2012-00117772-CU-WT

Daniel Deluca vs. CVS Pharmacy

Nature of Proceeding: Motion to Compel the Deposition

Filed By: Velez, Mark P.

Plaintiff’s Motion to Compel PMQ, as described in the motion, is denied.

However Defendant is ordered to produce for deposition the person who “ran the
report” that plaintiff seeks more information on. The discovery cut-off is extended to
the extent necessary to take that deposition.

Plaintiff brings this action for violation of the FEHA, contending he was discriminated
against by not being allowed to return to work after a workplace injury, with doctor’s
restrictions of no lifting more than 20 lbs. Plaintiff was terminated based on CVS’
contended neutral policy of terminating workers who have not worked any hours in a
45 day period. Plaintiff contends that the policy of terminating employees
automatically after this period disparately impacts those who have been injured on the
job and are not being accommodated under FEHA.

Plaintiff seeks to depose the “PMQ regarding the production of documents for the
action entitled Granzella v Drug Stores/CVS Pharmacy.” In that case, the documents
produced contained a list of all CVS employees in California whose employment was
terminated because they failed to work any hours for 45 consecutive days for the
period October 2008 to December 2010. Plaintiff seeks the names, positions, dates
of termination, address, and information about whether any employee has been
rehired including “knowledge of the process of how the employee was rehired.”
Plaintiff also seeks to extend the discovery cut-off for the purposes of completing the
PMQ deposition. The DFEH closed its file on the Granzella case in April of 2012 and
plaintiff has known about the Granzella case since July of 2012. Plaintiff obtained the
documents pursuant to a Freedom of Information Act request in September of 2013.
This list involves 2,466 employees. Plaintiff seeks the information to support a claim
for punitive damages that is at issue in a motion for summary judgment that has now
been continued to November 8, 2013.

Plaintiff has also served a Request for Admission that seeks authentication of the
same documents produced in the Granzella case.

Plaintiff contends that the 45 day policy is not a “neutral” policy but rather discriminates
against employees who are injured at work, receive a weight restriction medical
release, and are told they cannot return to work until their restrictions are lifted. This is
a disparate impact claim that has not been raised in the complaint and is distinct from
plaintiff’s currently pleaded disparate treatment claim.

Plaintiff has not shown good cause to extend the discovery cut-off for the purposes of
taking this PMQ’s deposition. Plaintiff has known about the DFEH investigation since
mid 2012, and the fact that the documents were only recently obtained from an
information request does not show diligence in pursuing the discovery. As stated in the
opposition, plaintiff has already requested authentication of the documents in a
pending request for admission. Moreover, even if timely, the requested PMQ deposition would be denied. The
information sought regarding whether individuals are rehired or the process of how
they were rehired is not known by any single person and would require multiple
individuals to review 2,466 personnel files. It is too late in this case’s chronology to
contemplate an entirely new legal theory that is not pleaded (disparate impact vs
disparate treatment), and discovery involving numerous PMKs/PMQs having
knowledge of 2466 personnel files.

The discovery requested also implicates third party privacy constitutional privacy
rights. Even if the information were relevant to plaintiff’s disparate treatment claim, the
identities and addresses, and medical information including disabilities of the 2,466
employees would not be discoverable absent prior notice and consent of those
individuals. In considering the disclosure of confidential personnel files, the Court must
“balance the need for the discovery against the fundamental right to privacy.” (Harding
Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10. “However, the
balance will favor privacy for confidential information in third party personnel files
unless the litigant can show a compelling need for the particular documents and that
the information cannot be reasonably obtained through depositions or from
nonconfidential sources.” (Id.) No such compelling need is shown in the instant case.

This ruling is conditioned upon defendant properly responding to the Request for
Admission and providing, as agreed, the list using a DOE identifier so that duplicate
entries (indicating possible rehire) could be tagged. (Sween Decl. para. 13)

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.