Free Uncategorized - District Court of Arizona - Arizona

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Quarles & Brady Streich Lang LLP
Firm State Bar No. 00443100 Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Lonnie J. Williams, Jr. (#005966) ([email protected]) Dawn C. Valdivia (#020715) ([email protected]) Attorneys for Plaintiff Marcela Johnson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Marcela Johnson, Plaintiff, v. Charles Schwab Corporation, Defendant. NO. CV 04-0790 PHX-JWS PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO COMPEL DISCOVERY RESPONSES

Defendant Charles Schwab & Co., Inc.'s ("Schwab") Motion to Compel Discovery Responses is without merit and is simply than another attempt by Schwab to harass Ms. Johnson and generate fees in this litigation. Contrary to Schwab's assertions, Ms. Johnson has provided all discoverable responses and Schwab's only issue with Ms. Johnson's responses is lack of verification. Schwab cites no legal authority from this Circuit to support its position that verifications must be provided promptly. As admitted by

Schwab, Ms. Johnson's counsel informed Schwab's counsel, on more than one occasion, that Ms. Johnson would provide verification for her responses, which she has done. [Exhibit A, Letter from Dawn C. Valdivia to Michelle Ganz dated November 18, 2005.] Schwab's motion is especially disconcerting considering the positions it has taken with regard to discovery in this matter. For example, Schwab has taken the position that it is entitled to collateral and unrelated information that might lead to the discovery of admissible evidence, but at the same time has denied Ms. Johnson information that goes to the heart of her claims and the issues in this case, including benefits information and

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information regarding whether Ms. Johnson, a Hispanic female, was treated differently than non-Hispanic, male employees.1 Schwab's motion is an inefficient use of the parties' and this Court's resources and it is without merit because Ms. Johnson has provided full and complete discoverable responses. Accordingly, this Court should deny Schwab's motion in its entirety and award Ms. Johnson costs and fees pursuant to Rule 37, Fed. R. Civ. P., for having to respond to this motion. A. Ms. Johnson Has Completely Responded to Schwab's First Set of NonUniform Interrogatories.

Schwab argues that Ms. Johnson has failed to provide complete responses to the following First Set of Non-Uniform Interrogatories ("NUI"): 6, 8, 9, 11, and 16. [Motion p. 2, l. 2.] Schwab has not provided any factual or legal basis for its position that Ms. Johnson failed to respond to NUI No. 9; therefore, Ms. Johnson is unable to respond with regard to that interrogatory. Next, although Ms. Johnson has fully answered NUI No. 6, Schwab seems to be asking this Court to compel Ms. Johnson to serve on it a supplemental response to NUI No. 6 with verification. [Schwab's Exhibit N.] Ms. Johnson will provide Schwab with a verified response. Schwab also accuses Ms. Johnson of failing to provide a damages' calculation, but neglects to inform this Court that Schwab's refusal to provide Ms. Johnson with requested, necessary, and discoverable information regarding benefits has prevented her from completing a comprehensive calculation of her damages.2 Indeed, Ms. Johnson's counsel informed Schwab's counsel of this very problem and reminded them that Rule 26 states that a party is not expected to provide a calculation of damages that depends upon information in the possession of another party. [Schwab's Exhibit N.] See Fed. R. Civ. P. 26(a)(1)(C) advisory comments to 1993 amendments. Consequently, until Schwab

provides the necessary information regarding benefits, Ms. Johnson cannot complete a comprehensive calculation of her economic damages.
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Schwab's responses to Ms. Johnson's discovery were less than adequate and included failure to answer a majority of relevant requests; generalized and blanket objections to each request; and failure to comply with the Rules of Civil Procedure. These issues will be more fully addressed in a motion to compel by Ms. Johnson. 2 Another issue that will be more fully addressed in Ms. Johnson's motion to compel.

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Additionally, Schwab incorrectly claims the Ms. Johnson has failed to provide discoverable information regarding her employment and earned income since her unlawful termination. To the contrary, Ms. Johnson fully responded to NUI No. 8 by providing her earnings, benefit information, and hours worked. [Schwab's Exhibits D, K, and N.] Schwab asks this Court to force Ms. Johnson to provide the name of her employer, but fails to provide any factual or legal basis to support the need for that information. It is unclear how the name of Ms. Johnson's employer would further help Schwab in calculating her economic damages and as explained in the accompanying Motion for Protective Order, Ms. Johnson has good cause for withholding that information. Moreover, the cases cited by Schwab are inapposite to this matter. In Brooks v. Hilton Casinos, Inc., 959 F.2d 757 (9th Cir. 1992) the plaintiff refused to "provide information regarding his income, taxes, and employment during the discovery process." Id. at 768. Ms. Johnson has not failed to provide such information and, in fact, with the exception of the name of her current employer, Ms. Johnson had has provided the following information regarding each employer for whom she has been employed since Schwab: names, telephone numbers, and last known addresses of her employers; names of supervisors; dates of employment; wages, bonuses, and benefits earned; and hours worked. [Schwab's Exhibits D, K, and N.] Schwab has not cited any legal authority to support its position that it is entitled to information regarding any loan or credit applications completed by Ms. Johnson, as sought in Interrogatory No. 11. Because Ms. Johnson has provided Schwab with all discoverable income information including her income tax return for the relevant time period, Schwab's request to compel further responses to NUI Nos. 8 and 11 is without merit and should be denied.3 Finally, Schwab seeks further responses Interrogatory No. 16. Although Ms.

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Ms. Johnson was terminated in November 2003 and was not re-employed until 2004. [Schwab's Exhibit D.] Thus, Ms. Johnson's only income in 2003 was the income she earned while employed at Schwab. Ms. Johnson has provided Schwab with a copy of her 2004 income tax return and all information regarding her 2005 earnings, including salary, benefits, and hours worked.

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Johnson agreed to supply information regarding conversations with current and former Schwab employees regarding issues specific to this lawsuit, Schwab continues to seek information regarding any and all conversations with such individuals. This request is overly broad to the extent that it seeks conversations between Ms. Johnson and a third party involving matters of a private or personal nature that are totally unrelated to this lawsuit. For example, Ms. Johnson may have engaged in conversations with current or former Schwab employees regarding their health or psychological issues that are not related to this lawsuit or are likely to lead to the discovery of admissible evidence. Schwab has not indicated how such information could possibly lead to the discovery of admissible evidence and to the extent that Schwab seeks such information, Ms. Johnson asks this Court to deny Schwab's motion. Schwab argues that it is entitled to the information because it could include the identification of witnesses with potentially admissible testimony about plaintiff's actions, motivations, or opinions about her sexual harassment report, termination, and her case. Schwab's defense in this action is based on the theory that Ms. Johnson was terminated for making a "false" report of sexual harassment. Evidently, Schwab seeks evidence that would help prove that Ms. Johnson's report was in fact "false." However, such

"evidence" irrelevant and inadmissible in a retaliation action, such as this. See Carmen v. San Francisco United School District, 237 F.3d 1026, 1028 (9th Cir. 2001) (whether claim had merit is irrelevant because an employer may not retaliate against someone whether or not claim is meritorious). See also Gomez v. Moyo, 40 F.3d 982 (9th Cir. 1995); Trent v. Valley Electric Association, Inc., 41 F.3d 524 (9th Cir. 1994). Thus, Schwab cannot show how evidence of Ms. Johnson's motivation or opinions would lead to the discovery of admissible evidence and, as such, the motion to compel further responses to NUI No. 16 should be denied. B. Ms. Johnson Has Fully Responded to Schwab's First Set of Requests for Production of Documents.

Schwab seeks further responses to its First Set of Requests for Production of

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Documents ("RFP") Nos. 2, 8, 13, 14, and 21. Ms. Johnson has fully answered RFP No. 2. [Schwab's Exhibits E, L, and N.] Plaintiff has also fully responded to RFP No. 8. [Schwab's Exhibits E, L, and N.] Schwab seeks Ms. Johnson's income tax returns for the years 2000-present. As provided and explained to Schwab in writing and during the meet and confer, Ms. Johnson was terminated in November 2003 and did not obtain employment (i.e. earn any money) until 2004. [Schwab's Exhibit N.] Thus, Ms. Johnson's only employment, and income, was with Schwab from 2000-2003 and all information regarding her earnings during that time is within Schwab's possession. Ms. Johnson provided the only tax return in her possession since her termination, which is for 2004. Schwab's motion with regard to RFP's No. 2 and 8 should be denied. RFP Nos. 13 and 14 are not reasonably calculated to lead to the discovery of admissible evidence and are intended only to harass Ms. Johnson. Ms. Johnson's personal relationship with a potential witness and former co-worker is totally irrelevant to the issues before this Court and is sought solely for the purpose of harassing Ms. Johnson and to paint her in a bad light. See Motion for Protective Order accompanying this Response. Finally, Ms. Johnson has fully responded to RFP No. 21 and to the extent that Schwab believes that Ms. Johnson possesses documents that are not within Schwab's possession, Ms. Johnson's counsel have offered to make all such documents available for Schwab's review. [Schwab's Exhibits E, L, and N, and letter from Dawn C. Valdivia to Michelle Ganz dated November 28, 2005, attached as Exhibit B hereto.] C. Conclusion For the foregoing reasons, Ms. Johnson respectfully requests that the Court deny Schwab's motion to compel and order an award of costs and fees associated with the preparation of this Response.

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DATED this 28th day of November, 2005. QUARLES & BRADY STREICH LANG LLP

By s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Attorneys for Plaintiff Marcela Johnson I hereby certify that on November 28, 2005, I electronically transmitted the attached document To the Clerk's Office suing the CM/ECF System For filing and transmittal of Notice of Electronic Filing to the following CM/ECF registrants: Joseph T. Clees Christopher Mason Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 2415 E. Camelback Road Suite 800 Phoenix, AZ 85016 A copy of this document was provided to The Honorable John W. Sedwick

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