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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 ...

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