Zucchella v. Olympusat, Inc.
Zucchella v. Olympusat, Inc.
2020 WL 2334118 (C.D. Cal. 2020)
February 27, 2020
Abrams, Paul L., United States Magistrate Judge
Summary
The court determined that ESI was relevant to the case and ordered the defendant to produce documents responsive to the requests for production. The defendant was also ordered to provide a sufficiently detailed privilege log if they withheld any documents on the basis of attorney-client privilege or the work product doctrine.
Additional Decisions
Maria Luz Zucchella
v.
Olympusat, Inc., et al., and Related Counter-Claims
v.
Olympusat, Inc., et al., and Related Counter-Claims
Case No.: CV 19-7335-DSF (PLAx)
United States District Court, C.D. California
Filed February 27, 2020
Counsel
Lindsey Wagner, Scott Wagner and Associates PA, Burbank, CA, Barbara Faye Enloe Hadsell, Dan Stormer, Tanya Sukhija-Cohen, Theresa Zhen, Hadsell Stormer Renick and Dai LLP, Pasadena, CA, for Maria Luz Zucchella.Laura Reathaford, Caroline A. H. Sayers, Lathrop GPM LLP, Los Angeles, CA, William D. Cross, Jr., Pro Hac Vice, Lathrop GPM LLP, Kansas City, MO, for Olympusat, Inc., et al., and Related Counter-Claims.
Abrams, Paul L., United States Magistrate Judge
PROCEEDINGS: (IN CHAMBERS) Plaintiff's Motion to Compel Deposition and Further Responses to Discovery (ECF No. 41)
*1 On February 5, 2020, the parties filed a Joint Stipulation (alternatively “JS” (ECF No. 42)) in support of their positions regarding plaintiff's Motion to Compel (“Motion” or “Mot.” (ECF No. 41)) defendants Olympusat, Inc. (“Olympusat”) and its CEO and founder Tom Mohler (“Mohler”) (collectively “defendants”) to: (1) complete production of documents responsive to Requests for Production (“RFPs”) numbers 24, 27, 38, 41, 44, 45, and 59 served on Olympusat on August 1, 2019; (2) complete production of documents responsive to RFP numbers 9, 12, 17, 20, 21, 23, 78, and 79 served on Mohler on August 20, 2019; and (3) confirm a date for Mohler's deposition on or before March 30, 2020, and produce documents responsive to the RFPs attached to his deposition notice. (JS at 1, 4). Plaintiff also submitted the declaration of her counsel Theresa Zhen (“Zhen Decl.”) and exhibits; defendants submitted the declaration of their counsel, Laura Reathaford (“Reathaford Decl.”) and exhibits. On February 19, 2020, plaintiff filed a Supplemental Memorandum along with the supplemental declaration of Theresa Zhen (“Zhen Supp'l Decl.”). (ECF No. 43). Having considered the pleadings submitted in connection with the Motion, the Court has concluded that oral argument will not be of material assistance in determining the Motion. Accordingly, the hearing scheduled for March 4, 2020, is ordered off calendar. See Local Rule 7-15.
By way of background, plaintiff asserts claims of sexual harassment, hostile workplace, and retaliation she was purportedly subjected to while working for Olympusat from 2000 to 2019. (Id.). Plaintiff states that she has worked “on and off” for Olympusat under the supervision of Mohler, “first as a consultant and later as an employee,” and that for years she was subjected to Mohler's “frequent and aggressive sexual harassment.” (Id. at 2; Zhen Decl. ¶¶ 30, 37, 39). In April 2014, plaintiff became Vice-President of Programming Acquisitions. (JS at 2; Zhen Decl. Ex. 30).
Defendants respond that plaintiff “brought false claims of sexual harassment against them as a pre-emptive strike to avoid prosecution” for her taking kickbacks, knowingly making false statements to give her company credibility, and submitting false receipts to obtain expense reimbursements to which she was not entitled. (JS at 4, 5).
Although plaintiff initially served the subject RFPs in her state court action on August 1, 2019, and August 20, 2019, the action was removed to this Court on August 23, 2019; on September 6, 2019, plaintiff re-served discovery identical to that originally served in the state court, along with Interrogatories to Olympusat. (Id. at 6, 7). Plaintiff granted defendants' request for an extension of time to respond to the discovery requests to one week after the hearing date on their Motion to Dismiss; on October 11, 2019, the District Judge denied the Motion to Dismiss. (Id. at 7). Plaintiff sent an email to defendants regarding commencing discovery in advance of the Scheduling Conference, and defendants responded that they will “not be responding to any discovery by October 28 ... for the simple reason that discovery is not open yet and you will be required to re-serve it once discovery opens.” (Id.; Zhen Decl. Exs. 8, 9). On October 31, 2019, plaintiff again re-served the discovery. (JS at 7; Zhen Decl. ¶ 29). A telephonic Rule 26(f) conference was held on November 4, 2019. (JS at 7; Zhen Decl. ¶ 37). During that conference, plaintiff agreed that the RFPs and the Interrogatories “would be deemed served effective November 14, 2019.” (JS at 7; Zhen Decl. Ex. 10). On December 13, 2019, Olympusat served boilerplate objections to the subject RFPs and the Interrogatories, and did not produce a single document or indicate that it intended to produce documents. (JS at 8; Zhen Decl. Exs. 11, 12). Mohler's responses, received by plaintiff on January 10, 2020 (but served by mail on December 13, 2019), were nearly identical to Olympusat's responses, and also were “not accompanied by a single document” or any indication that Mohler intended to produce documents. (JS at 8; Zhen Decl. ¶ 41, Ex. 14).
*2 On December 27, 2019, plaintiff commenced the Local Rule 37-1 meet and confer process by sending defendants' counsel a letter detailing plaintiff's disputed issues with defendant Olympusat's responses. (JS at 8; Zhen Decl. Ex. 13). On January 10, 2020, the parties' counsel met and conferred in person. (JS at 8). As a result of the conference, (1) the parties agreed on narrowed language for each RFP as to which defendant Olympusat contended ambiguities in phrasing existed; (2) the parties reached an impasse on certain of the disputed RFPs; (3) defendants' counsel agreed to confer with Olympusat about the narrowed RFPs and get back to plaintiff by January 17, 2020, with defendant's response; and (4) counsel for defendants indicated that she was not available for Mohler's previously scheduled deposition date. (JS at 8-9). Despite stating she would do so, defendants' counsel never got back to plaintiff with alternative dates for Mohler's deposition. (Id. at 9 n.5). Defendant Olympusat also “unilaterally refused to produce documents to the disputed RFPs and stated that it would not engage in further meet-and-confer efforts regarding these Requests.” (Id. at 9).
Also on January 10, 2020, plaintiff received Mohler's discovery responses, and on January 14, 2020, Mohler served objections to the Rule 34 RFPs that were part of his deposition Notice. (JS at 11; Zhen Decl. ¶¶ 29 Ex. 15, 41 Ex. 27). On January 17, 2020, plaintiff wrote a “follow-up L.R. 37-1 prefiling letter to seek confirmation that Mohler would take the same position as Olympusat on identically worded RFPs that were met-and-conferred about on January 10, 2020.” (JS at 9; Zhen Decl. Ex. 16). Plaintiff also identified two RFPs (78 and 79) propounded on Mohler that were “not addressed in the in-person meet-and-confer regarding RFPs propounded on Olympusat and [stated] that, based on the nature of Defendants' objections at the meet-and-confer, Plaintiff anticipated Defendants would refuse to produce.” (JS at 9; Zhen Decl. Ex. 16). The January 17, 2020, letter also requested that the meet and confer process be continued with respect to the RFPs and Mohler's deposition. (Zhen Decl. Ex. 16). On January 21, 2020, defendants' counsel sent an email stating that she was “working with the client on narrowed requests and we hope to have this done in relatively short order,” without specifying what that meant. (JS at 9; Zhen Decl. Ex. 17). With respect to Mohler's deposition, plaintiff states that on January 21, 2020, defendants stated for the first time “that Mohler would not agree to be deposed ‘until we receive [plaintiff's] production of documents [in response to Defendants' Request for Production of Documents Set One]’.” (JS at 10; Zhen Decl. Ex. 17). On January 27, 2020, defendants responded to plaintiff's January 17, 2020, letter relating to Mohler's responses, “stating their inability to comply with the 10-day period mandated by L.R. 37-1.” (JS at 9-10; Zhen Decl. ¶ 45).
Defendants respond that “no party has met and conferred regarding any of Defendant Mohler's responses to discovery.” (JS at 11). They state that on January 27, 2020, they offered dates and times to conduct a meet and confer, but plaintiff's counsel never responded to the request. (Id. at 11-12). They also state that on February 4, 2020, defendants' counsel sent a second email to plaintiff's counsel regarding meeting and conferring regarding Mohler's responses, “but Plaintiff again refused to meet and confer.” (Id. at 12; Reathaford Decl. ¶¶ 2-3, Ex. 1).
Legal Standard
The Court will examine the issues in the Motion using the general standard set forth in Federal Rule of Civil Procedure 26 (“Rule 26”). Rule 26 provides that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Factors to consider include “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. Information need not be admissible in evidence to be discoverable. Id. However, a court “must limit the frequency or extent of discovery otherwise allowed by [the Federal] rules” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). Finally, the Court is mindful of the imperative that the Federal Rules of Civil Procedure be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1 (emphasis added); see also Landis v. N. Am. Co., 299 U.S. 248, 254-55, 57 S. Ct. 163, 81 L. Ed. 153 (1936) (a court has the inherent power “to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants” and “[h]ow this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance”).
*3 Relevance “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501, 67 S. Ct. 385, 91 L. Ed. 451 (1947)). Even so, the scope of discovery is not without limits as Rule 26(b) (as amended in 2015) now provides that discovery is limited to information that is relevant to a claim or defense in the lawsuit and proportional to the needs of the case. The party seeking to compel discovery “has the initial burden of demonstrating relevance” under Rule 26. See Integon Preferred Ins. Co. v. Saavedra, 2019 WL 4228372, at *2 (C.D. Cal. July 12, 2019) (citations omitted). Thereafter, “[t]he party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975); Sullivan v. Prudential Ins. Co. of Am., 233 F.R.D. 573, 575 (C.D. Cal. 2005)).
The Subject Discovery
The disputed discovery falls into three general categories: (1) RFPs to which defendants responded only with objections (with five subcategories); (2) RFPs for which defendants failed to provide a date certain for production; and (3) Mohler's deposition and related RFPs.
(1) RFPs to Which Defendants Responded Only with Objections
The parties group the disputed discovery requests to which defendants responded only with objections into five categories: (a) “Me Too” Complaints; (b) Investigations of “Me Too” Complaints; (c) Disciplinary Action Taken as to Defendant Mohler; (d) Lawsuits and Complaints Filed Against Mohler and/or Olympusat in State and Federal Court; and (e) All Court Orders Against Mohler. The Court will consider each category separately.
(a) “Me Too” Complaints
The RFPs at issue in this category include RFP numbers 24 and 41 served on Olympusat, and RFP numbers 9 and 17 served on Mohler. These requests generally sought all documents relating to complaints made by any person concerning Mohler's “conduct toward any female, including that he engaged in sexually harassing or offensive behavior and/or created a hostile work environment based on sex,” or relating to Mohler retaliating against any person for resisting his sexual advances or complaining that he engaged in such behavior toward them or others in their presence and/or created a hostile work environment based on sex. (JS at 12-13). Defendants objected to these request on the following grounds: various defined terms in the requests are vague, ambiguous, overbroad, burdensome, and oppressive, and/or unduly compound, conjunctive, and/or disjunctive; as seeking documents protected by the attorney-client privilege and work product doctrine; and as overbroad in time and scope. (Id. at 12-14).
Plaintiff complains that defendants' boilerplate objections are inadequate and tantamount to not making any objection at all. (Id. at 14). In response to defendants' vagueness objection, plaintiff agreed to narrow the requests to “natural ‘persons,’ ” and limited the defined term “YOU” to defendants and their managing employees. (Id. at 15). Plaintiff also argues that defendants failed to set forth with factual specificity the basis for their attorney-client privilege and attorney work product objections. (Id.). She contends that documents regarding other incidents of harassment by Mohler are relevant to her claims of hostile work environment, whether defendant Olympusat was on notice of Mohler's prior harassment, and whether defendant Olympusat acted reasonably to prevent or correct sexual harassment in the workplace. (Id. at 16 (citations omitted)). With respect to defendants' time and scope objections, plaintiff contends that she “alleges a continuing violation starting from the commencement of her working relationship with Mohler in 2000,” and “appropriately requests all [documents] from January 1, 2000 to the present.” (Id. at 16). She further contends that the discovery sought is proportional to the needs of the case considering the factors set forth in Rule 26 of the Federal Rules of Civil Procedure, i.e., her claims embody broad public policy concerns; the amount in controversy is “substantial as Plaintiff was a high wage earner at Olympusat”; there is a severe imbalance in the parties' relative access to relevant information as defendants “typically have far greater access” to the relevant documents; defendants represent many of the potential witnesses, thereby restricting plaintiff's counsel's ability to contact them; and Olympusat has the resources to easily respond to plaintiff's discovery demands. (Id. at 19-20).
*4 Defendants respond that the requests are vague and ambiguous as evidenced by plaintiff's agreement to narrow the requests as described above. They argue, therefore, that “had Defendant Olympusat, Inc., not objected, th[ese] request[s] would have remained impermissibly vague, ambiguous and overbroad.” (Id. at 21). Defendants further argue that because plaintiff was only employed from April 1, 2014, through October 2019 (prior to April 1, 2014, she was an independent contractor), her claim of sexual harassment “cannot survive prior to her employment,” because “FEHA only protects employees from sexual harassment.” (Id. (emphasis in original) (citations omitted)). Defendants explain that because the requests were impermissibly vague, overbroad, and burdensome, they asserted the attorney-client privilege and work product objections “to the extent the request sought privilege[d] documents (which has yet to be determined),” and state that they will provide a privilege log, if necessary, after the Court rules on the Motion “and determines whether any of the information sought is actually ‘discoverable.’ ” (Id. at 22). They also argue that the requests seek information for the 20-year period during which plaintiff worked in some capacity for Olympusat and that the burden of searching for “informal” complaints is “virtually impossible.” (Id. at 23). They further assert that “without other corroborating evidence of actual discrimination, comparator evidence alone is insufficient.” (Id. at 23-24 (citations omitted)). They also contend that the discovery is not proportional to the needs of the case for a number of reasons. First, plaintiff has not provided information regarding the amount in controversy in her Rule 26 disclosures and only states in the JS that the amount in controversy is “substantial.” (Id. (citations omitted)). Second, they assert that there is not a “severe imbalance” in the parties' relative access to relevant information, as plaintiff's disclosures list 85 witnesses who have information regarding plaintiff's complaints, Mohler's conduct, defendant's hostile workplace culture, and culture toward women. (Id. at 25-26). Finally, defendants contend that plaintiff has not presented any evidence “to justify a twenty-year search of ‘informal’ or ‘formal’ complaints regarding sexual harassment,” especially given the fact that FEHA only protects plaintiff since April 2014, when she became classified as an “employee.” (Id. at 26).
Plaintiff responds that although FEHA's other provisions “generally do not apply to independent contractors, the Act explicitly protects independent contractors against harassment.” (Pl.'s Supp'l Mem. at 3). She notes that under California Government Code section 12940, “[i]t is unlawful employment practice ... for an employer ... to harass ... a person providing services pursuant to a contract.” (Id. (quoting Cal. Gov't Code § 12940(j)(1))). She further notes that defendants do not dispute (and in fact they assert) that prior to April 1, 2014, plaintiff met the definition of an independent contractor “in that she was engaged in an ‘independently established business’ ... and used her own professional judgment in the performance of her work.”[1] (Id. (citing Cal. Gov't Code § 12940(j)(5)); see also JS at 21 (defendants assert that prior to April 1, 2014, plaintiff worked through her company, Perro Blanco Films, as an independent contractor for Ocean New Media, LLC); see also JS at 1 (stating that Mohler founded, owns, and operates Ocean New Media LLC).
(b) Investigation of “Me Too” Complaints
The RFPs at issue in this category include RFP numbers 27, 44, and 45 served on Olympusat, and RFP numbers 12, 20, and 21 served on Mohler, all of which seek documents relating to Olympusat's investigations into any complaints regarding Mohler's conduct, or relating to defendants' retaliatory actions taken as a result of any complaint. Defendants again objected to these requests on the following grounds: various defined terms in the requests are vague, ambiguous, overbroad, burdensome, and oppressive, and/or unduly compound, conjunctive, and/or disjunctive; as seeking documents protected by the attorney-client privilege and work product doctrine; and overbroad in time and scope. (JS at 26-30).
*5 Plaintiff again complains that defendants' boilerplate objections are vague and inadequate and tantamount to not making any objection at all, and states that she agreed to narrow the requests to “natural ‘persons,’ ” and limited the defined term “YOU” to defendants and their managing employees; that defendants failed to set forth with factual specificity the basis for their attorney-client privilege and attorney work product objections; that she clarified during the meet and confer that she was seeking “any and all investigations regarding Tom Mohler's conduct towards females, whether internal ... or external” -- information she deems to be clearly relevant and proportional to the needs of the case; and again asserts that the discovery sought is proportional to the needs of the case considering the factors set forth in Rule 26 of the Federal Rules of Civil Procedure. (Id. at 30-31, 37).
Plaintiff specifically contends that documents regarding defendants' investigations into plaintiff's and others' complaints relating to Mohler's conduct, and whether Olympusat failed to take measures reasonably calculated to end Mohler's harassment, are relevant to her claims of hostile work environment, whether defendant Olympusat was on notice of Mohler's prior harassment, and whether defendant Olympusat acted reasonably to prevent or correct sexual harassment in the workplace. (Id. at 30-31 (citations omitted)). She states that investigations of prior incidents of harassment by Mohler are relevant and admissible to establish whether a defendant's employment action against an employee was motivated by “invidious discrimination,” and to prove the employer's intent, to impeach the employer's credibility as a witness, and to rebut factual claims made by defense witnesses. (Id. at 32-33 (citations omitted)). She notes that the requested information will help disprove defendants' avoidable consequences doctrine defense, as well as show the effectiveness of Olympusat's “antidiscrimination and antiretaliation policies, if such policies exist.” (Id. at 35-36).
Defendants again respond that these requests are vague and ambiguous as evidenced by plaintiff's agreement to narrow the requests as described above, and that “had Defendant Olympusat, Inc., not objected, this request would have remained impermissibly vague, ambiguous and overbroad” -- although here they assert that the requests remain overbroad even after the meet and confer. (Id. at 38). They also argue again that plaintiff's claim of sexual harassment “cannot survive prior to her employment,” because “FEHA only protects employees from sexual harassment”; that they asserted the attorney-client privilege and work product objections “to the extent the request sought privilege[d] documents (which has yet to be determined),” and they will provide a privilege log, if necessary, after the Court rules on the Motion “and determines whether any of the information sought is actually ‘discoverable’ ”; that the burden of searching for “informal” complaints is “virtually impossible”; that “without other corroborating evidence of actual discrimination, comparator evidence alone is insufficient”; and that the discovery sought is not proportional to the needs of the case for the same reasons discussed with respect to the requests seeking “Me Too” Complaints as discussed above. (Id. at 38-44 (emphases in original)).
Defendants specifically contend that due to the fact that the requests are so “exceedingly overbroad,” they are unduly burdensome, harassing, and oppressive, and that Olympusat has no reasonable method to “conduct a search for investigations into vague and unspecific ‘conduct towards females.’ ” (Id. at 42).
(c) Disciplinary Action Taken as to Mohler After Investigation of “Me Too” Complaints
The RFPs at issue in this category include RFP numbers 38 and 59 served on Olympusat, and RFP number 23 served on Mohler, all of which seek documents relating to Olympusat's corrective actions (such as counseling, warnings, reprimands, and so on) taken with respect to Mohler's conduct toward any female, including that he engaged in sexually harassing or offensive behavior and/or created a hostile work environment based on sex. (Id. at 44). Defendants again objected to these requests on the following grounds: various defined terms in the requests are vague, ambiguous, overbroad, burdensome, and oppressive, and/or unduly compound, conjunctive, and/or disjunctive; as seeking documents protected by the attorney-client privilege and work product doctrine; and as overbroad in time and scope. (JS at 44-46).
*6 Plaintiff makes the same general arguments previously discussed with respect to the documents sought by the requests seeking production of “Me Too” Complaints, but also contends that these requests -- seeking documents regarding corrective actions taken by Olympusat -- are critical to demonstrate that Olympusat took insufficient disciplinary and remedial action in response to complaints of sexual harassment, e.g., it was consistently slow to react to claims by female employees, failed to seriously investigate plaintiff's complaints and the complaints of other women, and continued to allow Mohler to supervise plaintiff rather than taking corrective action. (Id. at 48-49).
Defendants make the same arguments they made in response to plaintiff's arguments with respect to the documents sought by the requests seeking production of “Me Too” Complaints.
(d) Lawsuits and Complaints Filed Against Olympusat and Mohler
The RFP at issue in this category is RFP number 78 served on Mohler, seeking any and all Complaints filed in state or federal court in which Mohler or Olympusat was a named plaintiff or defendant from January 1, 2000, to the present. (Id. at 56-57). Defendant Mohler objected to this request as vague, ambiguous, overbroad, and burdensome; overbroad in time and scope; and seeking evidence that is neither relevant to any party's claim or defense nor proportional to the needs of the case. (Id. at 57).
Plaintiff makes the same general arguments previously discussed with respect to the documents sought by the requests seeking production of “Me Too” Complaints, but also specifically contends that these documents are relevant to determine whether there are other female employees whom Mohler harassed or for whom a hostile work environment based on gender existed and/or who were retaliated against for resisting and complaining about Mohler's conduct. (Id. at 58). She suggests that “Mohler is known to retaliate against his female subordinates who complain about his misconduct by suing them first for miscellaneous commercial torts, thus silencing and intimidating women who would have otherwise had the courage to affirmatively sue him for sexual harassment.” (Id. (citing Florida lawsuit brought by Olympusat against consultant who resisted and complained about Mohler's sexual harassment)). She contends this information is highly relevant to her claims that defendants have engaged in a pattern of harassment and retaliation against female employees, and engaged in a pattern of “intimidating witnesses and threatening retaliation (including by alleging they have engaged in kickbacks or other prohibited conduct) if a victim complains about sexual harassment by Mr. Mohler, including wielding litigation as a tool of intimidation.” (Id.). She further contends that the complaints will show that Olympusat was on notice “that Mohler was a repeat offender.” (Id.).
Defendant Mohler makes the same arguments in response to plaintiff's general arguments as previously discussed with respect to the documents sought by the requests seeking production of “Me Too” Complaints. (Id. at 60). Additionally, he contends that this disputed RFP was never discussed in accordance with the Local Rule 37 meet and confer requirements, and that plaintiff does not allege in her operative First Amended Complaint (“FAC”) that the “instant Counter-suit was filed because she ‘complained about Mohler's behavior.” (Id. at 60).
(e) All Court Orders Against Mohler
The RFP at issue in this category is RFP number 79 served on Mohler, seeking any and all court orders that have been issued against him by any court in the United States, including orders such as domestic violence restraining orders, criminal protective orders, and other types of restraining orders. (Id. at 65). Defendant Mohler objected to this request as vague, ambiguous, overbroad, and burdensome; overbroad in time and scope; seeking evidence that is neither relevant to any party's claim or defense nor proportional to the needs of the case; and as violating Mohler's privacy rights. (Id. at 65-66).
*7 Plaintiff makes the same general arguments previously discussed with respect to the documents sought by the requests seeking production of “Me Too” complaints, but also contends that defendant's privacy objection “calls for a well-crafted protective order, rather than a bar on discovery.” (Id. at 66 (citations omitted)). She further notes that she alleges in her FAC that Mohler “has a reputation among employees and contractors with Olympusat for using his power to manipulate women, including women he solicits for professional and employment relations, and of making threats concerning employment or business contract relationships in order to ‘control’ those same women.” (Id. at 67; Zhen Decl. Ex. 1 ¶ 27). She submits that evidence that Mohler was under a court order relating to his harassment of a subordinate at Olympusat would be “highly relevant to the hostile work environment” faced by plaintiff and other female employees. (Id.).
Defendant Mohler makes the same arguments in response to plaintiff's general arguments as previously discussed with respect to the documents sought by the requests seeking production of “Me Too” Complaints. Additionally, he contends that this disputed RFP was never discussed in accordance with the Local Rule 37 meet and confer requirements. (Id. at 68). He also argues that the constitutional right to privacy protects his marital relationships, and implicit in plaintiff's request “is the potential discovery of not only criminal information but also information that might relate to Mr. Mohler's prior marriages.” (Id. at 72). He further argues that this information “is irrelevant ‘me too’ evidence,” and even if it is relevant, “its discovery does not outweigh the infringement of not only Mr. Mohler's privacy but also the privacy of any party who might be related to the proceedings Plaintiff[ ] seeks to discover.” (Id.). He submits that “California has recognized that evidence of criminal offenses is highly prejudicial and is admissible only if it has substantial probative value.” (Id. at 73 (citations omitted)).
Plaintiff responds that Mohler cannot show he has a right to privacy over court orders or lawsuits filed against him because “court filings are a matter of public record” and any concerns over third-party privacy rights can be remedied by a protective order. (Pl.'s Supp'l Mem. at 4 (citations omitted)).
Discussion
Although plaintiff did not timely raise her issues with Mohler's responses to the RFPs in compliance with Local Rule 37, the parties have thoroughly presented their positions on those responses to the Court. With the exception of RFP numbers 78 and 79, which are discussed separately below, it appears that Mohler's responses and positions on those responses mirror the responses and positions of Olympusat on virtually identical RFPs. Pursuant to Rule 1 of the Federal Rules of Civil Procedure, the Court determines that in order to secure the just, speedy, and inexpensive determination of this action, and to control its docket “with economy of time and effort for itself, for counsel, and for litigants,” it will consider the parties' arguments with respect to Mohler's RFPs notwithstanding plaintiff's failure to strictly comply with the procedures set forth in Local Rule 37 with respect to Mohler's RFPs.
With regard to defendants' objections to the RFPs as overbroad in time and scope, the Court does not agree with defendants that FEHA only protects employees, and not independent contractors, from sexual harassment claims. (Id. at 21 (citing Cal. Gov't Code § 12940)). In fact, the case cited to by defendants provides only that “[i]n order to recover under the discrimination in employment provisions of the FEHA, the aggrieved plaintiff must be an employee.” Irish v. Magnussen Home Furnishings, Inc., 2018 WL 6074530, at *3 (C.D. Cal. Apr. 24, 2018) (emphasis added) (quoting Estrada v. City of L.A., 218 Cal. App. 4th 143, 148 (Cal. App. 2 Dist. July 24, 2013)). There appears to be no dispute in this case that plaintiff was an employee of Olympusat from April 1, 2014, until October 2019, and that prior to April 1, 2014, she was an independent contractor. And, as correctly noted by plaintiff, claims of harassment under California Government Code section 12940 do apply to independent contractors. Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198, 1213-14 (C.D. Cal. Nov. 30, 2004) (“Even assuming the plaintiff was an independent contractor rather than an employee, the FEHA's anti-harassment provision protects ‘a person providing services pursuant to a contract’ ”). Plaintiff has raised such a claim in her FAC (FAC ¶¶ 81-91). However, although plaintiff asserts that she “alleges a continuing violation starting from the commencement of her working relationship with Mohler in 2000” and, therefore, “appropriately requests all complaints from January 1, 2000 to the present,” she does not provide any authority suggesting that allegations of a “continuing violation” are sufficient to permit an independent contractor to maintain any FEHA claim other than harassment while working as an independent contractor. Neither does the allegation of a “continuing violation” suggest that plaintiff would be thus entitled to the production of others' complaints against Mohler relating to sexual harassment or discrimination against them, or of a hostile work environment, made during the period she was an independent contractor. Notwithstanding plaintiff's employment status, the Court has reviewed plaintiff's First Amended Complaint and notes a dearth of allegations regarding sexual harassment toward her between 2000 and 2016.[2] The Court determines, therefore, that under these circumstances, with respect to all of the RFPs that are at issue, plaintiff is entitled to documents going back to January 1, 2000, but only to the extent they relate to the alleged sexual harassment of plaintiff; in all other respects, the production is time-limited to include only documents going back to April 1, 2014, the date plaintiff became an employee of Olympusat.
“Me Too” Complaints, Investigation, and Disciplinary Actions
*8 With respect to “Me Too” Complaints, Investigation of “Me Too” Complaints, and Disciplinary Actions taken against Mohler as a result of “Me Too” Complaints, the Court finds that the RFPs as written are generally vague and ambiguous. Plaintiff previously agreed to more narrowly define some of the terms, and the Court has narrowed the time frame to include only documents going back to April 1, 2014 (except as to those documents related to plaintiff herself). However, with respect to these three categories, the Court finds that the RFPs must be further narrowed to include only documents relating to Mohler's conduct toward any employee of Olympusat that resulted in a complaint (written or oral) of sexual harassment or discrimination, hostile workplace environment based on sex, or retaliation related to such complaints. Because the time frame and subject matter have been significantly narrowed, the Court determines that plaintiff's need for such information outweighs the burden of such a search as alleged by defendants.[3]
Thus, based on the foregoing, plaintiff's Motion is granted in part as to RFP numbers 24, 27, 38, 41, 44, 45, and 59 served on Olympusat, and RFP numbers 9, 12, 17, 20, 21, and 23 served on Mohler. No later than March 12, 2020, defendants shall produce all documents responsive to these RFPs, as narrowed by plaintiff in her January 13, 2020, letter, and as further narrowed by the Court with respect to the relevant time frame for production as discussed above.
Federal and/or State Court Complaints
With respect to RFP number 78 served on Mohler -- Complaints filed against Olympusat and/or Mohler in state and federal courts -- plaintiff agreed to narrow the definition of PERSONS to natural persons, and stated that “Complaints” include lawsuits, claims, or complaints filed in those courts. As discussed above, the Court narrows the relevant time frame to documents going back to April 1, 2014. (Id. at 57). The Court also finds that RFP number 78 must be further narrowed to include only Complaints going back to April 1, 2014, that were filed in a federal or state court in which either (1) Mohler and/or Olympusat are named as defendants, and the lawsuit includes allegations relating to Mohler's alleged sexual harassment or discrimination of any employee or independent contractor working for Olympusat, a hostile work environment at Olympusat due to Mohler's conduct, or retaliation based on complaints of Mohler's conduct toward any employee or independent contractor working for Olympusat, or (2) Mohler and/or Olympusat are named as a plaintiff (or counter-complainant) and the complaint (or counter-complaint) alleges wrongdoing by an employee or independent contractor who complained about sexual harassment by Mohler, a hostile work environment at Olympusat due to Mohler's conduct, or retaliation based on such complaints.
Thus, based on the foregoing, plaintiff's Motion is granted in part as to RFP number 78 served on Mohler. No later than March 12, 2020, defendant Mohler shall produce all documents responsive to these RFPs, as narrowed by plaintiff in her January 13, 2020, letter, and as further narrowed by the Court with respect to the relevant time frame for production as discussed above.
Court Orders
With respect to RFP number 79 served on Mohler -- seeking court orders such as domestic violence restraining orders, criminal protective orders, and other types of restraining orders -- the Court finds that this RFP is exceptionally overbroad and infringes on the privacy rights of Mohler and unidentified third parties. Plaintiff's assertions notwithstanding (see id. at 66), the information being sought is no more than marginally relevant -- if at all -- to defendant Mohler's “conduct in harassing his female employees and coercing them into submission, including through use of intimidation, threats, and litigation.” Moreover, the documents being sought by RFP number 79 go well beyond plaintiff's assertion that “evidence that Mohler was under a Court Order relating to his harassment of a subordinate at Olympusat” is relevant to her hostile work environment claim. (See id. at 67).
*9 Thus, as discussed above, plaintiff's Motion is granted in part as to RFP number 79 served on Mohler. No later than March 12, 2020, defendant Mohler shall produce only those court-issued restraining orders relating to Mohler's harassment of a subordinate at Olympusat. In all other respects, plaintiff's Motion to compel production of court orders is denied. If no such court orders exist, then no later than March 12, 2020, defendant Mohler shall provide a declaration, signed under penalty of perjury, setting forth all steps taken to locate responsive documents, and affirming that no responsive documents are in his possession, custody, or control.
(2) RFPs for Which Defendants Failed to Provide a Date Certain for Production
Plaintiff states that the RFPs at issue in this Motion also include Olympusat's responses to RFP numbers 1-7, 9-23, 25, 26, 28, 29, 31, 32, 34, 35, 37, 39, 40, 42, 43, 46, 47, 50, 51, 54, 55, 58, 61-72, 74-77, 79, 80, 82-99, 105-20 and 123-40; and Mohler's responses to RFP numbers 1-8, 9-11, 13-17, 18, 19, 22, 24-77, and 80-82. (Id. at 74 n.13; Zhen Decl. Ex. 14 at 4-12). Because Mohler's responses to RFP numbers 9 and 17 were already discussed above, they are not included in this discussion.
Plaintiff claims that for these requests, defendants stated they would produce documents after the RFPs were narrowed, that plaintiff narrowed the requests, that defendants have not committed to a date certain by which they will complete production, and that defendants failed to meet “their own self-imposed deadline to confirm that Defendants would produce documents pursuant to the narrowed requests.” (Id. at 74).
Defendant Mohler responds that the parties have not met and conferred on the requests served on him. (Id. at 74-75). Defendants contend that they did not “ ‘blow’ any deadline (not to mention a ‘self-imposed’ one)”; that plaintiff has “flatly refused” to meet and confer regarding her inadequate Rule 26 disclosures “and instead continues to send non-compliant disclosures”; and that plaintiff continues to withhold “admittedly responsive documents” that she agreed are responsive to defendants' discovery requests. (Id. at 75). Olympusat suggests that “the parties be ordered to go through Plaintiff's letter to remedy any inconsistencies,” and “then determine when and what documents are available for production”; and that “plaintiff be required to supplement her Rule 26 disclosures and be ordered to produce all of the documents she stated she would produce in response to Defendants's discovery requests.” (Id. at 75-76).
Defendants' arguments appear to demonstrate that their refusal -- (1) to produce documents that at least Olympusat did not dispute it agreed to produce subject to being narrowed as discussed during their meet and confer with plaintiff, and (2) to produce Mohler for deposition (as discussed in more detail below) -- may be motivated in part by perceived discovery abuses by plaintiff, disputes that are not before this Court in this Motion. The Federal Rules do not contain a provision “authorizing a litigant to behave only as well as his opponent.” See Acushnet Co. v. Birdie Golf Ball Co., Inc., 166 F.R.D. 42, 43 (S.D. Fla. 1996). Indeed, this Court does not (and will not) look favorably on a “tit-for-tat” approach to litigation, and will not consider such arguments made by the parties. See id. (noting that counsel should “lead by example, fulfill his obligations, and let the Court determine whether his opponent has failed to do so”); see also Nat'l Acad. of Recording Arts & Sci., Inc. v. On Point Events, LP, 256 F.R.D. 678, 680 (C.D. Cal. 2009) (“discovery is not conducted on a ‘tit-for-tat’ basis”); Sabo v. Fiskers Brands, Inc., 2013 WL 6816693, at *1 (D. Idaho Dec. 20, 2013) (“[d]iscovery is not a sport, and the Court does not encourage tit-for-tat discovery concessions”).
*10 No later than March 12, 2020, defendants shall produce all documents responsive to these RFPs (with the exception of Mohler's responses to RFP numbers 9 and 17, which were discussed previously) as narrowed by plaintiff in her January 13, 2020, letter, and as further narrowed by the Court with respect to the relevant time frame for production and subject matter of the documents being produced, i.e., pertaining to plaintiff going back to January 1, 2000, or pertaining to others going back to April 1, 2014.
(3) Mohler's Deposition and Related Production of Documents
Plaintiff contends that she noticed Mohler's deposition and provided ample opportunity for defendants to provide alternate dates. (Id. at 76). She notes that they failed to provide alternate dates and “waited until Mohler could shore up a justification to avoid appearing at his deposition.” (Id.). She states that to address defendants' “concerns about documents,” she has already produced nearly 900 pages of documents and audio files responsive to the RFPs and the Initial Disclosures. (Pl.'s Supp'l Mem. at 4, Zhen Supp'l Decl. ¶¶ 2-3). She also argues that “failure to produce documents is not a valid reason to delay” a properly-noticed deposition, and that defendants “are not entitled to withhold Mohler's deposition until they are satisfied with Plaintiff's production.” (JS at 76; Pl.'s Supp'l Mem. at 4).
Defendant Mohler responds that he “incorporates [his] arguments ... regarding any dispute regarding Defendant Mohler's responses to Plaintiff's discovery as Plaintiff has refused to comply with Local Rule 37's meet and confer requirements.” (JS at 76). Defendants also argue that plaintiff has failed to produce any documents in response to defendants' discovery requests and suggest that plaintiff “should be compelled to produce the documents she has promised to produce before Defendant Mohler's deposition is scheduled.” (Id. at 77 (citations omitted)).
Again, as discussed above, the Court will not consider the “tit-for-tat” arguments made by defendants.
No later than Monday, March 2, 2020, the parties shall telephonically meet and confer to set a date, time, and location for Mohler's deposition, such deposition to take place no later than March 19, 2020. Defendant Mohler shall produce documents responsive to the RFPs submitted with the deposition notice, to plaintiff's counsel at least 24 hours ahead of that deposition.
Protective Order
If either party so desires, the parties may submit to the Court for review an appropriately drafted stipulated protective order.[4] This Court's sample protective order is available at www.cacd.uscourts.gov, “Judges' Procedures and Schedules.”
Privilege Log
If defendants withhold any documents on the basis of attorney-client privilege or the work product doctrine, no later than March 12, 2020, defendants shall provide a sufficiently detailed privilege log to enable plaintiff to evaluate the applicability of the privilege or other protection asserted. Fed. R. Civ. P. 26(b)(5); Clarke v. Am. Comm. Nat'l Bank, 974 F.2d 127, 129 (9th Cir. 1992); see The Rutter Group, Cal. Practice Guide, Fed. Civ. Proc. Before Trial, Form 11:A (Privilege Log). Failure to provide sufficient information may constitute a waiver of the privilege. See Eureka Fin. Corp. v. Hartford Acc. & Indem. Co., 136 F.R.D. 179, 182-83 (E.D. Cal. 1991).
Defendants' Request for Sanctions
*11 Defendants request sanctions against plaintiff and her counsel pursuant to Local Rule 37-4, which states that “[t]he failure of any counsel to comply with or cooperate in the foregoing [Joint Stipulation] procedures may result in the imposition of sanctions.” (Id. at 78). They assert sanctions are warranted “for Plaintiff's simple failure to meet and confer regarding Defendant Mohler's responses to her requests for production,” despite defendants' counsel twice asking to meet and confer on these responses, and because counsel ignored defendants' request to meet and confer regarding plaintiff's failure to disclose her calculation of damages under Rule 26, despite “knowing that her ‘amount in controversy’ would be one of the requisite legal arguments.” (Id.).
In light of the fact that the requests seek virtually the same information from Olympusat and defendant Mohler, and that Mohler's responses to the RFPs and arguments raised in the Joint Stipulation are virtually indistinguishable from defendant Olympusat's responses and arguments, the Court will not elevate form over substance. Defendants' request for sanctions is denied.[5]
IT IS SO ORDERED.
Footnotes
Under California law, “a person providing services pursuant to a contract” must meet the following criteria: (1) the person has the right to control the performance of the contract for services and discretion as to the manner of performance; (2) the person is customarily engaged in an independently established business; and (3) the person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer's work. Cal. Gov't Code § 12940(j)(5). Thus, it appears that an individual classified as an independent contractor may generally meet the criteria for being a “person providing services pursuant to a contract.” See Hirst v. City of Oceanside, 236 Cal. App. 4th 774, 783-84 (Cal. App. 4 Dist. May 8, 2015) (noting that the express purpose of the 1999 amendment to section 12940(j) to include a “person providing services pursuant to a contract,” was to “expand[ ] the reach of the state's harassment (but not discrimination) protections by including contract workers [including independent contractors who meet the criteria] within FEHA's coverage”) (emphasis in original) (brackets added) (internal quotation marks omitted).
Plaintiff states, without providing any dates, that at some point she “resigned from any work relationship with OLYMPUSAT and went to work for another company.” (FAC ¶ 37).
In fact, it would not be surprising if information regarding “Me Too” complaints made against Mohler, investigations into such complaints, and disciplinary actions taken against Mohler as a result, may have been kept in Mohler's personnel file (if one exists), thereby providing a foundation for commencing such a search.
The Court advises that the Court may only enter a protective order upon a showing of good cause. Phillips v. G.M. Corp., 307 F.3d 1206, 1209 (9th Cir. 2002) (Rule 26(c) requires a showing of “good cause” for a protective order); Makar-Wellbon v. Sony Elec., Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good cause showing). In any proposed stipulated protective order submitted to the Court, the parties must include a statement demonstrating good cause for entry of a protective order pertaining to the documents or information described in the order. The paragraph containing the statement of good cause should be preceded by a heading stating: “GOOD CAUSE STATEMENT.”
The Court anticipates that going forward the parties will fully comply with the Local Rules, the Federal Rules of Civil Procedure, and the Central District's Civility and Professionalism Guidelines found at the Court's website under “Attorney Admissions.” The Court also anticipates that in the event of any future discovery disputes, counsel will work together cooperatively and in good faith to resolve (or significantly narrow) any disputed issues without the necessity for Court intervention.