Falk v. HP Inc.

Filing 38

MEMORANDUM DECISION AND ORDER granting in part and denying in part 37 MOTION to Compel Discovery. (Status Report due by 8/10/2018.) Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
KEVIN FALK,
Case No. 1:17-cv-00401-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
HP INC. a Delaware Corporation,
Defendant.

INTRODUCTION
Pending before the Court is Plaintiff’s Motion to Compel (Dkt. 37) and
Defendant’s Memorandum Brief on Disputed Discovery (Dkt. 36). For the reasons
described below, the Court will grant Plaintiff’s motion in part, deny it in part, and
reserve ruling in part.
LEGAL STANDARD
Federal Rule of Civil Procedure 26(b), as amended effective December 1, 2015,
provides that:
[p]arties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
This change to Rule 26(b) brings proportionality to the forefront in defining the
appropriate scope of discovery. However, as explained in the Advisory Committee’s

MEMORANDUM DECISION AND ORDER - 1

note, the 2015 amendment was merely intended to codify principles that have long been
implicit in this analysis:
This change reinforces the obligation of the parties to consider these
[proportionality] factors in making discovery requests, responses or objections.
Restoring the proportionality calculation to Rule 26(b)(1) does not change the
existing responsibilities of the court and the parties to consider proportionality,
and the change does not place on the party seeking discovery the burden of
addressing all proportionality considerations.
Fed. R. Civ. P. 26(b) advisory committee’s note to 2015 amendment (emphasis added);
see also Dao v. Liberty Life Assurance Co. of Boston, No. 14-CV-04749-SI (EDL), 2016
WL 796095, at *3 (N.D. Cal. Feb. 23, 2016) (“[W]hile the language of the Rule has
changed, the amended rule does not actually place a greater burden on the parties with
respect to their discovery obligations, including the obligation to consider proportionality,
than did the previous version of the Rule.”); Vaigasi v. Solow Mgmt. Corp., No. 11CV5088, 2016 WL 616386, at *13 (S.D.N.Y. Feb. 16, 2016) (“[T]he 2015 Amendments
constitute a reemphasis on the importance of proportionality in discovery but not a
substantive change in the law.”).
Pursuant to Rule 37, a party seeking discovery may move for an order compelling
production by a party who has failed to answer an interrogatory or produce requested
documents. Fed. R. Civ. P. 37(a)(3). While the moving party must make a threshold
showing of relevance, see, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352
(1978), the party resisting discovery carries the “heavy burden” of showing specifically
why the discovery request is irrelevant, unduly burdensome, disproportional to the needs

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of the case, or otherwise improper. See Blankenship v. Hearst Corp., 519 F.2d 418, 429
(9th Cir. 1975).
ANALYSIS
1.

Organizing Production
Pursuant to Rule 34(b)(2)(E)(i), Plaintiff had requested that Defendant organize or

label the documents produced to correspond to the specific requests for production
propounded by Plaintiff. Defendant has now agreed to provide indices which correspond
Bates numbers with the Requests by number. 1 In so doing, Defendant reiterates that they
do not waive any work product privilege associated with identifying the documents by
request, and that they preserve any relevant objections. Counsel notified the Court that
this production had been made on July 30, 2018. The Court therefore finds that this issue
is resolved.
2.

RFP 3 – Supervisor Performance Evaluations
Plaintiff requests that Defendant produce any performance evaluations and

disciplinary records for three individuals in his chain-of-command at HP, Inc. The Court
finds Plaintiff has met his threshold burden of showing that these documents are at least
arguably relevant, as they may go to the individuals’ credibility, and any potential bias
they may have related to disciplinary actions at HP, Inc. Further, given that HP alleges

1

Defendant seeks assurances that an inadvertent failure to identify every corresponding request
will not constitute a violation of this Order, and that it will not be restricted in its use of the documents
based on any designation offered. The Court declines to issue a blanket ruling on these questions in the
abstract. Rather, should any issues arise concerning Defendant’s designations, they shall be resolved in
light of the parties’ obligations to certify and supplement discovery under Rule 26(g) and (e).

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that Plaintiff was included in the workforce reduction on the basis of his performance,
these documents may be relevant understanding how HP, Inc. evaluates performance as a
general matter. Further, the number of persons for whom these documents are requested
is limited. Defendant argues, however, that the request is disproportionate because there
is no time limit on the request. The Court finds that the relevance of these documents
diminishes with time, and therefore will require production only for the time period 20132016. This covers a limited period leading up to Plaintiff’s unacceptable performance
review and termination and mirrors the time period for which Plaintiff has requested
similar documents.
Plaintiff has also requested “other documents related to the factual circumstances
and issues in this matter” from these three individual’s personnel files. The Court agrees
with Defendant that this request is vague and overbroad and will therefore deny the
request. 2
3.

RFP 5 – Similarly Situated Performance Evaluations
Plaintiff has requested performance evaluations for the seven employees eligible

for the workforce reduction, as well as employees who were not eligible but were
similarly situated to Plaintiff. Defendant has agreed to produce the performance
evaluations for the seven WFR-eligible employees, but object to producing the other
evaluations.

2

The Court does so without prejudice to Plaintiff to clarify, supplement, or narrow its request.

MEMORANDUM DECISION AND ORDER - 4

To succeed in his claim under the McDonnell-Douglas test, Plaintiff must be able
to show that the legitimate, nondiscriminatory reason for his termination asserted by
Defendant is pretextual. See 411 U.S. 792 (1973) (as applied to ADEA claims in Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). To the extent Plaintiff’s
performance evaluation played a role in his termination, the requested records are
relevant because they may provide circumstantial evidence of an improper motive or
pretext for that evaluation, as it compares to the performance evaluations of other
employees in similar jobs. Thus, the Court will order Defendant to produce the 20132016 performance evaluations for other employees in the Global Design Experience work
group with the same job title(s) or responsibilities as Plaintiff.
4.

RFP 16 - Labor Pyramid
Plaintiff has requested documents created or disseminated by HP managers,

officers, executives, directors or HR personnel between January 2013 to the present,
which discuss early career hiring, college hiring, youthful work force, balance workforce
and labor pyramid. Defendant objects on the grounds that the request is overly broad, and
disproportionate to the relevance of the documents requested. The Court finds that the
requested documents are clearly relevant to Plaintiff’s claims. The existence of an
explicit or implicit policy aimed at creating a younger workforce is circumstantial
evidence that would support Plaintiff’s claim that his termination was based on age
discrimination, rather than a legitimate and nondiscriminatory reason.

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Although Defendant objects to the scale of the search required to respond to this
request, they have apparently rebuffed efforts by the Plaintiff to narrow the request. See
Pl.’s Br. at 9 n.18, Dkt. 37-1. Further, Plaintiff has already limited the request to specific
and clearly defined categories of persons and topics, which cuts against Defendant’s
argument that the request provides “no defining limitation on the character of the
documents sought.” See Def.’s Br. at 9, Dkt 36.
Because the Court finds the requested documents to be clearly relevant to
Plaintiff’s claims, it will give the parties ten (10) days from the issuance of this Order to
meet and confer and agree on the proposed limitations for this request, after which the
parties are directed to file a notice with the Court stating whether the matter has been
resolved satisfactorily. Should the parties still disagree at that time, the Court will decide
the matter on the evidence already before it.
5.

Int. 2 – Demographic Information
Defendant has agreed to produce the dates of birth for all ten individuals identified

in the parties’ initial disclosures, and the reasons for separation for two individuals so
identified who are no longer employed by Defendant. This issue is therefore resolved and
the Court will order Defendant to produce the requested information forthwith.
6.

Int. 4 – Deleted ESI
The Court will order Defendant to clarify its response to Interrogatory 4 to state in

writing whether any ESI related to Plaintiff has been deleted, purged, or otherwise
destroyed.

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7.

Privacy Concerns
Defendant has raised a concern that disclosing certain information requested by

the Plaintiff may place it in violation of the California Constitution and Section 1985.6 of
the California Code of Civil Procedure. See Def.’s Br. at 3, Dkt. 36. Section 1985.6 is
inapposite here, as it applies by its terms only to the use of a subpoena duces tecum. See
McEwan v. OSP Group, L.P., 2016 WL 1241530 at *5 (S.D. Cal. March 30, 2016).
Further, in evaluating a potential invasion of privacy under the California Constitution
requires the Court balances the seriousness of the threatened invasion against the
countervailing interests in disclosure. Williams v. Superior Court, 386 P.3d 69, 84 (Cal.
2017). In so doing, the Court should consider “feasible alternatives that serve the same
interests or protective measures that would diminish the loss of privacy.” Id. This is
because “complete bans on disclosure to vindicate privacy interests . . . may significantly
hamper the ability of aggrieved employees” to vindicate their rights. Id. at 86.
The Court acknowledges that performance evaluations, disciplinary records,
reasons for termination, and dates of birth all constitute sensitive personal information.
As discussed above, however, the requested information is relevant and proportional, and
Plaintiff therefore has an established interest in disclosure. Further, the parties have in
place a Protective Order which allows them to produce information designated as either
confidential, or attorney’s eyes only, such that the dissemination of any sensitive
information may be limited to Plaintiff and his Counsel. See Joint Stipulated Protective
Order, Dkt. 24. The Court therefore finds that production of the requested information

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subject to the Protective Order is a feasible alternative, which serves both the interests in
disclosure and the privacy interests asserted by the parties. Should Defendant seek to
amend the Protective Order prior to disclosure of the requested information, however,
they must meet and confer with Plaintiff on any proposed amendments within ten (10)
days, of this Order being issued.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff’s Motion to
Compel (Dkt. 37) is GRANTED to the extent that:
1.

Defendant is ordered to produce performance evaluations and disciplinary
records for the three individuals identified in the initial disclosures who
were in Plaintiff’s chain-of-command at HP, Inc, limited to the time period
from 2013-2016.

2.

Defendant is ordered to produce the 2013-2016 performance evaluations for
other employees in the Global Design Experience work group with the
same job title(s) or responsibilities as Plaintiff.

3.

Defendant is ordered to produce the dates of birth for all ten individuals
identified in the parties’ initial disclosures, and the reasons for separation
for the two individuals so identified who are no longer employed by
Defendant.

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4.

Defendant is ordered to clarify its response to Interrogatory 4 to state in
writing whether any ESI related to Plaintiff has been deleted, purged, or
otherwise destroyed.

IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel (Dkt. 37) is
DENIED to the extent that:
1.

Plaintiff’s request that Defendant produce “other documents related to the
factual circumstances and issues in this matter” from the personnel files for
Plaintiff’s supervisors is denied as vague and overbroad.

IT IS FURTHER ORDERED that within ten (10) days of this Order being issued,
the parties shall meet and confer, and submit a notice to the Court on the status of:
1. Any proposed limitations to the category of persons identified in RFP 16.
2. Any proposed amendments to the Protective Order.

DATED: July 31, 2018

_________________________
B. Lynn Winmill
Chief U.S. District Court Judge

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