Judge: Gail Killefer, Case: 22STCV06892, Date: 2023-05-01 Tentative Ruling
Case Number: 22STCV06892 Hearing Date: May 1, 2023 Dept: 37
HEARING DATE: May 1, 2023
CASE NUMBER: 22STCV06892
CASE NAME: Eugenio Giordano v. Google,
LLC, et al.
TRIAL DATE: November 28, 2023
PROOF OF SERVICE: OK
MOTION: Motion to Compel Further Responses to
Special Interrogatories, Set One; Requests for Production of Documents, Set
One;
MOVING PARTY: Plaintiff, Eugenio Giordano
OPPOSING PARTIES: Defendants, Google, LLC. and Alphabet,
Inc.
OPPOSITION: April 11, 2023
REPLY: April 17, 2023
TENTATIVE: Plaintiff’s motion is denied. Plaintiff’s motion for
sanctions is denied. Defendants’ request for sanctions is denied. Defendants
are to give notice.
Background
This action arises out of the employment of Eugenio
Giordano, Ph.D. (“Plaintiff”) by Google, LLC. (“Google”), a wholly owned
subsidiary of Alphabet, Inc. (“Alphabet”) (collectively “Defendants”). Defendants
employed Plaintiff as a software engineer. According to the Complaint, shortly
after Plaintiff began his employment with Defendants, Defendants’ Los Angeles
offices were shut down due to the COVID-19 pandemic. In March 2021, Plaintiff’s
supervisor advised Plaintiff of poor work performance and that Plaintiff would
be placed on a Performance Improvement Plan (“PIP”). The Complaint alleges
Plaintiff began to suffer medical impairments and disabilities during his
employment with Defendants.
The Complaint further alleges Plaintiff requested
accommodations from Defendants in April 2021, then was placed on the PIP in
June 2021. In August 2021, Plaintiff ended his PIP without having met the
deadlines, but provided Defendants with alleged medical documentation of his
disabilities, including “very severe obstructive sleep apnea.” Defendants then allegedly
terminated Plaintiff on August 30, 2021.
Plaintiff’s operative Second Amended Complaint (“SAC”) alleges
SEVEN causes of action: (1) failure to provide accommodation in violation of
FEHA, (2) failure to engage in in the interactive process in violation of FEHA,
(3) disability discrimination in violation of FEHA, (4) retaliation in
violation of FEHA, (5) failure to prevent harassment, discrimination, and
retaliation on the basis of disability in violation of FEHA, (6) wrongful
discharge in violation of public policy, and (7) failure to provide timely wage
statements (violation of Labor Code §§ 226).
The following motions to compel further responses from Plaintiff
are now before the court:
1.
Motion to Compel Further Responses to Special
Interrogatories, Set One, requests nos. 2-8, 18 from Google
2.
Motion to Compel Further Responses to Requests
for Production, Set One, requests nos. 79-87 from Google
3.
Motion to Compel Further Responses to Special
Interrogatories, Set One, requests nos. 2-8, 19 from Alphabet
4.
Motion to Compel Further Responses to Requests
for Production, Set One, requests nos. 79-87 from Alphabet
Defendants filed one combined opposition to all motions, and
Plaintiff filed one combined reply.
MOTIONS TO
COMPEL FURTHER RESPONSES
Procedural History
Plaintiff served Request for
Production, Set One, and Special Interrogatories, Set One on Defendants on October
27, 2022. (Declaration of Jeffrey A. Atteberry (“Atteberry Decl.”), ¶ 13, Exhs.
B, C.)
Defendants served responses to these
discovery requests on November 29, 2022. (Atteberry Decl. ¶ 16, Exhs. D-G.)
Meet and Confer Efforts
A motion to compel further
responses “shall be accompanied by a meet and confer
declaration.” (CCP § 2030.300(b)(1).) The declaration
must state facts showing a reasonable and good faith attempt at an informal
resolution of each issue presented in the motion. (CCP §
2016.040.) “[A] reasonable and good faith attempt at informal
resolution entails something more than bickering with [opposing]
counsel…. Rather, the law requires that counsel attempt to talk the
matter over, compare their views, consult, and deliberate.” (Clement
v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)
Atteberry attests that the
parties have been conferring regarding these discovery responses since December
8, 2022 and attended an Informal Discovery Conference (“IDC’) hearing on
February 2, 2023 regarding these issues. (Atteberry Decl. ¶¶18-26.)
The Atteberry Declaration is sufficient for purposes of CCP
§ 2030.300.
Discussion
I.
Legal Authority
On receipt of responses to interrogatories, the propounding
party may move for an order compelling a further response if the propounding
party deems that an objection is without merit or too general or an answer is
evasive or incomplete. (CCP § 2030.300(a)(1)-(3).) The moving party must also include reasons
why further answers should be ordered: legal or factual arguments why the
answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to
justify objections in response to a motion filed to compel further
responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)
On
receipt of responses to requests for production, the propounding party may move
for an order compelling a further response if the propounding party deems that
a statement of compliance is incomplete, a representation of inability to
comply is inadequate, incomplete, or evasive, or an objection in the response is
without merit. (See CCP §§ 2030.310(a)(1)-(3).)
The moving party must also include reasons why further answers should be
ordered: legal or factual arguments why the answers given were incomplete or
nonresponsive, or the objections invalid.
(Cal. Rules of Court, rule 3.1345(c).)
The responding party has the burden to justify objections in response to
a motion filed to compel further responses.
(Fairmont Ins. Co. v. Superior
Court (2000) 22 Cal.4th 245, 255.)
II.
Timeliness
Pursuant to CCP § 2030.300(c), a motion to compel further
responses to interrogatories must be filed within 45 days of service of the
verified response, or on or before any specific later date to which the
demanding party and the responding party have agreed in writing, with
additional time allowed for the manner of service. (CCP §§ 1013(a); 2030.300(c).) The
45-day requirement of CCP § 2030.300(c) is mandatory and jurisdictional in the
sense that it renders the court without authority to rule on a motion to compel
further responses to discovery other than to deny the motion. (Sexton
v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)
Pursuant
to CCP § 2031.310(c), a motion to compel further responses to inspection
demands must be filed within 45 days of service of the verified response, or on
or before any specific later date to which the demanding party and the responding
party have agreed in writing, with additional time allowed for the manner of
service. (CCP §§ 1013(a); 2031.310(c).) The 45-day requirement of CCP § 2031.310(c)
is mandatory and jurisdictional in the sense that it renders the court without
authority to rule on a motion to compel further responses to discovery other
than to deny the motion. (Sexton v. Superior Court (1997) 58
Cal.App.4th 1403, 1410.)
The
parties attended their first IDC hearing and filed a joint IDC proposed Order,
which was granted on November 10, 2022, regarding these discovery issues. The
parties then attended a second IDC hearing on February 2, 2023, and this motion
to compel now comes before the court following these IDC hearings. Thus, Plaintiff’s
motions are timely.
III.
Analysis
Plaintiff
moves to compel a further response to the discovery requests as outlined above from
both Defendants. According to Plaintiff, these requests are “directly aimed at
(1) his claims of being denied reasonable accommodation by being denied
part-time work that he requested, and (2) Defendant’s defenses in terminating
him without considering his medical diagnosis because he failed his PIP.” (Motion,
12.)
Specifically,
Plaintiff contends the requests regarding available part-time positions is
directly related to the availability of accommodations he had requested.
(Motion, 12-13.)
Further,
Plaintiff contends limitations regarding these requests to “part time positions
available within Dr. Giordano’s reporting line from August 30, 2019 to August
30, 2021” is too narrow since “[Plaintiff’s] reporting line is a very limited
subsection of software engineers Defendants employed” whereas Plaintiff “was
qualified and able to work in departments outside of the [department he was
employed in.]” (Motion, 14.)
Also,
Plaintiff contends the requests regarding PIPs are also directly relevant to
the pretextual termination he alleges in the SAC. (Motion, 16-17.) Plaintiff
correctly points out that Defendants’ explanation includes that “Plaintiff had
already unsuccessfully performed under the PIP and the decision to terminate
was already made when Plaintiff emailed Jones about sleep apnea on August 24,
2021.” (Motion, 16.)
“Discovery
based on the outcomes of PIPs at Google is therefore relevant to probing this
asserted defense. [] The requests here seek vital information that goes
directly to whether this defense is pretextual, such as the number of employees
put on PIPs and whether they were fired after passing or failing a PIP. [] If
every employee who was put on a PIP failed it, that would point to evidence
that the PIP was pretextual and that Defendants did not engage in the
interactive process in good faith by ignoring Dr. Giordano’s statements that he
was suffering from medical issues. If employees who were put on PIPs failed
them but were not terminated, that would rebut Defendants’ assertion that they
did not need to consider Dr. Giordano’s medical diagnosis before firing him
because he had already failed the PIP.” (Motion, 16.) (internal citations
omitted)
Lastly,
Plaintiff contends that while Alphabet alleges it did not employ Plaintiff,
“[s]ubstantive
discovery responses from Alphabet are warranted in this case because Dr.
Giordano contends, supported by evidence, that Google and Alphabet were joint
employers. Alphabet has so far resisted discovery on this case and objected in
whole to nearly every request on the basis it was not Dr. Giordano’s employer.
...
Dr. Giordano understands Alphabet’s contention that it does
not have employees and disagrees. Whether Defendants are joint employers is a
matter to be resolved at a later substantive motion stage, not in discovery.
Compelling Alphabet to provide substantive discovery responses is therefore
warranted.” (Motion, 17-18.)
In
opposition, Defendants correctly explain that the discovery requests at issue
“generally fall into the following categories;”
“·
Performance Improvement Plan (“PIP”) information of every Google employee over
approximately the past five (5) years, including: who was placed on a PIP; who
was placed on a PIP and self-identified as having a disability; who was
terminated following a PIP and who was not terminated; and who was terminated
within three (3) months following the conclusion of the PIP, among other
overbroad requests. (Requests for Production of Documents Nos. 79-85; Special
Interrogatories Nos. 2-7.)
·
Information relating to the number of Google employees who identify (or
identified) as disabled over the past five years. (Special Interrogatory No.
2.)
·
Information about other employees’ medical disclosures after failed PIPs.
(Requests for Production of Documents Nos. 86-87; Special Interrogatory No. 8.)
·
Information about every part-time software engineering position available
during the past five years, including job title, duties, hours and number of
positions available, all without any limitation. (Special Interrogatory Nos.
18-19).” (Opp., 2.)
Further,
Defendants correctly explain that “Plaintiff sought all documents relating to
every PIP issued to every Google employee for any reason over the past five
years.” (Opp., 2.) Defendants repeat their arguments from earlier IDCs
regarding the overbroad nature of these requests, both in terms of scope and
definition. (Opp., 3-4.)
“Google
employs nearly two hundred thousand people in the United States. Plaintiff does
not have carte blanche to go digging through their private, confidential
personnel records just because he chose to file a lawsuit against Google. Even construing
the term “employees” to mean “software engineers,” Plaintiff’s requests are
virtually unbounded because, at a company like Google, in its industry, the
phrase “software engineer” applies to a lot of people, including many whose
titles do not specifically state “Software Engineer.”3 Plaintiff has refused to
acknowledge or address any reality-based nuances like this.
Furthermore, a performance improvement plan (“PIP”) is not a
one-size-fits-all process, and Plaintiff does not even attempt to limit the
request to employees with whom he was similarly situated. PIPs are sensitive
personnel records, and Plaintiff should be able to explain why, beyond an
unsupported theory, other employees’ performance deficiencies — for whatever
reason — and improvement plans are relevant to his discrimination claims in
this case. ... Plaintiff claims to be looking for some needle that, according
to him, may or may not exist in a haystack, but (1) he has never identified the
information that the needle represents, (2) he has never served a targeted
discovery request asking for the needle, and (3) instead he has only asked
Defendants to produce a haystack of private information. Anonymizing the
information is not a productive idea, either. Anonymizing would necessarily remove
all context, equate all conduct as being equal, and severely limit the utility
of any such information. Notably, Plaintiff volunteers to anonymize this
information, but does not explain how bare numbers, without any factual
explanations could be even theoretically relevant.
...
Plaintiff’s only justification for his invasive, burdensome
and privacy-implicating requests, are that Plaintiff thinks he might be able to
show pretext if every employee on a PIP failed their plan, or if he was the
only one who failed. Both theories are implausible, however, and fail to
consider that claims of pretext with regard to management decisions involve
evidence relating to the employee’s supervisory staff, not some unidentified
manager in an unidentified and distant position with no connection or tie to
Plaintiff and his reporting line.
Given the particularized and highly-confidential nature of
PIPs, moreover, the records Plaintiff seeks, are not ‘directly relevant’ to his
claims, as required to warrant such a broad intrusion of privacy” (Opp., 4-6
citing Puerto v. Super. Ct., (2008) 158 Cal.App.4th 1242, 1251.)
Defendants
further contend Plaintiff’s discovery requests regarding disability information
are equally overboard as they “do not distinguish between different kinds
of disabilities, different implications or limitations resulting from those
different disabilities, temporary or permanent disabilities, disclosed or
undisclosed disabilities, and, in general, any of the nuance that naturally
comes with the territory.” (Opp., 6.) Defendants assert Plaintiff refuses to
limit these requests to his “personal circumstances” or “his reporting line or
business organization.” (Opp., 6.)
Further,
Defendants contend the discovery requests are not only overbroad but also oppressive
and unduly burdensome, and that these characterizations were explained to
Plaintiff in the parties’ meet and confer correspondence. (Opp., 7-9.) Also,
Defendants correctly assert “[t]here are better ways to approach the issues
Plaintiff wants to explore” as “the information Plaintiff’s discovery
requests target are more readily accessible via deposition questions — a source
far more convenient for the parties, less burdensome, and far less expensive
than requiring Defendants to comb through the records of any individual ever
placed on a PIP in the last five years. The parties have already scheduled six
depositions of the key witnesses...” (Opp., 9-10.) Defendants correctly note
Plaintiff has propounded no less than 20 sets of written discovery requests,
and CCP 2031.310 allows the court broad discretion in allowing for less
burdensome forms of discovery. (Id.)
Lastly, Defendants contend:
“Plaintiff’s attempt to conflate issues regarding the
separate corporate existence of Google, LLC, and Alphabet, Inc., is improper
and seems to be disingenuous. Google is a subsidiary of Alphabet. Plaintiff was
employed by Google. Alphabet has no employees. These facts have been repeatedly
conveyed to Plaintiff and his counsel. Theoretical arguments about joint
employer liability — which the Court aptly observed during the IDC hearing are
specious — are insufficient to require discovery, let alone implicate
subsidiary liability to a parent corporation. Alphabet should not even be in
this case.” (Opp., 10.)
In
reply, Plaintiff contends the requests are only for “data” and that the
requests themselves are not overbroad and narrowly defined. (Reply, 2-5.)
However, while Plaintiff makes conclusory contentions regarding the relevance
of these requests, Defendants’ burden, the burdensome and oppressive nature of
the requests, and alleged lack of privacy concerns here, Plaintiff still fails
to show how such broad, expansive requests do not invade the privacy of other
employees of Defendants and do not create a very burdensome obligation for
document production on Defendants. (Reply, 3-7.)
The
court agrees with Defendants that the discovery requests as propounded are
overly broad, burdensome, and oppressive as currently defined. Plaintiff’s
motion and arguments provide little support as to why alternative, less
burdensome and oppressive means of discovery, namely the already scheduled
depositions, should not mean that further responses are unnecessary here. The
court agrees with Defendants that Plaintiff may avail himself of further narrow
discovery after conducting depositions, and finding relevant and less
burdensome requests for discovery production.
The
court has reviewed Plaintiff’s discovery requests, and Defendants’ responses to
same. Based upon this review, the court finds that no good cause exists to
compel a further response to each request.
For
these reasons, Plaintiff’s Motion to Compel Further Responses to discovery
requests is denied.
Sanctions
Pursuant to
CCP § 2023.030, the court may impose sanctions against anyone “engaging in
conduct that is a misuse of the discovery process.” Specifically, the court may
impose a “monetary sanction ordering that one engaging in the misuse of the
discovery process or any attorney advising that conduct, or both pay the
reasonable expenses, including attorney's fees, incurred by anyone as a result
of that conduct.” (CCP § 2023.030 (a).)
Plaintiff moves for an award of sanctions in the amount of
$3,500 against Defendants and his counsel in connection with the Motion to
Compel Further Responses. (Motion, 18.)
In opposition, Defendants contend that the request for
sanctions must be denied for the following reasons:
“Defendants should not be sanctioned because they have been
nothing but reasonable throughout the meet and confer process and have not
engaged in misuse of the discovery process as Plaintiff suggests. As stated
herein, Defendants have offered numerous compromises to Plaintiff to narrow the
timeframe and scope of the discovery requests which are the subject of this
motion, in order to avoid burdening the Court with unnecessary motion practice.
Plaintiff, however, has rejected Defendants’ offers and has instead filed the
present motion. Defendants’ positions are not unreasonable, either. In fact,
the Court’s order following the IDC hearing on these issues largely agreed with
Defendants’ positions on the scope of Plaintiff’s entitlement to discovery and
on the reasonable limitations for his overbroad or otherwise improper
requests.” (Opp., 11.)
Defendants further request sanctions against Plaintiff of
$14,796 as “Plaintiff’s motion lacks merit and incorrectly accuses Defendants
of abusing the discovery process...” (Opp., 11.)
The court exercises its discretion in finding both parties’
requests for sanctions in connection with each motion unmerited and does not
award either party their respective, requested sanctions.
Conclusion
Plaintiff’s
motion is denied. Plaintiff’s motion for sanctions is denied. Defendants’ request
for sanctions is denied. Defendants are to give notice.