Nelson v. Wastequip Manufacturing Company, LLC

Filing 13

ORDER signed by Magistrate Judge Allison Claire on 01/26/17 ORDERING that plaintiff's 8 Motion to Compel is GRANTED in its entirety; defendant shall comply with plaintiff's Document Requests No. 12, 14 and 18, and shall answer plaintiff's Interrogatory No. 4, subject to the terms of the Protective Order. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIKE NELSON,

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No. 2:16-cv-0561 JAM AC
Plaintiff,

v.

ORDER

WASTEQUIP MANUFACTURING
COMPANY LLC, et al.,
Defendants.

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This is an employment discrimination and retaliation case brought solely under Cal. Govt.

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Code § 12940, and removed to this court under diversity jurisdiction. Plaintiff alleges that

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defendant fired him because he was not Hispanic.

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I. THE MOTION TO COMPEL

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A. The Discovery Dispute

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Plaintiff moves to compel defendant to produce documents and answer an interrogatory

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regarding what defendant knew about the employment of: (1) Tim Leonardo (“Lead”), a non-

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Hispanic who allegedly quit after being harassed by the Hispanic line workers; and (2) Pedro

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Ortiz, who allegedly quit rather than work for a non-Hispanic, and whom defendant later rehired

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just before firing plaintiff and another non-Hispanic supervisor. Specifically, plaintiff moves to

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compel the production of documents relating to Leonardo’s leaving his job (Doc. Request No.
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12), Ortiz leaving his job in July 2015 (No. 14), and Ortiz’s re-hiring in September 2015 (No. 18).

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Plaintiff also moves to compel an answer to an interrogatory asking why Ortiz left his job in July

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2015 (Interrogatory No. 4).

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Plaintiff argues that the requested information is central to his case. Defendant refused to

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produce the requested information on the grounds doing so would violate the privacy rights of

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Leonardo and Ortiz.

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B. Meet and Confer

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The parties met and conferred in person on January 4, 2017, and resolved several issues,

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but not the ones set forth above.

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II. ANALYSIS

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A. What Law Governs?

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“Pursuant to Erie and its progeny, federal courts sitting in diversity apply state substantive

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law and federal procedural law.” Feldman v. Allstate Ins. Co., 322 F.3d 660, 666 (9th Cir.), cert.

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denied, 540 U.S. 875 (2003). Federal discovery rules apply here.

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However, defendant is also invoking a privilege based upon privacy rights. “Most

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evidentiary rules are procedural in nature, and the Federal Rules of Evidence ‘ordinarily govern in

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diversity cases.’” Feldman, 322 F.3d at 666 (quoting Wray v. Gregory, 61 F.3d 1414, 1417 (9th

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Cir. 1995)). Here, the applicable evidentiary rule provides: “in a civil case, state law governs

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privilege regarding a claim or defense for which state law supplies the rule of decision.” Fed. R.

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Evid. 501; Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1328 (9th Cir. 1995)

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(“[b]ecause Alaska state law supplied the rule of decision with respect to the claims in this case,

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Alaska privilege rules had to be applied”). Accordingly, California law governs the application

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of defendant’s privilege assertion.

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B. Standards

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Plaintiff is entitled to discovery of “any nonprivileged matter that is relevant” to his

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“claim … and proportional to the needs of the case, … considering … the importance of the

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discovery in resolving the issues, and whether the burden … of the proposed discovery outweighs

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its likely benefit.” Fed. R. Civ. P. (“Rule”) 26(b)(1). Where, as here, the relevance of the
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discovery sought is not disputed, defendant, as the party resisting discovery, bears the “heavy

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burden” of showing why discovery should be denied. See Blankenship v. Hearst Corp., 519 F.2d

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418, 429 (9th Cir.1975); DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002)

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(resisting party “has the burden to show that discovery should not be allowed, and has the burden

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of clarifying, explaining, and supporting its objections”).

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Both sides agree that Ortiz and Leonardo have a privacy interest in the documents and

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information sought by plaintiff, since they involve personnel matters, and therefore the court must

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balance plaintiff’s need for the information against the privacy interest:

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“In the context of discovery of confidential information in
personnel files, even when such information is directly relevant to
litigation, discovery will not be permitted until a balancing of the
compelling need for discovery against the fundamental right of
privacy determines that disclosure is appropriate. … And, even
when the balance tips in favor of disclosure, constitutional concerns
require a strict circumspection of the scope of the disclosure.”

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El Dorado Savings & Loan Assn. v. Superior Court, 190 Cal. App. 3d 342, 346 (3rd Dist. 1987)

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(quoting Cutter v. Brownbridge, 183 Cal. App. 3d 836, 843 (1st Dist. 1986)).

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Defendant asserts that it has the right to assert the rights of its employees and former

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employees in this regard, and plaintiff does not dispute this. See Bd. of Trustees v. Superior

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Court, 119 Cal. App. 3d 516, 525 26 (1st Dist. 1981) (“[t]he custodian [of private information]

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has the right, in fact the duty, to resist attempts at unauthorized disclosure and the person who is

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the subject of [it] is entitled to expect that his right will be thus asserted”).

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C. Resolution

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The required balancing here is straightforward. Plaintiff’s need for the requested

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information is clear. Plaintiff’s case is based upon his allegation that defendant fired him – a non-

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Hispanic supervisor – because it was aware that its Hispanic line workers would not work under

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non-Hispanic supervisors. Rather than address the workers’ demand that it engage in

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discrimination, defendant caved in and replaced the non-Hispanic supervisors with Hispanic

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supervisors.

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Evidence showing that defendant knew that Leonardo – a non-Hispanic supervisor – was
being harassed by the Hispanic line workers is therefore central to plaintiff’s case. Evidence
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showing that defendant knew that Ortiz quit because he refused to work under a non-Hispanic

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supervisor, or that he was re-hired to placated the line workers’ demands, is also central to

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plaintiff’s case. If this evidence exists, it would be clear evidence that defendant had a motive to

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fire the non-Hispanic supervisors, and that defendant in fact fired plaintiff because he is not

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Hispanic, in an effort to end the work slow-down by the Hispanic line workers.

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Meanwhile it is undisputed that the non-parties’ privacy interests can be accommodated

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by requiring that the requested information be produced under the protective order that the parties

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recently agreed to. See ECF Nos. 11, 12.

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III. CONCLUSION

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For the reasons stated above, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s Motion To Compel (ECF No. 8), is GRANTED in its entirety; and

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2.

Defendant shall comply with plaintiff’s Document Requests No. 12, 14 and 18, and shall
answer plaintiff’s Interrogatory No. 4, subject to the terms of the Protective Order.1

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DATED: January 26, 2017

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At oral argument, the parties indicated that the other discovery issues addressed in the Joint
Statement have been resolved.
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