Barker v. Insight Global, LLC

Filing 151

ORDER by Magistrate Judge Howard R. Lloyd re 133 , 142 Discovery Dispute Joint Report Nos. 9, 10; granting in part and denying in part 132 Motion for Leave to File Declarations. (hrllc2S, COURT STAFF) (Filed on 12/1/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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JOHN BARKER,
Plaintiff,

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Case No.5:16-cv-07186-BLF (HRL)
ORDER RE DISCOVERY DISPUTE
JOINT REPORTS 9 AND 10

v.
INSIGHT GLOBAL, LLC, et al.,

Re: Dkt. Nos. 132, 133, 142

Defendants.

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Before the court are Discovery Dispute Joint Reports (“DDJRs”) 9 and 10. The court will
address DDJR 10 first.

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DDJR 10

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In DDJR 10, plaintiff Barker seeks an order requiring Insight Global (“Insight”) to produce

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the performance metrics for years 2015 and 2016 of Insight’s 40 other offices. Insight has already

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produced what it says are the metrics for its San Francisco office, where Barker was working at

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the time of his termination. Barker wants the same data from the other offices so that he can

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compare it with San Francisco’s. That is important to Barker because he believes he was falsely

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told by his Regional Manager that the San Francisco office (where Barker was in charge)

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compared poorly against the other Insight offices, a comparison to which Barker took umbrage,

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and which may have lead him, in his agitation, to speak harshly to his boss. Barker was

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terminated the next day for “insubordination.” Plaintiff further claims that the insubordination

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label was trumped up to justify Insight treating the termination as one “for cause,” and thereby

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deny him his deferred compensation under Insight’s Incentive Unit Plan (“IUP”). Barker needs

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this information before resuming the deposition of Insight’s 30(b)(6) witness about the IUP Plan.

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Insight represents that it did produce documents showing the performance metrics for the

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San Francisco office, including the “quarterly e-mail numbers” that had been identified by Insight

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witnesses in deposition and had been specifically called for by plaintiff. Plaintiff says he has not

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received the quarterly e-mail numbers, and the court’s own review in camera of the documents did

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not reveal anything that clearly fit that description.
As for the performance metrics of its other offices, Insight says those numbers are

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United States District Court
Northern District of California

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irrelevant because Barker was not terminated for poor performance compared to other offices, but

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for insubordination. That could be correct as far as it goes, but it does not entirely close the door

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to inquiry into what precipitated Barker’s outburst (if that is what happened). Such an inquiry is

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not without some factual basis in the record, since the San Francisco documents do indicate that at

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least one metric that was supposedly held up to Barker as an indicator of poor performance had,

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according to one of the documents, actually been achieved.
In short, the performance metrics of Insight’s other offices do have relevance, if the court

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were to consider the context behind the “insubordination” rationale adopted by Insight and its IUP

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Committee to withhold Barker’s accrued compensation.1
Insight argues strenuously that performance metrics of its other offices are highly sensitive,

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and even an Attorneys’ Eyes Only (“AEO”) designation under the Protective Order would be

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insufficient safeguard against Barker getting hold of the information identifying the “high

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performing markets or successful employees” and embarking on a further campaign to recruit

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away Insight employees. This argument does not persuade. There is nothing in the San Francisco

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office’s metric documents the court has seen that identify any employee. There is no reason to

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believe Barker himself will have access to AEO information. The court believes the existing

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This evidence could be relevant under plaintiff’s third claim for relief, even if neither his fourth
or fifth claims is successfully revived by amendment. (Dkt. 143).
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Protective Order is sufficient to protect the information.

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Within 20 calendar days from the date of filing this order, Insight shall produce its

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performance metrics for all offices and any document that ranks or compares the performance of

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the offices for 2015 and 2016. Likewise, it shall remove the redactions on documents: “Insight –

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026991 through 026996.” Finally, it shall produce the “quarterly e-mail numbers” and identify

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them as such.

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DDJR 9

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In DDJR 9, Insight asks the court to order, for a date certain, the deposition of Beacon Hill

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executive Jeff McLaren. Earlier in this litigation, Barker had asked this court to delay (or stay)
McLaren’s deposition because it may not be necessary depending on the outcome of a then-

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United States District Court
Northern District of California

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pending motion for judgment on the pleadings. Insight was not agreeable to waiting and filed

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DDJR 6. The court agreed with Insight and ordered that the deposition may go forward. That was

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months ago, and Insight complains mightily in DDJR 9 that, despite its many efforts to bring it

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about, Barker has stubbornly refused to produce McLaren.

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The delay in obtaining McLaren’s deposition is more complicated than the straightforward

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telling in the previous paragraph. Previously, Barker’s lawyer had traveled to the east coast

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(Atlanta) to take the deposition of Insight’s 30(b)(6) witness. That deposition did not conclude

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because there were some topics about which the witness was unable to testify, necessitating a

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future second trip across country for Barker’s counsel to finish up that deposition with a different

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witness. Since McLaren’s deposition would be in Boston and the 30(b)(6) follow-up deposition

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would be in Atlanta, both sides agreed that these depositions would be taken concurrently during

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the same eastern trip. They even agreed on dates: McLaren on October 20, to be followed a day

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or so later by the 30(b)(6) deposition wrap-up in Atlanta.

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The agreement between counsel went cross-wise because, according to Barker, he could

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not complete the 30(b)(6) deposition until Insight produced certain documents (dealing with

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performance metrics). Insight produced some material but balked at the scope of what plaintiff

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wanted and claimed the additional material was not necessary nor germane to the remaining

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30(b)(6) topics. Barker insisted to the contrary. Barker did not want to go east for McLaren’s
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deposition without combining it with the Atlanta deposition, and he would not take the Atlanta

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deposition without the additional documents in hand. So, he declined to produce McLaren on

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October 20 and sought a protective order from this court (which issued a stay until it could sort

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things out). In a tiresome exchange of dueling recriminations, each side blames the other for the

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failure to get the depositions taken. (It is unfortunate that each side seems to view the other side’s

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conduct through a lens which reveals only deviousness and improper motive.)2
Now that the court has sorted out the document production issue (DDJR 10), the McLaren

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and the 30(b)(6) deposition shall take place concurrently within 30 calendar days after Insight

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complies with the court’s ruling on DDJR 10. If either side appeals from this order, compliance is

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stayed until the appeal is resolved.
SO ORDERED.

United States District Court
Northern District of California

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Dated: December 1, 2017

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HOWARD R. LLOYD
United States Magistrate Judge

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Insight’s Administrative Motion to file declarations is denied, except for the attached transcript
of a Rule 16 Scheduling Conference in a Colorado case, Insight Global, LLC v. Mary McDonald
and Beacon Hill Staffing Group, LLC, 17- cv-01915. The court has read and considered that
transcript, but did not find it instructive with respect to the deposition scheduling issue before it
here.
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