Marcelo v. Perfumania, Inc. et al

Filing 43

ORDER re 39 , 41 Joint Discovery Letters. Signed by Magistrate Judge Donna M. Ryu on 09/28/2011. (dmrlc1, COURT STAFF) (Filed on 9/28/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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MARCELO,

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No. C-10-04740 SBA (DMR)
Plaintiff,

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v.

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PERFUMANIA, INC. ET AL,

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ORDER REGARDING SEPTEMBER 6
AND SEPTEMBER 26, 2011 JOINT
DISCOVERY LETTERS

Defendants.
___________________________________/

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Before the court are the September 6 and September 26, 2011 joint discovery letters

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submitted by Plaintiff Erlinda Marcelo and Defendants Perfumania, Inc. and Magnifique setting

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forth the parties’ dispute regarding discovery propounded by Plaintiff on Defendants [Docket Nos.

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39 & 41]. The court conducted a telephonic hearing on September 28, 2011, during which the

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parties were given an opportunity to present their arguments. This Order summarizes the rulings

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made by the court on the record during the September 28, 2011 hearing.

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I.

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Defendants' Responses to Plaintiff's Requests for the Production of Documents
As a preliminary matter, Defendants are ordered to amend their responses to all of the

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Requests for Production ("RFPs") at issue in the joint letters so that they comply with Federal Rule

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of Civil Procedure 34(b)(2) and state unambiguously whether Defendants have fully complied or

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will fully comply with each request; for example, as to Defendant Perfumania Magnifique,

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"Defendant has produced all responsive, non-privileged documents" or "Defendant will have

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produced all responsive, non-privileged documents by no later than October 10, 2011," and as to

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Defendant Perfumania, Inc. "No responsive documents exist." All amended responses shall be

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served on Plaintiff by no later than October 3, 2011.

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Defendants are also ordered to serve a privilege log on Plaintiff that lists all documents that

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have been withheld on the grounds of privilege and that is sufficiently detailed and informative for

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Plaintiff to assess whether a document's designation as privileged is justified. See Fed. R. Civ. P.

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26(b)(5); see also Docket No. 38, Notice of Reference and Order Re Discovery Procedures.

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Defendants shall serve a privilege log on Plaintiff by no later than October 7, 2011.

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II.

September 6, 2011 Joint Letter
A.

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For the Northern District of California

United States District Court

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Plaintiff’s request for an order compelling a further response to Interrogatory No. 8 is

Plaintiff’s Interrogatory Nos. 8 & 9 and RFP No. 20

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DENIED to the extent that Plaintiff is requesting the identification of legal authorities, rather than

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company policies and procedures that Defendants relied on in denying Plaintiff’s requests to be

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returned to her position as Store Manager. Such a request improperly seeks Defendants’ legal

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reasoning and theories, and therefore calls for information protected by the work product doctrine.

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Accordingly, Plaintiff’s request for an order compelling a further response to RFP No. 20, which

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seeks the production of all documents identified in response to Interrogatory No. 8, is also DENIED.

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Plaintiff’s request for an order compelling a further response to Interrogatory No. 9 is

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DENIED.

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B.

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Plaintiff’s RFPs
1.

RFP 6

Plaintiff’s request for an order compelling a further response to RFP 6 is GRANTED. Any

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policies and procedures that applied to Plaintiff's termination that fall outside the time period

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October 2006 through July 2008 and have not yet been produced shall be produced to Plaintiff by no

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later than October 5, 2011.

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2.

RFPs 7-10

Plaintiff’s request for an order compelling further responses to RFPs 7 through 10 is
GRANTED IN PART. The requests shall be narrowed as follows: Defendants shall produce all

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documents, including emails, letters, memos, and notes, that mention or relate to Plaintiff’s job

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performance, health, age, injury, disability, request for reasonable accommodations, ability to

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perform job duties, and complaints to, from, or about Plaintiff, for each of the individual managers

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for the time periods specified in the requests. All responsive documents shall be produced to

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Plaintiff by no later than October 5, 2011.

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3.

RFPs 12-13

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Plaintiff’s request for an order compelling further responses to RFPs 12 and 13 is

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GRANTED. By no later than October 3, 2011, Defendants shall serve amended responses to the

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RFPs that state that Defendants are not making the contentions specified in the RFPs and therefore
do not have documents responsive to the requests in their possession, custody or control.

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For the Northern District of California

United States District Court

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4.

RFPs 14-15

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Plaintiff’s request for an order compelling further responses to RFPs 14 and 15 is

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GRANTED. With respect to RFP 14, by no later than October 3, 2011, Defendants shall serve an

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amended response that states whether Defendants have complied in full with the RFP. Regarding

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RFP 15, Defendants shall serve an amended response by no later than October 3, 2011 that states

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that, based upon Plaintiff's representation that Plaintiff is not taking the position that hiring a helper

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for Plaintiff would have been a reasonable accommodation, Defendants are not making the

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contention specified in the RFP and therefore do not have documents responsive to the request in

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their possession, custody or control.

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5.

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RFPs 16-17

Plaintiff’s request for an order compelling further responses to RFPs 16 and 17 is
GRANTED.

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6.

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RFPs 18-19

Plaintiff’s request for an order compelling further responses to RFPs 18 and 19 is

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GRANTED.

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III.

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September 26, 2011 Joint Letter
A.

Plaintiff's Interrogatory No. 21

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Plaintiff's request for an order compelling a further response to Interrogatory No. 21 is

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DENIED. Defendants' response to Interrogatory No. 21, which incorporates their responses to

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Interrogatory Nos. 17 and 18, is adequate.

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B.

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Plaintiff's request for an order compelling a further response to Interrogatory No. 23 is

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DENIED. A request that Defendants identify legal authorities supporting a personnel decision

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improperly seeks Defendants’ legal reasoning and theories, and therefore calls for information

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protected by the work product doctrine.

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Plaintiff's Interrogatory Nos. 24-25 and RFPs 29-30

Plaintiff's request for an order compelling further responses to Interrogatory Nos. 24 and 25

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and RFPs 29 and 30 is GRANTED IN PART. Interrogatory Nos. 24 and 25 are narrowed as

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follows: Defendants shall identify by name, home and work address and home and work phone

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numbers all persons other than Plaintiff who worked in Defendants' stores in California and who,

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since January 1, 2004, were terminated or demoted as Store Managers because they were unable to

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do repetitive lifting of 35 pounds or were unable to do repetitive lifting above shoulder height. RFPs

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29 and 30, which correspond to Interrogatory Nos. 24 and 25, are also narrowed accordingly.

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By no later than October 10, 2011, Defendants shall serve supplemental responses to
Interrogatory Nos. 24 and 25 and all responsive documents to Plaintiff.

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D.

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Plaintiff’s request for an order compelling further responses to RFPs 27 and 28 is

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Dated: September 28, 2011

NO

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D

RDERE

OO
IT IS S

onna
Judge D

M. Ryu

RT

DONNA M. RYU
United States Magistrate Judge

ER

H

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N

R NIA

S
IT IS SO ORDERED.

FO

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RT
U
O

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S DISTRICT
TE
C
TA

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GRANTED.

A

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Plaintiff's RFPs 27 and 28

UNIT
ED

For the Northern District of California

United States District Court

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C.

Plaintiff's Interrogatory No. 23

F
D IS T IC T O
R

C