Clark v. Vivint Solar

Filing 48

MEMORANDUM DECISION AND ORDER: Granting in part and denying in part 30 Clarks Motion to Compel. Vivints request for an award of reasonable expenses incurred in connection with Clarks motion to compel is DENIED. Granting 29 Vivi nts motion to compel Clarks appearance at a deposition. Vivints request for an award of reasonable expenses incurred in connection with its motion to compel Clarks appearance at a deposition is DENIED. Signed by Magistrate Judge Paul M. Warner on 3/15/2019. (jds)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

ADRIANA CLARK,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
Case No. 2:17-cv-00144-JNP-PMW
v.
VIVINT SOLAR, INC.,
Defendant.

District Judge Jill N. Parrish
Chief Magistrate Judge Paul M. Warner

District Judge Jill N. Parrish referred this case to Chief Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A). 1 Before the court are (1) Plaintiff Adriana Clark’s
(“Clark”) motion to compel 2 and (2) Defendant Vivint Solar, Inc.’s (“Vivint”) motion to compel
Clark’s appearance at a deposition. 3 The court has carefully reviewed the written memoranda
submitted by the parties. Pursuant to Civil Rule 7-1(f) of the Rules of Practice for the United
States District Court for the District of Utah, the court has concluded that oral argument is not
necessary and will decide the motions on the basis of the written memoranda. See DUCivR
7-1(f).

1

See docket no. 15.

2

See docket no. 30. Pursuant to a court order, see docket no. 41, the parties provided
supplemental briefing on this motion. See docket nos. 43, 45-47.

3

See docket no. 29.

LEGAL STANDARDS
Before addressing the above-referenced motions, the court sets forth the following
general legal standards governing discovery. Rule 26(b)(1) provides:
Parties 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. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). “The district court has broad discretion over the control of discovery,
and [the Tenth Circuit] will not set aside discovery rulings absent an abuse of that discretion.”
Sec. & Exch. Comm’n v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010)
(quotations and citations omitted).
ANALYSIS
I.

Clark’s Motion to Compel
In her motion, Clark seeks compelled responses from Vivint to her Interrogatory Nos. 2,

6, 8, 9, and 11, as well as her Request for Production Nos. 1, 3, 9, 10, and 11. Those discovery
requests can be generally grouped into the following five categories: (A) salary and related
information for 181 Vivint employees (Interrogatory Nos. 2, 11; Request for Production Nos. 1,
3); (B) Vivint employee pay complaints from 2013 to the present (Interrogatory Nos. 8, 9;
Request for Production Nos. 1, 10); (C) information about separations of certain former Vivint
employees (Interrogatory No. 6; Request for Production No. 1); (D) documents regarding
complaints made by Clark to Vivint (Request for Production No. 9); and (E) documents
2

regarding all complaints of discrimination made by any employee to Vivint from 2013 to the
present (Request for Production No. 11). The court will address those categories in turn,
followed by (F) Vivint’s request for an award of reasonable expenses incurred in connection with
Clark’s motion.
A.

Salary and Related Information

The discovery requests that are the subject of this category seek salary and related
information for 181 of Vivint’s employees. 4 Clark argues that she is entitled to that information
because it is relevant and proportional. In response, Vivint argues that Clark entitled to only
salary and related information for employees who worked in Clark’s employing unit. Vivint
further asserts that it has already provided to Clark the salary and related information for the 58
employees who worked in Clark’s employing unit, the Vivint Solar Human Capital Department.
“In employment discrimination cases, discovery is usually limited to information about
employees in the same department or office absent a showing of a more particularized need for,
and the likely relevance of, broader information.” Haselhorst v. Wal-Mart Stores, Inc., 163
F.R.D. 10, 11 (D. Kan. 1995) (quotations and citations omitted); see Condor v. W. Bountiful City,
No. 2:07CV924, 2008 WL 4200605, at *2 (D. Utah Sept. 9, 2008) (same); see also Earley v.
Champion Int’l Corp., 907 F.2d 1077, 1084-85 (11th Cir. 1990) (“‘[I]n the context of
investigating an individual complaint the most natural focus is upon the source of the complained
of discrimination—the employing unit or work unit.’” (quoting Marshall v. Westinghouse Elec.

4

The discovery requests that are the subject of this category originally sought salary and related
information for more than 181 Vivint employees. By way of her motion, Clark now indicates
that she is seeking salary and related information for only the 181 employees she has identified.
3

Corp., 576 F.2d 588, 592 (5th Cir. 1978)) (alteration in original)); Prouty v. Nat’l R.R. Passenger
Corp., 99 F.R.D. 545, 547 (D.D.C. 1983) (citing and quoting Marshall for the same proposition
stated in Earley). “When the employment decisions were made locally, discovery may properly
be limited to the employing unit.” Haselhorst, 163 F.R.D. at 11 (quotations and citations
omitted); see also Scales v. J.C. Bradford & Co., 925 F.2d 901, 907 (6th Cir. 1991); Earley, 907
F.2d at 1084. “In the absence of any evidence that there were hiring or firing practices and
procedures applicable to all the employing units, discovery may be limited to plaintiff’s
employing unit.” Haselhorst, 163 F.R.D. at 11 (quotations and citation omitted); see also Joslin
Dry Goods Co. v. Equal Emp’t Opportunity Comm’n, 483 F.2d 178, 183-84 (10th Cir. 1973).
Importantly, Clark does not dispute the propositions set forth in the above-referenced
authorities. Instead, apparently recognizing those propositions, Clark asserts that pay decisions
within Vivint were centralized and, therefore, that she is entitled to salary and related information
beyond her employing unit. The court disagrees. As noted by Vivint, Clark’s assertion
concerning centralized pay decisions is directly contradicted by Vivint’s discovery responses and
certain deposition testimony, which indicate that pay decisions were not centralized. 5 Consistent
with the foregoing authorities, because Clark has failed to demonstrate to the court that pay
decisions were applicable to all employing units within Vivint, the court concludes that Clark is
entitled to only the salary and related information for her employing unit, the Vivint Solar
Human Capital Department. Because Vivint has apparently already provided that information to
Clark, this portion of Clark’s motion is denied.

5

See docket no. 46 at 5-6.
4

B.

Employee Pay Complaints

The discovery requests under this category seek certain information about all Vivint
employee complaints regarding pay from 2013, the year Clark’s tenure at Vivint started, to the
present. Clark argues that she is entitled to that information and that Vivint responses to the
discovery requests in this category have been unilaterally limited by Vivint to a particular time
period, to complaints only about discrimination, and to only formal complaints. In response to
Clark’s motion, Vivint contends only that the discovery requests in this category are facially
overbroad because they seek information outside of the timeframe of Clark’s employment at
Vivint.
Courts generally refuse to limit discovery in an
employment discrimination case to the specific time period in
which a violation is alleged to have occurred. Rather, courts have
held that the discovery of information both before and after the
alleged discrimination may be relevant . . . . Courts will typically
extend the scope of discovery to a reasonable number of years
prior to and following the alleged discrimination.
Epling v. UCB Films, Inc., No. CIV.A.98-4226-SAC, 2000 WL 1466216, at *7 (D. Kan. Aug. 7,
2000) (citing numerous cases); see also James v. Newspaper Agency Corp., 591 F.2d 579, 582
(10th Cir. 1979) (permitting discovery into four-year period prior to alleged discrimination).
Based upon those authorities, the court concludes that Vivint’s argument is without merit.
The court also concludes that the time period of 2013 to the present is reasonable for the
discovery requests in this category. Accordingly, this portion of Clark’s motion is granted.
Within 30 days after the date of this order, Vivint shall provide full responses to the discovery
requests in this category.

5

C.

Information About Separations of Certain Former Employees

The parties’ dispute over the discovery requests in this category present a situation with
which the court is all too familiar. Clark contends that Vivint has not provided all of the
information sought by the discovery requests. In response, Vivint asserts that it has provided all
responsive information in its possession that is relevant and non-privileged. In her reply, Clark
continues to maintain that Vivint has not produced all responsive information.
When faced with this situation, the court is left with only the following solution. This
portion of Clark’s motion is granted, on the following terms. To the extent Vivint has not already
done so, the court orders Vivint to, within 30 days after the date of this order, produce all
relevant, non-privileged information that is responsive to the discovery requests in this category.
Once Vivint has done so, it shall provide a sworn declaration to Clark to that effect. Based upon
the parties’ arguments, the court cannot provide Clark with any further relief. Put another way,
the court simply cannot order Vivint to produce information that it claims it does not possess.
However, Vivint will not be allowed to later use at trial any responsive information that it now
claims it does not possess or does not exist.
D.

Documents Regarding Complaints Made by Clark

After reviewing both Clark’s original motion and her supplemental memorandum in
support of her motion, the court is unable to find any substantive argument on the discovery
request that is the subject of this category. Indeed, in both documents, Clark makes only passing
references to that discovery request. It was not until her supplemental reply memorandum that
Clark made any substantive argument for that discovery request. By failing to raise her
argument on that discovery request in either her original motion or supplemental memorandum,
6

Clark deprived Vivint of a meaningful opportunity to respond. Therefore, the court declines to
consider this argument. See, e.g., Stake Ctr. Locating v. Logix Commc’ns, L.P., No. 2:13-CV1090-JNP-DBP, 2017 WL 1207516, at *3 (D. Utah Mar. 31, 2017) (declining to entertain a new
issue raised for the first time in a reply brief). Accordingly, this portion of Clark’s motion is
denied.
E.

Documents Regarding All Complaints of Discrimination

The discovery request under this category seeks information about all Vivint employee
complaints regarding discrimination from 2013 to the present. Clark contends that she is entitled
to that information. In response, Vivint argues only that the discovery requests in this category
are facially overbroad because they seek information outside of the timeframe of Clark’s
employment at Vivint.
In addressing the same argument made by Vivint above, the court concluded that it was
without merit. See Epling, 2000 WL 1466216, at *7; James, 591 F.2d at 582. The court reaches
the same conclusion here. The court also concludes, as it did above, that the time period of 2013
to the present is reasonable for the discovery request in this category. Accordingly, this portion
of Clark’s motion is granted. Within 30 days after the date of this order, Vivint shall provide full
responses to the discovery request in this category.
F.

Vivint’s Request for an Award of Reasonable Expenses

Vivint requests an award of reasonable expenses incurred in connection with Clark’s
motion to compel. The court has granted portions of Clark’s motion to compel, while denying
other parts. Accordingly, Rule 37(a)(5)(C) of the Federal Rules of Civil Procedure governs any
potential award of reasonable expenses. While that rule does allow the court to apportion an
7

award of reasonable expenses, the court declines to do so here. Therefore, Vivint’s request is
denied.
II.

Vivint’s Motion to Compel Clark’s Appearance at a Deposition
Based upon Clark’s response to this motion, it is apparent to the court that she was

refusing to appear for her deposition only until the discovery issues raised in her motion to
compel were resolved. The court disagrees with Clark’s position on that issue. There is no
authority to support the proposition that a party may refuse to appear for her deposition until the
opposing party responds to discovery requests. To the contrary, appearing for a deposition and
providing responses to discovery requests are independent requirements under the Federal Rules
of Civil Procedure. Had Clark wished to delay her deposition, she should have used the
appropriate vehicle of seeking a protective order from the court.
Nevertheless, having resolved the issues in Clark’s motion to compel, the court concludes
that Clark must now appear for her deposition. Accordingly, Vivint’s motion to compel Clark’s
appearance at a deposition is granted. Within 14 days after Vivint provides the additional
discovery responses required by this order, the parties shall meet and confer to attempt to agree
upon a date and time for Clark’s deposition that is mutually convenient for the parties and their
counsel. If further issues arise concerning the scheduling of Clark’s deposition, Vivint should
bring those issues to the court by way of an appropriate motion.
As a final matter, the court addresses Vivint’s request for an award of reasonable
expenses incurred in connection with this motion. The court concludes that an award of
reasonable expenses to Vivint is not justified under the circumstances. See Fed. R. Civ. P.
37(a)(5)(A)(iii). Accordingly, Vivint’s request is denied.
8

CONCLUSION AND ORDER
In summary, and as detailed above, IT IS HEREBY ORDERED:
1.

Clark’s motion to compel 6 is GRANTED IN PART and DENIED IN PART.

2.

Vivint’s request for an award of reasonable expenses incurred in connection with
Clark’s motion to compel is DENIED.

3.

Vivint’s motion to compel Clark’s appearance at a deposition 7 is GRANTED.

4.

Vivint’s request for an award of reasonable expenses incurred in connection with
its motion to compel Clark’s appearance at a deposition is DENIED.

IT IS SO ORDERED.
DATED this 15th day of March, 2019.
BY THE COURT:

PAUL M. WARNER
Chief United States Magistrate Judge

6

See docket no. 30.

7

See docket no. 29.
9