Merrilee Dirickson v. Intuitive Surgical, Inc., No. 2:2021mc00459 - Document 38 (C.D. Cal. 2021)
Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Fernando M. Olguin. IT THEREFORE IS ORDERED that Plaintiffs motion to compel Clark's additional deposition testimony is GRANTED as limited in the R. and R., Clarks mo tions for sanctions and to strike argument from Plaintiff's reply brief are DENIED, Plaintiffs unopposed motion for leave to submit additional authority is GRANTED, and Plaintiff's request for sanctions is DENIED re NOTICE OF MOTION AND MOTION for Relief from Consideration by the Court of New Argument and Facts in Plaintiff's Reply in Support of Plaintiff's Miscellaneous Motion to Enforce Subpoena and Compel Deposition Testimony 20 , Report and Recommendation (Issued) 28 , NOTICE OF MOTION AND MOTION for Sanctions Plaintiff 18 . (Made JS-6. Case Terminated.) (et)
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Merrilee Dirickson v. Intuitive Surgical, Inc. Doc. 38 JS-6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MERRILEE DIRICKSON, 12 13 14 Plaintiff, v. INTUITIVE SURGICAL, INC., 15 Defendant. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. MC 21-0459-FMO (JPRx) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE Pursuant to 28 U.S.C. § 636, the Court has reviewed the 19 parties’ briefings, the records on file, and the Report and 20 Recommendation of U.S. Magistrate Judge. On September 21, 2021, 21 Respondent Adam Clark filed objections to the R. & R., and on 22 October 5 Plaintiff replied. On October 12, Plaintiff moved for 23 leave to submit “additional authority” in response to Clark’s 24 objections. The Court noted that no such leave was likely needed 25 because the “authority” Plaintiff wanted to bring to the Court’s 26 attention was simply an order in the underlying litigation, in 27 the Northern District of Illinois, of which the Court could take 28 judicial notice, but it nonetheless gave Clark the opportunity to 1 Dockets.Justia.com 1 respond to Plaintiff’s motion. On October 19, he filed a notice 2 of nonopposition, in which, based on the new Illinois order, he 3 withdrew his argument concerning the Illinois Magistrate Judge’s 4 remark that Plaintiff’s requested relief was “dubious.”1 5 Clark raises four overarching objections to the R. & R., 6 including the now-withdrawn one based on the “dubious” remark. 7 His three remaining objections mostly rehash arguments in his 8 opposition to the motion to compel and in his own motions, 9 arguments the Magistrate Judge thoroughly addressed in her R. & 10 R. He does not challenge at all her rejection of his motions, 11 for sanctions and to strike argument from Plaintiff’s reply 12 brief, and therefore the Court accepts the R. & R.’s findings and 13 recommendations concerning them. 14 As for the underlying motion to compel discovery, as Clark 15 concedes, this Court should refuse to accept the R. & R. only if 16 the Magistrate Judge’s ruling was “clearly erroneous or contrary 17 to law.” (Objs. at 12);2 see also Fed. R. Civ. P. 72(a). He 18 argues that the Magistrate Judge “did not properly weigh the 19 factors that supported non-disclosure.” 20 argument is untenable. (Objs. at 5.) This As an initial matter, as he now 21 acknowledges (see, e.g., id. at 11, 13 & n.3), the test he urged 22 the Magistrate Judge to apply was outdated and had been broadly 23 24 25 26 27 1 In that new order, the Illinois Magistrate Judge stated that “no one should place any weight” on the “off-the-cuff” “dubious” comment. (Mot. for Leave, Ex. 1 at 2 n.1.) Further, he stated that he had read the R. & R. and found it “sound and wellreasoned.” (Id.) 2 The Court uses the pagination 28 Management/Electronic Case Filing system. 2 generated by its Case 1 modified by the California Supreme Court in ways that did not 2 favor him. (See R. & R. at 5, 17 (citing Williams v. Super. Ct., 3 3 Cal. 5th 531 (2017)).)3 Moreover, he never directly cited or 4 discussed in his earlier briefing the case whose factors he now 5 says she should have used, Hill v. Nat’l Collegiate Athletic 6 Ass’n, 7 Cal. 4th 1, 35-37 (1994). (Objs. at 13-14; see Opp’n at 7 ii-iv (table of authorities).) 8 In any event, the Magistrate Judge carefully balanced the 9 relevant factors, laying out the applicable law (see R. & R. at 10 4–6) and recognizing that Clark did have a privacy interest in 11 his personnel information (see id. at 7; Hr’g Tr. at 4, 19 (“I 12 certainly agree with you that there is a privacy interest.”), 3413 35) but finding that his concerns about its disclosure were 14 mitigated by the protective order (see R. & R. at 5, 10-11; Hr’g 15 Tr. at 11, 19-20) and outweighed by Plaintiff’s need for the 16 information (see R. & R. at 10-11) and his status as a third 17 party in name only (see id. at 8, 17; Hr’g Tr. at 11 (noting that 18 Clark was “one iota removed from being a party in this 19 matter”)).4 See Williams, 3 Cal. 5th at 554. Her careful 20 balancing is reflected in her limiting of the questions Plaintiff 21 22 3 Somewhat incredibly, despite Williams and all the cases that 23 have followed explaining that in circumstances such as those here party seeking discovery over privacy objections no longer needs 24 a to show a “compelling interest” to get the material (see R. & R. at 25 4-6), Clark argues that “the finding that one’s personnel history 26 27 is a significant privacy interest deserving of the highest level of protection remains intact” — and then cites a pre-Williams case for that proposition. (Objs. at 13.) 4 Clark’s objections do not challenge the Magistrate Judge’s 28 finding that he was not a typical uninterested third party. 3 1 may ask. The Magistrate Judge did not clearly err or act 2 contrary to law.5 3 Next, Clark complains that the Magistrate Judge erroneously 4 “relied on evidence about how the complaining employees felt, and 5 ignores the undisputed evidence about their actual complaints.” 6 (Objs. at 16 (cleaned up).) But as the Magistrate Judge 7 repeatedly pointed out, their testimony on this score was 8 ambiguous. (R. & R. at 8-9.) Morever, given how the women 9 “felt,” it’s reasonable to assume that they would have 10 communicated those feelings to Clark even if they sometimes 11 testified that they couldn’t remember what they had said to him. 12 Thus, the Magistrate Judge did not clearly err or act contrary to 13 law in concluding that the complaining witnesses’ testimony was 14 “open to interpretation” and could support Plaintiff’s theory of 15 the case, warranting discovery relevant to it. 16 Finally, Clark asks that if he is made to answer the four 17 questions and any followup that the Magistrate Judge recommended 18 be allowed, the questions be limited to the period through when, 19 but not after, he was interviewed by Human Resources in late 2018 20 concerning Plaintiff’s complaints and Ebong, not to the period up 21 until Plaintiff was terminated, in January 2019. But the 22 23 24 25 26 27 28 5 As Plaintiff points out (Pl.’s Resp. at 5), California federal courts regularly order personnel information produced in discovery over privacy objections without explicitly citing or analyzing Hill. Indeed, as the Magistrate Judge noted, a California federal court recently compelled discovery almost identical to that sought here from an employee third party similarly situated to Clark, over the same sort of privacy objections. (See R. & R. at 6 (citing Westmoreland v. Regents of the Univ. of Cal., No. 2:17-cv-01922-TLC-AC, 2019 WL 932220, at *7 (E.D. Cal. Feb. 26, 2019)).) 4 1 Magistrate Judge explored this issue at the hearing and noted 2 that the two events were relatively close in time — “a matter of 3 months,” according to Plaintiff’s counsel. (Hr’g Tr. at 30.) 4 And because HR might have made follow-up inquiries to Clark 5 during the short period between his initial HR interview and 6 Plaintiff’s firing (see id. at 31), the Magistrate Judge extended 7 the relevant period by a few months, to Plaintiff’s termination. 8 She did not clearly err or act contrary to law. 9 For the foregoing reasons, and having reviewed all portions 10 of the R. & R. to which Clark objected, the Court accepts the 11 findings and recommendations of the Magistrate Judge. 12 IT THEREFORE IS ORDERED that Plaintiff’s motion to compel 13 Clark’s additional deposition testimony is GRANTED as limited in 14 the R. & R., Clark’s motions for sanctions and to strike argument 15 from Plaintiff’s reply brief are DENIED, Plaintiff’s unopposed 16 motion for leave to submit additional authority is GRANTED, and 17 Plaintiff’s request for sanctions is DENIED. Clark must sit for 18 his continued deposition no later than three weeks from the date 19 of this Order, at a time and date mutually agreeable to the 20 parties and Clark. 21 V 22 DATED: November 2, 2021 23 FERNANDO M. OLGUIN U.S. DISTRICT JUDGE 24 25 26 27 28 5
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