2017-00212818-CU-CR

Rita Martell vs. The State of California

Nature of Proceeding: Motion to Compel Production

Filed By: Dalton, John W.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the specific discovery requests that will be addressed at the hearing. Counsel are also reminded that pursuant to local rules, only limited oral argument is permitted on law and motion matters. ***

Plaintiff’s motion to compel defendant California Department of Corrections and Rehabilitation’s (“CDCR”) further responses to Requests for Production, Set Two (“RFP”), is GRANTED IN PART, as follows.

Plaintiff’s notice of motion again does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact opposing counsel prior to hearing, moving counsel is ordered to appear at the hearing in person or by telephone.

The court notes that plaintiff’s separate statement in support of this motion merely consists of the individual RFP and CDCR’s responses to same followed by a near-verbatim recitation of the entire moving memorandum of points & authorities. This is neither helpful nor proper and should not be repeated in the future.

Factual Background

This action arises out of plaintiff’s employment wherein she allegedly suffered harassment, discrimination and retaliation over a period of time. Plaintiff identifies the individuals primarily responsible for the underlying conduct as Messrs. Stover and Martinez, both of whom are described as “Correctional Officers” and are sued as defendants in their individual capacity.

Plaintiff’s RFP to CDCR generally seeks (with no specified time limitations) all emails from defendant Martinez’s CDCR email address which contain a reference to sex, sexual activities, and male and female body parts (RFP Nos. 1-12); which were reviewed, copied or discussed as a result of the Internal Affairs investigation of plaintiff’s complaints about defendants Martinez and Stover or are a part of that investigation (RFP Nos. 13-16, 18); which violated any CDCR policy or resulted in the discipline of defendant Martinez (RFP Nos. 17, 19); which were sent to plaintiff’s CDCR email address including those referencing sexual content, female anatomy and body parts (RFP Nos. 20-24); which were forwarded to Unit Supervisor Mary Allen including those referencing sex, sexual activities or female breasts (RFP Nos. 25-30).

In response to RFP Nos. 1-12, CDCR asserted various objections including vague, ambiguous, burdensome, potentially confidential and private but nevertheless represented that all responsive documents have already been produced, followed by a reference to those documents marked CDCR 3161-3528 and 3584-3921. In response to RFP Nos. 13-16 and 18, CDCR cited additional objections based on overbreadth, the litigation privilege in Civil Code §47(b) and the protections afforded to peace officers but again stated that all responsive documents were previously produced, referring to the documents marked CDCR 3161-3528 and 3584-3921. In response to RFP Nos. 17 and 19, CDCR objected on the grounds the RFP are overly broad, vague and ambiguous before adding that all responsive documents were previously produced, referring to documents marked CDCR 3161-3921 and 3584-3921, respectively. In response to RFP Nos. 20-30, CDCR cited the same objections as in response to RFP Nos. 13-16 before representing that all responsive documents were previously produced, followed by a reference to documents CDCR 3161-3921.

Moving Papers. Plaintiff contends that CDCR’s representation that it has already

produced all responsive documents is “provably false” inasmuch as the meet-and-confer process confirmed the documents previously produced were limited to the period from 3/1/2016 to 5/31/2016 and the documents which were identified, essentially consisting of the limited Internal Affairs investigation that revealed only a handful of the offensive emails from defendant Martinez, are far from being the full array of documents responsive to RFP Nos. 1-12. Plaintiff insists that Martinez’s sexual harassment of women other than plaintiff is relevant and discoverable for purposes of not only showing a hostile work environment, Martinez’s motives/intent and liability for punitive damages and CDCR’s failure to prevent Martinez’s harassment but also impeaching the credibility of Martinez and/or CDCR and rebutting their defenses. In a footnote, plaintiff states that she agreed that only those emails dating back to 1/1/2013 need be produced (but no end date appears to have been identified, which the court construes as seeking emails up to and including today).

Opposition. CDCR opposes, arguing that while plaintiff alleges she and other female staff were harassed by defendants Stover and Martinez from 2/29/2016 to 8/4/2016, there is no evidence that CDCR was aware of defendant Martinez’s conduct prior to 5/9/2016 and the evidence to date shows that plaintiff is the only woman who was offended by the conduct and made a complaint about it. Plaintiff now seeks the production of sex-based emails from defendant Martinez’s CDCR email account to demonstrate that Martinez has a sexual perversion and that CDCR did not thoroughly investigate the extent of his misconduct during the internal investigation. However, CDCR has already agreed to produce responsive emails for the period 1/1/2016 through 8/1/2016 because this is the period when plaintiff worked with Martinez and was harassed by the latter but plaintiff’s overly broad requests for emails sent to other employees at any time are an improper attempt to dig up “dirt” on defendant Martinez to bolster her case with “improper character evidence,” meaning the RFP are not reasonably calculated to lead to admissible evidence. In short, CDCR maintains the requested emails are not relevant because (1) they are not necessary to show Martinez’s state of mind, intent or credibility particularly since he has already admitted he sent the sex-based emails to plaintiff in the relevant time period in 2016 and (2) they are not relevant to plaintiff’s “failure to investigate” claim since the evidence already establishes CDCR was unaware of Martinez’s sex-based emails to female staff prior to 5/9/2016. Contending plaintiff has failed to establish the requested documents are conceivably relevant to either her harassment or another claim or her burden of proof on such claims, CDCR asks that this motion be denied in its entirety.

Reply. Plaintiff claims that the opposition conflates the standards for admissibility and for discovery, with the latter being far more broad, and then makes essentially two arguments (i.e., relating to defendant Martinez’s state of mind, intent and credibility and relating to plaintiff’s “failure to investigate” claim) while ignoring a number of other critical points raised in the moving papers like those asserting the RFP are reasonably calculated to lead to evidence bearing on the existence of a work environment hostile to women, CDCR’s failure to prevent Martinez’s harassment and Martinez’s liability for punitive damages. Regardless, the opposition’s contentions regarding plaintiff’s “failure to investigate” claim actually confirms her need for and entitlement to the emails specified in the RFP inasmuch CDCR’s denial of actual knowledge of defendant Martinez’s emails prior to 5/9/2016 does not necessarily mean that CDCR could not reasonably have earlier discovered the offensive conduct and the mere fact CDCR’s internal investigation arbitrarily chose to examine Martinez’s emails only from 3/1/2016 to 5/31/2016 is not dispositive of plaintiff’s right to any emails outside this three month period. Additionally, the reply argues the emails are necessary for plaintiff

to oppose defendants’ motion for summary judgment which is set to be heard on 3/8/2019.

Analysis

At the outset, the court will reject plaintiff’s argument that she needs the emails sought by the RFP in order to prepare her opposition to defendants’ motion for summary judgment since it appears this motion is not yet on file and the motion’s grounds are not yet clear.

Similarly, while plaintiff has apparently agreed that only those emails dating back to 1/1/2013 need be produced, the court finds the subject RFP remain overly broad in that no end date has been identified such that the RFP must be construed as seeking all emails up to and including today, even though the moving papers indicate plaintiff’s employment with CDCR ended in January 2018. Unless there are allegations and/or evidence tending to show that defendant Martinez’s alleged harassment of plaintiff continued beyond 9/20/2016 when plaintiff began a two month leave of absence, all of the RFP should be deemed limited to only those responsive emails which predate 9/20/2016.

The court agrees with plaintiff that she should be permitted discovery of offensive emails from defendant Martinez which were sent before 1/1/2016, the earliest date of the emails which CDCR previously agreed to produce since such emails would tend to show at a minimum not only that Martinez may have engaged in harassing conduct with other CDCR employees and may have created a work environment hostile to women but also that CDCR either knew or should have known of Martinez’s harassment and taken steps to prevent Martinez’s harassing conduct. However, plaintiff’s demand that CDCR’s search for email going back as far as 1/1/2013 is, based on the present record, unjustifiably overbroad and the court will currently require CDCR to search for responsive email dating back to 1/1/2015, which is more than a year prior to the earliest allegations of Martinez’s harassment of plaintiff. This should provide plaintiff more than an adequate opportunity to obtain the evidence needed to prove her claims against both Martinez and CDCR itself but the court may, after CDCR produces the responsive emails dating back 1/1/2015 and upon an appropriate showing, consider expanding the scope of these RFP.

Conclusion

Based on the foregoing, plaintiff’s motion is granted in part and CDCR shall provide verified further responses, without additional objections, to the RFP but only for the time period from 1/1/2015 through 9/20/2016.

CDCR shall serve its further responses no later than 12/7/2018 (unless plaintiff agrees to a later date memorialized in writing).

Neither party requested monetary sanctions.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)