United States District Court, N.D. California, San Jose Division
ROBERT HEATH and CHERYL FILLEKES, on behalf of themselves and others similarly situated, Plaintiffs,
GOOGLE, INC., Defendant.
ORDER RE AMENDED DISCOVERY DISPUTE JOINT REPORT NO. 1
AND DISCOVERY DISPUTE JOINT REPORT NO. 2 RE: DKT. NOS. 100,
R. LLOYD United States Magistrate Judge.
Discovery Dispute Joint Report (DDJR) No. 1
Robert Heath (“Heath”) and Cheryl Fillekes
(“Fillekes”) seek an order compelling Google to
respond to their Requests for Production of Documents
(“RFPs”) numbers 6, 9, and 11. The time period
specified is January 1, 2010 to present. The information
sought concerns Google and its alleged age discrimination
against applicants and employees. Both of the plaintiffs were
applicants who were not hired. Fillekes progressed to having
an in-person interview. Heath did not get further than a
telephone interview. They started out with the same attorney,
but later Heath obtained separate counsel. Fillekes moved for
conditional certification of an “opt-in” class
which narrowly defined its members as those over the age of
40, who applied for engineering jobs in three
classifications, who were interviewed in person, but who were
not offered employment.
plaintiffs allege that Google engaged in a company-wide
pattern and practice of age discrimination against both
applicants and employees, they contend that almost everything
that has any connection with Google and claimed age
discrimination, whether it pertains to applicants or
employees in any position, is fair game for discovery. RFPs
6, 9, and 11 seek that very broad discovery. Google balked
and, except for one category of documents, said
“no.” Thereupon, plaintiffs filed DDJRs about
this and other discovery grievances. The court denied,
without prejudice, each DDJR because of procedural defects.
(Dkt. 62). In its order, the court suggested that plaintiffs
should consider dialing back the scope and breadth of their
discovery requests and that defendant should not be so stingy
in discovery responses that it might be seen as stonewalling.
before the court is Amended DDJR #1, which again seeks
company-wide discovery about age discrimination against
Google applicants and employees. Plaintiffs propose to narrow
RFPs 6, 9, and 11 to only seek:
Request 6: (1) all complaints lodged with the EEOC (or
comparable state agency) regarding age discrimination by
applicants or employees, any response by Google, any
correspondence between Google and the EEOC (or state agency),
all documents produced, and all documents reflecting any
resolution of the complaint, (2) all complaints filed in
court, any answer by Google, all expert reports prepared as
part of the case (including materials relied upon by the
expert, all deposition and trial transcripts, and all
documents reflecting any resolution of the case.
Request 9: for any federal or state government investigation
of Google regarding its hiring practices and/or age
discrimination, all communications between Google and the
government, all documents produced to the government, all
documents reflecting testimony, and all documents reflecting
any resolution of the investigation.
Request 11: all briefs filed with the court in the
Reid case, as well as all documents produced in
discovery, including all expert reports and any evidence
relied upon by the expert, all deposition and trial
transcripts, and all documents reflecting any resolution of
(Dkt. 101, Amended DDJR No. 1 at 5:19-6:6). In support of
their position, plaintiffs cite cases which say discovery can
be broad, but none offer specific guidance on the appropriate
scope of discovery when (as will be discussed below), a
collective action has been conditionally certified as to a
relatively small subset of job applicants in a case where the
plaintiffs allege a company-wide policy and practice of age
discrimination against applicants and employees alike. The
defendant, which also offers no helpful case authority,
complains about the scope and breadth of what plaintiffs'
want, grumbles about relevance and burden, and urges that
determining the permissible scope of discovery should wait
until the presiding judge certifies a class or not.
months have gone by since Amended DDJR #1 was filed, and the
playing field has changed. The presiding judge has now
conditionally certified a “Fillekes class”
All individuals who: interviewed in-person for any Site
Reliability Engineer (“SRE”), Software Engineer
(“SWE”), or Systems Engineer
(“SysEng”) position with Google, Inc.
(“Google”) in the United States; were age 40 or
older at the time of the interview; and were refused
employment by Google; and received notice that they were
refused employment on August 28, 2014 through October 5,
(Dkt. 121 at 6).
is not a member of the Fillekes class, and the presiding
judge rebuffed each of his attempts to secure an order
certifying a “Heath class.” Heath, apparently, is
now on his own.
court here is dealing with discovery, not with whether what
the discovery discloses is admissible at trial. This court
does not believe that the class definition should cabin what
is discoverable. It seems reasonable to allow the plaintiffs
to try to prove their claims by demonstrating, possibly, that
there is a company-wide policy and practice of age
discrimination, and ...