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)

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