Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Simmons v. Safeway, Inc.

United States District Court, W.D. Washington, Tacoma

May 30, 2019

AVERY SIMMONS, an individual, Plaintiff,
v.
SAFEWAY, INC., d/b/a HAGGEN FOOD AND PHARMACY, a Delaware corporation, Defendant.

          ORDER ON DISCOVERY MOTIONS

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on Defendant Safeway, Inc., d/b/a Haggen Food and Pharmacy's (“Haggen” or “Defendant”) Motion for Protective Order (Dkt. 23) and Haggen's Motion to Compel Documents Refreshing Plaintiff's Memory and to Resume Deposition (Dkt. 21). The Court has considered the pleadings filed regarding the motions and the remaining file.

         On May 14, 2018, Plaintiff Avery Simmons filed this employment discrimination case in Thurston County, Washington, Superior Court, in connection with her employment at Haggen's Olympia, Washington store. Dkt. 1-2. Haggen now moves for an order protecting its Fed.R.Civ.P. 30 (b)(6) deponent from having to testify about certain matters identified in the Plaintiff's Rule 30 (b)(6) deposition notice. Dkt. 23. Haggen also moves for an order compelling Simmons to produce a typed document that she asserted she used to refresh her memory during her deposition and an order allowing Haggen to proceed with a second, limited deposition. Dkt. 21. For the reasons provided below, Haggen's motion for a protective order (Dkt. 23) should be granted, in part, and denied, in part; its motion to compel and for leave to conduct a second limited deposition (Dkt. 21) should be continued to June 4, 2019.

         I. BACKGROUND FACTS, PROCEDURAL HISTORY, AND SPECIFIC FACTS RELATED TO THE PENDING DISCOVERY MOTIONS

         A. BACKGROUND FACTS

         According to the Amended Complaint, Haggen hired the Plaintiff on February 16, 2017. Dkt. 12, at 2. She asserts that she was injured at work in August of 2017 and filed a worker's compensation claim. Id. The Plaintiff maintains that the Defendant issued a “Personnel Action Notice” about her workplace injury because she filed her workers' compensation claim. Id.

         Around October 16, 2017, the Plaintiff alleges that another employee “sexually harassed Plaintiff in the form of unwanted touching and sexual luring.” Dkt. 12, at 2. She asserts that she followed the Defendant's “written anti-harassment policy by reporting her co-workers' sexually-harassing behavior.” Id. The Plaintiff maintains that after her report, the Defendant issued two “Personnel Action Notices for conduct that occurred before the Plaintiff complained of the harassment.” Id. She states that Defendant's Human Resources Department, “without following its own policy by investigating, told Plaintiff there was no issue.” Id., at 3. The Plaintiff asserts that the Defendant did not follow its own policy and failed to address the behavior. Id. She maintains that she “reasonably believed she had no choice but to quit;” she did so on October 24, 2017. Id.

         B. PROCEDURAL HISTORY

         The Plaintiff asserts claims against Haggen for hostile work environment, discrimination, and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et. seq., and the Washington Law Against Discrimination, RCW 49.60, et. seq. Dkt. 12, at 3-4. She also makes claims for claim suppression and wrongful termination under Washington common law. Id. The Plaintiff seeks injunctive relief, damages, attorneys' fees, and costs. Id.

         The deadline for discovery motions was May 13, 2019, the discovery deadline is June 3, 2019, the dispositive motions deadline is July 2, 2019, and the trial is set to begin on September 30, 2019. Dkt. 18. The parties have been engaging in discovery, including responding to written discovery, on-going production of documents, and noting and taking depositions. See e.g. Dkts. 24, and 29.

         C. FACTS RELATED TO MOTION FOR PROTECTIVE ORDER

         Late in the day on Friday, May 10, 2019, the Plaintiff served the Defendant with a Fed.R.Civ.P. 30 (b)(6) Notice of Deposition, identifying 14 topics and 50 subtopics. Dkt. 25-1. On Sunday, May 12, 2019, the Defendant emailed the Plaintiff, objecting to the notice. Dkt. 25, at 3-4. The parties met and conferred by telephone, to discuss the scope of the Rule 30 (b)(6) notice and to see if they could agree to an extension of the discovery motion deadline, which was the next day. Id. The parties were unable to resolve all the issues and were not able to agree to extend the deadline. Id. Their call to the Court did not result in a resolution. Dkt. 24. The Defendant's motion for a protective order followed. Dkt. 23. After the motion was filed, the parties met and conferred; of the 14 topics in the Notice of Deposition, they were able to come to an agreement regarding Topics No. 1, 3, 6, 8, 9, 11, 12, and 14. This order addresses the remaining topics at issue.

         D. FACTS RELATED TO MOTION TO COMPEL AND FOR FURTHER DEPOSITION OF PLAINTIFF

         On December 10, 2018, Plaintiff's deposition was taken for around four hours. Dkt. 22, at 1, and Dkt. 22-1, at 3-12. During her deposition, the Plaintiff acknowledged that she reviewed a page-and-a-half document, typed by her attorney, to refresh her memory of the events surrounding this case. Dkt. 22-1, at 4. Defense counsel asked the Plaintiff whether she recalled “what the statement says in it, ” and the Plaintiff's counsel instructed her not to answer on the grounds of attorney-client privilege and work-product doctrine protection. Id., at 5. The Plaintiff testified that the document was created from her own notes of the events, taken before she consulted legal counsel, and then reorganized and typed by her attorney after they met. Dkt. 27-1, at 11-12. She testified that the typewritten version (that she used to refresh her memory) was not different, in a way that is important, to her handwritten version. Dkt. 27-1, at 12. During the deposition, counsel for Defendant indicated that they may seek to depose Plaintiff again after production of the document. Dkt. 21-1, at 5. After the deposition, the Plaintiff sent the Defendant a copy of her handwritten notes, but did not send the typed version. Dkt. 27-2. The parties met and conferred and were unable to resolve the issue. Dkt. 22, at 1-2.

         II. DISCUSSION

         A. STANDARD ON DISCOVERY GENERALLY

         Fed. R. Civ. p. 26 (b)(1) provides:

Unless otherwise limited by court order, the scope of discovery is as follows: 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

         “The court should and ordinarily does interpret ‘relevant' very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, n.12 (1978)(quoting 4 J. Moore, Federal Practice ¶ 26.56 [1], p. 26-131 n. 34 (2d ed. 1976)).

         B. RULE 30 (b)(6) AND STANDARD ON MOTION FOR PROTECTIVE ORDER

         Fed. R. Civ. P. 30 (b)(6) “Notice or Subpoena Directed to an Organization, ” provides in relevant part that: “[i]n its notice or subpoena, a party may name as the deponent a public or private corporation . . . and must describe with reasonable particularity the matters for examination.” Under Fed.R.Civ.p. 26 (b)(2)(C),

On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26 (b)(1).

         Further, pursuant to Rule 26 (c)(1), for good cause, the court may “issue an order to protect a party or person from . . . oppression, or undue burden or expense, including . . . forbidding the disclosure or discovery . . . [or] limiting the scope of disclosure or discovery.” Fed.R.Civ.p. 26 (c)(1)(A) and (D).

         C. MOTION FOR PROTECTIVE ORDER - TOPICS IN DISPUTE IN THE 30 (b)(6) NOTICE OF DEPOSITION AND MOTION FOR ATTORNEYS' FEES

          After the parties fully briefed the motion for a protective order, and then met and conferred for a second time, Topic Nos. 2, 4, 5, 7, 10, and 13 of the deposition notice remain in dispute. Each of these topics is addressed below, along with the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.