SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES — CENTRAL DISTRICT
DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS AND DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE OF CUSTODIAN OF RECORDS DIRECTED TO NOVAPAY SOLUTIONS INC.
Date of Issuance: February 8, 2023
Issued by: Calderwood & Harkness LLP Attorneys of Record for Defendant Aurelius Media Americas Inc.
TO: NOVAPAY SOLUTIONS INC. (Attention: Marcus Yee, Director of Client Data Services), 2200 Powell Street, Suite 600, Emeryville, California 94608:
YOU ARE COMMANDED, pursuant to the California Code of Civil Procedure, to produce for inspection and copying the business records described herein, and to appear and give testimony at a deposition, as set forth in this subpoena. This subpoena consists of two parts: Part I is a Deposition Subpoena for Production of Business Records (Subpoena Duces Tecum), and Part II is a Deposition Subpoena for Personal Appearance of the Custodian of Records and/or Person Most Knowledgeable. Both parts are served concurrently and should be read together.
FAILURE TO COMPLY WITH THIS SUBPOENA MAY SUBJECT YOU TO CONTEMPT OF COURT PROCEEDINGS.
PART I
DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS
(SUBPOENA DUCES TECUM)
SECTION A: IDENTIFICATION OF SUBPOENAED PARTY
Full Legal Name of Subpoenaed Party: NovaPay Solutions Inc.
Entity Type: Corporation
Jurisdiction of Incorporation: State of Delaware
Principal Business Address: 2200 Powell Street, Suite 600, Emeryville, California 94608
Custodian of Records / Person to Whom This Subpoena Is Directed: Marcus Yee, Director of Client Data Services
Relationship to This Litigation: NovaPay Solutions Inc. ("NovaPay") is a third-party payroll processing and electronic timekeeping system provider that has furnished services to Defendant Aurelius Media Americas Inc. ("AMA") since on or about January 1, 2019. Specifically, NovaPay has provided AMA with the "TimeTrack Pro" electronic timekeeping system, which is used to record hours worked, apply automatic meal period deductions, and process related payroll functions for AMA's non-exempt employees at AMA's California facilities. NovaPay is not a party to this litigation. NovaPay is a nonparty deponent and records custodian that possesses business records and electronically stored information relevant to the claims and defenses at issue in this action, which concerns, among other things, the alleged failure to provide meal and rest periods, the alleged unlawful use of automatic meal period deductions, and related wage-and-hour violations under the California Labor Code.
SECTION B: COMPLIANCE INSTRUCTIONS
1. Date for Production. All documents and electronically stored information responsive to the categories described in Section D below shall be produced on or before March 3, 2023. This date is twenty-three (23) days from the date of issuance of this subpoena, which exceeds the minimum statutory notice period prescribed by California Code of Civil Procedure Section 2020.410(c).
2. Time. 10:00 a.m. Pacific Time.
3. Place for Production. Documents and electronically stored information responsive to this subpoena shall be produced at the following location:
Calderwood & Harkness LLP 777 South Flower Street, Suite 4200 Los Angeles, California 90017
Attention: Devon Archer / Nadia Petrov
At the option of the custodian of records, and in lieu of in-person delivery, production may be made by transmitting documents and electronically stored information in electronic format (as specified below and in accordance with the ESI Protocol Stipulation and Order entered in this action) to counsel for AMA at the following email addresses:
darcher@calderwoodharkness.com npetrov@calderwoodharkness.com
For productions exceeding 5 gigabytes in total file size, NovaPay may arrange for delivery via secure file transfer protocol (SFTP) or encrypted USB media, to be coordinated with the above-identified counsel.
4. Manner of Compliance. Pursuant to California Code of Civil Procedure Section 2020.430, the custodian of records of NovaPay Solutions Inc. may comply with this subpoena for the production of business records by delivering copies of the business records described herein, together with an affidavit of the custodian of records executed in compliance with Evidence Code Section 1561, in lieu of personal appearance at the time and place specified for production. This option to produce records by affidavit in lieu of personal appearance pertains only to the document production component of this subpoena (Part I). Compliance with the deposition subpoena for personal appearance (Part II) requires the personal appearance of the deponent and is separately noticed.
The affidavit of the custodian of records shall comply with Evidence Code Sections 1560 through 1566 and shall include a statement that: (a) the affiant is the duly authorized custodian of the records or is otherwise qualified to testify regarding the records; (b) the copies are true copies of all the records described in this subpoena that are in the possession, custody, or control of NovaPay Solutions Inc.; (c) the records were prepared by the personnel of NovaPay or AMA in the ordinary course of business at or near the time of the act, condition, or event; and (d) the identity of the records and the mode of their preparation.
5. Protective Order. All documents and electronically stored information produced in response to this subpoena are subject to the Stipulated Protective Order entered in this action on February 15, 2023 (the "Protective Order"), a copy of which has been provided to NovaPay concurrently with this subpoena. The Protective Order governs the treatment of confidential and proprietary business information and limits the use and dissemination of information designated as confidential. Documents and data containing personal employee information — including but not limited to Social Security numbers, home addresses, dates of birth, and bank account information — should be designated "CONFIDENTIAL" under the Protective Order at the time of production. NovaPay may also designate any of its own proprietary business information as "CONFIDENTIAL" in accordance with the terms of the Protective Order. Questions regarding the designation of documents under the Protective Order may be directed to Devon Archer at the contact information set forth above.
6. ESI Protocol. The production of electronically stored information ("ESI") in response to this subpoena shall comply with the ESI Protocol Stipulation and Order entered in this action on January 13, 2023 (the "ESI Protocol"), a copy of which has been provided to NovaPay concurrently with this subpoena. In accordance with the ESI Protocol, the following format specifications apply:
(a) Structured Data (including database records, timekeeping records, payroll data, and any records maintained in a relational database or data warehouse): Produce in delimited text format (CSV or tab-delimited), with accompanying data dictionaries identifying all fields, field types (e.g., alphanumeric, date, numeric), field lengths, and field descriptions. Each data table should be produced as a separate file, with files organized by category of document request. Where multiple tables relate to one another through key fields, identify the relational keys and provide a schema diagram or written description of the table relationships.
(b) Unstructured Data (including emails, correspondence, memoranda, reports, manuals, and other non-database documents): Produce in single-page TIFF format (Group IV, 300 DPI, black and white) with extracted text (OCR where text extraction from native format is not possible) and accompanying load files (Concordance DAT and Opticon OPT format). Alternatively, where production in image format would be impractical (e.g., for spreadsheets, databases, or multimedia files), produce in native format with extracted metadata.
(c) Metadata: For all ESI produced, include the following metadata fields to the extent available: document date, author, last modified date, file name, file path, custodian, Bates number range, and confidentiality designation.
SECTION C: DEFINITIONS AND INSTRUCTIONS
Definitions. As used in this subpoena, the following terms shall have the following meanings:
1. "AMA" means Aurelius Media Americas Inc., a Delaware corporation qualified to do business in California, with its principal office located at 8500 Sunset Boulevard, Suite 1400, West Hollywood, California 90069, Delaware Secretary of State File Number 5284731, Employer Identification Number 83-2194067, and its current and former officers, directors, employees, agents, consultants, and representatives.
2. "TimeTrack Pro" or "the System" means the electronic timekeeping system provided by NovaPay Solutions Inc. to AMA, including all modules, features, components, configurations, updates, patches, and versions thereof, as well as any predecessor or successor systems provided by NovaPay to AMA in connection with timekeeping or payroll processing. The term "TimeTrack Pro" encompasses both the software application and any associated hardware (including but not limited to time clock terminals, biometric scanners, and badge readers) deployed at AMA's facilities in connection with the system.
3. "Missed Meal Attestation Feature" or "MMA Feature" means the feature or module within the TimeTrack Pro system that allows employees to report a missed or shortened meal period by selecting an option on the time clock terminal or through the system's employee-facing interface. When activated and utilized, the Missed Meal Attestation Feature overrides the Automatic Meal Period Deduction for the applicable shift and triggers a one-hour meal period premium payment (or such other premium as may be configured) to be included in the employee's pay for the corresponding pay period. The term includes all versions, configurations, and iterations of this feature as deployed or available for deployment during the Class Period.
4. "Auto-Deduction" or "Automatic Meal Period Deduction" means the feature, function, or rule within the TimeTrack Pro system that automatically deducts a specified period of time (e.g., thirty (30) minutes) from an employee's recorded hours worked for any shift meeting or exceeding a configured threshold (e.g., five (5) hours or six (6) hours), based on the presumption that the employee took an uninterrupted meal period of the deducted duration. The term encompasses the software logic, configuration settings, business rules, and system parameters that govern when, how, and to what extent the deduction is applied.
5. "Class Period" means the period from November 1, 2018 through the date of production of documents responsive to this subpoena. This period corresponds to the class period as alleged in the operative complaint in this action, subject to any modification by the Court.
6. "California Facilities" means all seven (7) AMA production and office facilities located in the State of California, specifically:
(i) 8500 Sunset Boulevard, Suite 1400, West Hollywood, California 90069 (Headquarters & Post-Production);
(ii) 4024 Penmark Strategy Partners Avenue, Studio City, California 91604 (Stage A & Stage B — Unscripted Production);
(iii) 15301 Ventura Boulevard, Suite 300, Sherman Oaks, California 91403 (Digital Content);
(iv) 3800 W. Alameda Avenue, Burbank, California 91505 (Live Events & Field Production);
(v) 1438 N. Gower Street, Hollywood, California 90028 (Scripted Development);
(vi) 2120 Colorado Avenue, Santa Monica, California 90404 (E-Commerce Studio); and
(vii) 888 N. Sepulveda Boulevard, El Segundo, California 90245 (Post-Production Annex).
The term "California Facilities" also includes any additional AMA facilities located in the State of California at which AMA non-exempt employees recorded time through the TimeTrack Pro system during the Class Period, whether or not such facilities are enumerated above.
7. "Non-Exempt Employee" means any current or former employee of AMA classified as non-exempt from overtime requirements under the federal Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and/or the California Labor Code and applicable Wage Orders of the California Industrial Welfare Commission, and who was paid on an hourly basis for all or any portion of the Class Period. The term includes full-time, part-time, temporary, and seasonal employees.
8. "Document" or "Documents" is used in its broadest sense permitted under the California Code of Civil Procedure and the California Rules of Court. The term includes, without limitation: electronically stored information ("ESI"); database records and database extracts; system logs, audit logs, and event logs; configuration files; reports (whether generated automatically or manually); correspondence; electronic mail (email) and email attachments; instant messages and text messages; memoranda; letters; notes; meeting minutes and agendas; presentations; spreadsheets; charts; graphs; diagrams; photographs; audio and video recordings; contracts and agreements; invoices; work orders; project plans; training materials; user manuals and guides; technical documentation; and all other forms of recorded information, regardless of the medium on which they are stored.
9. "Person" means any natural person, corporation, partnership, limited liability company, association, joint venture, governmental entity, or any other legal or business entity.
10. "Communication" means every manner or means of disclosure, transfer, or exchange of information, whether oral, written, electronic, or otherwise, including but not limited to conversations, meetings, telephone calls, video conferences, emails, instant messages, text messages, letters, memoranda, and any other form of correspondence.
11. "You" or "Your" means NovaPay Solutions Inc. and its current and former officers, directors, employees, agents, consultants, representatives, subsidiaries, affiliates, predecessors, and successors.
12. "Relating to" or "concerning" means referring to, regarding, describing, evidencing, constituting, reflecting, pertaining to, connected with, or having any logical or factual relationship to the subject matter referenced.
Instructions. The following instructions apply to all categories of documents requested in Section D below:
Instruction 1: Scope of Production. You are instructed to produce all responsive documents and ESI in your possession, custody, or control. A document is in your "possession, custody, or control" if you have the right to obtain the document or a copy thereof upon demand, including documents held by your agents, contractors, cloud service providers, data hosting providers, or any other third party on your behalf.
Instruction 2: Structured Data Format. For structured data — including database records, timekeeping records, payroll data, system configuration data, and audit log data — produce in delimited text format (CSV or tab-delimited) with accompanying data dictionaries identifying all fields, field types, field lengths, and field descriptions. Where multiple tables are produced, identify the relational keys linking the tables and provide either a schema diagram or a written narrative describing the table relationships and data model. If any data fields contain coded values (e.g., facility codes, status codes, action codes), provide a complete lookup table or reference guide translating each coded value into its plain-language equivalent.
Instruction 3: Unstructured Data Format. For unstructured data — including emails, correspondence, memoranda, reports, manuals, and other non-database documents — produce in single-page TIFF format with extracted text (OCR where native text extraction is unavailable) and accompanying metadata, as specified in Section B above and in the ESI Protocol. Where production in image format would be impractical (e.g., for large spreadsheets, interactive dashboards, or multimedia files), produce in native format with extracted metadata.
Instruction 4: Privilege Log. To the extent any documents responsive to this subpoena are withheld on the basis of any privilege, protection, or other legal objection, you shall provide a privilege log that identifies each withheld document with sufficient particularity to enable the issuing party to assess the claim of privilege. For each withheld document, the log shall include: (a) the date of the document; (b) the author or sender; (c) all recipients (including cc and bcc recipients); (d) the subject matter or title of the document; (e) the type of document (e.g., email, memorandum, report); and (f) the specific privilege or basis for withholding (e.g., attorney-client privilege, work product doctrine).
Instruction 5: Non-Existence or Destruction of Documents. If any category of documents described in Section D does not exist, has never existed, or has been destroyed, lost, or made unavailable, you shall state so in writing with respect to each such category and provide the following information: (a) a description of the category of documents that do not exist or have been destroyed; (b) the date or approximate date of destruction, loss, or unavailability; (c) the reason for the destruction, loss, or unavailability; (d) the identity of any person with knowledge of the destruction, loss, or unavailability; and (e) the identity of any applicable data retention or destruction policy and the date of its adoption.
Instruction 6: Organization of Production. Documents shall be produced and organized to correspond with the categories of documents set forth in Section D below. Each category of documents shall be produced in a separately identified folder or file designation, using the category number (e.g., "Category 1 — Punch Records," "Category 2 — Auto-Deduction Records"). If a document is responsive to more than one category, it may be produced once with a notation identifying all categories to which it is responsive.
Instruction 7: Continuing Obligation. This subpoena imposes a continuing obligation to supplement the production if additional responsive documents are located or created after the initial date of production but prior to the trial of this action.
Instruction 8: Bates Numbering. All documents produced in response to this subpoena shall be sequentially Bates-numbered with the prefix "NOVAPAY" (e.g., NOVAPAY000001, NOVAPAY000002, etc.).
SECTION D: CATEGORIES OF DOCUMENTS REQUESTED
Category 1: Punch / Time Records
All clock-in and clock-out records (commonly referred to as "punch records," "time punches," or "swipe records") for all AMA Non-Exempt Employees at all seven California Facilities for the period from November 1, 2018 (or the earliest date available in the TimeTrack Pro system, if later than November 1, 2018) through the date of production of documents responsive to this subpoena.
For each record, include at a minimum the following data fields:
(a) Employee identification number (as assigned in the TimeTrack Pro system or any unique identifier used to associate the record with the employee);
(b) Employee name (first, middle initial, and last);
(c) Facility/location code (identifying the specific California Facility at which the punch was recorded);
(d) Date of the shift (or, where a shift spans two calendar dates, both dates);
(e) Clock-in time (including date and time stamp to the minute, and reflecting the time zone);
(f) Clock-out time (including date and time stamp to the minute, and reflecting the time zone);
(g) Total hours recorded for the shift (after application of any deductions, adjustments, or overrides);
(h) Total hours recorded for the shift before application of any automatic meal period deduction (i.e., gross hours between clock-in and clock-out);
(i) Any adjustments, overrides, edits, or manual corrections applied to the record, including the nature of the adjustment (e.g., manager override, auto-deduction reversal, missed punch correction), the identity of the person who made the adjustment (by name or user ID), the date and time of the adjustment, and the pre-adjustment and post-adjustment values; and
(j) Any flags, indicators, or status codes associated with the record (e.g., indicating a missed meal attestation, an overtime flag, or a shift exceeding 10 hours).
Note Regarding Pre-January 2019 Records: NovaPay's engagement with AMA commenced on or about January 1, 2019. Accordingly, punch records for the period November 1, 2018 through December 31, 2018 may not exist within the TimeTrack Pro system. However, to the extent records for the period November 1, 2018 through December 31, 2018 exist in any NovaPay system — including without limitation as historical data migrated from AMA's prior timekeeping system during the TimeTrack Pro system implementation, or as data maintained in a staging, archival, or backup environment — such records are requested and should be produced.
Category 2: Auto-Deduction Records
All records reflecting the application of the Automatic Meal Period Deduction to AMA Non-Exempt Employee time records during the Class Period. Without limiting the generality of the foregoing, this request encompasses:
(a) Each individual instance where the Automatic Meal Period Deduction was applied to an employee's time record, including the employee identification number, the date, the facility/location code, and the time at which the deduction was applied by the system;
(b) The amount of time deducted in each instance (e.g., thirty (30) minutes, or such other duration as may have been configured);
(c) The shift-length threshold that triggered the Automatic Meal Period Deduction for each instance (e.g., whether the deduction was triggered at five (5) hours, six (6) hours, or some other threshold);
(d) The employee identification number, employee name, facility/location code, and date for each instance of an auto-deduction;
(e) Any record of whether the Automatic Meal Period Deduction was overridden, reversed, adjusted, or cancelled after initial application, including the reason for the override or reversal (if recorded), the identity of the person who performed the override or reversal, and the date and time of the override or reversal; and
(f) Any system-generated reports or summaries aggregating auto-deduction data across employees, facilities, or time periods.
Category 3: Missed Meal Attestation Records
All records reflecting the use of the Missed Meal Attestation Feature by AMA employees at any California Facility during the Class Period. Without limiting the generality of the foregoing, this request encompasses:
(a) The date and time of each missed meal attestation submitted by an employee through the TimeTrack Pro system;
(b) The employee identification number and employee name for each attestation;
(c) The facility/location code identifying the California Facility at which the attestation was recorded;
(d) The type of attestation submitted (e.g., "missed meal period," "shortened meal period," "late meal period," or any other categorization used by the system);
(e) Whether the attestation resulted in the application of a meal period premium payment (i.e., one additional hour of pay at the employee's regular rate of compensation) and, if so, the date on which the premium was paid and the pay period in which it was included;
(f) The amount of any meal period premium paid in connection with each attestation;
(g) Whether the attestation resulted in the reversal or override of the Automatic Meal Period Deduction for the applicable shift; and
(h) Any supporting data, free-text fields, or comments entered by the employee or a supervisor in connection with the attestation.
Category 4: System Configuration Records — Automatic Meal Period Deduction
All records reflecting the configuration settings for the Automatic Meal Period Deduction feature as applied to AMA's account within the TimeTrack Pro system, from the date of initial system configuration through the date of production. Without limiting the generality of the foregoing, this request encompasses:
(a) The shift-length threshold at which the Automatic Meal Period Deduction was configured to be triggered (and any changes to this threshold over time), including whether the threshold was set on a per-facility basis or uniformly across all California Facilities;
(b) The amount of time configured to be deducted (e.g., thirty (30) minutes) and any changes to this amount over time;
(c) The date each configuration setting was initially implemented, and the date of each subsequent change to any configuration setting;
(d) The identity of the person — whether AMA personnel or NovaPay personnel — who implemented or requested each configuration setting or configuration change, including the person's name, title, and organizational affiliation;
(e) Any documentation of the business rationale, business justification, or instructions provided for each configuration setting or change, including any correspondence, work orders, change requests, or tickets associated with configuration changes;
(f) Any configuration parameters related to exceptions, exclusions, or special rules applied to the auto-deduction (e.g., exclusions for certain job classifications, departments, or shift types); and
(g) Screenshots, configuration reports, or system exports depicting the auto-deduction configuration settings as of any point during the Class Period.
Specific Request: In addition to the foregoing, NovaPay is specifically requested to identify whether the shift-length threshold for the Automatic Meal Period Deduction was set at five (5) hours or six (6) hours for AMA Non-Exempt Employees, and if the threshold was changed at any point during the Class Period, to identify the precise date of the change, the previous and new threshold values, and the circumstances of the change (including any correspondence or communications with AMA regarding the change). For context, AMA's own records indicate that the threshold was set at six (6) hours from approximately January 1, 2019 until approximately December 2022, when it was corrected to five (5) hours. NovaPay is requested to confirm or clarify this understanding with reference to NovaPay's own records.
Category 5: System Configuration Records — Missed Meal Attestation Feature
All records reflecting the activation, deactivation, configuration, or modification of the Missed Meal Attestation Feature at each AMA California Facility from the date of initial system implementation through the date of production. Without limiting the generality of the foregoing, this request encompasses:
(a) The date the Missed Meal Attestation Feature was activated at each California Facility, and if the feature was deactivated at any time, the date of deactivation and any subsequent reactivation;
(b) The identity of the person — whether AMA personnel or NovaPay personnel — who activated, deactivated, or modified the feature at each facility, including the person's name, title, and organizational affiliation;
(c) The facility/location code for each California Facility, and the specific activation or deactivation status of the Missed Meal Attestation Feature at each facility as of any given date during the Class Period;
(d) Any documentation of the reason or business rationale for activation or deactivation of the feature at each facility, including any correspondence, work orders, change requests, or tickets;
(e) Any system logs, audit trails, or event logs reflecting changes to the Missed Meal Attestation Feature's status (activated/deactivated) at any California Facility; and
(f) Any configuration parameters associated with the feature, including but not limited to: the types of attestations available to employees (e.g., missed meal, shortened meal, late meal); whether the feature was configured to automatically trigger a meal period premium payment; and whether the feature was integrated with any supervisory approval workflow.
Specific Request: NovaPay is specifically requested to identify at which AMA California Facilities the Missed Meal Attestation Feature was activated as of January 1, 2019, and at which California Facilities the feature was not activated as of that date. If the feature was activated at some facilities but not others during the initial system rollout period (approximately January 2019 through March 2019), identify the specific facilities and the specific dates on which the feature was activated at each facility. This information is relevant to Plaintiffs' contention that the Missed Meal Attestation Feature was not uniformly deployed across all California Facilities at the time of the system rollout, resulting in employees at certain facilities being unable to report missed meal periods and receive premium pay.
Category 6: System Configuration Records — Second Meal Period
All records reflecting system configuration settings related to second meal period tracking, deduction, or compliance for AMA Non-Exempt Employees working shifts exceeding ten (10) hours during the Class Period. Without limiting the generality of the foregoing, this request encompasses:
(a) Whether a second Automatic Meal Period Deduction was configured for shifts exceeding ten (10) hours, and if so, the configuration parameters (threshold, deduction amount, date of implementation);
(b) If a second Automatic Meal Period Deduction was not configured, whether any alternative system prompt, reminder, notification, or alert was configured within the TimeTrack Pro system to notify employees or supervisors of the requirement for a second meal period on shifts exceeding ten (10) hours;
(c) Any documentation of discussions, correspondence, or communications between NovaPay and AMA regarding second meal period configuration, including any recommendations made by NovaPay to AMA regarding second meal period compliance within the TimeTrack Pro system; and
(d) Any available system functionality related to second meal period tracking that was available but not activated or utilized by AMA during the Class Period.
Category 7: Payroll Summary Reports
Aggregate payroll summary reports for AMA's California Non-Exempt Employees for each pay period during the Class Period, to the extent such reports are maintained by NovaPay. Without limiting the generality of the foregoing, this request encompasses reports containing the following data elements, broken down by pay period:
(a) Total gross wages paid to California Non-Exempt Employees;
(b) Total overtime wages paid, distinguishing between overtime paid at one-and-one-half times (1.5×) the regular rate of pay and overtime paid at two times (2×) the regular rate of pay (double-time);
(c) Total meal period premiums paid (i.e., one additional hour of pay for each workday on which a meal period was not provided in accordance with California law);
(d) Total rest period premiums paid (i.e., one additional hour of pay for each workday on which a rest period was not provided in accordance with California law);
(e) Total hours worked by all California Non-Exempt Employees;
(f) Total overtime hours worked by all California Non-Exempt Employees;
(g) The total number of California Non-Exempt Employees paid in each pay period; and
(h) Any other payroll summary metrics reported by NovaPay to AMA on a regular basis during the Class Period.
Category 8: Implementation and Training Documentation
All documents and communications relating to the implementation, configuration, testing, and rollout of the TimeTrack Pro system for AMA, from the initial sales engagement through the completion of the system implementation (approximately January 2018 through June 2019). Without limiting the generality of the foregoing, this request encompasses:
(a) Implementation project plans, timelines, milestones, and status reports;
(b) System requirements documents, including any business requirements document, functional requirements document, or technical requirements document prepared for or by AMA in connection with the TimeTrack Pro implementation;
(c) Configuration specifications, configuration worksheets, or configuration checklists prepared for or by AMA, including any document identifying the specific features, modules, or settings to be activated or configured for AMA's account;
(d) Training materials provided to AMA regarding the TimeTrack Pro system, including any training materials, presentations, job aids, or quick-reference guides specific to the Automatic Meal Period Deduction feature and/or the Missed Meal Attestation Feature;
(e) User manuals, administrator guides, or system documentation provided to AMA, including any documentation describing the operation, configuration, and administration of the TimeTrack Pro system;
(f) All correspondence, emails, and communications between NovaPay and AMA regarding system implementation, configuration, testing, and rollout during the period from approximately January 2018 through June 2019, including but not limited to communications with or involving Gregory Tanaka, Karen Fong, Lorraine Okafor, or any other AMA representative; and
(g) Any go-live checklists, sign-off documents, acceptance testing records, or post-implementation review documents.
Category 9: Audit Logs and System Access Records
All system audit logs, event logs, access logs, or system access records reflecting:
(a) Changes to AMA's TimeTrack Pro system configuration during the Class Period, including any change to auto-deduction settings, Missed Meal Attestation Feature settings, pay rules, shift rules, or other system parameters, and including the date and time of each change, the identity (by user ID or name) of the person who made the change, the previous setting, and the new setting;
(b) Administrator-level access to AMA's TimeTrack Pro account, including the identity of all users with administrator-level access privileges, the dates on which administrator-level access was granted and (if applicable) revoked, and any log of administrator-level actions taken;
(c) Any manual adjustments, overrides, or edits to individual AMA employee time records made by NovaPay personnel (as distinguished from adjustments made by AMA personnel through the system's administrative interface), including the date and time of each adjustment, the identity of the NovaPay employee who made the adjustment, the employee record affected, and the nature of the adjustment; and
(d) Any system errors, outages, downtime events, data corruption events, or data integrity issues affecting AMA's timekeeping data during the Class Period, including the date and duration of each event, a description of the nature and scope of the event, the data affected, and any remedial actions taken.
Category 10: Correspondence and Communications
All correspondence, communications, and meeting notes between NovaPay (including any NovaPay employee, officer, director, agent, or representative) and AMA (including but not limited to communications with or involving Marcus Yee, Karen Fong, Gregory Tanaka, Lorraine Okafor, or any other AMA representative) during the Class Period relating to any of the following subjects:
(a) The Automatic Meal Period Deduction feature, including its configuration, operation, modification, or any issue arising from its use;
(b) The Missed Meal Attestation Feature, including its activation, deactivation, configuration, operation, or any issue arising from its use or non-use;
(c) Meal period compliance, including any discussion of California meal period requirements, AMA's compliance with such requirements, or the role of the TimeTrack Pro system in facilitating or documenting meal period compliance;
(d) System configuration changes of any kind, including requests for configuration changes, implementation of configuration changes, and testing of configuration changes;
(e) Employee complaints, inquiries, or grievances regarding timekeeping, punch records, meal period deductions, or the accuracy of recorded hours, to the extent communicated to NovaPay by AMA or by any AMA employee;
(f) Any audit, investigation, inquiry, or review regarding AMA's timekeeping practices, whether initiated by AMA, by a governmental agency (including the California Division of Labor Standards Enforcement or the U.S. Department of Labor), or by any other party; and
(g) This litigation (Fuentes, et al. v. Aurelius Media Americas Inc., Case No. 22STCV38214), including any communications regarding litigation holds, document preservation, or data production.
Category 11: Data Retention and Destruction
All documents reflecting NovaPay's data retention and destruction policies and practices as applied to AMA's timekeeping and payroll data, including:
(a) NovaPay's general data retention policies, data retention schedules, and records management policies, to the extent applicable to client timekeeping and payroll data;
(b) The specific retention period for punch records, payroll data, system configuration logs, audit logs, and correspondence maintained by NovaPay for client accounts generally and for AMA's account specifically;
(c) Any data destruction, purging, archiving, or deletion schedules applicable to AMA's data;
(d) Confirmation of whether any AMA data — including punch records, payroll data, system configuration data, audit logs, or correspondence — has been destroyed, purged, deleted, overwritten, or otherwise made unavailable during or after the Class Period, and if so, a description of the categories of data affected, the dates of destruction or purging, and the reason for the destruction or purging;
(e) Any litigation hold or preservation notice received by NovaPay in connection with this litigation or any related matter, and any actions taken by NovaPay in response thereto; and
(f) Any contractual provisions between NovaPay and AMA governing data retention, data ownership, data return, or data destruction upon termination of the service relationship.
PART II
DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE
OF CUSTODIAN OF RECORDS / PERSON MOST KNOWLEDGEABLE
SECTION A: IDENTIFICATION OF DEPONENT
Name of Deponent: Marcus Yee
Title: Director, Client Data Services
Organization: NovaPay Solutions Inc.
Business Address: 2200 Powell Street, Suite 600, Emeryville, California 94608
Capacity: Mr. Yee is identified as the Custodian of Records and Person Most Knowledgeable ("PMK") of NovaPay Solutions Inc. regarding NovaPay's provision of timekeeping and payroll services to Aurelius Media Americas Inc. NovaPay may designate an alternative individual to appear as its Person Most Knowledgeable if Mr. Yee is not the most knowledgeable person on all topics identified below, provided that NovaPay notifies counsel for AMA (Calderwood & Harkness LLP) of the identity of the alternative designee no later than five (5) business days before the scheduled deposition date.
If NovaPay determines that no single individual is qualified to testify as to all topics identified below, NovaPay may designate multiple individuals, provided that NovaPay identifies each designee and the topics as to which each designee will testify, and provides such identification to counsel for AMA no later than five (5) business days before the scheduled deposition date. In such event, the parties shall confer regarding the scheduling of the depositions of the multiple designees.
SECTION B: DEPOSITION DETAILS
Date of Deposition: March 10, 2023. This date is subject to the mutual agreement of the parties and the deponent's availability. NovaPay may propose an alternative date within ten (10) business days of the date specified above, provided that the deposition occurs no later than March 24, 2023. Any proposed alternative date shall be communicated to counsel for AMA (Devon Archer or Nadia Petrov) at the contact information set forth above.
Time: 10:00 a.m. Pacific Time.
Location: Calderwood & Harkness LLP, 777 South Flower Street, Suite 4200, Los Angeles, California 90017. The deposition will take place in a conference room at the above address. Alternatively, by mutual agreement of the parties and the deponent, the deposition may be conducted via remote videoconference using the Calderon Software platform (or such other videoconference platform as the parties may agree upon). If the deposition is to proceed via remote videoconference, counsel for AMA will provide the deponent with a videoconference link and access credentials no later than two (2) business days before the scheduled deposition date.
Estimated Duration: Four (4) to six (6) hours, not to exceed one (1) deposition day of seven (7) hours of testimony. The estimated duration is intended to account for examination by counsel for AMA (Calderwood & Harkness LLP) as the noticing party, as well as any examination by Plaintiffs' counsel (Castellano Byrne & Salas LLP and/or Veltrano Employment Law Group PC), who have been provided notice of this deposition.
Court Reporter: A certified court reporter will be arranged and compensated by the noticing party, Calderwood & Harkness LLP. The right to record the deposition by videography is reserved. If the deposition is recorded by video, a licensed videographer will be present at the deposition (or will participate remotely if the deposition is conducted by videoconference). NovaPay and its counsel will be notified if videography is elected no later than five (5) business days before the scheduled deposition date.
SECTION C: TOPICS FOR EXAMINATION
The deponent is requested to testify regarding the following topics. The deponent should be prepared to testify on all topics listed below and to identify and describe documents responsive to this subpoena:
Topic 1: NovaPay's Relationship with AMA. The scope and nature of NovaPay's engagement with AMA, including the date of initial engagement (on or about January 1, 2019), the services provided by NovaPay to AMA (including payroll processing and electronic timekeeping services), the terms of the service agreement between NovaPay and AMA, the key personnel at NovaPay and AMA who manage the relationship, and any amendments, modifications, or renewals of the service agreement during the Class Period. The deponent should be prepared to identify the NovaPay account manager or client relationship manager assigned to the AMA account and to describe the general scope of services provided.
Topic 2: TimeTrack Pro System — General Functionality. The general functionality, architecture, and operation of the TimeTrack Pro system, including the method by which employees record time (e.g., badge swipe, biometric scan, PIN entry), the types of data captured by the system for each time punch, the system's capabilities for tracking meal periods and rest periods, and the system's reporting capabilities (including standard reports and ad hoc reporting). The deponent should be prepared to describe the system at a level of detail sufficient to enable a layperson to understand how employees interact with the system and how time data flows from the time clock terminal to the payroll processing system.
Topic 3: Automatic Meal Period Deduction Feature — Configuration and Operation. The configuration, operation, and purpose of the Automatic Meal Period Deduction feature as applied to AMA's account, including: the shift-length threshold at which the auto-deduction was triggered (and whether this threshold was six (6) hours, five (5) hours, or some other duration); the amount of time deducted (e.g., thirty (30) minutes); the system logic by which the deduction was applied; any changes to the configuration of the auto-deduction feature during the Class Period; the process by which configuration changes are requested by the client and implemented by NovaPay; whether the auto-deduction was applied uniformly across all California Facilities or whether facility-specific configurations existed; and any known issues, errors, or limitations related to the auto-deduction feature.
Topic 4: Missed Meal Attestation Feature — Configuration and Operation. The configuration, activation, and operation of the Missed Meal Attestation Feature as applied to AMA's account, including: how the feature is activated or deactivated at individual facilities; whether activation and deactivation are controlled by NovaPay, by AMA, or by either party through the system's administrative interface; the process by which an employee uses the feature (including the employee's experience at the time clock terminal); how the feature interacts with the Automatic Meal Period Deduction (i.e., whether use of the feature automatically overrides or reverses the auto-deduction); whether use of the feature automatically triggers a meal period premium payment; the historical activation status of the feature at each of AMA's seven California Facilities throughout the Class Period; and any known issues, limitations, or complaints related to the feature.
Topic 5: System Rollout and Implementation. The timeline and process by which the TimeTrack Pro system was implemented for AMA, including: the overall project timeline (from initial engagement through go-live and post-implementation stabilization); whether the rollout occurred in phases, waves, or stages (e.g., a first wave of facilities going live in January 2019 and a second wave going live in March 2019); which specific California Facilities were included in each phase or wave; whether the Missed Meal Attestation Feature was included in the standard implementation checklist or was treated as an optional module requiring separate activation; any issues or challenges encountered during the implementation; and the identities of the NovaPay and AMA personnel primarily responsible for managing the implementation.
Topic 6: Second Meal Period Configuration. Whether the TimeTrack Pro system was configured to address second meal periods for AMA Non-Exempt Employees working shifts exceeding ten (10) hours, including: whether a second Automatic Meal Period Deduction was configured; if not, whether any alternative system prompt, reminder, or notification was configured to alert employees or supervisors regarding the requirement for a second meal period; whether NovaPay recommended any particular configuration to AMA regarding second meal period tracking; and any discussions, correspondence, or communications between NovaPay and AMA regarding second meal period configuration.
Topic 7: Data Integrity and System Reliability. The reliability and integrity of the TimeTrack Pro data for AMA during the Class Period, including: the system's uptime and availability metrics; any known system errors, outages, data loss events, or data integrity issues during the Class Period; the process for making manual adjustments, overrides, or corrections to employee time records within the system; the distinction between adjustments made by AMA personnel and adjustments made by NovaPay personnel; NovaPay's quality assurance and data validation processes; and any data reconciliation procedures performed by NovaPay for AMA's account.
Topic 8: Data Extraction and Production. The process by which NovaPay extracted and produced (or will extract and produce) AMA timekeeping and payroll data in response to this subpoena, including: the database systems and data sources from which data was extracted; the extraction queries or methodologies used; the format of production; any limitations on the ability to extract historical data (e.g., data archiving, data migration issues); any data fields that could not be extracted or produced; and the deponent's assessment of the completeness and accuracy of the produced data.
Topic 9: Correspondence with AMA Regarding Relevant Topics. Any correspondence, communications, discussions, or meetings between NovaPay and AMA (including AMA's in-house counsel or outside counsel) during the Class Period regarding: the Automatic Meal Period Deduction feature; the Missed Meal Attestation Feature; meal period compliance; rest period compliance; California wage-and-hour requirements as they relate to the TimeTrack Pro system; any complaints or inquiries from AMA employees regarding timekeeping; and this litigation (Case No. 22STCV38214), including any litigation holds, preservation notices, or requests for data production.
Topic 10: Data Retention and Destruction. NovaPay's data retention and destruction policies and practices as applied to AMA's data, including: the retention period for punch records, system configuration logs, audit logs, payroll data, and correspondence; any data purging, archiving, or destruction that has occurred with respect to AMA's data; any applicable contractual provisions governing data retention and destruction; and any steps taken by NovaPay to preserve AMA data in connection with this litigation.
PART III
LEGAL AUTHORITY AND STATUTORY NOTICES
A. Legal Authority
This subpoena is issued pursuant to the following provisions of the California Code of Civil Procedure:
• CCP § 2020.010 — Authorized methods of discovery from nonparties, including oral depositions and subpoenas for production of business records.
• CCP § 2020.020 — Authorization for the use of a deposition subpoena to require the attendance of a witness and the production of documents and electronically stored information.
• CCP § 2020.210 — Form and content requirements for a deposition subpoena for personal appearance.