Romano v. AT&T Mobility Services, LLC et al
Filing
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ORDER Granting 22 Joint Motion for Determination of Discovery Dispute. Defendant's Motion to Compel further responses to RFP No. 2 [Doc. No. 22 ] is GRANTED. Plaintiff shall amend his responses to RFP No. 2 and produce responsive documents within 5 business days of the date of this Order. Signed by Magistrate Judge Karen S. Crawford on 11/17/2020. (tcf)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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STEVE ROMANO, an individual,
Case No.: 3:20-CV-00698-JLS-KSC
Plaintiff,
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v.
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ORDER REGARDING JOINT
MOTION FOR DETERMINATION
OF DISCOVERY DISPUTE
AT&T MOBILITY SERVICES, LLC, a
Delaware limited liability company; and
DOES 1 through 25, inclusive,
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[Doc. No. 22]
Defendants.
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Before the Court is the parties’ Joint Motion for Determination of Discovery
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Dispute, in which defendant AT&T Mobility Services, LLC (“defendant” or “AT&T”)
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moves to compel plaintiff Steve Romano (“plaintiff”) to provide further responses to
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written discovery requests (the “Motion to Compel” or “Mot.”). Doc. No. 22. For the
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reasons set forth below, the Court GRANTS defendant’s Motion to Compel.
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I.
BACKGROUND
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This case arises out of defendant’s alleged wrongful termination of plaintiff in
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February 2018. See generally Doc. No. 1-6 (“Complaint”). Plaintiff, who was 60 years
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old at the time AT&T terminated his employment, claims that AT&T discriminated against
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3:20-CV-00698-JLS-KSC
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him because of his age. See id. At issue in the Motion to Compel is AT&T’s Request for
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Production (“RFP”) No. 2, which seeks documents provided to, or received from, the
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California Employment Development Department (“EDD”) or the California
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Unemployment Insurance Appeals Board (“UIAB”) since February 28, 2018 pertaining to
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plaintiff’s efforts to obtain unemployment benefits, any alleged wrongful conduct by
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defendant, or to any allegations in the Complaint. Mot. at 3, 22. Plaintiff objected on the
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basis of relevance and to the extent the request sought documents subject to the “official
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information privilege under Evidence Code section 1040 and Unemployment Insurance
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Code sections 1094, 2111.” Id. at 4, 40.
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II.
LEGAL STANDARDS
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Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, “the scope of discovery
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includes ‘any non-privileged matter that is relevant to any party’s claim or defense and
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proportional to the needs of the case.’” Skyline Wesleyan Church v. Cal. Dep’t of Managed
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Health Care, 322 F.R.D. 571, 583 (S.D. Cal. 2017) (quoting Fed. R. Civ. P. 26(b)(1)). The
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standard for “relevance” under the Federal Rules is “commonly recognized as one that is
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necessarily broad . . . ‘to encompass any matter that bears on, or that reasonably could lead
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to other matter that could bear on, any issue that is or may be in the case.’” Gusman v.
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Comcast Corp., 298 F.R.D. 592, 595 (S.D. Cal. 2014) (citations omitted); see also V5
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Techs. v. Switch, Ltd., 334 F.R.D. 297, 301 (D. Nev. 2019) (“Relevance for the purposes
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of discovery is defined broadly.”).
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“A party may withhold ‘information otherwise discoverable by claiming it is
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privileged.’” Skyline Wesleyan Church, 322 F.R.D. at 583 (quoting Fed. R. Civ. P.
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26(b)(5)). “However, the broad scope of permissible discovery is limited by . . . relevant
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privileges” only. Bd. of Trs. of the Leland Stanford Junior Univ. v. Roche Molecular Sys.,
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237 F.R.D. 618, 621-22 (N.D. Cal. 2006). “In a federal action based on diversity such as
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this one, [California] state law governs all privilege claims.” Chavez v. Sw. Key Program,
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Inc., 2012 U.S. Dist. LEXIS 192143, at *2 (S.D. Cal. Aug. 2, 2012) (citing Fed. R. Evid.
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501). Any party “opposing discovery,” including by the assertion of a privilege, “has the
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burden of showing that discovery should not be allowed.” La. Pac. Corp. v. Money Mkt.
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1 Institutional Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal. 2012) (citations omitted). The
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Court has “‘broad discretion’” to “‘permit or deny discovery.’” Hallett v. Morgan, 296
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F.3d 732, 751 (9th Cir. 2002) (citation omitted).
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III.
DISCUSSION
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A.
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The Court begins by addressing relevance. Defendant asserts that the limited
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unemployment records AT&T has show that when plaintiff applied for unemployment
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benefits, he did not report that he was terminated for discriminatory reasons. Mot. at 5.
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Defendant therefore states that the information sought by RFP No. 2 is relevant and
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discoverable to show plaintiff’s “subjective beliefs as to the reasons AT&T terminated him,
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his competence, and his overall treatment,” as well as revealing any “history of inconsistent
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statements.” Id. at 5-6. Plaintiff disagrees, and states defendant cannot “establish any
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connection” between the EDD and UIAB documents and this case. Id. at 9. Plaintiff urges
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the Court to deny the Motion to Compel because RFP No. 2 “seeks information not
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reasonably calculated to lead to the discovery of admissible evidence.” 1 Mot. at 10.
The EDD and UIAB Documents Are Relevant
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The Court agrees with defendant and finds AT&T has carried its “burden,” as the
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moving party, “of establishing that its request satisfies the relevancy requirement of Rule
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26(b)(1).” Bryant v. Ochoa, 2009 U.S. Dist. LEXIS 42339, at *4 (S.D. Cal. May 14, 2009).
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As noted, discovery is “construed broadly” to allow parties to “define and clarify [] issues.”
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Hampton v. City of San Diego, 147 F.R.D. 227, 229 (S.D. Cal. 1993). Furthermore, there
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is “no requirement that the information sought directly relate to a particular issue” in this
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case to be discoverable. Shaw v. Experian Info. Sols., Inc., 306 F.R.D. 293, 296 (S.D. Cal.
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2015). Given the liberal scope of discovery under Rule 26, the Court is persuaded that the
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The phrase “reasonably calculated to lead to the discovery of admissible evidence” was deleted from
Rule 26 as part of the 2015 amendments, as it “create[d] problems” and was often “used . . . incorrectly[]
to define the scope of discovery.” See Fed. R. Civ. P. 26, advisory committee notes to 2015 amendments.
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documents “bear on” issues in the case, including plaintiff’s credibility. Gusman, 298
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F.R.D. at 595; see also Shaw, 306 F.R.D. at 296. Thus, “in the absence of a privilege,” the
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documents are discoverable and should be produced. See Hampton, 147 F.R.D. at 229.
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B.
Neither the California Evidence Code nor the California Unemployment
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Insurance Code Prevent the Discovery of the EDD and UIAB Documents
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Plaintiff also argues that the EDD and UIAB documents are not discoverable
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because they contain information that is “privileged from disclosure pursuant to California
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Evidence Code § 1040 and California Unemployment Insurance Code §[§] 1094 and
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2111.” Mot. at 7. In response, defendant contends that plaintiff “lacks standing to assert
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the privilege” codified in California Evidence Code § 1040. Id. at 5-6. Defendant further
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asserts that even if the EDD and UIAB documents are protected under California
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Unemployment Insurance Code §§ 1094 and 2111, plaintiff has waived such statutory
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protections by pursuing this litigation. Id.
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The Court agrees. California Evidence Code § 1040 “creates a qualified privilege
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against agency disclosure of ‘official information,’ which is . . . ‘information acquired in
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confidence by a public employee in the course of his or her duty and not open, or officially
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disclosed, to the public[.]’” In re Cal. Pub. Utils. Com., 892 F.2d 778, 783 (9th Cir. 1989)
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(quoting Evid. Code § 1040(a)). Importantly, the “privilege to refuse to disclose official
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information” belongs to the “public entity.” Cal. Evid. Code § 1040(b). Thus, defendant
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is correct that plaintiff cannot assert a privilege for official information because “‘only the
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government entity holds the privilege.’” Mot. at 6 (quoting Music Grp. Macao Commer.
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Offshore Ltd. v. Foote, 2015 U.S. Dist. LEXIS 85089, at *12 (N.D. Cal. June 30, 2015)).
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Moreover, these statutes prevent the public disclosure of information provided by
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plaintiff to EDD and UIAB. 2 Here, however, there is a blanket Protective Order in place
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Unemployment Insurance Code § 1094(b) also renders the information inadmissible at trial or other
proceeding, but “[i]nformation ... need not be admissible in evidence to be discoverable.” Fed. R. Civ. P.
26(b)(1).
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to which the parties stipulated that affords the parties the right to designate material
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produced in discovery as “confidential” or “for counsel only,” thereby prohibiting its
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disclosure outside the litigation. See Doc. Nos. 16, 17 at 4-6. Protective orders – such as
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the one governing discovery here – can mitigate the breadth of discovery and “provide a
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safeguard for parties and other persons.” Big Lagoon Rancheria v. Cal., 700 F. Supp. 2d
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1169 (N.D. Cal. 2010) (citation omitted). Yet, plaintiff does not even acknowledge the
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Protective Order, let alone explain why it is insufficient to address any concerns he has
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regarding the confidentiality of his unemployment records. See Soto v. City of Concord,
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162 F.R.D. 603, 616 (N.D. Cal. 1995) (noting that a “carefully drafted protective order
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could minimize the impact of [] disclosure.”).
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As to California Unemployment Insurance Code, § 1094 of that statute “provides
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that the information delivered to the Department of Employment by an employing unit
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‘shall . . . not be open to the public, nor admissible in evidence in any action or special
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proceeding,’” while § 2111 similarly “provides that the information ‘is confidential and
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shall not be published or open to public inspection in any manner[.]’” Crest Catering Co.
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v. Super. Ct. of L.A. Cty., 62 Cal. 2d 274, 277-78 (1965) (citations omitted).
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Plaintiff relies on Crest in asserting that documentation submitted to the EDD is
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privileged, and therefore, not subject to discovery. Mot. at 8 (citing Crest, 62 Cal. 2d at
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277). The Court finds plaintiff’s reliance misplaced. Although the California Supreme
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Court in Crest noted that §§ 1094 and 2111 “create a privilege,” the Court ultimately held
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that privilege could be, and had been, waived. See Crest, 62 Cal. 2d at 277-78. 3 The Crest
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court found that while California Unemployment Insurance Code §§ 1094 and 2111 serve
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to protect “the confidentiality of information submitted to the Department of
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Employment,” a party may waive such statutory protections by engaging in “‘an act which,
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Additionally, “[t]he conclusion that Crest waived the privilege is buttressed by the fact that the payrolls
and the tax returns contain basically the same information.” Crest, 62 Cal. 2d at 279. Yet, “[t]he same
information does not become less obtainable merely because it is written on a governmental form.” Id.
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according to its natural import, is so inconsistent with an intent to enforce the right as to
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induce a reasonable belief that such right has been relinquished.’” Id. (citation omitted).
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“One example of an inconsistent act is the bringing of a lawsuit, the gravamen of
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which is ‘so inconsistent with the continued assertion of the . . . privilege as to compel the
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conclusion that the privilege gas in fact been waived.’” Chavez v. Sw. Key Program, Inc.,
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2012 U.S. Dist. LEXIS 192143, at *4 (S.D. Cal. Aug. 2, 2012) (quoting Wilson v. Super.
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Ct., 63 Cal. App. 3d 825, 830 (1976)); see also, e.g., Gomez Cabrales v. Aerotek, Inc., 2018
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U.S. Dist. LEXIS 77705, at *10 (C.D. Cal. May 8, 2018) (finding “to the extent [] EDD
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documents are protected under California law, such protection has been waived because
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‘the gravamen of the disability discrimination suit is inconsistent with the continued
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assertion of the protections of the California Unemployment Insurance [C]ode for
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documents relating to disability applications and benefits.’”) (citations omitted)).
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Accordingly, the Court is unpersuaded by plaintiff’s argument that “filing an age
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discrimination lawsuit does not waive and relinquish the privilege.” Mot. at 8. The
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gravamen of plaintiff’s age discrimination suit is inconsistent with the continued assertion
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of the protections of the California Unemployment Insurance Code for documents
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pertaining to unemployment benefits, particularly because plaintiff alleges that he was
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terminated because of his age. See Complaint at 7. The Court finds Plaintiff has waived
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the protection of the EDD and UIAB documents “by maintenance of an action inconsistent
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with the assertion of the privilege.” Chavez, 2012 U.S. Dist. LEXIS 192143, at *6. To the
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extent there are any legitimate privacy concerns in the absence of privilege, the Court finds
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that such concerns can be mitigated by the parties’ Protective Order. See Doc. No. 17.
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3:20-CV-00698-JLS-KSC
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ORDER
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For the reasons set forth above, defendant’s Motion to Compel further responses to
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RFP No. 2 [Doc. No. 22] is GRANTED. Plaintiff shall amend his responses to RFP No.
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2 and produce responsive documents within 5 business days of the date of this Order.
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IT IS SO ORDERED.
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Dated: November 17, 2020
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