Opinion
No. C 03-3723 TEH (JL).
December 3, 2004
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' DOCUMENT REQUESTS (Docket #s 51 52)
Introduction
Before the court are the parties' Separate Discovery Dispute Statements, filed on November 15 and 23, 2004. All discovery in this case was referred by the district court (Hon. Thelton E. Henderson) as provided by Civil Local Rule 72 and 28 U.S.C. § 636(b). The discovery cut-off is December 17 and the parties are in the midst of depositions. A settlement conference is scheduled for January 5, 2005. Dispositive motions will be heard on or before May 23, 2005 and jury trial is scheduled for July 12, 2005. This Court finds the matter suitable for decision without oral argument as provided by Civil Local Rule 7-6.
Analysis and Order
On October 13, 2004, Plaintiff propounded document production requests on Defendants, seeking any and all documents which reflect, relate or refer to: No. 9 — Any investigation of any allegations of misconduct against Plaintiff Clark Walker during the period from January 1, 1990 to the present.
Plaintiff claims to need the information to show Defendants' retaliation against him. Defendants object that the complaints contain information about third-party complainants who were promised confidentiality, and therefore request a protective order.
This Court finds the documents to be relevant to Plaintiff's cause of action for retaliation, and that the complainants' privacy is adequately ensured by the protective order.
Documents shall be produced, subject to protective order.
No. 10 — Any investigation of any allegations of misconduct against Defendant Keith Richter during the period from January 1, 1998 to the present.
Plaintiff claims to need these documents because they reflect the investigation of his two prior disparate impact employment complaints against Richter, including an investigation into charges underlying this lawsuit. Defendants object that the documents contain names of third party disappointed job applicants and asks the Court, if it finds the documents to be responsive, to order that names and other identifying information be redacted and the documents produced only subject to protective order. Defendants assert the attorney-client privilege and the work product doctrine as barring production of some documents and will provide a privilege log to Plaintiff. Plaintiff strenuously objects to redaction, since these disappointed applicants would be witnesses to Richter's discriminatory actions, and without the identification Plaintiff's counsel would be unable to discover the source of information or test the veracity of witness statements.
Defendants fail to show the harm to the other applicants from having their information disclosed to Plaintiff's counsel only, subject to the attorneys'-eyes-only provision of the protective order. This Court finds the documents to be relevant to the investigation of Plaintiff's two prior disparate impact employment complaints against Richter, including an investigation into charges underlying this lawsuit.
Non-privileged responsive documents shall be produced subject to protective order. Documents for which Defendants assert the attorney-client privilege or the work product doctrine shall be identified on a privilege log as required by the holding in In re Grand Jury Investigation, 974 F.2d 1068, 1070 (9th Cir. 1992), citing Dole v. Milonas, 889 F.2d 885, 888 n. 3, 890 (9th Cir. 1989).
No. 16 — Any investigations of allegations of racial discrimination within the Fire Protection District conducted by Emma Kuevor from 1990 to the present.
Plaintiff contents the FPD does not take seriously complaints of discrimination, does not investigate and provides no remedies and actively discourages victims of discrimination from pursuing their claims. Defendants ask the Court, if it finds these documents should be produced to order production subject to protective order and with identifying information redacted as above. Plaintiff objects for the same reasons.
These documents could lead to the discovery of admissible evidence regarding Plaintiff's Fifth Cause of Action against Defendants, in which he alleges a custom and practice of discrimination.
Documents shall be produced, subject to protective order.
No. 17 — Any investigations of allegations of racial discrimination within the Fire Protection District conducted by the Fire Protection District's Affirmative Action Officer from 1990 to the present.
The parties' positions are the same for this request as for request 16. This Court finds the documents to be relevant and that any privacy issues are obviated by the protective order.
Documents shall be produced, subject to protective order.
No. 18 — Any investigations of allegations of gender discrimination within the Fire Protection District conducted by Emma Kuevor from 1990 to the present.
Plaintiff contends he needs these documents to compare the County's response to those complaints to its investigation of Plaintiff for alleged sexual harassment. In addition, Plaintiff contends that women and minorities are commonly the victims of dual discrimination and Plaintiff contends part of the reason he was discriminated against was that he favored equal employment opportunity for women as well as minorities.
Defendants object that Plaintiff has raised no claim of gender discrimination in this lawsuit. Further, Defendants raise the same objections as in Requests 16 and 17. In addition, Defendants claim that Plaintiff's need for the documents is outweighed by the privacy rights of the subjects of the files.
The Court finds that investigations of gender discrimination could lead to the discovery of admissible evidence regarding Plaintiff's claim of retaliation or of disparate treatment in the County's investigation of the sexual harassment claim made against him. The subjects' privacy rights are protected by the protective order.
Documents shall be produced, subject to protective order.
No. 19 — Any investigations of allegations of gender discrimination within the Fire Protection District conducted by the Fire Protection District's Affirmative Action Officer from 1990 to the present.
The parties make the same contentions as in Request 18. This Court makes the same finding.
Documents shall be produced, subject to protective order.
The Court will re-cap some of the pertinent provisions of the protective order in this case, as they apply to the discovery at issue in this order:
(1) Any documents produced shall remain confidential; therefore, all parties who obtain any part of a personnel file must sign an Agreement to be Bound by Protective Order ("Agreement").
(2) Use of any documents produced shall be limited to Plaintiff's counsel of record, any of counsel's staff, hired experts, and authors or recipients of the documents, who are reasonably necessary to assist counsel to prepare for this litigation. Disclosure to authors or recipients shall not constitute a waiver of confidentiality under any circumstance;
(3) For the purpose of preparing for trial in this action only, Plaintiff's counsel may show Walker any protected documents which refer to or discuss the plaintiff; and
(4) Plaintiff shall not file any protected document in the public record of this action without written permission of Defendants or a court order secured by appropriate notice. Exhibits consisting of protected documents sought to be used in pretrial motions shall be submitted to the Court under seal pursuant to the procedure outlined by local rule 79.5. The parties shall meet and confer to discuss the manner of presenting protected documents to the Court at time of trial and the parties' positions shall be presented to Judge Henderson for decision as to how these documents should be handled at trial as part of the pretrial conference statement indicating what is agreed to and what is in dispute. Protected documents shall be listed by date, bates number, general subject, author and recipient and identified as documents subject to this protective order in the list of exhibits to be provided by the parties to the Court with the pretrial statements.
Compliance is due within five business days of receipt of this order.
IT IS SO ORDERED.