Opinion
No. C-08-4259 MMC (EMC).
May 14, 2009
Having considered the papers filed by the parties and argument of the parties at the hearing on May 13, 2009, the Court orders as follows.
Plaintiff shall give a video-taped deposition on May 22, 2009 at 9:30 a.m. at the office of the U.S. Attorney at 450 Golden Gate Avenue, San Francisco, CA. She shall also provide full answers to interrogatories on which Defendant has moved. It is not sufficient to refer to files in this case — Defendant is entitled to Plaintiff's position on the evidence. Nor may Plaintiff withhold identities of witnesses known to her. Should she not disclose known witnesses, she may well be precluded from presenting their testimony in this case. As to explaining facts supporting her claims, she must provide in reasonable detail the factual basis of her claims. It is not enough to simply state she is a member of the protected class; that fact alone does not establish a legal claim for e.g. discrimination or harassment.
Defendant shall produce documents related to the Sandler investigation because they are relevant to the alleged conduct of Mr. Holden, and Defendant has not asserted or proven an applicable privilege that prevents their disclosure in discovery in this federal case. While Ms. Sandler may be an attorney, she was retained to do an investigation. There is no showing that she was retained to provide legal advice or was acting at the direction of an attorney providing legal advice. Thus, Davis v. City of Seattle, 2007 WL 4166154 (W.D. Wash. 2007), is inapposite. Nor has Defendant presented any facts making the deliberative process privilege applicable. See McPeek v. Ashcroft, 202 F.R.D. 332 (D.D.C. 2001), thus does not apply. Finally, the Defendant has not presented any clear rule or regulation making this EEO investigation by Ms. Sandler confidential and exempt from federal discovery.
However, Ms. Sandler's deposition shall not be taken absent a specific showing as to what relevant evidence she is likely to provide in addition to that disclosed by the documents ordered produced herein. As to documents related to the investigation of Stanley Stephenson, Defendant has represented that no such documents refer to supervision or lack thereof or make any recommendations in regard thereto. Defendant shall provide a declaration to that effect.
As to Plaintiff's document requests, Defendant shall produce the following documents:
• Req. No. 1 — Documents to the extent they relate to any alleged assault or physical altercation or refer to Ms. Yee specifically.
• Req. No. 2 — All responsive documents.
• Req. No. 3 — Documents to the extent they relate to any alleged assault or physical altercation or refer to Ms. Yee specifically.
• Req. No. 6 — Documents to the extent they pertain to any mental health or emotional problems during 2006 and 2007.
• Req. No. 8 — All responsive documents.
• Req. No. 9 — All responsive documents.
• Req. No. 10 — Documents to the extent they refer to claims of sexual harassment of emotional or mental health problems of Mr. Holden.
• Req. No. 15 — Documents to the extent they refer to Ms. Yee.
• Req. No. 17 — Documents but limited to 2006 and 2007.
Plaintiff's motion to compel responses to all other documents requests is denied. In addition, her motion for sanctions is denied.
This order disposes of Docket Nos. 36 and 37.
IT IS SO ORDERED.