United States District Court, E.D. California
ORDER GRANTING IN PART PLAINTIFF'S MOTION TO COMPEL DISCOVERY (Doc. 41)
JENNIFER L. THURSTON, Magistrate Judge.
Plaintiff Jan Richmond seeks to compel Defendant Mission Bank to provide further discovery responses to requests production, and to produce an employee for a deposition. (Doc. 41.) The parties filed their Joint Statement regarding the discovery disputes on April 3, 2015. (Doc. 52.) The Court heard the oral arguments of the parties on April 10. 2015. For the following reasons, Plaintiffs' motion is GRANTED IN PART.
I. Factual and Procedural History
Plaintiff, a former employee of Mission Bank, initiated this action by filing a complaint against Mission Bank on February 10, 2014. (Doc. 2.) Plaintiff alleged that after A.J. Antongiovanni became the bank president, she was removed from a private office and assigned a cubical "notwithstanding the fact private offices were empty and available, and Plaintiff engaged in activities that required privacy and confidentiality." ( Id. at 2.) In addition, Plaintiff alleged Antongiovanni hired an executive assistant in 2012 without announcing the job - despite Mission Bank's "policy of posting within the bank all open and available employment positions" - and the new assistant was "substantially younger than Plaintiff." ( Id. ) Plaintiff alleged the new assistant received a private office because "she handled confidential matters." ( Id. )
In 2013, Plaintiff was the only vice president excluded from a management seminar. (Doc. 2 at 3.) Further, Plaintiff alleged that her job duties were reduced to "the point that she was ultimately only performing work relating to administrative functions for the board of directors." ( Id. ) However, Antongiovanni's new assistant "began performing administrative functions for the board of directors." ( Id. ) Plaintiff asserted it was "clear" that Antongiovanni and Mission Bank "were pushing Plaintiff out of the bank as an employee." ( Id. ) Plaintiff alleged that she "met with Antongiovanni and advised him [that] she realized what was happening, indicated she felt like she and others were victims of age discrimination, and requested that the bank offer her a severance package." ( Id. at 3.)
Plaintiff filed claims with the California Department of Fair Employment and Housing and the EEOC, and received "right-to-sue" letters from both agencies. (Doc. 2 at 4.) Accordingly, she initiated the action now pending before the Court, asserting Defendant is liable for: (1) wrongful termination in violation of public policy; (2) wrongful termination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 626; (3) wrongful termination in violation of the Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940; (4) failure to take all reasonable steps to prevent discrimination and retaliation; and (5) retaliation in violation of FEHA. ( Id. at 5-12.)
II. Scope of 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).
III. Discussion and Analysis
A. Requests for Production
Plaintiff seeks to compel further responses to Requests for Productions Nos. 22 and 28. (Doc. 45 at 2, 7.) 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). The party who resists discovery "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. Johnson, 2012 U.S. Dist. LEXIS 21578 at *5 (E.D. Cal. Apr. 9, 2012) (citing Hallet v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)).
1. Request for Production No. 22
Plaintiff requested Defendant produce: "The credit history and reviewed by YOU relating to the employment background of Diana Loera Wolf." (Doc. 45 at 2.) Defendant objected the information sought was "beyond the scope of permissible discovery as it is irrelevant to the subject matter of this litigation" and that the request was not "reasonably calculated to lead to the discovery of admissible evidence." ( Id. ) Further, Defendant objected "to this request on the ground that it improperly invades the privacy rights of a third party without notice of this request." ( Id., citing Goold v. Hilton Worldwide, Inc., 2014 WL 1383252 (E.D. Cal. Apr. 8, 2014); Cervantes v. CEMEX, Inc., 2014 WL 4104200 (E.D. Cal. Aug. 18, 2014).
In response, Plaintiff argues that Ms. Wolf's credit history "is relevant to show that the bank failed to follow its policy in relation to hiring applicants with sufficient credit." (Doc. 45 at 2.) Importantly, Plaintiff's claims for wrongful termination on the basis of age in violation of the Age Discrimination in Employment Act ("ADEA") and California's Fair Employment and Housing Act ("FEHA") require Plaintiff to show she was "(1) at least forty years old, (2) performing [her] job satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise giving rise to an inference of age discrimination.'" Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201, 1207 (9th Cir. 2008) (citation omitted, emphasis added) see also Nesbit v. Pepsico, Inc., 994 F.2d 703, 704 (9th Cir. 1993) (noting that California courts have adopted the analysis of the ADEA for age discrimination claims arising under FEHA). Thus, whether Ms. Wolf had an adequate credit rating and was, therefore, qualified to assume the Plaintiff's responsibilities is relevant to the claims in issue.
On the other hand, as Defendant argues, "Ms. Wolf's credit history... contains private, sensitive and confidential information." (Doc. 45 at 6.) Previously, this Court observed: "Federal Courts ordinarily recognize a constitutionally-based right of privacy that can be raised in response to discovery requests." Megargee v. Wittman, 2007 WL 2462097, at *2 (E.D. Cal. Aug. 24, 2007) (citing Breed v. United States Dist. Ct. for Northern District, 542 F.2d 1114, 1116 (9th Cir.1976); Johnson by Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir. 1992); Cook v. Yellow Freight Sys., Inc., 132 F.R.D. 548, 550-51 (E.D. Cal.1990). District Courts have adopted a balancing test used by California state courts to determine whether disclosure is appropriate, under which the Court must balance the plaintiff's need of the information against the claimed privacy right. See, e.g., Cook, 132 F.R.D. at 550-52; Ragge v. MCA/Universal, 165 F.R.D. 601, 604-05 (N.D. Cal. 1995); see also Davis v. Leal, 43 F.Supp.2d 1102, 1110 (E.D. Cal., 1999) (explaining that the right to privacy is subject to a balancing of the needs of the litigation with the sensitivity of the information and records sought).
In Pioneer Electronics (USA), Inc. v. Superior Court 40 Cal.4th 360, 370-371 (2007) and Hill v. Nat'l Collegiate Athletic Assoc., 7 Cal.4th 1, 40 (1994), the California Supreme Court set forth an analytical framework for evaluating claims of invasion of privacy under the California Constitution. First, the employees must have a "legally protected privacy interest." Hill, 7 Cal.4th at 35. Second, the employees must have "a reasonable expectation of privacy" in the information and third, the invasion of privacy must be "serious in nature, scope, and actual or potential impact." Id. at 36-37. If each is shown, the Court must then balance the privacy interest against the competing disclosure interest. Pioneer, 40 Cal.4th at 370-371.
In general, federal courts recognize an individual's interest in preserving the confidentiality of information contained within a personnel file. Tumbling v. Merced Irr. Dist., 262 F.R.D. 509, 517 (E.D. Cal. 2009). Moreover, it is indisputable that the disclosure of "details regarding one's personal finances or other financial information" is a serious invasion of privacy. Pioneer, 40 Cal.4th at 372. The disclosure of Ms. Wolf's credit history would require the disclosure of information that is not relevant to Plaintiff's claims, such as her various lines of credit.
Significantly, the information sought regarding Ms. Wolf's credit history appears to be focused upon the status of Ms. Wolf's student loan debt. ( See Doc. 45 at 4.) Plaintiff maintains that, contrary to Defendant's arguments, she was unable to obtain information regarding the debt during Ms. Wolf's deposition:
Ms. Wolf stated originally that at least some of her student loans "were not in good standing." Next, Ms. Wolf claimed that the loans "had gone bad." But then Wolf claimed she "put them back in good standing." Then she claimed the loans "were in good standing, " but immediately qualified this with "I was working towards that." Finally, Ms. Wolf testified to whether the loans were in good standing by claiming "I believe at the time they were."
( Id. ) Therefore, Plaintiff argues the "precise status" Ms. Wolf's credit when she was hired was ...