1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 KRISTAN STOVALL, Case No. 18-cv-07540-EJD (VKD)
9 Plaintiff, ORDER RE MAY 17, 2021 DISCOVERY 10 v. DISPUTE LETTER; RECOMMENDATION RE DEADLINE 11 ALIGN TECHNOLOGY, INC., FOR DAUBERT MOTIONS 12 Defendant. Re: Dkt. No. 77
13 14 Plaintiff Kristan Stovall and defendant Align Technology, Inc. (“Align”) ask the Court to 15 resolve a dispute concerning Align’s discovery of Ms. Stovall’s expert. Dkt. No. 77. In addition, 16 Align asks the Court to extend the deadline set by the presiding judge for the filing of Daubert1 17 motions. The Court held a hearing on the matter on May 25, 2021. Dkt. No. 79. The parties 18 made a supplemental submission on May 27, 2021. Dkt. No. 80. 19 For the reasons explained below, the Court concludes that Align is not entitled to obtain 20 the discovery it seeks of Ms. Stovall’s expert. The Court also recommends that the deadline for 21 filing Daubert motions be extended. 22 I. BACKGROUND 23 In this action, Ms. Stovall alleges that Align discriminated against her on the basis of age 24 and sex with respect to her employment. She asserts six claims for relief arising under both 25 federal and state law. Dkt. No. 42. 26 On October 14, 2020, the parties participated in private mediation with the Honorable 27 1 Bonnie Sabraw (Ret.). Dkt. No. 52 at 5; Dkt. No. 77 at 2, 6. One week before the mediation, on 2 October 7, 2020, Ms. Stovall’s economic expert Vanessa Hill prepared a report calculating Ms. 3 Stovall’s lost earnings and benefits, which formed the basis for Ms. Stovall’s demand at the 4 mediation. Dkt. No. 77 at 2. Ms. Stovall states that the report was prepared and provided to Align 5 solely for purposes of the parties’ mediation. Id. at 6 and Ex. A (Hill Dep. 129:12-19). In its 6 portion of the discovery dispute submission, Align does not dispute Ms. Stovall’s characterization 7 of the report, and Align’s counsel conceded at the hearing that he understood the report was 8 prepared and provided to Align for purposes of mediation. The parties’ supplemental submission 9 reflects that due to restrictions relating to the COVID-19 pandemic, the mediation was conducted 10 via Zoom, and the parties were not asked to sign a written agreement concerning materials and 11 information exchanged as part of the mediation. Dkt. No. 80, Ex. B. 12 On January 12, 2021, Ms. Stovall disclosed Ms. Hill as a testifying expert under Rule 13 26(a)(2) of the Federal Rules of Civil Procedure and provided a report describing her opinions and 14 the bases for those opinions. Dkt. No. 77 at 2. 15 On April 30, 2021, Align took Ms. Hill’s deposition. Id., Ex. A. During the deposition, 16 Align’s counsel asked Ms. Hill questions about her October 2020 report; Ms. Stovall’s counsel 17 objected and instructed Ms. Hill not to answer. Id. at 2, 6 and Ex. A (Hill Dep. 127:14-130:5). 18 Align now moves to compel Ms. Hill’s testimony about her October 2020 report and to compel 19 production of unspecified documents “regarding” that report. Id. at 2. 20 II. DISCUSSION 21 The Court first considers Align’s request for discovery of Ms. Hill’s October 2020 report, 22 and then addresses the parties’ dispute regarding an extension of the deadline for a hearing on 23 Daubert motions. 24 A. Discovery of Hill October 2020 Report 25 Align argues that discovery of Ms. Hill’s October 2020 report is relevant to this action 26 because it will show that she biases her opinions to fit a desired outcome and that her opinions are 27 based on an unreliable methodology. Id. at 3-5. In her portion of the discovery dispute 1 Rule 408 of the Federal Rules of Evidence. Id. at 6; see also id., Exs. A, B. Ms. Stovall also 2 seems to suggest that the discovery is not relevant because Ms. Hill prepared the October 2020 3 report before Align produced substantial discovery. Id. At the hearing on this matter, Ms. Stovall 4 argued for the first time that discovery of the report also is barred by California’s mediation 5 privilege embodied in the California Evidence Code.2 Dkt. No. 79. 6 “Under Federal Rule of Evidence 501, privileges provided by state law apply in civil 7 actions only ‘with respect to an element of a claim or defense as to which State law supplies the 8 rule of decision.’” Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th Cir. 2007) (quoting Fed. 9 R. Evid. 501). For this reason, with respect to Ms. Stovall’s federal claims, the California 10 Evidence Code does not apply. As to those claims, the Court agrees with Align that the Ninth 11 Circuit has not construed Rule 408 as embodying a “mediation privilege” prohibiting the 12 discovery of all communications exchanged in mediation or settlement discussions. At least two 13 judges in this District have declined to find such a privilege. See Phoenix Solutions Inc. v. Wells 14 Fargo Bank, N.A., 254 F.R.D. 568 (N.D. Cal. 2008); Matsushita Elec. Indus. Co. v. MediaTek, 15 Inc., No. C-05-3148 MMC (JCS), 2007 WL 963975 (N.D. Cal. Mar. 30, 2007); see also In re 16 MTSG, Inc., 675 F.3d 1337, 1342-48 (Fed. Cir. 2012) (finding no federal privilege for settlement 17 negotiations in matters arising under patent laws); but see Goodyear Tire & Rubber Co. v. Chiles 18 Power Supply, Inc., 332 F.3d 976, 980 (6th Cir. 2003) (“There exists a strong public interest in 19 favor of secrecy of matters discussed by parties during settlement negotiations. This is true 20 whether settlement negotiations are done under the auspices of the court or informally between the 21 parties.”). Rather, Rule 408 precludes admission of evidence of settlement or mediation 22 communications “to prove or disprove the validity or amount of a disputed claim or to impeach by 23 prior inconsistent statement or a contradiction.” Fed. R. Evid. 408(a). 24 The Court is reluctant to entertain Ms. Stovall’s argument, made belatedly at the hearing, 25
26 2 The parties’ May 27, 2021 supplemental submission includes an extended discussion of the California Evidence Code and other arguments. However, the Court requested only a 27 supplemental submission regarding the circumstances of the parties’ private mediation. The Court 1 that the California Evidence Code applies to her state law claims. However, even if the Court 2 accepts Ms. Stovall’s argument that the California Evidence Code protects materials like Ms. 3 Hill’s October 2020 report from discovery,3 that argument would apply only to Ms. Stovall’s state 4 law claims. At the time of the parties’ mediation, the operative complaint included both federal 5 and state claims. See Dkt. No. 42. Neither party suggests that Ms. Hill’s expert testimony is 6 offered only in support of Ms. Stovall’s state law claims. 7 Nevertheless, the Court concludes that the additional testimony and documents Align seeks 8 concerning Ms. Hill’s October 2020 report are not discoverable. Ms. Stovall provided Ms. Hill’s 9 report solely for purposes of the mediation, and Align clearly understood that. Align’s counsel did 10 not refuse the report or communicate to Ms. Stovall’s counsel that Align intended to treat the 11 report in a manner inconsistent with the expectations Ms. Stovall had communicated.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 KRISTAN STOVALL, Case No. 18-cv-07540-EJD (VKD)
9 Plaintiff, ORDER RE MAY 17, 2021 DISCOVERY 10 v. DISPUTE LETTER; RECOMMENDATION RE DEADLINE 11 ALIGN TECHNOLOGY, INC., FOR DAUBERT MOTIONS 12 Defendant. Re: Dkt. No. 77
13 14 Plaintiff Kristan Stovall and defendant Align Technology, Inc. (“Align”) ask the Court to 15 resolve a dispute concerning Align’s discovery of Ms. Stovall’s expert. Dkt. No. 77. In addition, 16 Align asks the Court to extend the deadline set by the presiding judge for the filing of Daubert1 17 motions. The Court held a hearing on the matter on May 25, 2021. Dkt. No. 79. The parties 18 made a supplemental submission on May 27, 2021. Dkt. No. 80. 19 For the reasons explained below, the Court concludes that Align is not entitled to obtain 20 the discovery it seeks of Ms. Stovall’s expert. The Court also recommends that the deadline for 21 filing Daubert motions be extended. 22 I. BACKGROUND 23 In this action, Ms. Stovall alleges that Align discriminated against her on the basis of age 24 and sex with respect to her employment. She asserts six claims for relief arising under both 25 federal and state law. Dkt. No. 42. 26 On October 14, 2020, the parties participated in private mediation with the Honorable 27 1 Bonnie Sabraw (Ret.). Dkt. No. 52 at 5; Dkt. No. 77 at 2, 6. One week before the mediation, on 2 October 7, 2020, Ms. Stovall’s economic expert Vanessa Hill prepared a report calculating Ms. 3 Stovall’s lost earnings and benefits, which formed the basis for Ms. Stovall’s demand at the 4 mediation. Dkt. No. 77 at 2. Ms. Stovall states that the report was prepared and provided to Align 5 solely for purposes of the parties’ mediation. Id. at 6 and Ex. A (Hill Dep. 129:12-19). In its 6 portion of the discovery dispute submission, Align does not dispute Ms. Stovall’s characterization 7 of the report, and Align’s counsel conceded at the hearing that he understood the report was 8 prepared and provided to Align for purposes of mediation. The parties’ supplemental submission 9 reflects that due to restrictions relating to the COVID-19 pandemic, the mediation was conducted 10 via Zoom, and the parties were not asked to sign a written agreement concerning materials and 11 information exchanged as part of the mediation. Dkt. No. 80, Ex. B. 12 On January 12, 2021, Ms. Stovall disclosed Ms. Hill as a testifying expert under Rule 13 26(a)(2) of the Federal Rules of Civil Procedure and provided a report describing her opinions and 14 the bases for those opinions. Dkt. No. 77 at 2. 15 On April 30, 2021, Align took Ms. Hill’s deposition. Id., Ex. A. During the deposition, 16 Align’s counsel asked Ms. Hill questions about her October 2020 report; Ms. Stovall’s counsel 17 objected and instructed Ms. Hill not to answer. Id. at 2, 6 and Ex. A (Hill Dep. 127:14-130:5). 18 Align now moves to compel Ms. Hill’s testimony about her October 2020 report and to compel 19 production of unspecified documents “regarding” that report. Id. at 2. 20 II. DISCUSSION 21 The Court first considers Align’s request for discovery of Ms. Hill’s October 2020 report, 22 and then addresses the parties’ dispute regarding an extension of the deadline for a hearing on 23 Daubert motions. 24 A. Discovery of Hill October 2020 Report 25 Align argues that discovery of Ms. Hill’s October 2020 report is relevant to this action 26 because it will show that she biases her opinions to fit a desired outcome and that her opinions are 27 based on an unreliable methodology. Id. at 3-5. In her portion of the discovery dispute 1 Rule 408 of the Federal Rules of Evidence. Id. at 6; see also id., Exs. A, B. Ms. Stovall also 2 seems to suggest that the discovery is not relevant because Ms. Hill prepared the October 2020 3 report before Align produced substantial discovery. Id. At the hearing on this matter, Ms. Stovall 4 argued for the first time that discovery of the report also is barred by California’s mediation 5 privilege embodied in the California Evidence Code.2 Dkt. No. 79. 6 “Under Federal Rule of Evidence 501, privileges provided by state law apply in civil 7 actions only ‘with respect to an element of a claim or defense as to which State law supplies the 8 rule of decision.’” Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th Cir. 2007) (quoting Fed. 9 R. Evid. 501). For this reason, with respect to Ms. Stovall’s federal claims, the California 10 Evidence Code does not apply. As to those claims, the Court agrees with Align that the Ninth 11 Circuit has not construed Rule 408 as embodying a “mediation privilege” prohibiting the 12 discovery of all communications exchanged in mediation or settlement discussions. At least two 13 judges in this District have declined to find such a privilege. See Phoenix Solutions Inc. v. Wells 14 Fargo Bank, N.A., 254 F.R.D. 568 (N.D. Cal. 2008); Matsushita Elec. Indus. Co. v. MediaTek, 15 Inc., No. C-05-3148 MMC (JCS), 2007 WL 963975 (N.D. Cal. Mar. 30, 2007); see also In re 16 MTSG, Inc., 675 F.3d 1337, 1342-48 (Fed. Cir. 2012) (finding no federal privilege for settlement 17 negotiations in matters arising under patent laws); but see Goodyear Tire & Rubber Co. v. Chiles 18 Power Supply, Inc., 332 F.3d 976, 980 (6th Cir. 2003) (“There exists a strong public interest in 19 favor of secrecy of matters discussed by parties during settlement negotiations. This is true 20 whether settlement negotiations are done under the auspices of the court or informally between the 21 parties.”). Rather, Rule 408 precludes admission of evidence of settlement or mediation 22 communications “to prove or disprove the validity or amount of a disputed claim or to impeach by 23 prior inconsistent statement or a contradiction.” Fed. R. Evid. 408(a). 24 The Court is reluctant to entertain Ms. Stovall’s argument, made belatedly at the hearing, 25
26 2 The parties’ May 27, 2021 supplemental submission includes an extended discussion of the California Evidence Code and other arguments. However, the Court requested only a 27 supplemental submission regarding the circumstances of the parties’ private mediation. The Court 1 that the California Evidence Code applies to her state law claims. However, even if the Court 2 accepts Ms. Stovall’s argument that the California Evidence Code protects materials like Ms. 3 Hill’s October 2020 report from discovery,3 that argument would apply only to Ms. Stovall’s state 4 law claims. At the time of the parties’ mediation, the operative complaint included both federal 5 and state claims. See Dkt. No. 42. Neither party suggests that Ms. Hill’s expert testimony is 6 offered only in support of Ms. Stovall’s state law claims. 7 Nevertheless, the Court concludes that the additional testimony and documents Align seeks 8 concerning Ms. Hill’s October 2020 report are not discoverable. Ms. Stovall provided Ms. Hill’s 9 report solely for purposes of the mediation, and Align clearly understood that. Align’s counsel did 10 not refuse the report or communicate to Ms. Stovall’s counsel that Align intended to treat the 11 report in a manner inconsistent with the expectations Ms. Stovall had communicated. Because 12 both parties understood that Ms. Stovall provided the report solely for purposes of their mediation, 13 and because Align behaved in a manner that indicated it acquiesced in that understanding, it would 14 be unfair to now permit Align to use the report for a different purpose. The absence of a signed 15 writing memorializing the parties’ understanding does not alter the Court’s assessment. As the 16 Court observed at the hearing, had the mediation occurred under the auspices of the Court’s ADR 17 program, there is no question that Align could not use the report “for any purpose . . . in any 18 pending or future proceeding in this Court.” See ADR L.R. 6-12(a)(3). In view of the parties’ 19 mutual understanding of the purpose for which Ms. Stovall provided Ms. Hill’s October 2020 20 report, the Court denies Align’s request to obtain further discovery of Ms. Hill regarding that 21 report. 22 B. Extension of Deadline for Daubert Motions 23 Align requests an extension of the deadline for a hearing on a Daubert motion challenging 24 Ms. Hill because it did not take her deposition until after the current deadline had passed. Ms. 25 Stovall opposes extension of the deadline based on her understanding that Judge Davila has 26 3 Under California law, except as expressly provided, “[a]ll communications, negotiations, or 27 settlement discussions by and between participants in the course of a mediation . . . shall remain 1 already considered the question of whether the deadline should be extended and declined to extend 2 || it. Ms. Stovall’s counsel suggested that the parties could or should raise challenges to the other 3 side’s experts as motions in limine. 4 The Court does not understand why Align did not ask Judge Davila to extend the deadline 5 for hearing Daubert motions when the parties sought an extension of the expert discovery cut-off, 6 || as Align had already taken Ms. Hill’s deposition and was aware that the deadline for filing a 7 Daubert motion had long passed at the time the parties filed their stipulation. See Dkt. No. 75. As 8 || the Court will not compel additional discovery of Ms. Hill’s October 2020 report, Align has no 9 other justification for extension of the deadline. 10 However, as this matter will be tried to the Court and not to a jury, the Court expects that 11 Judge Davila may prefer to have serious challenges to an expert briefed and heard in advance of 12 || the parties’ pretrial deadline for filing motions in limine.* For this reason, the Court recommends 5 13 || that the deadline to hear Daubert motions be extended to allow both parties to bring such motions. 14 || I. CONCLUSION 15 For the reasons stated above, the Court denies Align’s request for further discovery of Ms. a 16 || Hill’s October 2020 report, and recommends that the presiding judge extend the deadline for 3 17 || hearing Daubert motions to a date convenient to the Court’s schedule. IT IS SO ORDERED. 19 Dated: May 28, 2021 20
VIRGINIA K. DEMARCH 22 United States Magistrate Judge 23 24 25 26 27 “ The Court questions whether a motion in limine is an appropriate vehicle for raising challenges 28 to an expert, as Ms. Stovall suggests, given that Judge Davila set a specific deadline for hearing Daubert motions with which neither party complied.