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Simmons v. Safeway, Inc.

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

June 5, 2019

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


          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”) 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.

         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 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.

         The 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 reasonable expenses.



         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 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.


         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 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.


         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 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.


         A. STANDARD ON ...

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