Ronald Bucher v. Cepheid

Bucher v. Cepheid CASE NO. 113CV253972
DATE: 31 October 2014 TIME: 9:00 LINE NUMBER: 12

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 30 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 31 October 2014, the motion of Plaintiff Ronald Bucher (“Plaintiff”) to compel further responses to his first request for production of documents (“RFPs”), specifically RFPs Nos. 18 and 48, was argued and submitted.  Defendant Cepheid (“Defendant”) filed a formal opposition to the motion.  Neither side requested sanctions.

  1. Statement of Facts

This action arises out of Plaintiff’s separation from his employment with Defendant. Plaintiff alleges that he was unlawfully terminated for reporting gender and racial discrimination committed against one of his subordinates.

In his complaint, Plaintiff asserts two causes of action for retaliation and wrongful termination in violation of the California Fair Employment and Housing Act.

  1. Discovery Dispute

On 25 October 2013 Plaintiff served 63 RFPDs on Defendant.  On 27 December 2013 Defendant served its initial responses.  The responses to RFPD Nos. 18 and 48 consisted solely of objections.

On 19 February 2014 Plaintiff’s counsel wrote to Defense Counsel to begin the meet and confer process regarding, among other things, RFPD Nos. 18 and 48.  (See Declaration of Katherine Smith (“Smith Decl.”), Ex. A.)

On 5 March 2014 Defendant responded, stating that in regards to RFPD No. 18 it would only produce responsive documents generated by Plaintiff himself and that it stood on its objections to No. 48.  (Smith Decl., Ex. B.)  The parties then agreed to suspend meet and confer efforts while they went to private mediation.

On 25 July 2014, after mediation had failed to resolve the dispute, the meet and confer process resumed with a letter from Defense Counsel to Plaintiff’s Counsel discussing other discovery.  (Smith Decl., Ex. C.)

On 31 July 2014 Plaintiff’s Counsel wrote to Defense Counsel to resume the meet and confer discussion regarding the RFPDs at issue here.  As to RFPD No. 18 Plaintiff described Defendant’s limiting of its response to communications authored by Plaintiff to be “too restricted,” but proposed limiting the request to documents “from Manager level employees and above.”  Regarding RFPD No. 48, addressed collectively with several other RFPDs, Plaintiff asserted the documents sought were relevant but that legitimately confidential material would be subject to the existing protective order.  (Smith Decl., Ex. D.)

Meet and confer efforts continued via telephone conferences and email correspondence in August and September 2014.  (Smith Decl., Ex. E.)  There was some discussion about narrowing RFPD No. 18, but the parties could not agree on a revised scope and Defendant ultimately chose to stand on its objections.  As to RFPD No. 48 the parties simply agreed that they had reached an impasse.

Plaintiff’s motion to compel was filed on 30 September 2014 and Defendant’s opposition was filed on 20 October 2014.

III.     Discussion

  1. Motion to Compel Further Responses to RFPDs

Plaintiff moves to compel further responses to RFPD Nos. 18 and 48 on the ground that Defendant’s objections are without merit and additional responses are required.

RFPD No. 18 sought all documents from the last five years “reflecting any mention” of the representation of women in management positions.

RFPD No. 48 requested all (undefined) “complaints, formal or informal, regarding gender discrimination at Cepheid filed or communicated by any employee in the last 10 years.”

  1. Legal Standard

On a motion to compel further responses to RFPDs, it is the moving party’s burden to demonstrate good cause for the discovery sought.  (See Kirkland v. Superior Court (2002) 95 Cal. App. 4th 92, 98.)  This requires demonstrating both (1) relevance to the subject matter and (2) specific facts justifying discovery.  (Id.)

Once good cause has been shown, the burden shifts to the responding party to justify any objections or failure to provide a code-compliant response.  (Id. at 98.)  Therefore, the party objecting to a discovery request bears the burden of explaining and justifying the objection(s).  (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal. 4th 245, 255.)

  1. Objections

Defendant objected to RFPD no. 18 on the grounds that it was vague and ambiguous, was overbroad, unduly burdensome, sought discovery of confidential/proprietary/trade secret information and was not reasonably calculated to lead to the discovery of admissible evidence.  It offered to respond to the request as narrowed only to include emails written by Plaintiff but this was rejected by Plaintiff.  Plaintiff countered with a proposal to only seek emails from Defendant’s CEO regarding women in management from 2010 to the present and from (undefined) “management employees” containing the words “discrimination” and either “gender,” “female” or “women” from 2010 to the present or (undefined) derivatives of these terms.  Defendant opted to stand on its objections.  (See Smith Decl., Ex. E.)

Defendant objected to RFPD No. 48 on the grounds that it was overbroad, unduly burdensome, sought discovery of confidential/proprietary/trade secret information, was invasive of the privacy rights of current and former employees, and was not reasonably calculated to lead to the discovery of admissible evidence.  Defendant did not object to RFPD No. 48 on the ground that any of its terms were vague and ambiguous and no such argument will be considered by the Court as that objection has been waived as to RFPD No. 48.

  1. Reasonably Calculated to Lead to Discovery of Admissible Evidence

Taking Defendant’s weakest objection first, it contends that the documents sought by both requests will not assist Plaintiff in evaluating his case or preparing for trial because it is not needed for the narrow view Defendant takes of Plaintiff’s case, as one for only retaliation and wrongful discharge.  This is essentially the same argument Defendant made in opposing Plaintiff’s prior motion to compel further responses to Special Interrogatories and it is equally unpersuasive here.  Plaintiff has shown good cause for seeking the information covered by these RFPDs.

As previously stated in the Court’s 1 May 2014 Order, discovery is allowed for any matter that is not privileged, relevant to the subject matter involved in the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) The “relevance to the subject matter” and “reasonably calculated to lead to the discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.) Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

Information regarding the representation of women in management positions (RFPD No. 18) and, much more clearly, information regarding complaints of gender discrimination at Defendant (RFPD. No. 48) is clearly relevant to Plaintiff’s claims, even if Plaintiff has field to offer precise definitions for his terms.  Again, as previously noted in the 1 May 2014 Order, an employee is protected against retaliation if the employee reasonably and in good faith believed that what he or she was opposing constituted unlawful employer conduct such as gender discrimination. (See Miller v. Department of Corrections (2005) 36 Cal.4th 446, 473-474.) The information sought by the RFPDs could assist Plaintiff in proving that he had reasonable grounds to believe that Defendant was engaging in gender discrimination. Any additional evidence showing actual discrimination would support the reasonableness of Plaintiff’s belief based on his own observations.

Second, in order to prevail on his retaliation claim, a plaintiff must first establish a prima facie case of retaliation. (See Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1051.)  The burden then shifts to the defendant to articulate a legitimate nonretaliatory explanation for its acts. (Id.) Finally, the burden shifts back to the plaintiff to show that the defendant’s proffered explanation is merely a pretext for illegal termination. (Id.)  The information sought could assist Plaintiff in uncovering evidence indicating that his termination was substantially motivated by his complaints concerning gender discrimination. Evidence of actual discrimination could establish that Plaintiff’s termination was motivated by fear of having gender disparities at the company exposed.

Accordingly Defendant’s objection to RFPD Nos. 18 and 48 on the ground that they are not reasonably calculated to lead to the discovery of admissible evidence is OVERRULED.

  1. Privacy Rights of Current and Former Employees

Defendant offers no argument in support of its objection to RFPD No. 48 on the ground that it invaded the privacy rights of current and former employees.  Therefore the objection is OVERRULED.  (See Kirkland, supra, at p. 98.)

  1. Confidential or Proprietary Information; Trade Secrets

Defendant has also offered no argument in support of this objection to RFPD Nos. 18 and 48.  Accordingly, it is OVERRULED as well.

  1.            Vague and Ambiguous

As asserted in response to RFPD No. 18 as originally stated, this objection presents a valid argument.  It is difficult to think of a less useful descriptor for a document than that it “reflects” a “mention” of something else.  The phrase is useless without more information.  However Plaintiff’s offer to narrow RFPD No. 18 to include only (1) emails to/from or presentations by Defendant’s CEO from 2010 to the present, and (2) emails from “management employees” from 2010 to the present that contain both the word “discrimination” and either “gender,” “female” or “women” alleviates this concern.  (See Smith Decl., Ex. E, 9 Sept. 2014 email from Plaintiff Counsel.)  Accordingly the Court hereby modifies RFPD No. 18 to only include this narrower request.  Given Plaintiff’s failure to provide a definition of “management employees” despite being asked for one Defendant is free to apply its own (reasonable) definition of the term.  Likewise given Plaintiff’s failure to provide a list of derivatives of the terms “discrimination,” “gender,” “female,” or “women” despite being asked for one by Defendant no such derivatives are included in the RFPD as modified by the Court.  Defendant’s vague and ambiguous objection is OVERRULED to RPFD No. 18 as so modified.

  1. Overbroad

Defendant’s objection to RFPD No. 18 on the grounds that it is overbroad is essentially duplicative of its vague and ambiguous objection.  Accordingly the objection is OVERRULED to RFPD No. 18 as modified by the Court above.

Defendant asserts that RFPD No. 48 is overly broad in that it seeks all “complaints regarding gender discrimination” by any employee in the last ten years without any justification for that ten year period given Plaintiff’s short term of employment with Defendant.  This objection presents a valid argument and Plaintiff’s argument that the ten year period is justified as the request superficially resembles that in Form Interrogatory – Employment Law No. 209.2 (which is limited to the number of filed civil actions, a far narrower scope that is far easier to ascertain) does not establish good cause for the ten year period.  Accordingly the Court hereby narrows the scope of RFPD No. 48 to responsive material from 2010 to the present, which will conform the time period covered by RFPD No. 48 to that covered by RFPD No. 18 as modified by the Court.

  1. Undue Burden

“[S]ome burden is inherent in all demands for discovery.” (West Pico Furniture Co. v. Super. Ct. (1961) 56 Cal.2d 407, 418.)  To justify an undue burden objection, the objecting party must provide specific facts as to how much work, time, and expense is required to answer or produce all responsive documents.  (Id.)

CCP § 2031.310(d) provides that where a motion to compel further responses to requests for production relates to the production of electronically stored information (“ESI”), the party objecting on the ground of undue burden or expense “shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense.”  However as Plaintiff points out, this presupposes the responding party has first properly raised an objection based on the claimed undue burden of producing ESI as set forth in CCP §2031.210(d), which provides that “[i]f a party objects to the discovery of [ESI] on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense and that the responding party will not search the source in the absence of an agreement with the demanding party or court order, the responding party shall identify in its response the types or categories of sources of [ESI] that it asserts are not reasonably accessibleBy objecting and identifying information of a type or category of source or sources that are not reasonably accessible, the responding party preserves any objections it may have relating to that electronically stored information.”  Emphasis added.  Statutory interpretation is a question of law for the Court and there are no published appellate decisions discussing CCP §2031.210(d) that the Court is aware of.

Defendant’s responses to RFPD Nos. 18 and 48 asserted an undue burden objection only in a boilerplate fashion.  The responses failed to identify any type or category of source of electronically stored information as not reasonably accessible.  While the boilerplate responses may have been sufficient to preserve the undue burden objection in a non-ESI context, they were not enough to preserve the objection concerning any claimed undue burden in recovering and producing ESI.  Any other conclusion renders the express terms of CCP §2031.210(d) requiring a responding party to identify ESI sources in the response to an RFPD a nullity.

Accordingly the declaration from Rick Nottingham, Defendant’s Senior Director IT Operations and Infrastructure, purporting to state Defendant’s burden in producing ESI in responses to RPFD No. 18 only is irrelevant as Defendant has waived any undue burden objection to the production of ESI due to its failure to comply with CCP §2031.210(d).

The declaration from Sonjia Jeter, Defendant’s Director of Human Resources, is not limited to ESI and remains relevant.  While it does not specifically say so, it is clearly directed at RFPD No. 48.  The facts stated in the Jeter Declaration, such as that Defendant has had “more than 1,000 past and present employees over the last five years,” that Defendant has “about 187 managers” and “one Executive Vice President of Human Resources and three Human Resources Business Partners,” who along with Jeter, “keep files labeled by employee name for employee complaints that prompted investigation,” (Jeter Decl. at 3-5) does not establish that it would be an undue burden for Defendant to comply with RFPD No. 48, particularly as modified by the Court above.  The Jeter Declaration provides no particularized showing of facts demonstrating the hardship providing a response to RFPD No. 48 (even in its unmodified form).  It also does not provide an estimate of the amount of time providing a substantive response would take or the extent of the expense a substantive response would require it to incur.  Therefore Defendant’s (non-ESI) objection to RFPD No. 48 (as now modified by the Court) on undue burden grounds is OVERRULED.

  1. Conclusion

Based on the foregoing, all of the Defendant’s objections to RFPD Nos. 18 and 48 (as modified by the Court) are waived or overruled.

 

  1. Conclusion and Order

Plaintiff’s motion to compel further responses to RFPD Nos. 18 and 48 (as modified by the Court) is GRANTED.

Defendant shall serve further responses to RFPD Nos. 18 and 48, without objection, within 20 calendar days of this order.  To the extent it appears that Defendant may reasonably need more time to comply and provide the further responses, the Court encourages the parties to meet and confer regarding an extension of time.

 

 

________________­­­____________

DATED:

_________________________­­­________________________

HON. SOCRATES PETER MANOUKIAN

Judge of the Superior Court

County of Santa Clara

Print Friendly, PDF & Email
Copy the code below to your web site.
x 

Leave a Reply

Your email address will not be published. Required fields are marked *