Yarum v. AlliedBarton Security Services, LP, No. 5:2009cv05615 - Document 49 (N.D. Cal. 2010)
Court Description: ORDER GRANTING IN PART and DENYING IN PART 22 Motion to Compel; and DENYING 25 Motion for Sanctions. Pursuant to Civil Local Rule 7-1(b), the 10/05/2010 hearing is VACATED. Signed by Magistrate Judge Howard R. Lloyd on 09/30/2010. (hrllc1, COURT STAFF) (Filed on 9/30/2010)
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Yarum v. AlliedBarton Security Services, LP Doc. 49 1 ** E-filed September 30, 2010 ** 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 For the Northern District of California NOT FOR CITATION 8 United States District Court 7 SAN JOSE DIVISION 11 MARY C. YARUM, Plaintiff, 12 13 14 No. C09-05615 JW (HRL) v. ALLIEDBARTON SECURITY SERVICES, LP; and DOES 1-100, 15 16 [Re: Docket Nos. 22, 25 & 45] Defendant. ____________________________________/ 17 18 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO COMPEL AND DENYING PLAINTIFF’S MOTION FOR SANCTIONS BACKGROUND Plaintiff Mary Yarum (“Yarum”) is a former employee of defendant AlliedBarton Security 19 Services, LP (“AlliedBarton”). Yarum worked as a security guard and suffered an on-the-job injury 20 in December 2007, so she was put on medical leave. According to Yarum, her physician released 21 her to return to work in March 2008 under certain medical restrictions. She contends that even 22 though (according to her) she was able to perform her duties despite these restrictions, AlliedBarton 23 did not permit her to return to work and eventually terminated her in June 2008. 24 Yarum thereafter filed suit in California state court alleging wrongful termination and 25 violations of California’s Fair Employment and Housing Act, Cal. Gov. Code § 12940 et seq. 26 (“FEHA”). AlliedBarton removed the action to federal court in November 2009 on the basis of 27 diversity. 28 Dockets.Justia.com On May 3, 2010 Yarum propounded 14 interrogatories and 9 requests for the production of 1 2 documents to which AlliedBarton responded.1 Yarum did not believe that AlliedBarton’s responses 3 were sufficient, though, and after a particularly unproductive meet and confer, filed a motion to 4 compel further responses (Docket No. 22 (“MTC”) and a motion for sanctions (Docket No. 25 5 (“MFS”). Upon reviewing the papers, it was clear that the parties did not confer in good faith before 6 7 Yarum filed her motion to compel, so the Court continued the original hearing date and required 8 them to meet and confer again and to submit a joint statement updating the Court as to any 9 remaining disputes issues. (Docket No. 40.) The parties did so and filed their joint statement on For the Northern District of California United States District Court 10 September 28, and, now, only two issues remain. (See Docket No. 45 (“Joint Statement”).) Pursuant to Civil Local Rule 7-1(b), the Court finds the matter suitable for determination 11 12 without oral argument, and the October 5, 2010 hearing is vacated. DISCUSSION 13 A. The Remaining Disputes on Yarum’s Motion to Compel 14 15 1. Yarum’s Request for Production No. 5 16 Yarum’s Request for Production No. 5 asks for “[a]ny and all DOCUMENTS in plaintiff’s 17 personnel file.” (Id. at 2.) Yarum argues that even though AlliedBarton produced Yarum’s “purported” original 18 19 personnel file, it did not contain “all documents defendant and its counsel represented were part of 20 [it],” namely a letter from Eri Shu, an AlliedBarton human resources specialist, to Yarum dated 21 December 20, 2007. (Id.) Yarum contends that “[s]uch an important letter would have been a part 22 of plaintiff’s personnel file had it been drafted and sent to plaintiff as defendant contends.” (Id.) As 23 such, Yarum has requested that AlliedBarton either admit the letter was not part of Yarum’s 24 personnel file or produce its original copy of it. (Id.) AlliedBarton responds that it told Yarum’s counsel that it believes that the “file copy” of the 25 26 letter had been in Yarum’s personnel file but was pulled from the file for use in responding to 27 28 1 On April 1, 2010, Judge Ware set a discovery deadline of February 28, 2011 for this case. This action was subsequently reassigned to Judge Koh. 2 1 Yarum’s discrimination complaint filed with the California Department of Fair Employment and 2 Housing. (Id.) It also notes that it already produced a copy of this letter to Yarum anyway. (Id.) Yarum’s request seeks all documents in Yarum’s personnel file, and AlliedBarton produced 3 4 them. This fulfilled the request. The parties’ argument over whether the letter was originally in 5 there but now is not is irrelevant in this regard. As such, Yarum’s motion is denied as to Request 6 for Production No. 5. 7 2. Yarum’s Interrogatory No. 9 8 Yarum also takes issue with AlliedBarton’s responses to Interrogatory No. 9, which asks For the Northern District of California AlliedBarton to, among other things, describe the “essential function(s)” of Yarum’s job (subpart 10 United States District Court 9 (a)), explain why they are essential (subpart (b)), and state “all reasons why plaintiff was unable to 11 perform such function(s)” (subpart (d)).2 (Id. at 3.) i. Subpart (a): The Essential Functions of Yarum’s Job 12 With respect to the description of the essential functions of Yarum’s job, AlliedBarton 13 14 responded that the “[e]ssential functions of Plaintiff[’]s Security Officer position include: 15 responding to emergencies, such as medical emergencies, bomb threats, fire alarms, and intrusions, 16 including the ability to perform CPR and AED and carry emergency equipment; assisting with 17 evacuations during emergencies; monitoring/controlling access to the facility; and receiving and 18 lifting packages.” (Id.) Yarum argues that AlliedBarton’s use of the term “such as” shows that it only provided 19 20 examples of the essential functions of Yarum’s job and did not provide a complete response to the 21 interrogatory. (Id. at 4.) Yarum misreads AlliedBarton’s response. AlliedBarton’s response lists 22 “responding to emergencies” as the essential function, and then uses “such as” to provide examples 23 2 24 25 26 27 28 Interrogatory No. 9 provides in full: “Describe what essential function or functions of the job that plaintiff was unable to perform between March 3, 2008 through June 25, 2008 because of medical restrictions contained in ‘Primary Treating Physicians Progress Report (PR-2)’ issued by Christian Foglar, MD between 2/27/08 and 5/7/08 (copies of which are attached hereto as Attachment ‘1’) by (a) describing the essential function(s); (b) stating why such function(s) was or were essential; (c) stating the dates when plaintiff was unable to perform such function(s); (d) stating all reasons why plaintiff was unable to perform such function(s); (e) stating the name, ADDRESS, and telephone number of each PERSON who have knowledge of any of the information given in response to any of the preceding subsections in this interrogatory; (f) identifying any DOCUMENT that refers to any of the information given in response to any of the preceding subsections in this interrogatory.” (Joint Statement at 3.) 3 1 of emergencies. In other words, the examples fall under the more specific essential function of 2 “responding to emergencies.” In any case, to ask AlliedBarton to list every conceivable example of 3 an emergency would be absurd. Yarum’s motion therefore is denied as to this subpart of 4 Interrogatory No. 9. 5 ii. Subpart (b): Why the Essential Functions Are Essential 6 With respect to why these listed essential functions are indeed essential, AlliedBarton 7 responded that it “considers such functions to be ‘essential’ due to the importance of such functions 8 for the position and [its] contractual obligations to its client.” (Id. at 3) For the Northern District of California Yarum argues that AlliedBarton’s references to the “importance” of these job functions and 10 United States District Court 9 the “contractual obligations” to its client are conclusory, evasive, and/or vague. (Id. at 4.) Instead, 11 Yarum insists that AlliedBarton must state “why such functions are essential” and “what specific 12 contractual obligations made [such] functions important or essential.” (Id. (emphasis in original).) 13 AlliedBarton believes that its response is sufficient, as it has produced to Yarum a copy of her job 14 description and will produce (upon entry of a stipulated protective order) a copy of the relevant 15 contract, and so Yarum can review these documents to identify the bases upon which AlliedBarton 16 has made its determination of the essential functions of the job. (Id. at 5.) 17 Although Yarum’s argument strikes the Court as overly fussy, AlliedBarton’s response, as 18 written, does not quite answer Yarum’s question, and so Yarum is entitled to a further supplemental 19 response to this subpart. That said, AlliedBarton can likely do this using information it provided in 20 response to Yarum’s argument in the parties’ Joint Statement. In doing so, AlliedBarton need not, 21 however, point out each and every specific contractual provision as Yarum requests. Accordingly, 22 Yarum’s motion is granted as to this subpart of Interrogatory No. 9. 23 iii. Subpart (d): Why Yarum Was Unable to Perform the Essential Functions of Her Job 24 25 As for the “reasons why plaintiff was unable to perform such function(s),” AlliedBarton 26 responded that Yarum was unable to perform those functions “because of the work restrictions 27 imposed by her physicians(s).” (Id. at 3.) 28 4 1 Yarum says that AlliedBarton’s response is “silly” and not made in good faith. (Id. at 4.) 2 She states that this subpart of the interrogatory asks “why defendant contends plaintiff could not 3 perform each function with her medical restrictions, not whether defendant contends plaintiff could 4 not perform the function because of medical restriction.” (Id. (emphasis in original).) Yarum’s 5 intended question is a fair one, but it is not necessarily the question asked in the interrogatory. The 6 language in the interrogatory is ambiguous and could fairly be read to ask either question that 7 Yarum identified above. AlliedBarton’s response, then, is not “silly” as Yarum rather 8 inappropriately contends. If Yarum wants to ask the question she now says she meant, she can do 9 so, but it is not specifically the question she asked here, so her motion as to this subpart of For the Northern District of California United States District Court 10 11 12 Interrogatory No. 9 is denied. B. Yarum’s Motion for Sanctions Yarum also filed a motion for sanctions in the outlandish amount of $16,720 (for Yarum’s 13 counsel’s fees in preparing her motion to compel) under Rule 37(a)(5), which provides that an 14 award of sanctions is appropriate in the event that a court grants a motion to compel. (MFS at 8.) 15 However, Rule 37(a)(5) also instructs that a court should not order such an award if the movant filed 16 the motion before attempting in good faith to obtain the discovery without court action. FED. R. 17 CIV. P. 37(a)(5)(A)(i). As noted above, this Court initially continued the hearing on Yarum’s 100- 18 page motion to compel because it believed that Yarum failed to meet and confer in good faith with 19 AlliedBarton before filing it. (Docket No. 40.) Indeed, after the parties were instructed by the 20 Court to try again, Yarum’s motion to compel was subsequently whittled down to the four minor 21 disputed issues addressed in this order. Such a drastic reduction in the number of disputed issues 22 suggests that this Court was correct. And even if it was not, the Court is not convinced that 23 AlliedBarton’s conduct was sanctionable. Yarum’s motion for sanctions is denied. 24 25 CONCLUSION Based on the foregoing, Yarum’s motion to compel is GRANTED IN PART and DENIED 26 IN PART. Specifically, Yarum’s motion to compel is DENIED as to Request for Production No. 5 27 and subparts (a) and (d) of Interrogatory No. 9 and GRANTED as to subpart (b) of Interrogatory 28 No. 9. In addition, Yarum’s motion for sanctions is DENIED. 5 1 2 3 4 IT IS SO ORDERED. Dated: September 30, 2010 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 1 C09-05615 JW (HRL) Notice will be electronically mailed to: 2 Alison Le Tsao David Y. Chun Donna Lynn Keeton Marty Norenburg Martenson Nancy G. Berner 3 4 5 atsao@cdflaborlaw.com, lponce@cdflaborlaw.com dchun@chunlaw.com, david.chun.esq@att.net dkeeton@martensonlaw.com mnmartenson@martensonlaw.com nberner@cdflaborlaw.com, mgillespie@cdflaborlaw.com Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court’s CM/ECF program. 6 7 8 9 For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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