Judge: Armen Tamzarian, Case: BC584994, Date: 2023-01-09 Tentative Ruling

Case Number: BC584994    Hearing Date: January 9, 2023    Dept: 52

Plaintiff Codie Rael’s Motions to Compel Deposition of Danaher Corporation’s Person Most Knowledgeable and Ormco Corporation’s Person Most Knowledgeable

Plaintiff Codie Rael moves to compel the depositions of the persons most knowledgeable regarding statistical data of the employment practices of defendant Ormco Corporation and defendant Danaher Corporation. 

Meet and confer

            Defendants Ormco and Danaher argue plaintiff failed to meet and confer as required before filing this motion.  “A determination of whether an attempt at informal resolution is adequate … involves the exercise of discretion.”  (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)  Plaintiff made an adequate attempt to meet and confer.  Though plaintiff filed these motions shortly after counsel agreed to hold a phone call two days later, plaintiff had to do so to provide timely notice of the motions before available the hearing date.

Matters of examination and requests for documents

            At issue in these motions are the following equivalent matters of examination for both Ormco and Danaher, along with corresponding document requests: (a) “Statistics about the hiring and firing of all employees in California between January 1, 2011 and June 23, 2017,” including various details; (b) the same statistics for employees throughout the United States during that period; (c) the same statistics for employees in California from June 24, 2017 to December 31, 2019; and (d) the same statistics for employees throughout the United States during that period.

Danaher Corporation

            Danaher Corporation contends that evidence about its patterns and practices is not relevant because Danaher has only a tenuous connection to California and the relevant events did not involve Danaher employees.  In the initial trial, however, plaintiff testified, “We were all part of Danaher.  We were all following the same processes.”  (Reply, Ex. 3, 2435:26-27.)  Danaher appraised her performance.  (Reply, Ex. 4, 2253:3-5.)  Witness Mark Valiquette, a “senior director of supply chain” for Sybron Dental Specialties (Reply, Ex. 10, 5102:26-27, 5107:5-14) testified that Danaher is “the parent company” of Sybron (id., 5107:19).  The jury found Danaher liable for over $3,000,000 in damages.  (Reply, Ex. 13.)  Discovery about Danaher is reasonably calculated to lead to admissible evidence. 

            Danaher’s objections on this ground are overruled.

Expert testimony

            Defendants argue that discovery of these statistics improperly calls for expert testimony, not percipient witness testimony.  “[C]ourts regularly have employed statistics to support an inference of intentional discrimination.”  (Everett v. Superior Court (2002) 104 Cal.App.4th 388, 393.)  “All numerical evidence... does not mandate an expert witness.” (Ibid.)  In contrast with, for example, performing a “Z test,” “[a] simple comparison of percentages … does not mandate use of an expert.”  (Id. at pp. 393-394.)  “Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts.  An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts.”  (People v. Sanchez (2016) 63 Cal.4th 665, 676.)

            These deposition notices seek the underlying numbers: how many people were hired and fired, when they were hired and fired, their ages, their supervisors, and so on.  That information is lay testimony by witnesses with personal knowledge of case-specific facts.  It is not expert testimony explaining the significance of those facts.

            Defendants’ objections that the deposition notices call for expert testimony is overruled.        

Geography

            Defendants argue information about employees throughout the United States is not discoverable because plaintiff worked in California only.  Plaintiff, however, presents evidence that decisions about her employment were influenced, at least in part, by high-ranking employees whose duties and influence went throughout the United States.  (Reply, Ex. 10, 5113:12-5116:26, 5118:14-27 [Mark Valiquette]; Reply, Ex. 11 5423:18-5424:3 [Vicki Perry].)  Defendants’ nationwide patterns and practices are discoverable because they may lead to evidence supporting discriminatory intent.

Defendants’ objections on geographic scope are overruled.

Time period

            Finally, defendants argue the matters and document requests regarding employees from June 24, 2017, to December 31, 2019, are overly broad because they extend for years before and after plaintiff’s employment.  Plaintiff’s employment in October 2014.  Discovery of what happened three to five years later is too attenuated to lead to admissible evidence. 

Though such evidence “may be admissible to prove a defendant’s motive or intent even where the conduct occurred outside the plaintiff’s presence and at times other than when the plaintiff was employed” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 871), there are limits.  In Meeks, the evidence was about how the plaintiff’s supervisor treated other employees.  (Id. at p. 872.)  The trial court erred in “instructing the jury to disregard evidence of [the supervisor’s] behavior unless Meeks was ‘party’ to the interaction.”  (Ibid.) 

Plaintiff also relies on the following quote from Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 945: “[T]here is no logical reason to discriminate between prior and subsequent incidents.”  In that case, too, the other incidents were admissible to prove the intent of an individual, not corporations.  Moreover, the other incidents ranged from nine months before to six months after defendant allegedly battered and wrongfully arrested the plaintiff. (Id. at pp. 942-943.)  Here, plaintiff seeks discovery of what corporations did three to five years after she stopped working there.

Defendants’ objections to the matters of examination and document requests about employees from June 24, 2017, to December 31, 2019, are sustained.

Disposition

Plaintiff’s motion to compel the deposition of Ormco Corporation’s person most knowledgeable is denied as to matters of examination Nos. 5 and 6 and document requests Nos. 3 and 4. 

Plaintiff’s motion to compel the deposition of Ormco Corporation’s person most knowledgeable is granted as to matters of examination Nos. 3 and 4 and document requests Nos. 1 and 2.  Defendant Ormco Corporation is ordered to produce its person most knowledgeable on those matters and to produce the requested documents at deposition within 15 days.  

Plaintiff’s motion to compel the deposition of Danaher Corporation’s person most knowledgeable is denied as to matters of examination Nos. 3 and 4 and document requests Nos. 3 and 4. 

Plaintiff’s motion to compel the deposition of Danaher Corporation’s person most knowledgeable is granted as to matters of examination Nos. 1 and 2 and document requests Nos. 1 and 2.  Defendant Danaher Corporation is ordered to produce its person most knowledgeable on those matters and to produce the requested documents at deposition within 15 days.