United States District Court, N.D. California
DISCOVERY ORDER RE: DKT. NO. 23
MARIA-ELENA JAMES United States Magistrate Judge.
Amanda Marsh alleges she was subjected to sexual harassment
by her supervisor, Mr. Musolf, and constructively terminated
from her position in Sales Support at Bloomberg Media in San
Francisco, California. See Compl., Dkt. No. 1.
Pending before the Court is the parties' joint Letter
Brief regarding Defendants' responses to two of
Plaintiff's requests for production (“RFPs”).
See Ltr. Br., Dkt. No. 23. Having considered the
parties' positions, the relevant legal authority, and the
record in this case, the Court issues the following order.
Rule of Civil Procedure 26 provides that a party may obtain
discovery “regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case[.]” Fed.R.Civ.P. 26(b)(1).
Factors to consider include “the importance of the
issues at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.”
Id. Discovery need not be admissible in evidence to
be discoverable. Id. However, “[t]he parties
and the court have a collective responsibility to consider
the proportionality of all discovery and consider it in
resolving discovery disputes.” Fed.R.Civ.P. 26 advisory
committee notes (2015 amendments). Thus, there is “a
shared responsibility on all the parties to consider the
factors bearing on proportionality before propounding
discovery requests, issuing responses and objections, or
raising discovery disputes before the courts.”
Salazar v. McDonald's Corp., 2016 WL 736213, at
*2 (N.D. Cal. Feb. 25, 2016); Goes Int'l, AB v. Dodur
Ltd., 2016 WL 427369, at *4 (N.D. Cal. Feb. 4, 2016)
(citing advisory committee notes for proposition that parties
share a “collective responsibility” to consider
proportionality and requiring that “[b]oth parties . .
. tailor their efforts to the needs of th[e] case”).
26(c) “confers broad discretion on the trial court to
decide when a protective order is appropriate and what degree
of protection is required.” Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36 (1984). “The court may,
for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or
expense, ” including by (1) prohibiting disclosure or
discovery; (2) conditioning disclosure or discovery on
specified terms; (3) preventing inquiry into certain matters;
or (4) limiting the scope of disclosure or discovery to
certain matters. Fed.R.Civ.P. 26(c)(1).
RFP No. 23 asks Defendants to produce “[a]ny and all
documents relating to any investigations Defendants conducted
related to sexual harassment or gender discrimination in the
workplace.” See RFPs at 10, Dkt. No. 24. In
the Letter Brief, the parties describe RFP No. 23 as
requesting “all complaints regarding gender
discrimination, unfair pay or sexual harassment” (Ltr.
Br. at ECF p.2), which is different than what is sought in
RFP No. 23. The parties do not clarify whether their
description of the RFP in the Letter Brief is the result of
their efforts to narrow their disputes during meet and confer
discussions. The undersigned will analyze the RFP as the
parties describe it in the brief rather than as written. RFP
No. 26 asks Defendants to produce “[a]ny and all
settlement agreements or other releases of liability entered
into with employees, or former employees, of Defendants
concerning allegations of gender discrimination, unequal pay,
or sexual harassment.” Id. at 11. The requests
are not limited to time or geographic scope (see
RFPs), but Plaintiff indicates in the Letter Brief that she
does not “seek any documents from non-U.S.
locations” (Ltr. Br. at ECF p.3).
object to the RFPs on a number of grounds, including the
privacy rights of third parties, the confidentiality of
settlement agreements, irrelevance, and lack of
proportionality. Defendants have offered to produce
complaints of sexual harassment/gender discrimination against
Mulof “and those higher in the Media Division
management chain: Keith Grossman (Head of U.S. Sales), Jacki
Kelly (COO, Media Operation) and Justin B. Smith (Head of
Media - Sales and Operation).” Id.
argues RFP Nos. 23 and 26 request documents that are
“especially relevant” because Defendants
“have a long history of allegations of gender
discrimination” and that the documents are admissible
as “me too” evidence. Defendant argues “me
too” evidence is not admissible unless employees are
similarly situated (i.e., they work in the same department
and are supervised by the same person), and that the requests
are not proportional to the needs of the case. Defendants
further argue the requests violate third party privacy and
fails to address how her requests are proportional to the
needs of the case. See Ltr. Br. at ECF pp. 2-4.
Plaintiff does not address “the amount in controversy .
. . the importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(2).
Defendants do (id. at 5); furthermore, Plaintiff
does not respond to Defendants' representation that the
amount in controversy is limited to attorneys' fees and
possibly emotional distress damages. Even as limited in the
Letter Brief, Plaintiff's RFPs purport to require
Defendants to undertake a search of offices in San Francisco,
Chicago, and New York (as well as any other locations
Bloomberg may have in the United States) over an unlimited
period of time; Plaintiff's assertion that Defendants
already maintain complaints in a central file is unsupported
(see Ltr. Br. at ECF p.3). Plaintiff's position
that privacy concerns only apply to California employees is
also unsupported, as she fails to demonstrate that none of
the other states in which Defendants operate have similar
privacy laws. Plaintiff also fails to address the
confidential nature of settlement agreements she requests in
RFP No. 26, or explain why her need for such confidential
documents outweighs the privacy interests of the parties who
entered into them. She thus does not provide the Court with
the information it needs to balance Plaintiff's interest
in the discovery with the expectation of confidentiality of
the parties to confidential settlement agreements. See
MedImmune, L.L.C. v. PDL BioPharma, Inc., 2010 WL
3636211, at *2 (N.D. Cal. 2010) (Courts “must balance
[one party's] interest in the discovery of potentially
relevant information against [another party's] interest
in protecting a settlement negotiated with the expectation of
undersigned finds the RFPs, even as limited in the Letter
Brief, are not proportional to the needs of the case.
Defendants shall produce the documents they propose in their
compromise (Ltr. Br. at ECF p.6). In addition, they shall
produce all sexual harassment/gender discrimination
complaints filed about any person working in Bloomberg's
San Francisco office, starting in December 2008 (five years
before Plaintiff began her employ). The undersigned makes no
finding as to the admissibility of these other complaints.
Plaintiff has not demonstrated that her need for discovering
confidential settlement agreements outweighs the need for
confidentiality of the parties to those settlement
agreements. However, Defendants shall produce any settlement
agreements involving claims of gender discrimination, unfair
pay, or sexual harassment that (1) do not contain a
confidentiality provision; (2) relate to employees working in
the San Francisco office, Grossman, Kelly, or Smith; and (3)
were executed starting in December 2008. Defendants shall
comply with applicable California privacy laws in producing
the information and redact the names and other personal
identifying information of complainants; if Defendants
believe additional protections are necessary before such
documents can be produced, they shall meet and confer with
Plaintiff to resolve the issue and/or submit a proposed
protective order to the Court. Defendants shall produce the
documents described in this Order within 30 days.