*1 This Report and Recommendation is submitted to the Honorable Fernando M. Olguin, U.S. District Judge, under 28 U.S.C. § 636 and General Order 05-07 of the U.S. District Court for the Central District of California. For the reasons discussed below, the undersigned recommends that the District Judge grant Plaintiff's motion to compel compliance with a subpoena, deny Respondent Adam Clark's motions for sanctions and to strike an argument from Plaintiff's reply brief, and deny Plaintiff's request for sanctions.

On March 26, 2021, Plaintiff Merrilee Dirickson moved to compel third-party Clark to comply with a deposition subpoena issued by the Northern District of Illinois in her underlying employment-discrimination lawsuit against Defendant Intuitive Surgical. On April 13, Plaintiff moved for leave to file a declaration in support of the motion to compel. After some back and forth, the Court granted that request. On May 14, Clark opposed the motion to compel, and Plaintiff replied on May 24.

On May 26, 2021, Clark moved for monetary and terminating sanctions, and on June 10 he moved to strike an argument from Plaintiff's reply brief in support of the motion to compel. Plaintiff opposed both motions on July 8, and Defendant replied on July 15. The Court heard argument on July 29 and took the matters, including a request Plaintiff made in her sanctions-motion opposition for an award of monetary sanctions to her, under submission.

This miscellaneous action under Federal Rule of Civil Procedure 37(a)(2) stems from Plaintiff's efforts to compel Clark to answer deposition questions concerning any accusations previously made against him of employment discrimination. Although Clark is technically a third party, he is employed by Defendant and is represented in this matter by its counsel. (Mot. at 4.)

Plaintiff was once employed by Defendant. (Compl. ¶ 4.)[1] Although she and Clark both worked in the sales department, Plaintiff worked in a unit, the “capital sales team,” that sold directly to hospitals (id. ¶ 9) and Clark was a supervisor in a unit that acted to convince doctors to use Defendant's products (see id.; Nadel Decl., Ex. A-1 (Clark Dep. at 8)). In that unit, Clark supervised someone who supervised Victor Ebong, who was eventually promoted and transferred to Plaintiff's unit, where he was her direct supervisor. (Compl. ¶ 12; Nadel Decl., Ex. A-1 (Clark Dep. at 10).) While Ebong was in Clark's unit, two women (not including Plaintiff) had complained to him about Ebong. (Nadel Decl., Ex. A-1 (Clark Dep. at 12).) The parties draw different inferences from those women's deposition testimony, Plaintiff claiming that they and the surrounding circumstances at least implied that Ebong discriminated against them on the basis of their gender (see Mot. at 3-4), whereas Clark asserts that their complaints centered on Ebong's management “style” (Opp'n at 3). Despite these women's complaints, Ebong was later promoted into Plaintiff's unit with Clark's support. (Nadel Decl., Ex. A-1 (Clark Dep. at 70-71).)

*2 Plaintiff complained to Defendant about Ebong, claiming that he discriminated against her on the basis of her gender and raising other issues as well. (See Compl. ¶¶ 19-20, 22-29.) She then allegedly suffered retaliation from Ebong and Defendant and was eventually fired, in January 2019. (See id. ¶¶ 30-45.) At his February 18, 2021 deposition, Clark refused to answer a series of questions about his employment history,[2] asserting his right to privacy under California's constitution. (Nadel Decl., Ex. A-1 (Clark Dep. at 82-86).)

During the parties' meet-and-confer concerning the underlying motion to compel, Plaintiff “offered to narrow” the questions she wanted to ask Clark to (1) whether any women had ever complained or “raised any concerns” about him during his employment with Defendant; (2) whether any employees complained or “raised any concerns” that he retaliated against them; (3) if the answer to 1 or 2 was yes, was he “coached or disciplined in connection with the complaint/concern”; and (4) was Defendant aware of “any issues” Clark had at “any employer” before he started working for Defendant. (Mot. at 5 & Ex. B.)

Federal Rule of Civil Procedure 26(b) provides that “Parties 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.” The factors governing proportionality are “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. Discovery should “ordinarily be allowed under the concept of relevancy unless it is clear that the information sought can have no possible bearing upon the subject matter” of the action. Anders v. United Airlines Inc., No. CV 19-5809-GW (KS), 2020 WL 8575132, at *1 (C.D. Cal. Dec. 18, 2020).

California's constitutional right to privacy protects “[a]n employee's personnel records and employment information.” Bickley v. Schneider Nat., Inc., No. C 08-5806-JSW (JL)., 2011 WL 1344195, at *2 (N.D. Cal. Apr. 8, 2011). That privilege must cede to federal law when warranted. See Redon v. Ruiz, No. 13cv1765-WQH(KSC), 2015 WL 13229500, at *6 (S.D. Cal. Dec. 4, 2015). “Resolution of a privacy objection requires a balancing of the need for the particular information against the privacy right asserted.” Anders, 2020 WL 8575132, at *5. When a protective order is in place, privacy concerns have diminished weight. See, e.g., Zurich Am. Ins. v. Sealink Ins. Servs. Corp., No. CV 16-4301 R(JCx), 2018 WL 10561907, at *1 (C.D. Cal. Mar. 16, 2018) (rejecting claim of privacy under California Constitution because “[g]enerally, the privacy and confidentiality of records can be adequately protected by a protective order”). A party seeking discovery as to which a privacy interest is implicated usually need not show a “compelling need” for the information. Anders, 2020 WL 8575132, at *5 (citing Williams v. Super. Ct., 3 Cal. 5th 531, 557 (2017), and noting that “later cases back[ed] away from” compelling-needs standard); Laub v. Horbaczewski, 331 F.R.D. 516, 522 (C.D. Cal. 2019) (“[T]he California Supreme Court has explicitly rejected Defendants' position that a party seeking discovery of private information must always establish a compelling interest or compelling need.” (citing Williams)).[3] And it is the burden of the “party asserting a privacy interest to establish the ‘extent and the seriousness of the prospective invasion.’ ” Anders, 2020 WL 8575132, at *4 (quoting Williams, 3 Cal. 5th at 557).

I. Underlying Motion to Compel Deposition Answers

*3 Despite Clark's contentions to the contrary (see, e.g., Opp'n at 1, 10; see also id. at 2 (describing his “connection” to lawsuit as “extremely remote”)), he has played a role in several actions central to Plaintiff's theory of her case. First, two women complained directly to him about Ebong. (See Nadel Decl., Ex. A-1 (Clark Dep. at 12).) Second, despite this, he supported Ebong's promotion into a position where he would directly supervise Plaintiff. (See id. at 70-71.) Third, after Plaintiff complained to her supervisor about Ebong, the human-resources department interviewed Clark concerning the women's earlier complaints. (See Weinstein Decl., Ex. 6 (Pastor Dep. at 97-98).) Thus, whether Clark has his own animus toward women bears on whether he — and therefore arguably Defendant — improperly discounted complaints the company had received that concerned Ebong's alleged gender bias and retaliation. See, e.g., Westmoreland v. Regents of the Univ. of Cal., No. 2:17-cv-01922-TLN-AC, 2019 WL 932220, at *7 (E.D. Cal. Feb. 26, 2019) (compelling answers to similar deposition questions from third parties in employment-discrimination lawsuit against claim of right to privacy under California Constitution because “disciplinary actions taken within plaintiff's workplace categorized by race and gender are relevant to her case, as are employment records and disciplinary actions of her fellow employees whom she alleges were directly involved in her wrongful termination”); cf. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 380-81 (2008) (holding in age-discrimination case that evidence that company supervisors other than one who allegedly discriminated against plaintiff discriminated against other employees also on basis of age was “neither per se admissible nor per se inadmissible” at trial).

Defendant is correct that some of Plaintiff's original proposed questions were so broad as to encompass information that isn't relevant to this lawsuit. As such, and given his privacy concerns, those aspects of the questions are improper. But during the meet and confer and further at the hearing on this motion, Plaintiff agreed to narrow the scope of her questions, and this Court can, and does, further narrow them in light of Clark's privacy interests.[4] See Ceramic Corp. of Am. v. Inka Maritime Corp., 163 F.R.D. 584, 589 (C.D. Cal. 1995) (allowing discovery of third party's employment information but limited to, among other things, evidence of “reprimands or disciplinary proceedings”).

Notably, Plaintiff has sued Intuitive Surgical as a whole, not any of its individual employees; indeed, she could not do so under Title VII. See Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993). To support her gender-discrimination and retaliation claims, she is entitled to evidence that the decisionmakers involved in the events at issue in her case, directly or indirectly, including Clark, acted with bias or otherwise inappropriately. See Westmoreland, 2019 WL 932220, at *7. Further, if Clark too had prior allegations of gender bias lodged against him and Defendant did nothing or little about it, that might bear on whether punitive damages are warranted.

Moreover, not all third parties are created equal. Some third parties are completely disinterested in the litigation and are involved solely by chance or serendipity — they happened to see something while walking down the street, for instance. But other third parties are integrally involved and are nonparties only through some fluke in the law or through a plaintiff's strategic decision not to sue them. See, e.g., Tennell v. Bank of America, No. 3:19-cv-1520-SI, 2020 WL 2112118, at *8 (D. Ore. May 4, 2020) (noting that branch manager of bank being sued was third party “only in the most narrow and technical sense of that term” and therefore was entitled to less protection based on privacy concerns). Here, Clark is certainly not disinterested in the outcome of this litigation, as he supported Ebong's promotion even after women complained about him and is apparently a vice president in Defendant's corporate structure.

Clark contends that neither of the women who earlier complained to him about Ebong alleged that Ebong mistreated them based on their gender or claimed that Clark mishandled their complaints. (Opp'n at 2-3.) But their deposition testimony is open to interpretation, even leaving aside the fact that all three known complainants concerning Ebong were women and the inferences one might draw from that. For instance, one of them testified that Ebong “aggressive[ly]” “leaned into” her and that nothing changed with Ebong's behavior after she complained to Clark. (Weinstein Decl., Ex. 4 (Lehman Dep. at 28-29, 77).) Although she said she was “not sure” if Ebong treated her the way he did because she was a woman, she also testified that she never saw him treat a man the same way. (Id. at 38-39; see also id. at 62-63.) The other woman said Ebong told her when she complained about some aspects of his supervision that she “just wanted to leave the company and go get married,” and that Clark was present during that meeting. (Weinstein Decl., Ex. 5 (Steinhoff Dep. at 106-07).) Although Defendant and Clark can point to other parts of the two women's testimony tending to support their view of the evidence (see, e.g., Opp'n at 2-3), the Court can't find that there's no support for Plaintiff's theory of the case. In any event, Clark's argument goes more to whether Plaintiff is ultimately likely to prevail on the merits of her claims, not whether she is entitled to discovery concerning them.

*4 Clark also argues that Plaintiff should be barred from any further deposition of him because the questions she actually asked at the deposition are not the same as those she now seeks to pose. (Opp'n at 11-12 (citing Fed. R. Civ. P. 37(a)(3)(B)(i)).) But as the Court explained at the hearing, a party shouldn't be penalized for attempting during a meet and confer to compromise in order to resolve the dispute; indeed, that is what courts want parties to do. Moreover, because Clark's counsel indicated during the deposition that Clark would not answer any questions concerning his employment history, asserting that “everything in his personnel file is confidential” (Weinstein Decl., Ex. 1 (Clark Dep. at 86)), the record is unclear on whether she would have pursued the more narrow questions she now seeks to have answered. Finally, the last question Plaintiff actually attempted to ask — “Have you ever been accused of gender discrimination while you are an employee of Intuitive?” — is quite similar to the generally more narrow questions she now poses.

As the parties agreed at the hearing, a protective order exists in this case allowing parties to designate nonparties' information as “confidential” and limiting its use and dissemination.[5] At the hearing, the Court asked Clark if he proposed any further limit on use of the information should the Court compel him to answer the questions. He asked that Plaintiff be barred from having access to his answers to the questions, essentially suggesting that they be designated “attorney's eyes only.” Such designations are generally appropriate only in cases involving trade secrets, however, because they prevent a party from having access to important evidence that might bear on how to litigate the case. See Westmoreland v. Wells Fargo Bank Nw., No. 1:15-cv-00312-CWD, 2016 WL 6471433, at *2 (D. Idaho Oct. 31, 2016) (ordering in employment-discrimination case that personnel documents designated attorney's eyes only be redesignated at lower level of protection). Plaintiff has a right to information bearing on her claims in order to make informed decisions about how to proceed; knowledge that Clark had no such allegations against him, for instance — or had many — might affect how she viewed the strength of her case and any possible settlement. But Plaintiff is of course bound by the terms of the protective order and may not use the information for any purpose other than this litigation or disseminate it to anyone not permitted under that order.

For all these reasons, Plaintiff is entitled to ask Clark the limited questions below and any reasonable followup. Indeed, “[i]n recent years, the courts have routinely ordered the production of personnel files of third parties in employment discrimination ... cases.” Ceramic, 163 F.R.D. at 589.

1) Did any women complain or raise any concerns about Adam Clark on the basis of gender bias during his employment with Defendant up until the time of Plaintiff's termination in January 2019;

2) up until the time Plaintiff was terminated, did any employees complain to Defendant or raise any concerns that Clark retaliated against them for complaining about illegal discrimination;

3) if the answer to either of those questions is yes, was Clark coached or disciplined as a result; and

4) to the extent Clark knows, was Defendant aware of any allegations of gender bias made against him at any employer prior to his employment with Defendant.

Accordingly, the underlying motion to compel should be GRANTED as limited above.

II. Clark's Request to Strike

Clark moves to strike an argument in Plaintiff's reply in support of the underlying motion to compel, contending that it was improperly raised for the first time there. Specifically, he asks the Court to “disregard the argument that Mr. Clark's statements about female subordinates during an interview with the Director of Human Resources offers a compelling reason why Mr. Clark should be required to disclose his private employment history.”[6] (Strike Mot. at 1; see also id. at 2 (citing Reply at 4, 9-10).)

*5 Despite her contentions to the contrary (see Strike Opp'n at 4-5), Clark is correct that Plaintiff did not raise this argument in her underlying motion. She points to her counsel's April 23 declaration, in which she recounted facts related to the 2018 human-resources investigation into her complaints about Ebong, during which Clark was interviewed. (Id.) But as the Court previously explained to Plaintiff's counsel in response to her request for leave to file a declaration, a declaration may not include argument. See, e.g., King Cnty. v. Rasmussen, 299 F.3d 1077, 1082 (9th Cir. 2002). Thus, Plaintiff never “argued” in her original motion that she should be able to ask Clark her desired questions because he was involved in the 2018 investigation into Plaintiff's complaints about Ebong.

Nonetheless, her argument to that effect in her reply, which relied on her earlier declaration, was proper because it merely responded to argument Clark made in opposing the motion to compel. As Plaintiff points out, the primary thrust of Clark's argument in his opposition is that his connection to her complaints about Ebong was remote and that his “only role in this case” was that “several years prior to the termination of her employment,” he “supervised someone ... who in turn directly supervised” Ebong. (Opp'n at 1 (emphasis omitted); see also id. at 10 (arguing that Clark's “only connection” to case “is that he managed someone who, in turn, managed Mr. Ebong before Mr. Ebong ever managed Plaintiff” (emphasis omitted)).) Plaintiff rebutted this argument by pointing out that in fact Clark took part in the 2018 investigation concerning her complaints about Ebong that shortly thereafter resulted in her firing. Although “it's sometimes tricky to distinguish between impermissible ‘new’ ” arguments and those that merely respond to argument in the opposition, QBAS Co. v. C Walters Intercoastal Corp., No. SACV 10-406 AG (MLGx)., 2010 WL 7785955, at *3 (C.D. Cal. Dec. 16, 2010), here Plaintiff was justified in using the evidence in her declaration to rebut Clark's argument about his limited role.

Clark claims that Plaintiff's argument is “not a rebuttal” because “it does not reveal some new connection he has to Plaintiff, and, thus, does not get Plaintiff any closer to showing why Mr. Clark's employment history ... would be at all relevant.” (Consolidated Reply at 9-10.) But of course it does. Clark's “role in this case” was not “only” that he once indirectly supervised Ebong, before Plaintiff reported to him, as Clark claimed. (Opp'n at 1.) Rather, he also supported Ebong's promotion and took part in the 2018 human-resources investigation into Plaintiff's complaints about Ebong, well after he stopped being in Ebong's chain of command.

Accordingly, Plaintiff's argument about the human-resources interview, raised for the first time in her reply to the motion to compel, was appropriate as rebuttal to Clark's repeated claim that his role in the events at issue in Plaintiff's lawsuit was “extremely remote.” (Opp'n at 2); see, e.g., Facebook Inc. v. Namecheap Inc., No. CV-20-00470-PHX-GMS, 2020 WL 6585534, at *6 n.3 (D. Ariz. Nov. 10, 2020) (noting that although arguments may not be raised for first time in reply brief, arguments “in response to” arguments raised in opposition are proper and will be considered even when they could have been raised in motion itself).

III. The Parties' Sanctions Requests

As the Court noted at the July 29 hearing, Clark's sanctions request is “almost frivolous.” This is a run-of-the-mill discovery dispute about which reasonable minds might differ,[7] and as explained above in Section I, Plaintiff has done nothing wrong in pursuing responses to questions concerning whether Clark had ever previously been accused of gender discrimination or retaliation. And this is not defense counsel's first overly aggressive litigation move. The Illinois judges in the underlying litigation noted that subpoenas he had served were “unduly oppressive and burdensome ... not to mention harassing” (Sanctions Opp'n, Ex. 1 at 1-2 (magistrate judge)) and that he had engaged in “troubling conduct” during Plaintiff's deposition (id., Ex. 2 at 4 (district judge noting that magistrate judge had to “police” defense counsel's “unprofessional conduct”)).

*6 Clark moves for sanctions on two grounds, neither of which has any merit. First, he claims that Plaintiff seeks “only to annoy and embarrass Mr. Clark.” (Sanctions Mot. at 9.) To support this argument, he points to several allegedly outrageous actions by Plaintiff's counsel. One of those was an incident in which counsel asked him during his deposition whether he had “ever sent an email referring to women as ‘bossy,’ when, in fact, Mr. Clark merely passed along an encouraging Sheryl Sandberg quote.” (Id. at 9.) But as Plaintiff explained in her opposition to the motion — and, importantly, had previously explained to Defendant's/Clark's counsel — she was at the time justified in so asking. Specifically, during discovery a former employee of Defendant's provided Plaintiff's counsel with notes she took that said Clark “sent a cartoon to only the women in his Region depicting women as bossy.” (Weinstein Reply Decl. ¶ 7, Ex. 3.) Counsel thus asked Ebong's supervisor, who was deposed the next day, and Clark, who was deposed a few days later, about the alleged incident. Defendant did not produce the “cartoon” in question in discovery until March 2 — after both of those depositions. (See Weinstein Reply Decl. ¶ 6, Ex. 2.) It was only then that Plaintiff's counsel learned the true nature of the email — supposedly inspirational — which in fact was, as the employee complained, initially sent only to women by Clark. (Nadel Decl. Ex. A-1 (Clark Dep. at 87-89).) Because counsel knew she likely would have only one chance to depose both people, she properly asked about the email based on the information she then had. As Plaintiff argues, “Defense counsel's decision to present this line of questioning to the Court as sanctionable, despite knowing the basis for the questions, the belated timing of Defendant's production of the email, and the fact that a woman did complain that the email was sent only to women, is in and of itself frivolous.” (Sanctions Opp'n at 10.) Indeed, it is Clark's counsel who misleadingly paints a nefarious picture of this incident, knowing full well why Plaintiff's counsel asked the question at the time and yet omitting from his retelling of the events that explanation for it.

He also faults Plaintiff's counsel for including in her declaration language from an email “in which Plaintiff describes several concerning occurrences involving Mr. Ebong” with “the clear implication ... that Mr. Clark must have known of the events described ... since Mr. Ebong reported to Mr. Clark when the events are alleged to have happened.” (Sanctions Mot. at 10 (citing Weinstein Decl. ¶ 16 & Ex. 3).) Clark claims that Plaintiff's counsel omitted important information from her declaration concerning these alleged events. (See id. at 11.) But counsel made no argument concerning these events in her motion, never connected them to Mr. Clark, and, given the context, seems to have included them in her declaration simply to bolster Plaintiff's overall case concerning the merits of her gender-discrimination claim. Indeed, the same or similar information is alleged in the Complaint. This is hardly sanctionable conduct.

The second basis for sanctions, according to Clark, is that Plaintiff's underlying motion to compel is “not legally tenable from an objective perspective given Mr. Clark's third-party status and the requirements of the California Constitution.” (Sanctions Mot. at 12.) As an initial matter, if the Court sanctioned every party that made untenable arguments, it would have sent a lot of people to the poorhouse by now. But more importantly, as explained in Section I, it is Clark who bungled the law on the California Constitution, failing to inform the Court of the post-Williams evolution of the constitutional privacy protection in a way that undermines his claims, generally no longer requiring a party seeking employment information to show a “compelling need” for it. Moreover, as also explained above, Clark is not the sort of disinterested third party for whom special protection is warranted. See, e.g., Westmoreland, 2019 WL 932220, at *7 (allowing almost identical discovery to that sought here from third parties similarly situated to Clark).

Finally, because Plaintiff is in fact entitled to at least some of the discovery she sought in the underlying motion, it was not brought in bad faith, as Clark argues. (See Sanctions Mot. at 16.)

If anything, Plaintiff might be entitled to sanctions for having to respond to Clark's unwarranted litigation tactics and because of counsel's abusive conduct. For example, he engages in name-calling repeatedly (see, e.g., Opp'n at 19 (calling Plaintiff “vindictive and conniving”), Sanctions Mot. at 11 (arguing that Plaintiff's counsel “has a pattern of creating distortions” (emphasis in original)), even after being told by the Illinois Magistrate Judge that his “unnecessary, personal, and insulting exchanges ... must not be repeated in this case” (Weinstein Reply Decl., Ex. 1 at 5). But because Plaintiff unnecessarily delayed the proceedings and increased Clark's litigation expenses by mistakenly initially moving in Illinois for the relief she seeks here (see Mot., Ex. A) and by failing at the outset to support her motion here with a proper declaration, the Court does not recommend granting her request for sanctions either. But it is dismayed by the unnecessary time and resources that have been expended adjudicating Clark's unwarranted sanctions motion and would think that if Defendant's/Clark's counsel continues his overly aggressive tactics, sanctions may be warranted if similar conduct recurs.[8]

*7 But at this point, both parties' requests for sanctions should be denied.[9]

Based on the foregoing, the undersigned recommends that the District Judge accept this Report and Recommendation, grant Plaintiff's motion to compel Clark's deposition testimony, deny Clark's motions for sanctions and to strike argument from Plaintiff's reply, and deny Plaintiff's request for sanctions.