U.S. Equal Employment Opportunity Commission v. PC Iron, Inc. et al

Filing 26

ORDER Following Discovery Conference. Signed by Magistrate Judge William V. Gallo on 10/11/2017.(jjg)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11
12
13
14
15
16

U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

Case No.: 16-CV-2372-CAB(WVG)
ORDER FOLLOWING DISCOVERY
CONFERENCE

Plaintiff,
v.
PC IRON, INC. d/b/a PACIFIC COAST
IRON, INC.,

17

Defendant.

18
19
20

The Court convened a telephonic discovery conference on October 5, 2017 and

21

heard argument on multiple discovery disputes.

22

Defendant, attorney Connie Liem appeared for Plaintiff EEOC, and attorney Mehrdad

23

Bokhour appeared for Intervener Elsa Perez. Having heard argument and considered the

24

parties’ written submissions, the Court rules as set forth below.1

Attorney Ross Poole appeared for

25
26
27

28

1

The Clerk of Court is directed to file the parties’ written submissions.
1
16-CV-2372-CAB(WVG)

1

1.

CEO Anderson’s Physical Presence at Intervener Perez’s Deposition

2

In light of Plaintiff’s counsel’s representations describing Perez’s recent and

3

ongoing medical issues, which impact her physically and mentally, the Court finds it

4

appropriate to establish reasonable accommodations in order to allow Perez’s deposition

5

to occur such that all parties’ interests are protected. The Court accordingly enters the

6

following conditions and terms upon the taking of Perez’s deposition pursuant to its

7

authority under Federal Rule of Civil Procedure 26(c)(1)(B) & (E).2 Should Defendant

8

continue to wish to depose Perez, the following terms and conditions shall govern:

9

a.

Anderson shall arrive before Perez’s arrival at the facility where the

10

deposition is to be taken. Anderson shall occupy a room other than the room where Perez’s

11

deposition is to be taken and close the door. Anderson shall remain in that room with the

12

door closed for the duration of the time Perez is on the premises.

13

b.

The room in which Anderson will remain shall be equipped with one-way

14

videoconferencing equipment that streams both the audio and video of the deposition to

15

Anderson in real time with sufficient quality and clarity to allow both Anderson and

16

counsel to meaningfully participate.

17

c.

Defense counsel may wear a telephone-connected headset with a direct link

18

to Anderson, who may communicate with counsel via headset. Defense counsel may take

19

as many breaks he deems necessary to confer with Anderson—both via headset and in

20

person outside of the deposition room.

21
22
23
24
25
26
27
28

2

The Rules expressly permit the Court to order that a “deposition be taken by telephone or
other remote means.” Fed. R. Civ. P. 30(b)(4); see also Kaseberg v. Conaco, LLC, 2016
U.S. Dist. LEXIS 111767, at *15-18 (S.D. Cal. Aug. 19, 2016) (Bartick, J.) (permitting
videoconference deposition to save expense on travel costs); Lopez v. CIT Bank, N.A., 2015
U.S. Dist. LEXIS 176575, at *5 (N.D. Cal. Dec. 18, 2015) (same); Balu v. Costa Crociere
S.P.A., 2011 U.S. Dist. LEXIS 85299, at *4 (S.D. Fla. Aug. 3, 2011) (noting “depositions
are now readily taken inexpensively by internet video (e.g., Skype) or through somewhat
more expensive, but still efficient, video conferencing facilities.”).
2
16-CV-2372-CAB(WVG)

1

d.

The cost of the accommodations above shall be borne by Plaintiff EEOC,

2

Intervener Perez, or both. The EEOC and Perez may allocate the costs amongst themselves

3

in whatever fashion they agree.

4

Defendant’s argument that Anderson is being excluded from the deposition is

5

unfounded. With the above electronic accommodations, Anderson will be “virtually”

6

present in the deposition room as closely as practicality and the competing circumstances

7

allow. He may listen to Perez’s testimony as though he were in the same room. He may

8

visually observe Perez as though he were in the same room. He may communicate with

9

his attorney as though he were sitting next to counsel. And counsel may leave the

10

deposition room and confer with Anderson if necessary.

11

Counsel’s concerns over his potential inability to conduct the deposition with

12

Anderson speaking in his ear is also unfounded. Even if Anderson were in the same room,

13

counsel would necessarily break from questioning to confer with Anderson if Anderson

14

were to whisper in his ear. Counsel would not forge on with questioning with Anderson

15

whispering to him; he would take a break and listen to Anderson. Thus, there is no

16

meaningful difference with respect to this concern between Anderson being in the same

17

room or in another room while communicating with counsel. The conditions above allow

18

Anderson full and meaningful participation in Perez’s deposition while also providing

19

some accommodations for Perez.

20

Defendant’s argument that the Court’s Order will set a precedent for excluding

21

Anderson from trial in this case is also unfounded. This Court’s Order applies to the limited

22

context of Perez’s deposition. This Order in no manner binds The Honorable Cathy A.

23

Bencivengo at trial. As defense counsel acknowledged, the environment of a deposition is

24

materially different than inside a courthouse, where a judicial officer provides oversight

25

and possibly comfort to Perez. Simply stated, this Court’s Order has zero bearing on

26

whether Anderson will or will not be able to attend the trial in this case, which is a wholly

27

separate proceeding than a deposition.

28
3
16-CV-2372-CAB(WVG)

1

2.

2

The Court is satisfied that Angel Lopez and Anjelea Lopez are properly subject to

3

deposition in this case. Based on the detailed discussion with the parties on the record,

4

Plaintiff’s objection to these depositions is OVERRULED.

5

3.

Depositions of Angel Lopez and Anjelea Lopez

(a) Plaintiff’s Request for Production of Documents (Set One) No. 4—

6

Anderson’s Notes;

7

(b) Plaintiff’s Request for Production of Documents (Set One) No. 4—

8

Defendant’s Financial Records From 2011 and 2012; and

9

(c) Plaintiff’s Request for Production of Documents (Set Two) No. 18—PC

10

Iron’s Current Financial Records

11

The Court declines to entertain these untimely discovery disputes. The Court’s

12

Chambers Rules clearly require that such disputes be presented to the Court for

13

consideration within 30 days of the disputes arising. This requirement is also reiterated in

14

the Scheduling Order issued in this case. (Doc. No. 11 at ¶ 7 (“All disputes concerning

15

discovery shall be brought to the attention of the Magistrate Judge no later than thirty (30)

16

days following the date upon which the event giving rise to the discovery dispute

17

occurred.”).) Additionally, Plaintiff’s counsel is counsel of record on several cases pending

18

before the Court, one of those cases is well into the discovery process, and that case has

19

included a discovery dispute before this Court.3 Plaintiff’s counsel should have been

20

21
22
23
24
25
26
27
28

3

At the April 14, 2017 Case Management Conference in this case, the Court advised the
parties to immediately meet and confer once disputes arise and bring them to the Court’s
attention quickly if meet and confer efforts did not resolve the dispute. Moreover,
Plaintiff’s counsel in this case is also lead counsel in U.S. Equal Employment Opportunity
Commission v. CJMBS Pharmacies, Inc. et al., 16-CV-2410-MMA(WVG). When counsel
participated in the March 23, 2017 Case Management Conference in that case, the Court
concluded by expressly advising the parties: “If you bring a dispute to me that’s more than
30 days old, then I’m not going to entertain it.” Accordingly, Plaintiff’s counsel has
personally been on notice that failure to comply with the Court’s 30-day deadline would
lead to the result the Court reaches today. It is immaterial that the Court did not expressly
warn Plaintiff’s counsel in the instant case. The Court had expressly warned counsel a few
4
16-CV-2372-CAB(WVG)

1

familiar with the 30-day submission policy in the Chambers Rules and expressly stated in

2

the Scheduling Order in this case. Counsel should also have been aware that the Court

3

would not consider untimely disputes given the express admonition to that affect in the

4

CJMBS Pharmacies case. Counsel nonetheless elected to not comply with the Court’s

5

explicit rules and orders, failed to heed the Court’s admonition, and assumed the risk that

6

the Court would follow through and enforce its rules.

7

Here, all three RFP disputes are untimely. With respect to RFP No. 18, the parties

8

did not notify the Court of its existence until 40 days after the 30-day deadline had expired

9

on August 17, 2017.4 With respect to the dispute over Defendant’s financial records from

10

2011 and 2012, which Plaintiff claims are responsive to RFP No. 4, the parties first notified

11

the Court of its existence 105 days after the 30-day deadline expired.5 Finally, with respect

12

13
14
15
16
17
18
19
20
21

weeks before the Case Management Conference in this case, counsel’s knowledge of the
Court’s procedures transferred to the instant case, and that knowledge is properly imputed
to Plaintiff through counsel. See generally Link v. Wabash R.R. Co., 370 U.S. 626, 633
(1962); W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir. 1990)
(“A plaintiff cannot avoid dismissal by arguing that he or she is an innocent party who will
be made to suffer for the errors of his or her attorney. The established principle is that the
faults and defaults of the attorney may be imputed to, and their consequences visited upon,
his or her client.”) (citations omitted); see Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,
92 (1990) (service on attorney constitutes notice to clients); Cmty. Dental Servs. v. Tani,
282 F.3d 1164, 1168 (9th Cir. 2002) (“Under this circuit’s precedent, a client is ordinarily
chargeable with his counsel’s negligent acts.”).
4

25

Defendant served its response to RFP No. 18 on July 13, 2017. The response
unequivocally stated that Defendant would “not comply with this request” based on the
objections specified in the response. Given this firm declination to provide the documents,
the 30-day clock began to run on July 13, 2017 and expired on August 12, 2017. The
parties first presented this dispute to the Court on September 21, 2017—40 days late—
through a joint telephone call to the undersigned’s chambers.

26

5

22
23
24

27
28

Defendant served its RFP No. 4 response on May 9, 2017. The RFP had asked for “all
documents” related to Defendant’s claim that Perez was “laid off.” The RFP singled-out
and specifically referenced paragraph 27 of Defendant’s Answer, which made no mention
of financial records or low business volume as the basis for Perez’s layoff. Defendant
5
16-CV-2372-CAB(WVG)

1

to the dispute over Anderson’s personal notes, the parties missed the 30-day deadline by

2

four days.6 Accordingly, all three disputes are untimely and, as such, the Court will not

3

entertain them.

4

Lest one misconstrue this result as unjust or draconian, the assignment of blame

5

rightfully rests with the party that chose to ignore the Court’s clearly-established and

6

clearly-communicated rules and policies. If rules and orders are to mean anything, they

7

must be enforced. This basic tenet of the practice of law is emphasized from the very

8

beginning of attorneys’ careers in law schools across the country. Even before they are

9

attorneys, law students are admonished to either strictly abide by deadlines or seek

10

extensions from the courts. Common sense dictates that doing neither of these is not an

11

option or a choice that will end well—especially when the judge expressly informs the

12

attorneys of the consequences. Attorneys ignore court-imposed rules and deadlines at their

13
14

15

23

accordingly had no reasonable expectation that this RFP requested financial documents.
But Plaintiff, as the proponent of the RFP, surely knew what this RFP contemplated, as
counsel now contends Defendant’s financial documents are indeed responsive. (See
Plaintiff’s Discovery Statement at 7 (“Plaintiff also contends that Defendant’s financial
records are responsive to RFP 4 because they reflect Defendant’s financial condition and
low sale volume in late 2011-2012 . . . .”).) Thus, when Plaintiff received Defendant’s
response to this RFP on May 9 and discovered the absence of financial records from 2011
and 2012, the dispute arose, and the 30-day deadline began to run, on that date.
Accordingly, the deadline expired on June 8, 2017. Plaintiff first raised the dispute with
Defendant on September 7, 2017. The parties first presented this dispute to the Court on
September 21, 2017—105 days late—through the same joint telephone call mentioned
above.

24

6

16
17
18
19
20
21
22

25
26
27
28

Defendant served its response to RFP No. 4 on May 9, 2017. The 30-day timeline
ordinarily would have begun to run on that day with respect to the dispute over Anderson’s
notes. However, Plaintiff did not learn of the notes’ existence until Anderson’s deposition
on August 18, 2017. Thus, the timeline began to run on that date and expired on September
17, 2017. The parties first presented this dispute to the Court on September 21, 2017—4
days late—through the same joint telephone call mentioned above.

6
16-CV-2372-CAB(WVG)

1

peril and at the peril of their clients. Indeed, the Ninth Circuit Court of Appeals has long

2

expressed and endorsed this basic concept in the practice of law:

3

[T]he district court needs the authority to manage the cases
before it efficiently and effectively. In these days of heavy
caseloads, trial courts in both the federal and state systems
routinely set schedules and establish deadlines to foster the
efficient treatment and resolution of cases. Those efforts will be
successful only if the deadlines are taken seriously by the parties,
and the best way to encourage that is to enforce the deadlines.
Parties must understand that they will pay a price for failure to
comply strictly with scheduling and other orders, and that failure
to do so may properly support severe sanctions and exclusions of
evidence.

4
5
6
7
8
9
10
11

Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2004) (emphasis

12

added); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992)

13

(“A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly

14

disregarded without peril.”) (internal quotations and citation omitted).

15

As the Ninth Circuit stated, Plaintiff’s counsel here risked paying a quite predictable

16

price for failing to comply with the 30-day deadline she should have been aware of based

17

on her experience with this Court, this Court’s Chambers Rules, and the Scheduling Order

18

issued in this case. By not complying with these directives, she assumed the risk that

19

today’s predictable result would follow and cannot credibly begrudge the Court for

20

enforcing a rule that the Court has warned would be enforced in this manner.

21

4.

Plaintiff’s Request for Production of Documents (Set Two) No. 17—Employee

22

Files of Vanessa Lopez

23

Defendant’s objections are SUSTAINED. Defendant hired Vanessa Lopez roughly

24

five to six years after Perez ceased working at PC Iron. The Court finds Lopez is not an

25

appropriate comparator in this case given this remoteness between her employment and

26

Perez’s employment. See Warkentine v. Soria, 152 F. Supp. 3d 1269, 1294 (E.D. Cal.

27

2016) (stating that to “‘be considered similarly situated, the class of one challenger and his

28

comparators must be prima facie identical in all relevant respects or directly comparable in
7
16-CV-2372-CAB(WVG)

1

all material respects.’”) (quoting U.S. v. Moore, 543 F.3d 891, 896 (7th Cir. 2008)); see

2

also Bryant v. Aiken Reg’l Med. Ctrs., Inc., 333 F.3d 536, 546 (4th Cir. 2003) (concluding

3

that employee identified by defendant as similarly situated to plaintiff to rebut inference of

4

discrimination in defendant’s failure to hire plaintiff, was not similarly situated to plaintiff

5

where the employee “was not hired until several months after Bryant filed charges of racial

6

discrimination”); Lee v. Kansas City So. Ry., 574 F.3d 253, 259 (5th Cir. 2009)

7

(“Employees . . . who were the subject of adverse employment actions too remote in time

8

from that taken against the plaintiff generally will not be deemed similarly situated.”);

9

Tibbs v.Calvary United Methodist Church, 505 Fed. Appx. 508, 515-16 (6th Cir. 2012)

10

(concluding that “comparators were not similarly situated in that there is no temporal nexus

11

to the events here” when disciplinary decisions concerning comparators were seven months

12

to two years removed from plaintiff’s termination); Swann v. US Foods, Inc., 2015 U.S.

13

Dist. LEXIS 78665, at *27 (E.D. Va. June 17, 2015) (five to ten year span too remote);

14

Hurst v. Dist. of Columbia, 2015 U.S. Dist. LEXIS 33623, at *21 (D. Md. Mar. 16, 2015)

15

(five year span too remote); Epps v. First Energy Nuclear Operating Co., 2013 U.S. Dist.

16

LEXIS 41140, at *60 (W.D. Pa. Mar. 25, 2013) (four-and-a-half-year span too remote).

17

The parties shall proceed in a manner not inconsistent with this Order.

18

IT IS SO ORDERED.

19

DATED: October 11, 2017

20
21
22
23
24
25
26
27
28
8
16-CV-2372-CAB(WVG)