McBeath v. Tucson Tamale Company

Filing 84

ORDER that Plaintiff's Motion for a Protective Order that Protects Defendants' Employees from Intimidation and Declares that Plaintiff may have Ex Parte Contact with Them (Doc. 30 ) is DENIED IN PART and GRANTED IN PART. It is further Ord ered that Plaintiff's Motion for a Protective Order to Shield Experts Consulted Informally (Doc 39 ) is GRANTED IN PART and DENIED IN PART. It is further Ordered Defendants' Motion to Quash and for Protective Order Protecting Third Party Koty-Leavitt Insurance Agency from Plaintiff's Subpoena (Doc. 55 ) is DENIED IN PART and GRANTED IN PART. It is further Ordered Plaintiff's Motion to Compel Defendants: (1) to give their consent to Google to produce responsive e-mails; ( 2) to allow Shawn Kaylor to produce responsive e-mails; (3) to destroy employment files obtained from Plaintiff's prior employer; and (4) to narrow subpoena served on Glenn Murphy (Doc. 70 ) is DENIED IN PART and GRANTED IN PART (see attached Order for complete details). Signed by Magistrate Judge Bernardo P Velasco on 7/20/2017.(MFR)

Case 4:16-cv-00462-DCB-BPV Document 84 Filed 07/21/17 Page 1 of 28

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Melissa Martin McBeath,
Plaintiff,

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Tucson Tamale Company, et al.,

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ORDER

v.

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No. CV-16-00462-TUC-DCB (BPV)

Defendants.
___________________________________

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Tucson Tamale Company,

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Counterplaintiff,
v.

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Melissa Martin McBeath, and John/Jane Doe
Martin McBeath, husband and wife,
Counterdefendants.
Pending before the Court are the following discovery-related motions:

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Plaintiff’s two motions seeking protective orders (Docs. 30, 39); (2) Defendant Tucson

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Tamale Company’s Motion to Quash and for Protective Order Protecting Third-Party

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Koty-Leavitt Insurance Agency from Plaintiff’s Subpoena (Doc. 55); and (3) Plaintiff’s

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Motion to Compel (Doc. 70). Although Defendants have requested oral argument, the

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Court, upon consideration of the parties’ extensive briefing of the issues, has determined

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that oral argument is unnecessary to resolve the instant motions. See LRCiv 7.2(f), Local

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Rules of Practice of the U.S. District Court for the District of Arizona (“The Court may

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decide motions without oral argument.”).

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(1)

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I.

Introduction

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On April 15, 2016, Plaintiff filed a pro se1 complaint in Arizona Superior Court

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alleging state law claims against Tucson Tamale Company (“TTC”), Todd and Sherry

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Martin, TTC’s co-founders, and Lisa Martin, who works at TTC.

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McBeath v. Tucson Tamale Company, et. al., No. C20161794 (Arizona Superior Court,

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Pima County April 15, 2016) (“the state action”).2 Plaintiff’s state claims arose from her

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employment at TTC and subsequent termination.

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counterclaims. (May 26, 2016 Answer to Verified Complaint and Counterclaims; June

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13, 2016 Amended Counterclaims filed in the state action).

(See Id.).

See Complaint,

TTC filed several

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While the state litigation was ongoing, Plaintiff filed this pro se action against

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TTC, alleging employment discrimination in violation of the Age Discrimination in

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Employment Act, 29 U.S.C. § 631. (July 11, 2016 Complaint (Doc. 1)). After TTC

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unsuccessfully sought to dismiss this action based upon a theory of claim-splitting (see

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Defendant’s Motion for Judgment on the Pleadings (Doc. 18); Report and

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Recommendation (Doc. 29); Order adopting Report and Recommendation (Doc. 31)), the

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parties agreed that Plaintiff could file a Second Amended Complaint (“SAC”) with this

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Court essentially combining her state and federal claims, and that the state court action

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would be stayed pending resolution of the federal court action.3 (See Plaintiff’s Notice of

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Withdrawal of Motion for Leave to Amend the Complaint (Doc. 43); Plaintiff’s Notice of

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Entry of Order Staying Pima County Superior Court Proceedings (Doc. 50)). Where, as

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here, the plaintiff wishes to amend the complaint after the time period for amendment

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allowed by the rules has passed, and the defendant agrees to the amendment, there is no

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At some point during the state litigation, Plaintiff obtained counsel. (See TTC’s
Opposition to Plaintiff’s (Second) Motion for a Protective Order (Doc. 35) at 4).
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Under Rule 201 of the Federal Rules of Evidence, the Court may take judicial
notice of court filings and other matters of public record. See Reyn’s Pasta Bella, LLC v.
Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006).
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The state court order staying the matter reflects that the state court will apply
principles of res judicata based on “the determinations/resolutions/judgments” in this
action. (Doc. 50 at 3).
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need to obtain court approval. See Fed.R.Civ.P. 15(a)(2). See also, American States Ins.

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Co. v. Dastar Corp., 318 F.3d 881, 888 (9th Cir. 2003) (parties who obtain consent to

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amendment of pleadings need not obtain court approval).

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In her Second Amended Complaint (“SAC”), Plaintiff added the Martins as co-

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defendants and alleges: (Count One) violation of the Age Discrimination in Employment

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Act against TTC; (Count Two) national origin, race and ancestry discrimination against

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TTC; (Count Three) retaliatory discharge against all Defendants; (Count Four) fraud

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against all Defendants; (Count Five) negligent misrepresentation against all defendants;

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(Count Six) failure to pay earned wages against TTC; (Count Seven) breach of

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employment agreement against TTC; and (Count Eight) restitution/unjust enrichment

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against all defendants. (SAC (Doc. 44)).

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TTC has filed the following counter claims: (Count I) breach of contract; (Count

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II) violation of the Arizona Uniform Trade Secrets Act, A.R.S. § 44-401, et seq.; (Count

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III) breach of fiduciary duty; (Count IV) violation of the Stored Communications Act, 18

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U.S.C. §§ 2510, 2711; (Count V) civil conspiracy; and (Count VI) Aiding and Abetting.4

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(Defendants’ Answer to SAC and Counterclaims (Doc. 45)).

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The Court has thoroughly reviewed the parties’ briefs together with the

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voluminous exhibits in support of same that reflect in great detail the factual and

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procedural path of the parties’ discovery efforts and issues.

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II.

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The pending discovery-related motions
A.

Plaintiff’s “Motion for a Protective Order that Protects Defendant’s

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Employees from Intimidation and Declares that Plaintiff may have Ex Parte

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Contact with Them” (Doc. 30) (all capitalization omitted).

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Plaintiff requests a protective order that: (1) will shield TTC’s employees “from

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harassment, intimidation and retaliatory adverse actions for speaking with [her]”5; and (2)

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TTC’s counterclaims alleged here are essentially the same as those alleged in
the state action.
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Plaintiff submits her declaration statement that she is “informed and believe[s]
that TTC has threatened at least one of its employees not to speak with me regarding my
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“declares that she, as a pro se litigant, may have ex parte contact with TTC’s employees.”

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(Doc. 30 at 26). According to Plaintiff, “TTC has threatened [her] with sanctions if she

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contacts TTC’s current and former employees.” (Id.). Although Plaintiff does not

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identify the employees whom she wishes to contact by name, she refers to them as

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“witnesses” who are not “officers”, “directors”, or “managing agents”.

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Plaintiff also requests permission for her attorney, should she retain counsel in the future,

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to speak with current and former TTC employees outside the presence of defense

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counsel. (Id. at 4).

(Id. at 3).

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TTC contests Plaintiff’s motion for a variety of reasons, including that the state

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court denied essentially the same motion.7 TTC goes on to state that defense counsel has

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“met with these general managers for purposes of securing legal advice in connection

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with both the Superior Court Matter and the underlying matter[,]” although TTC has not

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identified the general managers. (Doc. 35 at 10). TTC also asserts that defense counsel

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“has had various communications regarding this case with TTC and each of the

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employees with which McBeath seeks to communicate.” (Id. at 11). TTC has offered “to

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allow [Plaintiff] to record informal conversations in the presence of [defense] counsel so

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that she could save money taking depositions.” (Id. at 11 and Exh. H). However,

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Plaintiff rejected this offer because she felt defense counsel’s presence would disrupt the

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free flow of conversation. (Id.).

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case.” (Doc. 30 at 8, ¶3).

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Unless otherwise noted, page citations to documents filed with the Court refer to
the page numbers assigned to the document by the Court’s electronic filing system
(“CM/ECF”).
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Plaintiff advanced essentially the same motion in state court. (See Doc. 35 at 6
and Exh. D)). The state court ruled that “plaintiff may not have contact with TTC’s
employees or former employees except through defense counsel.” (Doc. 35, Exh. F (the
state court’s order also reflects that Plaintiff was represented by counsel when the court
entered this ruling)). Although TTC contends that the doctrine of issue preclusion bars
relitigation of this issue (see Doc. 35 at 6-7), that is not the case in light of the fact that
the state action has not “ended with a final judgment on the merits” which is required for
issue preclusion to apply. See Reyn’s Pasta Bella, LLC, 442 F.3d at 746 (citation
omitted). Additionally, TTC’s request that the court abstain from ruling on the motion in
light of then on-going state litigation (see Doc. 35 at 7-8) is moot given that the state
court litigation is now stayed pending resolution of this action.
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Plaintiff frames her request as a motion for a protective order. Under Rule 26(c)

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of the Federal Rules of Civil Procedure, in pertinent part: “A party or any person from

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whom discovery is sought may move for a protective order in the court where the action

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is pending. . . . The court may, for good cause, issue an order to protect a party or person

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from annoyance, embarrassment, oppression, or undue burden or expense . . . .”

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Fed.R.Civ.P. 26(c)(1).

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particular [item] it seeks to protect, of showing that specific prejudice or harm will result

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if no protective order is granted.” Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122,

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1130 (9th Cir. 2003) (citation omitted); see also Beckman Indus., Inc. v. Int’l Ins. Co.,

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966 F.2d 470, 476 (9th Cir. 1992) (“[B]road allegations of harm, unsubstantiated by

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specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.”) (internal

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quotation marks and citation omitted). The district court should “identify and discuss the

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factors it considered in its ‘good cause’ examination to allow appellate review of the

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exercise of its discretion.” Foltz, 331 F.3d at 1130 (citation omitted).

“A party asserting good cause bears the burden, for each

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Here, Plaintiff is not subject to a discovery request. Instead, she is the party

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desiring to question others. Consequently, Plaintiff has not shown that she is entitled to a

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protective order. To some extent, TTC’s response may be construed as a request for a

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protective order in that TTC seeks to prevent Plaintiff from speaking to “general

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managers and employees.” (Doc. 35 at 9-11). Although TTC indicates that defense

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counsel “has had various communications regarding this case with . . . each of the

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employees” Plaintiff wishes to interview (Id. at 11), TTC has not suggested that the

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present and former non-managerial employees play any role other than as potential

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percipient witnesses.

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The Arizona Rules of Professional Conduct “apply to attorneys admitted or

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otherwise authorized to practice before the United States District Court for the District of

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Arizona.” LRCiv. 83.2(e). Arizona Rule of Professional Conduct 4.2 (“ER 4.2”)

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provides:
In representing a client, a lawyer shall not communicate about the subject
of the representation with a party the lawyer knows to be represented by

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another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
As the parties have acknowledged (see Doc. 30 at 2-3; Doc. 35 at 6), “[t]he
prohibition is intended to (1) prevent unprincipled attorneys from exploiting the disparity
in legal skills between attorneys and lay people, (2) preserve the integrity of the attorneyclient relationship, (3) help to prevent the inadvertent disclosure of privileged
information, and (4) facilitate settlement.” Lang v. Superior Court, 170 Ariz. 602, 604,
826 P.2d 1228, 1230 (Ariz. Ct. App. 1992). “Where an organization is involved, Rule
4.2 prohibits attorneys from communicating with three groups of individuals: ‘(1) those
having a managerial responsibility on behalf of the organization; (2) any person whose
act or omission in connection with the matter may be imputed to the organization; and (3)
any person whose statement may constitute an admission[8] on the part of the
organization.’” Dream Team Holdings, LLC v. Alacron, 2016 WL 5408318, at *2 (D.
Ariz. Sept. 28, 2016) (quoting Lang 170 Ariz. at 604-05, 826 P.2d at 1230-31).
“Importantly, this ethical obligation is triggered if the statement of the employee ‘might’
be admissible—it need not be demonstrated that the statement is, in fact, admissible.” Id.
(quoting State ex re. Ariz. Dept. of Health Servs. v. Gottsfield, 146 P.3d 574, 577 (Ariz.
Ct. App. 2006)); see also Kaiser v. AT&T, 2002 WL 1362054 (D. Ariz. April 5, 2002)
(restricting ex-parte access to high ranking former employees). After Lang was decided,
the Arizona State Bar issued an ethics opinion recognizing in pertinent part, that whether
the testimony of the current (or former) employee may be detrimental to the employer (or
former employer) is not determinative. State Bar of Arizona Ethics Opinion No. 95-07
(1995).
The “district court ‘has wide latitude in controlling discovery, and its rulings will
not be overturned in absence of a clear abuse of discretion.’” Lane v. Dep't of Interior,
523 F.3d 1128, 1134 (9th Cir. 2008) (quoting White v. City of San Diego, 605 F.2d 455,

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Rule 801(d)(2)(D) of the Federal Rules of Evidence exempts from the hearsay
rules statements “made by the party’s agent or employee on a matter within the scope of
that relationship and while it existed[.]”
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461 (9th Cir.1979)); see also Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988)

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(same). Although the parties have presented no Arizona authority to support the

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contention that Plaintiff, who is unrepresented, is bound by the ethical rules that govern

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attorneys, the policy reasons advanced by the promulgation of ER 4.2 support extension

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of the parameters of the Rule to this case.

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In light of the applicable authority discussed supra, Plaintiff shall not be permitted

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to speak to TTC’s current and former general managers outside the presence of defense

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counsel. Plaintiff may speak outside the presence of defense counsel to other TTC

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former and current employees who are not or were not employed in a managerial or

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supervisory capacity; however, to do so, Plaintiff or any investigative representative must

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inform the employee or former employee at the beginning of any contact:

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(1)

of Plaintiff’s reason for seeking the interview;

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(2)

the right of the employee or former employee to refuse the interview as

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there is no legal obligation to consent to the informal interview; and

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(3)

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choice present during the interview.

the right of the employee or former employee to have counsel of his or her

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Plaintiff is advised that should she fail to abide by this Order, Defendants may file an

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appropriate motion requesting to preclude such testimony and/or other information

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gained from the communication and may request any other sanctions they deem are in

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order.

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Plaintiff’s request for permission for future counsel she may retain to speak ex

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parte with TTC employees is denied as premature. Plaintiff’s request to protect any

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employees who choose to speak with her from intimidation by Defendants does not

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appear to fall within the realm of a protective order. Moreover, even if it did, Plaintiff’s

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declaration (see Doc. 30 at 8) fails to provide a sufficient evidentiary basis as to why such

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protection would be required.

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B.

Plaintiff’s Motion for a Protective Order to Shield Experts Consulted

Informally (Doc. 39)

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Plaintiff requests that the Court order TTC: (1) to cease all efforts to identify any

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experts she has or is consulting informally; (2) cease all efforts to discover the nature and

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content of the advice/services provided by these experts; and (3) neither mention nor

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comment on individuals in court filings whom Plaintiff has indicated she has consulted or

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may be consulting informally. (Doc. 39 at 2).

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Plaintiff’s motion concerns Francisco Marquez and Ehud Gavron, and it appears

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that TTC has issued at least one subpoena duces tecum directed to Gavron. (See Doc. 48,

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Exhs. 12, 13).

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TTC’s theory is that Plaintiff disclosed to Gavron and Marquez “TTC’s protected

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information in violation of her employment duties and contractual obligations.”

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(Defendants’ Opposition to Plaintiff’s Motion for a Protective Order to Shield Experts

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Informally Consulted (Doc. 48 at 2)). TTC references both men in its First Supplemental

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Disclosure Statement filed with this Court. (See Doc. 48, Exh. 4 at ¶¶7, 8). According to

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TTC:

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Mr. Marquez is a disbarred California attorney who, upon information and
belief, is providing legal services and advice to McBeath without a license,
coordinated with McBeath before the lawsuit to obtain relevant information
to build a case against TTC, is in possession of protected confidential
information belonging to TTC that McBeath provided to him without
authorization, and who is aware of the facts and legal theories raised in
Plaintiff’s Complaint. He is expected to testify regarding his knowledge of
the subject lawsuit, the facts and circumstances surrounding the events that
occurred before the filing of this lawsuit, TTC’s confidential information
obtained in his possession, actions taken by him in collaboration with
Plaintiff, any communications with Plaintiff or Defendant, or any witnesses
with knowledge of the disputed facts. . . . Mr. Marquez may provide
foundation for the admission of evidence, as necessary.
(Id. at 7) (emphasis omitted).
TTC identifies Gavron as “a friend of the Plaintiff and one of the individuals [sic]
McBeath disclosed TTC’s confidential information.” (Id at ¶8). TTC anticipates that
Gavron will provide testimony along the same lines as TTC expects from Marquez. (Id.).
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According to TTC, over the course of Plaintiff’s employment at TTC, Plaintiff sent

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Gavron over 100 e-mails. (Doc. 48 at 4). Further according to TTC, Plaintiff violated

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her confidentiality agreement when she sent Gavron information to access TTC’s Revel

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Point of Sale system where TTC stores its business operational data.” (Id. at 5 (citing

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Doc. 48, Exh. 6 (October 21, 2015 e-mail from Plaintiff to Gavron))). Defendants also

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assert that Plaintiff sought advice from Gavron to circumvent mandatory liquor license

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training, one of her alleged improper acts forming the basis of Defendants’ affirmative

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defense based on after-acquired evidence of wrongful acts. (Id. at 6 (citing Doc. 48, Exh.

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8 (Aug. 12 2015 e-mail from Plaintiff to Gavron))). According to Defendants, when

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Plaintiff sent these e-mails, the factual basis supporting her claim of wrongful termination

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had not occurred. (Id.).

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Plaintiff has not disclosed either Gavron or Marquez as experts whom she intends

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to call to testify at trial. (See Plaintiff’s Reply (Doc. 58 at 4, 7)). Gavron has stated that

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he is Plaintiff’s friend and assists her in her lawsuit as her friend. (Doc. 48, Ex. 9). In

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addition to providing “generic legal information…direct[ing] [Plaintiff] to resources

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where she may find more information, . . .” Gavron, who has worked as a “computer

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expert”, is a providing free assistance to Plaintiff “as a computer technology consulting

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expert.” (Id. (Letter written sometime between October 14, 2016 and November 4,

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2016)). He does not expect to testify at trial. (Id.; see id. (Gavron also helps Plaintiff by

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proofreading documents for accurate grammar, spelling, and punctuation)). According to

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Defendants, Plaintiff claimed in state court that Gavron was acting as a consultant

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regarding TTC’s counterclaims arising under the Stored Communication Act (“SCA”).

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(Doc. 48 at 8).

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Plaintiff does not dispute that TTC may discover Gavron’s “personal knowledge

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of any material facts at issue in this case that predate his retention as an expert[,]”

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although she fails to identify the date and circumstances of his retention. (Doc. 58 at 2).

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Additionally, Defendants are clear that they “do not seek information relating to the

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narrow scope of [Gavron’s] purported expertise. . . . Defendants do not seek discovery on

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any such after-the-fact-, narrowly-construed consultation and advice [re the SCA].

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Defendants do, however, seek discovery on all other aspects of interaction between

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Gavron and McBeath, including her underlying conduct, in which Gavron participated,

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violative of the SCA including, without limit, her dissemination and disclosure of TTC’s

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legally and contractually protected information to various third-parties not authorized to

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receive said information.” (Doc. 48 at 8).

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Rule 26(b)(4)(D) of the Federal Rules of Civil Procedure governs disclosures from
experts who are employed for trial preparation but are not expected to testify:
Ordinarily, a party may not, by interrogatories or deposition, discover facts
known or opinions held by an expert who has been retained or specially
employed by another party in anticipation of litigation or to prepare for trial
and who is not expected to be called as a witness at trial. But a party may
do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the same
subject by other means.

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In pertinent part, the advisory committee notes to the rule reflect that:
It should be noted that the subdivision does not address itself to the expert
whose information was not acquired in preparation for trial but rather
because he was an actor or viewer with respect to transactions or
occurrences that are part of the subject matter of the lawsuit. Such an expert
should be treated as an ordinary witness.

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Fed.R.Civ.P. 26(b)(4)(D) advisory committee’s note to 1970 amendment.

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Rule 26(b)(4)(D) “‘creates a safe harbor whereby facts and opinions of non[-]

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testifying, consulting experts are shielded from discovery, except upon a showing of

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exceptional circumstances.’” U.S. Inspection Servs., Inc. v. NL Engineered Solutions,

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LLC, 268 F.R.D. 614, 617 (N.D. Cal. 2010) (quoting Plymovent Corp. v. Air Tech.

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Solutions, Inc., 243 F.R.D. 139, 143 (D. N.J. 2007)). Plaintiff, as the party asserting the

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protection of Rule 26(b)(4)(D), “bears the initial burden of showing that the protection

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applies.” Id. Once Plaintiff has met that burden, Defendants “carr[y] a heavy burden of

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proving the existence of exceptional circumstances.” Id. Courts may find exceptional

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circumstances to justify discovery under Rule 26(b)(4)(D) when it is impracticable for the

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party seeking discovery to obtain facts or opinions on the same subject by any other

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means; the object or condition at issue is destroyed or has deteriorated after the non-

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testifying expert observed it but before the moving party’s expert has an opportunity to

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observe it; or when it is possible to replicate the non-testifying expert’s discovery, but the

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costs would be judicially prohibitive. See Id.; Higher One, Inc. v. Touchnet Information

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Sys., 298 F.R.D. 82 86-87 (W.D.N.Y. Feb. 24, 2014).

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According to Plaintiff, Rule 26(b)(4)(D) prevents TTC from inquiring “into the

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nature and scope of the services Gavron is providing as a non-testifying expert helping

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McBeath prepare for trial.

Rule 26(b)(4)(d) shields the disclosure of specified

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information about non-witness experts retained or employed in anticipation of litigation

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or preparation for trial.” (Doc. 58 at 3). Although Plaintiff goes on to argue that the Rule

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also precludes discovery directed at experts who are “informally consulted in preparation

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for trial, but not retained or specially employed[]” (id.) (citation omitted), Plaintiff has

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not suggested that Gavron or Marquez fall within that category.

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Factors for consideration when determining the status of an expert can include:

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(1) the manner in which the consultation was initiated; (2) the nature, type and extent of

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information or material provided to, or determined by, the expert in connection with his

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review; (3) the duration and intensity of the consultative relationship; (4) the terms of the

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consultation, if any (e.g., payment, confidentiality of test data or opinions, etc.); and (5)

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any other relevant factors. See e.g. Ager v. Jane C. Stormont Hosp. and Training Sch. for

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Nurses, 622 F.2d 496, 501 (10th Cir. 1980). Plaintiff is clear that she has retained

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Gavron. (See Doc. 58 at 3; see also Doc. 48, Exh. 9 (Gavron states that he is assisting

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Plaintiff as a computer technology expert “pro bono”)). Plaintiff provides this Court with

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little information about the scope of Gavron’s consultation. The record supports the

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conclusion that this is an ongoing relationship. The record also supports the conclusion

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that Gavron’s claimed expertise is sought with regard to Defendants’ counterclaim

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alleging violation of the SCA. (See Doc. 48 at 8 and Exh. 13 at internal page 4 (Doc. 48-

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1 at 58) (parties’ agreement regarding Gavron’s disclosures referenced counterclaim

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involving the SCA)).

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As to Defendants’ claim that a misdirected e-mail that Gavron intended for

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Plaintiff and Marquez in June 2016 but sent to TTC9 waived any privilege, Defendants

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have the burden of establishing waiver. U.S. Inspection Servs., Inc, 268 F.R.D. at 617-

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18.

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reasoned that waiver does not apply to Rule 26(b)(4)(B)[10] because it is rooted in the

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fairness doctrine and is not a species of work product.” Id. at 625 (citing Vangaurd

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Savings & Loan Ass’n., 1995 WL 71293, at *2; Ludwig v. Pilkington N. Amer. Inc., 2003

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WL 22242224, at *3 (N.D. Ill. Sept. 29, 2003); see also Fed.R.Civ.P. 26 advisory

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committee’s note to 1970 amendment (the drafters “reject[ed] as ill-considered the

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decisions which have sought to bring expert information within the work-product

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doctrine” and instead “adopt[ed] a form of the more recently developed doctrine of

14

‘unfairness.’”). In any event, there is simply no basis on which to conclude that the

15

message conveyed in the e-mail had any relation to Gavron’s claimed expertise on

16

computer technology issues related to the SCA claim. Instead, the e-mail, at best,

17

consisted of communication about coordinating efforts to edit documents and track

18

litigation-related deadlines, all of which do not appear to have anything to do with

Defendants’ reliance on waiver is questionable given that “some courts have

19
20
21
22
23
24
25
26
27
28

9

reads:

The June 27, 2016 misdirected e-mail from Gavron to Marquez and Plaintiff

6/13 we received the RFAs but not the UIs. Calendar spreadsheet
shows UIs.
I don’t want to “edit this out from under you” so please advise if in
the future if we see something like this to correct it or TELL YOU so you
can correct it.
Also, they are late. All inters due 6/24 and there’s no way they
snail-mailed them [because to effect Rule 4 service they’d have to
Certified/Registered return-receipt…and that obviates the agreement to
electronic service]
(Doc. 48, Exh. 10). Plaintiff has requested defense counsel to destroy the e-mail. (See
Doc. 58 at 6-7).
10

The Rule was later renumbered to 26(b)(4)(D). See Fed.R.Civ.P. 26 advisory
committee’s note to 2010 amendment.
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1

Gavron’s opinions relating to the SCA claim. See e.g. U.S. Inspection Servs, Inc. 268

2

F.R.D. at 625 (collecting cases declining to extend waiver to undisclosed portions of a

3

non-testifying expert’s reports and to all other documents involving the same subject

4

matter). The Court declines to find a waiver in this circumstance. Likewise, for these

5

same reasons, Plaintiff has failed to establish any reason why fairness or issues of

6

privilege would require that the document be stricken from the record as Plaintiff

7

requests.

8

While it is debatable whether on the instant record Plaintiff has carried her burden

9

in the first instance to show that Gavron falls within the protection of Rule 26(B)(4)(D),

10

Defendants make clear that they do not seek to discover facts known or opinions held by

11

Gavron with regard to the SCA counterclaim. (Doc. 48 at 8). That counterclaim was

12

filed in state court in May 2016. Defendants have provided substantiated reasons,

13

including e-mail exchanges between Plaintiff and Gavron occurring during Plaintiff’s

14

employment, supporting the conclusion that Gavron may have discoverable information

15

relating to this action.

16

concerning matters that pre-date his retention by the opposing party, ‘like an ordinary

17

witness,’ subject to the relevancy requirements and any privileges that may apply.”

18

Higher One Inc. 298 F.R.D. at 87 (citing Millsaps v. Aluminum Co. of Amer., MDL No.

19

875, EDPA Civil No. 10-84924, 2012 WL 203458 at *2 (E.D.Pa. Jan. 24, 2012)). The

20

record reflects that in the state case, Plaintiff agreed to permit Gavron to make

21

disclosures of information “throughout the entire relevant period both before and after the

22

filing of the [SCA] claims[,]” subject to the ability to withhold privileged information

23

reflected in a privilege log. (Doc. 48, Exh. 13 at internal page 4 (Doc. 48-1 at 58)).

24

Defendants have represented to this Court that they do not seek facts known or opinions

25

held by from Gavron in anticipation of litigation of the SCA claim.

Discovery may be obtained from “a non-testifying expert

26

Accordingly, Plaintiff’s Motion with regard to Gavron is granted in part and

27

denied in part. The motion is granted to the extent that Defendants may not seek

28

discovery from Gavron related to facts known or opinions held by him with regard to the

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1

SCA claim after May 26, 2016.11 If Plaintiff believes that Defendants have treaded into

2

an area in which she claims a privilege exists with regard to the SCA claim, Plaintiff and

3

Gavron shall withhold the information Plaintiff contends is protected and Plaintiff shall

4

provide a privilege log. The Motion is denied in all other respects.

5

With regard to Marquez, the record reflects that he is not a licensed attorney and,

6

therefore, the attorney-client privilege does not apply. As Defendants point out, at best,

7

Marquez is a legal document preparer to whom the attorney-client privilege does not

8

apply. (Doc. 48 at 10 (citing A.R.S. §7-208)). Plaintiff has provided no basis on which

9

to believe Marquez is acting as an expert with regard to any matter in this case. Because

10

Plaintiff has failed to establish that Marquez qualifies for the protections of Rule

11

26(b)(4)(D), Plaintiff’s motion is denied in its entirety with regard to Marquez.

12

Plaintiff also argues that Defendants should not be permitted to refer to Marquez

13

or Gavron by name in court filings. Because not all of Gavron’s participation in this

14

action is as a non-testifying expert witness and because Marquez does not fall under the

15

Rule’s protection at all, the request is denied. Moreover, even if the Rule applied, it is

16

unlikely that such relief would be permissible in light of Ninth Circuit authority that Rule

17

26(b)(4)(D) “does not prevent disclosure of the identity of a nontestifying expert, but

18

only ‘facts known or opinions held’ by such an expert.” Ibrahim v. Dep’t of Homeland

19

Sec., 669 F.3d 983, 999 (9th Cir. 2012). Cf. Wreal LLC v. Amazon.com, Inc., 2014 WL

20

12160650, at *4 (S.D. Fla. Nov. 14, 2014) (“Not only have several courts concluded that

21

the identity of a non-testifying expert is not automatically off limits, but a very recent

22

article in the ABA’s Litigation News, entitled ‘Your Opponent Can Discover Your

23

Experts’ noted the case law permitting the discovery . . . .”).

24
25
26

C.

Defendants’ Motion to Quash and for Protective Order Protecting

Third Party Koty-Leavitt Insurance Agency from Plaintiff’s Subpoena (Doc. 55)
Defendants seek to quash Plaintiff’s subpoena directed to TTC’s insurance broker

27
28

11

The disclosure ordered here shall include Gavron’s disclosure made pursuant to
the state court’s August 15, 2016 Order. (See Doc. 48, Exh. 13).
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1

Koty-Leavitt Insurance Agency (“Koty-Leavitt”). The briefs and accompanying exhibits

2

reflect in great detail the parties’ attempts to resolve this dispute informally.

3

Under Rule 45(d)(3), a party may move to quash or modify a subpoena if, among

4

other things, it requires the disclosure of “privileged or other protected matter, if no

5

exception or waiver applies[]” or “subjects a person to undue burden.” Fed.R.Civ.P.

6

45(d)(3)(A)(iii),(iv). “A party has standing to challenge a subpoena served on another

7

entity only if the party can show it has a personal right or privilege regarding the subject

8

matter of the subpoena.” Blotzer v. L-3 Communications Corp., 287 F.R.D. 507, 509 (D.

9

Ariz. 2012) (citing Delta Mechanical, Inc. v. Garden City Group, Inc., 2010 WL

10

2609057, at *2 (D. Ariz. 2010) (third party had standing to object based on attorney-

11

client and work-product privileges)). Discovery may be denied or narrowly tailored to

12

balance the needs of the case against a party’s reasonable expectations of privacy. RQ

13

Construction, Inc. v. Ecolite Concrete U.S.A., 2010 WL 3069198, at *1 (S.D. Cal. Aug.

14

4, 2010).

15

Defendants contend that Plaintiff seeks irrelevant information and privileged

16

communications, and that her request is overbroad. As to relevance, Defendants stress

17

that Defendants’ liability insurance is not relevant to any of the claims at issue. Rule

18

26(a)(1)(A)(iv) requires initial disclosure only regarding “any insurance agreement under

19

which an insurance business may be liable to satisfy all or part of a possible judgment in

20

the action or to indemnify or reimburse for payments made to satisfy the judgment.”

21

Affirmative obligations to disclose insurance coverage serve the purpose of providing

22

each party the opportunity to make a realistic appraisal of the case so that settlement and

23

litigation are based on knowledge, not speculation.

24

committee’s notes to 1970 amendment to subd.(b)(2). Defendants represent that their

25

disclosure in the state action included “a copy of their employment practices liability

26

insurance policy.” (Doc. 55 at 3).

See Fed.R.Civ.P. 26, advisory

27

The record reflects that Defendants discussed the subpoena with Plaintiff and that

28

Plaintiff “agreed to a reasonable mechanism to alleviate Defendants’ concerns and avoid

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1

motion practice.”

2

agreement, adding that TTC would “cover your costs” and that she would pick up the

3

documents from Koty-Leavitt on March 30, 2017 –two points not discussed and/or

4

agreed upon by defense counsel. (Id.; Doc. 55, Exhs. 10, 11)). Also, at some point, due

5

to the volume of documents, Plaintiff agreed to narrow request number 4 to TTC’s

6

employment practices liability policy, and Koty-Leavitt apparently produced the

7

documents to defense counsel. (Doc. 55 at 5 (citing Doc. 55, Exh. 12)). On March 29,

8

2017, defense counsel informed Plaintiff that although efforts were underway to locate

9

the documents, they had not agreed to a March 30th deadline and that more time was

10

required. (Doc. 55, Exh. 12). Plaintiff allowed one additional day for defense counsel’s

11

privilege review. (Doc. 55, Exh. 13). Defendants then filed the instant motion.

(Doc. 55 at 4).

Plaintiff then notified Koty-Leavitt about the

12

Plaintiff argues that defense counsel should not be able to renege on their

13

agreement just because she did not agree to an additional five calendar days for him to

14

“conduct a simple privilege review of the documents.”

15

Defendant’s Motion to Quash Subpoena Served on Koty-Leavitt Insurance Agency, Inc.,

16

and for a Protective Order (Doc. 59 at 7)). She urges the Court to enforce the mechanism

17

they agreed upon: defense counsel can review the documents and provide a privilege log

18

of the documents he wishes to omit from production. (Id.). Plaintiff stresses that she is

19

not seeking documents that related to Defendants’ insurance decisions, “but rather that

20

are relevant to her employment claims and are therefore otherwise discoverable under the

21

federal discovery rules.” (Id. at 8).

(Plaintiff’s Opposition to

22

Because the subpoena potentially seeks privileged materials as outlined by

23

Defendants, Defendants have standing to object. See Blotzer, 287 F.R.D. at 509. The

24

record reflects that the parties initially reached an agreement as to disclosure. Plaintiff

25

then informed Koty-Leavitt of additional terms to which defense counsel did not agree.

26

It also appears that Plaintiff refused to allow defense counsel adequate time to review the

27

documents. While the Court acknowledges defense counsel’s frustration with Plaintiff’s

28

conduct and her apparent lack of awareness or appreciation of practice demands on

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1

defense counsel’s time including that required to conduct the necessary privilege review,

2

the Court declines at this point to sanction Plaintiff by excusing Defendants from

3

complying with the previously agreed-upon mechanism for disclosure.

4

Motion is denied to the extent that Plaintiff’s agreement to limit the scope of Request

5

Number 4 shall remain in effect and Defendant shall be required to comply with the

6

mechanism set out for disclosure in Plaintiff’s March 23, 2017 Letter at Doc. 55, Exh. 9

7

(Doc. 55-1 at 47). Defendants shall have 60 days to comply with this Order. The motion

8

is granted in that the subpoena is quashed to the extent that Plaintiff seeks information

9

that the parties previously agreed would not be disclosed. Nonetheless, the Court is

10

greatly concerned by Plaintiff’s communication to Koty-Leavitt of additional terms to

11

those agreed upon by defense counsel, as well as her failure to provide defense counsel

12

reasonable time to respond to her proposed terms for informal resolution of discovery

13

issues. (See Doc. 55 at 5). Plaintiff is advised that any similar conduct in the future will

14

likely result in sanctions.

15

D.

Defendants’

Plaintiff’s Motion to Compel Defendants: (1) to give their consent to

16

Google to produce responsive e-mails; (2) to allow Shawn Kaylor to produce

17

responsive e-mails; (3) to destroy documents obtained from Plaintiff’s prior

18

employer; and (4) to narrow subpoena served on Glenn Murphy (Doc. 70)

19

1.

Google Subpoena

20

Plaintiff requests that the Court compel the Martins to consent to allow Google to

21

conduct limited searches of their TTC e-mail accounts. (Doc. 70 at 2-3). The consent

22

forms prepared for the Martins’ signatures authorizes Google to release to defense

23

counsel “all e-mails I sent from, and all e-mails I received into, my Gmail account that

24

are responsive to the attached subpoena duces tecum issued by my attorney to Google,

25

Inc.” (Doc. 70, Exh. D). Plaintiff’s proposed subpoena is for e-mail accounts belonging

26

to Todd, Sherry and Lisa Martin at TTC, including where each address appears in the

27

“to”, “from”, “cc” or “bcc” fields. (Id.) The proposed search includes: all e-mails where

28

any of the Martins’ e-mail addresses appear in the “from”, “to”, “cc” and “bcc” fields that

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1

mention that mention variations of Plaintiff’s name and were sent from January 1, 2015

2

to April 12, 2016; and would include e-mails deleted by the user and any attached

3

documents. (Id.). The subpoena directs Google to provide the e-mails as separate

4

mbox12 files to defense counsel and the corresponding user.13 (Id.). Plaintiff contests

5

Defendants’ standing to object to the subpoena.

6

There is a view that even if the Court could compel Defendants to consent to the

7

disclosure of e-mails, the provider would still only be permitted, but not required, to turn

8

over the contents under the SCA. See e.g. Schweickert v. Hunts Point Ventures, Inc.,

9

2014 WL 6886630, at *13 (W.D. Wash. Dec. 4, 2014) (citing SCA, in addition to other

10

reasons, for quashing subpoenas directed to Apple and Google for e-mails). See also 18

11

U.S.C. § 2702(b)(3) (a provider “may divulge the contents of a communication” with the

12

“lawful consent of the originator or an addressee or intended recipient of such

13

communication . . . .”) (emphasis added). In any event, the Court must limit the extent of

14

discovery if it “can be obtained from some other source that is more convenient . . . .”

15

Fed.R.Civ.P. 26(b)(2)(C)(i). In exercising discretion whether to grant or deny a motion

16

to compel, the Court may limit discovery under Rule 26(b). See Trunk v. City of San

17

Diego, 2007 WL 1110715, at *7 (S.D. Cal. Apr. 2, 2007).

18

representation that they can produce the e-mails in Plaintiff’s requested format (see Doc.

19

71 at 6), it appears that the requested e-mails are best obtained from Defendants in the

20

first instance.

Given Defendants’

21

Accordingly, Plaintiff’s Motion to Compel Defendants to give their consent to

22

Google to produce responsive e-mails is granted in part and denied in part. The Motion

23

is granted to the extent that Defendants are directed to produce the requested e-mails

24

following the search directives set out in Plaintiff’s exhibit A attached to her proposed

25
12

26
27
28

Mbox files contain details and contents of the exported messages. See
https://support.google.com/vault/answer/6099459?hl=en. (last visited on July 20, 2017).
13

The subpoena and consent forms attached to Plaintiff’s Motion (Doc. 70, Exh.
D) moots Defendants’ argument that Plaintiff fails to identify the parameters of the
search she wishes performed. (See Defendant’s Opposition to Plaintiff’s Motion to
Compel (Doc. 71 at 3 n.3)).
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1

subpoena for Google (see Doc. 70, Exh. D (Doc. 70-1 at 24)), subject to privilege review.

2

Defendants shall maintain a privilege log for any documents they claim are privileged.

3

Defendants are granted 60 days to comply with this Order. Plaintiff’s Motion is denied to

4

the extent that she seeks an order compelling the Martin Defendants to consent to Google

5

performing the requested searches.

6

2.

Shawn Kaylor

7

Plaintiff served a subpoena duces tecum on TTC employee Shawn Kaylor

8

requesting documents, including e-mails in their native form exported using mbox, that:

9

(1) relate to communications between Kaylor and Sherry Martin, Lisa Martin, Todd

10

Martin, or Lindsay Welsh that relate to Plaintiff since January 2015; and (2) relate to

11

communications between Kaylor and any third party that does not work with TTC that

12

relate to Plaintiff since January 2015.

13

Defendants’ objection is untimely.

(Doc. 70, Exh. C).

Plaintiff argues that

14

Defendants argue that the e-mails are in the control of TTC, not Kaylor. (Doc. 71

15

at 11). Defendants also assert that there is no issue regarding timeliness of the objection

16

given that TTC did not need to object because Kaylor did not possess private,

17

confidential information outside the scope of employment. (Id.).

18

Under Rule 45, a party who is subject to a subpoena may be directed through the

19

subpoena to, among other things, “produce designated documents, electronically stored

20

information, or tangible things in that person’s possession, custody, or control[.]”14

21

Fed.R.Civ.P. 45(a)(1)(A)(iii). See Charles Alan Wright and Arthur R. Miller, 9A Federal

22

Practice and Procedure15 § 2452 (2008 & Supp.) (“[A] subpoena is necessary to compel

23

someone who is not a party . . . for the production of various material things or electronic

24
14

25
26
27
28

While Rule 45 addresses obtaining documents in the “possession, custody, or
control” of a non-party, Rule 34 addresses obtaining documents in the “possession,
custody, or control” of a party. See Kissinger v. Reporters Committee for Freedom of the
Press, 445 U.S. 136, 164 (1980) (J. Stevens concurring in part and dissenting in part).
The same standard applies to both Rules. Id. (citing Charles Alan Wright and Arthur R.
Miller, 8 Federal Practice and Procedure § 2210 (1970)). Therefore, in discussing this
issue the Court considers cases applying both Rules 34 and 45.
15

Hereinafter referred to as “Federal Practice and Procedure”
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1

information.”). Plaintiff, as the party seeking production of documents, has the burden of

2

proving that Kaylor has possession, custody, or control of the e-mails under the meaning

3

of Rule. Cf. U.S. v. International Union of Petroleum & Indus. Workers, AFL-CIO, 870

4

F.2d 1450, 452 (9th Cir. 1989) (citation omitted). “‘[F]ederal courts have consistently

5

held that documents are deemed to be within [a party’s] ‘possession, custody or control’

6

for purposes of Rule 34 if the party has actual possession, custody, or control, or has the

7

legal right to obtain the documents on demand.’” Superior Comms. v. Earhugger, Inc.,

8

257 F.R.D. 215, 217 n.3 (emphasis in original) (quoting In re Bankers Trust Co., 61 F.3d

9

465, 469 (6th Cir.1995)); see also In re Citric Acid Litigation, 191 F.3d 1090, 1108 (9th

10

Cir. 1999) (adopting legal control test enunciated in In re Bankers Trust Co.)). Cf. 8B

11

Federal Practice and Procedure, § 2210 (2010 & Supp) (Under Rule 34, “[a] party may

12

be required to produce documents and things that it possesses even though they belong to

13

a third person who is not a party to the action.”).

14

The record, at best, suggests that that Kaylor may have the ability to possess the

15

subject e-mails while at work on TTC premises using TTC’s computer. Neither party has

16

provided authority that would support a finding that in this situation Kaylor is or is not in

17

actual possession of the e-mails. Nor does the Court need to resolve that question in this

18

instance because, on the instant record, the discovery sought is improper under Rule

19

26(b)(1) and (2).

20

26

Federal Rule of Civil Procedure 26(b)(1) provides:
Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs
of the case, considering the importance of the issues at stake in the action,
the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.

27

Fed.R.Civ.P. 26(b)(1). The Rule goes on to provide that the court, on motion or on its

28

own, “must limit the frequency or extent of discovery otherwise allowed by these rules or

21
22
23
24
25

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Case 4:16-cv-00462-DCB-BPV Document 84 Filed 07/21/17 Page 21 of 28

1

by local rule if it determines . . .”, among other things, that the discovery sought is

2

unreasonably cumulative or duplicative, or can be obtained from some other source that

3

is more convenient, less burdensome, or less expensive or the proposed discovery is

4

outside the scope permitted by Rule 26(b)(1). Fed.R.Civ.P. 26(b)(2)(C)(i),(iii) (emphasis

5

added). In resolving Plaintiff’s motion to compel, the Court may limit discovery under

6

Rule 26(b). See Trunk, 2007 WL 1110715, at *7.

7

Plaintiff’s request is duplicative and moot to the extent that she seeks e-mails

8

to/from/cc’ing/bcc’ing the Martins given that Defendants have been ordered to disclose

9

non-privileged e-mails pertaining to the Martins that mention Plaintiff as discussed

10

above.

11

accounts that went to or came from Kaylor as well. At this point in the litigation, there is

12

no indication how or why the remainder of the e-mails Plaintiff seeks are in any way

13

relevant to this action. Plaintiff has not identified how Kaylor, other than working for

14

TTC, is relevant to this action, yet she has served an invasive subpoena seeking e-mails

15

between Kaylor and “any third party that does not work with [TTC]” that mention

16

Plaintiff dating back to January 2015. (Doc. 70, Exh. C). Nor does Plaintiff explain how

17

e-mails between Kaylor and Lindsay Welsh16 are remotely relevant.

18

Plaintiff’s Motion to Compel is denied to the extent she seeks to compel Defendants to

19

allow Shawn Kaylor to produce the requested e-mails, and the subpoena is quashed to

20

this extent as well.

Presumably this disclosure would involve e-mails regarding the Martins’

21

3.

Accordingly,

Employment Files

22

Plaintiff seeks a protective order: (1) directing Defendants to destroy documents

23

from Plaintiff’s former employer Alliance Beverage Distributing Co., LLC (“Alliance”);

24

and (2) to narrow the subpoena served on Glen Murphy (“Murphy”).

25

Rule 26(c) provides that a court may limit discovery to protect from annoyance,

26

embarrassment, oppression, undue burden, or expense. Sanchez v. City of Santa Ana, 939

27
16

28

Plaintiff alleges that a “Lindsay Welch” was hired for the position promised to
Plaintiff. (See SAC at ¶¶106-07, 111-13). Even assuming Welch and Welsh refer to the
same person, Plaintiff still fails to establish relevance with regard to the e-mails sought.
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1

F.3d 1027, 1033 (9th Cir. 1990). To the extent Plaintiff seeks to quash or modify the

2

relevant subpoenas, “courts have repeatedly found that an individual possesses a personal

3

right with respect to information contained in employment records and, thus, has standing

4

to challenge such a subpoena.” Blotzer. 287 F.R.D. at 509 (collecting cases); cf. Sanchez,

5

936 F.3d 1027 (recognizing that employee personnel files are not absolutely privileged

6

but are confidential in nature). When evaluating privacy objections, the Court must

7

balance the party’s need for the information against the individual’s privacy right in his

8

or her employment files. Guitron v. Wells Fargo Bank, N.A., 2011 WL 4345191, at *1

9

(N.D. Cal. Sept. 13, 2011) (citation omitted).

10

Defendants have asserted an after-acquired evidence defense. (Doc. 45 at 11, ¶6).

11

With regard to discovery related to an after-acquired evidence defense, the District Court

12

for the Northern District of California has explained that:
Former employment records are relevant to the after-acquired evidence
defense available in Title VII employment discrimination cases. McKennon
v. Nashville Banner Pub. Co., 513 U.S. 352, 363, 115 S.Ct. 879, 130
L.Ed.2d 852 (1995). “The ‘after-acquired evidence’ doctrine precludes or
limits an employee from receiving remedies for wrongful discharge if the
employer later ‘discovers’ evidence of wrongdoing that would have led to
the employee’s termination had the employer known of the misconduct.”
Rivera v. NIBCO, Inc., 364 F.3d 1057, 1071 (9th Cir. 2004) (citing
McKennon, 513 U.S. at 360–63). “An employer can avoid backpay and
other remedies by coming forward with after-acquired evidence of an
employee’s misconduct, but only if it can prove by a preponderance of the
evidence that it would have fired the employee for that misconduct.” O’Day
v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 761 (9th Cir. 1996).
However, the Supreme Court in McKennon cautioned against the potential
for abuse of the discovery process by employers seeking to limit their
liability through an after-acquired evidence defense, noting the ability of
courts to curb such abuses through the Federal Rules of Civil Procedure.
513 U.S. at 363. Some lower courts have held that the after-acquired
evidence defense cannot be used to pursue discovery in the absence of
some basis for believing that the after-acquired evidence of wrong-doing
will be revealed. See, e.g., First v. Kia of El Cajon, 2010 WL 3245778, at
*2 (S.D. Cal. Aug.17, 2010); Chamberlain v. Farmington Sav. Bank, 2007
WL 2786421, at *2 (D.Conn. Sep.25, 2007); Maxwell v. Health Ctr. of
Lake City Inc., 2006 WL 1627020, at *5 (M.D.Fla. Jun.6, 2006).

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Guitron, 2011 WL 4345191, at *2 (declining to resolve the issue within the context of a
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1

discovery dispute and because the referring district judge had not ruled on the defense).

2

a.

Alliance

3

With regard to Alliance, Plaintiff’s former employer, Defendants requested “any

4

and all documents and employment” records relating or pertaining to Plaintiff, including

5

“job applications, interview notes, offer letters, compensation history and information,

6

complaints, employment-related correspondence, disciplinary records, employee reviews,

7

employee evaluations, pay stubs and payroll records, records relating to the termination

8

of her employment, performance [sic], reviews, personnel files, photographs, and

9

supervisor’s notes.”

(Doc. 70 at 4). According to Plaintiff, Alliance produced the

10

documents before Plaintiff had time to object; however, Plaintiff did not raise an

11

objection until two weeks after service of the March 22, 2017 subpoena. (Id. at 5; Doc.

12

71 at 11).17

13

Defendants assert that Plaintiff indicated on her resume submitted to TTC that she

14

was employed with Alliance when she applied for work with TTC. (Doc. 71 at 7 (citing

15

Doc. 70, Exh. P)). Defendants also cite Plaintiff’s deposition testimony that she was

16

unemployed when she applied for work at TTC and that her employment at Alliance was

17

terminated because of restructuring under a new vice president. (Id. (citing Doc. 71, Exh.

18

Q at 15-17)). Defendants assert that Alliance’s records indicate that Plaintiff was

19

terminated on September 30, 2014, “approximately five months before she first applied to

20

TTC”, and reasons for termination included that she ‘“continually failed to follow

21

management instruction, report to required meetings and work-with visits, and has failed

22

to acknowledge communications from her manager and business partners.’” (Id. (quoting

23

Doc. 71, Exh. T)).

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25
26
27
28

17

See Fed.R.Civ.P. 45(d)(2)(B) (written objection to a subpoena must be served
before the earlier of the time specified for compliance or 14 days after the subpoena is
served). Alliance had until April 14, 2017 to comply with the subpoena. (See Notice of
Intent to Serve Subpoena Duces Tecum (Doc. 47). In calculating 14 days after service of
the subpoena, “the day of the event that triggers the period” is excluded. See
Fed.R.Civ.P. 6(a)(1)(A). Thus, the deadline for filing an objection fell on April 5, 2016,
and Plaintiff advanced her objection one day later on April 6, 2017. (see Doc. 71 at 11;
see also id. at 7 (citing Doc. 71 Exhs. R, S)).
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Case 4:16-cv-00462-DCB-BPV Document 84 Filed 07/21/17 Page 24 of 28

1

On the instant record, the Court excuses any untimeliness of Plaintiff’s objection.

2

Moreover, narrowing the scope is appropriate in light of the lack of relevance of the

3

majority of the information sought. Plaintiff’s motion is denied in part to the extent she

4

seeks an order requiring destruction of records produced by Alliance that relate to the

5

termination of her employment, including records that would reflect the date her

6

employment with Alliance terminated. Plaintiff’s motion is granted in part as to all other

7

records produced by Alliance.

8
9

b.

Glen Murphy

Plaintiff argues that the subpoena served on Murphy is overbroad.

10

Plaintiff alleges that she “turned down a more lucrative job offer she had received

11

. . .” based upon “the exiting [sic] and promising opportunities for professional growth at

12

TTC that Todd, Sherry, and Lisa described to her.” (SAC at ¶¶24; see also id. at ¶140)).

13

Plaintiff testified at her deposition that before February 2015, possibly around September

14

2014, she received a more lucrative job offer from a company called Bar Fixer, which is

15

owned and operated by Murphy. (Doc. 71 at 8 & n 4 (citing Doc. 71, Exh. U at 86-88)).

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18
19
20
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22
23
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25
26
27
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On March 30, 2017, Defendants issued a subpoena to Murphy, a California
resident, seeking
[]
All documents and employment records relating or pertaining to
[Plaintiff]. Records should include, but are not limited to, job applications,
interview notes, offer letters, actual or potential compensation history and
information, employment-related correspondence, resumes, personnel files,
and photographs.
[]
All documents and records that reflect communications between
[Murphy]. . . and [Plaintiff]. . . (in any capacity…), including, without
limit, email correspondence, text messages, social media posts and
communications, written correspondence, and notes from conversations.
(Doc. 70 at 5-6). Thereafter, Plaintiff and Defendants agreed to narrow the scope of
documents and communications to those occurring between January 1, 2015 and
December 31, 2016, which at the time appeared to be the relevant period when Plaintiff
allegedly received Murphy’s offer. (Doc. 71 at 8; see also id. at 13). However, Plaintiff
thereafter requested that the subpoena be limited only to documents that relate to the job
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Case 4:16-cv-00462-DCB-BPV Document 84 Filed 07/21/17 Page 25 of 28

1

offer Murphy extended to her. (Doc. 71. at 9). “Because this contradicted the agreement

2

reached with McBeath, Defendants declined to renegotiate the limitation’s on Murphy’s

3

subpoena, which resulted in McBeath’s [instant] motion.” (Id.). Defendants now do not

4

wish to abide by the narrower scope previously negotiated because documents

5

encompassing a broader time-period are necessary “to determine the veracity of

6

McBeath’s claim. . . . Given McBeath’s uncertainty about the exact timeframe and the

7

general issues with her credibility, it is equally likely that this supposed offer occurred

8

well before her interview process with TTC in early 2015.” (Doc. 71 at 14). Defendants

9

also point to Plaintiff’s testimony that she and Murphy, who is a friend, had “just casual

10

conversations” about employment. (Id.; Doc. 71, Exh. U at 86-88, 344). Defendants

11

contend the information they seek goes to credibility/impeachment and mitigation.

12

Information pertaining to the job offer Murphy allegedly extended to Plaintiff is relevant

13

to this action. Accordingly, Plaintiff’s motion is denied in part to the extent Defendants

14

seek job applications by Plaintiff, offer letters, or other correspondence, including e-

15

mails, text messages, social media posts and communications, and notes from

16

conversations, reflecting or discussing an offer of employment extended to Plaintiff,

17

including information relating to compensation for said offer.

18

granted as to all other relief.

19
20

E.

Plaintiff’s motion is

Good faith attempts to resolve discovery disputes without Court

intervention

21

LRCiv 7.2(j) requires parties who file discovery motions to certify “that after

22

personal consultation and sincere efforts to do so, counsel[18] have been unable to

23

satisfactorily resolve the matter. Any discovery motion brought before the Court without

24

prior personal consultation with the other party and a sincere effort to resolve the matter,

25

may result in sanctions.” See also Fed.R.Civ.P. 37(a). Defendants contend that Plaintiff

26

has failed to “meet and confer” in good faith in that although she may have

27
18

28

LRCiv 83.3(c)(1) provides that: “Anyone appearing before the court is bound
by these Local Rules. Any reference in these Local Rules to ‘attorney’ or ‘counsel’
applies to parties not represented by an attorney unless the context requires otherwise.”
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Case 4:16-cv-00462-DCB-BPV Document 84 Filed 07/21/17 Page 26 of 28

1

communicated with defense counsel, she refuses “to consider reasonable solutions in

2

order to file motions that she knows will increase TTC’s legal costs.” (Doc. 35 at 11).

3

Elsewhere, the record reflects that Plaintiff has appeared to unilaterally change terms

4

previously agreed upon (see Doc. 55 at 5), or continues to request to change the terms

5

after an agreement has been reached (see Doc. 71 at 9, 13). The record at this point does

6

not support a finding that Plaintiff has failed to attempt a sincere resolution of the various

7

issues presently before the Court in violation of the Local Rule. However, Plaintiff is

8

advised that she must accord defense counsel a reasonable amount of time to respond to

9

her suggested terms for informal resolution and she must adhere to agreements she

10

reaches with defense counsel. Plaintiff is also advised that future conduct that indicates

11

that she is not abiding by this directive can result in sanctions, which can ultimately result

12

in dismissal of this action.

13

Accordingly,

14

IT IS ORDERED that:

15

1.

Plaintiff’s Motion for a Protective Order that Protects Defendants’

16

Employees from Intimidation and Declares that Plaintiff may have Ex Parte Contact with

17

Them (Doc. 30) is DENIED IN PART and GRANTED IN PART. The Motion is denied

18

to the extent that Plaintiff shall not be permitted to speak to TTC’s current and former

19

general managers outside the presence of defense counsel. The Motion is granted to the

20

extent that Plaintiff may speak outside the presence of defense counsel to TTC former

21

and current employees who are not or were not employed in a managerial or supervisory

22

capacity; however, to do so, Plaintiff or any investigative representative must inform the

23

employee or former employee at the beginning of any contact:

24

(a)

of Plaintiff’s reason for seeking the interview;

25

(b)

the right of the employee or former employee to refuse the

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27
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interview as there is no legal obligation to consent to the informal interview; and
(c)

the right of the employee or former employee to have

counsel of his or her choice present during the interview.

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Case 4:16-cv-00462-DCB-BPV Document 84 Filed 07/21/17 Page 27 of 28

1

2.

Plaintiff’s Motion for a Protective Order to Shield Experts Consulted

2

Informally (Doc 39) is GRANTED IN PART and DENIED IN PART. The Motion with

3

regard to Ehud Gavron is granted to the extent that Defendants may not seek discovery

4

from Gavron related to facts known or opinions held by him after May 26, 2016 with

5

regard to the Stored Communications Act (“SCA”) counterclaim. If Plaintiff believes

6

that Defendants have ventured into an area she claims is privileged with regard to the

7

SCA claim, Plaintiff and Gavron shall withhold the information Plaintiff contends is

8

protected and Plaintiff shall provide a privilege log. The Motion with regard to Gavron is

9

denied in all other respects. The Motion is also denied in full with regard to Francisco

10

Marquez and to Plaintiff’s request that Defendants not mention Gavron or Marquez in

11

Court filings.

12

3.

Defendants’ Motion to Quash and for Protective Order Protecting Third

13

Party Koty-Leavitt Insurance Agency from Plaintiff’s Subpoena (Doc. 55) is DENIED IN

14

PART and GRANTED IN PART. The Motion is denied to the extent that Plaintiff’s

15

agreement to limit the scope of Request Number 4 shall remain in effect and Defendant

16

shall be required to comply with the mechanism set out for disclosure in Plaintiff’s March

17

23, 2017 Letter at Doc. 55, Exh. 9 (Doc. 55-1 at 47). Defendants shall have 60 days to

18

comply with this Order. Defendants shall disclose all information pursuant to the parties’

19

agreement concerning the subpoena, subject to privilege. The motion is granted in that

20

the subpoena is quashed to the extent that Plaintiff seeks information that the parties

21

previously agreed would not be disclosed.

22

4.

Plaintiff’s Motion to Compel Defendants: (1) to give their consent to

23

Google to produce responsive e-mails; (2) to allow Shawn Kaylor to produce responsive

24

e-mails; (3) to destroy employment files obtained from Plaintiff’s prior employer; and (4)

25

to narrow subpoena served on Glenn Murphy (Doc. 70) is DENIED IN PART and

26

GRANTED IN PART as follows:

27
28

(a)

The Motion is granted to the extent that Defendants are directed to

produce the requested e-mails following the search directives set out in Plaintiff’s exhibit

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Case 4:16-cv-00462-DCB-BPV Document 84 Filed 07/21/17 Page 28 of 28

1

A attached to her proposed subpoena for Google (see Doc. 70, Exh. D (Doc. 70-1 at 24)),

2

subject to privilege review. Defendants are granted 60 days to comply with this Order.

3

Plaintiff’s Motion is denied to the extent that she seeks an order compelling the Martin

4

Defendants to consent to Google performing the requested searches.

5

(b)

The Motion is denied to the extent that Plaintiff seeks to compel

6

Defendants to allow Shawn Kaylor to produce the requested e-mails, and the subpoena is

7

quashed to this extent as well.

8

(c)

The Motion is denied to the extent Plaintiff that seeks an order

9

requiring destruction of records produced by Alliance that relate to the termination of her

10

employment, including records that would reflect the date her employment with Alliance

11

terminated. Plaintiff’s motion is granted as to all other records produced by Alliance and

12

Defendants are directed to destroy those records within five days of the date of this Order

13

and provide a notice of compliance to Plaintiff within seven days of destruction.

14

(d)

Plaintiff’s Motion is denied in part to the extent that Defendants seek

15

from Glen Murphy, job applications by Plaintiff, offer letters, or other correspondence,

16

including e-mails, text messages, social media posts and communications, and notes from

17

conversations, reflecting or discussing an offer of employment extended to Plaintiff,

18

including information relating to compensation for said offer. Plaintiff’s Motion is

19

granted as to all other relief with regard to Murphy.

20

Dated this 20th day of July, 2017.

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