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U.S. Equal Employment Opportunity Commission v. ABM Industries Inc.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 9, 2010

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
ERIKA MORALES AND ANONYMOUS PLAINTIFFS ONE THROUGH EIGHT, PLAINTIFF-INTERVENORS,
v.
ABM INDUSTRIES INCORPORATED, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

JOINT STIPULATION RESOLVING DISPUTES OVER DEFENDANTS' SUBPOENAS OF CERTAIN CLAIMANTS' EMPLOYMENT RECORDS; ORDER

On or about February 22, 2010, Defendants issued the following ten third party subpoenas: Teresa Sanchez (subpoena to SCOBM), Maria Quintero (subpoena to IHOP), Hilda Gomez (subpoena to VF Outdoor), Delia DeMejia (subpoena to V&A Janitorial), Martha Castaneda Garcia (subpoena to Ruiz Foods), Gloria Bernal (subpoena to TransWest Security Services), Patricia DeVera (subpoena to Beacon Property Management), Maria Socorro Zapien (subpoena to Zapien Electric), Maria Magana (subpoena to Varsity Contractors), and Maria Cantoral (subpoena to WM Bolthouse Farms).

Defendants and Plaintiffs (EEOC and Plaintiff-Interveners) disagree on the subpoenas' timeliness and the merits of Defendants' ability to obtain and use the documents specified in the subpoenas. However, in order to facilitate a resolution of this matter without Court intervention, the parties stipulate, subject to Court approval, to resolve the matter as follows:

I. Defendant Will Withdraw Six Subpoenas

Defendant will withdraw the subpoenas regarding Maria Quintero (subpoena to IHOP), Hilda Gomez (subpoena to VF Outdoor), Delia DeMejia (subpoena to V&A Janitorial), Martha Castaneda Garcia (subpoena to Ruiz Foods), Gloria Bernal (subpoena to TransWest Security Services), and Patricia DeVera (subpoena to Beacon Property Management) ("Section I Claimants). In exchange for Defendants' withdrawal of the subpoenas, the EEOC agrees to not present evidence of ongoing emotional distress damages regarding the claims of Maria Quintero, Hilda Gomez, Delia DeMejia, Martha Castaneda Garcia, Gloria Bernal, and Patricia DeVera in any proceeding before or at the trial of this case. EEOC also agrees to provide all W-2 and/or paycheck stubs regarding mitigation of the backpay claim of any of the listed women.

The stipulation does not affect or limit any argument or claim that EEOC may have to seek damages incurred during Section I Claimants' employment for pain and suffering, emotional distress, indignity, loss of enjoyment of life, loss of self-esteem, humiliation, including claims for "garden-variety" emotional distress, in amounts to be determined at trial. See, e.g., Turner v. Imperial Stores, 161 F.R.D. 89, 97 (S.D. Cal. 1995)(leading case concluding that "garden-variety" claims for emotional distress do not justify compelling psychiatric examinations under Rule 35). For Section I Claimants, EEOC does not intend to present at trial any medical records, expert testimony, or treating physician's testimony in support of their claims for damages. Further, this stipulation does not waive any privilege against disclosure of the records at issue that Plaintiff may have in seeking "garden variety" damages for the Section I Claimants.

II. Attorneys Eyes Only Review of Four Subpoenas

As for the subpoenas relating to Teresa Sanchez (subpoena to SCOBM), Maria Socorro Zapien (subpoena to Zapien Electric), Maria Magana (subpoena to Varsity Contractors), and Maria Cantoral (subpoena to WM Bolthouse Farms) ("Section II Claimants"), no limitation on claims has been agreed upon. The parties nevertheless agree that Wheels of Justice will produce all documents related to Section II Claimants at the same time only to the attorneys for Plaintiffs and attorneys for Defendants. The parties agree that the documents related to Section II Claimants are to be reviewed by "attorneys eyes only." If the attorneys for Defendants believe that they should be able to use any of the subpoenaed documents related to Section II Claimants for any other purposes in this litigation, including motion practice and trial, then they need to notify the attorneys of the other parties to begin the meet and confer process no later than two weeks of the receipt of the subpoenaed documents. If an agreement cannot be reached within one month of receiving said documents, then Plaintiffs may seek a protective order against any use beyond review by the attorneys.

For any documents related to Section II Claimants that the parties agree will not be used in this case, Defendants will destroy said documents and copies of any such documents, as well as notes and copies of notes regarding said documents.

Defendants also agree to not use information obtained from any documents that the parties agree will not be used.

III. Preservation of Objections

The foregoing agreement is solely meant to resolve a discovery dispute amongst the parties. It does not constitute a waiver or withdrawal of any objection to Defendants' use of obtained documents at an eventual trial of this case or potential defenses or claims that that parties can raise, except as specifically listed by the EEOC regarding ongoing emotional distress damages and back and front pay for specified claimants. Nothing in this stipulation should be construed as having any precedential value as to what the parties would agree to in any other litigation.

It is so stipulated.

Respectfully submitted,

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Anna Y. Park Elizabeth Esparza-Cervantes Lorena Garcia Attorneys for Plaintiff

U.S. EEOC LAW OFFICES OF MALLISON & MARTINEZ Stan Mallison Hector R. Martinez Attorneys for Plaintiff- Intervenors

LITTLER MENDELSON Keith Jacoby Laura Hayward Attorneys for Defendant ABM Industries Incorporated, ABM Janitorial Services, Inc., and ABM Janitorial- Northern California

ORDER

For good cause shown, the stipulation of the parties related to the current discovery dispute is approved to the extent that it is consistent with the Scheduling Order. All non-dispositive motions must be filed within the timeframes set forth in the Scheduling Order or leave of the Court, based upon a showing of good cause to modify the Scheduling Order, must be obtained before filing any such motion.

IT IS SO ORDERED.

20100409

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