U.S. Equal Employment Opportunity Commission v. Abercombie & Fitch Stores, Inc.

Filing 83

ORDER that defendants and third-party CAIR exchange the information as set forth herein re 79 JOINT NOTICE OF EFFORTS TO MEET AND CONFER, filed by Hollister Co. California, LLC, Council on American-Islamic Relations, California (CAIR-CA), Abercrombie & Fitch Stores, Inc.. Signed by Judge Yvonne Gonzalez Rogers on 2/5/2012. (cp, COURT STAFF) (Filed on 2/5/2013)

Douglas E. Dexter, SB# 115868
1 Diego F. Acevedo, SB# 244693
FARELLA BRAUN + MARTEL LLP
2 235 Montgomery Street, 17th Floor
San Francisco, CA 94104
3 Telephone: [phone]
Facsimile: [phone]
4 E-mail: [e-mail]
E-mail: [e-mail]
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Mark A. Knueve (Ohio Bar No. 0067074)
6 Daniel J. Clark (Ohio Bar No. 0075125)
VORYS, SATER, SEYMOUR AND PEASE LLP
7 52 East Gay Street
P.O. Box 1008
8 Columbus, Ohio 43216-1008
Telephone: [phone]
9 Facsimile: [phone]
E-mail: [e-mail]
10 E-mail: [e-mail]
11 Attorneys for Defendants
ABERCROMBIE & FITCH STORES, INC. dba
12 HOLLISTER CO, HOLLISTER CO. CALIFORNIA,
LLC
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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U.S. EQUAL EMPLOYMENT
16 OPPORTUNITY COMMISSION,
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Case No.: CV 11-3162 YGR

Plaintiff,

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19 UMME-HANI KHAN,
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Plaintiff-Intervenor

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JOINT NOTICE OF EFFORTS TO MEET
AND CONFER ; AND ORDER RE SAME

vs.

22 ABERCROMBIE & FITCH STORES, INC.
dba HOLLISTER CO., HOLLISTER CO.
23 CALIFORNIA, LLC,
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Defendants.

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On January 29, 2013, the Court held a hearing on Defendants’ Motion for Sanctions [Doc.

27 #68] filed against CAIR-California (“CAIR-CA”) based upon CAIR-CA’s purported failure to
28 provide a 30(b)(6) witness as ordered by the Court. At the conclusion of the hearing, the Court

1 instructed Counsel for Defendants and Counsel for CAIR-CA to meet in-person and to discuss
2 what subjects Defendants still needed CAIR-CA to provide testimony on. Counsel for Defendants
3 and for CAIR-CA met for nearly two hours following the hearing.
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A. Subjects for Further Inquiry
Defendants identified two topics that are within the scope of the Court’s October 17, 2012
Order that additional testimony from a CAIR-CA designated witness is needed. First, Defendants

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need CAIR-CA to testify to its non-privileged, relevant communications with the EEOC during
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the EEOC’s investigation and conciliation process, including the offer of reinstatement.

10 Second, Defendants requested that CAIR-CA provide testimony regarding non-privileged,
11 relevant communications with Ms. Khan regarding Abercrombie or her allegations against
12 Abercrombie or CAIR-CA’s communications regarding Ms. Khan’s allegations. To further
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specify the communications at issue in greater detail, Defendants explained that the exhibits from
Mr. Ayloush’s deposition reflect statements by CAIR-CA or its representatives regarding Ms.

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Khan’s allegations. For the statements reflected in the exhibits, Defendants are interested in
whether the statement was made based upon information provided to CAIR-CA by Ms. Khan or

18 by Abercrombie.
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B. Process for Obtaining Testimony
Defendant had envisioned that CAIR-CA would provide a designated witness for
deposition. However, Counsel for CAIR-CA suggested that many of the subjects could be easily

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addressed by CAIR-CA in a sworn declaration or affidavit rather than through another deposition.
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Given that Defendants have already expended time and resources on a deposition, both parties

25 agreed that CAIR-CA will provide written sworn testimony in response to specific questions
26 identified by Abercrombie. Counsel discussed a process whereby Abercrombie would provide
27 within 7 days written questions to CAIR-CA addressing specific matters related to the above28 described topics. CAIR-CA would provide answers in writing and under oath by an adequate

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representative 14 days thereafter. Ideally, CAIR-CA’s written answers would be sufficient and

2 would avoid the need for a deposition. However, given the limitations of written testimony,
3 Abercrombie reserves the right to take the deposition if still necessary after Defendants have
4 received CAIR-CA’s written responses, and have met and conferred with CAIR-CA regarding any
5 outstanding issues, in the event that CAIR-CA’s written responses were inadequate, unclear, or
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incomplete. CAIR-CA reserves the right to seek the Court's protection if CAIR-CA believes that
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Defendants' attempt is not necessary and after the parties meet and confer.
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Respectfully submitted,

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/s/Daniel J. Clark_______________________

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Mark A. Knueve (Ohio Bar No. 0067074) Admitted Pro Hac Vice
Daniel J. Clark (Ohio Bar No. 0075125) Admitted Pro Hac Vice
VORYS, SATER, SEYMOUR AND PEASE LLP
52 East Gay Street
P.O. Box 1008
Columbus, Ohio 43216-1008
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]

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Douglas E. Dexter, SBN 115868
Diego Acevedo, SB# 244693
FARELLA BRAUN + MARTEL LLP
235 Montgomery Street, 17th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]

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Attorneys for Defendants
ABERCROMBIE & FITCH STORES, INC.
HOLLISTER CO.

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/s/ Aliah A. Abdo, Esq._________________________

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Omair M. Farooqui, Esq.
David R. Lawson, Esq.
Aliah A. Abdo, Esq.
Ellahie & Farooqui, LLP
12 South First Street, Suite 600
San Jose, California 95113

Phone: [phone]
Fax: [phone]
E-Fax: [phone]
www.eflawfirm.com

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Attorneys for Third-Party CAIR-CA

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the information as set forth herein.
February 5, 2013

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Judge Yv

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Dated:

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The Court ORDERS that Defendants and third-party CAIR exchange

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ORDER

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OF

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing JOINT NOTICE OF
EFFORTS TO MEET AND CONFER was electronically filed on January 30, 2013, with the
Clerk of Court through the CM/ECF system, which will send notice of electronic filing to the

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following:
Christopher Ho, State Bar No. 129845
Araceli Martínez-Olguín, State Bar No. 236561
The LEGAL AID SOCIETY – EMPLOYMENT LAW CENTER
180 Montgomery Street, Suite 600
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail], [e-mail]

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Zahra Billoo, State Bar No. 267634
13 COUNCIL ON AMERICAN-ISLAMIC RELATIONS (CAIR)
3000 Scott Blvd., Suite 101
14 Santa Clara, CA 95054
Telephone: [phone]
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Facsimile: [phone]
16 Email: [e-mail]
17 Attorneys for Intervenor
UMME-HANI KHAN
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Sirithon Thanasombat
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Marcia L. Mitchell, SBN 18122 (WA)
20 U.S. EEOC, San Francisco District Office
350 The Embarcadero, Suite 500
21 San Francisco, CA 94105
Telephone No. [phone]
22 Fax No. [phone]
23 [e-mail]
[e-mail]
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Attorneys for Plaintiff EEOC
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/s/ Aliah Abdo_______________________
Aliah Abdo