Vega v. Honeywell International, Inc.

• Court: District Court, S.D. California
• Decided: May 1, 2020
• Docket: 3:19-cv-00663
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Julia VEGA, Case No.: 19-cv-00663-W-BGS

12 Plaintiff, ORDER ON DISCOVERY DISPUTES 13 v. RE INTERROGATORIES 11, 13 AND REQUEST FOR PRODUCTION 19 14 HONEYWELL INTERNATIONAL,

INC., 15 [ECF NO. 42] Defendant. 16

17 I. Introduction 18 The Court ordered the parties to submit a Joint Statement addressing 19 their disputes as to Interrogatory #11, Interrogatory #13, and Request for Production #19. 20 (ECF No. 41.) The Parties were to address the relevancy of the discovery, as well as 21 proportionality. Id. at 2. On March 6, 2020 the parties filed their Joint Statement of 22 Discovery Disputes. (ECF No. 42.) The Court will address the parties’ positions during 23 the analysis of the disputes. 24 II. Legal Standard 25 A party may obtain discovery “regarding any nonprivileged matter that is relevant 26 to any party’s claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. 27 P. 26(b)(1). Factors to consider include “the importance of the issues at stake in the 28 1 action, the amount in controversy, the parties’ relative access to relevant information, the 2 parties’ resources, the importance of the discovery in resolving the issues, and whether 3 the burden or expense of the proposed discovery outweighs its likely benefit.” Id. 4 Information need not be admissible in evidence to be discoverable. Id. However, a court 5 “must limit the frequency or extent of discovery otherwise allowed by [the Federal] 6 rules” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be 7 obtained from some other source that is more convenient, less burdensome, or less 8 expensive; (ii) the party seeking discovery has had ample opportunity to obtain the 9 information by discovery in the action; or (iii) the proposed discovery is outside the scope 10 permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). 11 The Advisory Committee emphasized that in adding the proportionality language 12 to Rule 26(b)(1) “the objective is to guard against redundant or disproportionate 13 discovery” and “to encourage judges to be more aggressive in identifying and 14 discouraging discovery overuse.” Fed. R. Civ. P. 26, Advisory Committee’s note to 2015 15 amendment. 16 The test for Relevant Evidence is defined in Federal Rule of Evidence 401 which 17 provides: “Evidence is relevant if (a) it has a tendency to make a fact more or less 18 probable than it would be without the evidence; and (b) the fact is of consequence in 19 determining the action.” 20 III. Analysis 21 A. Dispute regarding Interrogatory #11 22 The original Interrogatory #11, (ECF No. 42-1 at 15–16) provides: “Identify and 23 describe in detail all documents, including but not limited to any surveys, studies, reports, 24 investigations, recommendations, proposals, and/or plans of action, conducted by a 25 former or current Honeywell employee(s), third-party vendor, affiliate, consultant, 26 corporate partner and/or advisor, related to any of the claims in Plaintiff’s Complaint.” 27 The Plaintiff asserts that Defendant’s responses to the original Interrogatory #11 28 (“ROG #11”) are moot. (ECF No. 42 at 6). The scope of this interrogatory has been 1 narrowed to only documents related to the hiring and retention of women engineers at 2 Honeywell. (ECF No. 42 at 6).1 Plaintiff has narrowed ROG #11 to request a description 3 of documents related to Honeywell’s hiring and retention of women. (ECF No. 42 at 2.) 4 ROG #11 as narrowed provides: 5 “Plaintiff narrows this interrogatory as follows: Identify and describe in detail all documents, including but not limited to any surveys, studies, 6 reports, investigations, recommendations, proposals, and/or plans of 7 action, conducted by a former or current Honeywell employee(s), third- party vendor, affiliate, consultant, corporate partner, and/or advisor, 8 related to Honeywell’s hiring and retention of women engineers.” (ECF 9 No. 42-3 at 2.) 10 Plaintiff contends that this narrowed ROG #11 is highly relevant to her claims of 11 gender discrimination in the terms and conditions of her employment and with respect to 12 her compensation. (ECF No. 42 at 3.) In particular, Plaintiff claims that ROG #11 is 13 relevant to her interview for a promotion to a Technical Manager (“TM”) position. Id. at 14 4. Mark Asplund allegedly offered her this promotion, but there was no corresponding 15 pay increase. Id. According to the Plaintiff, the information regarding Defendant’s 16 hiring and retention of women engineers from 2015 to present is probative of whether 17 any gender disparities existed in managerial roles, and whether this TM position offered 18 to Plaintiff was comparable to the TM roles occupied by other men and women. Id. And 19 further, Plaintiff contends that this discovery addresses whether the women who were 20 Band 4 employees in engineering were compensated, retained, and/or promoted in a 21 manner comparable to their male counterparts. Id. 22 23 24 25 1 Notwithstanding, the Court would sustain Defendant’s objections to the original ROG #11 on the basis 26 that it is facially overbroad and vague. (ECF No. 42 at 4–5.) In particular, the terms “all documents including but not limited to” and “related to any of the claims” would include many documents 27 unrelated to the important issues in the case. See Vera v. O’Keefe, No. 10-cv-1422, 2012 WL 896175, *5 (S.D. Cal. Mar. 15, 2012) (explaining that “discovery must be narrowly tailored”). 28 1 Defendant argues that even this narrowed ROG #11 seeks information well beyond 2 the scope of relevant information. Id. at 5. Defendant claims that Plaintiff’s allegations 3 are confined to a few specific instances of purported conduct that occurred within a small 4 team of individuals working on a specific product. Id. Defendant contends that 5 Plaintiff’s allegations in the complaint do not extend to the entire company. Id. at 5–6. 6 Additionally, Defendant argues that its hiring and retention of women engineers have no 7 bearing on Plaintiff’s claims. Id. at 6. Defendant claims that Plaintiff’s gender-based 8 discrimination claims regard the assignment of duties and pay by specific individuals in 9 her team and has not pled a failure to hire or promote claim. Id. 10 In her rebuttal, Plaintiff appears to narrow this interrogatory even further to only 11 include when Vice President of Engineering Operations 12 Barbara Brockett testified . Id. at 7. Defendant 13 responds in its rebuttal, among other issues,2 that Plaintiff already has the information 14 responsive to this interrogatory as Ms. Brockett 15 Id. at 8–9. Further, Defendant claims that Plaintiff was 16 offered a managerial position, which she opted not to accept because she did not like the 17 pay. Id. at 9. 18 As to relevancy of the narrowed ROG #11, the issue presented by this dispute is 19 whether or not the identity and description in detail of all documents related to 20 Honeywell’s hiring and retention of women engineers tends to make more probable a fact 21 of consequence, i.e., gender discrimination, as alleged in Plaintiff’s complaint. See Fed. 22 R. Evid. 401. For this analysis, the Court turns to the factual allegations incorporated in 23 all of Plaintiff’s claims that regard gender discrimination. 24 25

26 27 2 Defendant also argues that the two narrowed requests (Exb. 1 and limitation to Ms. Brockett’s deposition testimony ) are in essence a new ROG which is outside the fact 28 1 Plaintiff’s complaint provides “Factual Allegations Common to All Causes of 2 Action.” (ECF No. 1-3 at 7.) Section B of the complaint provides allegations regarding 3 Honeywell’s “Discriminatory Culture of Gender Bias.” Id. at 8–9. The allegations under 4 this section as regards gender discrimination all involve Senior Technical Manager Mark 5 Asplund (“Asplund”). See id. Plaintiff alleges that Asplund stalled Plaintiff’s career 6 when she took this position in 2014. Id. at 8. Plaintiff also alleged that Asplund had 7 misogynistic views of women, believing them to be inferior employees. Id. Plaintiff 8 claims that Asplund effectively cultivated an environment in the HUMS group3 in which 9 his orders were swiftly carried out unopposed regardless of his plainly discriminatory 10 agenda. Id. at 9. 11 Section C of the complaint discusses how Honeywell allegedly discriminated 12 against Plaintiff with respect to development opportunities. Id. at 10–11. Again, the 13 main culprit at denying Plaintiff from conducting aircraft surveys was Asplund. She was 14 chosen only once, Asplund and two other decision makers routinely selected male 15 engineers for the job. See id. This alleged discrimination took place in her HUMS 16 group. Id. at 10. 17 Section D of the complaint asserts “Honeywell Discriminated Against Ms. Vega 18 With Respect to Pay and Promotions.” Id. at 11. Plaintiff concedes in this section that 19 she was offered a promotion to TM, but in name only. Id. at 12. She would receive no 20 corresponding pay. Id. According to Plaintiff, it was Asplund who refused to offer her 21 the pay increase she deserved. Id. at 12–13. Other members of HUMS management 22 agreed she deserved a pay increase, but they lacked authority to override Asplund’s 23 decision. Id. at 13. Further, Plaintiff alleges that Asplund was singularly responsible for 24 25 3 HUMS group stands for Helicopter Usage and Monitoring System group. (ECF No. 1-3 at 8.) 26 According to Plaintiff, it encompassed about 60 employees at facilities in California, Arizona and New Mexico. Id. Plaintiff worked at the Poway location from April 2010 to Oct. 2017 as a Project Engineer 27 and Principal Systems Engineer. Id. at 7–8. Defendant asserts that Plaintiff’s particular group was a small team of individuals working on a specific product. (ECF No. 42 at 5–6.) Plaintiff does not contest 28 1 sinking two important career advancement opportunities solely on account of gender. 2 (ECF No. 1-3 at 13 n.2.) Asplund’s sexism had a marked impact on the trajectory of 3 Plaintiff’s career. See id. at 11–14. 4 Section E of the complaint contends that Honeywell discriminated against Ms. 5 Vega based on her caregiver status. Id. at 14–15. Plaintiff alleges Asplund rejected all 6 her proposals to allow her child care responsibilities. Id. Plaintiff claims that Asplund’s 7 denials were intended to harass her and put her at a disadvantage as a working mother. 8 Id. 9 Section F of the complaint refers to when TM Melinda Hunt selected the Plaintiff 10 to travel to Spain on a business trip. Id. at 15–16. A few days later, Plaintiff learned that 11 she had been removed from the trip because she was not a licensed pilot, a requirement 12 for the trip that Plaintiff did not have. Id. at 15. Although this cancellation did not 13 allegedly involve Asplund, Plaintiff alleges that Asplund had specifically told Ms. Hunt 14 that he did not want plaintiff on that trip. Id. at 16. 15 Section G of the complaint regards retaliation against Plaintiff for reporting gender 16 discrimination. Id. at 16–18. Here again the alleged perpetrator of the retaliation is 17 Asplund. Plaintiff alleged that Asplund improperly initiated a retaliatory investigation of 18 her for alleged time card fraud, where the investigation was done outside of Honeywell’s 19 formal procedures and without informing Human Resources that he was doing so. Id. 20 Section H of the complaint alleges that Asplund caused Plaintiff severe emotional 21 distress. Id. at 18–21. According to Plaintiff, the physical manifestations of her stress 22 started occurring around January 2015, after the failed salary negotiations with Asplund. 23 Id. at 19. 24 What is obvious from this summary of the factual allegations is that all of the 25 alleged gender discrimination starts and ends with acts done by Asplund. The gender 26 discrimination and retaliation claims all are directed at Asplund’s conduct towards 27 28 1 Plaintiff. Even the denial of equal pay falls on Asplund’s shoulders, since it was he, not 2 the company, who refused to give her a pay increase.5 He was also the cause of her 3 severe emotional distress, as well as her alleged constructive discharge. The Court finds 4 that ROG #11’s request for a description of documents concerning Honeywell’s hiring 5 and retention policies are not relevant to Plaintiff’s claim of gender discrimination. 6 The Court also finds that ROG #11 is not proportional to the gender discrimination 7 issues, i.e., whether Asplund discriminated against Plaintiff based on her gender. In her 8 complaint Plaintiff never alleges any hiring discrimination which she experienced by 9 Honeywell. In fact just the opposite. See (ECF No. 1-3 at 7–8.) Except for the alleged 10 conduct by Asplund, she does not allege that Honeywell had a discriminatory policy not 11 to promote women. In fact she was offered the promotion to TM. See id. at 11–13. And 12 given that all the allegations of discrimination involve Asplund, ROG #11 even as 13 narrowed is overbroad, and places an undue burden on Honeywell. The important gender 14 discrimination issues in the case regard Asplund. Any documents regarding Honeywell’s 15 hiring and retention are not proportional to alleged gender discrimination by Asplund. 16 In any event, Plaintiff has further narrowed this request in her rebuttal argument: 17 “Plaintiff is requesting VP Brockett 18 . (ECF No. 47-1 at 7.) The parties attached as Exhibit B, 19 relevant portions of her testimony taken at her December 9, 2019 deposition. (ECF No. 20 47-2 at 2–18.) The Plaintiff, at least in the portions the Court was given, 21 22 . Id. At one point 23 24

25 26 4 Although Plaintiff alleges that two other decision makers were allegedly involved in denying Plaintiff the trip to Spain, the rationale underlying this order applies equally to this allegation. 27 5 However, ROG #11 requests information regarding hiring and retention, not compensation. 28 1 Id. at 8. 2 3 4 -Id. 5 Id. 6 Of note, Plaintiff did not bring a discovery dispute regarding any privilege issue. 7 And Ms. Brockett’s 8 9 . In any event, 10 11 . 12 Thereafter, 13 . 14 15 . (ECF No. 47-2 at 13.) 16 . Id. 17 . Id. at 13–15. 18 During this examination Plaintiff 19 20 Id. at 14. 21 Id. at 15. The Plaintiff 22 Id. 23 Id. The Plaintiff 24 25 26 Id. At this point 27 28 1 Id. The 2 parties did not provide the Court with how the witness ultimately answered. 3 Analogous to the previous objection detailed above, the Plaintiff never brought any 4 discovery dispute regarding privilege. Further, 5 . 6 This response would not have included any information from Honeywell’s attorneys. It 7 also borders , 8 which would necessarily be outside the scope of ROG #11. 9 10 . 11 It is clear to the Court that the Plaintiff had the full opportunity to ask the witness 12 questions about the identity and description of the information requested in the narrowed 13 ROG #11. And although the Court has found such questioning outside the factual 14 underpinnings of Plaintiff’s complaint, the Court finds that the Defendant has complied 15 with ROG #11 as narrowed. A further deposition would be duplicative/cumulative. See 16 Rule 26(b)(2)(C). 17 B. Dispute regarding Interrogatory #13: 18 The original Interrogatory #13, (ECF No. 42-1 at 17) requested: “For each of your 19 defenses in this action, identify the factual basis for it and the evidence or information 20 which proves or tends to prove the validity of the defense. In addition, identify any 21 person having knowledge of the factual basis and any document pertaining to or 22 supporting each defense.” 23 The Plaintiff has narrowed this request from 48 affirmative defenses 24 to 28 affirmative defenses. (ECF No. 42 at 9–11.) Otherwise the request remains the 25 same. Defendant first objects on the ground that requests for information regarding each 26 affirmative defense identified in Interrogatory #13 (“ROG #13”) constitutes a separate 27 and distinct interrogatory. Id. at 10–11. Plaintiff has not offered a response to this 28 contention. 1 Civil Local Rule 33.1 states: “No party will serve on any other party 2 interrogatories which, including discrete subparts, number more than twenty-five 3 interrogatories without leave of court.” Civ. L. R. 33.1(a). Federal Rule of Civil 4 Procedure 33 states: “Unless otherwise stipulated or ordered by the court, a party may 5 serve on any other party no more than 25 written interrogatories, including all discrete 6 subparts.” Fed. R. Civ. P. 33(a). 7 Rule 33(a) by its express terms makes it clear that every interrogatory which is 8 served, including any discrete subparts, shall be counted against the numerical limit. The 9 numerical limit was added in 1993. Fed. R. Civ. P. 33, Advisory Committee’s note to 10 1993 amendment. Before then, courts acknowledged that “sheer numerosity is not an 11 objection.” Compagnie Francaise d'Assurance Pour le Commerce Exterieur v. Phillips 12 Petroleum Co., 105 F.R.D. 16, 42 (S.D.N.Y.1984). As the Advisory Committee 13 explained, “[t]he purpose of this revision is to reduce the frequency and increase the 14 efficiency of interrogatory practice.” See Advisory Committee Note to 1993 Amendment 15 to Fed. R. Civ. P. 33, 146 F.R.D. 401, 675 (1993). The amendment was based upon a 16 recognition that, although interrogatories may be a valuable discovery tool, “the device 17 can be costly and may be used as a means of harassment. . . .” Id. “The aim [of the 18 numerical limit] is not to prevent needed discovery, but to provide judicial scrutiny 19 before parties make potentially excessive use of this discovery device.” Id. at 676. 20 Although Rule 33(a) states that “discrete subparts” should be counted as separate 21 interrogatories, it does not define that term. An interrogatory with subparts that elicit 22 details concerning the common theme “should be considered a single question,” even 23 though “the breadth of an area inquired about may be disputable.” White v. Cinemark 24 USA, Inc., No. 04CV0397 GEB CMK, 2005 WL 3881658, at *2–3 (E.D. Cal. Mar. 28, 25 2005). “On the other hand, an interrogatory with subparts inquiring into discrete areas is 26 more likely to be counted as more than one for purposes of the limitation.” Id. at *3. In 27 White, the Court found that asking for “each and every fact” relating to each affirmative 28 1 defense should be treated as separate interrogatories since each defense may be both 2 factually and logically different. Id. 3 The Court in Bovarie v. Schwarzenegger also held that an interrogatory that seeks 4 a response as to multiple affirmative defenses is counted as a separate interrogatory for 5 each affirmative defense. No. 08CV1661 LAB NLS, 2011 WL 719206, at *2 (S.D. Cal. 6 Feb. 22, 2011). The Court further held that seeking every fact that underlies every 7 affirmative defense is unduly burdensome. Id. (citing Bashkin v. San Diego Cty., 2011 8 WL 109229 at * 2 (S.D. Cal. 2011); Miles v. Shanghai Zhenhua Port of Mach. Co., LTS., 9 2009 WL 3837523 at * 1 (W.D. Wash. 2009); Mancini v. Ins. Corp. of New York, 2009 10 WL 1765295 at * 3 (S.D. Cal. 2009)). 11 This Court agrees with these cases and finds that the narrowed ROG #13 limiting 12 the affirmative defenses to 28 is actually 28 separate interrogatories. The Defendant 13 proffered that the 28 interrogatories would exceed the maximum number of 14 interrogatories allowed. (ECF No. 42 at 10–11.) The Plaintiff has not addressed whether 15 or not any of the 28 additional ROGs would fit within the 25 ROG limit. The Court was 16 not informed as to how many ROGs were made by the Plaintiff. 17 Notwithstanding, a court “must limit the frequency or extent of discovery 18 otherwise allowed by [the Federal] rules” if “(i) the discovery sought is unreasonably 19 cumulative or duplicative, or can be obtained from some other source that is more 20 convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had 21 ample opportunity to obtain the information by discovery in the action; or (iii) the 22 proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 23 26(b)(2)(C). 24 The Defendant concedes that evidence of its affirmative defenses is relevant to this 25 case. (ECF No. 42 at 11.) For this reason, the Defendant argues that it complied with its 26 obligations under Federal Rule of Civil Procedure 26(a) and identified every document 27 and witness it intends to call at trial. Id. Defendant further contends that the Plaintiff has 28 full access to the same documents and witness testimony produced in this matter as 1 Defendant, and that Plaintiff is aware of the factual and evidentiary basis for its 2 affirmative defenses. Id. Plaintiff argues as a matter of fairness the Defendant should be 3 ordered to provide the factual basis for the affirmative defenses that Defendant intends to 4 raise. Id. at 9–10. 5 The Court, pursuant to its sua sponte duty to limit discovery, additionally finds that 6 Plaintiff has had ample opportunity to either limit the number of interrogatories to 7 include specific affirmative defenses for which it needed discovery on, or to request the 8 Court in a timely manner to allow additional interrogatories that were proportional to the 9 needs of the case. The Plaintiff did neither. The Court further denies ROG #13 pursuant 10 to FRCP 26(b)(1) and (2)(C). 11 C. Dispute regarding Request for Production #19 12 The original Request for Production #19, (ECF No. 42-2 at 20.) provides: “All 13 documents related to the investigation of any other employee within the HUMS Group 14 and/or at the Poway location for time card fraud or any other time entry or attendance 15 violations.” Plaintiff narrowed this Request for Production (“RFP”) to time card fraud 16 only. (ECF No. 42-3 at 3.) 17 Plaintiff contends this RFP is relevant to show that the Project Engineer 18 supervising Plaintiff, Asplund, accused Plaintiff of time card fraud in retaliation after 19 Plaintiff complained about gender discrimination at Honeywell. (ECF No. 42 at 14.) 20 Plaintiff maintains that assessing whether other employees were also investigated for 21 time card fraud speaks directly to whether Defendant’s explanation of why Plaintiff was 22 investigated is pretextual. Id. Plaintiff contends that whether time card fraud 23 investigations were frequent or rare at the Poway worksite or within the HUMS group is 24 highly probative of this claim. Id. 25 On this point the Defendant posited that this RFP seeks documents that are not 26 relevant to Plaintiff’s claims because she was not subject to a formal time card 27 investigation through Human Resources in accordance with Honeywell’s formal 28 procedures. (ECF No. 42 at 16). 1 Section G of Plaintiff’s complaint regards the “time card fraud” investigation of 2 Plaintiff. (ECF No. 1-3 at 16–18.) It provides the facts underlying her retaliation claim. 3 Id. The person the Plaintiff claims retaliated against her and who had the retaliatory 4 intent was Asplund. Id. On June 28, 2017, Plaintiff contends that Asplund improperly 5 initiated a retaliatory investigation of Ms. Vega’s alleged time card fraud which was 6 outside Honeywell’s formal procedures and without informing Human Resources that he 7 was doing so. Id. at 17. 8 By Plaintiff’s own allegation, the time card fraud investigation was not a formal 9 investigation that was properly conducted through Human Resources. Id. Rather it was 10 initiated by Asplund as a pretext for Plaintiff reporting gender discrimination. And the 11 entirety of the gender discrimination allegations as outlined in the “Factual Allegations 12 Common to All Causes of Action” section of the Complaint all point to Asplund as the 13 discriminator. Therefore, the Court finds that RFP #19, even as narrowed, is overbroad. 14 The inclusion of all documents of any employee of fraud investigations, formal or 15 otherwise, are not relevant to prove Asplund’s retaliatory intent and pretext.6 16 Notwithstanding, the frequency of other similar time card fraud investigations at 17 the Poway site of similarly situated employees would be relevant to proving whether 18 Asplund’s investigation of Plaintiff was done for a retaliatory motive. As Plaintiff 19 proffered, assessing whether other employees were also investigated for time card fraud 20 speaks directly to whether Defendant’s (Asplund’s) explanation of why Plaintiff was 21 investigated is pretextual. Whether time card fraud investigations were frequent or rare at 22

23 6 Plaintiff must show, by specific and substantial evidence, that Defendant’s proffered reason is pretext 24 and the true motive was intentional discrimination. Guz v. Bechtel National Inc., 24 Cal.4th 317, 356 25 (2000). In order to show that the reasons were pretextual, Plaintiff must do so “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by 26 showing that the employer’s proffered explanation is unworthy of credence.” Zeinalie v. Raytheon Co., 636 F.3d 544, 552 (9th Cir. 2011). The ultimate burden of persuasion on the issue of actual 27 discrimination remains with the Plaintiff. Guz, 24 Cal.4th at 356. It appears to the Court that the alleged fact that Asplund conducted the investigation outside the proper channels is more probative of 28 1 the Poway worksite or within the HUMS group is highly probative of this claim. And 2 Plaintiff has good reason to believe that time card fraud investigations were rare or 3 unprecedented at Honeywell. (ECF No. 42 at 14–15.) Plaintiff 4 5 . Id. 6 Plaintiff, has been provided the relevant 7 discovery for which she seeks the documents in the RFP #19, 8 , it is more probable that Asplund’s 9 investigation outside the proper channels was a pretext to retaliate against the Plaintiff for 10 her reporting gender discrimination. The actual documents of the investigations of 11 others, if they even exist, do not add any probative value 12 . Plaintiff reconfirms in her rebuttal 13 argument that the relevancy of RFP #19 is the frequency of these types of investigations, 14 not the actual documents themselves. There she states that the documents either 15 corroborate or disprove Peter Manternach’s testimony 16 17 . (ECF No. 42 at 17.) Peter Manternach’s 18 . It becomes 19 clear to the Court that the documents RFP #19 seeks are not relevant, and are cumulative 20 and not proportional to the material issue of the retaliatory claim. See e.g. Fed. R. Civ. P. 21 § 26(b)(1) and (b)(2)(C). The Defendant does not have to respond to RFP #19. 22 IV. SANCTIONS 23 Rule 37(a)(5) of the Federal Rules of Civil Procedure provides: 24 (a) MOTION FOR AN ORDER COMPELLING DISCLOSURE OR DISCOVERY. . . . 25 (5) Payment of Expenses; Protective Orders. 26 (A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After 27 Filing). If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after 28 1 giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in 3 making the motion, including attorney’s fees. But the court must not order A this payment if: (i) the movant filed the motion before attempting in good faith to 5 obtain the disclosure or discovery without court action; 6 (11) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. 8 (B) Ifthe Motion Is Denied. If the motion is denied, the court may issue any 9 protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, 10 or both to pay the party or deponent who opposed the motion its 11 reasonable expenses incurred in opposing the motion, including attorney’s fees. But the court must not order this payment if the motion was 12 substantially justified or other circumstances make an award of expenses 13 unjust.” 14 Neither party is seeking sanctions as outlined above. The Court does not deem 15 || sanctions are appropriate in this case. 16 IT IS SO ORDERED. 17 18 Dated: April 30, 2020 7 2 p / / 19 on. Bernard G. Skomal 20 United States Magistrate Judge 21 22 23 24 25 26 27 28