Marsh v. Bloomberg Inc. et al

Filing 25

ORDER by Judge Maria-Elena James re 23 Discovery Letter Brief. (mejlc3, COURT STAFF) (Filed on 5/22/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AMANDA MARSH,

Case No. 16-cv-02647-MEJ

Plaintiff,
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DISCOVERY ORDER

v.

Re: Dkt. No. 23

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BLOOMBERG INC., et al.,
Defendants.

United States District Court
Northern District of California

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INTRODUCTION
Plaintiff Amanda Marsh alleges she was subjected to sexual harassment by her supervisor,

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Mr. Musolf, and constructively terminated from her position in Sales Support at Bloomberg Media

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in San Francisco, California. See Compl., Dkt. No. 1. Pending before the Court is the parties’

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joint Letter Brief regarding Defendants’ responses to two of Plaintiff’s requests for production

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(“RFPs”). See Ltr. Br., Dkt. No. 23. Having considered the parties’ positions, the relevant legal

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authority, and the record in this case, the Court issues the following order.

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LEGAL STANDARD
Federal Rule of Civil Procedure 26 provides that a party may obtain discovery “regarding

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any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the

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needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Factors to consider include “the importance of the

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issues at stake in the action, the amount in controversy, the parties’ relative access to relevant

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information, the parties’ resources, the importance of the discovery in resolving the issues, and

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whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id.

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Discovery need not be admissible in evidence to be discoverable. Id. However, “[t]he parties and

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the court have a collective responsibility to consider the proportionality of all discovery and

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consider it in resolving discovery disputes.” Fed. R. Civ. P. 26 advisory committee notes (2015

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amendments). Thus, there is “a shared responsibility on all the parties to consider the factors

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bearing on proportionality before propounding discovery requests, issuing responses and

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objections, or raising discovery disputes before the courts.” Salazar v. McDonald’s Corp., 2016

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WL 736213, at *2 (N.D. Cal. Feb. 25, 2016); Goes Int’l, AB v. Dodur Ltd., 2016 WL 427369, at

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*4 (N.D. Cal. Feb. 4, 2016) (citing advisory committee notes for proposition that parties share a

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“collective responsibility” to consider proportionality and requiring that “[b]oth parties . . . tailor

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their efforts to the needs of th[e] case”).

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Rule 26(c) “confers broad discretion on the trial court to decide when a protective order is
appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S.

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20, 36 (1984). “The court may, for good cause, issue an order to protect a party or person from

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United States District Court
Northern District of California

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annoyance, embarrassment, oppression, or undue burden or expense,” including by (1) prohibiting

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disclosure or discovery; (2) conditioning disclosure or discovery on specified terms; (3)

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preventing inquiry into certain matters; or (4) limiting the scope of disclosure or discovery to

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certain matters. Fed. R. Civ. P. 26(c)(1).

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DISCUSSION
Plaintiff’s RFP No. 23 asks Defendants to produce “[a]ny and all documents relating to

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any investigations Defendants conducted related to sexual harassment or gender discrimination in

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the workplace.” See RFPs at 10, Dkt. No. 24. In the Letter Brief, the parties describe RFP No. 23

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as requesting “all complaints regarding gender discrimination, unfair pay or sexual harassment”

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(Ltr. Br. at ECF p.2), which is different than what is sought in RFP No. 23. The parties do not

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clarify whether their description of the RFP in the Letter Brief is the result of their efforts to

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narrow their disputes during meet and confer discussions. The undersigned will analyze the RFP

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as the parties describe it in the brief rather than as written. RFP No. 26 asks Defendants to

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produce “[a]ny and all settlement agreements or other releases of liability entered into with

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employees, or former employees, of Defendants concerning allegations of gender discrimination,

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unequal pay, or sexual harassment.” Id. at 11. The requests are not limited to time or geographic

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scope (see RFPs), but Plaintiff indicates in the Letter Brief that she does not “seek any documents

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from non-U.S. locations” (Ltr. Br. at ECF p.3).
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Defendants object to the RFPs on a number of grounds, including the privacy rights of

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third parties, the confidentiality of settlement agreements, irrelevance, and lack of proportionality.

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Defendants have offered to produce complaints of sexual harassment/gender discrimination

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against Mulof “and those higher in the Media Division management chain: Keith Grossman (Head

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of US Sales), Jacki Kelly (COO, Media Operation) and Justin B. Smith (Head of Media – Sales

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and Operation).” Id.

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Plaintiff argues RFP Nos. 23 and 26 request documents that are “especially relevant”

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because Defendants “have a long history of allegations of gender discrimination” and that the

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documents are admissible as “me too” evidence. Defendant argues “me too” evidence is not
admissible unless employees are similarly situated (i.e., they work in the same department and are

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United States District Court
Northern District of California

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supervised by the same person), and that the requests are not proportional to the needs of the case.

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Defendants further argue the requests violate third party privacy and confidentiality rights.

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Plaintiff fails to address how her requests are proportional to the needs of the case. See

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Ltr. Br. at ECF pp. 2-4. Plaintiff does not address “the amount in controversy . . . the importance

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of the discovery in resolving the issues, and whether the burden or expense of the proposed

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discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2). Defendants do (id. at 5);

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furthermore, Plaintiff does not respond to Defendants’ representation that the amount in

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controversy is limited to attorneys’ fees and possibly emotional distress damages. Even as limited

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in the Letter Brief, Plaintiff’s RFPs purport to require Defendants to undertake a search of offices

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in San Francisco, Chicago, and New York (as well as any other locations Bloomberg may have in

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the United States) over an unlimited period of time; Plaintiff’s assertion that Defendants already

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maintain complaints in a central file is unsupported (see Ltr. Br. at ECF p.3). Plaintiff’s position

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that privacy concerns only apply to California employees is also unsupported, as she fails to

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demonstrate that none of the other states in which Defendants operate have similar privacy laws.

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Plaintiff also fails to address the confidential nature of settlement agreements she requests in RFP

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No. 26, or explain why her need for such confidential documents outweighs the privacy interests

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of the parties who entered into them. She thus does not provide the Court with the information it

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needs to balance Plaintiff’s interest in the discovery with the expectation of confidentiality of the
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parties to confidential settlement agreements. See MedImmune, L.L.C. v. PDL BioPharma, Inc.,

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2010 WL 3636211, at *2 (N.D. Cal. 2010) (Courts “must balance [one party’s] interest in the

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discovery of potentially relevant information against [another party’s] interest in protecting a

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settlement negotiated with the expectation of confidentiality.”).

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The undersigned finds the RFPs, even as limited in the Letter Brief, are not proportional to

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the needs of the case. Defendants shall produce the documents they propose in their compromise

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(Ltr. Br. at ECF p.6). In addition, they shall produce all sexual harassment/gender discrimination

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complaints filed about any person working in Bloomberg’s San Francisco office, starting in

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December 2008 (five years before Plaintiff began her employ). The undersigned makes no finding
as to the admissibility of these other complaints. Plaintiff has not demonstrated that her need for

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United States District Court
Northern District of California

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discovering confidential settlement agreements outweighs the need for confidentiality of the

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parties to those settlement agreements. However, Defendants shall produce any settlement

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agreements involving claims of gender discrimination, unfair pay, or sexual harassment that (1) do

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not contain a confidentiality provision; (2) relate to employees working in the San Francisco

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office, Grossman, Kelly, or Smith; and (3) were executed starting in December 2008. Defendants

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shall comply with applicable California privacy laws in producing the information and redact the

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names and other personal identifying information of complainants; if Defendants believe

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additional protections are necessary before such documents can be produced, they shall meet and

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confer with Plaintiff to resolve the issue and/or submit a proposed protective order to the Court.

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Defendants shall produce the documents described in this Order within 30 days.

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IT IS SO ORDERED.

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Dated: May 22, 2017
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MARIA-ELENA JAMES
United States Magistrate Judge

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