Free Motion to Compel - District Court of California - California

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JEREMY L. FRIEDMAN, CA Bar No. 142659 Attorney At Law 2801 Sylhowe Road Oakland, CA 94602 Telephone: (510) 530-9060 Facsimile: (510) 530-9087 [email protected] KELLER LAW, PC CHRISTOPHER J. KELLER, ESQ. (SBN 178491) One Market Street, Spear Tower, 36th Floor San Francisco, CA 94105 Telephone: (415) 293-7805 Facsimile: (415) 203-8001 [email protected] Attorneys for plaintiff Fernando daRosa UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
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) ) Plaintiff, ) ) vs. ) ) KAISER FOUNDATION HEALTH ) PLAN, INC. ) ) Defendant. ) ____________________________ )

FERNANDO DAROSA,

Case No. 3:07-cv-03114-SI MOTION FOR ORDER COMPELLING DISCOVERY, QUASHING MEDICAL SUBPOENA AND FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES Date: October 31, 2008 Time: 9:00 a.m. Crtrm: Hon. Susan Illston

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TABLE OF CONTENTS NOTICE OF MOTION AND MOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . 2 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Kaiser Knew to Maintain Relevant Employment Records . . . . . . . . . . . . 3 Kaiser was Reminded by EEOC to Preserve Relevant Records . . . . . . . . 4 Kaiser Becomes Evasive over Preservation of Records . . . . . . . . . . . . . . 5 Kaiser Refuses to Disclose Material Witnesses and Documents . . . . . . . . 5 Kaiser Refuses to Designate Rule 30(b)(6) Witness or Attend Deposition 7 DISCOVERY DISPUTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 I. II. III. IV. Kaiser Should State it has Produced All Responsive Documents . . 8 Kaiser Should Produce Ms. Roper's Supervisory File . . . . . . . . . . 8 Kaiser Should Produce Records of Plaintiff's August 2005 Disability Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Kaiser has Destroyed Records in Ayers' Files Concerning daRosa 10 Kaiser Should Produce Electronically Stored Information, Including Email . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Kaiser Should be Required to Produce Mellon's daRosa File . . . 11 Kaiser Should Produce Documents Concerning Roper's Poor Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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V.
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VI. VII.

VIII. Kaiser Should be Sanctioned for its Failure to Designate Under Rule 30(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 IX. This Court Should Quash Kaiser's Subpoena of Pre-2005 Medical Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

SANCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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TABLE OF AUTHORITIES Cases Diamond State Ins. Co. v. Rebel Oil Co., Inc., 157 F.R.D. 691 (D.Nev. 1994) . . . . . . 12 Soto v. City of Concord, 162 F.R.D. 603 (N.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . . 13 Federal Rules of Civil Procedure

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Rule 26(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10
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Rule 26(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Rules 26(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12
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Rule 26(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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Rule 30(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 7-9, 11, 12
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Rule 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11
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Rule 37(a), (c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14
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Rule 45(a)(1)(C)
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12

Rule 45(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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NOTICE OF MOTION AND MOTION TO DEFENDANT AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that plaintiff Fernando daRosa, on October 31, 2008, at 9:00 a.m., or as soon thereafter as the matter may be heard in the Courtroom of the Honorable Susan Illston, United States District Court Judge for the Northern District of California, will seek an order from the Court compelling discovery responses, quashing defendant's subpoena for pre-2005 medical records and awarding plaintiff sanctions for defendant's discovery abuse. The motion to quash and for a protective order is brought pursuant to Rules 26(c) and 45(a)(1)(C) of the Federal Rules of Civil Procedure; and the motion to compel and for sanctions is brought pursuant to Rule 37(a), (c) and (d) . The specific grounds for this motion are that defendant: (1) refused to state that it has produced all requested records relating to plaintiff's absences, discipline and termination; (2) failed to produce plaintiff's supervisory file maintained by his former supervisor (Margie Roper); (3) intentionally suppressed discovery from Kaiser's Human Resources department regarding plaintiff's August 2005 disability leave; (4) destroyed records concerning plaintiff's discipline and discharge that were maintained in the supervisory files of Ms. Roper's supervisor (Ken Ayers); (5) withheld electronically stored information, including emails between Kaiser employees, regarding plaintiff's discipline and discharge; (6) failed at deposition to provide a copy of the file on plaintiff belonging to the deponent (Frank Mellon) in the form that it was maintained; (7) refused to produce documents or provide any testimony on relevant issues concerning Ms. Roper's termination for poor performance; (8) failed to designate witnesses and appear at deposition noticed pursuant to Rule 30(b)(6) regarding document retention and production; and
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(9)

issued a subpoena for irrelevant, private and confidential medical records from before the relevant time period in this case.

Further, the grounds for sanctions on this motion are that defendant (a) required plaintiff to bring this motion for any or all of the discovery relief requested; (b) failed to respond to plaintiff's reasonable discovery requests; (c) responded with evasion and incomplete information such that it should be treated as if it failed to disclose; (d) without substantial justification failed to disclose information required by Rule 26(a) and Rule 26(e)(2); and (e) failed to have a person designated under Rule 30(b)(6) appear at deposition. This motion is based on this notion of motion, the attached Memorandum of Points and Authorities, the declaration of counsel, the deposition testimony and documents submitted therewith, the files and pleadings in this case and any additional argument or evidence presented at the hearing. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION For two decades, federal courts through rule changes and local rule enactment have attempted to eliminate the expensive, wasteful game of "hide the discovery." With self-disclosure requirements in Rule 26(a), automatic supplementation in Rule 26(e) and good faith meet and confer duties imposed on all counsel, it is expected that federal litigants will provide complete and honest disclosure to each other up front, gathering the information necessary so that each party can know what the facts are and where lie the genuine disputes. Under this rubric, involvement of the Court in discovery disputes is reserved for only those instances where a genuine conflict over duty exists. When it approaches litigation of this employment discrimination case, however, defendant and its law firm violate the spirit and letter of discovery rules. To Kaiser and its counsel, zealous advocacy before this Court includes interposing baseless boilerplate objections, destroying records and deliberately withholding evidence damaging to the defense. Kaiser and its counsel should await a Court order to live up to its discovery obligations. and now that one is required sanctions should be awarded.
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BACKGROUND Kaiser Knew to Maintain Relevant Employment Records From before plaintiff's termination in January 2006, Kaiser has known and understood the significance of creating, retaining and maintaining employment records relevant to any adverse action it determined to take against Mr. daRosa. Kaiser Manager Ken Ayers testified that he maintains records of his conversations with direct reports, and he knows to keep records relating to terminated employees in case they may be required in discovery during any resulting litigation (Ayers RT (Pl.'s Exh. A) at 29-30, 35-36, 7677, 89, 91). Former Supervisor Margie Roper testified she maintained a supervisory file on Mr. daRosa in a file cabinet in her office, where she collected documents relevant to this case, including records of any discussions with plaintiff, any discipline given to him, any medical absences and any documentation provided in connection with such absences (Roper RT (Pl.'s Exh. B) at 15-18, 23). When she was terminated, she left Mr. daRosa's file along with her other files in her office (id. at 12). Human Resources manager Gail Kato testified the Employee Labor Relations division is supposed to maintains records in their files regarding discipline, termination and investigation of Kaiser employees (Kato RT (Pl.'s Exh. C) at 17, 19-20).1 Soon after his termination, Kaiser was given notice to maintain documents relevant to his employment claims. Testimony is undisputed that plaintiff called Human Resources in February ­ only a few days after receipt of his termination letter ­ to contest his termination and explain he was out on a disability leave. Moreover, plaintiff filed for disability that same month, for which Kaiser was provided notice in February. See Pl.'s Motion for PSJ, at 17. Kaiser employs thousands of individuals, and knows it should preserve records relating to adverse actions and terminations. In August 2002, Judge Judith Ford of the Alameda County Superior Court issued a sanctions order against Kaiser ­ represented by the same law firm here ­ for its spoliation of documents relevant to the plaintiff's disability discrimination action. Judge Ford specifically rejected the Kaiser supervisor's claim that she destroyed the relevant documents prior to the litigation, especially when litigation is "contemplated." See Decl. of Counsel at ¶6; Pl.'s Exhs. E & F.
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Kaiser was Reminded by EEOC to Preserve Relevant Records More importantly, plaintiff filed a claim of disability discrimination and denial of medical leave rights with the Equal Employment Opportunity Commission, for which Kaiser was provided notice on April 24, 2006. Along with a copy of the administrative charge, Kaiser was provided with "Information on Charges of Discrimination, EEOC Rules and Regulations." Therein, Kaiser was expressly reminded of its legal obligation to preserve relevant documentation until final disposition of this litigation. EEOC's record keeping and reporting requirements are found at Title 29, Code of Federal Regulations (29 CFR); 29 CFR Part 1602 (see particularly Sec. 1602.14 below) for Title VII and ADA; ... These regulations generally require respondents to preserve payroll and personnel records relevant to a charge of discrimination until disposition of the charge or litigation relating to the charge. ... Section 1602.14 Preservation of records made or kept ... Where a charge ... has been filed, or an action brought by the Commission or the Attorney General, against an employer under Title VII or the ADA, the respondent ... shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action. The term personnel records relevant to the charge, for example, would include personnel or employment records relating to the aggrieved person and to all other employees holding positions similar to that held or sought by the aggrieved person and application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position as that for which the aggrieved person applied and was rejected. The date of final disposition of the charge or the action means the date of expiration of the statutory period within which the aggrieved person may bring [a lawsuit] or, where an action is brought against an employer either by the aggrieved person, the Commission, or by the Attorney General, the date on which such litigation is terminated. [Pl.'s Exh. G.] That Kaiser was aware of specific records which were relevant to Mr. daRosa's EEOC charge is established on this record without dispute. In October 2006, Kaiser's legal counsel wrote a letter to EEOC in response to plaintiff's charge, stating Kaiser's position on plaintiff's termination. Attached as exhibits to that correspondence, Kaiser provided EEOC with copies of medical documentation ­ Verification of Treatment ("VOT") forms from July 2005 and January 2006 ­ obtained (presumably) from Ms. Roper's supervisory file. See Decl. of Counsel, at ¶8, Pl.'s Exhs. H and I). Kaiser and its counsel were clearly aware that these records, and any other documents relating to plaintiff's claim of disability discrimination, were relevant to anticipated litigation.
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Kaiser Becomes Evasive over Preservation of Records In April 2007, in one of Mr. daRosa's many communications with Kaiser about his employment, a Human Resources representative confirmed for plaintiff that Kaiser's records establish his supervisor's knowledge of his disability in August 2005. Plaintiff asked for copies of these "Khrmit" records, but was told they were proprietary and would not be released to plaintiff. See Pl.'s Exh. J, at K656 (4/4/07). That same month, Kaiser and Mr. daRosa appeared before the Unemployment Insurance Benefits Appeals Board and gave sworn testimony about the reasons and circumstances of plaintiff's termination. During the hearing, Human Resources consultant Frank Mellon testified falsely that Kaiser had been unable to locate a received fax of January 25, 2006, with plaintiff's VOT. Mr. Mellon was also questioned about Ms. Roper's supervisory file or any documentation of discipline for Mr. daRosa, but he evasively stated that Kaiser had also been unable to locate Ms. Roper's files. Mellon RT (Pl.'s Exh. D) at 155, 164. Kaiser Refuses to Disclose Material Witnesses and Documents When this action was initially filed, plaintiff's counsel raised with Kaiser concern over preservation of relevant records in this case. Recounting the experiences in Smith and plaintiff's attempt to obtain relevant Khrmit records from Human Resources, counsel inquired specifically as to what steps Kaiser had taken to preserve the files. See Decl. of Counsel, at ¶9. Plaintiff included a statement of these concerns in the Joint Statement filed prior to the Initial Case Management Conference. See Doc. 12, at 5 N.6. In initial disclosures, plaintiff expected to get the supervisory file and Khrmit records showing Kaiser's knowledge of his disability. Defendant produced neither. The only records which appear to have come from Ms. Roper's supervisory files were those documents which Kaiser's counsel chose to attach to the EEOC response. Kaiser also failed to identify Gail Kato as an individual with relevant knowledge, despite the fact that she supervised Mr. Mellon, spoke with plaintiff about his termination and directed Kaiser's response to plaintiff's rehire request. See Decl. of Counsel, at ¶11.
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See

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Plaintiff thereafter served his first request for production of documents, seeking all records relating to plaintiff's attendance, discipline and termination. In the requests, plaintiff spelled out specifically where to look for relevant documents: The following is a list of categories or areas where responsive documents may be found located, and is not intended to be exclusive. Defendant is requested to use its own knowledge of other categories or areas where responsive documents may be found. A. Plaintiff's personnel records. Plaintiff's employment files, email accounts, work records. Plaintiff's medical leave records, logs, or accounts. Payroll, administrative or other records maintained by defendant as an employer which refer to plaintiff during his employment. Human Resource records of any contact with plaintiff, including computer records (such as the Khrmit computer system) which might reflect inquiries or communications. In this regard, plaintiff notes that he recalls contacts concerning his leave in approximately July to August, 2005, his termination in January 2006, and a series of conversation over the course of the months following his termination. Records from the files, accounts, papers, notes or other items maintained or formally maintained by plaintiff's immediate supervisor at the time of his termination, Margie Roper. Records from the files, accounts, papers, notes or other items maintained or formally maintained by Ms. Roper's immediate supervisor at the time of his termination. Records from the files, accounts, papers, notes or other items maintained or formally maintained by Ms. Roper's replacement, or her replacement's supervisor, or any other manager or officer of Kaiser in the employment hierarchy, who was consulted as a result of plaintiff's continuing conversations with Kaiser's Human Resources department following his termination. In this regard, plaintiff notes that he recalls a conversation with Kaiser's Human Resources department where he was informed, after review and decision by someone in the supervisory hierarchy, that he was not eligible for rehire. Records concerning defendant's response to any governmental proceeding, including claims filed with the Equal Employment Opportunity Commission, the Department of Fair Employment and Housing, or any state or federal agency concerning disability, medical leave, workers compensation or unemployment insurance benefits. [Pl.'s Exh. L.]

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B.
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C.
9

D.
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E.

F.

G.

H.

I.
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In its response, Kaiser stated boilerplate objections and it refused to state that it would produce all responsive documents. Instead, defendant asserted that it had already produced documents responsive to the requests in the initial disclosure. Thereafter, Kaiser produced some additional records, including Khrmit records relating to Mr. daRosa, but it failed to produce the requested records relating to plaintiff's August 2005 disability leave. Kaiser also failed to produce any electronic communications, computer files or paper records from Ms. Roper regarding plaintiff or his termination. It also failed to produce any records relating to telephone conversations between plaintiff and Kaiser employees, or among Kaiser employees regarding plaintiff's employment. See Decl. of Counsel, at ¶12. Plaintiff also requested non-privileged records relating to Ms. Roper's termination. Request No. 4. Any and all documents, excluding any confidential financial, tax or medical information, relating to the employment of Margie Roper, including documents that refer to Ms. Roper's qualifications, duties, responsibilities, job histories and/or performances, termination and reason for her termination. [Pl.'s Exh. L.] Defendant refused to produce any documents responsive to this request, claiming to act in protection of Ms. Roper's privacy rights. Decl. of Counsel, at ¶13. On August 7, 2008, plaintiff filed a letter brief (Doc. No. 36) with the Court, requesting resolution of the dispute over Kaiser's refusal to produce requested documents in discovery and/or state that it has already produced all responsive documents, as well as over documents relating to Ms. Roper's employment and termination. Kaiser Refuses to Designate Rule 30(b)(6) Witness or Attend Deposition To determine exactly what documents existed, what documents were retained and what documents were withheld from production, plaintiff noticed the deposition of Kaiser witnesses pursuant to Rule 30(b)(6). Attached to the deposition notices were two sets of document requests; the first was identical to plaintiff's request for production of documents, and the second was refined based upon the disclosure of documents so far. See Pl.'s Exh. M. Pursuant to what was thought to be an understanding of counsel, these depositions were noticed to commence on June 23, 2008. See Decl. of Counsel, at ¶14.
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Kaiser refused to designate any witnesses on June 23, or on any day thereafter. At first, Kaiser's counsel delayed response, and said the depositions would go forward in July. When Kaiser refused to designate in July, plaintiff tried again to schedule these depositions to take place prior to the percipient witnesses, whose examinations were set for the close of discovery at the end of August; but to no avail. Yet, Kaiser refused to produce the witnesses prior to the filing of this motion. See Decl. of Counsel, at ¶14. Plaintiff filed a letter brief requesting resolution of the dispute over Kaiser's failure to designate and produce a witness pursuant to Rule 30(b)(6) on August 21, 2008 (Doc. No. 40). Plaintiff had the day before sought permission to file a formal discovery motion over Kaiser's subpoena of pre-2005 medical records; when the Court granted plaintiff's ex parte request on August 25, the clerk's minute order noted that the letter briefs would not be ruled upon (Doc. No. 41). On September 10, 2008, this Court granted a further ex parte request consolidating the discovery motions (Doc. No. 51). DISCOVERY DISPUTES I. Kaiser Should State it has Produced All Responsive Documents Plaintiff believes that Kaiser has failed to produce relevant documents, and indeed has intentionally withheld disclosure of key records because they undercut its defense. Despite repeated efforts in meet and confer to get Kaiser to state whether all responsive non-privileged documents have been produced, Kaiser refuses to amend its discovery responses. Plaintiff is entitled to a non-evasive response and discovery certification by counsel pursuant to Rule 34 with respect to defendant's responses to this discovery. II. Kaiser Should Produce Ms. Roper's Supervisory File Ms. Roper testified that she put into her supervisory file all medical documentation submitted by Mr. daRosa in connection with his absences, any record of conversations with plaintiff, and any disciplinary warning and other records relevant to his employment. She also testified that she left those records in her office. According to Kaiser manager Ayers, his search for Ms. Roper's file came up empty (Ayers RT (Pl.'s Exh. A) at 11-12, 91-92). In March 2007, Mellon testified to the same (Mellon RT (Pl.'s Exh. D) at 155).
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But this testimony does not make sense, when no doubt exists that documents found in that file were produced to EEOC by Kaiser's counsel in October 2006. Indeed, Mr. Mellon testified that it was he who provided the files to Kaiser's EEO counsel (id. at 62, 65). Kaiser and its attorneys clearly have or at least had at some point in time access to the supervisory file. Defendant is either deliberately withholding the file from production in discovery or has purposefully destroyed it.2 III. Kaiser Should Produce Records of Plaintiff's August 2005 Disability Claim Kaiser's own records will confirm that defendant was aware of plaintiff's disability as early as August 2005. Margie Roper testified that, during the time plaintiff was out on medical leave in July to September 2005, she contacted the "Work Absence Management" or "WAM" department for coding of plaintiff's time card (Roper RT (Pl.'s Exh. B) at 46). Plaintiff's conversation with someone in the Human Resources department, which itself is documented in the electronic personnel record, regarding the August 19, 2005 Khrmit entry ­ Case ID No. 15265850 ­ confirms the existence of key Khrmit records. See Pl.'s Exh. J. Yet at deposition, Kaiser witnesses denied any inquiry into records at WAM, Disability Management or elsewhere regarding the August 2005 record. See Ayers RT (Pl.'s Exh. A), at 50-55; Kato RT (Pl.'s Exh. C), at 21-22, 71-72. On this record, it is beyond dispute that defendant or its attorneys deliberately suppressed the relevant Khrmit records during discovery. Indeed, for every entry except one in the Human Resources master record that states: "This case has migrated from Khrmit," defendant produced follow-up Khrmit print screens regarding the electronic entry. See Pl.'s Exh. K. The sole exception is the August 19, 2005 entry. Given this record, there is no escaping the conclusion that a deliberate decision was made to withhold from production in discovery records relating to the August 19, 2005 entry.
2

In the event that plaintiff learns the fate of this file in further discovery, this motion will be supplemented and more specific relief requested along with the reply brief or at the time of the hearing. Given defendant's refusal to comply with the Rule 30(b)(6) deposition notice at the time of this filing, Kaiser cannot be heard to complain about being surprised at what the evidence might show or what its conduct might warrant.
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IV.

Kaiser has Destroyed Records in Ayers' Files Concerning daRosa In considering the consequence of Kaiser's failure to provide reasonable responses

in discovery, including the production of records regarding plaintiff's discipline and discharge, the Court should consider the admission by Mr. Ayers that he "thinned out" records from his supervisory file on Ms. Roper after her termination, a few months after plaintiff's termination. Although he kept record of conversations with Ms. Roper that would have included notes regarding the discipline and termination of Mr. da Rosa, he decided to remove any records that did not deal directly with Ms. Roper's termination. As a result, he testified, he was unable to find any record of any discussions with Ms. Roper about plaintiff's employment. See Ayers RT (Pl.'s Exh. A) at 15, 31-35, 91-92. V. Kaiser Should Produce Electronically Stored Information, Including Email Except for one string of emails from July and August 2006, Kaiser produced no electronic communications regarding plaintiff's discipline, termination and request for rehire. Such electronically stored information should have been searched and disclosed pursuant to Rule 26(a)(1)(b). And yet, after completion of depositions it is clear that many relevant electronic documents remain to be produced. In the first instance, no effort was made to produce electronic documents relating to Ms. Roper. Plaintiff has been provided with no email communications to or from Ms. Roper, no file list of employment-related documents on her office hard drive, and no electronic calendar that Ms. Roper testified she kept on her computer. See Decl. of Counsel, at ¶15; Roper RT (Pl.'s Exh. B) at 14. Second, Kaiser should be required to search back-up data and retrieve all email communications between and among Roper, Mellon and Kato in December 2005 through March 2006. Both Mellon and Kato testified that they did not search for any electronic communications from this time period, because they did not recall archiving any files related to Mr. daRosa. At deposition, they admitted that they made no effort to determine whether back-up data exists for these communications. See Kato RT (Pl.'s Exh. C), at 14, 94; Mellon RT (Pl.'s Exh. D), at 74-75.
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Third, Kaiser has not produced any electronic information from either its WAM or Disability Management departments, which would have tracked Ms. Roper's request in August 2005 for time card coding while plaintiff was absent due to a disability leave. Defendant has identified no witnesses or records from either department. See Decl. of Counsel, at ¶15. VI. Kaiser Should be Required to Produce Mellon's daRosa File Attached to the notice of deposition for Mr. Mellon was the same request for production of documents that was attached to plaintiff's Rule 30(b)(6) deposition notices, and clearly included any and all records Mr. Mellon had in his possession regarding Mr. daRosa. At his deposition, Mr. Mellon testified that he kept a file on Mr. daRosa, and it was in a cabinet near his desk, but he had not looked at it in a long time and did not recall what was in it. Mr. Mellon, with the objection of his counsel, stated that he chose not to bring a copy of his daRosa file to the deposition. He also refused to bring to the deposition records of telephone calls made and received in January and February 2006 ­ the critical time period in this litigation. See Mellon RT (Pl.'s Exh. D) at 66, 69, 76-85. Plaintiff is entitled under Rule 34 to production of Kaiser's records in the form that they were maintained. It should have been produced at the time of deposition. Unfortunately, defendant's document production did not include anything to indicate a "daRosa file" maintained by Mr. Mellon (see Decl. of Counsel, at ¶16). VII. Kaiser Should Produce Documents Concerning Roper's Poor Performance As stated in plaintiff's letter brief (Doc. No. 36), information relating to Ms. Roper's relationship to defendant is fair area for inquiry. As a key witness for Kaiser, Ms. Roper's testimony must be examined thoroughly for bias both for and against her former employer. Moreover, in this case, plaintiff has good cause to believe that discovery into the circumstances of Ms. Roper's termination is likely to lead to the disclosure of admissible evidence. Indeed, Ms. Roper admitted that she was terminated due to the poor performance of her department, not including the work of plaintiff (Roper RT (Pl.'s Exh. B, at 91-95). That Ms. Roper was unable to provide proper supervision,
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that she was terminated for under-performance, but that plaintiff was himself not a part of the problems are facts clearly relevant to plaintiff's case. Whether and how Mr. daRosa fit into Ms. Roper's poor performance is a question that goes to the heart of this case. Moreover, Ms. Roper's credibility and her qualifications as a supervisor at Kaiser are key matters in this litigation, and no good reason exists for withholding this discovery. Nevertheless, at his deposition, counsel instructed Mr. Ayers not to answer any of the substantive questions regarding Ms. Roper's termination, including: whether any options were given to Ms. Roper concerning her remaining cooperation with Kaiser; whether she was ever disciplined for poor performance in Member Services, failure to maintain files or handling of her direct reports; and whether he has any reason to doubt Ms. Roper's honesty and veracity in the employment setting. And yet, despite these areas into which plaintiff was denied inquiry, Mr. Ayers had no trouble testifying that, in his opinion, Ms. Roper was qualified to be Mr. daRosa's supervisor at the time she made the decision to terminate him. See Ayers RT (Pl.'s Exh. A), at 97-105. VIII. Kaiser Should be Sanctioned for its Failure to Designate Under Rule 30(b)(6) Hoping to avoid answering difficult questions about withheld discovery, Kaiser has refused to produce any witnesses pursuant to plaintiff's notice under Rule 30(b)(6). Such a deliberate attempt to avoid discovery warrants sanctions. Plaintiff's counsel still has hope that he will be able to conduct these depositions prior to the hearing of this discovery motion. To the extent that defendant at that point is still in non-compliance, the Court should consider those facts in determining an appropriate remedy. IX. This Court Should Quash Kaiser's Subpoena of Pre-2005 Medical Records Pursuant to Rule 45(a)(1)(C), Kaiser served a subpoena for plaintiff's confidential medical records from prior to his Narcolepsy diagnosis in 2005, held by a third party, in this case Kaiser's medical department. That subpoena is subject to the relevance provisions of Rule 26(b)(1) and the procedures for a protective order under Rule 26(c). Plaintiff has standing to challenge the subpoena "where its challenge asserts that the information is privileged or protected to itself." Diamond State Ins. Co. v. Rebel Oil Co.,
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Inc., 157 F.R.D. 691, 695 (D.Nev. 1994). Upon a timely motion, a court shall quash or modify a subpoena if it finds that the subpoena "requires disclosure of privileged or other protected matter and no exception or waiver applies" (Rule 45(c)(3)(A)(iii)). In this case, plaintiff has already signed an authorization for a release of any and all medical records at Kaiser, including psychiatric and counseling records, from January 2005 until the present. As a result of his authorizations, Kaiser's medical department has produced in this litigation seven volumes of records. Plaintiff's Neurologist ­ Dr. Frank Dustin ­ has been deposed for more than six hours on those records, and defense counsel was unable to point to any specific additional documents necessary for that examination. During his deposition, Dr. Dustin confirmed that July 1, 2005, was the first time that he suspected plaintiff suffered from Narcolepsy, and Kaiser's attorneys were unable to obtain any testimony from Dr. Dustin showing that records from before that time were relevant to his diagnosis and treatment of plaintiff. See Decl. of Counsel, at ¶7. Since plaintiff was not diagnosed with Narcolepsy until July 2005, any confidential medical records prior to that time period would be irrelevant to the litigation. Certainly, Kaiser cannot show compelling need for any of these medical records. Defendant will thus be unable to meet the heavy burden required to obtain a further impairment of plaintiff's right to confidentiality. See Soto v. City of Concord, 162 F.R.D. 603, 618 (N.D. Cal. 1995). In balancing plaintiff's privacy rights against defendant's need for this additional information, there is no question that further disclosure of private medical records ­ beyond the seven volumes already disclosed ­ should not be ordered by this Court. In the alternative, if the Court is inclined to permit disclosure of pre-2005 medical records, such disclosure should be limited to only the standard medical records and should not include confidential counseling records from before 2005. Such records are clearly irrelevant to the case and represent a mere fishing pool for Kaiser's attorneys to try to bait out a basis by which they can prejudice the jury against him.

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SANCTIONS At the bare minimum, plaintiff requests that he be awarded his attorneys' fees incurred in connection with this motion. See Rule 37(a)(4). In addition, this Court should consider evidentiary sanctions, including the deeming of certain matters to be true for purposes of ruling on the plaintiff's motion for partial summary judgment, and trial; and informing the jury of defendant's discovery misconduct and permissible conclusions which can be drawn therefrom. Kaiser should also be required to pay all costs and fees associated with further depositions after document production. CONCLUSION For the foregoing reasons, plaintiff requests that the Court compel discovery, quash Kaiser's subpoena and award sanction. Respectfully submitted, Dated: September 15, 2008 JEREMY L. FRIEDMAN CHRISTOPHER J. KELLER By: /s/Jeremy L. Friedman Jeremy L. Friedman Attorneys for plaintiff Fernando daRosa

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