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Gwendolyn Gavin v. Hilton Worldwide


May 8, 2013


The opinion of the court was delivered by: Nandor J. Vadas United States Magistrate Judge


Before the court is plaintiff Gwendolyn Gavin's motion to compel further responses to four special interrogatories and one document request. Doc. No. 56. The motion was fully briefed, and 14 was argued on May 7, 2013. For the reasons below, the court will grant in part and deny in part 15 the motion to compel. 16


The factual background of this action has been set forth in this court's prior discovery 18 order (Doc. No. 60), and is incorporated by reference here. 19 Special Interrogatory No. 1.*fn1 Hilton refuses to provide contact information for the potential witnesses identified in its response to Special Interrogatory No. 1. Because Hilton's 2 counsel represents the current manager and supervisor employees, Gavin must contact these 3 represented witnesses through counsel. However, Gavin is entitled to receive contact information 4 for any other current employees and former employees identified in Hilton's response to this 5 interrogatory, without their prior consent. See Fed. R. Civ. P. 26(a)(1)(A)(i) (requiring parties in 6 their initial disclosures to provide contact information for individuals likely to have discoverable 7 information); see also Puerto v. Superior Court, 158 Cal. App. 4th 1242 (2008) (requiring consent 8 by opt-in letters before disclosing witness contact information advantages employer and 9 "unnecessarily hamstrings" plaintiffs "in their conduct of legitimate discovery by making their 10 statutory entitlement to percipient witness discovery entirely dependent" on other parties' 11 willingness to participate in the discovery). Furthermore, Gavin correctly notes that Hilton did not 12 object to providing the contact information on privacy grounds, and thus waived that objection.

Finally, Hilton's reliance on Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal. 4th 360 14 (2007) and other consumer class action cases (Doc. No. 63 at 9) is misplaced: this is not a putative 15 class action in which counsel is seeking to discover the identity of unnamed class members.*fn2 Gavin seeks to contact witnesses who may have direct knowledge of the issues in this case. She is 17 entitled to do so. Gavin's counsel may contact the current and former employees who are not 18 represented by Hilton in connection with this action. 19 The court is cognizant of Hilton's security concerns and orders as follows: until the results 13 16 20 of the IME have been provided to the parties, Hilton shall produce the last known phone number 21 and address for the non-managerial current employees and all former employees identified in its 22responses to Special Interrogatory No. 1. This information shall be produced to Gavin's counsel 2 under an "attorneys' eyes only" designation. Gavin's counsel may move to lift that restriction 3 based on the results of the IME. If the restriction has not been lifted at the end of this litigation, 4 Gavin's counsel shall return all copies of any documents bearing the information to Hilton's 5 counsel. 6

Special Interrogatory No. 2. Gavin asked Hilton to identify how many hours of FMLA/CFRA leave were available during her employment at the beginning of each work week. 8 7 Hilton responded with form objections and three non-responsive paragraphs. After meeting and 9 conferring, Hilton asserted additional form objections and contended that because Gavin worked 10 for Hilton for more than four years, this interrogatory should count as "more than 200 separate and 11 discrete" requests. Doc. No. 57, Ex. E (March 5, 2013) at 2. Hilton is mistaken. Special Interrogatory No. 2 is a single request. Asking Hilton to provide the information on a weekly 12 13 basis does not "introduce[] a line of inquiry that is separate and distinct from the original inquiry." 14

See W. Schwarzer et al., FEDERAL CIVIL PROCEDURE BEFORE TRIAL, §§ 11:1689-1691 (The Rutter Group 2013). Although Hilton's initial objection that the request for a weekly breakdown was 16 unduly burdensome may have had merit, Gavin explained during meet and confer that she needed 17 a detailed response because under FMLA/CFRA, employers may calculate when the year begins 18 and ends differently for purposes of calculating the twelve weeks of protected leave to which each 19 employee is entitled. Doc. No. 57, Ex. E (February 25, 2013 letter) at 2. Hilton's earlier 20 explanation that it "calculates leave on a rolling one year basis and the employee simply gets 12 21 weeks of leave on a rolling one year basis" (id. (Feb. 21, 2013 letter) at 2) was insufficient as it did 22 not explain whether or how the leave is pro-rated, nor whether the leave accrued at the beginning 23 or end of each month, at the beginning or end of each year, or by some other method. 24

Accordingly, Hilton shall specifically describe how, during every year Gavin was 25 employed, it calculated an employee's available FMLA/CFRA leave. Hilton's explanation must 26 be sufficiently detailed to allow Gavin to determine how much leave was available to her at any 27 point in time during her employment. Hilton also shall identify the dates on which Gavin took 28 FMLA/CFRA leave and the amount of leave time she took on those dates.

Special Interrogatory No. 3 & Document Request No. 11. Gavin asked Hilton to 2 describe her work schedule during her employment and produce any documents relating to her 3 schedule. Instead of responding to the Special Interrogatory, Hilton produced records, as it is 4 entitled to do pursuant to Fed. R. Civ. P. 33(d). Gavin argues she cannot find the information she 5 requested in the documents Hilton provided and cannot determine what hours she was scheduled 6 to work, nor the hours she actually did work. She also questions whether Hilton has produced all 7 relevant records, noting that certain gaps exist in those documents that were produced. 8

Hilton represented to Gavin repeatedly, and to the court, that it had produced all relevant 9 records. At the hearing, Hilton represented that, because Gavin was a salaried employee, her 10 payroll records do not reflect the days and times she worked. Hilton also asserted that, because 11 Gavin made her requests for accommodation informally throughout her employment, using email 12 and face-to-face communication, no database or file will reflect all of the accommodations Hilton made or all the dates and times Gavin worked. Hilton also stated that it did not maintain 14 "computer logs" it could produce, and the court pointed out that such logs would not, in any event, 15 provide definitive evidence of Gavin's schedule. 16 Gavin is entitled to the information requested, including any documents that relate to her 17 work schedule (both hours scheduled and actually worked). Hilton represents it has produced all 18 information relevant to this request. Hilton's counsel shall provide a declaration certifying it has 19 discussed its documents production with Hilton, and that neither counsel nor Hilton is aware of the 20 existence of any additional records pertaining to Gavin's work schedule, regardless of whether 21 those documents are in Hilton's custody, care or control. If other documents do exist, Hilton shall 22 identify those documents and their location, and explain why those documents are not in its 23 custody, care or control. Hilton shall be precluded from using at trial any records it failed to 24 produce in response to these interrogatories. 25

Special Interrogatory No. 5. Gavin requested that Hilton identify all complaints made by 26 her and received by Hilton relating to her claims in this action. Hilton asserted form objections, 27 including that the request was vague, ambiguous, nonsensical and lacking specificity. Pursuant to 28 Hilton's request for clarification, Gavin identified the relevant categories of complaints by listing the allegations she made in this action. Doc. No. 57, Ex. E (February 21, 2013 letter & February 2 25, 2013 letter). Instead of supplementing its response, Hilton argued that the request as clarified 3 was "compound and improper." Id. (March 5, 2013 letter). For the reasons stated above, this type 4 question is not compound. Hilton shall respond to Special Interrogatory No. 5 fully, either by 5 listing the relevant complaints in response to this Special Interrogatory, or by specifically 6 identifying (by Bates number or dates of correspondence) the responsive documents Hilton 7 previously produced. Stating that Hilton produced all documented complaints is insufficient. 8

Request for sanctions.*fn3 Gavin's request for sanctions does not comport with Local Rule 37-4 and therefore is denied. 10


For the reasons stated above, the court grants in part Gavin's motion to compel. Hilton shall produce the requested information within fourteen days.


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