United States District Court, N.D. California
ORDER REGARDING DISCOVERY DISPUTE, Regarding Docket
No. 67
SALLIE
KIM UNITED STATES MAGISTRATE JUDGE
On
November 13, 2019, the parties filed a joint discovery letter
brief to address their dispute regarding Hertz's
responses to some of Plaintiff's discovery requests (Dkt.
No. 67.)
Plaintiffs
seek to represent a class of African-American or Latino
individuals who were unable to obtain employment with The
Hertz Corporation and Dollar Thrifty Automotive Corporation
(“Defendants”) because Defendants “as[k]
applicants for information about their past interactions with
law enforcement and the criminal justice system and us[e]
that information to make hiring decisions, despite the fact
that the information is not job-related.” (Dkt. No. 1.)
Plaintiffs allege that “[t]his practice imports the
gross racial disparities from the criminal justice system
into the employment context by using discriminatory outcomes
from the criminal justice system as bases for making hiring
decisions, despite the fact that those discriminatory
outcomes are not relevant to the hiring decisions being
made.” (Id.) Plaintiffs allege disparate
impact discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq. (Id.) Plaintiffs propose to represent a
class of all “African American and Latino applicants
for employment in a nonexempt position at a U.S.-based retail
Hertz location . . . .who, from November 9, 2013, through the
resolution of this action, were denied employment in a Hertz
Stores Job based on based in whole or in part on Hertz's
policy and practice of denying employment to individuals with
criminal histories.” (Id.)
Plaintiffs
seek documents regarding Defendant's “complete
policies and practices for evaluating applicants'
criminal history information” and “any other type
of document reflecting Hertz's” policies on the
same subject, and any drafts of those documents for a period
of time four years before the class period begins and
including the class period. (Dkt. No. 67-1.) In addition,
Plaintiffs seek responses to Interrogatories Three and Four
identifying Hertz's policies that apply to the evaluation
of applicants, the date and nature of the changes, the people
who proposed or approved those changes and, for each such
person, “name, job title, description and
department/division, formal employer, work performed,
location of employment, and contact information.” (Dkt.
No. 67-2.)
Defendant
opposes the requests for production of documents and
interrogatories on the grounds that the requests and
interrogatories are targeted to a time period before the
class and period of potential liability allowed by the
statute of limitations, that they are not relevant to the
theory of disparate impact or defense of business necessity,
and that they are burdensome and harassing.
The
disputed issues regarding the time period of the documents
and responses and the subject matter are interrelated.
Plaintiffs argue that the reason they seek documents created
before the class period is that it is undisputed that
Defendant's policy regarding background checks was put in
place before the class period began. Plaintiffs seek to
understand why Defendant put in place the policy or policies
at issue during the class period. Interrogatories Three and
Four are somewhat targeted to seeking this information
regarding the date of the creation of Defendant's policy
or policies in place during the class period and the reason
for changes, if any. Thus, the Court ORDERS that Defendant
provide responses to the date and nature of the changes to
Defendant's policy regarding background checks but only
with respect to the policy or policies in place during the
class period. Thus, for example, if Defendant's policy
regarding background checks as of November 9, 2013 was
created on January 1, 2013, Defendant's responses to
Interrogatories Three and Four will be limited to a time
period of January 1, 2013 to the present. If Defendant's
policy regarding background checks as of November 9, 2013 was
created on January 1, 2010, Defendant's responses to
Interrogatories Three and Four will be limited to a time
period of January 1, 2010 to the present.
Production
of documents should be related to the creation of the policy
or policies in effect during the class period. The Court also
ORDERS that Defendant's production of documents in
response to Document Requests Nos. 5, 6, 7 and 8 is limited
to the time period one year preceding the date that the
policy in effect on November 9, 2013 was created. Thus, for
example, if Defendant's policy regarding background
checks as of November 9, 2013 was created on January 1, 2013,
Defendant is required to produce documents from January 1,
2012 to the present. If Defendant's policy regarding
background checks as of November 9, 2013 was created on
January 1, 2010, Defendant is required to produce documents
from January 1, 2009 to the present.
Defendant
argues that drafts of documents will inevitably capture
attorney-client privileged documents and documents protected
by the attorney work product doctrine. However, that is not a
valid basis to deny Plaintiffs the opportunity to request
drafts. That a request might encompass some privileged
materials does not justify preventing the request. Defendant
shall produce all non-privileged drafts, and if there are
some documents which Defendant contends are privileged, it
must create a privilege log.
Defendant's
responses to Interrogatories Three and Four must be completed
by December 20, 2019, and Defendant's production of
documents responsive to Document Requests ...