Opinion
Case No. 1:07-cv-01428 LJO TAG.
July 24, 2008
BACKGROUND
This is a civil rights action alleging sexual harassment brought by Plaintiff, the Equal Employment Opportunities Commission (the "EEOC") against Defendants ABM Industries, Inc., ABM Janitorial Services, Inc., ABM Janitorial Northern California, and Does 1-10 ("Defendants"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991. (Doc. 1). Plaintiff-Intervenors Erika Morales ("Morales") and Anonymous Plaintiffs One through Eight ("Anonymous Plaintiffs"), current and former employees of Defendants, filed a complaint in intervention against Defendants and one of their former supervisors, Defendant-Intervenor Jose Vasquez ("Vasquez"), alleging, inter alia, that Vasquez inappropriately touched them and raped Doe One. (Doc. 27).
On June 2, 2008, Plaintiff filed a motion for a protective order to exclude Defendant Vasquez from attending Plaintiff-Intervenors' depositions and to bar Defendants from taking their depositions. (Docs. 34, 39). On June 4, 2008, Defendants filed a motion to compel the depositions of Plaintiff-Intervenors and requested sanctions. (Docs. 35-37, 42). The motions came on regularly for hearing before Magistrate Judge Theresa A. Goldner on July 7, 2008. (See Dkt. Entry 46). Victor Viramontes and Lorena Garcia appeared on behalf of the EEOC, and Spencer Hipp appeared on behalf of the Defendants. Stanley Mallison appeared telephonically on behalf of Plaintiff-Intervenors. William Strapp appeared on behalf of Vasquez. (Id.).
DISCUSSION
A. Discovery overview
The purpose of discovery is to make trial "less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent possible,"United States v. Procter Gamble, 356 U.S. 677, 683, 78 S.Ct. 983, 987 (1958), and to narrow and clarify the issues in dispute,Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 388 (1947).
Federal Rule of Civil Procedure 26(b)(1) establishes the scope of discovery and states in pertinent part:
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 — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
"The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections." United States v. Approximately $141,932 in Currency, 2007 WL 2070337, *2 (E.D. Cal. 2007); Oakes v. Halvorsen Marine Ltd., 179 F.R.D 281, 283 (C.D. Cal. 1998); Nestle Foods Corp. v. Aetna Casualty Surety Co., 135 F.R.D. 101, 104 (D. N.J. 1990).
B. Depositions and Protective Orders
Under Federal Rule of Civil Procedure 30(a)(1), a "party may, by oral questions, depose any person, including a party, without leave of court," unless there are circumstances not present in the instant case. Once a party is served with a notice of deposition pursuant to Rule 30(b)(1), that party may not fail to appear at the deposition by filing objections absent a court order. New England Carpenters Health Benefits Fund v. First DataBank, Inc., 242 F.R.D. 164, 166 (D.Mass. 2007); see also BCI Communication Systems, Inc. v. Bell Atlanticom Systems, Inc., 112 F.R.D. 154, 157 (N.D.Ala. 1986) (holding that if an attorney does not already have a protective order, he cannot insist that an individual be excluded from attending the deposition). The court may, in its discretion and upon a showing of good cause, issue a protective order directing certain parties or individuals from attending a deposition if their presence would unduly embarrass or oppress the deponent. Fed.R.Civ.P. 26(c)(1) (1)(E); Lowy Development Corp. v. Superior Court, 190 Cal.App.3d 317, 320 (Cal.App. 2 Dist. 1987), citing Galella v. Onassis 487 F.2d 986, 997 (2d Cir. 1973).
In determining whether good cause exists for a protective order, the Court must balance the interests in allowing discovery against the relative burdens to the parties and nonparties. In re Coordinated Pretrial Proceedings, 669 F. 2d 620, 623 (10th Cir. 1982); see also Wood v. McEwan, 644 F.2d 797, 801 (9th Cir. 1981). This is a sexual harassment case. The Court is cognizant of Plaintiff-Intervenors' allegations regarding Defendants' conduct, and in particular, Defendant Vasquez. Generally, parties alleging sexual harassment are not allowed to proceed anonymously. See Doe v. Bell Atlantic Business Systems Services, Inc., 162 F.R.D. 418, 420-421 (D.Mass. 1995) (citing cases discussing under what circumstances parties need not disclose identifying information). In this case, to date, the Anonymous Plaintiffs have been allowed to proceed anonymously at the pleading phase. The case is now at the discovery phase, and the time has come to conduct discovery. In order for Defendants to conduct meaningful discovery, they are entitled to depose the Plaintiff-Intervenors, including the Anonymous Plaintiffs. The Court has considered the pleadings and papers filed herein, as well as the oral arguments of counsel, has balanced the interests in allowing discovery against the relative burdens to the parties, and finds that the interest in allowing Defendants to depose Plaintiff-Intervenors, subject to a protective order, outweighs the burden to Plaintiff-Intervenors in being deposed.
ORDER
Accordingly, the Court makes the following orders:
1. Plaintiff-Intervenors' motion for a protective order, as amended (Docs. 34, 39) is GRANTED IN PART AND DENIED IN PART as set forth in Paragraph 3 below;
2. Defendants' motion to compel depositions (Doc. 35) is GRANTED IN PART AND DENIED IN PART as set forth in Paragraph 3 below;
3. A. All Plaintiff-Intervenors are to appear at their depositions and are to be deposed, subject to a protective order issued this date.
B. Defendant Vasquez is barred from attending the deposition of Anonymous Plaintiff #1, the alleged rape victim. Although he cannot be present in the deposition room, Defendant Vasquez may view a video feed of the deposition from another room, if he chooses to do so. If he chooses to view a video feed, Defendant Vasquez must arrive in the building where the deposition will take place at least one hour prior to the time the deposition begins, and he must leave the building at least one hour after the deponent leaves the building.
C. The depositions of Plaintiff-Intervenors are to take place at the location noticed or to be noticed by Defendants. Plaintiff-Intervenors' requests that the depositions take place at the Federal Courthouse in Fresno and/or that a security or law enforcement officer be present, are denied.
D. The deposition of Anonymous Plaintiff #3 will take place as noticed commencing July 23, 2008.
E. The deposition of Anonymous Plaintiff #4 will take place as noticed commencing July 24, 2008.
F. Based on the representations regarding the unavailability of counsel for the EEOC and for Defendant Vasquez, the previously noticed depositions of Erika Morales, Anonymous Plaintiff #1, Anonymous Plaintiff #2, Anonymous Plaintiff #5, Anonymous Plaintiff #6, Anonymous Plaintiff #7, and Anonymous Plaintiff #8, are to be re-noticed by Defendants to dates mutually agreed upon, but are to be completed no later than October 31, 2008. However, inasmuch as this delay has been caused by the unavailability of counsel for the EEOC and counsel for Defendant Vasquez, Defendants will maintain their deposition priority.
4. Defendants' request for sanctions is denied.
5. Plaintiff's request for sanctions is denied.
6. As part of its bench ruling, the Court restrained Defendant Vasquez from being within 100 feet of the Anonymous Plaintiffs other than during the depositions and court proceedings, and issued further orders prohibiting retaliatory conduct and disclosure of information by and to Vasquez and others. Upon reconsideration, the Court vacates the portion of its ruling described in the preceding sentence, because they are injunctive in nature and thus are matters that are properly addressed to a district judge, and not a magistrate judge. See 28 U.S.C. Section 636(b)(1). Accordingly, the protective order issued this date will not include those provisions.