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Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Dba Abercrombie Kids


February 14, 2012


The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed February 14, 2012 **



Plaintiff Equal Employment Opportunity Commission ("EEOC") has brought suit against Abercrombie & Fitch Stores, dba Abercrombie kids ("Abercrombie"), alleging that Abercrombie 19 discriminated against a job applicant, Halla Banafa, because she is allegedly a Muslim woman who 20 wore a hijab in public at all times. Now, two discovery disputes have arisen. 21


On January 30, 2012, the parties filed their Discovery Dispute Joint Report #1 ("DDJR #1").

Dkt. No. 53. Through a set of requests for production ("RFPs"), Abercrombie requested "all 24 photographs of Halla Banafa" taken from January 1, 2007 through the present. Dkt. No. 53, p. 2. 25

EEOC made boilerplate objections on the grounds that the request was overbroad, unduly 26 burdensome, cumulative, and irrelevant. Id. at 3. However, the parties then conferred and agreed 27 that plaintiff would produce all photographs from six months before the job interview to six months 28 after the interview ("the one-year period"). Id. EEOC did produce some 28 photos from this period, but the defendant now argues that EEOC's production is incomplete. The EEOC alleges that it has 2 provided all of the photographs in Banafa's possession that were taken during the one year period 3 agreed to by the parties, but acknowledges that other photographs exist outside of Banafa's 4 possession.*fn1 Abercrombie has apparently renewed its efforts to obtain all photos taken after January 5

Abercrombie seeks an order compelling the EEOC to produce all responsive photographs 7 from the one year period, while EEOC seeks a protective order preventing Abercrombie from 8 seeking responsive photographs from deponents that were taken outside the one-year period. In 9 essence, there are two points at issue in this DDJR: 1) whether EEOC should produce photographs 10 solely from the one year period surrounding Banafa's interview with Abercrombie, or from the entire period from January 1, 2007 to the present; and 2) if EEOC need only produce photographs taken during the one-year period, whether it has satisfied its burden of production. 13 14 party's claim or defense." Fed. R. Civ. P. 26(b)(1). An action for failure to accommodate under Title 15 VII of the Civil Rights Act requires the plaintiff to show, among other things, that she has a bona 16 fide religious belief. Berry v. Dep't of Soc. Servs., 447 F.3d 642, 655 (9th Cir. 2006). Abercrombie 17 argues that the photographs sought are relevant for challenging Banafa's allegation that she had 18 sincerely held religious beliefs. DDJR #1, p. 6-7 (citing Berry, 447 F.3d at 655. EEOC contends that 19 the photographs could only be relevant to show that Banafa stopped wearing her hijab some months 20 following the job interview, which Banafa has already admitted and therefore is not in dispute. Id. at 21

As the parties already conferred and agreed that it would be satisfactory to produce only 23 those photographs taken during the one year period, the court concludes that this period of time 24 reasonably addresses the concerns of both parties. Therefore, the court will not order the EEOC to 1, 2007 by requesting the photos from Banafa's father and husband via subpoenas duces tecum. Id. 6

"Parties may obtain discovery regarding any non-privileged matter that is relevant to any produce over five years of photographs (from Januay 1, 2007 through the present) when the parties 2 have already agreed that one year of photographs would be sufficient. Instead, the EEOC is ordered 3 to produce any and all additional photographs of Banafa during the one year period identified by the 4 parties, including any responsive photographs that she uploaded to her Facebook page before 5 deactivating it. However, the EEOC need not produce photographs outside its or Banafa's custody 6 and control. Finally, the court does not find that there is good cause to issue a protective order 7 preventing Abercrombie from seeking photographs taken during the one year period that are in the 8 possession of non-party witnesses. Abercrombie may seek photographs taken during the one year 9 from non-party witnesses through appropriate discovery devices. 10

On February 9 and 10, 2012, the parties filed what purports to be a second Discovery Dispute Joint Report, though the filings do not comply with the undersigned's Standing Order re 13 February 9, which acknowledged that plaintiff had not incorporated the defendant's input due to 15 "exigent circumstances," namely, that defendant did not provide that input in the single day that 16 plaintiff gave it to respond. Dkt. No. 55. In addition, plaintiffs filed an exhibit to the DDJR 17 provisionally under seal, along with an administrative motion to file under seal (Dkt. No. 56), and a 18 motion to shorten time, requesting that this court rule on the report before a deposition of Banafa's 19 father, scheduled for February 14. Dkt. No. 58. The next day, defendants filed a document also 20 entitled Discovery Dispute Joint Report #2, which states its position and argues that the plaintiffs 21 filed the DDJR #2 without defendant's input despite having knowledge that defendant was drafting 22 its position. Dkt. No. 59, p. 1. 23

Plaintiff filed a motion for an order shortening time on its DDJR #2, and in the alternative, 25 requested that this court stay the deposition scheduled for February 14 pending its ruling on the 26 DDJR #2. Dkt. No. 58. While a motion to shorten time is typically used to request that a court hold 27 a hearing or other proceeding on an expedited basis, in this case, there is no hearing or proceeding to 28 expedite. Instead, plaintiff wishes its DDJR to be ruled upon before the February 14 deposition of


Civil Discovery Disputes. Plaintiff filed a document titled "Discovery Dispute Joint Report #2" on 14

A. Plaintiff's Motion to Shorten Time

Banafa's father, as it fears the document that is the subject of DDJR #2 will be presented at the 2 deposition and will cause irreparable harm. Dkt. No. 58, p. 3. Good cause appearing for this court to 3 rule on the DDJR in an expedited fashion, the motion to shorten time is GRANTED and the court 4 rules as follows. 5

Pursuant to Civil Local Rule 79-5, a document may only be filed under seal "upon a request 7 that establishes that the document . . . is privileged or protectable as a trade secret or otherwise 8 entitled to protection under the law." A party seeking to file under seal must lodge with the Clerk 9 two copies of the entire document, properly marked, so that one copy can be held by the Clerk, and 10 the other can be reviewed by the judge. Civil L. R. 79-5(b). It appears that EEOC has not complied with this district's local rules, as it has not provided the court with any copy of the material sought to be sealed. Instead, the undersigned has received only a redacted copy of the DDJR #2. Therefore, 13 the court is unable to evaluate the document plaintiff wishes to seal to determine whether it is 14 "sealable" as defined by Civil L. R. 79-5. In addition, plaintiff has failed to comply with the 15 undersigned's Standing Order re Civil Discovery Disputes, which permits only one exhibit to be 16 attached to a DDJR, "an exact copy of the discovery request(s) in issue and the response (if any) to 17 it." The exhibit is improper in light of the undersigned's Standing Order, and fails to comply with 18 the applicable local rule. 19

Plaintiff shall file unredacted versions of the subject documents in the public record. See Civ. L.R. 21

C. Discovery Dispute Joint Report #2

The court will consider Docket Nos. 55 and 59 to constitute the parties' Discovery Dispute Joint Report #2 ("DDJR #2") despite the procedural flaws in its filing. However, the parties are 25 advised that future discovery disputes, should they arise, must comply with the undersigned's 26 Plaintiff EEOC seeks a protective order to prevent the defendant from using posts published 28 on MySpace by Banafa's husband before the two were married and before the job interview at issue

B. Plaintiff's Administrative Motion to Seal Exhibit A

Accordingly, the Plaintiff's motion is DENIED. Within four days from the date of this order,

79-5(e). 22

Standing Order re Civil Discovery Disputes. 27

in this case. Dkt. No. 55. EEOC contends that these posts are irrelevant to the case, and that their 2 profane nature will deepen the rift between Banafa and her father. Id. Abercrombie argues that 3 because the posts are publicly available online and are not the product of a discovery request at all, a 4

DDJR is an improper means of settling this dispute, and moreover, a protective order is not 5 warranted. Dkt. No. 59. 6

Although the court has not had an opportunity to evaluate the document in question, it 7 concludes that a protective order is not warranted in this case. The Federal Rules of Civil Procedure 8 permit a court to issue a protective order "to protect a party from annoyance, embarrassment, 9 oppression, or undue burden or expense." Fed. R. Civ. P. 26(c). A protective order may be issued 10 where "good cause exists to protect th[e] information from being disclosed to the public by

balancing the needs for discovery against the need for confidentiality." Pintos v. Pac. Creditors

Ass'n, 605 F.3d 665, 678 (9th Cir. 2010) (internal citations omitted). 13

Here, the document at issue is already in the public record and can be located by anyone who 14 wishes to Google it. Therefore, a protective order cannot possibly protect it from "being disclosed to 15 the public." Accordingly, the court declines to issue a protective order sealing the document. 16


Based on the foregoing, IT IS ORDERED THAT:

1. EEOC shall produce any additional photographs in its or Banafa's possession that were taken during the one year period.

2. Abercrombie may seek additional photographs taken during the one year period from non-party witnesses through appropriate discovery devices.

3. EEOC's motion to shorten time is GRANTED.

4. EEOC's administrative motion to file under seal is DENIED. EEOC shall file an unredacted copy of the exhibit to DDJR #2 within four days of the date of this order.

C10-cv-03911 Notice will be electronically mailed to:

Jonathan Peck Marcia Mitchell 3 Sirithon Thanasombat William Tamayo 4 Samantha Stilp Amarra Le 5 Douglas Dexter 6

Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program. 7 8 9 10

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