EEOC v. ABM Janitorial Services, Inc.

Filing 305

ORDER DENYING Motion to Intervene for the Purpose of Seeking Modification of the Protective Order 292 293 294 , signed by Magistrate Judge Jennifer L. Thurston on 4/9/2013. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff.
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ERIKA MORALES and ANONYMOUS
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PLAINTIFFS ONE THROUGH EIGHT,
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Plaintiff-Intervenors
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v.
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ABM INDUSTRIES INCORPORATED, et al., )
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Defendants.
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U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

Case No.: 1:07-cv-01428 - LJO - JLT
ORDER DENYING MOTION TO INTERVENE
FOR THE PURPOSE OF SEEKING
MODIFICATION OF THE PROTECTIVE ORDER
(Docs. 292, 293, 294)

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I.

Background
This case, involving claims of sexual harassment by and against employees of Defendants,

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settled in September 2010. (Docs. 287, 289) The case involved the named Plaintiffs, Plaintiffs-in-

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Intervention and numerous claimants.

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While the case was ongoing, the Court issued two stipulated protective orders (Docs. 76, 200)

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and issued protective orders as to other information sought in discovery. (Doc. 175, 193) These

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protective orders made confidential contact information related to employees, documents which

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detailed claims of sexual harassment and confidential corporate documents of Defendants. Id.
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Now before the Court is the motion to intervene brought by Mara Murillo who is suing

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Defendants in Fresno Superior Court. (Doc. 293-1) In that action, she claims she suffered sexual

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harassment by a particular supervisor employed by Defendants and that Defendants engaged in a

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course of conduct of sexual harassment. Id.

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Underlying this motion is its true purpose, which is to seek to modify the protective orders

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issued in this case so that Ms. Murillo and the other parties in the state court action are free to use all of

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the discovery adduced in that new action. Ms. Murillo contends that there is good cause for this

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modification because her litigation “overlaps the instant matter and allowing discovery adduced in this

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cause would avoid retaking depositions and propounding discovery to which Defendants. Ms. Murillo

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contends that this will result in a savings of $100,000.
Defendants oppose the motion most notably on the grounds that this action involved “41

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depositions and close to 3500 pages of evidence.” (Doc. 296 at 3) Moreover, Defendants assert that

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contained in the discovery are personnel files of the Plaintiffs, claimants, alleged harassers and some

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other supervisory staff, job descriptions, meeting minutes for board meetings, organizational chart-

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type documents and other service contracts and agreements. Id. Defendants contend these documents

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equate to thousands of pages of the discovery, and that none of it relates to Ms. Murillo or her lawsuit.

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Following the hearing held on March 12, 2013, the Court ordered Ms. Murillo to file an

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amended motion addressing the timeliness and relevance of her motion (Doc. 300), which Ms. Murrillo

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filed on March 22, 2013. (Docs. 301-02) According to Ms. Murillo, “none of the transcripts Murillo

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needs are subject to protective order and . . . substantial portions thereof have been filed on PACER and

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are publicly available online.” (Doc. 302 at 2) Ms. Murillo asserts “there is no need to modify the

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protective order with respect to deposition transcripts that Murillo identified to defendants.” Id. Thus,

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Ms. Murillo “seeks clarification from the Court that the protective orders in this case do not apply to

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alter ego/joint employer documents that [she] has separately sought from the ABM defendants in the

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state matter, even if the documents are the same as those produced in this case.” Id.

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Defendants filed their supplemental opposition on March 29, 2013, maintaining the protective

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orders govern information revealed through depositions and document production, and the motion to

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intervene is untimely. (Doc. 304 at 4)
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II.

Legal Standard

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According to Fed. R. Civ. P. 24(b)(1)(B)1, the Court may permit anyone to intervene in an

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action who “has a claim or defense that shares with the main action a common question of law or

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fact.” When a motion to intervene is for the sole purpose of seeking a modification to a protective

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order, the Court is required to assure itself that the motion is timely. San Jose Mercury News, Inc. v.

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U.S. Dist. Court – N. Dist. (San Jose), 187 F.3d 1096, 1100 (9th Cir. 1999). Likewise, the Court must

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determine “the importance of access to documents prepared for similar litigation involv[es] the same

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parties [to] satisf[y] the commonality requirement of 24(b).” Beckman Indus., Inc. v. Int’l Ins. Co.,

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966 F.2d 470, 474 (9th Cir. 1992).

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A motion for permissive intervention pursuant to Rule 24(b) is directed to the sound discretion

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of the district court. See League of United Latin Amer. Citizens v. Wilson, 131 F.3d 1297, 1307 (9th

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Cir. 1997).

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III.

Discussion and Analysis

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A.

Timeliness of the motion to intervene

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Motions to intervene for the limited purpose of obtaining documents protected in the matter

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must be timely. Empire Blue Cross & Blue Shield v. Janet Greeson’s A Place For Us, Inc., 62 F.3d

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1217, 1219 (9th Cir. 1995) (“This circuit has not yet decided whether such motions to intervene for

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ancillary purposes must be timely. We hold that they must.”). To determine the timeliness of the

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motion, the Court evaluates three factors: “1) the stage of the proceeding at which an applicant seeks

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to intervene; 2) the prejudice to other parties; and 3) the reason for and length of the delay.” Id.
Ms. Murillo contends her motion “is timely and presents no prejudice to the parties in this

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matter.” (Doc. 302 at 10, emphasis omitted) Ms. Murillo recognizes this action settled nearly three

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years ago, and assets she “does not seek to re-litigate any . . . matters previously adjudicated.” Id.

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Therefore, Ms. Murillo asserts “there is no risk in prejudicing the Morales matter parties in the

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adjudication of their rights.” Id. Further, Ms. Murillo argues there was “no significant delay” in

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bringing this motion because “Defendants objected to the discovery at issue on the grounds of the

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Clearly in error, Ms. Murrillo contends she should be permitted to intervene in this action under Fed. R. Civ. P. 24(b)(2)
which relates to the permissive intervention by a governmental agency or officer.

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protective order on December 19, 2012 . . . [and] Murillo then met and conferred and moved to modify

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the order on February 10, 2013.” Id.

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On the other hand, Defendants contend the motion to intervene and modify the protective order

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is untimely. (Doc. 304 at 6) According to Defendants, Ms. Murillo “has known about the materials in

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question since 2009,” yet waited “until this late date” to seek intervention. Id. Defendants assert, “it

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would be inherently unfair and prejudicial to defendants to have to comb through eighteen deposition

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transcripts and hundreds of other documents to determine which evidence relates to the Murillo matter.

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Id. In addition, Defendants argue they would be prejudiced because “discovery in the Murillo v. ABM

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matter has closed, and they relied upon the Protective Order in shaping the scope and posture of their

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defense in this matter.” Id.
Significantly, this matter has been settled and closed for about 29 months. Ms. Murillo filed

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her lawsuit more than two years ago and her DFEH claim was filed three years ago. On July 18, 2011,

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Defendants’ notified Plaintiff’s counsel of the need to modify the protective order regarding the use of

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discovery in this action for Ms. Murillo’s case, given that the discovery in this action “was much more

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expansive” than the issues asserted by Ms. Murillo. (Doc. 296-1, Exh. A) Ms. Murrillo provides no

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explanation why she has delayed in seeking to intervene in this action and fails to explain why, when

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reminded of the protective orders by Defendants in 2011, still she failed to seek intervention until

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nearly the eve of trial in her action. As explained by the Ninth Circuit, “any substantial lapse of time

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weighs heavily against intervention.” League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297,

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1302 (9th Cir. 1997) (quoting United States v. Washington, 86 F.3d 1499, 1503 (9th Cir. 1996)).

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Given these circumstances, Ms. Murillo’s motion to intervene is untimely.

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B.

Relevance of the protected discovery to the state court action

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On January 14, 2009, the Court issued an order “govern[ing] the production, disclosure, and

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use of . . . confidential information in this action.” (Doc. 76 at 2, emphasis added) The protective

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order provided it controlled “the pretrial production, disclosure, and use of confidential information

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revealed by or to the stipulated parties or any of them, through deposition, through interrogatory

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responses, through production of documents, through other discovery, or through informal means.”

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Id. at 3. Moreover, the parties and claimants were allowed to use the documents outside of this

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litigation. Id. at 3-4.

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Accordingly, the protective order does not preclude the production of these documents in the

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state action, even if responding to the document requests may require Defendants to produce

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documents similar or identical to those produced in this action. However, as noted by Defendants, the

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discovery propounded in the state court action did not seek their corporate documents generally—

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which not have implicated the protective order--but, instead, sought the documents produced in this

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action—which does implicate the protective order. Thus, the documents produced in this action are

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protected but whether responses should be compelled despite the language of the production request, is

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a question for the state court.
On the other hand, the protective order controls the use of deposition, which Ms. Murillo now

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seeks to use in the state action. Thus, use of the deposition transcripts by Ms. Murillo would require

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modification of the protective order. To demonstrate the protective order should be modified, Ms.

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Murillo is obligated “demonstrate the relevance of the protected discovery to the collateral

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proceedings and its general discoverability therein.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d

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1122, 1132 (9th Cir. 2003). The Ninth Circuit explained: “Requiring a showing of relevance prevents

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collateral litigants from gaining access to discovery materials merely to subvert limitations on

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discovery in another proceeding. Id.

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Ms. Murillo asserts she has common claims with the plaintiff in this action, and Defendants

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have common defenses. (Doc. 302 at 11) She observes: “[I]n the state action, Mara Murillo is

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complaining of (1) the same unlawful employment practices of [s]exual harassment by Adalberto

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Rodriguez (2) against the same Defendants ABM Industries Inc. and ABM Janitorial Services,

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Northern California, (3) covering the same time events (the sexual harassment of Mara Murillo[)].”

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Id. Ms. Murrillo claims the discovery needed includes testimony on whether ABM was on notice of

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the conduct of Rodriguez, whether Rodriguez was a “supervisor” within the meaning of FEHA,

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Defendants’ response to complaints of sexual harassment, and whether Defendants’ policies were

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effective. (Doc. 298 at 4)

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According to Ms. Murillo, the parties “will have to waste time and resources in discovery and

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retaking numerous depositions when such evidence has already been produced in the federal action,”

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unless the protective orders in this action are modified. Id. at 11. For example, Ms. Murillo asserts

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she “would have to depose at least 14 of Defendant’s current or former employees, whose deposition

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transcripts are already available to the parties in the state action covering the exact same issue—the

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relationship between ABM Inc. and ABM Janitorial Services, Northern California.” Id.
Ms. Murillo has not explained why she believes the testimony of Faisal Algaheim, Tony

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Bautista, M. Olga Birrueta, Irene Bravo, Timothy Brekke, Tom Cazale, Jose Equivel, Teuila Hanson,

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Allen Juarez, Anthony MacFarlane, Maria Miller, Arturo Jimenez, Teresa Sanchez, Ric Steiner, Maria

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Quintero, and Maria Zapien is relevant to her state court action. Seemingly, Ms. Murillo’s position is

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that because Rodriguez was a supervisor in Fresno, claims of harassment by other supervisors in

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Bakersfield are relevant; why this is the case, is not explained. As a result, Ms. Murillo has not met her

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burden to “demonstrate the relevance of the protected discovery to the collateral proceedings.” See

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Foltz, 331 F.3d at 1132. She was obligated to identify which of the thousands of pages of discovery

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adduced in this case is relevant to her state case.
Further, though Ms. Murillo asserts modification of the protective order is necessary to avoid

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discovery costs, she has taken the depositions of several witnesses whose deposition transcripts she

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now seeks (Maria Miller, Tony Bautista, Jose Esquivel, Allen Juarez, and Maria Quitero), and has

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scheduled the deposition of Adalberto Rodriguez for April 15, 2013. Therefore, in many respects,

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modification of the protective order does not avoid the costs of discovery.

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IV.

Conclusion and Order

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As set forth above, the motion to intervene by Ms. Murillo is untimely. However, even if the

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Court were to determine the motion was brought in a timely manner, Ms. Murillo has not shown the

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protected discovery is relevant to the claims in her state court action.2

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This failure is especially perplexing given the Court specifically explained to the moving party that she needed to address
all of the required elements and gave her a second opportunity to do so.

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Accordingly, IT IS HEREBY ORDERED: The motion to intervene filed by Mara Murillo
for the purpose of modifying the protective order (Docs. 292, 293, and 294) is DENIED.

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IT IS SO ORDERED.
Dated:

April 9, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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