2010-00074763-CU-WT

Glenn King vs. HD Supply Co Inc

Nature of Proceeding: Motion to Compel Response to Request for Production of Documents

Filed By: Gerges, Rana R.

*** 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 court rules, only limited oral argument is permitted on law and
motion matters. ***

Plaintiff’s motion to compel defendant HD Supply’s further responses to requests for
production of documents, set two, Nos. 44, 46-47, 52-55 and 57 is GRANTED in part,
as follows.

Moving counsel is admonished because the notice of motion does not comply with
Code of Civil Procedure §1010 and CRC Rule 3.1110(a) and does not provide the
correct address for Dept. 54.

Moving counsel is also admonished because the moving papers fail to comply with
CRC Rule 3.1110(b)(3)-(4).

At the outset, the Court must remind both counsel that given the number of motions
such as this which must be addressed on a daily basis, there are simply not enough
judicial resources available to resolve each and every discovery dispute that could
have and should have been resolved informally. This serves to highlight the critical
need for counsel’s legitimate, reasonable and good faith meet-and-confer efforts
before filing any discovery motion. Although it dealt with a motion to compel answers
to deposition questions, the decision of Townsend v. Superior Court (1998) 61
Cal.App.4th 1431 is instructive in that it clarifies that the meet-and-confer process is
not intended to be some perfunctory formality but rather it “requires…a serious effort at
negotiation and informal resolution.” (Id., at 1438.)

Additionally, in light of the foregoing, counsel for the parties are strongly encouraged to
stipulate pursuant to Code of Civil Procedure §638 to the appointment of a discovery
referee who can much more quickly and efficiently respond to the parties’ needs. If the
parties can agree to someone to act as referee, they may submit a stipulation and
proposed order to the Court.

This action arises out of plaintiff’s previous employment as a Distribution Center
Manager with defendant HD Supply from September 2006 through July 2008. The
Second Amended Complaint alleges claims for discrimination, harassment, retaliation,
wrongful termination, negligence, intentional infliction of emotional distress and
defamation.

At issue here are the following eight (8) requests for production of documents:

No. 44: All documents referring to any concern of retaliation regarding defendant
McGee within the past 10 years [sic].

No. 46: All documents referring to the identities (names) of each U.S. Distribution
Center Manager for the years 2006-2008.

No. 47: All documents identifying the base salaries paid to each U.S. Distribution
Center Manager for the time period of 2005 to 2009.

No. 52: The disciplinary records of same or similar Distribution Center managers as
plaintiff during his period of employment [sic].

No. 53: Identify the compensation package (including annual wages, bonuses, and
vacation pay) of same or similarly situated D.C. managers as plaintiff during his period
of employment, identified by years and locations [sic].

No. 54: All documents evidencing any concerns or complaints of racism reported by
any employee of defendant HD Supply during the past 10 years.

No. 55: All documentation evidencing any concerns or complaints of retaliation
reported by any employee of defendant HD Supply during plaintiff’s period of
employment.

No. 57: All documents evidencing the same or similar disciplinary notices as those
given to plaintiff during his period of employment endorsed by Defendant McGee to
any defendant HD Supply employee [sic].

In response to each of these requests, defendant asserted a handful of objections
including that the requests invade the right to privacy, are overly broad as to both
scope and time, are unduly burdensome and oppressive, and are not reasonably
calculated to lead to admissible evidence. Additionally, in response to each request
except Nos. 46-47, defendant also objected that the requests invaded the attorney-
client and/or work product privileges and that the requests contained terms which were
vague and ambiguous. Defendant agreed to produce no documents in response to
any of the eight requests at issue here.

Plaintiff now moves to compel further responses to these requests, contending that
defendant’s objections lack merit and that plaintiff is entitled to the documents
requested. Plaintiff also seeks monetary sanctions of $1,260.

In opposition, defendant maintains that its objections are substantially justified and that
plaintiff has failed to establish the “good cause” required under Code of Civil
Procedure §2031.310(b)(1) to justify the discovery sought by the documents requests,
particularly in light of the asserted objections. Nevertheless, defendant represents that
it has agreed to provide further responses to the requests at issue here and suggests
that this motion is therefore moot. Defendant also seeks sanctions of $5,400 against
plaintiff and/or his attorney, claiming that plaintiff’s meet-and-confer efforts were
insufficient.

While plaintiff’s meet-and-confer efforts certainly could have been better and should
have included giving defendant additional time within which to respond to the meet-
and-confer attempts, the Court cannot characterize plaintiff’s efforts as being patently
insufficient under the circumstances.

The Court also rejects defendant’s suggestion that the present motion has been
rendered moot because defendant has now agreed to provide further responses to the
document requests at issue. Code of Civil Procedure §1005.5 specifically provides
that a motion is deemed made at the time it is filed and served. Here, plaintiff filed and
served this motion on 8/29/2013, which was prior to defendant actually serving its
further responses. Accordingly, this motion is not moot within the meaning of §1005.5.

Turning now to the individual requests, this Court finds that nearly all of defendant’s
asserted objections have substantial merit given the breadth of each request as
phrased. For example, given that request No. 44 appears to seek “all documents”
referring to “any concern of retaliation” by defendant McGee in the past 10 years, this
request does potentially encompass documents otherwise protected by the attorney-
client and/or work product privileges and does appear not only overly broad but also
not reasonably calculated to lead to admissible evidence relating to plaintiff’s own
claims of retaliation. For similar reasons, request Nos. 54 and 55 seeking documents
relating to any employee’s complaints either of racism in the last 10 years or of
retaliation during plaintiff’s employment (2006-2008) and No. 57 seeking documents
relating to the discipline of other employees by defendant McGee are also overly broad
and not reasonably calculated to lead to evidence relevant to plaintiff’s own
employment claims. These requests are so broad that they also potentially
encompass privileged documents.

But more problematic are plaintiff’s request Nos. 46-47 and 52-53 since they expressly
seek any and all documents which refer to the names of each distribution center
manager, to their base salaries for 2005 to 2009, to their disciplinary records, and to
their total “compensation package.” Aside from having little, if any, relevance to
plaintiff’s claims of discrimination, harassment and retaliation, these unusually broad
document requests clearly invade these managers’ constitutional right to privacy.
Contrary to plaintiff’s characterization of the invasion being limited or slight, this Court
finds that few inquiries would invade these managers’ privacy rights more seriously
than plaintiff’s request for all documents relating to their compensation and disciplinary
history.

Regardless, the general rule where privacy rights are involved is that the party seeking
discovery must establish that the information sought is “directly relevant” to the parties’
claims and is “essential” to a fair resolution of the lawsuit. (See, e.g., Alch v. Superior
Court (Time Warner Entertainment Co.) (2008) 165 Cal.App.4th 1412, 1432-1433.)
Additionally, in order to pass constitutional scrutiny, any discovery into matters
deemed private must be “narrowly tailored” to obtain only the “essential” information
and the party seeking the discovery must show there is no less intrusive means to
obtain this information. (See, e.g., Tien v. Superior Court (Tenet Healthcare Corp.)
(2006) 139 Cal.App.4th 528, 539-540; In re Marriage of Harris (2004) 34 Cal.4th 210,
244.) Even where these prerequisites are met, there is no categorical right to conduct
discovery on such private matters as the Court is still required to balance the rights
and interests involved before permitting the proposed invasion of privacy. (See, e.g.,
Alch, at 1423-1425.)

In this case, plaintiff’s proposed invasion of the other managers’ right to privacy in their
compensation and disciplinary records cannot be justified because such documents
are neither “directly relevant” to nor “essential” to prove plaintiff’s own employment
claims. Instead, these inquiries into other managers’ compensation and discipline
records would not directly advance plaintiff’s own claims and are certainly not
“essential” to prove he suffered some illegal conduct but here, plaintiff goes even
further than merely seeking the facts claimed to be essential by specifically seeking all
documents relating to the other managers’ compensation and discipline. Even if the
other managers’ compensation and discipline were “directly relevant” and “essential” to
plaintiff’s claims, plaintiff cannot show that these requests are “narrowly tailored” to
seeking only the “essential” information or that there is no “less intrusive means” by
which plaintiff may be able to obtain this evidence. In other words, even if plaintiff
could justify discovery of the facts relating to other managers’ compensation and
discipline, plaintiff has not and cannot justify his demand for the production of “all
documents” which relate to the other managers’ compensation and discipline. For
these reasons, the Court holds that plaintiff has failed to show that his proposed
invasion of privacy via these broad document requests can pass constitutional
scrutiny.

Based on the foregoing, the Court must rejects plaintiff’s primary contention that
defendant’s objections to the requests for production are without merit and thus,
declines to overrule the objections asserted. Moreover, the Court agrees with
defendant that plaintiff has failed to set forth specific facts which establish “good
cause” needed to justify the production of the documents sought, as expressly
required by Code of Civil Procedure §2031.310(b)(1). In fact, it appears that plaintiff
nowhere even acknowledges, much less addresses, this statutory requirement in his
moving papers.

Nevertheless, the Court notes that defendant has already agreed to provide to provide
further responses to the requests for production. Therefore, if not yet done, defendant
shall provide as soon as possible but no later than 10/21/2013 the promised further
responses to the document requests. Defendant shall also provide a privilege log for
any documents which are withheld from production on account of any privilege.

Should plaintiff believe that defendant’s further responses are deficient in some
manner, he may file an appropriate motion to compel but only after completing a
reasonable, good faith attempt to meet-and-confer consistent with the standards set
forth in the Townsend decision cited above.

To the extent plaintiff’s motion also seeks to compel the actual production of
documents in response to the eight requests for production, the Court notes that the
moving papers fail to cite Code of Civil Procedure §2031.320(a) which establishes a
party’s right to compel compliance pursuant to Code of Civil Procedure §2031.320(a).
Regardless, any motion to compel compliance pursuant to Code of Civil Procedure
§2031.320(a) is premature since such a motion is appropriate only where a responding
party has actually agreed to produce documents but then fails to permit inspection
consistent with that response. Here, the responding party has not yet agreed to
produce any responsive documents and therefore, the responding party cannot yet be
compelled to comply with its written response.

The Court declines to award monetary sanctions under the circumstances presented
here.

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

2010-00074763-CU-WT

Glenn King vs. HD Supply Co Inc

Nature of Proceeding: Motion to Compel Special Interrogatories (HD Supply)

Filed By: Gerges, Rana R.

*** 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 court rules, only limited oral argument is permitted on law and
motion matters. ***

Plaintiff’s motion to compel defendant HD Supply’s further responses to special
interrogatories, set one, Nos. 7-9 and 16 is GRANTED in part, as follows.

Moving counsel is admonished because the notice of motion does not comply with
Code of Civil Procedure §1010 and CRC Rule 3.1110(a) and does not provide the
correct address for Dept. 54.

Moving counsel is also admonished because the moving papers fail to comply with
CRC Rule 3.1110(b)(3)-(4).

At the outset, the Court must remind both counsel that given the number of motions
such as this which must be addressed on a daily basis, there are simply not enough
judicial resources available to resolve each and every discovery dispute that could
have and should have been resolved informally. This serves to highlight the critical
need for counsel’s legitimate, reasonable and good faith meet-and-confer efforts
before filing any discovery motion. Although it dealt with a motion to compel answers
to deposition questions, the decision of Townsend v. Superior Court (1998) 61
Cal.App.4th 1431 is instructive in that it clarifies that the meet-and-confer process is
not intended to be some perfunctory formality but rather it “requires…a serious effort at
negotiation and informal resolution.” (Id., at 1438.)

Additionally, in light of the foregoing, counsel for the parties are strongly encouraged to
stipulate pursuant to Code of Civil Procedure §638 to the appointment of a discovery
referee who can much more quickly and efficiently respond to the parties’ needs. If the
parties can agree to someone to act as referee, they may submit a stipulation and
proposed order to the Court.

This action arises out of plaintiff’s previous employment with defendant HD Supply
from September 2006 through July 2008. The Second Amended Complaint alleges
claims for discrimination, harassment, retaliation, wrongful termination, negligence,
intentional infliction of emotional distress and defamation. At issue here are four (4) interrogatories, three (3) of which (Nos. 7-9) generally relate
to defendant HD Supply’s “D.C.” (Distribution Center) managers. Specifically, plaintiff
seeks the name, address and telephone number of each and every D.C. manager
employed by defendant since 2001; the dates of employment for each manager in the
last ten (10) years and the reasons for each’s departure; and the “payroll (including
base salary and bonuses)” of each manager who was situated similarly to plaintiff
during his employment. Defendant’s initial responses to these interrogatories
consisted solely of objections including that the interrogatories are overly broad,
unduly burdensome and oppressive, vague and ambiguous, not reasonably calculated
to lead to admissible evidence and invasive of the distribution center managers’ right
to privacy.

Plaintiff insists defendant has failed to establish any privacy right which is implicated
by these interrogatories but regardless, plaintiff has an “urgent need” for this
information because it is “directly relevant” and admissible to determine if plaintiff was
treated differently than others similarly situated. Plaintiff also argues that the other
objections asserted are without merit.

In opposition, defendant maintains that each objection is substantially justified for
several reasons but nevertheless has agreed to provide virtually all of the requested
information with each manager being identified as a “Doe” in order to preserve their
right to privacy.

Plaintiff’s reply insists that defendant’s offer of identifying the managers as “Does”
would deny plaintiff the opportunity to discover “the circumstantial evidence on which
all plaintiffs alleging discrimination and harassment must rely.” (Reply, p.1:15-17.) The
reply also argues that plaintiff will be unable to depose these witnesses who have a
“wealth of relevant knowledge” relating to defendant’s “treatment and discipline of D.C.
managers, which is pertinent to plaintiff’s claim of disparate treatment. (Id., at p.2:5-7,
16-18; p.3:2-6.) Plaintiff contends he must be permitted to examine defendant’s
treatment of similarly situated employees in the years before plaintiff’s own tenure,
including comparing the reasons for terminating the other employees. (Id., at p.3:20-
22; p.4:25-26.)

This Court finds that nearly all of defendant’s asserted objections have substantial
merit given the unreasonably broad scope of interrogatory Nos. 7-9 and the
questionable relevance of the information sought. The privacy objection is particularly
well taken as the Court finds that few inquiries would be more invasive of the other
managers’ privacy rights than their address and telephone number, their reasons for
ending their employment and how much they earned while employed. Additionally, the
ten-plus year timeframe encompassed by the first two interrogatories is unduly
overbroad given that plaintiff’s employment was limited to 2006-2008. Accordingly, the
Court finds that each of the asserted objections is substantially justified.

Nevertheless, as noted above, defendant has already agreed to provide some
additional information in response to each of these three interrogatories. If defendant
has not yet done so, defendant shall provide the promised further responses to
interrogatory Nos. 7-9 as soon as possible but no later than 10/21/2013. Based on the
present record, the Court finds that defendant’s identification of the other managers as
“Does” is reasonable and appropriate in light of the clear privacy concerns raised by
the interrogatories and that plaintiff has here failed to make a showing sufficient to
justify disclosure of additional personal information. Specifically, plaintiff’s attempt to justify this discovery by the need to depose the
various D.C. managers to discover “relevant knowledge” and “circumstantial evidence”
and/or to explore defendant’s treatment, discipline and/or termination of employees
other than plaintiff is patently insufficient to overcome the privacy issues implicated
here. The general rule where privacy rights are involved is that the party seeking
discovery must establish that the information sought is “directly relevant” to the parties’
claims and is “essential” to a fair resolution of the lawsuit. (See, e.g., Alch v. Superior
Court (Time Warner Entertainment Co.) (2008) 165 Cal.App.4th 1412, 1432-1433.)
Additionally, in order to pass constitutional muster, any discovery into matters deemed
private must also be “narrowly tailored” to obtain the “essential” information and the
party seeking the discovery must show there is no less intrusive means to obtain this
information. (See, e.g., Tien v. Superior Court (Tenet Healthcare Corp.) (2006) 139
Cal.App.4th 528, 539-540; In re Marriage of Harris (2004) 34 Cal.4th 210, 244.) Even
where these prerequisites are met, there is no categorical right to conduct discovery
on such private matters as the Court is still required to balance the rights and interests
involved before permitting any invasion of privacy. (See, e.g., Alch, at 1423-1425.)

In this case, plaintiff’s alleged need for mere “relevant knowledge and mere
“circumstantial evidence” relating to plaintiff’s employment claims does not by its own
terms satisfy either the “directly relevant” or “essential” prerequisites set forth above.
In particular, the Court notes that the questions plaintiff has posed about how
defendant may have treated managers other than plaintiff certainly do not qualify as
being “directly relevant” or “essential” to plaintiff’s own claims of disparate treatment.
Such questions appear tenuous at best. Similarly, the reasons defendant may have
disciplined or terminated any of these employees other than plaintiff, before or after
plaintiff’s own tenure, cannot be fairly construed as “directly relevant” or “essential” to
the claims asserted by plaintiff himself. Additionally, plaintiff effectively concedes
these interrogatories are not “narrowly tailored” inasmuch as the reply suggests these
interrogatories could be limited further at least with respect to the time period identified
in each. Finally, plaintiff fails to make any showing whatsoever that there is no “less
intrusive means” by which plaintiff may be able to obtain the evidence sought here.
For instance, while plaintiff apparently desires to depose each of these other
managers, plaintiff fails to demonstrate the facts which he contends are relevant and
which he hopes to discover could not be obtained through other “less intrusive”
discovery requests, such as in the manner which defendant has agreed to provide.
For these reasons, the Court is not persuaded that the invasion of privacy sought by
plaintiff can pass constitutional scrutiny here and thus, the Court will not here compel
further responses to interrogatory Nos. 7-9 beyond that to which defendant has
already agreed.

The last interrogatory at issue here is No. 16, which seeks a “complete and in detail”
description of each and every contract defendant HD Supply has had in the last ten
(10) years with any government entity. Defendant objected, asserting that the
interrogatory is overly broad, unduly burdensome and oppressive, not reasonably
calculated to lead to admissible evidence and invasive of defendant’s proprietary
information and trade secrets.

Although the Court declines to overrule the various objections asserted because each
has some merit, the objections do not justify defendant’s blanket refusal to respond at
all to this question and plaintiff is entitled to at least some information basic sought
here since the existence of a contract with a government entity cannot be fairly considered trade secret or otherwise proprietary information and since the existence of
such contracts would certainly be public information. Thus, defendant shall no later
than 10/21/2013 provide a further response to interrogatory No. 16 by identifying by
name and address each governmental entity with which defendant HD Supply had a
contract in the years 2005 through 2008 and describing in general terms the goods
and/or services which defendant provided. However, defendant need not provide a
“complete and in detail” description of such contracts. Should plaintiff believe the
further response deficient, he may file an appropriate motion to compel after
completing a reasonable, good faith attempt to meet-and-confer consistent with the
standards set forth in Townsend decision cited above.

Finally, the Court rejects defendant’s suggestion that the present motion is moot
because defendant previously agreed to provide further responses to the
interrogatories at issue here. Code of Civil Procedure §1005.5 specifically provides
that a motion is deemed made at the time it is filed and served. Here, plaintiff filed and
served the present motion on 8/29/2013, which was prior to defendant actually serving
its further responses to these interrogatories. Accordingly, this motion is not moot
within the meaning of §1005.5.

The Court declines to award monetary sanctions under the circumstances presented
here.

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