Oliver v. Microsoft Corporation

Filing 72

ORDER REGARDING DISCOVERY DISPUTES by Magistrate Judge Laurel Beeler: Granting 65 Discovery Letter Brief; Granting 66 Discovery Letter Brief. (ls, COURT STAFF) (Filed on 4/5/2013)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division K. OLIVER, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 No. C 12-00943 RS (LB) Plaintiff, ORDER REGARDING DISCOVERY DISPUTES v. 13 MICROSOFT CORPORATION, [ECF Nos. 65, 66] 14 15 Defendant. _____________________________________/ 16 INTRODUCTION 17 In this employment discrimination case, the parties have two disputes. Plaintiffs want (I) more 18 than 10 depositions; and (II) the report of Microsoft’s internal investigation and its in-house 19 attorney’s correspondence with the internal investigator who prepared the report. Joint Letter 20 Briefs, ECF Nos. 65 and 66. The court held a hearing on April 4, 2013. ANALYSIS 21 22 23 I. DEPOSITIONS Plaintiff says that after depositions in mid-March and review of documents disclosed on March 24 8, 2013, it became clear that four witnesses had specific information that is relevant. Joint Letter 25 Brief, ECF No. 65 at 2. As discussed at the hearing, the record does not establish the relevance of 26 deposing these high-level people. Disclosure of the report addresses the issue. 27 II. INTERNAL INVESTIGATION REPORT AND CORRESPONDENCE 28 As to the internal investigation report, Microsoft had an in-house investigator (apparently a C 12-00943 RS (LB) ORDER 1 lawyer) report to an in-house attorney (Judy Mims) so that Ms. Mims could advise Human 2 Resources. Joint Letter Brief, ECF No. 66 at 1. Microsoft produced only the interview of Plaintiff 3 and the “high-level findings” regarding the investigation and asserted attorney-client privilege or 4 work-product as to the rest. Id. at 1-2. 5 Plaintiff agrees that under Wellpoint Health Network v. Superior Court, the report might be 6 privileged or work product, but argues that Microsoft waives its privilege if it intends to defend the 7 action by asserting that it investigated the case and took action appropriate to the findings of the 8 investigation. Id. at 2-3 (citing Wellpoint, 59 Cal. App. 4th, 110, 122-124, 128 (1997)). Plaintiff 9 points to Microsoft’s fourth affirmative defense that it “‘exercised reasonable care to prevent and and corrective actions offered by Microsoft and/or otherwise to avoid harm.’” Id. at 2 (quoting 12 For the Northern District of California correct promptly any allegedly unlawful behavior and Plaintiff failed to take advantage of protective 11 UNITED STATES DISTRICT COURT 10 Answer). To the extent that Microsoft claims privilege, Plaintiff argues that it ought to at least 13 produce a privilege log. Id. 14 Microsoft replies that it provided Plaintiff with a report, it provided non-work product and non- 15 privileged information, and – unlike the Wellpoint employer who did an investigation and did 16 nothing (thereby calling into question the adequacy of its response) – it does not need to rely on the 17 adequacy of its investigation and can assert that it “took reasonable steps by initiating an 18 investigation, discussing the outcome with Plaintiff, and implementing remedial measures.” Id. at 4- 19 5. This can warrant an inference of reasonable remedial steps. Id. at 5. 20 Courts in the Northern District have held that an employer’s reliance on the reasonableness of its 21 investigation and the adequacy of its response can operate as waiver of attorney-client privilege. 22 See, e.g., Walker v. County of Contra Costa, No. C 03-03723 TEH (JL), 227 F.R.D., 529, 532-533 23 (2005) (collecting cases and analyzing Wellpoint). Microsoft is trying to tread a middle ground, 24 arguing that it is not relying on the adequacy of the investigation but instead it is relying on the fact 25 that it responded and took appropriate remedial steps, and Plaintiff failed to avail herself of what 26 Microsoft offered. Courts recognize that approach as different than relying on the reasonableness of 27 the investigation. See, e.g., Abudus-Sabur v. Port Auth., No. 00 CIV 5496 (VM), 2001 WL 111984, 28 *3-*4 (S.D.N.Y.Sept. 20, 2001). C 12-00943 RS (LB) ORDER 2 1 Under the circumstances of Microsoft’s assertion about how it will offer its defense, the court 2 follows the middle ground in Kaiser Foundation Hospitals, Inc. v. Superior Court as the appropriate 3 approach. See 66 Cal. App. 4th 1217, 1226, 228 (1998). There, the court held that if the employee 4 is afforded the full discovery of the investigation (except for specified communications implicating 5 privilege and work product), then there is no waiver. Id. at 1228. The approach makes more sense 6 than the depositions that Plaintiff wants instead. 7 On this record, the court orders disclosure of the factual investigation (but not communications 8 that are privileged) and a privilege log within 14 days. See ECF No. 60-1 (court’s privilege log 9 procedures). The court observes that privilege does not attach merely because lawyers are involved. 10 Here, the information that Plaintiff seeks is fact investigation than legal advice. This disposes of ECF Nos. 65 and 66.. 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 IT IS SO ORDERED. 13 Dated: April 5, 2013 14 _______________________________ LAUREL BEELER United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 12-00943 RS (LB) ORDER 3

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