Zucchella v. Olympusat, Inc.
Zucchella v. Olympusat, Inc.
2020 WL 8483772 (C.D. Cal. 2020)
November 2, 2020
Abrams, Paul L., United States Magistrate Judge
Summary
The court determined that ESI, such as documents on the privilege log and any agreements defendants have with Capko, Reed, and Gonzalez, are relevant to the parties' claims or defenses and proportional to the needs of the case. The court also noted that the protective order in this action sufficiently mitigates the privacy concerns regarding the documents in the privilege log as well as with respect to Mohler's testimony relating to complaints made by Capko, Reed, and Gonzalez and action taken by defendants as a result of those complaints.
Additional Decisions
Maria Luz Zucchella
v.
Olympusat, Inc., et al
v.
Olympusat, Inc., et al
Case No.: CV 19-7335-DSF (PLAx)
United States District Court, C.D. California
Filed November 02, 2020
Counsel
Christianna Howard, Deputy Clerk, ATTORNEYS PRESENT FOR PLAINTIFF(S): NONEN/A, Court Reporter / Recorder, N/A, Tape No., ATTORNEYS PRESENT FOR DEFENDANT(S): NONE
Abrams, Paul L., United States Magistrate Judge
PROCEEDINGS: (IN CHAMBERS) Plaintiff's Motion to Compel Deposition (ECF No. 118)
*1 On October 16, 2020, the parties in this action filed a Joint Stipulation (alternatively “JS” (ECF No. 119)) in support of their positions regarding plaintiff's Motion to Compel (“Motion” or “Mot.” (ECF No. 118)) the further deposition of defendant Tom Mohler. Plaintiff also submitted the Declarations of plaintiff's counsel Theresa Zhen (“Zhen Decl.”) and Lindsey Wagner (“Wagner Decl.”), each with exhibits; plaintiff's Declaration (“Zucchella's Decl.”); and the Declaration of Jessica Jade Valentini, a former employee of Olympusat (“Valentini Decl.”). (ECF Nos. 119-2, 119-3, 119-4, 119-5). Defendants submitted the Declarations of Tom Mohler (“Mohler Decl.”) and exhibits; its counsel Laura Reathaford (“Reathaford Decl.”) and exhibits; the Declaration of former Olympusat employee Tewai Asinas (“Asinas Decl.”); and the Declarations of current Olympusat employees Aurora Bacquerie (“Bacquerie Decl.”), Claudia Scott (“Scott Decl.”), and Chelita Hermosillo Sabinson (“Sabinson Decl.”). (ECF Nos. 119-6).
Throughout the JS, plaintiff requested that the Court take judicial notice of various documents she submitted with the Zhen Declaration and the Wagner Declaration; defendants filed Evidentiary Objections (“Objections” or “Objs.”), also seeking to strike portions of the Zhen, Wagner, Zucchella and Valentini Declarations, including many of the submitted exhibits. (ECF No. 119-7).
On October 28, 2020, plaintiff filed a Supplemental Memorandum. (ECF No. 123). The matter is now under submission and ready for a decision. (See ECF No. 120).
Request for Judicial Notice, Objections, and Motion to Strike
Plaintiff asks the Court to take judicial notice of the following documents: Wagner Decl. Ex. 1 (Charge of Discrimination filed byAdriana Herran with the Florida Comm'n on Human Relations (“Charge”)); Zhen Decl. Exs. 10 (Carly Capko amended complaint), 11 (Alexandra Diane blog post), 12 (Kim Reed motion to amend counterclaim), 13 (Tewai Asinas petition for restraining order), 14 (Herran's response to venue transfer motion in Florida state court), and 16 (Dina Almeida complaint filed in Los Angeles County Superior Court).
Defendants object to, and/or request the Court to strike, the following documents: Wagner Decl. Exs. 1, 2 (excerpt from May 15, 2020, Herran Deposition from Mohler v. Herran, case no. 50-2019-DR-007387-XXXX-MB (“2019-7387”) in Florida circuit court), 3 (excerpt from December 16, 2019, hearing in Florida court), and 4 (excerpt from May 15, 2020, Herran Deposition from case number 2019-7387 in Florida circuit court); Zhen Decl. Exs. 10, 11, 12, 13, 14, 15 (letter produced by defendants in this litigation re: Almeida), and 16. Defendants also assert objections to various portions of the Zhen, Zucchella, and Wagner Declarations, as well as to the entire Valentini Declaration.
The Court may take judicial notice of the various state and federal court records submitted by the parties. See United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (holding that courts may take judicial notice of “proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”); Mullis v. U.S. Bankr. Court, 828 F.2d 1385, 1388 n.9 (9th Cir. 1987) (holding that it is proper for a court to take judicial notice of the contents of court files in other lawsuits). The Court may also take judicial notice of matters of public record, such as prior court proceedings, and its own records. Cardiner v. Provident Life & Acc. Ins. Co., 158 F. Supp. 2d 1088, 1099 (C.D. Cal. 2001) (citations omitted). The Court will not, however, take judicial notice of any findings of fact in the court documents, only of the existence of each document and the orders of the courts. See Lee v. City of L.A., 250 F.3d 668, 690 (9th Cir. 2001) (on a motion to dismiss, “when a court takes judicial notice of another court's opinion, it may do so not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity”) (internal quotation marks omitted); M/V Am. Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983) (stating the general rule that “a court may not take judicial notice of proceedings or records in another cause so as to supply, without formal introduction of evidence, facts essential to support a contention in a cause then before it”).
*2 After considering the parties' arguments, and based on the foregoing, the Court grants plaintiff's Request for Judicial Notice of various state and federal court records (Wagner Decl. Ex. 1; Zhen Decl. Exs. 10, 12, 13, 14, and 16). Defendants' objections to these exhibits as well as to Wagner Declaration Exhibits 2, 3, and 4, are overruled and their request to strike these exhibits is denied. Plaintiff's Request for Judicial Notice of Zhen Declaration Exhibit 11 is denied.
After considering defendants' unopposed objections, the Court sustains defendants' objections to the Zhen Declaration Exhibits 11 and 15 and those exhibits will not be considered for purposes of this Motion. With respect to specific statements made in the Zhen, Zucchella, and Wagner Declarations, the Court overrules defendants' Objection numbers 1, 2, 21, 22, and 23, and sustains defendants' Objection numbers 10-20, and 28.
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”).
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)).
Disputed Issues
*3 By way of background, plaintiff asserts claims of sexual harassment, gender discrimination, hostile workplace, and retaliation she was purportedly subjected to while working for Olympusat from 2000 to 2019. (JS at 1). She specifically alleges the following: during her time with Olympusat, Thomas Mohler, Olympusat's CEO, made repeated sexual demands of plaintiff to which she eventually succumbed; after their sexual relationship ended, Mohler continued to pursue plaintiff, “manipulating her precarious financial situation, disrupting her romantic relationship with her husband, suspending her employment when she rejected his sexual advances, verbally harassing her and making incessant lewd remarks towards her in front of other work associates”; Mohler has a “history of soliciting females like Plaintiff to employment with Olympusat, only to then coerce them into sexual relationships”; Mohler bragged at corporate functions about his sexual conquests of current and potential future employees and ran his business as a “dating ring of women whom he hires to work for him, while using the employment opportunity for leverage over them”; and, when women attempt to end their relationship with Mohler, or otherwise object to his advances, he threatens their employment and/or contract status by accusing them of false criminal activities, and by taking or threatening to take meritless legal action. (Id. at 19-20 (citations omitted)). Thus, when plaintiff complained about Mohler's sexual harassment, he allegedly retaliated against her by filing the present counterclaim against her, in which he makes allegedly false accusations about her financial wrongdoing. (Id. (citations omitted)). Plaintiff asserts that over the past 20 years, Mohler has engaged in sexual relations “with at least five female subordinates ... including plaintiff, and has even fathered four of their children.” (Pl.'s Supp'l Mem. at 1).
On July 23, 2020, plaintiff took the deposition of defendant Mohler. (JS at 1). Plaintiff contends she was prevented from asking questions about certain “me too” witnesses, and that during the meet and confer process, defendants' counsel refused to reconsider defendants' position with respect to these individuals: Adriana Herran, Carly Capko, Kim Reed, Grace Gonzalez, and Tewai Asinas. (Id. at 1-2). Defendants' counsel also objected to questioning regarding complaints made against a current Olympusat manager, Shawn Copenhaver. (Id. at 1-3).
Plaintiff generally argues the following: (1) Mohler's testimony about the “me too” witnesses is relevant and proportional to the needs of the case, any privacy objections should be overruled, and Mohler must answer questions about facts known to him with respect to these individuals (JS at 12-24); (2) Mohler improperly asserted confidentiality objections to testimony regarding some of these individuals with whom he had confidentiality agreements (id. at 33-46); (3) testimony regarding incidents prior to April 1, 2014, is relevant and proportional to the needs of the case and establishes a continuing violation (id. at 51-63); (4) testimony regarding sexual harassment complaints against managers at Olympusat other than Mohler is relevant and proportional to the needs of the case (id. at 67-72); and (5) defendants improperly withheld documents included on their non-compliant privilege log. (Id. at 74-87).
Confidentiality Agreements and Privilege Log
Confidentiality Agreements
As discussed in more detail below, at his deposition, defendants' counsel instructed Mohler not to respond to certain questions about Capko, Reed, and Gonzalez due to the fact that defendants had entered into confidentiality agreements with these women.
Plaintiff contends that defendants have not provided her with evidence of the purported confidentiality agreements; neither have they proven that these agreements “categorically prohibit Mohler from testifying on the topics raised by Plaintiff's counsel during his deposition.” (Id. at 36). She further argues that regardless of the content of the purported confidentiality agreements, “ ‘confidentiality’ is not a valid basis for defense counsel to instruct Mohler to refuse to answer any questions about these three employees of Defendants” and that “relevant nonprivileged information is ‘not shielded from discovery merely because [it is] confidential.’ ” (Id. at 37 (citations omitted) (brackets in original)). Plaintiff observes that in DIRECTV, Inc. v. Puccinelli, the court overruled objections to a request for production of confidential settlement agreements between the plaintiff and other businesses, because the agreements were relevant and discoverable under Rule 26(b)(1). (Id. (citing DIRECTV, Inc. 224 F.R.D. at 684-85 (D. Kan. 2004))). She further notes that the DIRECTV, Inc. court also held that “litigants may not shield otherwise discoverable information from disclosure to others merely by agreeing to maintain its confidentiality.” (Id. (citing DIRECTV, Inc., 224 F.R.D. at 685)).
*4 Plaintiff asserts that the questions directed at Mohler during his deposition and relating to Capko, Reed, and Gonzales “were directed less at uncovering the terms of any settlement agreement they may have signed with Defendants and more at the underlying facts that led to complaints these three women made about sexual harassment by Mohler,” which will serve to provide relevant evidence “where the conduct was similar in the two lawsuits.” (Id. at 38 (citing Kalinauskas v. Wong, 151 F.R.D. 363, 365-66 (D. Nev. 1993))). She argues that Mohler should be required to provide “critical information ... about the sexual affairs he had with multiple subordinates, and whether such affairs created widespread sexual favoritism that permeated and infected Olympusat's work environment such that employees were led to believe that ‘they [can] obtain favorable treatment from [the manager] if they become romantically involved with him.’ ” (Id. at 40-41 (citing Miller v. Dep't of Corr., 36 Cal. 4th 446, 465-66 (2005) (brackets in original))). She states that the protective order issued in this action is sufficient to protect the confidentiality interests of defendants and any complainants. (Id. at 41 (citing ECF No. 124[1])).
Plaintiff further suggests that the “[f]actual information underlying the settlements may be relevant and admissible in the instant action, for instance, on issues such as whether defendant had the intent to discriminate based on gender and whether defendant's [sic] anti-discrimination policies were adequate.” (Id.). She further suggests that her need for discovery of potentially relevant information relating to Capko, Reed, and Gonzalez “outweighs Mohler's interest in protecting the negotiated settlement(s)” with them, as plaintiff's case “is an important case of public interest and seeks to protect the rights of women working for the Olympusat companies.” (Id. at 42). She argues that allowing settlement agreements to remain “cloaked in secrecy,” “promotes the practice of using money to bury the unlawful and demeaning activities complained of in Plaintiff's suit.” (Id.).
Plaintiff deems Mohler's testimony about these women to be proportional to the needs of this case for a number of reasons: (1) plaintiff's claims are brought “under broad remedial statutes embodying broad public policy concerns”; (2) the amount in controversy is “substantial” as plaintiff was a high wage earner at Olympusat; and (3) there is a severe imbalance in the parties' relative access to relevant information, and defendants have indicated in their initial disclosures that “they also represent many of the potential witnesses, thereby restricting Plaintiff's counsel's ability to contact them outside of a deposition.” (Id.). She asserts that under both Florida and California law, confidentiality agreements are contrary to public policy, and that section 1001(a) of the California Code of Civil Procedure “prohibits enforcement of a settlement agreement that prevents disclosure of factual information related to a claim filed in a civil action or complaint filed in an administrative action, regarding, (1) an act of sexual assault, (2) an act of sexual harassment, and (3) an act of workplace harassment or discrimination based on sex, or failure to prevent an act of workplace harassment or discrimination based on sex or an act of retaliation against a person for reporting harassment or discrimination based on sex.” (Id. at 43 (citing Cal. Code. Civ. Proc. § 1001(a)(1)-(3))). She notes that Florida (where Olympusat is incorporated and Mohler resides, and where some of the “me too” witnesses worked for defendants) has a similar provision. (Id. (citing Florida Statute § 69.081(2), which “voids any court order or private agreement that conceals a ‘public hazard’ ”)). Plaintiff argues that “Defendants and in particular, Mohler have committed multiple incidents of workplace sexual harassment, abuse, and/or sexual violence and made great efforts to conceal such egregious wrongdoing from the public.” (Id. at 44). She also argues that a confidentiality agreement is “void as a matter of public policy if ‘the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms.’ ” (Id. at 45 (citing Restatement (Second) of Contracts § 178(4))). Plaintiff concludes:
*5 [B]ecause (1) Defendants' confidentiality objections are improper, (2) Plaintiff is entitled to discover facts regarding Mohler's conduct towards me-too witnesses, which Defendants have not demonstrated is protected by confidentiality agreements, (3) Plaintiff's need for discovery and the public's need to expose public hazards in the workplace outweighs Mohler's need for privacy, and (4) confidentiality clauses concealing sexual harassment are void and unenforceable under California and Florida law, this Court should permit the resumption of Mohler's deposition to ask about the me-too witnesses (Capko, Gonzalez, and Reed).
(Id.).
Defendants respond that plaintiff's arguments are “nonsensical,” and because she is not a party or a third-party beneficiary of any of the agreements, she has no standing to challenge the legality of those agreements. (Id. at 49 (citing Pony v. Cnty. of L.A., 433 F.3d 1138, 1146-47 (9th Cir. 2006))). They note that the Ninth Circuit in Pony held that “[a] litigant is granted third-party standing because the tribunal recognizes that her interests are aligned with those of the party whose rights are at issue and that the litigant has a sufficiently close connection to that party to assert claims on that party's behalf.” (Id. (citing Pony, 433 F.3d at 1147)). The court in Pony denied the third-party's challenge to the legality of an agreement, noting that to find that the third party had standing to assert a claim based on the plaintiff's rights, “a claim that she does not wish to bring and one that is directly adverse to her interests[,] would not only be contrary to established Supreme Court case law, but would contravene the policies and rationale on which the doctrine of third-party standing is based.” (Id. at 49-50 (citing Pony, 433 F.3d at 1148)). Defendants submit, therefore, that plaintiff's attempt in this case to challenge the legality of other parties' confidential agreements to pursue her own interests -- the discovery of confidential information -- does not “align with the interests of the parties who bargained for confidentiality.” (Id. at 50). They state that plaintiff “does not have a close connection to any of the women at issue, none of whom have indicated an interest in voiding their confidential agreements” and, therefore, plaintiff's “attacks on the legality of the confidential agreements fail.” (Id.).
Plaintiff replies that although defendants contend she has no standing to challenge the settlement communications with the “me too” witnesses, they have made it “impossible to determine the general parameters of any confidentiality clauses (if they exist) contained in those documents.” (Pl.'s Supp'l Mem. at 2). She also argues that “Courts in this circuit routinely allow the production of confidential settlement agreements.” (Id. at 4-5 (citing O'Brien v. Johnson & Johnson Med. Devices Co., 2020 WL5215384, at *3-5 (C.D. Cal. June 24, 2020) (compelling production of settlement agreement with non-party); Peters v. Equifax Info. Servs. LLC, 2013 WL 12169355, at *3 (C.D. Cal. Dec. 13, 2013) (settlement agreement not privileged); In re Cathode Ray Tube (CRT) Antitrust Litig., 2015 WL 13756260, at *3-4 (N.D. Cal. Jul. 31, 2015) (holding that under California law, settlement agreements are discoverable under California Evidence Code section 1123))).
Privilege Log
Plaintiff represents that on April 10, 2020, defendants produced a privilege log, and that plaintiff subsequently sought disclosure of the five documents on the privilege log. (JS at 74; Zhen Decl. Ex. 7). She argues that confidentiality clauses -- if any -- in the letters and agreements listed on defendants' privilege log are “void, unenforceable, and contrary to public policy.” (JS at 3). The five documents on the log include two letters (“Letters”), which the log indicates are from T. Mohler to W. Julien (dated November 17, 2016, and September 26, 2019), and three agreements (“Agreements”) dated February 24, 2015, October 18, 2015, and January 17, 2019, and with the recipient and the author both labeled as “N/A.” (Id. at 75-76; Zhen Decl. Ex. 7). Plaintiff asserts that the Court should order production of these five documents, or conduct an in camera review to determine what portions should be produced to plaintiff. (JS at 76).
*6 Plaintiff argues that defendants have described the documents using “wholly generic and non-descriptive terms,” and without more information she will be unable to ascertain the subject matter or assess the claim of privilege. (Id.). She states that defendants maintain that the privilege log provides plaintiff with all the information she is entitled to, and “declined to produce the documents enumerated in the privilege log.” (Id. at 11 (citation omitted)). She notes that there is no information as to who “W. Julien” is, or as to the contents of the Letters, “i.e., the subject matter of the letter or whether any exhibits were attached to the letter.” (Id. at 76-77). She notes that “even less detail” is provided about the three Agreements, which did not identify any of the parties to the Agreement, or the sender or recipient of the documents, “let alone the names of individuals involved in the drafting and negotiations, the entity who paid the monetary settlements (if any), the monetary amounts (if any), and the enforcement mechanisms (if any).” (Id. at 77).
Plaintiff states that as far as she can tell, “the privilege log does not include Plaintiff's complaint of sexual harassment or that of another complainant (Dina Almeida) who filed a sexual harassment suit against Mohler in Los Angeles Superior Court in 2019.” (Id. at 80 emphasis in original) (citation omitted). She surmises, therefore, that the three Agreements and two Letters “likely represent five other women, that is a sum total of seven women who have stepped forward with similar complaints about Mohler's sexual harassment and misconduct in five years,” and “leads to plausible inferences that Defendants have used monetary payments to silence Mohler's victims and to evade accountability,” and have been “using legal agreements with confidentiality clauses to hide Mohler's predatory behavior and resulting claims of sexual harassment for many years and likely long before April 1, 2014.” (Id.). Plaintiff contends that such evidence is “critical to establishing that the managing agents of the Olympusat companies were aware of Mohler's misconduct towards women, and did nothing to stop it” and, actually “enabled his conduct through facilitating non-disclosure agreements pursuant to settlements with complaining women so that his conduct would never come to light.” (Id. at 80-81 (citation omitted)). She also suggests that the substantive terms of the Agreements “are also needed to show the extent to which a hostile work environment and widespread sexual favoritism permeated the Olympusat workplace.” (Id. at 81 (citation omitted)). Plaintiff further asserts that the protective order issued in this case will adequately preserve the confidentiality of the interactions between defendants and the other complainants. (Id.).
Plaintiff also generally argues that defendants have “conceded the relevance and discoverability of these documents by virtue of placing them on the privilege log.” (Id. at 79). She states that “me too” evidence regarding other women is relevant and discoverable as to her claims of sexual harassment, gender discrimination, hostile work environment, and notice to defendants that Mohler was engaging in sexual misconduct in the workplace. (Id.). She also submits that not only are confidentiality agreements unenforceable (as discussed above), but the authority cited by defendants to support a “settlement privilege,”[2] fails to support defendants' “categorical refusal to produce these documents.” (Id. at 78). She argues that MedImmune involves patents, which fall “under a carve out in Rule 26(c) as ‘confidential research, development and commercial information’ rising to the level of heightened protection.” (Id. (citing MedImmune, 2010 WL 3636211, at *2)). In that case, the court did not grant a blanket prohibition on production of the settlement agreement, “instead ordering an in-camera review, emphasizing the document's relevance.” (Id. (citation omitted)). Plaintiff further notes that the plaintiff in Marsh failed to address why her need for confidential settlement agreements outweighed the privacy of the parties who entered into them. (Id. (citing Marsh, 2017 WL 2224250, at *5)). The court in Marsh nevertheless “ordered the release of settlement agreements that met specific criteria,” i.e., involving claims of gender discrimination, unfair pay, or sexual harassment that “(1) do not contain a confidentiality provision; (2) relate to employees working in” the same office as plaintiff; and (3) were executed starting in December 2008. (Id. at 79); Marsh, 2017 WL 2224250, at *2. Plaintiff here argues that she has demonstrated that her need for discovery of confidential settlement agreements with female employees of Olympusat outweighs the privacy interest of the parties to these agreements. (JS at 79). She concludes that there is no federal privilege preventing the discovery of settlement agreements and related documents. (Id. (citing Bd. of Trs. v. Tyco Int'l Ltd., 253 F.R.D. 521, 523 (C.D. Cal. 2008))).
*7 Plaintiff further argues that there is no state law privilege shielding the Letters from discovery pursuant to a settlement privilege. (Id. at 82). She notes that even if the Letters contain an offer of compromise or any statements made in negotiation thereof, such information would be “inadmissible to prove the liability of the settling party.” (Id.). However, she argues, offers of compromise and related conduct and statements that are offered to prove “non liability (e.g., pattern and practice of settling sexual harassment claims, and truth or falsity of Plaintiff's claims of a hostile work environment) is not shielded from discovery.” (Id. (citing Lofton v. Wells Fargo Home Mortg., 230 Cal. App. 4th 1050, 1069 & n.7 (Cal. App. 1 Dist. 2014))). Similarly, if the Letters were written in connection with a mediation, “documents simply used or introduced in a mediation, or even including it as part of a writing, are not protected from disclosure.” (Id. (citing Cal. Code Evid. § 1120 (“evidence otherwise inadmissible or subject to discovery outside of mediation ... shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation))). Plaintiff concludes that defendants have presented no evidence that the Letters are reasonably construed as a compromise offer of settlement; were prepared for the purpose of, or in the course of, or pursuant to a mediation; led to an Agreement listed on the privilege log; contain a binding confidentiality clause or non-disclosure agreement; or any evidence to demonstrate that they are indeed protected by a settlement or mediation privilege. (Id. at 83).
Plaintiff next asserts that, “[a]t minimum, the portions of the Agreements or Letters that set forth facts supporting claims made against Mohler and Olympusat may not be shielded from discovery,” as the “underlying facts contained within the settlement agreements or settlement communications are discoverable.” (Id. at 83-84 (citing Kalinauskas, 151 F.R.D. at 365)). Plaintiff submits that her need for the discovery far outweighs Mohler's need for privacy and that, in any event, the protective order sufficiently protects defendants' privacy interests. (Id. at 84).
Defendants note that plaintiff has not previously objected to or requested clarification pertaining to the privilege log, and “any dispute over the adequacy of the privilege log is separate and apart from whether Plaintiff should be permitted to question Mohler about ‘me too’ witnesses.” (Id. at 87). They argue that plaintiff cannot assert that “deposition testimony about privileged documents is necessary as a basis for re-opening Mr. Mohler's deposition until she has objected and won that the privilege has been wrongly asserted and that the documents themselves need to be produced.” (Id.). They state that confidential settlement communications are shielded from discovery and the burden is “on the requester to make a particularized and/or heightened showing that the settlement information is relevant and likely to lead to admissible evidence.” (Id. at 88 (citing Peters, 2013 WL 12169355, at *2; Big Baboon Corp. v. Dell, Inc., 2010 WL 3955831, at *4 (C.D. Cal. Oct. 8, 2010))). They further assert that plaintiff's purported justification -- for use as “me too” evidence -- “does not outweigh the need for confidentiality between parties to promote settlement.” (Id. at 88-89 (citing Marsh, 2017 WL 2224250, at *2 (prioritizing the need for confidentiality over use of settlement agreements as “me too” evidence in the balancing of the interests in a discovery dispute and refusing to compel discovery of settlement agreements containing confidentiality provisions))).
Plaintiff responds that she has demonstrated that the “settlement communications, e.g., the parties, names of individuals involved in the drafting and negotiations, the entity who paid the monetary settlements, the monetary amounts, and the enforcement mechanisms, are particularized and probative of Defendants' pattern of participation and cover-up in years of sexual harassment, and will likely lead to admissible evidence.” (Pl.'s Supp'l Mem. at 5).
Analysis
Defendants have withheld all five documents on their privilege log on the basis of an alleged “settlement” privilege. (Zhen Decl. Ex. 7). They have also objected to questions at Mohler's deposition relating to Capko, Reed, and Gonzales, based on the fact that they have agreements with them containing confidentiality provisions. Plaintiff is correct, however, that there is no broad federal privilege that applies to settlement agreements. Bd. of Trs., 253 F.R.D. at 523.
*8 Instead, the courts in the Central District of California have generally employed an elevated standard in the settlement context, by placing the burden on the requesting party -- here, plaintiff -- to make a particularized or heightened showing that the settlement information is relevant and likely to lead to admissible evidence. Peters, 2013 WL 12169355, at *2; see also Big Baboon Corp., 2010 WL 3955831, at *4 (noting that “[s]everal courts in the Ninth Circuit have recognized that even though settlement agreements may be discoverable in some circumstances, the public policy favoring efficient settlements supports heightened scrutiny regarding their production”). As noted by the court in Big Baboon Corp., Rule 408(a) of the Federal Rules of Evidence “limits the admissibility of settlement agreements at trial, not their discoverability.” Big Baboon Corp., 2010 WL 3955831, at *2. In that case, the court determined that because the defendants were requesting discovery for a purpose not limited by Rule 408,[3] and because Ninth Circuit law does not clearly recognize a broad settlement privilege, the subject settlement agreement between the plaintiff and a third party was not protected from disclosure on that ground. Id. (granting motion to quash the subpoena requesting plaintiff's settlement agreement with a third party after in camera review revealed that “relevant evidence will not be withheld from Defendants by protecting the agreement from disclosure”).
Here, the Court emphasizes that it is not ruling on the “legality” of any of the Agreements. Moreover, unlike the plaintiff in Marsh, who failed to address how her requests were proportional to the needs of the case, plaintiff has provided an adequate explanation as to why the Letters and Agreements are relevant and proportional to the needs of the case, and the Court agrees.
The Court finds it reasonable to assume that the Agreements and the Letters on the log implicate the privacy interests of defendants as well as of individuals who are not parties to this action, as do any agreements defendants have with Capko, Reed, and Gonzalez. The Court does not take these privacy concerns lightly. The fact that there is a protective order issued in this action (ECF No. 61), however, substantially mitigates these concerns. Indeed, the protective order stipulated to by defendants and plaintiff includes a detailed protocol governing when a non-party's confidential information is required to be produced and the producing party is “subject to an agreement with the Non-Party not to produce the Non-Party's confidential information.” That protective order now also includes an Attorneys' Eyes Only designation. (ECF No. 124 §§ 7, 9). Thus, the Court determines that the protective order in this action sufficiently mitigates the privacy concerns regarding the documents in the privilege log as well as with respect to Mohler's testimony relating to complaints made by Capko, Reed, and Gonzalez and action taken by defendants as a result of those complaints.
The Court also finds defendants' privilege log to be woefully deficient as it does not provide sufficiently detailed information to enable plaintiff or this Court 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).
Accordingly, the Court concludes that -- assuming the documents on the privilege log and/or the claims of Capko, Reed, and Gonzales relate to claims of sexual harassment, gender discrimination, hostile work environment, and/or retaliation, involving defendant Mohler or others employed by defendants, or reflect corrective action considered or taken by defendants (including Mohler) as a result of such allegations -- that testimony (to the extent discussed below) and those portions of the documents on the log relating to factual allegations or claims against Mohler or Olympusat, or corrective actions -- if any -- taken by defendants (including Mohler), is relevant to the parties' claims or defenses and proportional to the needs of the case.
*9 As such, no later than November 17, 2020, defendants shall produce all documents on their privilege log that reflect factual allegations made against Olympusat or Mohler relating to sexual harassment, gender discrimination, hostile work environment, and/or retaliation, whether or not they involve defendant Mohler, and/or that reflect corrective action considered or taken by defendants as a result of such allegations. If the documents on the privilege log do not meet any of these criteria, then no later than November 17, 2020, defendants shall provide plaintiff with a new privilege log revised to include the information required for an adequate privilege log.
Testimony Relating to “Me Too” Employees
Plaintiff contends that in sexual harassment cases, evidence of other acts or wrongs (so-called “me too” evidence) may be admitted at trial to demonstrate motive or intent. (JS at 14 (citing Fed. R. Civ. P. 404(b)). In EEOC v. Farmer Bros. Co.,, the Ninth Circuit held that evidence of an employer's sexual harassment of other female employees besides the plaintiff can be relevant to proving a claim of discriminatory discharge on the basis of gender:
Individuals who engage in sexual harassment may have different motives. Sometimes, an employer or supervisor may use his power within the company's hierarchy in order to gratify his sexual desires. When an employee becomes the victim of her boss' unwanted sexual attention, she may be forced to tolerate his sexually harassing conduct for fear that her job or her advancement in the company are at risk. A woman in this circumstance may reasonably feel subordinated and belittled even though the harasser's primary purpose is to seduce her rather than to demean her or cause her anguish and distress.
Farmer Bros. Co., 31 F.3d 891, 897-98 (9th Cir. 1994) (citations omitted). The Ninth Circuit also noted that “[i]n other circumstances, however, sexual harassment may be symptomatic of gender-based hostility, the employer or supervisor using sexual harassment primarily to subordinate women, to remind them of their lower status in the workplace, and to demean them.” Id. at 898.
In Heyne v. Caruso, a quid pro quo sexual harassment case, the Ninth Circuit held that evidence of a restaurant owner's sexual harassment of five other female employees was admissible to prove the employer's motive or intent in discharging the plaintiff. Heyne, 69 F.3d 1475, 1477-81 (9th Cir. 1995). The court deemed such evidence to be “relevant and probative of the [owner's] general attitude of disrespect toward his female employees, and his sexual objectification of them.” Id. at 1480.
After careful consideration of the parties' arguments and the legal authority, the Court determines that some of plaintiff's purported “me too” evidence is relevant and proportional to the needs of the case.[4]
Herran
Herran was a personal assistant for Mohler, “who had been exposed to [Mohler's] personal advances” and who is currently involved in a paternity dispute with Mohler. (JS at 1; Pl.'s Supp'l Mem. at 1). Plaintiff contends that Herran worked for Mohler as his personal assistant after April 1, 2014; that Mohler pursued Herran sexually once he employed her; that he impregnated her; and that Olympusat subsequently terminated Herran when she later complained about his “violent and assaultive sexual advances.” (JS at 14 (citing Zucchella Decl. ¶ 8)). Plaintiff states that defense counsel instructed Mohler at deposition not to answer a single question about “me too” witness Herran, any pending litigation concerning Herran, or even questions about whether Herran had worked for Mohler. (Id.).
*10 Plaintiff argues that Herran's “allegations of truly horrific acts of sexual harassment and retaliation against Mohler ... are similar to the allegations against him in this case.” (Id. at 16, 19). Specifically, plaintiff submits that evidence of Herran's complaints against Mohler “would establish that Defendants had notice of a discriminatory work environment but did not take adequate measures to ensure that the discrimination was remedied,” indicating that defendants authorized or ratified the conduct. (Id. at 20). She also argues that such evidence is directly relevant to plaintiff's prayer for punitive damages. (Id.). Plaintiff states that such notice also “would be directly relevant to [Olympusat's] affirmative statutory duty and its third affirmative defense that required Defendant to take all reasonable steps to prevent discrimination and harassment from occurring.” (Id. (citations omitted)). She concludes, therefore, that she is entitled to question Mohler “about his relationship with Herran, including the facts underlying her complaints of sexual harassment, [his] involvement in any of the incidents [alleged by Herran], [his] participation in any investigation of those complaints, and any corrective actions taken by other Defendants against Mohler.” (Id. at 21).
Defendants respond that Herran and Mohler are parties to a paternity dispute and that this Court, in its February 27, 2020, Order, denied plaintiff's request for copies of “court orders such as domestic violence restraining orders, criminal protective orders and other types of restraining orders” as the request was “exceptionally overbroad and infringes on the privacy rights of Mohler and unidentified third parties.” (Id. at 24 (citing ECF No. 47 at 10)). Defendants note that the Court further found the information being sought to be “no more than marginally relevant -- if at all -- to defendant Mohler's ‘conduct in harassing his female employees ...,’ ” and limited the request to any “court-issued restraining orders relating to Mohler's harassment of a subordinate at Olympusat.” (Id. (citing ECF No. 47 at 10)). Defendants assert that the information being sought through Mohler's deposition “is no different than the documents Plaintiff initially sought in RFP 79,” and that because plaintiff did not timely object to the Court's ruling denying the broad discovery, she is not entitled to that information from Mohler at deposition. (Id.).
Defendants also argue that “me too” evidence must have a “close relationship ‘to the plaintiff's circumstances,’ ” and that evidence regarding Herran does not have such a relationship. (Id. at 125 (citing Goold v. Hilton Worldwide, Inc., 2014 WL 1383252, at *4 (E.D. Cal. Apr. 8, 2014))). That is, there must be a “link between the discrimination/harassment alleged in the complaint and other locations, complainants or decision makers.” (Id. (internal citation marks omitted) (quoting Constance Hanson-Poulson v. Dep't of Defense, 2020 WL 2043999, at *2 (C.D. Cal. Mar. 3, 2020))). They state that “[o]n-going litigation over a domestic dispute does not have any link to employment at Olympusat, Inc. and, as such, cannot be ‘me too’ evidence.” (Id. at 25 (citing Candelore v. Clark Cnty. Sanitation Dist., 975 F.2d 588, 590 (9th Cir. 1992) (holding that conduct outside the workplace has no legal bearing on showing the existence of hostile work environment))).
Defendants observe that “Herran admitted under oath in a December 16, 2019 hearing in the paternity dispute that there has not been any domestic violence or sexual violence involving ... Mohler.” (Id. (citing Mohler Decl. ¶ 3, Ex. 1, ¶ 4, Ex. 2)). As noted by defendants, however, a few weeks later in January 2020, Herran -- represented by the law firm of one of plaintiff's counsel -- filed a Charge of Discrimination with the Florida Commission on Human Relations. (Id. at 6). Defendants deem this to be “an obvious effort ... to bolster [Herran's] position in her pending paternity suit and a convenient maneuver to assist the Plaintiff in this case to assert Ms. Herran as a purported ‘me too’ witness.” (Id.). They argue that the information in the January 2020 Charge contradicts Herran's December 2019 testimony as she alleges in the Charge that Mohler had “battered, sexually assaulted, mistreated, harmed, [and] abused” her. (Id. (citing Wagner Decl. Ex. 1)). It also contradicts Herran's statement in a March 28, 2019, email to Mohler, that “[w]e had a relationship and it was consensual.”[5] (Id. (citing Mohler Decl. ¶ 4 Ex. 2)). Defendants also point out that in a paternity venue brief filed on March 26, 2020, in the Florida court, Herran did not allege that she had filed a complaint about workplace sexual harassment, gender discrimination, hostile work environment, or retaliation, and admitted there has not been any domestic violence or sexual violence involving Mohler. (Id. at 30 (citing Zhen Decl. Ex. 14)). They conclude, therefore, that plaintiff's “new arguments that Mr. Mohler's testimony [regarding Herran] would be relevant to Defendants' notice of a discriminatory work environment, its third affirmative defense and Plaintiff's prayer for punitive damages obviously fails.” (Id.).
*11 In reply, plaintiff points out that “on at least three different occasions,” Herran testified under oath that Mohler sexually harassed her at work, created a hostile work environment, and retaliated against her for resisting or refusing his advances. (Pl.'s Supp'l Mem. at 2 (citations omitted)). She argues that Herran's testimony, therefore, is consistent and credible, but that “credibility is not the standard here; relevance and proportionality are,” and Mohler's testimony “about the nature of his relationship with Ms. Herran is unquestionably relevant and proportional to Plaintiff's claims [against him] of sexual harassment, hostile work environment, and retaliation.” (Id. at 1-2). She suggests that Mohler's promotion of Herran to General Manager after she “acquiesced to sex” with him, and her later termination “because she resisted his sexual advances,” sends the unmistakable message that “women who sleep with Mr. Mohler are rewarded and those who cross him are punished.” (Id. at 2). She argues that the probative value of this information outweighs any privacy interest (especially in light of the protective order issued in this action), and states that she has no interest in going into any details regarding Mohler's and Herran's custody dispute. (Id. at 3). She concludes, however, that “questions about Mr. Mohler's relationship with Ms. Herran while she was working for Defendants are fair game and are directly relevant to Plaintiff's sexual harassment, hostile work environment, and retaliation claims.” (Id. at 3-4).
After reviewing the arguments of the parties and the various declarations and exhibits, the Court notes that although Herran allegedly stated during a 2019 Florida court hearing in the paternity case that there had not been any domestic violence or sexual violence involving Mohler, this testimony did not rule out whether she ever experienced or reported workplace discrimination, harassment, hostile work environment, or retaliation by Mohler. Indeed, Herran also testified at the same 2019 hearing regarding the on-again off-again nature of her employment with Olympusat (which she seemed to link to her refusal to live with and/or sleep with Mohler). (Wagner Decl. Ex. 3). She also testified that after she decided to raise sexual harassment claims against Mohler in early 2020, he sued her for theft of electronic information. (Id.). Then, after she agreed “not to raise any sexual harassment case against him,” he withdrew his lawsuit against her, and later rehired her at a higher salary. (JS at 17-18; Wagner Decl. Ex. 3).
Accordingly, the Court determines that Mohler's personal knowledge relating to facts and allegations made by Herran against Mohler in the January 2020 Charge, to the extent she alleged workplace harassment, gender discrimination, hostile environment, and/or retaliation, and the corrective action -- if any -- taken by defendants (including Mohler) as a result of Herran's allegations, is relevant and proportional to the case.
Capko
Carly Capko is a former Olympusat employee who “filed a lawsuit for sexual harassment” against Olympusat.[6]
At Mohler's deposition, defendants' counsel instructed Mohler not to answer questions regarding any claims made by or underlying facts relating to Capko's lawsuit because of a confidentiality agreement defendants have with her. Defendants also assert herein that “none of Ms. Capko's complaints were about Mohler.” (JS at 10). Indeed, Mohler also specifically testified that Capko sued the company “for something that had nothing to do with me personally.” (Id. at 33-34). When asked at his deposition if he recalled what Capko's lawsuit was about, Mohler responded: “She said that someone -- yeah, I remember now. Yeah.” Defendants' counsel then stated: “Hold on. I just want to double-check really quickly. Are [sic] any of the information you have confidential, Tom?” (Id. at 34 (citing Mohler Depo. at 70-72, 149-50)). Defendants' counsel then confirmed that the “settlement [with Capko] and the terms, conditions related thereto,” are confidential. (Id. (citing Mohler Depo. at 70-72, 149-50)). Although plaintiff's counsel stated he only wanted to know the nature of the suit, defendants' counsel asserted that Mohler is “bound by an obligation to not discuss her or anything dealing with any complaints she may or may not have made against him.” (Id. at 35).
*12 Here, plaintiff asserts that the questions directed at Mohler at his deposition relating to Capko (as well as to Reed and Gonzales (with whom defendants allege they had confidentiality agreements) “were directed less at uncovering the terms of any settlement agreement they may have signed with Defendants and more at the underlying facts that led to complaints these three women made about sexual harassment by Mohler.” (Id. at 38). Plaintiff further notes that “[w]hile a party may have to establish a compelling need to obtain discovery of the specific terms of a settlement agreement in another lawsuit ..., allowing the deposition of settler regarding the underlying facts does not require a showing of compelling need and would likely ... lead to discovery of relevant evidence where the conduct was similar in the two lawsuits.” (Id. (citing Kalinauskas, 151 F.R.D. at 365-66)). She argues that Mohler should be required to provide “critical information ... about the sexual affairs he had with multiple subordinates, and whether such affairs created widespread sexual favoritism that permeated and infected Olympusat's work environment such that employees were led to believe that ‘they [can] obtain favorable treatment from [the manager] if they become romantically involved with him.’ ” (Id. at 40-41 (quoting Miller, 36 Cal. 4th at 465-66 (brackets in original))). She states that the protective order issued in this action is sufficient to protect the privacy interests of defendants and any complainants. (Id. at 41 (citing ECF No. 124)).
Plaintiff deems Mohler's testimony about Capko, Gonzales, and Reed to be proportional to the needs of this case for a number of reasons: (1) plaintiff's claims are brought “under broad remedial statutes embodying broad public policy concerns”; (2) the amount in controversy is “substantial” as plaintiff was a high wage earner at Olympusat; and (3) there is a severe imbalance in the parties' relative access to relevant information, and defendants have indicated in their initial disclosures that “they also represent many of the potential witnesses, thereby restricting Plaintiff's counsel's ability to contact them outside of a deposition.”[7] (Id. at 42).
Defendants respond that none of these “me too” witnesses has anything in common with plaintiff or the allegations in this litigation. (Id. at 46). They note that plaintiff's “theory of the case,” is that “Mr. Mohler concocted a grand scheme to take advantage of female employees working for his companies.” (Id. (citation omitted)). They further argue that plaintiff's “ ‘me too’ evidentiary theories [do not] justify fishing expeditions for irrelevant evidence regarding all female employees who might have had, actually had and/or resolved any kind of dispute under the sun with Mr. Mohler or Olympusat during the last 20 years.” (Id.).
Defendants specifically note that Capko's lawsuit against Olympusat was filed in 2015, the allegations within it predate April 1, 2014 (the date plaintiff became an employee of Olympusat rather than an independent contractor), and Mohler is not a named defendant or mentioned in the lawsuit. (Id. (citing Zhen Decl. Ex. 10)). As such, they argue, the alleged “me too” conduct is “outside the theory of Plaintiff's case and the scope of discovery.” (Id. (citation omitted)). Defendants argue that the Court's February 27, 2020, Order “set proper limits” on the scope of information plaintiff was entitled to with respect to her document requests. (Id. at 47 (citing ECF No. 47 at 10)). Specifically, with respect to document request number 78, which requested 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, defendants note that the Court narrowed the scope of the request as follows:
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.
*13 (ECF No. 47 at 10). Defendants thus assert that because Capko's allegations concern conduct prior to April 1, 2014, and, because plaintiff did not file objections to the Court's February 27, 2020, Order, “she should not be permitted to pursue this issue in a deposition.” (JS at 47).
Based on the foregoing, even assuming the Court's narrowed time frame in its February 27, 2020, Order relating to document request number 78 is applicable to the dispute herein, defendants have demonstrated that Capko's sexual harassment lawsuit against Olympusat raised allegations against several specific Olympusat individuals, but asserted no allegations against Mohler.
Accordingly, other than the general classification of the claims alleged by Capko (i.e., sexual harassment, gender discrimination, retaliation, hostile work environment, and/or retaliation), the facts underlying Capko's claims in her lawsuit are not relevant to this case. However, Mohler's personal knowledge relating to whether -- at any time since Capko filed her lawsuit -- defendants (including Mohler) retaliated against Capko as a result of the allegations made in her lawsuit, and the corrective action -- if any -- taken by defendants (including Mohler) as a result of Capko's allegations, is relevant and proportional to the needs of the case.
Reed
Reed apparently worked for Olympusat as an independent contractor in 2001, until her termination on July 31, 2014. (Zhen Decl. Ex. 12). Plaintiff asserts that Reed “complained about Mohler creating a hostile work environment.” (JS at 2 (citing Zhen Decl. Ex. 9)). Plaintiff also complains that defendants' counsel “did not confirm or deny whether there had been any claims of sexual harassment raised by Reed against Mohler.” (Id. at 10 (citation omitted)).
At Mohler's deposition, defendants' counsel instructed Mohler not to answer certain questions regarding Reed because her complaints were “arguably unrelated to sexual harassment” although, according to plaintiff, defendants' counsel never did confirm or deny whether there had been any claims of sexual harassment raised by Reed against Mohler. (Id.). Specifically, Mohler acknowledged at his deposition that at the time she left the company in 2014, Reed “was in the top seven people within the company.” (Id. at 35 (citing Mohler Depo. at 111-12)). Plaintiff's counsel asked whether Mohler recalled having a discussion with Reed in which he “had told her she had to decide between [Mohler] and Olympusat and her then, I think boyfriend, Raul Costa?” (Id.). Mohler responded that the information being sought “gets into some area that I think is privileged” as he and Reed “were in a confidential settlement dispute at that time.” (Id.).
Defendants assert that Reed was a named defendant in litigation “filed by Olympusat concerning a business dispute.” (Id. at 47 (citing Zhen Decl. Ex. 12)). They claim that Reed's Amended Counterclaim in that action “says nothing about her having complained about sexual harassment, discrimination, retaliation or Mr. Mohler.” (Id. at 47-48 (citing Zhen Decl. Ex. 12)). As such, defendants state that there “aren't any tangential connections between Olympusat's business dispute with Ms. Reed and Plaintiff's claims in this case,” and such topics are “beyond the scope of discovery.” (Id. at 48).
*14 However, in plaintiff's August 5, 2020, meet and confer letter, plaintiff pointed out that in Reed's Amended Counterclaim against Olympusat, Reed asserted the following:
[I]n 2013 and 2014, disputes arose between Reed and Mohler concerning Mohler's behavior and treatment of employees, which had become pervasive as Olympusat, Inc. grew. As a result of the complaints of Reed and her partner (who was also an employee of Olympusat, Inc.), Mohler created a hostile work environment, which forced Reed out of the two companies, constructively terminating Reed's employment agreement with Olympusat, Inc. and Reed's independent contractor agreement with Ocean Communications as of July 31, 2014.
(Zhen Decl. Ex. 9 (emphases in original)). Plaintiff contends, therefore, that Reed is a “me too” witness.
Based on the foregoing, it appears that in 2013 and 2014 Reed may have complained -- at least to Mohler himself -- that Mohler's conduct and treatment of employees created a hostile work environment, and that she alleges, in part, that her complaints relating to that conduct led to her constructive termination from Olympusat in July 2014.
Accordingly, the Court determines that Mohler's personal knowledge of Reed's allegations relating to her concerns about his behavior and treatment of employees, to the extent she complained about workplace harassment, gender discrimination, hostile environment, and/or retaliation, and the corrective action -- if any -- taken by defendants (including Mohler) as a result of Reed's allegations, is relevant and proportional to the needs of the case.
Gonzales
At Mohler's deposition, Mohler testified that Gonzalez was his assistant. (JS at 35 (citing Mohler Depo. at 206-07)). Plaintiff questioned Mohler as follows:
Q Was [Gonzalez] someone who complained that you made sexual advances upon her?
....
[Defendants' Counsel]: If you know, Tom.
A That's weird. I just got a weird beep on my phone. Yes.
(Id. at 35-36 (citing Mohler Dep. at 206-07)). At that point, defendants' counsel objected that there was a confidential agreement with Gonzalez “not to disclose any facts or claims.” (Id. at 36).
Defendants assert that plaintiff “presents nothing about Ms. Gonzalez complaining to anyone about sexual harassment, discrimination, hostile work environment or retaliation,” or otherwise articulates how Gonzales “could possibly be considered a ‘me too’ witness.” (Id. at 48). Thus, they argue, compelling Mohler to testify regarding Gonzalez “is outside the scope of discovery permitted” by Rule 26 of the Federal Rules of Civil Procedure. (Id.).
The Court notes, however, that the deposition transcript appears to reflect that Mohler confirmed that Gonzalez complained about his conduct, which is further supported by the fact that counsel for defendants has confirmed that defendants have an agreement with Gonzalez that contains a confidentiality provision.
Accordingly, the Court determines that Mohler's personal knowledge relating to allegations raised by Gonzalez against Mohler, to the extent she complained about workplace harassment, gender discrimination, hostile environment, and/or retaliation, and the corrective action -- if any -- taken by defendants (including Mohler) as a result of Gonzalez' allegations, is relevant and proportional to the case.
Asinas
*15 At Mohler's deposition, Mohler testified that Asinas is his “ex-spouse with whom [he has] three children.” (JS at 52 (citing Mohler Depo. at 80-81)). He also testified that Asinas does not have “any present ties in employment or ownership to Olympusat or any of the companies.” (Id.).
Defendants' counsel instructed Mohler not to answer questions regarding any claims or underlying facts relating to claims against him raised by Asinas because any questioning would “reference conduct well outside [the] scope of [the Court's] February 27, 2020 Order,” and because Asinas' allegations were unrelated to plaintiff's allegations. (Id. at 10, 51-52). Plaintiff contends that defendants have “misconstrued the breadth of” the Court's Order, and that she has “sufficiently established continuing violations dating back to at least 2010 (the date [of] Asinas' restraining order against Mohler) and culminating in Plaintiff's termination for complaining about Mohler's sexual misconduct, an act within the statutory time period.” (Id. at 2).
Plaintiff explains that Asinas was an employee of Olympusat starting in September 2001. (JS at 53). After Asinas became an employee in 2001, Mohler “commenced a sexual relationship with her and subsequently fathered her three children.” (Id.). Plaintiff, therefore, alleges that she has “demonstrated ample evidence of continuous sexual harassment, hostile work environment, and retaliation” and, therefore, is entitled to “me too” evidence “dating back to January 1, 2000, when she began serving as an independent contractor to Olympusat,” because independent contractors can maintain a hostile work environment claim on the basis of a continuing violation. (Pl.'s Supp'l Mem. at 4 (citation omitted)). Plaintiff also cites to various conduct described in a 2010 restraining order allegedly sought by Asinas in a Florida court against Mohler. (JS at 53-54). She argues that Asinas' complaints against Mohler in that case are “especially relevant” to this case as “me too” evidence (id. at 54), and that “the facts surrounding Asinas' sexual assault and harassment may be considered as background evidence for Plaintiff's hostile work environment claim.” (Id. at 61 (citation omitted)).
In response, defendants submitted a Declaration from Asinas in which she states that she worked at Olympusat from May 1, 2010, through February 29, 2016, and that she “never experienced sexual harassment from Tom Mohler or anyone else. Accordingly, [she] never complained to anyone at Olympusat that [she] felt sexually harassed or retaliated against. [She] was involved in a romantic relationship with Tom Mohler and [they] had three children together. [Their] relationship was always consensual.” (Id. at 64 (citing Asinas Decl. ¶¶ 2-3)). She further states that she and Mohler had a “domestic dispute approximately 10 years ago and this dispute has resolved.” (Asinas Decl. ¶ 4). She asserts that the dispute “had nothing to do with sexual harassment and never concerned any person other than [herself].” (Id.).
Based on the foregoing, the Court determines that Mohler's testimony relating to Asinas is neither relevant nor proportional to the needs of the case and fails to support plaintiff's allegation of a continuing violation regarding workplace sexual harassment, gender discrimination, hostile work environment, and retaliation since 2001.
Testimony Regarding the Behavior of Other Managers
*16 Shawn Copenhaver is a current Olympusat manager and/or supervisor, and plaintiff contends that he “is the subject of at least two sexual harassment complaints by other female Olympusat employees.” (JS at 2).
At Mohler's deposition, plaintiff's counsel asked Mohler about sexual harassment complaints against other supervisors at Olympusat, specifically Copenhaver. (Id. at 67-68 (citing Mohler Dep. at 125-26)). Defendants objected to this line of questioning, asserting that the Court's February 27, 2020, Order “limits any Me Too evidence to conduct by Mohler.” (Id. at 68 (citing Mohler Depo. at 125-26)).
Plaintiff argues that in its February 27, 2020, Order, the Court “did not previously rule on discovery of sexual harassment complaints made against other employees of Olympusat besides Mohler.” (Id. (emphasis in original)). She also notes that her written discovery at issue in that Order only sought information about complaints against Mohler and, therefore, the Order is inapplicable to the dispute herein. (Id. at 68-69). She alleges that there are at least two women “who have publicly accused Mr. Copenhaver of sexual harassment and misconduct in the workplace” -- Capko and Alexandra Jenkins-Richards (a.k.a. Alexandra Diane) -- and that Copenhaver was a manager or supervisor to both. (Id. at 69). Plaintiff argues that information regarding complaints made against Copehnaver “is relevant to whether managing agents at Olympusat participated in the sex-fueled environment created by Mohler; ratified, condoned, or authorized the unlawful misconduct; and whether Defendants had notice of a discriminatory work environment but did not take adequate measures to ensure that the discrimination was remedied.” (Id. at 70). She also argues that the information is relevant to show that Mohler's conduct in the workplace emboldened others to engage in predatory behavior, or was simply consistent with the company's practices and procedures. (Id. at 71). She submits that she should be permitted to question Mohler “about his personal knowledge of sexual harassment complaints against Mr. Copenhaver, the facts underlying those complaints, Mohler's involvement in any of the incidents described in those complaint[s], Mohler's participation in the investigation of those complaints, and any corrective actions taken against Mr. Copenhaver.” (Id. at 71-72).
Defendants respond that in her RFP number 78 plaintiff requested Complaints “of all types against Olympusat and/or Mohler filed in state and federal courts” and, therefore, the Court already ruled on discovery of complaints that do not involve Mohler and set “proper limits.”[8] (Id. at 72 (emphases in original) (citation omitted)). Defendants contend that evidence about other women's alleged experiences with a different manager “is outside the theory of Plaintiff's case and the scope of discovery.” (Id. at 73).
Plaintiff responds that despite defendants' “boilerplate arguments,” there is no limitation in the Court's previous Orders “to suggest that discovery regarding other managers' sexual harassment complaints is off-limits.” (Pl.'s Supp'l Mem. at 4). She argues that such evidence of wrongdoing “is admissible [at trial] even if the defendant is not the same bad actor.” (Id. (citing Goold, 2014 WL 1383252, at *5)).
*17 In Goold, noting that whether the plaintiff or any of the defendants' employees “suffered discrimination of any type ... is irrelevant to this case [as] the issue is whether they have made discrimination complaints and, as a result, Defendants retaliated against them,” the district judge held that admissibility of other acts evidence to show motive “does not depend on whether the defendant is the same bad actor as in the ‘other acts’ evidence.” Goold, 2014 WL 1383252, at *5 (rejecting defendants' argument that Heyne did not apply because the discovery requests at issue were not limited only to the person claimed to have been the “same harasser”).
Based on the foregoing, the Court determines that testimony regarding specific allegations, i.e., facts, relating to complaints made against Copenhaver are not relevant and proportional to the needs of the case. However, Mohler's personal knowledge regarding whether complaints generally relating to sexual harassment, gender discrimination, hostile work environment, or retaliation were made against Copenhaver, and whether those complaints resulted in the termination of or other retaliation against the complainant, is relevant and proportional to the needs of the case. See id. Additionally, the Court determines that Mohler's personal knowledge of corrective action -- if any -- taken by defendants (including Mohler) as a result of such allegations against Copenhaver also is relevant and proportional to the needs of the case.
Conclusion
Defendants assert that plaintiff has used all but 20 minutes of the seven hours allotted for a deposition by Rule 30 of the Federal Rules of Civil Procedure and state that she has no automatic entitlement to re-open Mohler's deposition simply because she wants additional deposition time. (Id. at 73; Reathaford Decl. ¶ 2). They contend that a party seeking to extend the time allotted for deposing a witness must show good cause and explain why the needs of the case or the circumstances at the deposition justify the request for additional time. (JS at 73 (citing Rubin-Knudsen v. Arthur J. Gallagher & Co., 2020 WL 2477687, at *2 (C.D. Cal. Jan. 24, 2020)). They note that plaintiff has not requested to extend the time for Mohler's deposition and, even if she had, good cause would not exist. (Id. at 74). Plaintiff responded by reiterating her argument that good cause exists “(1) to reopen Mohler's deposition for limited questioning for an amount of time to be decided by this Court, and (2) compel production of settlement letters and agreements.” (Pl.'s Supp'l Mem. at 5).
Notwithstanding the fact that plaintiff has apparently used all but 20 minutes of the seven hours allotted by Rule 30, the Court determines that, under the circumstances of this action, additional time to depose defendant Mohler -- only on the topics set forth herein and summarized, in part, below -- is warranted. Indeed, plaintiff spent time at the first Mohler deposition posing questions that ultimately were objected to and for which counsel instructed Mohler not to answer. Plaintiff is entitled to recoup that time and, at the subsequent deposition session, receive answers to these and other questions to the extent permitted herein.
Accordingly, the parties shall meet and confer to determine a date and time for Mohler's continued deposition; plaintiff shall then notify the Court of the agreed-upon date, time, and location for the continued deposition. The continued deposition shall be held no later than December 31, 2020, and shall be limited to a total of three hours of actual deposition time (i.e., not including breaks).[9]
*18 Additionally, the Court determines that with respect to questioning Mohler on the topics set forth herein, unless otherwise stated, it is reasonable to limit the relevant time frame to the ten-year period of October 11, 2009, through October 11, 2019 (when plaintiff was terminated from her employment with defendants).
To summarize, at Mohler's resumed deposition, plaintiff may question Mohler regarding his personal knowledge of the following:
(1) Herran: Mohler's personal knowledge relating to allegations raised by Herran in her complaint(s) against Mohler, to the extent she complained about workplace harassment, gender discrimination, hostile environment, and/or retaliation, and the corrective action -- if any -- taken by defendants (including Mohler) as a result of Herran's allegations.
(2) Capko: Mohler's personal knowledge relating to the general classification of the claims alleged by Capko in her lawsuit against Olympusat alleging claims against other managers (i.e., sexual harassment, gender discrimination, retaliation, hostile work environment, and/or retaliation), and the corrective action -- if any -- taken by defendants (including Mohler) as a result of Capko's allegations.
(3) Reed: Mohler's personal knowledge of Reed's allegations relating to her concerns about his behavior and treatment of employees, to the extent she complained about workplace harassment, gender discrimination, hostile environment, and/or retaliation, and the corrective action -- if any -- taken by defendants (including Mohler) as a result of Reed's allegations.
(4) Gonzales: Mohler's personal knowledge relating to facts raised by Gonzales in her complaint(s) against Mohler, to the extent she complained about workplace harassment, gender discrimination, hostile environment, and/or retaliation, and the corrective action -- if any -- taken by defendants (including Mohler) as a result of Gonzalez' allegations.
(5) Copenhaver: Mohler's personal knowledge relating to complaints against Copenhaver relating to sexual harassment, gender discrimination, retaliation, hostile work environment, and/or retaliation, and the corrective action -- if any -- taken by defendants (including Mohler) as a result of those allegations.
Plaintiff may not ask any questions relating to Asinas.
IT IS SO ORDERED.
Footnotes
On March 12, 2020, the Court entered the parties' original stipulated Protective Order. (ECF No. 62). On October 29, 2020, the Court entered the parties' stipulated Amended Protective Order, as modified by the Court, which now includes a “Highly Confidential -- Attorneys' Eyes Only” designation. (ECF No. 124).
Defendants cited to MedImmune, L.L.C. v. PDL BioPharma, Inc., 2010 WL 3636211, at *2 (N.D. Cal. 2010) and Marsh v. Bloomberg, Inc., 2017 WL 2224250, at *2 (N.D. Cal. May 22, 2017) to support their assertion of a settlement privilege.
Rule 408(a) prohibits the admission of compromises or offers to compromise as evidence “when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction.” Fed. R. Evid. 408(a).
Whether that evidence is admissible at trial is not a question for this Court to determine.
Defendants also assert that in that March 28, 2019, email Herran “apologize[d] for falsely accusing Mr. Mohler of rape to extort him for money.” (JS at 6 (citing Mohler Decl. ¶ 4 Ex. 2)). A review of the emails exchanged by Mohler and Herran, however, does not support this conclusion. In his email to Herran, among other things, Mohler expressed to Herran that the biggest “stumbling block” for his being able to live together with her is her “attempted extortion of money by falsifying and ridiculously saying that I had raped you,” and that the “idea that you would try to extort money from the father of your child at all, and especially in that way deserves an apology.” (Mohler Decl. Ex. 2). He also noted, however, Herran's failure to apologize for (1) allegedly telling Mohler's mother that Mohler gave Herran a disease, and (2) twice breaking into Mohler's phone and taking all the data. (Id.). In its entirety, Ms. Herran simply responded as follows: “I am sorry if I did anything that hurt you as it was not intentional. We had a relationship and it was consensual. What happened in the past is past.” (Id.). Thus, it is not clear as to which -- if any -- of the actions Mohler alleged Herran had engaged in she was sorry for doing.
Plaintiff actually asserts that Capko filed a sexual harassment lawsuit against Olympusat and Mohler. (JS at 2, 33). Defendants respond that Mohler is not a named defendant in Capko's lawsuit, and is not even mentioned in Capko's Amended Complaint. (Id. at 46 (citing Zhen Decl. Ex. 10)).
Defendants' initial disclosures reflect that they apparently do not represent the “me too” witnesses at issue here -- Herran, Capko, Reed, Gonzales, or Asinas. (Zhen Decl. Ex. 10).
The Court's Order on RFP number 78, was previously set forth in relevant part herein.
The Court takes this opportunity to note that the parties in their recent (October 29, 2020) Joint Stipulation to continue the trial and related dates, stated that since February 20, 2020, and including this Motion, this Court has considered seven “discovery motions and ex parte requests for relief” submitted to it by the parties. (ECF No. 125 at 2). The parties also assert that “much discovery remains to be engaged in.” (Id. at 3). The need to seek the Court's intervention as frequently as they have done to date is a clear indication that the parties are not working cooperatively and in good faith to accomplish the task of meeting and conferring with each other in order to resolve their discovery disputes, or to significantly narrow the issues that have arisen. Indeed, the Court cautions the parties that this Court in fact has other cases on its docket, and cannot continue to referee discovery disputes in this case at the exorbitant rate of almost one motion per month and/or with the “volume” of the instant dispute -- which consisted of over 800 pages for the Court to consider.