Stines v. Fidelity National Financial, Inc. et al

Filing 29

MINUTE ORDER granting in part and denying in part Plaintiff's 14 Motion to Compel. Authorized by Judge Thomas S. Zilly. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ERIN M. STINES,

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Plaintiff,
C16-848 TSZ

v.
FIDELITY NATIONAL FINANCIAL,
INC., et al.,

MINUTE ORDER

Defendants.
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The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:

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(1)
Plaintiff’s motion to compel, docket no. 14, is GRANTED in part and
DENIED in part as follows:

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(i)
As to Request for Production No. 3 requesting the “entire personnel
file” of Henry Hamilton, plaintiff’s motion is DENIED as moot.
(ii)
As to Request for Production No. 4, requesting the “entire payroll
file” for Henry Hamilton, plaintiff’s motion is GRANTED in part.
Defendants shall produce any “Transfer: Review” documents for Henry
Hamilton. Except as granted, plaintiff’s motion with respect to Request for
Production No. 4 is DENIED. Defendant has produced a document
showing the salaries, raises, and bonuses received by attorneys Henry
Hamilton, Matthew Cleverly, and Daniel Womac that contains sufficient
information for plaintiff to discern any discrepancies between their
compensation and the compensation of similarly situated female
employees. The “Payroll Professional” records likely contain social
security numbers and financial institution information, as well as other
sensitive personal information, such as contributions to a retirement or

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MINUTE ORDER - 1

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health savings account, which are both entitled to protection and unrelated
to plaintiff’s claims. Plaintiff has not shown that the “raw data” contained
in these records has any relevance to her claim that she received less
compensation because of her gender.
(iii) As to Request for Production No. 5, requesting the “entire personnel
file” of Matthew Cleverly, plaintiff’s motion is DENIED as moot.

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(iv) As to Request for Production No. 6, requesting the “entire payroll
file” for Matthew Cleverly, plaintiff’s motion is GRANTED in part.
Defendants shall produce any “Transfer: Review” documents for Matthew
Cleverly. For the reasons discussed in section (ii) above, except as granted,
plaintiff’s motion with respect to Request for Production No. 6 is DENIED.

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(v)
As to Request for Production No. 7, requesting the “entire personnel
file” for Dan Womac, plaintiff’s motion is DENIED as moot.

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(vi) As to Request for Production No. 8, requesting the “entire payroll
file” for Dan Womac, plaintiff’s motion is GRANTED in part. Defendants
shall produce any “Transfer: Review” documents for Daniel Womac. For
the reasons discussed in section (ii) above, except as granted, plaintiff’s
motion with respect to Request for Production No. 8 is DENIED.
(vii) As to Requests for Production Nos. 9 and 10, requesting the “entire”
personnel and payroll files for Tom Larkin, plaintiff’s motion is
GRANTED in part. Defendants shall produce Tom Larkin’s personnel file
and any “Transfer: Review” documents for the time period between
September 20, 2010, when Mr. Larkin was hired, and May of 2011, when
he was promoted to Managing Attorney. Defendants shall additionally
provide to plaintiff, in a format similar to the one used in Exhibit A, docket
no. 26, Mr. Larkin’s annual salary and any bonus amounts and raises he
received during the same time period. Except as granted, plaintiff’s motion
with respect to Requests for Production Nos. 9 and 10 is DENIED.

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(viii) As to Requests for Production Nos. 11 and 12, requesting the
“entire” personnel and payroll files for Janis White, plaintiff’s motion is
GRANTED in part. “[E]vidence from non-party personnel files, such as
the position, disciplinary records, wages, and promotion history of
employees both inside and outside the protected class, has been held to
constitute discoverable comparator evidence.” See Lauer v. Longevity
Medical Clinic PLLC, No. C13-0860-JCC, 2014 WL 5471983, *5 (W.D.
Wash. Oct. 28, 2014) (emphasis added). Defendants shall produce the
personnel file and any “Transfer: Review” documents for Janis White.
Defendants shall additionally provide to plaintiff, in a format similar to the
one used in Exhibit A, docket no. 26, Ms. White’s annual salary and any

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bonus amounts and raises she received during the time period plaintiff was
employed by defendant Fidelity National Title Group, Inc. Except as
granted, plaintiff’s motion with respect to Requests for Production Nos. 11
and 12 is DENIED.

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(ix) As to Requests for Production Nos. 13 and 14, requesting the
“entire” personnel and payroll files for Mark Phelps, plaintiff’s motion is
GRANTED in part. Defendants shall produce the personnel file and any
“Transfer: Review” documents for Mr. Phelps for any time period(s) in
which he served in the same Trial Counsel position as plaintiff. Defendants
shall additionally provide to plaintiff, in a format similar to the one used in
Exhibit A, docket no. 26, Mr. Phelps’s annual salary and any bonus
amounts and raises during the same time period(s). Except as granted,
plaintiff’s motion with respect to Requests for Production Nos. 13 and 14 is
DENIED.
(x)
As to Requests for Production Nos. 15 and 16, requesting the
“entire” personnel and payroll files for Peter Wolff, plaintiff’s motion is
DENIED.
(xi) As to Requests for Production Nos. 27 and 28, requesting the
“entire” personnel and payroll files for Joe Tucker, plaintiff’s motion is
DENIED.
(xii) As to Request for Production No. 29, requesting the “entire”
personnel file for Melissa Mack, plaintiff’s motion is DENIED.
(xiii) As to Request for Production No. 30, requesting “past or current job
descriptions for all attorney positions within the Seattle office of Fidelity
National Title Group,” plaintiff’s motion is DENIED without prejudice.
Defendants have represented that they have undertaken a good faith search
for attorney job descriptions and have located none. In the event that any
such job description is identified, defendants have represented that its
response to Request for Production No. 30 will be supplemented.
(xiv) As to Request for Production No. 31, requesting “resumes,
employment applications, employment contracts, job titles, and wage and
bonus histories” for Henry Hamilton, plaintiff’s motion is GRANTED in
part. Defendants shall produce any employment applications and resumes
for Henry Hamilton. Except as granted, plaintiff’s motion with respect to
Request for Production No. 31 is DENIED as moot.
(xv) As to Request for Production No. 32, requesting “resumes,
employment applications, employment contracts, job titles, and wage and
bonus histories” for Matthew Cleverly, plaintiff’s motion is GRANTED in

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part. Defendants shall produce any employment applications and resumes
for Matthew Cleverly. Except as granted, plaintiff’s motion with respect to
Request for Production No. 32 is DENIED as moot.
(xvi) As to Request for Production No. 33, requesting “resumes,
employment applications, employment contracts, job titles, and wage and
bonus histories” for Dan Womac, plaintiff’s motion is GRANTED in part.
Defendants shall produce any resumes for Daniel Womac. Except as
granted, plaintiff’s motion with respect to Request for Production No. 33 is
DENIED as moot.
(xvii) As to Request for Production No. 34, requesting “resumes,
employment applications, employment contracts, job titles, and wage and
bonus histories” for Janis White, plaintiff’s motion is GRANTED.
Defendants shall produce any resumes, employment applications,
employment contracts, and job titles for Ms. White. With regard to the
requested wage and bonus histories, defendants shall produce this
information pursuant to the Court’s ruling concerning Requests for
Production No. 11 and 12, see section (viii).
(xviii) As to Request for Production No. 35, requesting “resumes,
employment applications, employment contracts, job titles, and wage and
bonus histories” for Tom Larkin, plaintiff’s motion is GRANTED in part.
Defendants shall produce any resumes, employment applications,
employment contracts, and job titles for Tom Larkin during the time period
from when he was hired on September 20, 2010, until he was promoted to
Managing Attorney in May of 2011. Defendants shall produce Mr.
Larkin’s wage and bonus history pursuant to the Court’s ruling concerning
Requests for Production Nos. 9 and 10, see Section (vii). Except as
granted, plaintiff’s motion with respect to Request for Production No. 35, is
DENIED.
(xix) As to Request for Production No. 36, requesting “resumes,
employment applications, employment contracts, job titles, and wage and
bonus histories” for Peter Wolff, plaintiff’s motion is DENIED.

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(xx) As to Request for Production No. 37, requesting “resumes,
employment applications, employment contracts, job titles, and wage and
bonus histories” for Mark Phelps, plaintiff’s motion is GRANTED in part.
Defendants shall produce any resumes and employment applications for
Mark Phelps. Defendants shall additionally produce employment contracts,
job titles, and wage and bonus history for any period(s) in which he served
in the same Trial Counsel position as plaintiff. Wage and bonus histories
shall be produced pursuant to the Court’s ruling concerning Requests for

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Production Nos. 15 and 16, see Section (ix). Except as granted, plaintiff’s
motion with respect to Request for Production No. 36 is DENIED.
(xxi) As to Request for Production No. 38, requesting “written
performance evaluations” of all “attorney employees who have ever worked
in the Seattle office of Fidelity National Title Group, Inc.,” plaintiff’s
motion is GRANTED in part. To the extent not already produced,
defendants shall produce performance evaluations for attorneys Harry
Hamilton, Matthew Cleverly, Daniel Womac, and Janis White. Defendants
shall additionally produce performance evaluations for Tom Larkin and
Mark Phelps for any time periods in which they served in the same Trial
Counsel position as plaintiff. Except as granted, plaintiff’s motion with
respect to Request for Production No. 38 is DENIED.
(xxii) As to Request for Production No. 39, requesting “written
performance evaluations . . . of all paralegal, legal assistant, and legal
secretary employees who have ever worked in the Seattle office of Fidelity
National Title Group, Inc.,” plaintiff’s motion is DENIED.
(xxiii) As to Request for Production No. 40, requesting documents
reflecting the “productivity of any of the attorney employees who have ever
worked in the Seattle office of Fidelity National Title Group, Inc.,”
plaintiff’s motion is GRANTED in part. Defendants shall produce any
non-privileged documents responsive to Request for Production No. 40 that
form the basis of their affirmative defense that “[a]ny alleged pay disparity
between plaintiff and other employees was the result of bona fide factors
other than sex.” Answer, docket no. 11, pg. 28-29 (Affirmative Defense
No. 7). Defendants shall produce a privilege log for any documents for
which a privilege is claimed. Except as granted, plaintiff’s motion with
respect to Request for Production No. 40 is DENIED.
(xxiv) As to Request for Production No. 41, requesting all “complaints,
grievances, or charges brought during the past seven years by any female
employee of Fidelity National Title Group, Inc.,” concerning “gender
discrimination, disparate treatment on the basis of sex, sexual harassment, a
hostile workplace, or any violation of the state or federal Equal Pay Act,”
plaintiff’s motion is GRANTED in part. Defendants shall produce all nonprivileged documents relating to complaints, grievances, or charges,
including informal complaints and internal grievances, brought by female
attorney employees in the Seattle office of defendant Fidelity National Title
Group, Inc. alleging gender discrimination or harassment, or violation of
the state or federal Equal Pay Act during the period of plaintiff’s
employment. Defendants shall additionally produce all non-privileged
documents relating to complaints, grievances, or charges, including
informal complaints and internal grievances, brought by female attorney

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employees who worked in any of Fidelity National Title Group, Inc.’s
offices in the United States, alleging that defendant Jay Levitch engaged or
participated in gender discrimination or harassment, or violation of the state
or federal Equal Pay Act during the period of plaintiff’s employment.
Defendants shall produce a privilege log for any documents for which a
privilege is claimed. Except as granted, plaintiff’s motion with respect to
Request for Production No. 41 is DENIED.
(xxv) As to Request for Production No. 42, requesting “any disciplinary
warnings given to, or any disciplinary action taken against, any employee
of the Seattle office of FNTG, during the past seven years,” plaintiff’s
motion is GRANTED in part. Defendants shall produce any documents
reflecting any disciplinary warnings given to, or any disciplinary action
taken against Janis White during the time period plaintiff was employed by
Fidelity National Title Group, Inc. Defendants shall additionally produce
any documents reflecting any disciplinary warnings given to, or any
disciplinary action taken against Tom Larkin or Mark Phelps for any
period(s) during which they served in the same Trial Counsel position as
plaintiff. As to disciplinary notices or documents concerning Harry
Hamilton, Matthew Cleverly, and Daniel Womac plaintiff’s motion is
DENIED as moot. Plaintiff’s motion with respect to Request for
Production No. 42 is otherwise DENIED.
(xxvi) As to Requests for Production Nos. 43, 44, 45, 46, 47, 48, and 49,
plaintiff’s motion is DENIED as moot. Defendants have apparently
produced all non-privileged documents written by or sent to Patrick
Mortimer, Joe Tucker, Joe Reinhardt, Raymond Quirk, Jay Levitch, and
Melissa Mack between April 1, 2015, and November 1, 2015, which
mention or discuss plaintiff. See Decl. of Katie Rosen, docket no. 21, Exs.
B and D. Defendants shall produce a privilege log for any documents for
which a privilege is claimed.
(xxvii) As to Request for Production No. 50, plaintiff’s motion is
GRANTED in part. Defendants shall produce any and all documents
related to any “inappropriate comments” which form the basis of
defendants’ contention that plaintiff was fired, in part, due to “inappropriate
comments to and about her co-workers.” See Answer, docket no. 11 at
¶ 4.78. Except as granted, plaintiff’s motion with respect to Request for
Production No. 50 is DENIED.
(xxviii) As to Request for Production No. 53, plaintiff’s motion is
DENIED.
(2)
Defendants are ADVISED that the Court may preclude any reliance on
evidence at issue in this motion that defendants did not produce in discovery.

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(3)

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(4)
record.

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The Court declines to award fees to either party.
The Clerk is directed to send a copy of this Minute Order to all counsel of

Dated this 27th day of March, 2017.

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William M. McCool
Clerk

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s/Karen Dews
Deputy Clerk

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