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Cervantes v. Cemex, Inc.

United States District Court, E.D. California

August 18, 2014

JOSE CERVANTES, , Plaintiffs,
CEMEX, INC., Defendant.


JENNIFER L. THURSTON, Magistrate Judge.

Jose Cervantes and Jorge Montes ("Plaintiffs") seek to compel Defendant CEMEX, Inc. to provide further discovery responses to several interrogatories and requests for production of documents. (Doc. 50.) The parties filed their Joint Statement regarding the discovery disputes on August 4, 2014. (Doc. 52.) The Court heard the oral arguments of the parties on August 18, 2014. For the following reasons, Plaintiffs' motion is GRANTED IN PART.

I. Factual and Procedural History

Plaintiff Jose Cervantes filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") and California's Department of Fair Employment and Housing ("DFEH") on May 24, 2010, asserting that he was hired as a mixer driver by Defendant in July 2006, and "[t]hereafter was subject to harassment from non-Hispanic employees." (Doc. 27-1 at 2.) Cervantes reported that he "was repeatedly told to speak English, " which he complained about to the Human Resources department in March 2010. ( Id. ) Cervantes reported: "[T]he complaint was sent to James Hamilton, Human Resources in Modesto, CA. On or about March 24, 2010, Mr. Hamilton told me that I would be suspended if I spoke Spanish. Subsequently, Mr. Hamilton sent emails to coworkers to speak English only." ( Id. ) He "believe[d] that other employees ha[d] also been treated differently because of their national origin (Hispanic)." ( Id. ) Cervantes received a "Right-to-Sue" notice from the DFEH on May 26, 2010. (Doc. 27 at 6, ¶ 20; Doc. 27-1 at 8.)

On August 16, 2010, Plaintiff Jorge Montes filed a Charge of Discrimination with the EEOC and DFEH, also complaining about the "English-Only" policy in place at CEMEX. (Doc. 27-1 at 13.) Montes reported that he was hired by CEMEX in May 2008, and he "speak[s] limited English." ( Id. ) According to Montes, he was verbally harassed by Keith Stogdale [sic] in January 2010, and "was subjected to a new policy regarding no Spanish on the radio" in February 2010. ( Id. ) Montes reported that he was "told not to speak Spanish and speak English only, " and was forced to read in English. ( Id. ) Montes asserted he was harassed and "subjected to different terms and conditions of employment" because he is Hispanic, and "believe[d] that other employees ha[d] also been harassed subjected to an English-Only Rule, and subjected to different terms and conditions of employment because of their national origin (Hispanic)." ( Id. ) Montes received a "Right to Sue" notice from the DFEH on August 18, 2010. (Doc. 27 at 6, ¶ 21; Doc. 27-1 at 19.)

On April 4, 2012, the EEOC issued determination letters to Cervantes and Montes. (Doc. 27-1 at 21, 27.) The EEOC representative explained there was evidence supporting a finding that Cervantes, Montes, and similarly situated individuals were "subjected to unwelcomed harassment and different terms and conditions of employment based upon his national origin, Hispanic[, ] which was sufficiently severe or pervasive to create a hostile work environment." ( Id. ) Plaintiffs received "Right to Sue" letters from the DFEH on November 27, 2012. (Doc. 27-1 at 36-38.)

The next day, on November 28, 2012, Plaintiffs initiated the action now pending before the Court by filing a Complaint against CEMEX. (Doc. 1.) Defendant filed its Answer on March 11, 2013. (Doc. 16.) The Court held a scheduling conference on May 1, 2013, and set the deadlines for the action, including the conclusion of non-expert discovery no later than April 25, 2014, and the filing of non-dispositive motions no later than July 14, 2014. (Doc. 21.) Further, the Court informed the parties that no written discovery motions were to be filed without the prior approval of the Court. (Doc. 21 at 4-5.)

Plaintiff filed a First Amended Complaint on July 26, 2013. (Doc. 27.) Plaintiffs alleged Defendant is liable for discrimination, retaliation, and harassment in violation of Title VII and California's Fair Employment and Housing Act. ( See Doc. 27 at 1.) In addition, Plaintiffs alleged Defendant is liable for an unlawful use of workplace language policy, in violation of Cal. Gov't Code § 12951. ( Id. ) Defendant filed its Answer to the amended complaint on August 15, 2013. (Doc. 29.)

In compliance with the Court's Scheduling Order, the parties notified the Court of a discovery dispute regarding several interrogatories and requests for production served by Plaintiffs. The Court held a telephonic conference with the parties on July 11, 2014. (Doc. 48.) Because the parties were unable to resolve most of the issues presented, the Court issued an order authorizing Plaintiffs "to pursue formal resolution of their dispute according to the procedures set forth in Local Rule 251." (Doc. 49 at 1.)

On July 14, 2014, Plaintiffs filed the motion now pending before the Court. (Doc. 50.) Because Plaintiffs failed to comply with the requirements of Local Rule 251, the Court struck all documents filed, and retained only Plaintiffs' Notice of Motion. (Doc. 51.) The Court directed the parties to file a joint statement as required by Local Rule 251, which the parties filed on August 4, 2014. (Doc. 52.) However, in light of last-minute changes to the Joint Statement by Plaintiff and the unavailability of Defendant's counsel on the date the document was to be filed, the Court granted Defendant permission to file a supplemental brief "addressing the new material included... in the joint statement by Plaintiffs." (Doc. 53.) Defendant filed its brief on August 6, 2014. (Doc. 54.)

By and through the motion pending before the Court, Plaintiffs seek to compel Defendant to:

1. Respond to Plaintiff's Special Interrogatories Nos. 5, 8, 24, 26, 27, 28, 49;
2. Respond to Plaintiff Montes' Request for Production, Set Four No. 84, 85, 86, 87, 88, 89, 110 and 112 and Produce documents;
3. Respond to Plaintiff Cervantes' Request for Production, Set Two, No 59 and produce documents;

(Doc. 50 at 2.) In addition, Plaintiffs request that the Court "issue an[] order precluding Defendant from using attorney-client privilege as a basis for defending liability of these discrimination claims in all proceedings in this case." ( Id. ) Defendant objects to each of these requests, but has responded in part to each interrogatory and request for production identified by Plaintiffs.

II. Discovery

The scope and limitations of discovery are set forth by the Federal Rules of Civil Procedure. In relevant part, Rule 26(b) states:

Unless otherwise limited by court order, parties may obtain discovery regarding any nonprivileged manner that is relevant to any party's claim or defense - including the existence, description, nature, custody, condition, and location of any documents or other tangible things... For good cause, the court may order discovery of any matter relevant to the subject matter involved in the accident. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Fed. R. Civ. P. 26(b). Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Relevancy is interpreted "broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

A. Interrogatories

A party may propound interrogatories relating to any matter that may be inquired to under Rule 26(b). Fed.R.Civ.P. 33(a). A responding party is obligated to respond to the fullest extent possible, and any objections must be stated with specificity. Fed.R.Civ.P. 33(b)(3)-(4). In general, a responding party is not required "to conduct extensive research in order to answer an interrogatory, but a reasonable effort to respond must be made." Haney v. Saldana, 2010 U.S. Dist. LEXIS 93447, at *9 (E.D. Cal. Aug. 24, 2010) (citing L.H. v. Schwarzenegger, 2007 U.S. Dist. LEXIS 73753 (E.D. Cal. Sep. 21, 2007)). Further, the responding party must supplement a response if the information sought is later obtained or the previous response requires a correction. Fed.R.Civ.P. 26(e)(1)(A).

Any grounds of an objection to an interrogatory must be stated "with specificity." Fed.R.Civ.P. 33(b)(4); see also Nagele v. Electronic Data Systems Corp., 193 F.R.D. 94, 109 (W.D. N.Y. 2000) (objection that interrogatories were "burdensome" overruled for failure to "particularize" the basis for objection); Mitchell v. AMTRAK, 208 F.R.D. 455, 458 at n.4 (D.D.C. 2002) (objections must explain how an interrogatory is overbroad or unduly burdensome).

B. Requests for Production of Documents

A party may request documents "in the responding party's possession, custody, or control." Fed.R.Civ.P. 34(a)(1). Similarly, a party may serve a request "to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property..." Fed.R.Civ.P. 34(a)(2). A request is adequate if it describes items with "reasonable particularity;" specifies a reasonable time, place, and manner for the inspection; and specifies the form or forms in which electronic information can be produced. Fed.R.Civ.P. 34(b). Thus, a request is sufficiently clear if it "places the party upon reasonable notice of what is called for and what is not.'" Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 202 (N.D. W.Va. 2000) (quoting Parsons v. Jefferson-Pilot Corp., 141 F.R.D. 408, 412 (M.D. N.C. 1992)); see also Schwarzer, Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial (Rev. #1 2011) Discovery, para. 11:1886 ("the apparent test is whether a respondent of average intelligence would know what items to produce").

The responding party must respond in writing and is obliged to produce all specified relevant and non-privileged documents, tangible things, or electronically stored information in its "possession, custody, or control" on the date specified. Fed.R.Civ.P. 34(a). Actual possession, custody or control is not required. "A party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document." Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995). Such documents include documents under the control of the party's attorney. Meeks v. Parson, 2009 WL 3303718 (E.D. Cal. Sept. 18, 2009) (involving a subpoena to the CDCR); Axler v. Scientific Ecology Group, Inc., 196 F.R.D. 210, 212 (D. Mass. 2000) (a "party must produce otherwise discoverable documents that are in his attorneys' possession, custody or control").

In the alternative, a party may state an objection to a request, including the reasons. Fed.R.Civ.P. 34(b)(2)(A)-(B). When a party resists discovery, he "has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections." Oakes v. Halvorsen Marine Ltd., 189 F.R.D 281, 283 (C.D. Cal. 1998) (citing Nestle Food Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 104 (D.N.J. 1990)). Boilerplate objections to a request for a production are not sufficient. Burlington Northern & Santa Fe Ry. v. United States Dist. Court, 408 F.3d 1142, 1149 (9th Cir. 2005).

If a party "fails to respond that inspection will be permitted - or fails to permit inspection - as requested under Rule 34, " the propounding party may make a motion to compel production of the documents. Fed.R.Civ.P. 37(a)(3)(B)(iv). Further, "an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond." Fed.R.Civ.P. 37(a)(4). "The moving party bears the burden of demonstrating actual and substantial prejudice' from the denial of discovery." Hasan v. ...

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