Doubt v. NCR Corporation

Filing 150

ORDER DENYING WITHOUT PREJUDICE re 149 Letter Brief filed by Terry Doubt. Signed by Judge Joseph C. Spero on 6/27/13. (klhS, COURT STAFF) (Filed on 6/27/2013)

JOHN ELSON
ATTORNEY AT LAW
1840 41st Ave.
#102-176
Capitola, CA 95010-2527
831-475-8535 voice
[e-mail]

June 25, 2013

S

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Judge Jo

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This letter constitutes

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Dated: 6/27/13

Dear Magistrate Judge Spero:

R NIA

NO

Doubt v. NCR
Case # C09-05917 SBA

UT
WITHO
ENIED DICE
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PREJU

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UNIT
ED

Re:

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Magistrate Judge Joseph C. Spero
United States District Court
450 Golden Gate Avenue
San Francisco, CA 94102-3611

N

F
D IS T IC T O
R

C

(1)

plaintiff’s objection to the adequacy of the proposed search to be undertaken by NCR as
per the parties’ stipulation on the record on June 14, 2013, and your June 17, 2013 order
thereon;

(2)

plaintiff’s application for you to supplement your order; and

(3)

plaintiff’s application for a further compliance hearing to take place on July 19, 2013, at
9:30am, in your Court.

In sum, the search NCR has proposed ignores where the documents are likely to be found,
and what NCR proposes guarantees that few, if any, of the documents NCR agreed to produce
will be produced for the reasons explained below.
I
THE DUTY TO SEARCH WHEREVER THE DOCUMENTS MAY BE FOUND
It is settled that “[a] party responding to a Rule 34 production request ... ‘is under an
affirmative duty to seek that information reasonably available to [it] from [its] employees, agents,
or others subject to [its] control,’ ”A. Farber and Partners, Inc. v. Garber (C.D. Cal. 2006) 234
F.R.D. 186, at 188, quoting from Gray v. Faulkner (N.D.Ind.1992) 148 F.R.D. 220, 223.
In that regard, the responding party must devise and employ “ ‘a reasonable procedure to
distribute discovery requests to all employees and agents of the [party] potentially possessing
1

responsive information, and to account for the collection and subsequent production of the
information to [the opposing party],’ ” A. Farber, 234 F.R.D. at 190, quoting from National
Ass'n of Radiation Survivors v. Turnage (N.D.Cal.1987) 115 F.R.D. 543, at 556.
As a California court noted concerning a PMK deposition notice coupled with a demand
for documents, “When a request for documents is made, however, the witness or someone in
authority is expected to make an inquiry of everyone who might be holding responsive
documents or everyone who knows where such documents might be held,” Maldonado v.
Superior Court (2002) 94 Cal.App.4th 1390, at 1396.
When the search proposed by NCR is measured against these obligations in light of the
particular documents sought, and what the parties have learned of those documents from either
the documents themselves or the testimony of witnesses, it is obvious the search NCR has
proposed is designed to come up empty handed rather than produce documents which inarguably
exist.
II
TOO FEW INDIVIDUALS’ IMAGED HARD DRIVES
AND/OR MAILBAGS ARE BEING SEARCHED
What NCR proposes is to search only computer imaged hard drives, and electronic
mailbags for 3 people: Brenda Michalek, John Foote, and Vicki Rennick.
While searching the hard drives or mailbags of any particular employee or former
employee will not yield many of the documents sought for reasons explained below, at a
minimum, NCR should also search both imaged hard drives, and mailbags, of the following in
addition to Michalek, Foote and Rennick:
Bruce Schagunn:

former Asst. Field Operations Director under John Foote and then his
successor, John Harvey; Schagunn was identified by NCR’s initial rule 26
disclosure as someone who had knowledge of the circumstances
surrounding plaintiff’s firing;

Steve Battleson:

former VP for NCR’s Western Area, and the supervisor of Field
Operations Directors John Foote ,and his successor, John Harvey;

Gerald Stover:

former HR Consultant who succeeded Brenda Michalek and was the HRC
with whom Erick Aguilar corresponded concerning plaintiff’s termination;

Christine Wallace:

former Sr. Vice-President, who has been designated as a PMK for NCR’s
Rule 30(b)(6) deposition July 9th;

2

Joe Hoyle:

former VP for HR; and

Andrea K. Ledford:

current NCR Sr. VP for HR.

Any current or former HR consultant whose computer hard drive is available to searching.
III
WHY THE PROPOSED SEARCH IS INADEQUATE AND
WHAT NCR SHOULD BE ORDERED TO DO
For the ease of the Court plaintiff will set forth each category and explain why the
proposed search is inadequate, and what else NCR should be ordered to do in addition to
searching the computer hard drives and mailbags of various individuals.

A.

Each and every "Performance Management Policy" providing guidance in 2007 or 2008
to Territory Managers and/or Field Operations Directors on the evaluation of , and/or
discipline to be imposed upon, Customer Engineers, including but not limited to that
referred to by former NCR HR Director Vicki Rennick during her May 23, 2013
deposition at pp.52, line 1, through page 53, line 16. Documents responsive to this
request may be produced electronically in PDF format, or in paper hardcopy, at the option
of NCR.

Why the proposed search is inadequate and what else NCR should be ordered to do in
searching for responsive documents:
As these documents originated in HR, for use by the field personnel in supervisilng CEs,
the search should begin by contacting HR personnel.
There is no basis for believing that any of the three individuals’ computers and/or
mailbags would have the "Performance Management Policy" that former HR Director Vicki
Rennick testified exists:
Q

If I were to want to ask the company for that document, what language
should I use?

A

You would ask for the performance management policy.

Q

Was that something that was in a hard copy given to the territory managers,
or was it something available to them from NCR's intranet or from some
other electronic source?

3

A

It was available electronically on the NCR internet, and there were many
different documents about objective setting and then managing
performance against objectives where they could go out and download
policies. They could take training. They could access, you know, FAQs for
that, and then also from the internet, they could -- they could access one of
the sites. It was where all the policies were stored, and they could download
and print physical documents if they chose to.

Q

Were those performance management policies or guidelines available in
2007 and 2008?

A

Yes. I believe so.

Q

Is that something the company has maintained for years?

A

Yes.

Rennick May 23, 2013 depo, pp.52:19-53:15.
That there may not be a central repository for HR policies is hardly justification for
failing to contact the HR personnel, whether Sr. VP Ledford, or those down the chain of
command who would presumably know where the document now resides, if not at the location
where it was in 2008, as Rennick testified NCR maintained it “for years” prior to Rennick
leaving NCR in 2011. The Court’s order of November 23, 2010 required NCR to produce
responsive HR policies, and had NCR made a good faith effort to comply then Rennick could
have easily located and produced it; NCR should not be allowed to profit now by claiming
inability to locate it after Rennick has left the company.
NCR was clearly on notice to preserve the Performance Management Policy, and
conspicuously absent from the declarations is any suggestion, much less claim, that it no longer
exists.
Before searching hard drives and/or mailbags, NCR should be ordered to contact the
current HR Director (whoever holds Vicki Rennick’s position), the current VP for HR (whoever
holds Joe Hoyle’s position), Andrea K. Ledford, current Sr VP for HR, and all currently
employed HR Consultants, to see if any of them can provide the document responsive to this
category
Given the ease of contacting these people with an email asking them to look for, and send
to NCR’s paralegal, whatever they find that is responsive, this is the minimum NCR must do to
comply with its obligation to make such efforts as are necessary to locate and produce the
document.
4

If that fails to turn up the document, then NCR should search the hard drives of Michalek,
Foote, Rennick, Schagunn, Battleson, Stover, Wallace, Hoyle and Ledford.
B.

The electronically stored information, referred to by former NCR HR Director Vicki
Rennick during her May 23, 2013 deposition at p.128, lines 8-16, constituting that portion
of the Excel spreadsheet which contains information concerning Terry Doubt's April 1,
2008 placement upon a Performance Improvement Program. (NB: ESI responsive to this
request shall be produced electronically in MS Excel format.)

C.

The electronically stored information, referred to by former NCR HR Director Vicki
Rennick during her May 23, 2013 deposition at p.128, lines 8-16, constituting that portion
of the Excel spreadsheet which contains information concerning each and every customer
engineer in the750B Territory supervised by Erick Aguilar who was placed upon any
Performance Improvement Program during 2008. ESI responsive to this request shall be
produced electronically in MS Excel format.

Why the proposed search is inadequate and what else NCR should be ordered to do in
searching for responsive documents:
Initially, plaintiff notes that the search term NCR proposed was “share drive” when the
emails referred to a “shared drive,” making it possible that use of the wrong adjective may cause
a search to miss a document that might otherwise be found if the term “shared drive” were used
in the search.
There is no basis for believing that any of the three individuals’ computers would have
the information from the Excel spreadsheet, whether concerning Terry Doubt alone (category B)
or the customer engineers in the 750B territory supervised by Erick Aguilar (category C).
After describing the existence of the spreadsheet, Rennick testified as follows:
Q

Who were the people that would have input comments, the HR
professionals, whether HRC, yourself, others?

A

Correct.

Q

Would the territory managers or those in operations, field operations
director, would they make comments on that spreadsheet?

A

No. They did not have access to it.

Rennick May 23, 2013 depo, pp. 131:22-132:4.
5

At the hearing on June 14, 2013, NCR’s counsel, Patrick Mullin, represented that one of
the documents in this case1 was taken from NCR’s response to the DFEH charge of age
discrimination filed by plaintiff’s co-worker, and fellow Monterey Team member Michael
Knapp, who was fired in June of 2008, three months before NCR fired plaintiff.
NCR was clearly on notice to preserve the spreadsheet, and conspicuously absent from
the declarations is any suggestion, much less claim, that it no longer exists.
D.

The electronically stored information constituting the “templates” which “have been
created to define metrics and document targets for each metric,” as stated in Andrea K.
Ledford’s April 18, 2008 10:28am email which has been marked as exhibit 47.
(NB: ESI responsive to this request shall be produced electronically in any format
readable by the programs comprising Microsoft Office, or in PDF format, as long as all
information in the ESI is accessible when produced, or in paper hardcopy, at the option of
NCR.

E.

The electronically stored information which would instruct, or provide guidance to, the
territory manager to “allow the manager to make allowances for special circumstances
that may have impacted an individual employee's ability to meet a specific objective” as
stated in Andrea K. Ledford’s April 18, 2008 10:28am email which has been marked as
exhibit 47. ESI responsive to this request shall be produced electronically in any format
readable by the programs comprising Microsoft Office, or in PDF format, as long as all
information in the ESI is accessible when produced, or in paper hardcopy, at the option of
NCR.

Why the proposed search is inadequate and what else NCR should be ordered to do in
searching for responsive documents:
See comments concerning category A.
Moreover, as Ledford is still apparently employed by NCR, any effort to locate the
templates and guidelines/instructions should start by contacting her, and going from there.
Ledford’s April 18, 2008 10:28am email was produced by plaintiff to NCR as part of
plaintiff’s continuing initial disclosure in both hardcopy and electronically. The electronic copy
has two links that may contain the templates and/or guidelines/instructions,
“http://hrexpress1.ncr.com/hrexpress/benefits/bpp/bpp_home_2008.asp” and
“http://hrexpress1.ncr.com/hrexpress/training/perfmeas/perfmeas_home.asp.”

1

Exhibit 5, a chart showing the names and ages, inter alia, of 750B territory customer
engineers from June 2008 through April 2009.
6

If an electronic search is to be done, having the address should make locating the
document it a snap.
F.

Those documents which gave guidance or direction to NCR generally, and not concerning
any specific Customer Engineer, on the custom and practice testified to by Vicki Rennick
at page 74, line 18 through page 75, line 21, of her May 23, 2013 deposition, to the effect
that when a Customer Engineer was on a 60 day Performance Improvement Plan, if he or
she was not improving, then 30 days before the end of the PIP NCR would issue a 30 day
written warning to the CE. Documents responsive to this request may be produced
electronically in PDF format, or in paper hardcopy, at the option of NCR as long as the
color scheme of the original ESI is preserved.

Why the proposed search is inadequate and what else NCR should be ordered to do in
searching for responsive documents:
See comments concerning category A.
G.

The entire response submitted by NCR to the California Department of Fair Employment
and Housing, of which exhibit 5 was a part, to the charge of discrimination made by
Michael Knapp. Documents responsive to this request may be produced electronically in
PDF format, or in paper hardcopy, at the option of NCR as long as the color scheme of
the original ESI is preserved.

While inquiring of the legal department is a good first step in the absence of any other
information as to the document’s location, NCR ignores that Rennick testified where it could be
found:
Q

If Michael Knapp, following his termination made a claim with a California state agency
known as the DFEH, which is essentially the California counterpart to the EEOC, would
that be something that would cross your desk?

A

No.

Q

Would it be something that anyone in the HR department would respond to?

A

Yes. The employee relations group.

Rennick May 23, 2013 depo, pp. 147:20-148:3.

H.

Each and every draft of any performance evaluation for Terry Doubt for calendar 2007
prior to the final version marked as exhibit 34. Documents responsive to this request may
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be produced electronically in PDF format, or in paper hardcopy, at the option of NCR as
long as the color scheme of the original ESI is preserved.
I.

Each and every piece of electronically stored information, sent either to or by John Foote,
concerning the content or revision of any draft of the performance evaluation for Terry
Doubt for calendar 2007, prior to the final version marked as exhibit 34. Documents
responsive to this request may be produced electronically in PDF format, or in paper
hardcopy, at the option of NCR as long as the color scheme of the original ESI is
preserved.

J.

Each and every piece of electronically stored information, sent either to or by John
Harvey, concerning the content or revision of any draft of the performance evaluation for
Terry Doubt for calendar 2007, prior to the final version marked as exhibit 34.
Documents responsive to this request may be produced electronically in PDF format, or
in paper hardcopy, at the option of NCR as long as the color scheme of the original ESI is
preserved.

K.

Each and every piece of electronically stored information, sent either to or by Bruce
Schagunn, concerning the content or revision of any draft of the performance evaluation
for Terry Doubt for calendar 2007, prior to the final version marked as exhibit 34.
Documents responsive to this request may be produced electronically in PDF format, or
in paper hardcopy, at the option of NCR as long as the color scheme of the original ESI is
preserved.

L.

Each and every piece of electronically stored information, sent either to or by Erick
Aguilar, concerning the content or revision of any draft of the performance evaluation for
Terry Doubt for calendar 2007 prior to the final version marked as exhibit 34.
Documents responsive to this request may be produced electronically in PDF format, or
in paper hardcopy, at the option of NCR as long as the color scheme of the original ESI is
preserved.

Why the proposed search is inadequate and what else NCR should be ordered to do in
searching for responsive documents:
These categories underscore why searching the three individuals’ computers and/or
mailbags are not enough; Bruce Schagunn was Foote’s assistant during this period and the image
of the harddrive from his computer and/or mailbag may have either the drafts of the evaluation or
emails concerning its revision by Foote.
NCR should not only include Schagunn’s hard drive and/or mailbag in its search, it
should also search the office(s) where Schagunn, Foote, and later Harvey worked in 2008.

8

M.

All versions of any maps or charts reflecting NCR's demarcations in 2008 of the West,
Central, Northeast, Southeast areas of the U.S. or NCR's subareas in the U.S. or NCR's
territories in the U.S. Documents responsive to this request may be produced
electronically in any format readable by Micrsosoft Office, or in PDF format, at the
option of NCR as long as the color scheme of the original ESI is preserved.

N.

All versions of any maps or charts reflecting the locations of NCR's customers in the
750B Territory in 2008. Documents responsive to this request may be produced
electronically in any format readable by Micrsosoft Office, or in PDF format, at the
option of NCR as long as the color scheme of the original ESI is preserved.

Why the proposed search is inadequate and what else NCR should be ordered to do in
searching for responsive documents:
First of all, the existence of maps was disclosed by Bruce Schagunn’s March 18, 2008
email, which is page 2 of exhibit 69:
From:
Sent:
To:
Cc:

Schagunn, Bruce
Tuesday, March 18, 2008 6:09 PM
Hawkins, David L
Foote, John; Aguilar, Erick; Harvey, John A; Donahue, Thomas J;
Sidwell, Chauna R; Schagunn, Bruce
Subject:
Remap a Few Work Groups in 750
Importance: High
David, We need to move boundaries around on a few territories:
750H4X Fairfield boundary moved East a bit
750H2X, 6X, 7X .. boundary moved south
750M no OCE, 48.. Boundary moved south
Can you make these boundaries effective 3/24? Or will you need another week?
Can you glean the workgroups and Zips off of the map to feed into Zip to Zone?
Will these changes be sent to the proper person who changes CAS assignments?
Accordingly, the first step would be to talk to David Hawkins, if still employed by NCR,
and if not, then whoever replaced him in whatever department he worked in.
Moreover, according to Erick Aguilar, NCR’s corporate office, not the hard drives of
individuals, is the place where the maps responsive to these requests would be found:
Q

We'll mark as Exhibit 69 a document that's previously been so marked,
your e-mail of March 19, 2008.

9

(Exhibit 69 marked for Identification.)
Q:

Did the corporate office have the ability to generate maps showing which
localities were in which territories?

A

Yes, they did. Yeah.

Q

Was that something that you could get whenever you wanted it?

A

Right.

Aguilar May 2, 2013 depo, pp. 88:23-89:7.
O.

Each and every piece of electronically stored information which NCR contends shows
that in 2008 NCR placed any Customer Engineers, other than Terry Doubt and Michael
Knapp, on Performance Improvement Plan for failing to meet SLAs. Documents
responsive to this request may be produced electronically in a format readable by
Microsoft Office, or in PDF formats, or in paper hardcopy, at the option of NCR as long
as the color scheme of the original ESI is preserved.

Why the proposed search is inadequate and what else NCR should be ordered to do in
searching for responsive documents:
NCR has inappropriately limited the search to a CE being placed on PIP as part of a
“company-wide” initiative.
Moreover, as Bruce Schagunn was the Assistant Field Operations Director who in 2008
reported to John Foote, and then John Harvey after he succeeded Foote, his hard drive and
mailbag should be searched.
Finally, the offices where Schagunn, Foote and Harvey worked should be searched for
any hardcopies, not merely electronically stored information.
P.

Each and every piece of electronically stored information announcing, or commenting
upon the implementation, of NCR’s decision in 2007 to place more emphasis on SLAs in
evaluating Customer Engineer’s job performance,

Why the proposed search is inadequate and what else NCR should be ordered to do in
searching for responsive documents:
As NCR’s PMK John Harvey testified, the 2007 decision to place more emphasis on
SLAs came from the corporate office; searching the hard drives of Foote, Harvey and Michalek is
10

a start. but inquiry oft I) John Jl arvey. and (2) thos~ in HR at NC R's corpol<ltc o n ice. would
likcly yield mor~ information as 10 the sea ch~lIlge which Harvey described as NC R's PMK:

Q.

Sir, if Michael Knapp was mted as an unsa tisfactory employee lor lour
),ears running. \\ hy was he nottcrminatcd bcl()re then?

A.

Well. 1 believc I just answer..:d that o n yo ur previous qu..:stion. that when I
said es pccially now in thc past fo ur or Jive y~ars. roughly. Prior to that.
NC R . we didn't just term inate somcone tor S LA pcrtonnancc prior to th<.\1.
It wasn't until the '07 III prescnt that wc'vc insti tulcd a process where if we
consistenlly do nol meet mil' S LAs. Ih at yOll could -- you could lose your
job. you could be lerminat ed. Prior 10 thai we were much more - much
11101''': laxl'd as a company in that regard.

NC R ivhl rch 15.2013 (kpo, John lI arvey as PMK, pr· 60: 17-6 1:3.
NCR should be (lHlen.'ci 10 C011l:l\:[ all c urrent members of NC R m<lnHgC1l1enl. from
President Bill Nuti and Sr. VP IIR Andrea Ledford. all the way down. 10 determine the existence
amllotation of dOC lllllcnt\ re\ponsivc to this category.
NCR shoulu abo search thc imaged ha rd drives and mail bags orthe ronner cill ploy..:..:s
idcntili..:d in section II. abovc. for doc ulllcnts respons iv..: to this categOl)'.

IV
THE COU RT SllOUL D SET A (' URTHER COMPLIA NCE H EA RI NG A~D OR DER
'i C R TO PROD UCE I ND I V ID UA L S TO BE EXA\'II NED I N AUDIT I ON TO
I' ROVIDI'i G A FUn-H ER HEC L ARATION BY J ULY 1, 2013
As rcllc(;lCd by tht: Cou r!' s (;Ollllllcnl ,II thc June 14. 201 3 cOlKeming NC Rs' dOl':U1ll CntC'c\
hi~tory of l~li1ing 10 search adequatel y for documents. in addition to provi din g thc follo w- up
dcclaration by Jul y 1. 20 13 concerning why ally responsive UOUlillCllt s w..:rc not produ<::cd.
plaintilT SUblllllS that th c Court sholiid also order

1.

A follow-ti p cOll1 pliancl' hearing be set lor July 19.1013 at 9:30 a.m.: :Jlld

2.

NC R shoul d produ!;'c lor exallli n:lIion at th..: J uly 19'h hearing persons who were
lmol\'('d in NCR's cftorts to searth t()r and producc documcnts with rcgard to any
catc!!orics 101' \\ h ich NCR was unable to producc all responsl\ e dOl:ul1lcnlS ..

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12