Yarum v. AlliedBarton Security Services, LP

Filing 49

ORDER GRANTING IN PART and DENYING IN PART 22 Motion to Compel; and DENYING 25 Motion for Sanctions. Pursuant to Civil Local Rule 7-1(b), the 10/05/2010 hearing is VACATED. Signed by Magistrate Judge Howard R. Lloyd on 09/30/2010. (hrllc1, COURT STAFF) (Filed on 9/30/2010)

Yarum v. AlliedBarton Security Services, LP

Doc. 49

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** E-filed September 30, 2010 **

NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MARY C. YARUM, Plaintiff, v. ALLIEDBARTON SECURITY SERVICES, LP; and DOES 1-100, Defendant. ____________________________________/ No. C09-05615 JW (HRL) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL AND DENYING PLAINTIFF'S MOTION FOR SANCTIONS [Re: Docket Nos. 22, 25 & 45]

United States District Court

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For the Northern District of California

BACKGROUND Plaintiff Mary Yarum ("Yarum") is a former employee of defendant AlliedBarton Security Services, LP ("AlliedBarton"). Yarum worked as a security guard and suffered an on-the-job injury in December 2007, so she was put on medical leave. According to Yarum, her physician released her to return to work in March 2008 under certain medical restrictions. She contends that even though (according to her) she was able to perform her duties despite these restrictions, AlliedBarton did not permit her to return to work and eventually terminated her in June 2008. Yarum thereafter filed suit in California state court alleging wrongful termination and violations of California's Fair Employment and Housing Act, Cal. Gov. Code § 12940 et seq. ("FEHA"). AlliedBarton removed the action to federal court in November 2009 on the basis of diversity.

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On May 3, 2010 Yarum propounded 14 interrogatories and 9 requests for the production of documents to which AlliedBarton responded.1 Yarum did not believe that AlliedBarton's responses were sufficient, though, and after a particularly unproductive meet and confer, filed a motion to compel further responses (Docket No. 22 ("MTC") and a motion for sanctions (Docket No. 25 ("MFS"). Upon reviewing the papers, it was clear that the parties did not confer in good faith before Yarum filed her motion to compel, so the Court continued the original hearing date and required them to meet and confer again and to submit a joint statement updating the Court as to any remaining disputes issues. (Docket No. 40.) The parties did so and filed their joint statement on September 28, and, now, only two issues remain. (See Docket No. 45 ("Joint Statement").) Pursuant to Civil Local Rule 7-1(b), the Court finds the matter suitable for determination without oral argument, and the October 5, 2010 hearing is vacated. DISCUSSION A. The Remaining Disputes on Yarum's Motion to Compel 1. Yarum's Request for Production No. 5 Yarum's Request for Production No. 5 asks for "[a]ny and all DOCUMENTS in plaintiff's personnel file." (Id. at 2.) Yarum argues that even though AlliedBarton produced Yarum's "purported" original personnel file, it did not contain "all documents defendant and its counsel represented were part of [it]," namely a letter from Eri Shu, an AlliedBarton human resources specialist, to Yarum dated December 20, 2007. (Id.) Yarum contends that "[s]uch an important letter would have been a part of plaintiff's personnel file had it been drafted and sent to plaintiff as defendant contends." (Id.) As such, Yarum has requested that AlliedBarton either admit the letter was not part of Yarum's personnel file or produce its original copy of it. (Id.) AlliedBarton responds that it told Yarum's counsel that it believes that the "file copy" of the letter had been in Yarum's personnel file but was pulled from the file for use in responding to

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For the Northern District of California

On April 1, 2010, Judge Ware set a discovery deadline of February 28, 2011 for this case. This action was subsequently reassigned to Judge Koh. 2

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Yarum's discrimination complaint filed with the California Department of Fair Employment and Housing. (Id.) It also notes that it already produced a copy of this letter to Yarum anyway. (Id.) Yarum's request seeks all documents in Yarum's personnel file, and AlliedBarton produced them. This fulfilled the request. The parties' argument over whether the letter was originally in there but now is not is irrelevant in this regard. As such, Yarum's motion is denied as to Request for Production No. 5. 2. Yarum's Interrogatory No. 9 Yarum also takes issue with AlliedBarton's responses to Interrogatory No. 9, which asks AlliedBarton to, among other things, describe the "essential function(s)" of Yarum's job (subpart (a)), explain why they are essential (subpart (b)), and state "all reasons why plaintiff was unable to perform such function(s)" (subpart (d)).2 (Id. at 3.) i. Subpart (a): The Essential Functions of Yarum's Job With respect to the description of the essential functions of Yarum's job, AlliedBarton responded that the "[e]ssential functions of Plaintiff[']s Security Officer position include: responding to emergencies, such as medical emergencies, bomb threats, fire alarms, and intrusions, including the ability to perform CPR and AED and carry emergency equipment; assisting with evacuations during emergencies; monitoring/controlling access to the facility; and receiving and lifting packages." (Id.) Yarum argues that AlliedBarton's use of the term "such as" shows that it only provided examples of the essential functions of Yarum's job and did not provide a complete response to the interrogatory. (Id. at 4.) Yarum misreads AlliedBarton's response. AlliedBarton's response lists "responding to emergencies" as the essential function, and then uses "such as" to provide examples Interrogatory No. 9 provides in full: "Describe what essential function or functions of the job that plaintiff was unable to perform between March 3, 2008 through June 25, 2008 because of medical restrictions contained in `Primary Treating Physicians Progress Report (PR-2)' issued by Christian Foglar, MD between 2/27/08 and 5/7/08 (copies of which are attached hereto as Attachment `1') by (a) describing the essential function(s); (b) stating why such function(s) was or were essential; (c) stating the dates when plaintiff was unable to perform such function(s); (d) stating all reasons why plaintiff was unable to perform such function(s); (e) stating the name, ADDRESS, and telephone number of each PERSON who have knowledge of any of the information given in response to any of the preceding subsections in this interrogatory; (f) identifying any DOCUMENT that refers to any of the information given in response to any of the preceding subsections in this interrogatory." (Joint Statement at 3.) 3
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For the Northern District of California

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of emergencies. In other words, the examples fall under the more specific essential function of "responding to emergencies." In any case, to ask AlliedBarton to list every conceivable example of an emergency would be absurd. Yarum's motion therefore is denied as to this subpart of Interrogatory No. 9. ii. Subpart (b): Why the Essential Functions Are Essential With respect to why these listed essential functions are indeed essential, AlliedBarton responded that it "considers such functions to be `essential' due to the importance of such functions for the position and [its] contractual obligations to its client." (Id. at 3) Yarum argues that AlliedBarton's references to the "importance" of these job functions and the "contractual obligations" to its client are conclusory, evasive, and/or vague. (Id. at 4.) Instead, Yarum insists that AlliedBarton must state "why such functions are essential" and "what specific contractual obligations made [such] functions important or essential." (Id. (emphasis in original).) AlliedBarton believes that its response is sufficient, as it has produced to Yarum a copy of her job description and will produce (upon entry of a stipulated protective order) a copy of the relevant contract, and so Yarum can review these documents to identify the bases upon which AlliedBarton has made its determination of the essential functions of the job. (Id. at 5.) Although Yarum's argument strikes the Court as overly fussy, AlliedBarton's response, as written, does not quite answer Yarum's question, and so Yarum is entitled to a further supplemental response to this subpart. That said, AlliedBarton can likely do this using information it provided in response to Yarum's argument in the parties' Joint Statement. In doing so, AlliedBarton need not, however, point out each and every specific contractual provision as Yarum requests. Accordingly, Yarum's motion is granted as to this subpart of Interrogatory No. 9. iii. Subpart (d): Why Yarum Was Unable to Perform the Essential Functions of Her Job As for the "reasons why plaintiff was unable to perform such function(s)," AlliedBarton responded that Yarum was unable to perform those functions "because of the work restrictions imposed by her physicians(s)." (Id. at 3.)

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For the Northern District of California

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Yarum says that AlliedBarton's response is "silly" and not made in good faith. (Id. at 4.) She states that this subpart of the interrogatory asks "why defendant contends plaintiff could not perform each function with her medical restrictions, not whether defendant contends plaintiff could not perform the function because of medical restriction." (Id. (emphasis in original).) Yarum's intended question is a fair one, but it is not necessarily the question asked in the interrogatory. The language in the interrogatory is ambiguous and could fairly be read to ask either question that Yarum identified above. AlliedBarton's response, then, is not "silly" as Yarum rather inappropriately contends. If Yarum wants to ask the question she now says she meant, she can do so, but it is not specifically the question she asked here, so her motion as to this subpart of Interrogatory No. 9 is denied. B. Yarum's Motion for Sanctions Yarum also filed a motion for sanctions in the outlandish amount of $16,720 (for Yarum's counsel's fees in preparing her motion to compel) under Rule 37(a)(5), which provides that an award of sanctions is appropriate in the event that a court grants a motion to compel. (MFS at 8.) However, Rule 37(a)(5) also instructs that a court should not order such an award if the movant filed the motion before attempting in good faith to obtain the discovery without court action. FED. R. CIV. P. 37(a)(5)(A)(i). As noted above, this Court initially continued the hearing on Yarum's 100page motion to compel because it believed that Yarum failed to meet and confer in good faith with AlliedBarton before filing it. (Docket No. 40.) Indeed, after the parties were instructed by the Court to try again, Yarum's motion to compel was subsequently whittled down to the four minor disputed issues addressed in this order. Such a drastic reduction in the number of disputed issues suggests that this Court was correct. And even if it was not, the Court is not convinced that AlliedBarton's conduct was sanctionable. Yarum's motion for sanctions is denied. CONCLUSION Based on the foregoing, Yarum's motion to compel is GRANTED IN PART and DENIED IN PART. Specifically, Yarum's motion to compel is DENIED as to Request for Production No. 5 and subparts (a) and (d) of Interrogatory No. 9 and GRANTED as to subpart (b) of Interrogatory No. 9. In addition, Yarum's motion for sanctions is DENIED.

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For the Northern District of California

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1 2 3 4 5 6 7 8 9 10 IT IS SO ORDERED. Dated: September 30, 2010 HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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For the Northern District of California

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C09-05615 JW (HRL) Notice will be electronically mailed to: Alison Le Tsao David Y. Chun Donna Lynn Keeton Marty Norenburg Martenson Nancy G. Berner [e-mail], [e-mail] [e-mail], [e-mail] [e-mail] [e-mail] [e-mail], [e-mail]

Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

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For the Northern District of California

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