Judge Curtis A. Kin, Case 20STCV10573 2022-09-29 Tentative Ruling

Judge: Curtis A. Kin, Case: 20STCV10573, Date: 2022-09-29 Tentative Ruling

Case Number: 20STCV10573 Hearing Date: September 29, 2022 Dept: 72

MOTION TO COMPEL FURTHER RESPONSES

TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE

Date: 9/29/22 (9:30 AM)

Case: Jane Doe v. California State Senate et al. (21STCV10573)

TENTATIVE RULING:

Plaintiff Jane Doe’s Motion to Compel Further Responses to Request for Production of Documents, Set One is GRANTED CONDITIONALLY.

On September 8, 2022, the Court held an initial hearing on plaintiff’s motion and issued a tentative ruling indicating it would grant the motion, finding that defendants’ assertion of its Seventeenth Additional Defense and related positions in this litigation waived defendants’ asserted privilege as to the discovery at issue. The Court, however, continued the hearing to allow defendants the opportunity to decide whether to modify its litigative position in order to avoid the finding of waiver. (See, e.g., Transamerica Title Ins. Co. v. Superior Court (1987) (188 Cal.App.3d 1047, 1054 [defendant insurer preserved attorney client privilege as to memorandum by insurer’s counsel by stipulating it would not relay on advice of counsel defense]; see also Bittaker v. Woodford (9th Cir. 2003) 331 F.3d 715, 720 [“The court thus gives the holder of the privilege a choice: If you want to litigate this claim, then you must waive your privilege to the extent necessary to giver your opponent a fair opportunity to defendant against it"].) The Court also invited supplemental briefing by the parties as to whether and how defendants may avoid the waiver.

Having reviewed the parties’ supplemental filings, the Court finds that defendants’ proposal is insufficient to avoid waiver and that plaintiff’s proposal seeks far too much.

In their supplemental brief, defendants state that they are willing to file an amended answer striking the avoidable consequences doctrine as an affirmative defense and serve amended discovery responses that are consistent with withdrawal of the avoidable consequences doctrine. (Def. Supp. Brief at 2:13-17.) However, defendants contend that they should be allowed to present evidence to defend against plaintiff’s other causes of action. For example, for the failure to prevent discrimination, harassment, and retaliation cause of action, defendants contend that they should be allowed to present evidence to defend against plaintiff’s claim that the California State Senate did not implement policies to prevent discrimination, harassment, and retaliation or that the Senate did not promptly stop the unlawful employment practices. For plaintiff’s contention that she was constructively discharged, defendants want to be able to argue plaintiff had reasonable options other than resigning; defendants maintain that they contacted plaintiff immediately after her allegations against Senator Bob Archuleta were known but that plaintiff declined the options presented to her to address the allegations.

Defendants’ proposed contentions, whether they are asserted in the Answer, discovery, or at trial, still place the existence and adequacy of the Workplace Conduct Unit (“WCU”) investigation at issue, thereby waiving the attorney-client privilege. “If a defendant employer hopes to prevail by showing that it investigated an employee’s complaint and took action appropriate to the findings of the investigation, then it will have put the adequacy of the investigation directly at issue, and cannot stand on the attorney-client privilege or work product doctrine to preclude a thorough examination of its adequacy.” (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128.) Simply put, defendants cannot rely on evidence of the WCU’s investigation, including plaintiff’s alleged failure to participate in it, if they wish to maintain the privilege. This is true whether defendant’s reliance on evidence of the WCU investigation pertains to plaintiff’s causes of action for harassment or failure to prevent discrimination, harassment, and retaliation, or plaintiff’s contention that she was constructively discharged. In sum, “defendant[s] cannot have it both ways.” (Id.)

While defendants’ proposal is inadequate, plaintiff’s proposal is far too broad, arguing that, in order to avoid waiver, defendants must “agree in writing,” for example, that they will not assert their response to plaintiff’s complaint was “reasonable or adequate” in any fashion or that they will not assert that any “immediate or appropriate action” was taken. (Pl. Supp. Br. at 1.) To avoid waiver, defendants must disavow reliance upon the WCU’s investigation but they need not capitulate entirely that they did not reasonably respond or have other adequate policies and procedures in place unrelated to the WCU’s investigation. Consistent with the overbroad proposal, plaintiff also proffers the misguided suggestion that the Court issue an advisory ruling as to what it would do in the event defendants were to later run afoul of it.

Accordingly, because defendants do not propose to meaningfully alter their position in this litigation to avoid waiver, for the reasons stated in the Court’s tentative ruling issued September 8, 2022 (9/8/22 Minute Order), which the Court hereby adopts and incorporates as if fully set forth herein, plaintiff’s motion is GRANTED, subject to the conditions stated below.

By no later than October 31, 2022, defendant WCU shall serve further responses, without objection, to Request for Production, Set One, Nos. 1-14 and 20 and produce documents listed in the privilege log attached to defense counsel’s declaration as Exhibit D. WCU shall have no obligation to respond further or produce documents if, by October 6, 2022, defendants submit to this Court a stipulation and proposed order thereon: (1) that defendants withdraw their Seventeenth Additional Defense; (2) that, in defending against plaintiff’s claims, defendants will not rely upon or use evidence of the WCU investigation, or otherwise argue or suggest that plaintiff failed to participate in or assist with any such investigation; and (3) that defendants will immediately modify or withdraw any discovery responses inconsistent with the foregoing. Further, if defendants submit such a stipulation that is ordered by this Court, then any finding by this Court that defendants have waived their asserted privilege with respect to the discovery at issue herein will be deemed withdrawn or set aside.

Lastly, although plaintiff has conditionally prevailed on this motion, the request for sanctions is DENIED. Given the complexities of the issues at hand, the Court finds defendants opposed this motion with substantial justification.

MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE

Date: 9/29/22 (9:30 AM)

Case: Jane Doe v. California State Senate et al. (21STCV10573)

TENTATIVE RULING:

Plaintiff Jane Doe’s Motion to Compel Further Responses to Special Interrogatories, Set One is GRANTED IN PART.

Plaintiff Jane Doe moves to compel further responses from defendant Workplace Conduct Unit (“WCU”) to Special Interrogatories, Set One, Nos. 21-41. Defendant Legislative Counsel Bureau opposes the motion on WCU’s behalf.

With respect to Nos. 21-38, which asks WCU to identify the number of complaints that WCU received, accepted for investigation, investigated, or resolved between 2019 and 2021, defendant LCB argues that these interrogatories are not relevant to plaintiff’s claims. Disparate treatment is “intentional discrimination against one or more persons on prohibited grounds.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354.) Here, plaintiff alleges that she was constructively discharged and harassed due to her sex and gender. (FAC ¶¶ 36, 45.) In disparate treatment cases, statistical evidence may be used. (Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 650.) The information sought in these interrogatories may illustrate defendants’ pattern and practice concerning their investigation, or lack thereof, of gender discrimination and harassment complaints. Even if the investigation into plaintiff’s complaint were never completed, the information sought by these interrogatories is still relevant because plaintiff is seeking information concerning how many investigations were never resolved.

Statistical evidence may be insufficient to rebut nondiscriminatory reasons defendants may present for why the investigation into plaintiff’s complaint was never completed. (Id. at 651). Moreover, evidence concerning investigation into complaints made by others must concern factual scenarios that are similar to the situation experienced by plaintiff. (Johnson v. United Cerebral Palsy/Spastic Children's Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 767.) Nevertheless, these concerns matter with respect to the admissibility of such evidence at trial. They do not provide sufficient reason to deny defendant access to statistical evidence during discovery. Plaintiff may be able to use statistical evidence along with direct evidence of discriminatory intent to demonstrate that she was discriminated against or harassed on account of her gender. Accordingly, the objection based on relevance is without merit.

With respect to Nos. 25, 26, 31, 32, 37, and 38, which seek details concerning the investigation of each gender discrimination and harassment claim received, defendant LCB argues that the interrogatories are burdensome because LCB does not categorize the complaints. An “objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (See West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417.) LCB’s declaration in support of the opposition does not discuss how much work would be required to compile the requested information. On the face of the interrogatories, the burden posed is not unreasonable. “[T]here is no rule which holds that proper discovery is limited to interrogatories which may be answered without effort or loss of time.” (Sigerseth v. Superior Court (1972) 23 Cal.App.3d 427, 433.) Accordingly, the objection based on burden is without merit.

With respect to Nos. 21-24, 27-30, and 33-36, defendant LCB contends that these interrogatories infringe on the attorney-client privilege because they seek the reasons why certain complaints have not yet resolved, which may require the disclosure of attorney assessments. Plaintiff, however, seeks the reasons why certain complaints have not yet been resolved in different interrogatories, namely, Nos. 25, 26, 31, 32, 37, 38, and 40.

By statute, the LCB has an attorney-client relationship with each Member of the Legislature, comprised of the Assembly and the Senate. (Gov. Code §§ 9000, 10207.) WCU is a unit within LCB that investigates reports and complaints of workplace misconduct. (Gov. Code § 10249(a).) Communications related to attorney investigations are subject to the attorney-client privilege. (City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1034.) Thus, to the extent that the reason why an investigation has not resolved is contained in LCB communications, the reason is protected by the attorney-client privilege. However, for the reasons explained in the concurrently heard Motion to Compel Further Responses to Request for Production, the Court finds such privilege is waived insofar as defendants continue to assert in this litigation that the WCU’s investigations into claims of workplace harassment or discrimination should protect defendants from liability. As is also explained in the Court’s ruling on that motion, the privilege is preserved (and the communications are accordingly protected) if defendants opt to forego this litigative position in accordance with the Court’s ruling on that motion.

With respect to Nos. 21-24, 27-30, and 33-36, defendant LCB argues that it is not required to break down the categories of complaints, because the complaints are not categorized by type of complaint. (See Reed Decl. ¶ 12, Exhibit 10 [“The LCB does not currently possess analyses of how many complaints were filed under each category, and does not have the

ability to produce that information without manually analyzing each complaint.”].) While plaintiff attempts to cast doubt on this assertion, LCB is entitled to contend that they do not categorize the types of complaint. As the interrogatories are phrased, LCB is obligated to break down the complaints by category only “if categorized by the WCU.” Plaintiff attempts to withdraw this condition from the interrogatory, but the Court is under no obligation to redraft the interrogatories. (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 851.) Accordingly, to the extent that the interrogatories ask for a breakdown by category, no further responses are required.

With respect to Nos. 39-41, these interrogatories ask WCU to identify people who complained about sexual harassment and whose complaints of sexual harassment were investigated. The identities of potential “me too” witnesses are relevant to determine whether defendant has the practice of ignoring or failing to investigate complaints of sexual harassment. (Johnson, 173 Cal.App.4th at 765, quoting Heyne v. Caruso (9th Cir.1995) 69 F.3d 1479 [“‘It is clear that an employer's conduct tending to demonstrate hostility towards a certain group is both relevant and admissible where the employer's general hostility towards that group is the true reason behind firing an employee who is a member of that group’”].) Contact information about witnesses is an essential part of pretrial discovery. (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249-50.)

Privacy concerns generally do not prevent the disclosure of the contact information of witnesses. (Puerto, 158 Cal.App.4th at 1256–57 [“Generally, witnesses are not permitted to decline to participate in civil discovery, even when the information sought from them is personal or private”].) However, for workplace investigations, defendant has a policy of maintaining the confidentiality of the identity of accusers in sexual harassment claims for privacy reasons. (Moores Decl. ¶ 3 & Ex. A at WCU00026.) Accordingly, other individuals complaining of sexual harassment have a privacy interest in protecting their identifying information from disclosure. Plaintiff appears to recognize this interest because plaintiff, who is asserting claims of sexual harassment, is suing under a fictitious name.

However, “the constitutional right to privacy is not absolute. [Citations.] It may be outweighed by supervening concerns. [Citation.]” (Palay v. Superior Court (1993) 18 Cal.App.4th 919, 933.) “When the right to discovery conflicts with a privileged right, the court is required to carefully balance the right of privacy with the need for discovery. [Citations.]” (Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.) Here, both plaintiff’s right to discover the identity of “me too” witnesses and the privacy interest that other complainants of sexual harassment have are addressed with an opt-out notice. “Disclosure of the contact information with an opt-out notice would not appear to unduly compromise either informational privacy or autonomy privacy in light of the opportunity to object to the disclosure, as the court specifically found that there was no evidence of any actual or threatened misuse of the information.” (Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, 562.) Thus, to preserve the privacy rights of the other complainants, before LCB can disclose the name of the aggrieved employees to plaintiff, the parties shall meet and confer concerning the process by which a third-party administrator shall send notice to the other complainants allowing them to opt-out of their name being disclosed to plaintiff.

For the foregoing reasons, the motion is GRANTED IN PART. No later than fifteen (15) days hereof, defendant Legislative Counsel Bureau is ordered to serve further responses, without objection, to Special Interrogatories, Set One, Nos. 21-41, with the following modifications. With respect to Special Interrogatories, Set One, Nos. 21-24, 27-30, and 33-36, LCB is not required to breakdown the complaints by category. With respect to Special Interrogatories, Set One, Nos. 25, 26, 31, 32, 37, 38, and 40, LCB is not required to state the reasons why investigations have not yet resolved if it withdraws its Seventeenth Additional Defense and agrees to forego reliance upon evidence of WCU investigations. With respect to Special Interrogatories, Set One, Nos. 39-41, the parties are ordered to meet and confer concerning the use of a third-party administrator to send notice to other complainants of sexual harassment which allows them them to opt-out of their name being disclosed to plaintiff.

No monetary sanctions are imposed. Based on the privacy and attorney-client privilege concerns, defendant Legislative Counsel Bureau opposed this motion with substantial justification.