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Somers v. Digital Realty Trust Inc.

United States District Court, N.D. California

May 9, 2018

PAUL SOMERS, Plaintiff,
DIGITAL REALTY TRUST INC, et al., Defendants.


          KANDIS A. WESTMORE, United States Magistrate Judge

         Plaintiff Paul Somers brought the instant suit against Defendants Digital Realty Trust Inc. and Ellen Jacobs, alleging that he was wrongfully terminated. (First Amended Compl. ("FAC") ¶ 50, Dkt. No. 51.) Plaintiff claims he was terminated due to discrimination based on his sexual orientation, as well as for being a whistleblower. (FAC ¶¶ 32, 46.) Plaintiff also asserts that he was defamed by Defendants. (FAC ¶¶ 68-69.)

         Currently pending before the Court are: (1) Defendants' motion for sanctions, based on Plaintiff's alleged failure to comply with a July 11, 2017 discovery order and a July 13, 2017 protective order, and (2) Plaintiff's motion to recuse the undersigned. (Defs.' Mot. for Sanctions, Dkt. No. 271; Plf.'s Mot. to Recuse, Dkt. No. 288.) Upon consideration of the parties' filings, and for the reasons stated below, the Court GRANTS IN PART and DENIES IN PART Defendants' motion for sanctions, and DENIES Plaintiff's motion to recuse.

         I. BACKGROUND

         As succinctly observed by the presiding judge, "[t]he parties in this case have been continually unable to resolve their many discovery disputes amongst themselves." (Dkt. No. 218 at 1.) Since the case was referred to the undersigned on March 28, 2016, the Court has issued over twenty-five orders and conducted numerous hearings, including supervising an over four-hour long meet and confer between the parties. (See Dkt. Nos. 110, 132, 138, 139, 159, 171, 172, 179, 184, 189, 191, 195, 196, 197, 199, 212, 221, 238, 245, 246, 277, 283, 303, 307, 309, 315, 316.) The following is a summary of only some of those many discovery disputes.

         A. Summary of Disputes Leading to July 2017 Orders

         In August and September 2016, the parties filed multiple motions and letters regarding the scheduling of Plaintiff's deposition. (Dkt. Nos. 119, 121, 135, 136.) The parties ultimately agreed to schedule Plaintiff's deposition for November 22, 2016. (Dkt. Nos. 146, 149.) On November 18, 2016, Defendants filed a letter, seeking documents in preparation for Plaintiff's deposition. (Dkt. No. 158.) The letter was filed on behalf of Defendants only; Defendants asserted that they met and conferred, although "Defendants [we]re abused verbally each time they tr[ied] to speak with Plaintiff himself on the phone." (Id. at 1.) Defendants provided Plaintiff with the discovery letter, but Plaintiff did not provide his position. (Id. at 1-2.)

         On November 21, 2016, the Court issued an order admonishing Defendants for delaying the filing of the discovery letter until less than two business days before Plaintiff's deposition was scheduled. (Dkt. No. 159 at 1-2.) The Court, however, ordered Plaintiff to produce documents regarding his mitigation efforts and claims for damages because the Court had previously ordered Plaintiff to provide those documents within 14 days of a July 8, 2016 discovery order. (Id. at 2; see also Dkt. No. 110 at 1.) The Court warned that Plaintiff's failure to produce those documents before or at his deposition would result in sanctions. (Dkt. No. 159 at 2.) The Court also ordered Plaintiff to provide his passport and any materials containing Defendant Digital Realty's proprietary information because Plaintiff had not provided any legal justification for why he should not be required to produce those documents, and because he had failed to furnish timely written responses to Defendants' discovery requests. (Id. at 2.) The Court cautioned that failure to produce the documents could result in the imposition of sanctions. (Id. at 3.)

         On February 23, 2017, the parties attended a status conference. (Dkt. No. 183.) There, the presiding judge directed the undersigned "to specifically determine a proper meet and confer process for the parties given defendant's reluctance to meet in person or by phone with plaintiff." (Id.) Accordingly, on February 24, 2017, the Court issued an order requiring the parties to meet and confer by telephone, and to have the conversation recorded for the Court's review. (Dkt. No. 184 at 1.)

         On February 28, 2017, the parties called the undersigned during Plaintiff's deposition of Defendant Jacobs. (See Plf.'s Mot. to Recuse at 8; Ashe Decl. ISO Defs.' Opp'n, Exh. D, Dkt. No. 295.) During the call, Defendants informed the undersigned about Plaintiff's website at "" (Ashe Decl. ISO Defs.' Opp'n, Exh. D at 148:1-6.) At the end of the call, the undersigned stated:

And you know, I just want to say, Mr. Somers, I know you're doing this, you know, without the assistance of counsel, and that can be difficult sometimes, but depositions are supposed to be very civil processes. You shouldn't be getting in any - you know, too many arguments and shouting kind of matches and things like that. And, you know, it's a very, you know, open process.

(Plf.'s Mot. to Recuse at 8.)

         On March 8, 2017, the parties filed separate letters describing their inability to even agree on a recording program for their meet and confer conferences. (Dkt. Nos. 187, 188.) Plaintiff's letter also requested an in-person hearing. (Dkt. No. 187 at 1.) After reviewing the parties' letters, the Court concluded that "it has become clear . . . that the parties are incapable of meeting and conferring." (Dkt. No. 189 at 1.) Thus, the Court ordered the parties to each file a letter by March 14, 2017, "discussing all outstanding discovery disputes that the parties desire the Court to resolve." (Id. (original emphasis).) Based on Plaintiff's request for an in-person hearing, the Court also set a March 21, 2017 discovery hearing to address those issues. (Id.) Finally, the Court stated that the parties were "not to file any motions or joint letters in the meantime; all outstanding discovery issues must be encompassed by the parties' 10-page letter." (Id. (original emphasis).)

         On March 14, 2017, Defendants filed their letter, but Plaintiff did not. (Dkt. No. 190.) On March 15, 2017, the Court issued an order stating that "[b]ecause Plaintiff has not complied with the Court's order, the Court will only consider the outstanding discovery disputes raised by Defendants in their March 14, 2017 letter . . . . All other outstanding discovery disputes that could have been raised are deemed waived, and will not be considered." (Dkt. No. 191 at 1-2.) The Court also vacated the March 21, 2017 discovery hearing because the hearing had been set on Plaintiff's request for a discovery hearing, yet Plaintiff had failed to submit a letter listing his outstanding discovery disputes. (Id. at 2.) Instead, the Court converted the March 21, 2017 discovery hearing to an in-person meet and confer so that the parties could address any remaining discovery requests with pending deadlines. (Id. at 2.)

         On March 20, 2017, Plaintiff filed a letter accusing the Court of issuing orders "which relied on statements by [Defendants' counsel], which so prejudice the Plaintiff is now frozen, unable to make a single move, precisely what [Defendants' counsel] orchestrated." (Dkt. No. 194 at 1.) Plaintiff asked that the Court cancel the requirement of an in-person meet and confer, and to instead require that the parties meet and confer via conference call "for a two hour block of time, " as well as "one hour every week for the next month." (Id. at 2.)

         That same day, the Court denied Plaintiff's request to cancel the in-person meet and confer "because Plaintiff has offered no justification for why he is unable to be at the Court on March 21, 2017." (Dkt. No. 195 at 2.) The Court reiterated that the March 21, 2017 hearing date was set "at Plaintiff's request for an in-person hearing." (Id. (original emphasis).) The Court further explained that it had specially set the hearing to ensure that the parties would have sufficient time to have their pending discovery disputes resolved prior to the discovery cut-off date, and that the Court had required the letters outlining all outstanding discovery disputes so that they could be resolved at the hearing. "Plaintiff, however, did not submit the required letter and never explained his failure to file the letter." (Id. (original emphasis).) Thus, based solely on Plaintiff's failure to submit the required letter, the Court had converted the discovery hearing to an in-person meet and confer "in order to give the parties an opportunity to effectively meet and confer on all remaining disputes, with the Court available to assist in any disputes that arose." (Id.)

         On March 21, 2017, the parties, with the assistance of the Court, conducted an over four-hour meet and confer. (Dkt. No. 196.) The parties agreed to deposition dates, and Plaintiff also agreed to provide his past-due discovery responses by March 31, 2017. (Id.) In light of the meet and confer, the Court terminated Defendants' March 14, 2017 letter and Plaintiff's March 20, 2017 letter as moot on March 23, 2017.[1] (Dkt. No. 197 at 1.) The Court also ordered that in the event of any other outstanding discovery issues, the parties were to contact the Court to schedule a phone call to discuss any proposed joint letter, and that call would serve as the meet and confer.

         On March 28, 2017 and March 30, 2017, Plaintiff moved before the presiding judge for relief from the Court's March 15, 2017 order. (Dkt. Nos. 200, 201.) Plaintiff argued that the undersigned had erred in waiving Plaintiff's outstanding discovery disputes. (See Dkt. Nos. 200 at 1; 201 at 1.)

         On April 6, 2017, discovery closed in the instant case. (Dkt. No. 183.) On April 11, 2017, the Court held a discovery hearing with the parties by telephone, to allow them to conduct their meet and confer on discovery issues. (Dkt. Nos. 208, 212.) Based on the parties' agreement during the April 11, 2017 discovery hearing, on April 14, 2017, the Court set a schedule for the parties to file letters raising all outstanding discovery disputes "that are not affected by the pending appeal and that are not currently before the presiding judge, i.e., issues that Plaintiff should have raised by letter on March 13, 2017 [sic], which the undersigned then deemed waived for failure to raise in the required letter." (Dkt. No. 212 at 1.) The Court emphasized that "[a]ll disputes not raised in these letters will be deemed waived; the letters must encompass all remaining disputes that the parties desire the Court to resolve." (Id. at 2.) Pursuant to the agreed upon schedule, Defendants filed their discovery letter on April 21, 2017. (Dkt. No. 216.)

         On April 25, 2017, the presiding judge denied Plaintiff's motions for relief from the March 15, 2017 order. (Dkt. No. 218 at 1.) The presiding judge explained that "[n]otwithstanding [Plaintiff's] contention that Judge Westmore's March 15 order 'is in conflict' with unspecified provisions of the Federal Rules of Civil Procedure and the Civil Local Rules, nothing about the order is clearly erroneous or contrary to law." (Id. at 2.) Instead, the presiding judge found that the undersigned had "provided ample time for the submission of a letter outlining discovery disputes" and that "[n]o law requires [Judge Westmore] to provide additional accommodations to a party who had failed to comply with the terms of her order." (Id.)

         On April 29, 2017, Plaintiff filed his discovery letter, along with a "Supplement response to defendants [sic] discovery deficiencies." (Dkt. Nos. 220, 220-1.) On May 5, 2017, Defendants filed their response to Plaintiff's discovery letter. (Dkt. No. 224.)

         On May 22, 2017, the Court ordered Plaintiff to provide a chambers copy of numerous filings, including the April 29, 2017 discovery letter and "Supplement Response." (Dkt. No. 232.) Plaintiff's chambers copy included a cover letter that discussed discovery, requested a hearing, and complained of the behavior of Defendants' counsel while attaching 63 pages worth of attachments. (Dkt. No. 235.) The Court had the cover letter and attachments filed on the docket, along with an "Updated Version of 4/29/17 Submittal, " that Plaintiff provided, as it was unclear Plaintiff had provided the "Updated Version" to Defendants. (Dkt. Nos. 235, 237.)

         On June 27, 2017, Defendants filed a motion for a protective order, requesting that Plaintiff be ordered to abstain from: (1) further contact with Ms. Sarah Schubert -- Defendants' former human resources consultant and a defense witness -- in connection with the instant case except through formal judicial process; (2) threatening any disclosed witness; and/or (3) otherwise engaging in intimidating or abusive communications with such individuals. (Dkt. No. 242.) The motion was based on Plaintiff's June 13, 2017 e-mail to Ms. Schubert, in which Plaintiff wrote:

Hello Sarah,
Your focus on guilt is understandable. You are responsible for a great amount of damage to many people's lives because of what you did to me in 2014. I lost my father a year ago to suicide in part because my money has been going to lawyers to fight off Digital Realty. My mother is now gravely ill and I cannot afford to give her the care she deserves. It's your fault, Sarah Schubert. You had a duty to be honest and you failed. You failed as a human being, a professional and you failed as my friend. I often wonder what could have possessed you to do what you did.
Your Critical Events memo is false, mean-spirited and destructive. It will be front and center to litigation in Singapore. Ellen Jacobs testified under oath that you are the author. You essentially hit all the defamation high notes. Why did you write those false statements? Did you want to get even with the universe because you can't give birth? Is your marriage still so miserable you wished to spread it around your sadness [sic]? Had you done your job and told the truth, you could have ended the retaliatory firing which has cost upwards of $6 million so far and now awaiting the Supreme Court which required another set of lawyers.
I now have sufficient evidence to prove you willfully defamed me resulting in losses in the millions of dollars and much worse than money, you are causing a great deal of pain and suffering.
Things will only get better when you are honest about your guilt and try to repair what it is you damaged so carelessly.
Paul Somers

(Dkt. No. 242-1.) Plaintiff did not file an opposition. (See Dkt. No. 246 at 2.)

         B. July 2017 Orders

         i. July 11, 2017 Discovery Order

          On July 11, 2017, the Court issued an order resolving the discovery disputes raised in the parties' April 2017 letters. (July 11, 2017 Ord., Dkt. No. 245.) The Court denied Defendants' request for terminating sanctions and evidentiary sanctions. (Id. at 3-7.) The Court, however, ordered Plaintiff to take the following actions:

(1) Produce what travel documents he possesses, if any, showing whether he left Singapore post-termination, including airline/hotel rewards program records, past flight information from airline accounts, hotel statements, and any other travel documents;
(2) Produce bank statements and credit card receipts evidencing his expenses;
(3) Produce any attachments to the April 3, 2017 production of e-mails;
(4) Produce evidence documenting the residency or travel of Mr. Ruiz from 2011 to June 2014, as well as Mr. Ruiz's employment history during that time;
(5) Produce documents demonstrating what Plaintiff believes constituted the "gating approval process;"
(6) Produce documents of his mitigation of economic damages;
(7) Provide supplemental responses to Interrogatories, Set Three, without objection;
(8) Pay sanctions in the amount of $1, 000 for failing to supplement his prior responses to Interrogatories, Set Three, as previously as ordered by the Court;
(9) Provide responses to interrogatories regarding Plaintiff's travels outside of Singapore and after his termination, to the best of his abilities; and
(10) Return or destroy an e-mail chain that the Court found was partially covered by attorney-client privilege.

(Id. at 18-19.) Plaintiff was ordered to produce the discovery responses within 14 or 30 days of the date of the order. (Id.)

         As to Plaintiff's asserted discovery disputes, the Court, first, denied any relief sought as to Defendants' purported use of "secret search terms." (July 11, 2017 Ord. at 11-12.) The Court explained that not only was it unclear what relief Plaintiff sought, the search terms did not appear to be per se unreasonable. The Court provided a lengthy explanation for why Plaintiff's examples regarding how the search terms were not, in fact, as narrow as he believed them to be. (Id. at 12.) Second, the Court denied Plaintiff's request for documents related to Mr. Kris Kumar's termination because Plaintiff had produced no evidence that Mr. Kumar was in fact terminated. (Id. at 13.) Third, the Court denied Plaintiff's demand for responses to his Requests for Production No. 3, explaining that this dispute had been waived when Plaintiff failed to file his March 14, 2017 letter. (Id.) Fourth, the Court denied Plaintiff's demand for responses to his Requests for Production No. 4, based on Plaintiff's failure to explain why the objections made should be overruled. (Id. at 14.) Regardless, the Court also reviewed many of the stated objections, and explained to Plaintiff why there were no obvious deficiencies in the objections made. (Id. at 14-15.)

         Fifth, the Court ordered Defendants to provide an updated damages disclosure, after finding that Defendants' disclosure was inadequate. (Id. at 15-16.) Sixth, the Court denied Plaintiff's request that Defendants provide updated contact information for the witnesses listed. (Id. at 16.) Seventh, the Court denied Plaintiff's request for monetary sanctions based on Defendants' "behavior" during prior depositions because Plaintiff failed to provide any information on what "behavior" he contended had obstructed the depositions. (Id. at 16-17.) Eighth, the Court denied Plaintiff's request to inspect the original documents because Plaintiff did not explain why Defendants should be required to permit inspection of original documents if they had already produced copies. (Id. at 17-18.) Ninth, the Court denied Plaintiff's request to resolve a discovery letter filed on April 7, 2017 because the Court had already issued two orders on that dispute. (Id. at 18; see also Dkt. Nos. 221, 238.) Finally, the Court denied Plaintiff's challenge to Defendants' privilege log because Plaintiff did not provide the privilege log, explain why it was deficient, or articulate what relief he sought. (July 11, 2017 Ord. at 18.)

         ii. July 13, 2017 Order

         On July 13, 2017, the Court granted Defendants' motion for a protective order. (July 13, 2017 Ord., Dkt. No. 246.) As a procedural matter, the Court granted the motion as unopposed because Plaintiff did not file an opposition. (Id. at 2.) On the merits, the Court concluded "that a protective order is necessary based on Plaintiff's actions, " having found that "Plaintiff's e-mail to Ms. Schubert is unacceptable; as Ms. Schubert aptly describes, Plaintiff's e-mail is threatening, highly offensive, and very unwelcome." (Id. (internal quotation omitted).) While the Court acknowledged that this e-mail appeared to be Plaintiff's first direct attack on a third-party witness, the Court explained that it had "concerns . . . based on Plaintiff's failure to comply with past orders and the content of ...

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