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Gazzano v. Stanford University

United States District Court, Ninth Circuit

June 20, 2013

DAN GAZZANO, Plaintiff,


PAUL S. GREWAL, Magistrate Judge.

In this suit against his former employer, Stanford University ("Stanford") and union, SEIU Higher Education Workers Local 2007 ("Local 2007"), Plaintiff Dan Gazzano ("Gazzano") moves to compel production of certain documents. In response, Stanford and Local 2007 ask for a protective order concerning those same documents. Two main issues predominate both motions: first, whether Gazzano is entitled to discovery of documents arising before January 1, 2011, and second, whether communications to and from David Rasch ("Rasch") are protected under the ombudsman privilege. Having considered the papers and arguments of counsel, the court GRANTS-IN-PART both the motion to compel and the motion for protective order. The court discusses each in turn below.


Gazzano was employed by Stanford as a groundskeeper. Throughout the course of his employment at Stanford, Gazzano was an active member of Local 2007.

Jose Escanuela ("Escanuela"), another groundskeeper at Stanford, served as President of Local 2007. In or around February 2010, after his felony conviction of embezzlement came to light, Escanuela resigned but continues to consult and advise with Local 2007's leadership. Gazzano tried to bring this fact to Stanford's attention by contacting Ombudsman David Rasch ("Rasch"). Rasch declined to report the matter further, and so Gazzano filed a letter with the U.S. Department of Labor to disqualify Escanuela from serving as an advisor or consultant for Local 2007 given his past history of embezzlement. In January 2012, Stanford terminated Gazzano for allegedly using uncouth language. Gazzano argues that his whistleblowing activity regarding Escanuela was a motivating factor in his termination.

Gazzano sought the assistance of Local 2007 in pursuing a grievance against Stanford. At first, Local 2007 representative Stephen Cutty stated that Gazzano had a strong case. Then, in July 2012, Local 2007 attorney Antonio Ruiz sent Gazzano a letter indicating that Gazzano's grievance was "unwinnable" and declined to further pursue arbitration. Gazzano contends the true reason for Local 2007's failure to further represent Gazzano regarding his grievance was to retaliate against him for whistleblowing. On November 8, 2012, Gazzano filed suit against both Stanford and Local 2007 alleging, among other things, discrimination and wrongful termination. Gazzano filed this motion to compel documents relating to his employment at Stanford. Stanford does not oppose all of Gazzano's requests, but only those that seek documents dating from before January 1, 2011 and documents it says are protected under an ombudsmen privilege.


Federal Rule of Civil Procedure 26(b) provides that the parties may obtain non-privileged documents that are "relevant to any party's claim or defense."[2] The information need not be admissible at trial if it appears to be "reasonably calculated to lead to the discovery of admissible evidence."[3]

Pursuant to Fed.R.Evid. 501, "state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." But the Fed.R.Evid. 501 advisory committee notes and Ninth Circuit case law are clear that in federal question cases, the federal law of privilege applies.[4] Under federal law governing privilege, the courts are to "define new privileges by interpreting common law principles in the light of reason and experience."[5]


A. Documents Arising Before January 1, 2011

Gazzano first argues that he should be allowed to obtain discovery concerning his entire employment with Stanford. He contends this information is relevant because he was wrongfully terminated in a separate incident in 2006, and four of the witnesses offered by Stanford from the 2006 labor arbitration that followed may also be witnesses to the 2012 termination. But Gazzano has failed to identify the relevance of the 2006 proceeding to the present one. Mere overlap of witnesses is insufficient if the witnesses testified as to different issues. Gazzano's complaint in the present action alleges his 2012 termination was motivated by retaliation for whistleblowing and disability discrimination. He alleges the whistleblowing took place in 2011, and he took a leave of absence in November and December of 2011 due to work-related stress and nosebleeding. More fundamentally, although Gazzano in his motion raises several grievances brought before 2011, the complaint does not allege Gazzano was fired in 2012 due to any of these events. Accordingly, the court finds that Gazzano has not established the relevance of such information.

B. Communications Between Gazzano and Stanford's Ombudsman

Next, Gazzano seeks "all writings (including e-mail and other electronic information) by, to or from David Rasch regarding Dan Gazzano." Defendants argue that communications to and from Rasch, who acts as Stanford's ombudsman, are protected under California's ombudsman privilege. As this case was removed pursuant to 29 U.S.C. ยง 185 as a case involving a labor union, [6] the question is not ...

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