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By: Debbie Yoon Jones and Lisa Garcia, Alston & Bird LLP
This article excerpt containing legal analytics from Context® provides guidance to employers' attorneys who need to request and respond to discovery in single-plaintiff employment discrimination cases brought under California's Fair Employment and Housing Act (FEHA).1
THIS EXCERPT ADDRESSES THE FOLLOWING TOPICS:
The unabridged version of this article addresses the following additional topics:
If you reach a point in the discovery process where there is a disagreement that cannot be resolved consensually, then you must engage in discovery motion practice to either (1) move to compel the production of information or responses by the plaintiff or (2) move for a protective order to prevent the production of information or responses by the defendant.
Be sure you have the law and argument on your side before you move to compel or move for protective order—a meritless motion will irritate the judge and could result in sanctions.3
According to data provided by Context, in discrimination law cases, the U.S. District Court for the Central District of California has granted fewer than 25% of the motions to compel discovery since January 1, 2010 (current as of 9/11/2020).
Similarly, according to data provided by Context, in discrimination law cases, the U.S District Court for the Northern District of California has also granted fewer than 25% of the motions to compel discovery since January 1, 2010 (current as of 9/11/2020).
Meet and Confer Requirement
In moving to compel or for a protective order, you must meet and confer and discuss the issues with the other side in an attempt to resolve disagreements before making a motion.6 You should always confirm the meet and confer discussions in a letter so that your position is clearly stated in writing and sent to the other side.
When filing your motion, you must include a declaration attesting that you met the meet and confer requirement.7 You should include as an attachment to the declaration the written confirmation of your meet and confer discussion.
Deadlines to File
You must file and serve a motion to compel written discovery within 45 days of the service of a verified response (although you get additional time if the responses were served by mail per Cal. Code Civ. Proc. § 1013).8 If you get an extension of time to move to compel, always confirm this in writing.
You should file any motion for a protective order before any discovery response is due to preserve your objections.
The Electronic Discovery Act became law in California in June 29, 2009. Its purpose was to eliminate uncertainty and confusion regarding the discovery of electronically stored information (ESI). ESI is broadly defined as "information that is stored in an electronic medium."9 Common examples of ESI include emails, computer files, Microsoft Word and Excel documents, and electronic images.
Any party may obtain ESI discovery by inspecting, copying, testing, or sampling ESI that is in the possession, custody, or control of any other party to the action.10
In practice, employers are most often on the receiving end of requests for ESI since they control the servers on which most ESI resides. When plaintiff employees in FEHA cases request emails and other computer files relating to the plaintiff and other key custodians in the case, the employer must understand and comply with its obligations under California law in preserving and producing its ESI. This section discusses those obligations.
ESI Preservation and Spoliation
As with physical records, employers must retain certain ESI to be used as evidence in litigation. Failure to do so is known as spoliation.
In California, "spoliation occurs when evidence is destroyed or significantly altered or when there is a failure to preserve property for another's use as evidence in current or future litigation."11
The exact time at which employers must begin to preserve evidence in California is not yet clear. However, destroying evidence in response to or in anticipation of a discovery request after litigation has commenced "would surely be a misuse of discovery."12
In FEHA cases where an employee worked for the company for a long period of time, some relevant information may no longer exist. When plaintiffs discover that the employer no longer has responsive ESI, they may petition the court for relief, claiming the employer knew that the documents might be used but nevertheless destroyed them.
The remedies in California for spoliation of evidence can be severe, and include:
California courts may also draw adverse evidentiary inferences and impose other orders against a litigant who benefitted from a third-party's spoliation when a sufficient relationship existed between the litigant and third party.17
To avoid sanctions and adverse inferences resulting from spoliation claims, consider whether the information was intentionally destroyed. For instance, California trial courts only instruct juries with a spoliation inference where a litigant is found to have willfully destroyed or concealed evidence during the underlying litigation.18 Specifically, the party seeking the benefit of an inference from spoliation "must demonstrate first that the records were destroyed with a culpable state of mind (i.e., where, for example, the records were destroyed knowingly, even if without intent to violate [a] regulation [requiring their retention], or negligently)."19
In practice, plaintiffs often lack evidence of any willful spoliation and courts do not seem eager to impose sanctions without some egregious behavior. California law also provides a safe harbor for employers that destroy ESI as part of their routine operations.20 Be sure to marshal these defenses when faced with spoliation allegations.
ESI Meet and Confer Requirement
Unless the court orders another time period, no later than 30 calendar days before the date set for the initial case management conference, the parties must meet and confer, in person or by telephone, to consider a number of ESI-related issues, including:
Responding to Requests for ESI
Employers must follow general California discovery rules when responding to requests for ESI, but you should be aware of certain requirements that pertain specifically to the production of electronic information.
If the plaintiff requests ESI from a source that is not reasonably accessible because of undue burden or expense, the employer may object. The employer must identify in its response the types or categories of sources of ESI that it asserts are not reasonably accessible to preserve the objections.22 The employer may also seek a protective order.23 Whether a source is reasonably accessible is a factual question for the court to decide, but factors can include:
While not required, most plaintiffs specify in their demands the form in which they want the employer to produce ESI (e.g., native format or TIFF images). If the employer objects to that form, or if no form is specified, the employer must state in its response the form in which it intends to produce each type of information.25 If no form is specified, the employer must produce the information in the form in which "it is ordinarily maintained" or in "a form that is reasonably usable."26 Parties need not produce the same ESI in more than one form.27 Additionally, the requesting party has to bear the "reasonable expense" of "translat[ing] any data compilations included in the demand into reasonably usable form."28
Inadvertent Disclosures of ESI
One concern when producing ESI is the inadvertent production of privileged or work product materials. In California, there are procedures in place to address the inadvertent production of ostensibly privileged information.
Specifically, if a responding party discovers the inadvertent production of privileged material and notifies a party who received the information, the receiving party must sequester the information immediately, and either return the information or present it to the court under seal for a ruling on the claim of privilege.29
The party in possession is precluded from using or disclosing the information until the claim of privilege or protection is resolved by the court.30 Note, however, that these provisions govern only the procedure for dealing with inadvertently produced materials pending a determination of whether they are in fact privileged—they do not affect the actual analysis of whether such inadvertent production waived the asserted privilege. To ensure the employer does not waive the privilege with respect to any privileged documents it inadvertently produces, be sure to enter into a clawback agreement with the plaintiff prior to producing ESI.
Differences between California ESI Rules and the Federal Rules of Civil Procedure
While California's ESI rules closely follow the FRCP, there are a couple of notable differences:
Debbie Yoon Jones is a partner in the Litigation and Trial Practice Group of the Los Angeles office of Alston & Bird. She assists business clients with a wide variety of commercial issues involving contract, consumer protection, unfair competition/business practices, real estate, franchise, labor & employment, financial services, and product liability matters in both state and federal courts throughout California. She is Alston’s Mentoring Partner who is responsible for the firm-wide Mentoring Program and has co-chaired the Women’s Initiative and Los Angeles Diversity Committee. She was recently awarded the honor of being named one of the Los Angeles Business Journal’s “Most Influential Women Lawyers” for 2019. Lisa Garcia is a senior associate in Alston & Bird's Litigation & Trial Practice Group. Lisa focuses her practice on complex business litigation, internal corporate investigations, contract disputes, and franchise litigation.
To find this article in Lexis Practice Advisor, follow this research path:
RESEARCH PATH: Labor & Employment > Discrimination, Harassment, and Retaliation > Claims and Investigations > Practice Notes
For more information on electronic discovery in employment litigation, see
> ELECTRONIC DISCOVERY IN EMPLOYMENT LITIGATION
RESEARCH PATH: Labor & Employment > Employment Litigation > Class and Collective Actions > Practice Notes
For an overview of federal e-discovery, see
> E-DISCOVERY: PLANNING FOR AND CONDUCTING E-DISCOVERY (FEDERAL)
RESEARCH PATH: Civil Litigation > Discovery > E-discovery > Practice Notes
For a discussion of e-discovery in California, see
> E-DISCOVERY: PLANNING FOR AND CONDUCTING E-DISCOVERY (CA)
For a sample clawback agreement in federal court, see
> STIPULATED PROTECTIVE ORDER (WITH CLAWBACK PROVISION (FEDERAL)
RESEARCH PATH: Civil Litigation > Discovery > Privileges and Protections > Forms
For a review of evidence preservation generally in California, see
> EVIDENCE PRESERVATION (CA)
RESEARCH PATH: Civil Litigation > Discovery > Privileges and Protections > Practice Notes
1. Cal. Gov. Code § 12900 et seq. 2. To read the unabridged version of this article, go to Discovery in Single-Plaintiff Employment Discrimination Cases (CA). 3. See Cal. Code Civ. Proc. §§ 2023.010–2023.040, 2025.420(h), 2025.450(g), 2030.090(d), 2030.300(d), 2031.060(d), 2031.310(d), 2033.080(d), 2033.290(d). 4. Source: Context (U.S. District Court, Central District of California) (current as of 9/11/20) (click here for updated analytics). To learn more about Context, click here. 5. Source: Context (U.S. District Court, Northern District of California) (current as of 9/11/20) (click here for updated analytics). To learn more about Context, click here. 6. See Cal. Code Civ. Proc. §§ 2016.040, 2025.420(a), 2025.450(b), 2030.090(a), 2030.300(b), 2031.060(a), 2031.310(b), 2033.080(a), 2033.290(b). 7. Id. 8. See Cal. Code Civ. Proc. §§ 2030.300(c), 2031.310(c), 2033.290(c). 9. Cal. Code Civ. Proc. § 2016.020(e). 10. Cal. Code Civ. Proc. § 2031.010. 11. Strong v. State, 201 Cal. App. 4th 1439, 1458 (2011) (quoting Hernandez v. Garcetti, 68 Cal. App. 4th 675, 680 (1998)); see also Kearney v. Foley & Lardner, LLP, 590 F.3d 638 (9th Cir. 2009) (applying California law). 12. See Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal. 4th 1, 12 (1998). 13. See Cal. Evid. Code §§ 412, 413; Walsh v. Caidin, 232 Cal. App. 3d 159, 164–65 (1991); Bihun v. AT & T Information Systems, Inc., 13 Cal. App. 4th 976, 994–95 (1993). 14. See Cal. Code Civ. Proc. § 2023; Puritan Ins. Co. v. Superior Court, 171 Cal. App. 3d 877 (1985). 15. See Cal. Pen. Code § 135; Smith v. Superior Court, 151 Cal. App. 3d 491, 497–500 (1984). 16. See Cedars-Sinai Med. Ctr., 18 Cal. 4th 11–13. 17. See Temple Cmty. Hosp. v. Superior Court, 20 Cal. 4th 464, 473–74, 476–77 (1999). 18. See, e.g., Cedars-Sinai Med. Ctr., 18 Cal. 4th at 12. 19. Reeves v. MV Transp., Inc., 186 Cal. App. 4th 666, 681–82 (2010) (quoting Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107, 109 (2d Cir. 2001)). 20. See Cal. Code Civ. Proc. § 2031.320(d)(1) ("absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system."). 21. Cal. Rules of Court, Rule 3.724(8). 22. Cal. Code Civ. Proc. § 2031.210(d). 23. Cal. Code Civ. Proc. § 2031.060. 24. See 8 California Points & Authorities § 85A.07–. 25. Cal. Code Civ. Proc. § 2031.280(c). 26. Cal. Code Civ. Proc. § 2031.280(d)(1). 27. Cal. Code Civ. Proc. § 2031.280(d)(2). 28. See Cal. Code Civ. Proc. § 2031.280(e). 29. Cal. Code Civ. Proc. § 2031.285(b). 30. See Cal. Code Civ. Proc. § 2031.285(c)(1), (d)(2). 31. Fed. R. Civ. P. 26(b)(2)(B). 32. Cal. Code Civ. Proc. §§ 2031.060(c) and 2031.310. 33. Fed. R. Civ. P. 26(f)(3). 34. Cal. Rules of Court, Rule 3.724, 3.727.