Robinson v. San Joaquin County et al

Filing 43

ORDER signed by Magistrate Judge Gregory G. Hollows on 2/24/14 ORDERING that Plaintiff's MOTION to Compel further responses, filed 1/28/14 35 is GRANTED in part; Within ten court days of the hearing, defendant shall file and serve verificati ons to its responses to documents requests numbered 4, 9 and 11; a privilege log to support its objections to production of responses to documents requests numbered 1 and 3; a declaration supporting its burden objection to request number 1; and a response to interrogatory number 12. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY W. ROBINSON,

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Plaintiff,

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No. 2:12-cv-2783 MCE GGH PS

v.

ORDER

COUNTY OF SAN JOAQUIN,

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Defendant.

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Previously pending on this court’s law and motion calendar for February 20, 2014, was

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plaintiff’s motion to compel production of documents and further responses to interrogatories.

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Plaintiff appeared in pro se. Jamie Bossuat appeared for defendant. After reviewing the joint

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statement, filed February 13, 2014 and hearing oral argument, the court now issues the following

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order.

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BACKGROUND
This action was commenced on November 13, 2012 against defendants County of San

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Joaquin (“County”)1 and Director John Solis. According to the complaint, plaintiff was employed

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by the County of San Joaquin (“County”) from October, 1994 to July 1, 2011, and from August 3,

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1998 to July, 2011 in a civil service position.2 Plaintiff alleges that defendant Solis, the Director,

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Plaintiff also named San Joaquin County Employment and Economic Development
Department as a defendant, however, the County is the proper defendant.
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Plaintiff’s portion of the joint statement indicates that plaintiff worked for the County from
August, 1998 to July 1, 2011 as an Employment Services Specialist I and II at in the Employment
and Economic Development Department. (ECF No. 39 at 2.) Plaintiff was laid off on July 1,
2013. (Id.)
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targeted plaintiff for dismissal even though plaintiff had more seniority than forty other

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employees. He further alleges that the EEOC found no basis for his two complaints, filed in 2003

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and 2007, and then prevented his appeals from being heard. (Compl. at 2.) Plaintiff asserts that

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he received an unsatisfactory evaluation in December, 2009, for writing only one OJT contract

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and four job orders, but he claims that in fact he wrote four OJT contracts and fourteen job orders.

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As a result, plaintiff refused to sign the evaluation, and filed another EEO claim on January 26,

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2010. As a result of the unsatisfactory evaluation, plaintiff claims he lost “seniority hours,” and

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was selected for termination by Director Solis on May 31, 2011. Plaintiff then filed another EEO

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complaint for retaliation on September 16, 2011. (Id. at 3.) The complaint alleges that

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defendants then developed criteria to permit lay-offs in the event of staff reductions based on

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consideration of individuals who had received unsatisfactory evaluations regardless of seniority.

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According to the complaint, this criteria was not applied to plaintiff’s peers who were not African

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American. (Id. at 4.) Plaintiff asserts that defendants’ excuse of business necessity due to

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funding loss was a pretext for his termination. In addition to his wrongful termination, plaintiff

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alleges that he was denied two positions in other departments based on review of his personnel

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file which reflected the negative evaluation. (Id. at 5.) The sole remaining claim, after all state

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law claims were dismissed, is under Title VII of the Civil Rights Act. The complaint does not

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contain a prayer for relief but only “seek[s] redress for his injury.” (Id. at 6.) Defendant Solis

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was dismissed by findings and recommendations, which were adopted on August 5, 2013.

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Defendant represents that plaintiff was terminated due to budget cuts in the County, and

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job eliminations in particular in the department where plaintiff worked. Defendant denies

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singling plaintiff out for a performance evaluation, and states that he was offered jobs elsewhere

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in the County.

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DISCUSSION

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At issue are several document requests and interrogatories, many of which were resolved

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at the meet and confer session. At hearing, plaintiff indicated that he was satisfied with responses

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to the following discovery requests and that they were no longer at issue: Interrogatories

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numbered 6, 7, 8, and 9.
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A second group of requests were ones for which defendant represented that it had either

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produced all responsive documents or that no responsive documents existed; however, plaintiff

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doubted this response. As plaintiff did not provide any evidence to support his suspicions, the

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undersigned could only order defendant at hearing to file a verification for those responses or to

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provide a verification previously given. Those discovery requests for which defendant shall

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provide verifications are Document Requests numbered 4, 9, and 11. Defendant shall file

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verifications within ten court days of the hearing. Each remaining disputed request or

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interrogatory will be addressed in turn.

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Document Request No. 1 – “All emails in which Plaintiff’s name appears in the subject line or in

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the body of the e-mail from November 14, 2007 to July 1, 2011.”
The County contends that it did conduct a search for emails containing plaintiff’s name

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which were sent to or from plaintiff’s direct supervisors, John Solis, Maria Castellanos and Allet

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Williams, and that it has produced such non-privileged emails; however, emails between Gil

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Gutierrez, Deputy County Counsel and all County employees, as well as the Board of Supervisors

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are protected by the attorney client privilege, are work product, and/or may implicate the privacy

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rights of clients and consumers. The County states that it did provide plaintiff with emails from

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County Employees to Gutierrz during the time period covering plaintiff’s EEOC complaint

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investigation.

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The County further argues that this request is overbroad and burdensome, and a search for
every email with plaintiff’s name turns up emails completely unrelated to this litigation.

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The County did not provide a privilege log with its objections. Privilege logs are due at

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the time a discovery response is made. See Fed. R. Civ. P. 26(b)(5) (requiring privilege log for

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withheld documents), and Fed. R. Civ. P. 34(b) (objections are due within 30 days). While not

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many litigants will be overly incensed about a privilege log not delivered until actual document

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production, at the very latest, privilege logs should be delivered, or at least promised forthwith

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during the meet and confer process of a discovery dispute. Eureka v. Hartford Ins., 136 F.R.D.

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179, 184 (E.D. Cal. 1991). Under federal law, improper assertions of privilege in the privilege

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log, or an untimely privilege log, may (but not necessarily) result in waiver. Burlington Northern
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& Santa Fe etc. v. U.S.D.C. Montana (Kapsner), 408 F.3d 1142 (9th Cir. 2005). The court has

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discretion in this regard. United States v. Construction Products Research, Inc., 73 F.3d 464, 473

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(2nd Cir. 1996). Privilege logs should contain the following information: general nature of the

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document, the identity and position of its author, the date of authorship, identity and position of

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recipients, location of the document, and reason document was withheld. W.W. Schwarzer, A.W.

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Tashima & J. Wagstaffe, Federal Civil Procedure Before Trial § 11:1919.

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At the hearing, the County was directed to produce a privilege log within ten court days of
the hearing.
The County also failed to produce a declaration regarding burden, arguing only that

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plaintiff’s request was so broad that many of the responsive documents would be irrelevant, and

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that it’s IT Department stated that it would be difficult to find all responsive emails.

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General or boilerplate objections such as “overly burdensome” are improper, especially

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when a party fails to submit any evidentiary declarations supporting such objections. A. Farber

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and Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006). The County bears the burden,

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as the objecting party, to show reasons for its objections, and for failing to produce the requested

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discovery. Bible v. Rio Properties, Inc., 246 F.R.D. 614, 618 (C.D. Cal. 2007). The objecting

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party must demonstrate “specifically how, despite the broad and liberal construction afforded the

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federal discovery rules, each interrogatory is not relevant or how each question is overly broad,

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burdensome or oppressive [] by submitting affidavits or offering evidence revealing the nature of

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the burden.” Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296-97 (D.C. P. 1980) (internal

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citations omitted).

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As the County has failed to provide a declaration supporting its objection based on

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burden, it shall file and serve a declaration by a member of its IT Department which outlines the

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burden involved in responding to this document request.

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Document Request No. 3 – A copy of the report created by Spectrum Consulting in 2007/2008.

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Defendant claims attorney client privilege over the investigation report prepared by Jaci

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Southward as it was issued and addressed to David Wooten, County Counsel. According to the

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County, this investigation concerned conduct in the EEDD department and did not pertain to
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specific conduct towards plaintiff himself. Defendant states that it did locate a draft which it did

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not produce, but has not located the final report which may have been destroyed because it is

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probably seven years old.

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The County has not provided a privilege log as required, explaining in court that a log was

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unnecessary because there is only one document at issue and plaintiff is already aware of the

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author of the report and that it was done at the request of County Counsel. The County then

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conceded at hearing that it was not sure whether the report pertained to discrimination in any

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respect. Therefore, the County shall file and serve a privilege log pertaining to this report, and

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shall spell out the subject matter of the document. If the document addresses discrimination at

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all, then it is relevant to this litigation.

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Interrogatory No. 12 – “Plaintiff was interviewed for two positions prior to and after lay-off.

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Please provide the ethnicity/race, educational level, and work experience of the individuals hired

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in those positions.”

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Defendant states that it “continues to work to tabulate the requested information and will

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supplement its responses.” Defendant shall fully respond to this interrogatory within ten court

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days of the hearing.

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CONCLUSION

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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s motion to compel further discovery responses, filed January 28, 2014, (ECF

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No. 35), is granted in part.
2. Within ten court days of the hearing, defendant shall file and serve verifications to its

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responses to documents requests numbered 4, 9 and 11; a privilege log to support its objections to

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production of responses to documents requests numbered 1 and 3; a declaration supporting its

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burden objection to request number 1; and a response to interrogatory number 12.

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Dated: February 24, 2014

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Robinson2783.dsy

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