Zody v. Microsoft Corporation

Filing 102

ORDER re 92 93 joint letter briefs. Signed by Magistrate Judge Laurel Beeler on 7/24/2013. (lblc2, 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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SAN FRANCISCO DIVISION
S. ZODY,

No. C 12-00942 YGR (LB)

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Plaintiff,

ORDER RE: JOINT LETTER BRIEFS

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v.

[Re: ECF Nos. 92 & 93]

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MICROSOFT CORPORATION,
Defendant.
___________________________________/

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INTRODUCTION

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In this employment discrimination case, the parties have discovery disputes. See Joint Letter

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Briefs, ECF Nos. 92 and 93. The court held a hearing on July 24, 2013, and the parties informed the

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court that they had reached a tentative settlement. Microsoft intimated that it mooted the discovery

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differences, and Ms. Zody suggested that the court should decide the disputes anyway. Based on the

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joint letters filed and the arguments of counsel in this and the related case Oliver v. Microsoft Corp.,

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No. C 12 00943 RS (which raises similar issues), the court grants discovery regarding the

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confidential documents and orders disclosure of the factual investigation that it ordered previously in

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Oliver in April 2013. See Oliver, No. C 12 00943 RS, 4/5/13 Order, ECF No. 72.
ANALYSIS

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I. MICROSOFT’S DISCOVERY REQUESTS RE CONFIDENTIAL DOCUMENTS
Ms. Zody had an employment agreement with Microsoft that required her not to disclose

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confidential information to anyone outside of Microsoft during her employment. Joint Letter Brief,

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ECF No. 92 at 1. She filed this lawsuit when she was still employed at Microsoft and produced

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confidential documents back to Microsoft in response to discovery requests. Id. Microsoft wants

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her to admit that she provided the documents to her attorney, admit that she was employed by

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Microsoft when she produced them, admit that the information was confidential, admit that her

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employment agreement required her to return documents when she left, admit that a failure to return

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confidential documents is a breach of her employment contract or provide reasons why it was not,

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and admit that her attorney abetted her breach. Id.

counterclaim for breach of contract based on the disclosure of Microsoft’s confidential documents.

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The information thus “is relevant to any party’s claim or defense.” See Fed. R. Civ. P. 26(b)(2)(C).

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For the Northern District of California

Here, unlike in the lawsuit in Oliver v. Microsoft, C 12-00943 RS, Microsoft has alleged a

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UNITED STATES DISTRICT COURT

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As to whether the dates that Ms. Zody provided documents are privileged, the weight of authority

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provided by Microsoft establishes that the dates are not privileged. See Joint Brief, ECF No. 92 at 2-

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3 (citing Morrocco v. Hill, 2013 U.S. Dist. LEXIS 10211, at *7-8 (D. Nev. Jan. 24, 2013); Samuels

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v. Mix, 22 Cal. 4th 1, 20 n.5 (1999); Aerojet-General Corp. v. Transport Indemnity Ins., 18 Cal.

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App. 4th 996, 1004-05 (1993)).

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As to the burdens, Ms. Zody’s counsel points out that figuring out every communication over the

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two years of her representation is burdensome and veers into a harassing intrusion into the attorney-

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client relationship. Id. at 5. The court agrees. It is hard to see why the exact dates are so important:

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the timing of production either shows or does not show whether she was employed at the time of

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production. That being said, for the documents produced back, it is not a burden for Ms. Zody and

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her lawyer to confirm one way or another whether she produced them to her attorney while she was

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at Microsoft or after she left. This fact clarification addresses disputed facts and streamlines

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disputed facts at trial. See Apple v. Samsung Elecs. Co., 2012 U.S. Dist. LEXIS 38508, *24-25

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(N.D. Cal. Mar. 20, 2012). If exact dates can be provided relatively easily, Ms. Zody should provide

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them. If not, then the fact clarification can be tied to whether Ms. Zody was employed at Microsoft.

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As to the requests for admission in numbers three through six, these are legal conclusions and

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they are not the application of law to facts that Microsoft suggests. See id. at *16-27 (discussing the

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distinction between pure legal questions and legal conclusions or opinions that relate to the facts of a

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case). The fact points here are easy and should be addressed. The pure legal conclusion about

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whether undisputed facts are a breach of contract is a question for summary judgment.

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II. THE DISCOVERABILITY OF THE MIMS REPORT

court ordered disclosure of the factual information in Microsoft’s internal investigation (but not

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privileged communications). 4/5/13 Order, ECF No. 72 at 1-4 (noting that communications are not

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privileged merely because lawyers make them). The balance that the court struck was for fact

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illumination as a way to avoid deposing the high-level Microsoft employees Ms. Oliver wanted to

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depose. See id. Microsoft then gave over the notes of interviews and emails. Joint Letter Brief,

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ECF No. 93 at 1. It withheld what the court thought was an actual typed-up report that the

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For the Northern District of California

This issue is related to a similar issue in Oliver v. Microsoft, No. C 12-00943 RS. There, the

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UNITED STATES DISTRICT COURT

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investigator (an in-house attorney named Judy Mims) prepared and argues that it was prepared for

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and at the direction of Microsoft’s in-house counsel to enable her to provide legal advice to HR and

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management. Id. As it turns out, at the hearing, Microsoft clarified that there was no report (at least

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in the sense that was the court’s understanding following the previous discovery hearing) and

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instead, there was certain fact investigation that was disclosed (along with documentation that had

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been provided to in-house counsel in PDF form on a separate CD). The remaining information at

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stake is three emails sent directly to in-house counsel. Id. at 2.

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The court’s prior order in Oliver directed the disclosure of the fact investigation. It was not the

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intent to provide confidential communications but only fact investigation separate from those

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communications. The emails themselves to counsel are not fact investigation but privileged

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communications. That being said, the court’s order was to produce the fact investigation, and

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Microsoft should be sure that it has done so.

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CONCLUSION

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This disposes of ECF Nos. 92 & 93.

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IT IS SO ORDERED.

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Dated: July 24, 2013
_______________________________
LAUREL BEELER
United States Magistrate Judge

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