*1 Plaintiff Lowry McCray and Defendant Westrock Services, LLC (“WestRock”) have filed nine motions in limine (“MIL”) in this case, and McCray has also filed a motion for sanctions relating to Defendant's Rule 30(b)(6) witness' failure to appear for his scheduled deposition. [Doc. ## 99–103, 114–16, 117, 119.] All motions have been fully briefed. [Doc. ## 120–29.] The Court held a hearing on the motions on July 11, 2023.

Based on the parties' written submissions and oral argument, the Court renders the following rulings.

A. WestRock's MIL No. 1 [Doc. # 99]

In its MIL No. 1, WestRock seeks to exclude all evidence of racial animus relating to McCray's racial discrimination and harassment claims on which the Court granted summary judgment to WestRock. [Doc. # 99 (“Def.'s MIL No. 1”).] McCray opposes this Motion. [Doc. # 120 (“Def.'s MIL No. 1 Opp.”).]

WestRock argues that such evidence is no longer relevant to this case and would be likely to confuse or prejudice the jury. Fed. R. Evid. 401–03; Def.'s MIL No. 1 at 6; see also Ord. re Def.s Mot. for Partial Summary Judgment at 22 [Doc. # 84 (“MSJ Ord.”)].[1] It seeks to exclude all documentary and testimonial evidence relating to McCray's perceived racial discrimination, any reference to Tad Collister's race, and portions of the expert reports that reference those topics. Def.'s MIL No. 1 at 7–18.

In weighing the Rule 403 factors, the Court concludes that McCray may present evidence of his perceived mistreatment in the workplace at trial but may not present evidence of any complaint of racial discrimination. Since the Court already granted summary judgment to WestRock on McCray's racial discrimination and harassment claims, any discussion of a complaint of racial discrimination or harassment would be unduly prejudicial and thus barred by Federal Rule of Evidence 403. McCray's perception of racially discriminatory treatment, however, goes to the root cause of his disability. If Westrock intends to dispute the existence or severity of McCray's disability, then McCray must be permitted to explain how his perception caused or exacerbated the disability. The Court will give a limiting instruction that the evidence of McCray's perception of racial discrimination is admissible solely for the purpose of allowing the jury to determine whether McCray suffered from a qualified disability, but it is not to be used as proof of racial discrimination or a determination that WestRock in fact engaged in racial discrimination or racial harassment because that is not a claim in this case.

Since McCray's use of medical leave and request for accommodation were indisputably “protected activity” under FEHA and were the central focus of his retaliation claim, he will not be permitted to rely on his informal comments about racial animus to Parziale, a supervisor whom he trusted and liked to prove his retaliation claim. See Cal. Gov't Code §§ 12940(l)(4), 12940(h). There was no formal complaint of racial discrimination and any informal remarks he allegedly made to Parziale cannot be imputed to WestRock as a basis for the retaliation claim. See Decl. of Lowry McCray ISO MSJ Opp. ¶ 14 (describing remarks made to Parziale) [Doc. # 76-2 (“McCray Decl.”)]. There is also insufficient record evidence that McCray made a complaint of racial discrimination to Holly McGinnis.

*2 For these reasons, many of WestRock's proposed redactions are overbroad. For example, the redacted portions of Dr. Chantelle Miller's return-to-work note and accommodations request do not actually mention any perceived racial animus, but just “perceived adverse discrimination,” “harassment,” and the need to eliminate forced contact with Collister. See Def.'s Compendium of Evid., Ex. 20 (unredacted note) at 176 [Doc. # 67-2]; Def.'s MIL No. 1, Ex. A (redacted note) at 22 [Doc. # 99]. The Court will apply the same logic to the expert reports. For example, in Dr. Reading's report, WestRock will not be permitted to apply the proposed redactions on pages 101–02 [Doc. # 99], but only the parts that explicitly refer to McCray's alleged complaint of racial harassment such as the sentences on page 108 that “[h]e reported that things happened to him that were discriminatory because they were only directed at him, and not at other non-African-American employees” and that “[h]e told [Buchanan] there were no other non-African-American employee experiencing these issues.”

Accordingly, WestRock's MIL No. 1 is GRANTED in part and DENIED in part. McCray may introduce evidence, including expert testimony, about his negative experiences with Collister, including references to being singled out and harassed, and that he perceived such negative experiences to be due to his race. But McCray will not be permitted to claim that he made any complaint of racial discrimination or that he was retaliated against for making any such complaint.

B. WestRock's MIL No. 2 [Doc. # 100]

In its MIL No. 2, WestRock seeks bifurcation of the punitive damages phase of the trial and to exclude all evidence of WestRock's financial condition. [Doc. ## 100 (“Def.'s MIL No. 2”), 121 (Def.'s MIL No. 2 Opp.”).] It is the Court's normal practice to bifurcate trials into two phases: Phase One in which liability and the availability of punitive damages is tried, and Phase Two, if necessary, in which the jury will determine the amount of punitive damages. McCray does not oppose proceeding in this manner. Def.'s MIL No. 2 Opp. at 2.

The evidence of WestRock's financial condition is admissible on cross-examination in Phase One to the extent it is relevant to McCray's claims. He can use such evidence to rebut WestRock's argument that his position was eliminated for legitimate business reasons involving cost-savings, as well as any “undue hardship” defense to his reasonable accommodations claim.[2] See id. at 3–5; see also Sturm v. Davlyn Invs., Inc., No. CV 12-7305-DMG (AGRx), 2013 WL 8604661, at *6 (C.D. Cal. Nov. 6, 2013) (“Evidence of financial resources is relevant to a reasonable accommodation claim to the extent that a Defendant argues the accommodation would be an ‘undue burden’ for financial reasons”) (citing Giebeler v. M. & N. Assocs., 343 F.3d 1143, 1157 (9th Cir. 2003)). If WestRock does not raise such defenses, then McCray shall not present evidence pertaining to WestRock's financial condition.

WestRock's MIL No. 2 is DENIED, without prejudice to being reasserted if WestRock's financial condition becomes irrelevant. The trial shall be bifurcated, with the amount of punitive damages tried in Phase Two, if necessary.

C. WestRock's MIL No. 3 [Doc. # 101]

In its MIL No. 3, WestRock seeks to preclude use of video testimony at trial for the following witnesses: Holly McGinnis, Mario Parziale, John Baker, and Deborah Buchanan. [Doc. # 101 (“Def.'s MIL No. 3”), 122 (“Def.'s MIL No. 3 Opp.”).] McGinnis testified both as a Rule 30(b)(6) witness and in her personal capacity. Def.'s MIL No. 3 at 5–6. WestRock has already agreed that McCray may use the video depositions of Geanie Barczak, Steven Aviles, and Justin Might at trial, since they will be unavailable. Id. at 6; Fed. R. Civ. P. 32(a)(4); see also Fed. R. Evid. 804.[3]

*3 Under Federal Rule Civil Procedure 32(a)(3), the opposing party may use “for any purpose the deposition of ... anyone who, when deposed, was the party's officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).”

In determining whether a corporate employee will be determined to be a “managing agent,” for the purpose of Rule 32(a)(3), courts consider the following factors: “(1) whether the individual is invested with general powers allowing him to exercise judgment and discretion in corporate matters; (2) whether the individual can be relied upon to give testimony, at his employer's request, in response to the demand of the examining party; (3) whether any person or persons are employed by the corporate employer in positions of higher authority than the individual designated in the area regarding which information is sought by the examination; (4) the general responsibilities of the individual respecting the matters involved in the litigation.” Calderon v. Experian Info. Sols., Inc., 287 F.R.D. 629, 632 (D. Idaho 2012), aff'd, 290 F.R.D. 508 (D. Idaho 2013) (citations omitted); see also Bella+Canvas, LLC v. Fountain Set Ltd., No. CV 21-00758-ODW (MAAx), 2022 WL 3697358, at *8 (C.D. Cal. June 29, 2022).

The “paramount” test, which is “perhaps the really determinative one” is whether the individual is likely to identify with the interests of the employer rather than the other party. Newark Ins. Co. v. Sartain, 20 F.R.D. 583, 586 (N.D. Cal. 1957). McGinnis, Parziale, Baker, and Buchanan all satisfy that factor, since it is not a subject of dispute and they have all participated in this litigation on behalf of WestRock. The third factor is not at issue here since it focuses on determining whether the individual is the correct person to depose and therefore not relevant in this posture. Def.'s MIL No. 3 Opp. at 4. Accordingly, the Court will focus its analysis on whether each individual at issue in this MIL meets the first Calderon factor.

1. Holly McGinnis

There is clear record evidence that McGinnis exercised judgment and discretion in evaluating the need for McCray's role at La Mirada, and that she had responsibilities related to this litigation. In her declaration in support of WestRock's MSJ, McGinnis state that in her previous role at WestRock, “I was responsible for Beverage sales and operations planning, production planning and scheduling and oversight of customer service for our Beverage facilities,” and that she “was involved in evaluating the need for Beverage employee staffing at the warehouse in La Mirada.” Decl. of Holly McGinnis ISO Def.'s MSJ ¶¶ 4, 6 [Doc. # 67-2 (“McGinnis Decl.”)].

2. Mario Parziale

Parziale has held two roles at WestRock, and together he has “handled scheduling for two to three production facilities, managed freight costs and planned inventory transfers and resupply shipments between different facilities,” and “manag[ed] capacity of inventory, assess[ed] demand for products, support[ed] production operations, and work[ed] to optimize costs.” Decl. of Mario Parziale ISO Def.'s MSJ ¶ 3 [Doc. # 67-2 (“Parziale Decl.”)]. He “was personally involved in executing and overseeing WestRock's decision to move its Beverage warehouse from Chino to La Mirada, California.” Id. ¶ 4. His declaration also contains some evidence that he is responsible for enforcing the “standard process” for responding to late shipments. Id. ¶ 7. Most importantly for this purpose, Parziale was present and participated in the April 26, 2021 meeting in which the “staffing and support needs at the La Mirada warehouse” were reviewed. McGinnis Decl. ¶ 24; Parziale Decl. ¶ 13. He also exercised discretion in the decision to eliminate McCray's role. Id.

3. John Baker

*4 John Baker's declaration states that he had full oversight of Human Resources support during his time at WestRock, including having “the final say in the decision to hire HR employee [sic] who would directly report to me.” Decl. of John Baker ISO Def.'s MSJ ¶ 3 [Doc. # 67-2 (“Baker Decl.”)]. He is “included in evaluating employee termination or position decisions,” and participated in the decision to eliminate McCray's position. Id. ¶ 9; Def.'s Compendium of Evid., Ex. 19 (email from Buchanan to Might and Baker dated Apr. 26, 2021) at 173 [Doc. # 67-2].

4. Deborah Buchanan

Buchanan was the HR manager, and clearly exercised independent judgment and discretion in that role. She was involved in the decision to terminate McCray, and made the decision to not investigate his July 2020 complaint about Collister. See McGinnis Decl. ¶¶ 23– 24; Def.'s Compendium of Evid., Ex. 19 (email from Buchanan to Justin Might and John Baker dated Apr. 26, 2021) at 173; Decl. of Deborah Buchanan ISO Def.'s MSJ ¶ 6 [Doc. # 67-2 (“Buchanan Decl.”)].

At the time of her deposition, however, Buchanan no longer was an employee of WestRock. Def.'s MIL No. 3 Opp. at 5. Still, she testified on WestRock's behalf at deposition, and provided a declaration on its behalf in support of its motion for summary judgment. The main reason for preventing former employees from being “managing agents” is to provide protection against “disgruntled former employee[s],” but there is no such concern here. See Independent Productions Corp. v. Loew's, Inc., 24 F.R.D. 19, 25 (S.D.N.Y. 1959).

Accordingly, the Court concludes that McGinnis, Parziale, Baker, and Buchanan are “managing agents” of WestRock for the purpose of Rule 32(a)(3), and thus McCray may use their individual depositions for any purpose at trial. Fed. R. Civ. P. 32(a)(3).

WestRock's MIL No. 3 is DENIED. By July 18, the parties must lodge their marked deposition transcripts per C.D. Cal. Local Rule 16-2.7 and the Court's Final Pretrial Conference Order, any objections and/or counter-designations must be lodged by July 25.

D. WestRock's MIL No. 4 [Doc. # 102][4]

WestRock's MIL No. 4 seeks to exclude all evidence of McCray's tenure with MeadWestvaco, WestRock's predecessor company. [Doc. ## 102 (“Def.'s MIL No. 4”), 123 (“Def.'s MIL No. 4 Opp.”).]

McCray began working for WestRock's predecessor company, the Mead Corporation, in 1994, which merged with Westvaco Corporation to become MeadWestvaco in 2002, and then became WestRock in 2015. McCray Decl. ¶ 3; Baker Decl. ¶ 3; McCray's Request for Judicial Notice (“RJN”), Ex. A (financial data of MeadWestvaco corporation after 2002 merger) at 5–12 [Doc. # 117];[5] see also Def.'s MIL No. 4 Opp. at 6. Until his termination from WestRock, he worked continuously as the companies integrated, receiving several promotions and holding several different positions. McCray Decl. ¶ 3; Def.'s MIL No. 4 Opp. at 7–8.

*5 McCray may not untruthfully represent that he worked at WestRock for 27 years, but he may present evidence to the jury of his uninterrupted tenure at Westrock and its predecessor companies. WestRock may wish to present evidence and cross-examine McCray's witnesses regarding the nature of its relationship with the Mead Corporation and MedWestvaco, but there is no legitimate ground for excluding such evidence. WestRock's MIL No. 4 is DENIED and McCray's MIL No. 3 [Doc. # 116] is GRANTED.

E. WestRock's MIL No. 5 [Doc. # 103]

Finally, WestRock brings a “Daubert motion” to exclude McCray's expert Dr. Robert Sniderman pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). [Doc. ## 103 (“Def.'s MIL No. 5”), 124 (“Def.'s MIL No. 5 Opp.”).] WestRock argues that Dr. Robert Sniderman's testimony should be excluded because: (1) his opinions consist solely of legal conclusions; (2) his statements are inadmissible opinion testimony; and (3) if admitted, Dr. Sniderman's opinions will be unduly prejudicial to WestRock. Id. at 6.

Expert testimony is generally admissible if it “ ‘will assist the trier of fact to understand the evidence or to determine a fact in issue’; ... it is ‘based upon sufficient facts or data;’ ... it is ‘the product of reliable principles and methods;’ and ... the expert ‘has applied the principles and methods reliably to the facts of the case.’ ” Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013) (quoting Fed. R. Evid. 702). Under Daubert and its progeny, a court must

Id. at 969–70 (internal quotations and citations omitted). As a rule, an expert witness “cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.” Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004). An expert may not opine on the facts of the case, since it is “inappropriate for experts to become a vehicle for factual narrative.” S.E.C. v. Tourre, 950 F. Supp. 2d 666, 675 (S.D.N.Y. 2013).

First, WestRock contends that Dr. Sniderman's report “both attempts to instruct the jury as to the applicable law and tells the jury how to apply the facts,” objecting to his use of guidance from the Equal Employment Opportunity Commission (“EEOC”) and Americans with Disabilities ACT (“ADA”) in lieu of FEHA-specific guidance. Def.'s MIL No. 4 at 8–9, Ex. A (“Dr. Sniderman Report”) at 19–30 [Doc. # 103]. But ADA law and EEOC law are relevant to interpreting the FEHA, since California law considers the ADA to be “a floor of protection” for the area of disability rights. Cal. Gov't Code § 12926.1(a); Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1187 n.1 (9th Cir. 2001).

Even so, Dr. Sniderman may not testify that WestRock “seemly [sic] and conveniently, arbitrarily decided that Mr. McCray's position was no longer needed” or provide similar improper opinions or characterizations of fact. See Def.'s MIL No. 5 at 10; Dr. Sniderman Report at 23. While Dr. Sniderman did not directly list any of WestRock's policy documents in the “Data Considered” section of his Rule 26 Report, those documents are referenced or contained in the deposition testimony and exhibits to the Rule 30(b)(6) deposition of Justin Might. See Dr. Sniderman Report at 25; Pl.'s Compendium of Evid., Ex. B (excerpts and exhibits from certified deposition transcript of Justin Might in his capacity as Rule 30(b)(6) witness) at 50–147 [Doc. # 76-4]. Accordingly, he may also opine on whether WestRock deviated from those policies and practices.

*6 WestRock's MIL No. 5 is GRANTED in part and DENIED in part. Dr. Sniderman may testify about standard human resources practices and EEOC guidance and whether WestRock acted consistently with those practices and guidance in this case, but he may not offer any opinions on the ultimate legal issues in this case, nor any factual characterizations or conclusions. Additionally, he must redact any references to complaints of race discrimination from his report and be instructed not to mention any aspects of McCray's racial discrimination claims in his trial testimony.

A. McCray's MIL No. 1 [Doc. # 114]

McCray's MIL No. 1 seeks to exclude all evidence that WestRock consulted with legal counsel in connection with the events that gave rise to this case. [Doc. # 114 (“Pl.'s MIL No. 1”), 125 (“Pl.'s MIL No. 1 Opp.”).] In its Opposition, WestRock clarified that it does not intend to offer any evidence of the substance of any attorney-client communications, nor does it plan to present an “advice of counsel defense.” Pl.'s MIL No. 1 Opp. at 4.

There is key evidence in this case—for example, the emails from Buchanan regarding McCray's termination after the April 26, 2021 meeting—that reference consulting with “legal.” See Def.'s Compendium of Evid., Ex. 19 (email from Buchanan to Justin Might and John Baker dated Apr. 26, 2021) at 173; Buchanan Decl. ¶ 15 (“Since [McCray] remained on approved leave of absence with no definite return to work date and had continued to extend his leave, I did not contact him to notify him his position was eliminated and did not immediately submit the request for legal to prepare the severance package. It was on my list of things to do.”). McCray cites almost no caselaw to support his argument that all such evidence should be redacted and/or excluded. Since WestRock will not offer any evidence of the content of attorney-client communications, it is not using the attorney-client privilege as a “sword and a shield.” See Pl.'s MIL No. 1 Opp. at 14–18.

Since WestRock has clarified the reasons it wishes to refer to its communications with its Legal Department, and the fact of having done so may be relevant to the claims in this case, McCray's MIL No. 1 is DENIED. See Pl.'s MIL No. 1 Opp. at 5–15.

B. McCray's MIL No. 2 [Doc. # 115]

McCray's MIL No. 2 is a Daubert motion seeking to exclude Westrock's rebuttal expert Jay Finkelman. [Doc. ## 115 (“Pl.'s MIL No. 2”), 126 (“Pl.'s MIL No. 2 Opp.”).] He argues that Dr. Finkelman's testimony should be excluded in its entirety for failure to disclose his Rule 26 testimony list. See Pl.'s MIL No. 2 at 2; Fed. R. Civ. P. 26, 37.

Rule 37(c) prohibits a party from using information or a witness that was not timely disclosed during the discovery process, unless the failure to disclose was substantially justified or harmless. Sanctions are “automatic” and “self-executing,” and “[c]ourts have upheld the use of the sanction even when a litigant's entire cause of action or defense has been precluded.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).

In its Opposition, WestRock represented that it was unaware that Dr. Finkelman's expert disclosure list was excluded when it timely served its rebuttal disclosures. Pl.'s MIL No. 2 Opp. at 6, Ex. C (rebuttal expert disclosures) at 117–18 [Doc. # 115]. When it learned of its omission, it provided the missing information to McCray on June 24, 2023. Pl.'s MIL No. 2 Opp. at 6. Further, WestRock states that McCray's counsel did not state his intent to move to exclude Dr. Finkelman on this basis in their Local Rule 7-3 conference. Id. at 6–7. Since McCray failed to provide proper notice to McCray, the omission was inadvertent, and was cured more than a month before trial, the Court concludes that the error was harmless. See Fed. R. Civ. P. 37(c).

*7 As the Court previously warned the parties, see supra Section I.E re Dr. Sniderman, Dr. Finkelman may not offer improper legal opinions in his testimony. When providing his opinion, he may not state that the EEOC guidance is “inapplicable and irrelevant to this case” or make any statements that might lead a jury to believe he was stating the law, or state that McCray “was not a disabled employee to which EEOC guidance is in any way relevant or applicable.” See Pl.'s MIL No. 2, Ex. C (Dr. Finkelman Report) at 125–26. He may state that based on his experience, the “generally accepted” Human Resource Management practice is to not engage in the interactive process when an employee's position is eliminated. Id.

McCray's MIL No. 2 is GRANTED in part and DENIED in part. Dr. Finkelman may testify as to “generally accepted” practices and whether WestRock's conduct was consistent with those practices, but may not offer any improper legal conclusions as to what happened in this case.

C. McCray's MIL No. 3 [Doc. # 116]

McCray's MIL No. 3 seeks to exclude evidence that WestRock was not McCray's employer before it incorporated in 2015 and to impute the prior decisions of WestRock's parent company, MeadWestvaco Corporation to WestRock.

For the reasons outlined in the Court's discussion of WestRock's MIL No. 4, the Court GRANTS Pl.'s MIL No. 3. See supra Section I.D.

D. McCray's MIL No. 4 [Doc. # 118]

Finally, McCray brings MIL No. 4 to exclude any evidence not produced in discovery pursuant to Federal Rule of Evidence 37(c). [Doc. ## 118 (“Pl.'s MIL No. 4”), 128 (“Pl.'s MIL No. 4 Opp.”).] Specifically, McCray seeks to exclude the trial testimony of Tad Collister, Alex Serrillo, and Francisco Pacheco. Pl.'s MIL No. 4 at 7.

1. Tad Collister

It is undisputed that WestRock disclosed Collister as a potential witness in its initial disclosures, but McCray accuses WestRock of “gamesmanship” in refusing to produce him for deposition. See Pl.'s MIL No. 4 at 9. McCray's MIL with respect to Collister is not actually a Rule 37(c) argument, but an attempt to re-litigate a discovery dispute about the scheduling of his deposition. See Decl. of Kristopher N. Tayyeb ISO Pl.'s MIL No. 4 ¶ 11 (describing that “our firm lacked the time to subpoena him for deposition” given the other depositions remaining). After legitimate difficulty contacting Collister, WestRock indicated to McCray that it would not object to him deposing Collister after the discovery cutoff. See Decl. of Talia L. Delanoy ISO Pl.'s MIL No. 4 Opp. ¶¶ 2–6 [Doc. # 128 at 16–17]. McCray did not attempt to do so.

McCray's MIL No. 4 is DENIED with respect to Collister.

2. Alex Serrillo

WestRock included “States Logistics” in its initial disclosures, and disclosed Serrillo (a States Logistics employee) by name in its response to McCray's fourth set of interrogatories. See Decl. of Kristopher N. Tayyeb ISO Pl.'s MIL No. 4, Ex A (WestRock's Rule 26 initial disclosures) at 7; Pl.'s MIL No. 4 Opp., Ex. B at 33. Even though he was omitted from WestRock's initial disclosures by name, McCray was aware of his potential involvement as of February 6, 2023. Id. at 33–34. Moreover, Serrillo is a nonparty witness, and thus the imposition of Rule 37 sanctions on WestRock for his failure to appear for his deposition is improper. See Sali v. Corona Regional Medical Ctr., 884 F.3d 1218, 1224 (9th Cir. 2018) (citing Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 n.8 (9th Cir. 1983)). Again, any issue with Serrillo's non-appearance for his deposition should have been raised as a discovery motion.

McCray's MIL No. 4 is DENIED with respect to Serrillo.

3. Francisco Pacheco

McCray may have been aware of Pacheco's knowledge of events relating to this lawsuit, but if WestRock did not disclose him as a potential witness or depose him, it would violate Rule 37(c) to permit WestRock to call him as a witness. See Pl.'s MIL No. 4 Opp. At 9–10. He is not on McCray's witness list [Doc. # 109]; and therefore he is not “Plaintiff's witness” as WestRock claims. Id. This omission is not “substantially justified” or harmless. Fed. R. Civ. P. 37I.

*8 McCray's MIL No. 4 is GRANTED with respect to Pacheco.

E. McCray's Motion for Rule 37(d) Sanctions [Doc. # 119]

McCray also filed a motion for sanctions pursuant to Rule 37(d) [Doc. ## 119 (“MFS”), 129 (“MFS Opp.”)], which permits sanctions when “a party or a party's officer, director, or managing agent—or a person designated under Rule 30(b)(6) or 31(a)(4)—fails, after being served with proper notice, to appear for that person's deposition.” See Fed. R. Civ. P. 37(d)(1)(A). McCray seeks an evidentiary sanction establishing as a fact that vacant job positions existed in WestRock's food and beverage division between April 1 and July 15, 2021 and that he was qualified for those positions. MFS at 7. In the alternative, McCray seeks leave to take a Rule 30(b)(6) deposition of Parziale or another witness qualified to speak on these topics. Id. at 17.

On February 3, 2022, McCray served his first Rule 30(b)(6) notice (and an accompanying request for production of documents, or “RFP”) on WestRock, seeking testimony proving that a suitable vacant position existed at WestRock at the time of McCray's termination. MFS at 8. McCray originally noticed the deposition for March 15, 2022, but had to postpone because WestRock did not produce any documents in response to the RFP. Id.; see also Decl. of Kristopher N. Tayyeb ISO MFS ¶ 3 [Doc. # 119 at 20]. After moving to compel, Magistrate Judge Oliver held on December 28, 2022, that McCray's Topic No. 20 (“Any and all vacant job positions at [WestRock] at the time it discontinued [McCray's] job position”) was overbroad. [Doc. # 48.]

Pursuant to this ruling, McCray served a second Rule 30(b)(6) deposition notice, with a single, narrower topic: “All vacant job positions in the United States in [WestRock]'s Food and Beverage division between April 1 and July 15, 2021 for which [McCray] was qualified.” MFS at 9. Defendant “objected informally to the notice,” but the parties met-and-conferred and agreed that WestRock would provide such a list for McCray to highlight which positions he believed he was qualified for. Id. WestRock sent the list on January 31, 2023, and McCray responded on February 7, 2023. Id. The parties informed Judge Oliver that this dispute was outstanding, but they continued to meet and confer about various other discovery disputes and did not communicate further about this topic. Id.; Tayyeb Decl. ISO MFS ¶ 9 [Doc. # 119 at 21]; MFS Opp. at 5–6.

On February 24, 2023, McCray sent WestRock the Zoom link for the deposition, and WestRock objected. See Tayyeb Decl. ISO MFS ¶ 12 [Doc. # 119 at 22]. WestRock claims it offered to continue meeting and conferring to resolve the issue, but McCray did not respond. MFS Opp. at 7; Decl. of Talia L. Delanoy ISO MFS Opp. ¶ 5 [Doc. # 129 at 13].

McCray's cited authority addresses failure to appear for “properly-noticed” depositions, which is not the case here. See MFS at 11–13. It seems that the parties were still in the process of meeting and conferring as to the scope of the deposition, and this thread got lost in the shuffle just before the discovery cutoff date. The Court declines to exercise its discretion to impose sanctions under these circumstances. See Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981) (“The sanctions available to the district court are discretionary ....”).

*9 Still, the information about available jobs at WestRock is relevant to McCray's affirmative case and he may be prejudiced without it. WestRock suggests that it can produce McCray's former supervisor, Mario Parziale, who has knowledge of McCray's job skills and “can offer some feedback on whether those skills would translate to the positions listed, using the information found on the face of the job posting.” MFS Opp. at 10. In his declaration, Parziale states “[a]s Mr. McCray's direct supervisor from late 2017 through the date his position was eliminated in April 2021, I have personal knowledge of his job responsibilities and I prepared his written job description.” Parziale Decl. ¶ 4.

WestRock's proposed solution is reasonable to cure any prejudice. McCray's MFS is DENIED, but the Court grants leave for McCray to take the Rule 30(b)(6) deposition of Mario Parziale or another suitable witness on the limited topic of McCray's job description at La Mirada, his skills employed there, and an assessment of whether those skills would be suitable to the positions listed, based on the information found in the job posting.

For the foregoing reasons, the Court rules as follows:

WestRock shall be permitted to file its Witness List by July 18, 2023.

IT IS SO ORDERED.