EEOC v. ABM Janitorial Services, Inc.

Filing 210

JOINT STIPULATION and ORDER re 208 Defendant's Subpoenas signed by Magistrate Judge Jennifer L. Thurston on 4/9/2010. (Leon-Guerrero, A)

1 Anna Y. Park, SBN 164242 Elizabeth Esparza-Cervantes, SBN 205412 2 Lorena Garcia, SBN 234091 3 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 4 255 East Temple Street, Fourth Floor 5 Los Angeles, CA 90012 6 Telephone: [phone] Facsimile: [phone] 7 Attorneys for Plaintiff U.S. E.E.O.C. 8 Stan Mallison, SBN 184191 9 Hector R. Martinez, SBN 206336 10 Marco A. Palau, SBN 242340 Law Offices of Mallison & Martinez 11 1042 Brown Ave., Suite A 12 Lafayette, CA 94549 13 Telephone: [phone] Facsimile: [phone] 14 Attorneys for Plaintiffs-in-Intervention 15 (Attorney recitals cont. on next page) 16 UNITED STATES DISTRICT COURT 17 FOR THE EASTERN DISTRICT OF CALIFORNIA 18 ) CASE NO. 1:07-CV-01428 LJO-JLT 19 U.S. EQUAL EMPLOYMENT ) OPPORTUNITY COMMISSION, ) 20 ) JOINT STIPULATION Plaintiff, ) RESOLVING DISPUTES OVER 21 ) DEFENDANTS' SUBPOENAS OF ERIKA MORALES and ) 22 ANONYMOUS PLAINTIFFS ONE ) CERTAIN CLAIMANTS' THROUGH EIGHT, ) EMPLOYMENT RECORDS; 23 ) ORDER Plaintiff-Intervenors, ) 24 ) v. ) 25 ) 26 ABM INDUSTRIESet al., ) INCORPORATED, ) 27 ) Defendants. ) 28 )
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KEITH A. JACOBY, Bar No. 150233 LITTLER MENDELSON A Professional Corporation 2049 Century Park East, 5th Floor Los Angeles, CA 90067.3107 Telephone: [phone] Facsimile: [phone] [e-mail] Laura Hayward, SBN 204014 LITTLER MENDELSON 650 California St., 20th Floor San Francisco, CA 91408-2693 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants ABM Industries Incorporated, ABM Janitorial Services, Inc. & ABM Janitorial Northern Califorina

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On or about February 22, 2010, Defendants issued the following ten third

2 party subpoenas: Teresa Sanchez (subpoena to SCOBM), Maria Quintero 3 (subpoena to IHOP), Hilda Gomez (subpoena to VF Outdoor), Delia DeMejia 4 (subpoena to V&A Janitorial), Martha Castaneda Garcia (subpoena to Ruiz Foods), 5 Gloria Bernal (subpoena to TransWest Security Services), Patricia DeVera 6 (subpoena to Beacon Property Management), Maria Socorro Zapien (subpoena to 7 Zapien Electric), Maria Magana (subpoena to Varsity Contractors), and Maria 8 Cantoral (subpoena to WM Bolthouse Farms). 9 Defendants and Plaintiffs (EEOC and Plaintiff-Interveners) disagree on the 10 subpoenas' timeliness and the merits of Defendants' ability to obtain and use the 11 documents specified in the subpoenas. However, in order to facilitate a resolution 12 of this matter without Court intervention, the parties stipulate, subject to Court 13 approval, to resolve the matter as follows: 14 15 I. Defendant Will Withdraw Six Subpoenas Defendant will withdraw the subpoenas regarding Maria Quintero (subpoena

16 to IHOP), Hilda Gomez (subpoena to VF Outdoor), Delia DeMejia (subpoena to 17 V&A Janitorial), Martha Castaneda Garcia (subpoena to Ruiz Foods), Gloria 18 Bernal (subpoena to TransWest Security Services), and Patricia DeVera (subpoena 19 to Beacon Property Management) ("Section I Claimants). In exchange for 20 Defendants' withdrawal of the subpoenas, the EEOC agrees to not present 21 evidence of ongoing emotional distress damages regarding the claims of Maria 22 Quintero, Hilda Gomez, Delia DeMejia, Martha Castaneda Garcia, Gloria Bernal, 23 and Patricia DeVera in any proceeding before or at the trial of this case. EEOC 24 also agrees to provide all W-2 and/or paycheck stubs regarding mitigation of the 25 backpay claim of any of the listed women. 26 The stipulation does not affect or limit any argument or claim that EEOC 27 may have to seek damages incurred during Section I Claimants' employment for 28 pain and suffering, emotional distress, indignity, loss of enjoyment of life, loss of
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1 self-esteem, humiliation, including claims for "garden-variety" emotional distress, 2 in amounts to be determined at trial. See, e.g., Turner v. Imperial Stores, 161 3 F.R.D. 89, 97 (S.D. Cal. 1995)(leading case concluding that "garden-variety" 4 claims for emotional distress do not justify compelling psychiatric examinations 5 under Rule 35). For Section I Claimants, EEOC does not intend to present at trial 6 any medical records, expert testimony, or treating physician's testimony in support 7 of their claims for damages. Further, this stipulation does not waive any privilege 8 against disclosure of the records at issue that Plaintiff may have in seeking "garden 9 variety" damages for the Section I Claimants. 10 II. 11 Attorneys Eyes Only Review of Four Subpoenas As for the subpoenas relating to Teresa Sanchez (subpoena to SCOBM),

12 Maria Socorro Zapien (subpoena to Zapien Electric), Maria Magana (subpoena to 13 Varsity Contractors), and Maria Cantoral (subpoena to WM Bolthouse Farms) 14 ("Section II Claimants"), no limitation on claims has been agreed upon. The 15 parties nevertheless agree that Wheels of Justice will produce all documents related 16 to Section II Claimants at the same time only to the attorneys for Plaintiffs and 17 attorneys for Defendants. The parties agree that the documents related to Section 18 II Claimants are to be reviewed by "attorneys eyes only." If the attorneys for 19 Defendants believe that they should be able to use any of the subpoenaed 20 documents related to Section II Claimants for any other purposes in this litigation, 21 including motion practice and trial, then they need to notify the attorneys of the 22 other parties to begin the meet and confer process no later than two weeks of the 23 receipt of the subpoenaed documents. If an agreement cannot be reached within 24 one month of receiving said documents, then Plaintiffs may seek a protective order 25 against any use beyond review by the attorneys. 26 For any documents related to Section II Claimants that the parties agree will 27 not be used in this case, Defendants will destroy said documents and copies of any 28 such documents, as well as notes and copies of notes regarding said documents.
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1 Defendants also agree to not use information obtained from any documents that the 2 parties agree will not be used. 3 III. 4 Preservation of Objections The foregoing agreement is solely meant to resolve a discovery dispute

5 amongst the parties. It does not constitute a waiver or withdrawal of any objection 6 to Defendants' use of obtained documents at an eventual trial of this case or 7 potential defenses or claims that that parties can raise, except as specifically listed 8 by the EEOC regarding ongoing emotional distress damages and back and front 9 pay for specified claimants. Nothing in this stipulation should be construed as 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 ///
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1 having any precedential value as to what the parties would agree to in any other 2 litigation. 3 4 It is so stipulated. 5 6 7 8 Date: 9 10 11 12 13 14 15 16 17 18 Date: 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION By: Anna Y. Park Elizabeth Esparza-Cervantes Lorena Garcia Attorneys for Plaintiff U.S. EEOC LAW OFFICES OF MALLISON & MARTINEZ Date: By: /s/ Stan Mallison via consent to sign Stan Mallison Hector R. Martinez Attorneys for Plaintiff- Intervenors LITTLER MENDELSON By: Keith Jacoby Laura Hayward Attorneys for Defendant ABM Industries Incorporated, ABM Janitorial Services, Inc., and ABM Janitorial- Northern California

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ORDER For good cause shown, the stipulation of the parties related to the current

3 discovery dispute is approved to the extent that it is consistent with the Scheduling 4 Order. All non-dispositive motions must be filed within the timeframes set forth in 5 the Scheduling Order or leave of the Court, based upon a showing of good cause to 6 modify the Scheduling Order, must be obtained before filing any such motion. 7 8 9 10 11 12
DEAC_Signature-END:

IT IS SO ORDERED. Dated:

April 9, 2010

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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