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U.S. Equal Employment Opportunity Commission, and v. Abercrombie & Fitch Stores

February 5, 2013



On January 29, 2013, the Court held a hearing on Defendants' Motion for Sanctions [Doc. #68] filed against CAIR-California ("CAIR-CA") based upon CAIR-CA's purported failure to provide a 30(b)(6) witness as ordered by the Court. At the conclusion of the hearing, the Court instructed Counsel for Defendants and Counsel for CAIR-CA to meet in-person and to discuss 2 what subjects Defendants still needed CAIR-CA to provide testimony on. Counsel for Defendants 3 and for CAIR-CA met for nearly two hours following the hearing. 4

A.Subjects for Further Inquiry

Defendants identified two topics that are within the scope of the Court's October 17, 2012 6 Order that additional testimony from a CAIR-CA designated witness is needed. First, Defendants 7 need CAIR-CA to testify to its non-privileged, relevant communications with the EEOC during 8 the EEOC's investigation and conciliation process, including the offer of reinstatement.

Second, Defendants requested that CAIR-CA provide testimony regarding non-privileged, relevant communications with Ms. Khan regarding Abercrombie or her allegations against Abercrombie or CAIR-CA's communications regarding Ms. Khan's allegations. To further 13 specify the communications at issue in greater detail, Defendants explained that the exhibits from Mr. Ayloush's deposition reflect statements by CAIR-CA or its representatives regarding Ms. Khan's allegations. For the statements reflected in the exhibits, Defendants are interested in 16 whether the statement was made based upon information provided to CAIR-CA by Ms. Khan or 17 18 by Abercrombie.

B.Process for Obtaining Testimony

Defendant had envisioned that CAIR-CA would provide a designated witness for 21 deposition. However, Counsel for CAIR-CA suggested that many of the subjects could be easily 22 addressed by CAIR-CA in a sworn declaration or affidavit rather than through another deposition. 23

Given that Defendants have already expended time and resources on a deposition, both parties 24 25 agreed that CAIR-CA will provide written sworn testimony in response to specific questions identified by Abercrombie. Counsel discussed a process whereby Abercrombie would provide 27 within 7 days written questions to CAIR-CA addressing specific matters related to the above-28 described topics. CAIR-CA would provide answers in writing and under oath by an adequate representative 14 days thereafter. Ideally, CAIR-CA's written answers would be sufficient and 1 2 would avoid the need for a deposition. However, given the limitations of written testimony,

Abercrombie reserves the right to take the deposition if still necessary after Defendants have 4 received CAIR-CA's written responses, and have met and conferred with CAIR-CA regarding any 5 outstanding issues, in the event that CAIR-CA's written responses were inadequate, unclear, or 6 incomplete. CAIR-CA reserves the right to seek the Court's protection if CAIR-CA believes that Defendants' attempt is not necessary and after the parties meet and confer.

Respectfully submitted, /s/Daniel J. Clark Mark A. Knueve (Ohio Bar No. 0067074) Admitted Pro Hac Vice Daniel J. Clark (Ohio Bar No. 0075125) Admitted Pro Hac Vice VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 Telephone: (614) 464-6387 Facsimile: (614) 719-4808 E-mail: E-mail: Douglas E. Dexter, SBN 115868 Diego Acevedo, SB# 244693 FARELLA BRAUN MARTEL LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 Telephone: (415) 954-4400 Facsimile: (415) 954-4480 E-mail: E-mail: Attorneys for Defendants ABERCROMBIE & FITCH STORES, INC. HOLLISTER CO. /s/ Aliah A. Abdo, Esq._________________________ Omair M. Farooqui, Esq. David R. Lawson, Esq. Aliah A. Abdo, Esq. Ellahie & Farooqui, LLP 12 South First Street, Suite 600 San Jose, California 95113 Phone: (408) 294-0404 Fax: (408) 294-6659 E-Fax: (408) 886-9468 Attorneys for Third-Party CAIR-CA


I HEREBY CERTIFY that a true and correct copy of the foregoing JOINT NOTICE OF EFFORTS TO MEET AND CONFERwas electronically filed on January 30, 2013, with the Clerk of Court through the CM/ECF system, which will send notice of electronic filing to the 5 following: 6 Christopher Ho, State Bar No. 129845 7 Araceli Martinez-Olguin, State Bar No. 236561 8 The LEGAL AID SOCIETY -- EMPLOYMENT LAW CENTER 180 Montgomery Street, Suite 600 9 San Francisco, CA 94104 Telephone: (415) 864-8848 10 Facsimile: (415) 593-0096 Email:, 11 12 Zahra Billoo, State Bar No. 267634 13 COUNCIL ON AMERICAN-ISLAMIC RELATIONS (CAIR) 3000 Scott Blvd., Suite 101 14 Santa Clara, CA 95054 Telephone: (408) 986-9874 15 Facsimile: (408) 986-9875 16 Email: 17 Attorneys for Intervenor UMME-HANI KHAN 18 Sirithon Thanasombat 19 Marcia L. Mitchell, SBN 18122 (WA) 20 U.S. EEOC, San Francisco District Office 350 The Embarcadero, Suite 500 21 San Francisco, CA 94105 Telephone No. (415) 625-5651 22 Fax No. (415) 625-5657 23 24 Attorneys for Plaintiff EEOC 25 26 /s/ Aliah Abdo_______________________ Aliah Abdo


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