United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION TO COMPEL
J. Bryan United States District Judge.
MATTER comes before the Court on Defendant Safeway, Inc.,
d/b/a Haggen Food and Pharmacy's (“Haggen” or
“Defendant”) 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 motion and the remaining file.
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 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.
Court reviewed the document in-camera. For the reasons
provided below, Haggen's motion to compel and for leave
to conduct a second limited deposition (Dkt. 21) should be
granted, in part, and denied as to its motion for an award of
BACKGROUND FACTS, PROCEDURAL HISTORY, AND SPECIFIC FACTS
RELATED TO THE PENDING DISCOVERY MOTIONS
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.
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 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.
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.
discovery deadline was June 3, 2019, the dispositive motions
deadline is July 2, 2019, and the trial is set to begin on
September 30, 2019. Dkt. 18.
FACTS RELATED TO MOTION TO COMPEL AND FOR FURTHER DEPOSITION
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 any 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.
STANDARD ON ...