EEOC v. Club Demonstration Servs., Inc.
EEOC v. Club Demonstration Servs., Inc.
2020 WL 5585060 (D. Alaska 2020)
September 16, 2020

Holland, H. Russel,  United States District Judge

Protective Order
Manner of Production
Attorney-Client Privilege
Attorney Work-Product
Privilege Log
Failure to Produce
Privacy
Proportionality
Initial Disclosures
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Summary
The court ordered the defendant to produce all ESI, such as documents and videos, within thirty days from the entry of the order. The defendant was also required to identify which documents are responsive to each request and provide a sworn affidavit describing the circumstances under which any responsive documents were disposed of. The court also put a protective order in place to alleviate any privacy concerns.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
CLUB DEMONSTRATION SERVICES, INC., Defendant
No. 1:19-cv-0007-HRH
United States District Court, D. Alaska
Filed September 16, 2020
Holland, H. Russel, United States District Judge

ORDER

Joint Discovery Motion
*1 In accordance with the scheduling and planning order in this case,[1] plaintiff U.S. Equal Employment Opportunity Commission and defendant Club Demonstration Services, Inc. have submitted a joint motion[2] to resolve discovery disputes. Oral argument has not been requested and is not deemed necessary.
 
Background
Plaintiff brings this action pursuant to Title I of the Americans with Disabilities Act to correct alleged unlawful employment practices by defendant and to provide relief for Terry Baker, who has allegedly been adversely affected by these practices. Baker worked as a part time sales advisor for defendant at the Costco Warehouse in Juneau, Alaska. Plaintiff alleges that defendant “violated the ADA when [defendant]: (1) did not make reasonable accommodations to the known physical limitations of Baker, an otherwise qualified individual with a disability, and (2) constructively discharged Baker from her employment on the basis of her disability.”[3]
 
On November 26, 2019, plaintiff served its First Request for Production of Documents and First Set of Interrogatories. Defendant provided written responses to these discovery requests on December 26, 2019 but did not produce any documents. On February 18, 2020, pursuant to a joint motion by the parties, the court ordered defendant to “complete its search for and production of responsive documents and serve its amended responses to [plaintiff's] First Request for Production of Documents and First Set of Interrogatories no later than February 28, 2020.”[4] This deadline was later extended until March 4, 2020.[5]
 
By March 4, 2020, defendant produced 855 pages of documents and three videos and also served supplemental written responses to plaintiff's First Request for Production of Documents and First Set of Interrogatories. Plaintiff notified defendant that it believed defendant's production was incomplete and the parties met and conferred on April 3, 2020, at which time defendant advised that it was gathering additional documents. The parties met and conferred again on July 30, 2020, and the parties agreed that defendant would have until August 4, 2020 to further supplement its discovery responses. Defendant supplemented its discovery responses on August 6 and 7, 2020, and on August 20 and 21, 2020, defendant produced approximately 487 pages of documents.
 
Plaintiff contends that defendant's production of documents and responses are still inadequate and incomplete. Defendant contends that judicial intervention is not necessary at this point and that the parties could continue to work together to resolve their discovery disputes. But, given that the parties have filed the instant joint motion, the court will resolve the parties' current discovery disputes.
 
Discussion
“Pursuant to Rule 37(a)(3)(B)(iv), ‘[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection’ if ‘a party fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.’ ” Renfrow v. Redwood Fire and Cas. Ins. Co., 288 F.R.D. 514, 521 (D. Nev. 2013) (quoting Fed. R. Civ. P. 37(a)(3)(B)(iv)). “Federal Rule of Civil Procedure 34(a) permits each party to serve the opposing party with document requests within the scope of Rule 26(b) that are ‘relevant to any party's claim or defense ...’ or, for good cause shown, ‘relevant to the subject matter involved in the action.’ ” Id. (quoting Fed. R. Civ. P. 26(b)). “Under Rule 33 of the Federal Rules of Civil Procedure, a party may serve upon any other party written interrogatories that relate to any matter that can be inquired into under Rule 26(b)(1).” United States ex rel. O'Connell v. Chapman Univ., 245 F.R.D. 646, 648–49 (C.D. Cal. 2007). “Rule 26(b)(1) permits discovery in civil actions of ‘any matter, not privileged, that is relevant to the claim or defense of any party....’ ” Id. at 648 (quoting Fed. R. Civ. P. 26(b)(1)). “For discovery purposes, relevance means only that the materials sought are reasonably calculated to lead to the discovery of admissible evidence.” Renfrow, 288 F.R.D. at 521. “The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1).” O'Donnell v. TD Ameritrade, Inc., 250 F.R.D. 502, 503 (S.D. Cal. 2008) (citation omitted). “In turn, the party opposing discovery has the burden of showing that discovery should not be allowed.” Id. (citations omitted).
 
*2 Indefinite Responses (RFP Nos. 9, 13-14, 16, 20-21, 24-32, 34, 36-37, 41, 43-44, 46-49, 57 61-64, 66, 70-72, 74-75, 77, 81, 83-84, 93). In its initial response to RFP Nos. 25-27, 43-44, and 46-49, defendant stated that it would produce responsive documents. However, plaintiff contends that to date, defendant has not produced any documents in response to these RFPs or advised plaintiff that no responsive documents exist. In it second supplemental response to RFP Nos. 9, 13-14, 16, 20-21, 24, 29-32, 34, 36-37, 41, 57, 61-64, 66, 70-72, 74-75, 77, 81, 83-84, and 93, defendant stated that it is continuing to search for responsive documents but “[g]iven the suspension of [its] business operations and the layoff of essentially its entire workforce, it is unable to state with certainty whether or not documents responsive to this request exist.”[6] Plaintiff argues that these responses are is inadequate and that it is past time for defendant to either produce documents in response to these requests or for defendant to tell plaintiff that there are no responsive documents.
 
Defendant contends that plaintiff is attempting “to take advantage of the current reduced status of [defendant's] business operations and the limitations that [d]efendant and its counsel are under due to COVID related business disruptions....”[7] Defendant also seems to suggest that there is nothing inappropriate about having a rolling production of documents, which is what it contends is happening here.
 
Rule 34(b)(2)(B) governs the timing of the production of documents. As the comments to this rule explain, “[t]he production must be completed either by the time for inspection specified in the request or by another reasonable time specifically identified in the response. When it is necessary to make the production in stages the response should specify the beginning and end dates of the production.” Fed. R. Civ. P. 34, Advisory Committee Notes, 2015 Amendment. Defendant has never provided plaintiff with an end date, which “leaves [p]laintiff[ ] and the [c]ourt guessing as to whether all responsive documents will be, or have been, produced.” Herrera v. AllianceOne Receivable Management, Inc., Case No. 14-CV-1844-BTM (WVG), 2016 WL 9503740, at *2 (S.D. Cal. May 3, 2016). It is time to establish an end date for defendant's production.
 
Plaintiff wants the end date to be immediate, and defendant suggests an end date of September 30, 2020. The court finds that neither of these dates is reasonable under the circumstances and instead finds that an appropriate end date is thirty days from the entry of this order. Thus, to the extent that defendant has not fully responded to these RFPS, defendant is compelled to do so no later than thirty days from the entry of this order.
 
Compliance with Rule 34(b)(2)(E)(i) (RFP Nos. 1-14, 16-22, 24-34, 36-41, 43-44, 46-64, 70-94, 96). Plaintiff contends that the documents that defendant has produced in response to these RFPs were not produced in compliance with Rule 34(b)(2)(E)(i), which provides that “[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request[.]” For example, RFP No. 1 asked defendant to produce all of Baker's personnel records, and in its second supplemental response, defendant stated that it had produced all of these records.[8] Plaintiff argues that such a response is not sufficient and requests that for each of these RFPs, defendant be compelled to “identify the responsive documents by their Bates numbers.” United States ex rel. Poong Lim/Pert Joint Venture v. Dick Pacific/Ghemm Joint Venture, Case No. A03–290 CV JWS, 2005 WL 2864745, at *1 (D. Alaska Oct. 28, 2005); Johnson v. Kraft Foods North America, Inc., 236 F.R.D. 535, 541 (D. Kan. 2006) (“[a]s the documents already have been provided, the easiest way for Plaintiff to comply with the ‘organize and label’ requirement is for Plaintiff to identify by bates number which documents are responsive to each request”). Defendant did this as to some of the RFPs in question, such as RFPs No. 3 and 10,[9] but for many of these RFPs, it did not provide the Bates numbers for the responsive documents.
 
*3 Defendant argues that the documents it has produced are self-explanatory and seems to be suggesting that plaintiff ought to be able to figure out which documents are responsive to which RFP. Defendant argues that what plaintiff is asking for here amounts to busy work.
 
Rule 34 requires that documents that are produced are to be organized and labeled. It does not sound as if defendant did that here. To the extent that it has not done so already, no later than thirty days from the entry of this order, defendant is compelled to identify by Bates number which documents are responsive to each of these RFPs
 
Compliance with Rule 26(a)(1)(A)(ii) (RFP Nos. 81-93). Rule 26(a)(1)(A)(ii) provides that a party, as part of its initial disclosure, should produce “a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment[.]” “In cases where ‘only a description is provided, the other parties are expected to obtain documents desired by proceeding under Rule 34 or through informal requests.’ ” Dykes v. BNSF Railway Co., Case No. C17-1549-JCC, 2018 WL 1456931, at *2 (W.D. Wash. March 23, 2018) (quoting Fed. R. Civ. P. 26 advisory committee's notes (1993 amendment)).
 
In its Initial Disclosures, defendant described thirteen general categories of documents but did not produce the documents at that time. Thus, in RFP Nos. 81-93, plaintiff requested that defendant produce the documents described in defendant's initial disclosures. In its second supplemental response to these RFPs, defendant stated that it had produced responsive documents, that it would produce responsive documents, and that it was still looking for responsive documents. Plaintiff argues that these responses show that defendant has still largely not completed its initial disclosures, which means, according to plaintiff, that defendant has frustrated one of the “ ‘major purpose[s]’ of the initial disclosure requirements” which “ ‘is to accelerate the exchange of basic information about the case and to eliminate the paper work involved in requesting such information.” R & R Sails, Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240, 1246 (9th Cir. 2012) (quoting Fed. R. Civ. P. 26 advisory committee's note to 1993 Amendments). Plaintiff contends that defendant should be compelled to supplement and/or amend its production and to “specify, by Bates number, which documents belong to which categories described in [defendant's] Initial Disclosures....”[10]
 
The court agrees. Defendant is compelled to produce all documents responsive to these discovery requests no later than thirty days from the entry of this order and for all responsive documents that it has already produced and for any documents that it will be producing, defendant shall identify by Bates number to which RFPs the documents are responsive.
 
Privilege Objections (RFP Nos. 6, 10, 13-16, 18-22, 25, 27, 38-41, 61-65, 78-80, 91-94, 96). In its response to each of these RFPs, defendant objected “to the extent [they] seek[ ] documents protected from disclosure pursuant to the attorney-client privilege or work-product doctrine” but stated that it would produce any non-privileged responsive documents.[11] In its second supplemental response, defendant stated that its “supplemental answers [were] provided subject to the previously general and specific objections asserted[,]”[12] which would presumably include its boilerplate privilege objections. But, in the second supplemental response, defendant also appeared to withdraw its privilege objections for some RFPs. For example, defendant's second supplemental response to RFP No. 6 was that “there are no documents responsive to this request available for production” because “[a]ny documents that may have been responsive to this request ... were, upon information and belief, disposed [of] in the normal course of business.”[13] This response seems to indicate that defendant is no longer claiming that there are responsive documents that are privileged but rather that any responsive documents are no longer available.
 
*4 Defendant served a privilege log on August 6, 2020, which lists only seven documents. But, plaintiff argues that the seven documents identified on defendant's privilege log could not possibly support the privilege objections defendant originally asserted in response to thirty-three of plaintiff's RFPs. Plaintiff also argues that defendant's supplemental responses have made it unclear as to which RFPs defendant is still claiming that some of the responsive documents are privileged. Plaintiff requests that defendant be compelled to withdraw its boilerplate privilege objections and amend its responses to specify for which requests it is withholding the documents set forth on its privilege log.
 
It is not clear from defendant's responses for which RFPs it is still claiming that there are privileged documents. Thus, no later than thirty days from the entry of this order, defendant shall specify for which RFPs it is still asserting a privilege objection and identify to which RFPs the documents on its privilege log are responsive.
 
Information Concerning Witnesses (Int. No. 14, RFP Nos. 34-35, 37, 42-49, 60). In its initial disclosures, defendant identified Amy Tollett, Aaron Rosen, April Killian, and other employees at the Costco where Baker worked as “individual[s] likely to have discoverable information ... that the disclosing party may use to support its claims or defenses[.]” Fed. R. Civ. P. 26(a)(1)(A)(i). In these discovery requests, plaintiff sought information concerning these individuals, but defendant objected to these requests on the ground that they sought “confidential personnel information belonging to third-parties not a party to this litigation.”[14] In addition, defendant redacted information concerning these individuals from documents that it did produce, including the names of other employees who had requested and received accommodations in a document at pages CDS 000322-25 of defendant's production.
 
Defendant's “confidential” objection was improper because “there is no generic ‘privacy’ privilege.” Ivy v. Outback Steakhouse, Inc., Case No. C05-654-JCC, 2006 WL 3813555, at *2 (W.D. Wash. Dec. 26, 2006). Despite defendant's contention to the contrary, the information plaintiff is seeking here may be relevant to the issues in this case. The protective order that is in place in this case will alleviate any privacy concerns. To the extent that it has not already done so, defendant is compelled to fully respond to these discovery requests no later than thirty days from the entry of this order.
 
RFP Nos. 34 and 35. In RFP No. 34, plaintiff requested “[a]ll documents concerning discipline, counseling, and/or warnings whether formal or informal, concerning the use of the restroom, unscheduled breaks and/or ‘self-breaking,’ and/or unattended and/or abandoned carts, issued to the employees identified in Defendant's answer to Interrogatory No. 14[,]”[15] which asked defendant to “[i]dentify all employees of [d]efendant who worked at the Juneau Warehouse at any time between February 1, 2016 and present[.]”[16] In RFP No. 35, plaintiff requested “[a]ll documents concerning request(s) for accommodation made by the employees identified in Defendant's answer to Interrogatory No. 14 ... , not including segregated medical records.”[17]
 
*5 Plaintiff contends that to date, defendant has not produced any documents that are responsive to RFP No. 34 and that in response to RFP No. 35, defendant has produced only documents related to accommodation requests that it granted. Plaintiff thus requests that defendant be compelled to complete its search for responsive documents and produce all responsive documents without improper redactions.
 
To the extent that it has not already done so, defendant is compelled to produce all non-privileged documents that are responsive to RFP Nos. 34 and 35, without any redactions, no later than thirty days from the entry of this order.
 
RFP Nos. 14, 23-24, 29-30, 33, 37-38. In RFP No. 14, plaintiff requested “[a]ll communications to or from Tollett, Killian, and/or Rosen concerning Baker's request(s) for accommodation in 2017.”[18] In RFP No. 23, plaintiff requested “[a]ll written communications between Baker and Tollett.”[19] In RFP No. 24, plaintiff requested “[a]ll written communications between Baker and Killian.”[20] In RFP No. 29, plaintiff requested “[a]ll communications from Baker to Defendant after her termination of employment.”[21] In RFP No. 30, plaintiff requested “[a]ll communications from Defendant to Baker after her termination of employment.”[22] In RFP No. 33, plaintiff requested “[a]ll communications concerning the allegations reflected in EEOC Charge No. 551-2018-0043.”[23] In RFP No. 37, plaintiff requested “[a]ll communications with Defendant's ‘Speak Up Line’ concerning Tollett, Killian, and/or the Juneau Warehouse between June 1, 2017 and June 1, 2018, including without limitation emails received at speakupline@daymon.com and documents concerning calls received at (800) 598-2497 x 7687 such as Zendesk tickets.”[24] In RFP No. 38, plaintiff requested “[a]ll communications to or from Tollett concerning the use of the restroom by Sales Advisors between February 1, 2016 and present.”[25]
 
Plaintiff contends that defendant has only produced a small number of documents in response to these requests and plaintiff believes that there should be more documents that are responsive to these requests. Plaintiff requests that defendant be compelled to produce all documents responsive to these requests and to “serve a sworn affidavit describing in detail its efforts to find responsive communications....”[26]
 
The court is not convinced that defendant needs to serve a sworn affidavit describing its efforts to find responsive documents. But, to the extent that defendant has not produced all non-privileged documents that are responsive to these requests, defendant is compelled to do so no later than thirty days from the entry of this order.
 
RFP No. 23. As set out above, in RFP No. 23, plaintiff requested “[a]ll written communications between Baker and Tollett.”[27] In its initial response to this request, defendant stated that responsive documents would be produced.[28] In its first supplemental response, defendant objected to this request “on the basis that it is overly vague and unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence.”[29] Defendant also “state[d] it is not aware of any written communications exchanged between Ms. Baker and Ms. Tollett regarding [Baker's] requests for accommodation in 2017. In the event any documents responsive to this request are located within Defendant's possession, custody or control, they will be produced.”[30] Then, in its second supplemental response, defendant stated that “[u]pon information and belief, there are no documents responsive to this request available for production. Any documents that may have been responsive to this request created or maintained by Amy Tollett, upon information and belief, [were] disposed [of] in the normal course of business.”[31]
 
*6 Defendant's assertion for the first time in its second supplemental response that responsive documents were disposed of is troubling, given that defendant had an obligation to retain documents once it received notice of Baker's EEOC charge in 2017. See 29 C.F.R. § 1602.14 (“Where a charge of discrimination has been filed, or an action brought by the Commission or the Attorney General, against an employer under title VII, the ADA, or GINA, the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action”). Defendant contends that the documents that may have been responsive to this request “were disposed of in the ordinary course of business before this litigation commenced.”[32] But, it is not clear whether any such documents may have been disposed of before Baker filed her EEOC charge. Thus, no later than thirty days from the entry of this order, defendant is compelled to produce all documents responsive to RFP No. 23 and provide a sworn affidavit describing the circumstances under which any responsive documents were disposed of after it had notice of plaintiff's EEOC charge.
 
Interrogatory No. 14. Interrogatory No. 14 asked defendant to “[i]dentify all employees of [d]efendant who worked at the Juneau Warehouse at any time between February 1, 2016 and present, including in addition to the information required by the definition above, their position, date of hire, and date of termination (if applicable).”[33] In its first response to this interrogatory, defendant “ref[ered] Plaintiff to the list of employees at the Juneau Warehouse already provided to the Plaintiff during the agency's investigation.”[34] Plaintiff contends that defendant admitted that this list was incomplete and that although defendant now contends that it has produced a complete list of employees, it has not included contact information for all of the employees. To the extent that it has not completely and fully answered Interrogatory No. 14, defendant is compelled to do so no later than thirty days from the entry of this order.
 
Conclusion
As set out above in detail, defendant has thirty days from the entry of this order to fully and completely respond to plaintiff's First Request for Production of Documents and First Set of Interrogatories. It is the court's perception that up to this point, defense counsel has been letting her client control the production of discovery and that this has not gone well. From this point on, defense counsel must take charge of discovery production and work with her client to ensure that her client does a complete job of responding to plaintiff's discovery requests.
 
On August 31, 2020, the court suspended all compliance dates in this case pending resolution of the instant motion.[35] Now that the joint discovery motion has been resolved, the parties shall, on or before September 30, 2020, provide the court with a new proposed case schedule.
 
DATED at Anchorage, Alaska, this 16th day of September, 2020.
 
Footnotes
Docket No. 19.
Docket No. 34.
Complaint and Jury Demand at 2, Docket No. 1.
Order from Chambers at 1, Docket No. 25 (emphasis omitted).
Order from Chambers at 1, Docket No. 27.
Defendant's 2nd Supplemental Responses to Plaintiff's First Request for Production of Documents at 5, Exhibit 7, Joint Motion [etc.], Docket No. 34.
Joint Motion [etc.] at 15, Docket No. 34.
Defendant's 2nd Supplemental Response to Plaintiff's First Request for Production of Documents at 2, Exhibit 7, Joint Motion [etc.], Docket No. 34.
Id. at 3, 5-6.
Joint Motion [etc.] at 22, Docket No. 34.
Defendant's Responses to Plaintiff's First Request for Production of Documents at 8, Exhibit 3, Joint Motion [etc.], Docket No. 34.
Defendant's 2nd Supplemental Responses to Plaintiff's First Request for Production of Documents at 2, Exhibit 7, Joint Motion [etc.], Docket No. 34.
Id. at 4.
Defendant's Response to Plaintiff's First Set of Interrogatories at 13, Exhibit 4, Joint Motion [etc.], Docket No. 34.
Plaintiff's First Request for Production of Documents to Defendant at 13, Exhibit 1, Joint Motion [etc.], Docket No. 34.
Plaintiff's First Set of Interrogatories to Defendant at 12, Exhibit 2, Joint Motion [etc.], Docket No. 34.
Plaintiff's First Request for Production of Documents to Defendant at 13, Exhibit 1, Joint Motion [etc.], Docket No. 34.
Id. at 10.
Id. at 11.
Id.
Id. at 12.
Id.
Id.
Id. at 13.
Id.
Joint Motion [etc.] at 32, Docket No. 34.
Plaintiff's First Request for Production of Documents to Defendant at 10, Exhibit 1, Joint Motion [etc.], Docket No. 34.
Defendant's Responses to Plaintiff's First Request for Production of Documents at 14, Exhibit 3, Joint Motion [etc.], Docket No. 34.
Defendant's Supplemental Responses to Plaintiff's First Request for Production of Documents at 3, Exhibit 5, Joint Motion [etc.], Docket No. 34.
Id.
Defendant's 2nd Supplemental Responses to Plaintiff's First Request for Production of Documents at 11, Exhibit 7, Joint Motion [etc.], Docket No. 34.
Joint Motion [etc.] at 36, Docket No. 34 (emphasis added).
Plaintiff's First Set of Interrogatories to Defendant at 12, Exhibit 2, Joint Motion [etc.], Docket No. 34.
Defendant's Response to Plaintiff's First Set of Interrogatories at 13, Exhibit 4, Joint Motion [etc.], Docket No. 34.
Docket No. 36.