TeleCommunication Systems Inc v. Houserman et al, No. 2:2019cv00336 - Document 77 (W.D. Wash. 2020)
Court Description: ORDER granting Houserman and MSI's 68 Motion to Compel LCR 37(a)(2) Expedited Joint Submission Regarding Comtech's Outstanding Discovery Responses: Comtech shall provide MSI/Houserman with unredacted versions of the responsive documents at issue in this motion no later than ten (10) days from the date of this Order. Signed by Hon. Brian A Tsuchida.(MW)
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TeleCommunication Systems Inc v. Houserman et al Doc. 77 1 2 3 4 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 6 7 TELECOMMUNICATION SYSTEMS, INC., Plaintiff, 8 9 10 v. LYNNE HOUSERMAN and MOTOROLA SOLUTIONS, INC., 11 12 13 Defendants. ______________________________________ LYNNE HOUSERMAN, 16 17 18 19 ORDER REGARDING LCR 37(a)(2) EXPEDITED JOINT SUBMISSION REGARDING COMTECH’S OUTSTANDING DISCOVERY RESPONSES Plaintiff, 14 15 Case Nos. 2:19-cv-00336-RAJ-BAT 2:19-cv-00644-RAJ-BAT v. COMTECH TELECOMMUNICATIONS CORPORATION, FRED KORNBERG, AND MICHAEL D. PORCELAIN, Defendants. This matter comes before the Court on the parties’ joint submission pursuant to Western 20 District of Washington Local Civil Rule 37(a)(2). Telecommunication Systems, Inc (“TSYS”) 21 Dkt. 68; Houserman Dkt. 84. Motorola Solutions, Inc. (“MSI”) and Lynne Houserman 22 (collectively, “MSI/Houserman”) seek an order from the Court requiring Telecommunication 23 Systems, Inc., Comtech Telecommunications Corp., Fred Kornberg, and Michael Porcelain ORDER REGARDING JOINT MOTION TO COMPEL LCR 37(a)(2) - 1 Dockets.Justia.com 1 (collectively, “Comtech”) to produce outstanding information and documents requested by MSI 2 and Ms. Houserman in Telecommunication Systems, Inc. v. Houserman et al. (Case No. 2:19-cv- 3 00336-RAJ-BAT) (“TSYS Case”) and Houserman v. Comtech et al. (Case No. 2:19-cv-00644- 4 RAJ-BAT) (“Houserman Case”). These cases have been consolidated for discovery. TSYS Dkt. 5 32; Houserman Dkt. 30. 6 7 8 Having considered the parties’ briefing and relevant record, the Court finds oral argument unnecessary and hereby GRANTS the requests of MSI/Houserman as set forth herein. I. BACKGROUND 9 In the TSYS Case, Comtech alleges that MSI/Houserman breached restrictive covenants 10 and tortiously interfered with two Comtech customers—South Dakota (“Client A”) and General 11 Dynamics Information Technology (“GDIT”) (“Client B”). TSYS Dkt. 1. MSI/Houserman 12 contend that it was Comtech’s performance failures under its contract with South Dakota that 13 caused South Dakota not to renew and to seek bids for a new contract (which neither Comtech 14 nor MSI won). As to GDIT, MSI/Houserman contend there cannot possibly be any interference 15 with or interruption of the Comtech and GDIT relationship because Comtech acquired GDIT. 16 In the Houserman Case, Ms. Houserman, a former president at Comtech, alleges, inter 17 alia, that Comtech discriminated against her based on her gender and improperly terminated her 18 for cause. Houserman Dkt. 76. In one of her gender discrimination claims, Ms. Houserman 19 alleges that Comtech made her bonus more difficult to achieve when compared to Comtech’s 20 other (all male) presidents. Specifically, Ms. Houserman alleges that Comtech substantially 21 increased her pre-tax profit bonus goal over her projected pre-tax profit, while it appears it only 22 slightly increased other presidents’ pre-tax profit bonus goals over their pre-tax profit 23 ORDER REGARDING JOINT MOTION TO COMPEL LCR 37(a)(2) - 2 1 projections. Comtech contends that it terminated Ms. Houserman’s employment because she 2 manipulated corporate financial records to enlarge her own bonus. 3 The parties agreed to ESI parameters and terms – each side agreed to search fifteen 4 custodians’ email data and, in some cases, computers and phones, with dozens of search terms 5 over a multi-year period. Three of the 15 Comtech custodians chosen by MSI were Comtech 6 board members. The remaining custodians were current and former Comtech employees 7 (including its president, Fred Kornberg and COO, Mike Porcelain). TSYS Dkt. 72, Declaration 8 of Kathryn S. Rosen, ¶ 4. Using search terms chosen by MSI, Comtech searched the ESI of the 9 employee custodians, including using search terms related to South Dakota and GDIT. Id., ¶ 5. 10 Comtech produced 2,321 documents that have the terms “South Dakota” or “GDIT “in them. Id. 11 Both parties also sent comprehensive subpoenas to South Dakota’s 911 Board, which has 12 responded to the subpoenas. Id. at ¶ 8. 13 Discovery closes on October 22, 2020. See March 24, 2020 Minute Order in TSYS Case 14 and Houserman Case. The parties stipulated to, and the Court entered Orders regarding ESI 15 discovery and the production of confidential, proprietary, or private information. See TSYS Dkt. 16 24 and Dkt. 38; Houserman Dkt. 21 and Dkt. 40. The parties previously stipulated to use the 17 expedited discovery submission procedures under LCR 37(a)(2) for all discovery disputes. TSYS 18 Dkt. 54 at 4; Houserman Dkt. 65 at 4. 19 20 21 22 23 II. DISCUSSION Discovery motions are strongly disfavored. The Court has broad discretion in controlling discovery. See Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). “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.” Fed. R. Civ. P. 26(b)(1). ORDER REGARDING JOINT MOTION TO COMPEL LCR 37(a)(2) - 3 1 Under Rule 26, the concept of relevance “has been construed broadly to encompass any matter 2 that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or 3 may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). 4 If the parties are unable to resolve their discovery issues, the requesting party may move 5 for an order to compel. Fed. R. Civ. P. 37(a)(1). The parties indicate that they have met and 6 conferred and have been unable to resolve their disputes regarding: (1) supplemental responses 7 to Houserman Interrogatory Nos. 4 and 6, and (2) the production of documents responsive to 8 Houserman RFP Nos. 45, 46, 51, 54, 58, and 62 and MSI/Houserman RFP No. 18; and (3) the 9 production of documents related to other complaints against Comtech (Interrogatory Nos. 6 and 10 11 7; RFP Nos. 46, 51, and 54). A. Interrogatory No. 4 -- Comtech Presidents’ Pre-Tax Profit Forecasts & Bonus Goals 12 13 14 15 Houserman’s Interrogatory No. 4: Identify the differences between the board approved budgets and their performance goals for each Comtech or TSYS officer or executive from 2015-FY 2019 and the amount of their potential variable compensation, including in your answer the following information: a) The amount of profit specified in the board approved budget; b) The amount of profit specified in the particular officer or executives’ performance goals; c) The difference between the two; d) Any explanations as to explain the particular budget amount or performance goals. 16 17 18 19 20 21 22 Comtech’s Answer: Defendants object to Interrogatory No. 4 to the extent it seeks documents concerning trade secret or other commercially sensitive, confidential information relating to Comtech. Defendants further object to Interrogatory No. 4 on the grounds that it seeks confidential, sensitive, personal information, disclosure of which would invade the privacy rights of employees or former employees of Defendants who are not parties to this action. Defendants further object to Interrogatory No. 4 as overly broad because it seeks information relating to every Comtech and TSYS officer and executive, without limitation. Defendants further object to Interrogatory No. 4 to the extent it seeks information protected by the attorney-client privilege and/or the work-product doctrine. Subject to and without waiving the General Objections or the foregoing specific objections, see documents produced [Eichberger00020-26]. 23 ORDER REGARDING JOINT MOTION TO COMPEL LCR 37(a)(2) - 4 1 According to MSI/Houserman, Comtech’s response to Interrogatory No. 4 cited four 2 documents—two of Ms. Houserman’s Goal Sheets, and two Goal Sheets for one other president. 3 Id., ¶ 3. (Comtech documents indicate that it had six division presidents in Fiscal Year 2018.) 4 TSYS Dkt. 69; Houserman Dkt. 85, ¶ 4. However, these documents represent only two years’ 5 worth of goal sheets for only two of Comtech’s presidents and Comtech provided no information 6 regarding any presidents’ pre-tax profit projections for the relevant period. 7 Comtech argues that it has already produced Goal Sheets for all division presidents from 8 2016 to 2019 and “to the extent there are gaps”, objects to the production of “far-ranging 9 Comtech financial projections that implicate a number of business sensitivities—particularly 10 sensitive in light of Houserman’s alleged breaches of her non-compete clause and MSI’s role in 11 facilitating this breach.” Comtech also argues that MSI/Houserman have failed to identify the 12 “gaps” in production. However, when the parties conferred on July 1, 2020, Comtech agreed to 13 supplement its interrogatory response and produce the requested information. TSYS Dkt. 69, 14 Houserman Dkt. 85, Declaration of Kristin W. Silverman, ¶¶ 6, 7 and Exs. C-F. 15 Court’s Ruling Regarding Interrogatory No. 4 16 The documents sought are relevant to a central issue in Ms. Houserman’s gender 17 discrimination claim against Comtech, i.e., whether Ms. Houserman’s pre-tax profit bonus goal 18 was comparable to the pre-tax profit goals of Comtech’s other presidents (all males) when 19 compared to the presidents’ Forecast for pre-tax profit. A workplace investigator retained by 20 Comtech concluded that Comtech’s other presidents pre-tax profit goals were increased by only 21 an average of 3% to 10% above the presidents’ pre-tax profit projections contained in their 22 annual forecasts. Thus, the information requested will allow a comparison of each president’s 23 pre-tax profit projections reflected in their Forecasts to the pre-tax profit goals contained in their ORDER REGARDING JOINT MOTION TO COMPEL LCR 37(a)(2) - 5 1 Goal Sheets. To the extent Comtech is concerned about “business sensitivities,” the Court has 2 entered a protective order, which permits Comtech to identify responses as Outside Counsel’s 3 Eyes Only. TSYS Dkt. 38; Houserman Dkt. 40. 4 Accordingly, Comtech is ORDERED to produce a supplemental written response to 5 Interrogatory No. 4 within ten (10) days of this Order. Comtech’s response must specifically 6 identify each Comtech president’s pre-tax profit forecast and each Comtech president’s pre-tax 7 profit goal for each year from 2015 through Comtech’s Fiscal Year 2019. 8 B. 9 MSI/Houserman RFP No. 18: All documents and communications relating to TSYS’ or Comtech’s performance of its agreement(s) with Client A [the State of South Dakota], including, but not limited to, documents and communications relating to the outage that occurred in October 2018. 10 RFP Nos. 18 and 45 – South Dakota’s Lawsuit Against Comtech 11 12 13 14 15 16 17 18 19 20 21 22 23 TSYS Response: Plaintiff objects to Request No. 18 on the grounds that it is overly broad as it seeks “all documents and communications” regarding Client A regardless of whether they are related to Defendants or any party’s claim or defense. Plaintiff objects to Request No. 18 on the grounds that it seeks documents that are not in Plaintiff’s possession or control. Plaintiff further objects to Request No. 18 on the grounds that it is vague and ambiguous as to the meaning of the terms “documents and communications relating to,” “performance of its agreement” and “outage.” Plaintiff further objects to Request No. 18 on the grounds that it seeks documents that are not reasonably calculated to lead to the discovery of admissible evidence, not proportional to the needs of the case insofar as Plaintiff has knowledge of or access to the information requested, and that the burden of the proposed discovery outweighs its likely benefit. Plaintiff further objects to Request No. 18 to the extent it seeks confidential, commercially sensitive, and/or trade secret information. Plaintiff further objects to the extent the request seeks information protected by the attorney-client privilege or attorney work product doctrine. Subject to and without waiving the General Objections or the foregoing specific objections, Plaintiff will produce any responsive nonprivileged documents for the relevant time period. Plaintiff also offers to meet and confer with Defendants to establish appropriate ESI search parameters to find documents responsive to a narrowed request.” Houserman RFP No. 45: All documents relating to the lawsuit captioned State of South Dakota, Dept. of Public Safety on behalf of the South Dakota 9-1-1 Coordination Board v. NextGen Communications, Inc., Telecommunications Systems, Inc. and Comtech Telecommunications Corp., Case no. 32CIV19ORDER REGARDING JOINT MOTION TO COMPEL LCR 37(a)(2) - 6 1 000169 (Hughes County Circuit Court filed on or around September 13, 2019) and the State of South Dakota’s allegations in that action. 2 3 4 5 6 7 Comtech’s Response: Defendants object to this Request on the grounds that it seeks information protected by the attorney-client privilege and/or the work product doctrine. Defendants further object to this Request on the grounds that it is overly broad, unduly burdensome, not proportional to the needs of the case, and the burden of the proposed discovery outweighs its likely benefit because it seeks documents that are far beyond the scope of Plaintiff’s claims and Defendants’ defenses and potentially requires Defendants to produce any and all communications and documents relating to a lawsuit spanning several months. Subject to and without waiving the General Objections or the foregoing specific objections, all non-privileged discoverable pleadings are public documents and available to Plaintiff or will be captured through the ESI discovery process.” 8 After Comtech made its ESI production, MSI/Houserman requested the production of all 9 non-privileged, non-public documents related to the South Dakota lawsuit as those documents 10 were not included in Comtech’s ESI production. On July 10, 2020, Comtech confirmed that it 11 would produce the outstanding documents, but failed to do so. 12 Comtech now argues that this additional request for non-privileged documents related to 13 the litigation between South Dakota and Comtech is overbroad, unduly burdensome, and not 14 likely to lead to the discovery of admissible evidence. Comtech also contends that its previous 15 ESI search of twelve current and former Comtech employees, using search terms propounded by 16 MSI/Houserman, resulted in a production of all responsive documents (over 1,200) that refer to 17 South Dakota. TSYS Dkt. 71, Houserman Dkt. 87, Ex. A to Fischman Decl. at 3. Comtech also 18 argues that these materials are publicly available and that MSI/Houserman received “substantial 19 documents’ through subpoenas sent to the South Dakota 911 Board. 20 Court’s Ruling Regarding RFP 18 and 45 21 In the TSYS Case, Comtech alleges that MSI/Houserman interfered with Comtech’s 22 relationship with the State of South Dakota, while MSI/Houserman contend that it was 23 Comtech’s performance failures under its contract with South Dakota that caused South Dakota ORDER REGARDING JOINT MOTION TO COMPEL LCR 37(a)(2) - 7 1 to not renew its contract with Comtech. Thus, documents relating to TSYS/Comtech’s 2 performance of its agreement with South Dakota, and documents relating to the referenced 3 lawsuit in which South Dakota sued Comtech for breach of contract, fraud, and performance 4 failures, are relevant to MSI/Houserman’s defenses against TSYS’s claim that they interfered 5 with Comtech’s relationship with South Dakota. 6 Comtech does not contend that it has produced all documents in its possession that are 7 relevant to these discovery requests and in fact, previously agreed to make a supplemental 8 production (which it has not yet done). Instead, Comtech argues that it should not have to run a 9 supplemental ESI search and “produce any documents that may be identified without ESI 10 searching.” However, the Court’s ESI Order, to which the parties stipulated, contemplates 11 follow-up ESI searches. In addition, documents obtained from third parties or from the public 12 record do not relieve Comtech of its obligation to produce responsive documents in its 13 possession. See Fed. R. Civ. P. 45(c). 14 Accordingly, Comtech is ORDERED to produce all non-privileged documents 15 responsive to RFP Nos. 18 and 45, including correspondence with the State of South Dakota 16 regarding its lawsuit against TSYS/Comtech, within ten (10) days of this Order. 17 C. 18 Houserman RFP. No. 14: All contracts, subcontracts or agreements between Comtech/TSYS, on the one hand, and “Client A” or Client B” [GDIT] (or with Client B [GDIT] through TSYS, on the other. 19 20 21 22 23 RFP 14 and 17 -- Comtech’s Relationship with GDIT Comtech’s Response: Defendants object to Request for Production No. 14 on the grounds that it is overly broad as it seeks ‘all contracts, subcontracts or Agreements’ regardless of whether they are related to Plaintiff or any party’s claim or defense. Defendants further object to Request for Production No. 14 on the grounds that it is vague and ambiguous as to the terms “agreements.” Defendants further object to Request for Production No. 14 to the extent it seeks confidential, commercially sensitive, and/or trade secret information. Defendants further object to Request for Production No. 14 to the extent it seeks documents ORDER REGARDING JOINT MOTION TO COMPEL LCR 37(a)(2) - 8 1 2 3 4 5 6 protected by the attorney-client privilege or attorney work product doctrine. Subject to and without waiving the General Objections or the foregoing specific objections, Defendants are searching in good faith for responsive documents and will produce any potentially responsive non-privileged documents for the relevant time period, including the agreements identified in the Complaint. See documents produced [TSYS00000010- 282; TSYS000528-TSYS000530; TSYS000657TSYS000671]. MSI/Houserman Request No. 17: All documents and communications relating to the renewal of Client B’s [GDIT’s] contract with ‘another U.S. State’ alleged in Paragraphs 35 and 26 of the Complaint [Massachusetts] and the renewal of any contract between TSYS and Client B relating thereto. 7 8 9 10 11 12 13 14 Comtech’s Response: Plaintiff objects to Request No. 17 on the grounds that it is overly broad as it seeks ‘all documents and communications’ regardless of whether they are related to Defendants or any party’s claim or defense. Plaintiff objects to Request No. 17 on the grounds that it seeks documents that are not in Plaintiff’s possession or control. Plaintiff further objects because the request is vague as the meaning of the phrase ‘documents and communications relating to.’ Plaintiff further objects to Request No. 17 to the extent it seeks confidential, commercially sensitive, and/or trade secret information. Plaintiff further objects to the extent the request seeks information protected by the attorney-client privilege or attorney work product doctrine. Subject to and without waiving the General Objections or the foregoing specific objections, Plaintiff will produce any responsive non-privileged documents for the relevant time period, including the agreements identified in paragraphs 35 and 36 of the Complaint. Plaintiff also offers to meet and confer with Defendants to establish appropriate ESI search parameters to find documents responsive to a narrowed request. 15 Court’s Ruling Regarding RFP 14 and 17 16 In the TSYS Action, Comtech alleges that MSI/Houserman interfered with Comtech’s 17 relationship with GDIT (specifically with respect to Comtech and GDIT’s subcontract related to 18 GDIT’s contract with Massachusetts). TSYS Dkt. 1 at ¶¶ 18, 94, 118, 126, 134. MSI/Houserman 19 contend there was no interference or interruption with Comtech’s relationship or subcontract 20 with GDIT and that Comtech cannot prove any damages because Comtech acquired GDIT’s 21 NG911 business in April 2019 and was successful in obtaining a renewal of GDIT’s contract 22 with Massachusetts. Thus, materials relating to Comtech’s acquisition of GDIT and Comtech’s 23 current contractual relationship with GDIT and/or Massachusetts are relevant to MSI/ ORDER REGARDING JOINT MOTION TO COMPEL LCR 37(a)(2) - 9 1 Houserman’s defense that, as a result of the acquisition, they could not have interfered with or 2 caused damage related to GDIT. 3 Comtech does not state that it has produced all documents in its possession that are 4 responsive to these requests and in fact, previously agreed to supplement its response to these 5 requests. Comtech now argues that it has already produced materials (over 1,000 pages) gleaned 6 from the ESI searches done to date. According to MSI/Houserman, Comtech has not yet 7 produced documents related to its acquisition of GDIT or documents reflecting its current 8 contractual relationship with GDIT and/or Massachusetts, the contract with which 9 MSI/Houserman allegedly interfered. 10 Comtech is not relieved of its obligation to identify and produce documents that may be 11 identified without ESI searching and, if a supplemental search is required, it must do so. 12 Accordingly, Comtech is ORDERED to produce all non-privileged documents responsive to 13 RFP Nos. 14 and 17, including documents and contracts related to TSYS/Comtech’s acquisition 14 of all or part of GDIT and documents and contracts related to the current status of the current 15 business relationship between TSYS/Comtech/GDIT and Massachusetts, within ten (10) days of 16 this Order. 17 D. Houserman’s Third Set of RFPs (RFP Nos. 54 through 62) 18 (1) RFP Nos. 55, 57, 59, and 60 19 Based on Comtech’s representation that there are no additional documents responsive to 20 RFP Nos. 55, 57, 59, and 60, Ms. Houserman has withdrawn her motion as to these requests. 21 TSYS Dkt. 68; Houserman Dkt. 84, pp. 19-20. 22 23 (2) RFP No. 58: All documents relating to any claims of retaliation raised regarding Comtech, Fred Kornberg, or Michael Porcelain, including any investigation materials or reports, any settlement documents, and any correspondence relating to those claims. ORDER REGARDING JOINT MOTION TO COMPEL LCR 37(a)(2) - 10 1 2 3 4 5 6 Comtech’s Response: Defendants object to this Interrogatory to the extent it seeks information protected by the attorney-client privilege and/or the work product doctrine. Defendant further objects to this Request on the grounds that the term “claims” is vague and ambiguous. Defendant further objects to this Interrogatory on the grounds that it is overly broad, unduly burdensome, and not proportional to the needs of the case because it seeks information about all complaints “regarding Comtech”, a company of thousands of employees, many of whom never worked or interacted with Plaintiff of the individual defendants. Defendant further objects to this Request as over broad because it is not limited in temporal scope and potentially includes information from years before Plaintiff was employed by Comtech. 7 8 9 Subject to and without waiving the General Objections or the foregoing specific objections, Defendants will produce documents regarding complaints of retaliation made against Mr. Kornberg or Mr. Porcelain and any complaints of retaliation made by SST employees from February 2016 to present to management and/or Human Resources, if any such documents exist. 10 Court’s Ruling Regarding RFP 58 11 Ms. Houserman argues that “Comtech’s unilateral narrowing [of its response to this 12 request] is unwarranted” but does not explain the necessity or relevancy of the production of 13 documents prior to February 2016. The Court agrees that this request is overly broad and should 14 be limited temporal scope. Accordingly, Comtech is ORDERED to produce the responsive 15 documents offered (regarding complaints of retaliation made against Mr. Kornberg or Mr. 16 Porcelain and any complaints of retaliation made by SST employees from February 2016 to 17 present to management and/or Human Resources) within ten (10) days of this Order. The motion 18 to compel the remainder of RFP 58 is DENIED. 19 (3) 20 RFP 62: All agendas, meeting materials, or minutes of any meeting of the Audit Committee or the Executive Compensation Committee of Comtech’s board of directors from Fiscal Year 2016 through the present. 21 22 23 Comtech’s Response: Defendants object to this Request on the grounds that it is overly broad, unduly burdensome, and not proportional to the needs of the case because it seeks information beyond the temporal scope relevant to Plaintiff’s claims and Defendants’ defenses. Defendants further object to this Request to the extent it seeks documents protected by the ORDER REGARDING JOINT MOTION TO COMPEL LCR 37(a)(2) - 11 attorney-client privilege and/or the work product doctrine. Subject to and without waiving these objections, see documents produced. Defendants will also supplement this response with any remaining responsive documents from FY 2016 – 2019. 1 2 3 Comtech states it has already produced all Audit Committee meeting notes referencing 4 Ms. Houserman and the bonus accrual issue that led to termination of her employment. Comtech 5 offers to search for and produce any relevant Executive Committee Meeting minutes discussing 6 Ms. Houserman’s bonus. Comtech argues that, other than the documents produced and/or offered 7 to be produced, the remainder of this request is overbroad and seeks discovery of confidential 8 business information that is not relevant to Ms. Houserman’s claims. 9 Court’s Ruling on RFP 62 10 Comtech’s concern about the commercial sensitivity of the documents requested may be 11 assuaged by the Protective Order entered in these cases, which allows Comtech to designate 12 sensitive documents as Outside Counsel’s Eyes Only. The requested documents are also relevant 13 for comparing how Comtech’s board committees handled other presidents’ bonus goals and/or 14 deficiencies or bonus accrual issues with how Comtech treated these issues with respect to Ms. 15 Houserman. Accordingly, Comtech is ORDERED to produce documents responsive to RFP No. 16 62 within ten (10) days of this Order. Where necessary, Comtech may produce them pursuant to 17 the terms of the parties’ Protective Order. 18 E. 19 20 Other Complaints Against Comtech – Interrogatory Nos. 6 and 7; RFP Nos. 46, 51, and 54 Ms. Houserman also sought information and documents relating to other complaints 21 against Comtech, including: (1) all gender or sex discrimination or sexual harassment claims 22 made against or relating to Comtech, Mr. Kornberg, and/or Mr. Porcelain (from January 1, 2010) 23 (Interrogatory No. 6 and RFP No. 46); (2) any concerns raised by current or former Comtech ORDER REGARDING JOINT MOTION TO COMPEL LCR 37(a)(2) - 12 1 employees, including former Comtech controller Karen Henry (Interrogatory No. 7 and RFP No. 2 51); and (3) any claims of discrimination by Michael Bristol (RFP No. 54). (The interrogatories, 3 requests for production, and Comtech’s response and objections to each are set forth in the 4 parties’ joint motion). See TSYS Dkt. 68; Houserman Dkt. 84. 5 Court’s Ruling Regarding Interrogatory Nos. 6 and 7; RFP Nos. 46, 51, and 54: 6 (1) Ms. Houserman is entitled to documents and information regarding other 7 complaints of gender discrimination against Comtech over a reasonable period of time 8 (i.e. from 2010 to the present). See, e.g., Lauer v. Longevity Med. Clinic PLLC, No. C13- 9 0860-JCC, 2014 WL 5471983 at *4 (W.D. Wash. Oct. 29, 2014) (“pattern and practice” 10 evidence is both discoverable and admissible to prove discriminatory intent.) (Internal 11 citations omitted). Comtech has provided no basis to unilaterally limit the temporal 12 scope of the request or to limit its production only to certain formal written complaints 13 and provided no response to the motion to compel these documents. Accordingly, 14 Comtech is ORDERED to respond to and produce documents responsive to 15 Interrogatory No. 6 and RFP No. 46 within ten (10) days of this Order. 16 (2) Comtech represents in the Joint Motion that it will produce any additional 17 responsive documents related to Ms. Henry’s complaint, but it has not yet done so. 18 Accordingly, Comtech is ORDERED to produce all additional responsive documents 19 related to Ms. Henry’s complaint requested in Interrogatory No. 7 and RFP No. 51, 20 within ten (10) days of this Order. 21 (3) Because Mr. Bristol brought an age discrimination complaint, Comtech argues 22 that the complaint and documents related to it are not relevant to Ms. Houserman’s gender 23 discrimination complaint. Although comparator evidence concerns other employees who are ORDER REGARDING JOINT MOTION TO COMPEL LCR 37(a)(2) - 13 1 “similarly situated,” the circumstances surrounding Comtech’s investigation and resolution of 2 Mr. Bristol’s complaint indicate that the information sought is relevant. Although Mr. Bristol 3 (like Ms. Houserman), was accused of improper financial reporting after he raised his complaint, 4 deposition testimony indicates that Comtech may have treated Mr. Bristol more favorably than it 5 treated Ms. Houserman. TSYS Dkt. 69, Silverman Decl.; ¶ 18, Ex. L; Houserman Dkt. 85, 6 Silverman Decl.; ¶ 18, Ex. L. Under these circumstances, documents related to Mr. Bristol’s 7 complaint and Comtech’s investigation and resolution of it (including any severance agreement 8 or terms of Mr. Bristol’s departure) are relevant to Ms. Houserman’s gender discrimination 9 claims, in which she alleges that Comtech treated her differently than it treated Comtech’s other 10 11 12 male presidents. Accordingly, Comtech is ORDERED to produce documents related to Mr. Bristol’s complaint as requested in RFP No. 54 within ten (10) days of this Order. III. CONCLUSION 13 14 For the foregoing reasons, MSI/Houserman’s request for an order requiring Comtech to 15 supplement its responses and produce documents (TSYS Dkt. 68; Houserman Dkt. 84) is 16 GRANTED as detailed above. Comtech shall provide MSI/Houserman with unredacted versions 17 of the responsive documents at issue in this motion no later than ten (10) days from the date of 18 this Order. 19 20 21 If there are concerns regarding compliance with this Order, the parties are directed to jointly contact chambers to set a status conference. DATED this 11th day of September, 2020. 22 A 23 BRIAN A. TSUCHIDA Chief United States Magistrate Judge ORDER REGARDING JOINT MOTION TO COMPEL LCR 37(a)(2) - 14
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