2017-00208883-CU-WT

Dorothy Sanders vs. State of California

Nature of Proceeding: Motion to Compel Special Interrogatories

Filed By: Telfer, Jill P.

Plaintiff Dorothy Sanders’ motion for compel further responses to special interrogatories is ruled upon as follows.

In this employment action Plaintiff alleges claims against the Department of Fair Employment and Housing for Whistleblower Retaliation under Government Code § 8547.10 and Labor Code § 1102.5(b). Plaintiff alleges that Defendant retaliated against her by denying her a promotion and imposing other adverse action based on her disclosure of Defendant’s conduct in connection with purchasing a multi-million dollar case management system (“Houdini, Esq.”) leading to, among other things, cases not being timely investigated.

At issue on the instant motion are Defendant’s responses to special interrogatories Nos. 26-30.

No. 26

Granted. This interrogatory asked Defendant to describe in detail the training provided to its employees regarding Houdini, Esq. at the Elk Grove office who worked in the Enforcement Division and Employment section. Defendant interposed numerous boilerplate objections and provided a response generally describing the training provided to all its employees.

Defendant’s objection based on vagueness, ambiguity and overbreadth are boilerplate and must be removed. None of the terms are vague or ambiguous. Further, the overbreadth objection lacks merit and no attempt was made to justify the objection.

Defendant’s relevance objection is also overruled. In the discovery context, information is relevant “if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. [citations omitted] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612.) Defendant argues that what is relevant to Plaintiff’s whistleblower claims is whether she had a reasonable belief that she was reporting a violation of the law, not whether Defendant actually violated the law and that training regarding Houdini, Esq. has no bearing on that issue. Of course, the test is relevancy of the subject matter, not relevancy of the issues. Pacific Tel. & Tel. Co. v. Superior Court of San Diego County (1970) 2 Cal. 3d 161, 174. However, even if the discovery may not bear upon Plaintiff’s beliefs, the conduct that Defendant engaged in with respect to Houdini, Esq. (e.g., not fully vetting Houdini, Esq. prior to purchasing, or properly training employees) could lead to the discovery of admissible evidence regarding, for example, whether Defendant’s denial of Plaintiff’s promotion was pretextual, and based on her reporting the alleged misconduct related to Houdini, Esq. That is, it could lead to potential evidence regarding Defendant’s motivation for the alleged retaliation.

Defendant also argues that Houdini, Esq. was implemented by former employees whom it is unable to locate and thus its response was premised on the information reasonably available to it and that its response regarding the training provided was sufficient. However, the instant response does not specifically respond to the call of the question, that is, what was the specific training provided to employees at the Elk Grove location where Plaintiff worked, and instead responds generally for all employees. To the extent that Defendant is unaware of the specific training provided at the Elk Grove location, it shall say so in a further response pursuant to CCP § 2030.220(c).

Nos. 27 & 28

Granted. These interrogatories asked Defendant to identify all research performed on case management systems prior to selecting Houdini, Esq. and to describe the vetting process for Houdini, Esq. Defendant interposed objections based on burden, vagueness and ambiguity and relevance.

The vague and ambiguous and relevance objections are overruled for the reasons discussed above.

The burdensome objection is overruled. Indeed, undue burden objections must be accompanied by a specific factual showing setting forth the amount of work necessary to respond to the subject discovery. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418.) Defendant makes no such showing.

No. 29

Granted. This interrogatory asked Defendant to identify every decision maker in selecting Houdini, Esq. and Defendant’s case management system. Defendant interposed objections based on burden, vagueness and ambiguity and relevance.

The vague and ambiguous and relevance objections are overruled for the reasons discussed above. Defendant argues that the identity of the decision makers for selecting Houdini, Esq. has no relevance and that the only relevant inquiry is whether the decision makers who decided not to promote Plaintiff were aware that she complained about Houdini, Esq. However, it may be that the decision makers who selected Houdini, Esq. were also decision makers who decided not to promote Plaintiff and thus the discovery could potentially lead to admissible information regarding pretext and/or retaliatory animus.

The burdensome objection is overruled. Indeed, undue burden objections must be accompanied by a specific factual showing setting forth the amount of work necessary to respond to the subject discovery. (West Pico Furniture Co, supra, 56 Cal.2d at 417-418.) As to burden, there must be evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought. Id. Defendant makes no such showing.

No. 30

Granted. This interrogatory asked Defendant to identify the financial cost to Defendant as a result of selecting Houdini, Esq. due to loss of productivity, changes to the system, etc. Defendant interposed objections based on burden, vagueness and ambiguity and relevance and also objected that the interrogatory calls for information that is the subject of expert analysis.

The vague and ambiguous and relevance objections are overruled for the reasons discussed above.

Defendant argues that requiring it to compile this information would require expert analysis and would thus be unduly burdensome. To that end Defendant’s director declares that while a decision was made to replace Houdini, Esq. within months of his arrival in February 2015, neither he nor anyone that he is aware of has conducted any analysis of the financial cost as a result of the Houdini, Esq. system. (Kish Decl. ¶ 3.) Mr. Kish declares that the only way that he can imagine that such information could be obtained would be to hire an expert to conduct an analysis. (Id.) Plaintiff indicates that such information should be accessible to Defendant because the Senate Oversight Committee held hearings related to governmental waste regarding Houdini, Esq. Mr. Kish declares that he is unaware of any information provided by Defendant to the Senate Oversight Committee. (Id.)

The current response only contains objections. To the extent Defendant lacks sufficient personal knowledge to answer the interrogatory, it must say so in a verified responses pursuant to CCP § 2030.220(c). While Defendant argues that the information is equally accessible to Plaintiff if in fact the Senate conducted hearings, Defendant did not interpose any objection based on any information being equally

accessible to Plaintiff. Further, while Defendant argues that the interrogatory is burdensome because it would require it to hire an expert, there is no showing that this is true. Again, undue burden objections must be accompanied by a specific factual showing setting forth the amount of work necessary to respond to the subject discovery. (West Pico Furniture Co, supra, 56 Cal.2d at 417-418.) Indeed, there is no showing that Defendant cannot at least provide some type of answer to this interrogatory without hiring an expert. The Court would note that while Mr. Kish declared that he was unaware of any information provided by Defendant to the Senate Oversight Committee, he did not declare that any inquiry had been made and it may be that Defendant has in fact already compiled the information requested by way of this interrogatory. If in fact Defendant has never conducted any financial analysis than it may say so in a verified further response.

To the extent Defendant raised any objections in the responses that were not discussed in its opposition and not specifically addressed above, they too are overruled.

Neither party requested sanctions and none are awarded.

The motion is granted. No later than January 26, 2018, Defendant shall serve further verified responses to Plaintiff’s special interrogatories nos. 26-30 consistent with the above.