Baird v. Office Depot
Filing
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ORDER by Judge Edward M. Chen Re 27 28 Parties' Joint Letters of July 19, 2013. (emcsec, COURT STAFF) (Filed on 7/24/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MICHAEL BAIRD,
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Plaintiff,
v.
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For the Northern District of California
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United States District Court
No. C-12-6316 EMC
OFFICE DEPOT,
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Defendant.
___________________________________/
ORDER RE PARTIES’ JOINT LETTERS
OF JULY 19, 2013
(Docket Nos. 27, 28)
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Currently pending before the Court are two letters submitted by the parties regarding
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discovery disputes. The disputes are related. In essence, the issue for the Court is (1) whether
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Defendant should be required to respond to Interrogatories Nos. 2-5 and (2) whether Defendant’s
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objection to Interrogatory No. 37 is proper.
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The Court orders Defendant to respond to Interrogatories Nos. 2-5. The Court acknowledges
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that this means that Plaintiff will be permitted to propound more than 25 interrogatories. However,
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Rule 33(a) provides that “additional interrogatories may be granted to the extent consistent with
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Rule 26(b)(2).” Fed. R. Civ. P. 33(a). Under Rule 26(b)(2), a court may consider whether “the
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burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of
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the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in
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the action, and the importance of the discovery in resolving the issues.” Fed. R. Civ. P.
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26(b)(2)(C)(iii). Here, the benefit of the discovery outweighs the burden, particularly because
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Interrogatories Nos. 2-5 simply ask Defendant to provide facts supporting four affirmative defenses
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– a very minimal burden. If Defendant has no facts to support an affirmative defense at the time,
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then it should so state and it should also withdraw the affirmative defense. This would not,
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however, preclude Defendant from seeking to amend its answer to add the previously pled
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affirmative defense if, e.g., discovery reveals facts to support that defense.
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As for Interrogatory No. 37, it provides as follows: “If Plaintiff had been promoted to
and bonuses, assuming no time off for medical leave, through April 30, 2013?” Based on the joint
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letter, it appears that Defendant’s main objection to the interrogatory is that “it improperly calls for
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speculation and expert testimony.” Docket No. 28 (Joint Letter at 2). In spite of this objection,
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Defendant has offered to provide Plaintiff with the potential salary range for Assistant Store
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Managers in the stores where Plaintiff applied for the Assistant Store Manager position. This
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For the Northern District of California
Assistant Store Manager in January, 2012, how much would he have earned, per month, in salary
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United States District Court
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information would not include either overtime or bonus information. Defendant indicates that it
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cannot provide overtime or bonus information because there is much variance depending on the
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individual (particularly because bonuses are performance based). In response, Plaintiff asked for
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“the directly comparable information of the Assistant Store Manager’s actual earnings during the 16-
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month period.” Docket No. 28 (Letter at 1).
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Plaintiff’s interrogatory is poorly worded. It asks how much he would have earned; it does
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not ask how much other Assistant Store Managers have earned. Thus, Defendant’s point that the
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interrogatory calls for speculation and expert testimony is well founded. Defendant has offered what
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is, for the most part, a fair compromise. Thus, the Court orders Defendant to provide in an
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interrogatory response what is the potential salary range for Assistant Store Managers in the stores
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where Plaintiff applied for the Assistant Store Manager position. Defendant should also indicate, in
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its response, whether that range accounts for overtime and/or bonuses. If not, then Defendant should
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state what factors are considered in determining bonuses (as suggested in the joint letter).
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This order disposes of Docket Nos. 27 and 28.
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IT IS SO ORDERED.
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Dated: July 24, 2013
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_________________________
EDWARD M. CHEN
United States District Judge
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For the Northern District of California
United States District Court
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