying to the minimum wage workers or sub-minimum
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`wage workers, "You'll get your arbitrator assignment in six
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`years," that is unfair on the face.
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`There is a dispute about whether that's how it would play
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`out. I understand that. CPR heavily disputes it. I would
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`submit that one good way to help Your Honor decide if that's
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`how this might play out is if that's how the parties involved
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`in the drafting intended it to play out. And the
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`communications between the parties would certainly shed light
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`on that.
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`We have two very different world views of how these should
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`proceed. But if what was being discussed at CPR was "These
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`should be staged; don't make them go all at once," and CPR was
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`hearing that from a bunch of defendants, I think that's highly
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`relevant to the unconscionability question we'll be briefing in
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`this case.
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`MS. LUNETTA: Your Honor, if I may respond to that.
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`THE COURT: Wait a sec. You can, but wait.
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`I'm trying to sort out. I know that there are people who
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`have the AAA and have opted out of CPR. And DoorDash said last
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`time those people go back to AAA. That was an important thing
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`that happened at the last hearing.
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`But with respect to those people who do not opt out of
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`CPR, we have several categories. One would be the category of
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`employee who actually wants -- I should call it driver --
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`driver who wants CPR. Second category is the people who did
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`not want CPR, wanted AAA, but screwed up and didn't opt out.
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`And you seem to be mentioning a third category.
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`MR. POSTMAN: I think it would be the people who did
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`not want CPR, opted out, but did it too late. There's a 30-day
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`window.
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`THE COURT: All right. Those people. All right.
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`So how about brand-new drivers who never had AAA? Are you
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`trying to represent them too?
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`MR. POSTMAN: We have -- my firm has a number of
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`clients that are in that situation. None of them are
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`petitioners here in this case. So I haven't raised the
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`situation they'd be in with Your Honor.
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`In discussing this discovery issue, my view is that I need
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`to be focused on the petitioners in this case and how it's
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`relevant to --
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`THE COURT: All right. I'll tell you what I want to
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`do here. You ready for my ruling on the discovery point?
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`Thank you. Here's the ruling.
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`MS. LUNETTA: Your Honor, if I may, my client paid for
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`me to fly all the way out here. If I could just speak to it
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`briefly before you rule.
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`THE COURT: No. I've heard what I need to hear.
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`MS. LUNETTA: Okay.
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`THE COURT: You agreed to produce some documents;
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`correct?
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`MS. LUNETTA: Yes, Your Honor.
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`THE COURT: Did you explain to your opponent what
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`those documents were?
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`MS. LUNETTA: Yes. In short, those are the
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`communications between CPR, Gibson Dunn, and DoorDash; and
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`communications internally that reflect conversations with
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`DoorDash or Gibson Dunn.
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`THE COURT: All right. I'm going to order you to
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`produce those, but no further ones for the time being.
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`MR. POSTMAN: Your Honor, minor category, if I may.
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`THE COURT: I don't want to hear anything more. I'm
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`quashing most of what you submitted.
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`I have a standing order that you grossly violated. I say
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`you can never have a 30(b)(6) with more than ten topics, and
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`you have 30-something topics. Did you know you were violating
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`that?
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`MR. POSTMAN: Your Honor, I apologize that you view
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`our notice as doing it that way. We believe there are seven
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`headings, and we provided --
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`THE COURT: There are 30-something.
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`MR. POSTMAN: I apologize.
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`THE COURT: It was way beyond the pale.
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`I used to practice longer than any of you three here,
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`24 years before I got this job. And I've now been on this job
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`almost 20 1/2. And one of the most abused things is
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`Rule 30(b)(6).
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`And you are a prime example of how it can be abused. I'm
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`going to be frank. You just listed 30-something topics and
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`expect them to stand on their head and stack greased BBs and
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`comply. Sorry. It's just too abusive. So quashed in its
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`entirety.
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`And I'm also quashing the rest of the document requests
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`for the same reason, overbroad, except for the ones you've
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`agreed to produce.
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`MS. LUNETTA: Thank you, Your Honor.
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`THE COURT: Now, but you need to identify -- I'm
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`talking now to CPR -- one witness who knows what happened.
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`Who was the person who was in charge of all this?
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`MS. LUNETTA: It was Allen Waxman. He's the president
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`and CEO.
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`THE COURT: Was he in these conversations?
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`MS. LUNETTA: He was.
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`THE COURT: All right.
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`Now, I may wind up letting you take more than one
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`deposition, but we're going to start with the right way to do
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`this. And I hope you all learn something from this about how
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`discovery ought to be conducted.
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`No 30(b)(6). Mr. Waxman will appear for his deposition,
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`and plaintiffs' counsel can depose him on all of this using the
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`documents that you have, and he may inquire into the existence
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`of other documents. He may inquire into the existence of other
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`witnesses that might be useful, but he can also inquire into
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`everything he wants to with respect to what happened here on
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`these mass rules. And we'll have one day.
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`And if I was doing the deposition, I would get -- if I was
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`a lawyer -- not to toot my own horn -- I would do a good job,
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`and I would get some real -- instead of grandstanding, I would
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`get some real useful information that could be used to the next
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`step and say, "Judge, now we got this, here's the next step we
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`need of more discovery."
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`So we will do it in a measured way, proportional to the
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`needs of the case, instead of this grossly beyond the pale.
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`You know, some judges would just quash this and say you're
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`not going to get anything.
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`But you're going to produce Mr. Waxman. Do you want me to
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`give you the date now, or can you agree that it will be done --
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`what date did I give? What did I say before?
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`MS. LUNETTA: Your Honor, we had agreed to produce
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`Mr. Waxman as noticed, but we were just trying to work out the
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`scope. So there's not going to be --
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`THE COURT: What date was he noticed?
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`MS. LUNETTA: I believe it was by December 15th.
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`THE COURT: Well, he hasn't -- that's come and gone.
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`MS. LUNETTA: Exactly. So whenever you tell us to
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`produce him, we will do so.
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`THE COURT: All right. How about the week between --
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`how about December 27th? Would that be too much of an
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`imposition?
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`MS. LUNETTA: It would not be for me. However, I just
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`have to check with Mr. Waxman and make sure that he doesn't
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`have travel plans.
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`THE COURT: I'll give you the following dates: 27,
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`30, or January 3 or 6. And he can choose. Mr. Waxman can
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`choose. Then plaintiff is going to have to wreck his holiday
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`to be there.
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`MS. LUNETTA: Thank you.
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`MR. POSTMAN: Thank you.
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`THE COURT: All right. Now, you've got to produce the
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`documents at least 24 hours before the deposition. You can't
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`spring them on him at the deposition.
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`MS. LUNETTA: Understood.
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`THE COURT: All right. Now, what I expect will happen
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`from this if plaintiffs' counsel does a decent job is he will
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`come out of that with the identity of one more witness that
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`needs to be deposed and a group of documents that are narrowly
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`defined and reasonably narrow, proportional to the needs of the
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`case.
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`So that's what I think should occur here.
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`MR. POSTMAN: Thank you, Your Honor. And if I may, I
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`apologize on the 30(b)(6).
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`THE COURT: You should. And this was beyond the pale.
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`I think this is a topic worthy of examination, but not to the
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`overreaching extent that you tried. And I think CPR's counsel
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`has been eminently reasonable.
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`MR. POSTMAN: I agree.
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`MS. LUNETTA: Thank you, Your Honor.
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`MR. POSTMAN: I agree.
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`THE COURT: So you go back and tell your client that
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`you were -- the judge thinks you were eminently reasonable.
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`MS. LUNETTA: Thank you, Your Honor.
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`THE COURT: Are we done for today?
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`MS. LUNETTA: We are. Have a happy holiday.
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`THE COURT: Happy Holidays.
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`MS. LUNETTA: Thank you, Your Honor.
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`(Proceedings adjourned at 11:22 a.m.)
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`---o0o---
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`CERTIFICATE OF REPORTER
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` I certify that the foregoing is a correct transcript
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`from the record of proceedings in the above-entitled matter.
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`DATE: Monday, December 23, 2019
`
`
`
`
`
`
`
`
`
`
`__________________________________________________
`
`Ana M. Dub, CSR No. 7445, RDR, CRR, CCRR, CRG, CCG
` Official Reporter, U.S. District Court
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