1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 RICHARD WINET, Case No.: 20cv14 W (BGS)

10 Plaintiff, ORDER REGARDING DISCOVERY 11 v. DISPUTES

12 ARTHUR J. GALLAGHER & CO., [ECF 39-40] 13 Defendant. 14 15 16 17 I. INTRODUCTION 18 Plaintiff Richard Winet and Defendant Arthur J. Gallagher & Co. (“Gallagher”) 19 raised discovery disputes regarding numerous requests for production of documents 20 (“RFPs”) and two interrogatories (“ROGs”) from Plaintiff to Gallagher. (ECF 35.) The 21 Courted order the parties to submit a joint statement addressing the specific issues in 22 dispute. (ECF 36.) Further, the parties were ordered to “address the relevancy of the 23 discovery sought and whether the discovery sought is ‘proportional to the needs of the 24 case, considering the importance of the issues at stake in the action, the amount in 25 controversy, the parties’ relative access to relevant information, the parties’ resources, the 26 importance of the discovery in resolving the issues, and whether the burden or expense of 27 the proposed discovery outweighs its likely.’” (Id. at 2 (quoting Rule 26(b)(1)).) 28 Additionally, the parties were ordered to address whether the RFPs and objections to 1 them have complied with Federal Rule of Civil Procedure 34(b)’s requirements. (Id. 2 (citing Fed. R. Civ. P. 34(b)(1) (contents of requests) and (b)(2) (responses and 3 objections).) 4 The parties filed their respective positions individually. (See Docs. 39 and 40.) 5 The Court addresses and discusses the RFPs, ROGs, and the parties’ arguments as 6 necessary in this order, but will not quote the RFP or ROG in dispute. 7 II. DISCUSSION 8 A. Legal Standard 9 A party may obtain discovery “regarding any nonprivileged matter that is relevant 10 to any party’s claim or defense and proportional to the needs of the case considering the 11 importance of the issues at stake in the action, the amount in controversy, the parties’ 12 relative access to relevant information, the parties’ resources, the importance of the 13 discovery in resolving the issues, and whether the burden or expense of the proposed 14 discovery outweighs its likely benefit.” Id. 15 Relevant evidence is defined in Federal Rule of Evidence 401 which provides: 16 “[e]vidence is relevant if (a) it has a tendency to make a fact more or less probable than it 17 would be without the evidence; and (b) the fact is of consequence in determining the 18 action.” Fed. R. Evid. 401; see also Continental Circuits LLC v. Intel Corp.,

3d 1014, 1018 (D. Ariz. 2020) (“Under Rule 401 of the Federal Rules of Evidence, 20 information having ‘any tendency’ to make a fact in dispute ‘more or less probable’ is 21 relevant.”) (quoting Fed. R. Evid. 401). “[I]nformation within [the scope of Rule 22 26(b)(1)] need not be admissible in evidence to be discoverable.” Rule 26(b)(1); see also 23 In re Bard IVC Bard Filters Prods. Liab. Litig.,

(D. Ariz. 2016) 24 (“Courts generally recognize that relevancy for purposes of discovery is broader than 25 relevancy for purposes of trial.”); see also Continental Circuits, 435 F. Supp. 3d at 1018- 26 19 (same). 27 The Advisory Committee emphasized that in adding the proportionality language 28 to Rule 26(b)(1) “the objective is to guard against redundant or disproportionate 1 discovery” and “to encourage judges to be more aggressive in identifying and 2 discouraging discovery overuse.” Fed. R. Civ. P. 26, Advisory Committee’s note to 2015 3 amendment. Additionally, under Rule 26(b)(2)(C), a court “must limit the frequency or 4 extent of discovery otherwise allowed by [the Federal] rules” if “(i) the discovery sought 5 is unreasonably cumulative or duplicative, or can be obtained from some other source 6 that is more convenient, less burdensome, or less expensive; (ii) the party seeking 7 discovery has had ample opportunity to obtain the information by discovery in the action; 8 or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” 9 B. Discovery Requests 10 1. Requests for Production of Documents 11 “A party may serve on any other party a request within the scope of Rule 26(b) to 12 produce any designated documents or electronically stored information.” Rule 13 34(a)(1)(A). The request must describe the document sought “with reasonable 14 particularity” and any “objection must state whether any responsive materials are being 15 withheld on the basis of that objection.” Rule 34(b)(2). The requesting party may move 16 to compel the production of responsive documents if a party fails to produce documents. 17 Rule 37(a)(3)(B)(iv). 18 a) RFP No. 2 19 Plaintiff justifies this RFP by stating his work was sales, and his performance was 20 measured by his sales. The breach of contract and covenant of good faith and fair dealing 21 claims both allege that Plaintiff was owed commissions from the Grossmont Union High 22 School District (“GUHSD”) and Oceanside Unified School District (“OUSD”) accounts, 23 which Gallagher did not pay. (Doc. 25 [First Amended Complaint (“FAC”)] at 11 and 24 25). He also alleges he was owed commissions for the San Dieguito Union High School 25 District (“SDUHSD”) account. (Id. at 12). Therefore, the relevance of this RFP would 26 include only those documents that report his sales as that term is defined under the 27 contract. Gallagher asserts that it has provided documents relating to Plaintiff’s sales in 28 its initial disclosures. (Doc. 40 at 3). The Court notes that Gallagher has a continuing 1 obligation to supplement them. Rule 26(e) (A party who has made a disclosure under 2 Rule 26(a)--or who has responded to an interrogatory, request for production, or request 3 for admission--must supplement or correct its disclosure or response . . . in a timely 4 manner if the party learns that in some material respect the disclosure or response is 5 incomplete or incorrect, and if the additional or corrective information has not otherwise 6 been made known to the other parties during the discovery process or in writing.”); City 7 and Cnty. of S.F. v Tutor-Saliba Corp.,

(N.D. Cal. 2003). 8 Otherwise this RFP is overbroad and not proportional to the needs of the case. As 9 modified by Plaintiff, this RFP includes all documents, writings, statements, reports, or 10 any other document concerning, evidencing, and reflecting any of Plaintiff’s sales. It 11 fails to specify the particular type of documents that would relate to his sales. Nor has 12 Plaintiff responded how Gallagher’s initial disclosures are inadequate to show Plaintiff’s 13 sales. Without such a response and reasonable specification of what documents Plaintiff 14 still needs, a search for all documents concerning any of Plaintiff’s sales would entail 15 undue burden on Gallagher. It necessarily would include looking for irrelevant and 16 duplicative or cumulative documents. 17 The Court finds based on the parties’ Joint Statements that Gallagher has complied. 18 b) RFP No. 3 19 This RFP as modified is the same as RFP 2 except it asks for any work performed 20 whereas RFP 2 asks for any of Plaintiff’s sales. The Plaintiff has alleged his work that is 21 relevant to this case as his sales. “Plaintiff’s work was sales… .” (Doc. 39 at 4). Given 22 his work was sales and this RFP requests any work performed, when appropriately 23 narrowed based on relevance, RFP 3 asks for the same documents as RFP 2. 24 Additionally, Plaintiff has not indicated in his Joint Statement what “any work 25 performed” means, nor has he proffered how this request is relevant to an important issue 26 in this case. 27 Based on the FAC, the important issues in the case are the amount of sales for 28 which he was owed commissions as well as his sales performance under the performance 1 improvement plan (“PIP”). Documents concerning these topics are relevant to his claims 2 for breach of contract and the covenant of good faith and fair dealing, as well as his 3 discrimination and retaliation claims. However, according to Gallagher, these have 4 already been provided under RFP 2. Further, “any work performed” is ambiguous and 5 does not provide reasonable particularity. It is also facially overbroad for the same 6 reasons as stated in RFP 2. 7 The Court’s order in RFP 2 applies equally to RFP 3 in that it covers the relevance 8 and proportionality of the discovery requested herein. Gallagher need not respond 9 further. 10 c) RFP No. 16 11 This RFP asks Gallagher to provide how its commission payments are calculated 12 for the sale if its products, including the California School’s Voluntary Employee 13 Benefits Association (“VEBA”). Plaintiff asserts this is relevant to commissions he was 14 owed, but not paid. (Doc. 39 at 5). In his breach of contract claim he alleges that as part 15 of his compensation agreement with McGregor he was to receive a slightly higher annual 16 salary plus commissions of 25 cents per new member per month. (Doc. 25 at 11). He 17 then goes on to allege that he was terminated, and his commissions owed under his prior 18 agreement were stopped in violation of that agreement. (Id.) 19 The FAC does not claim that his commissions were incorrectly calculated under 20 the agreement with McGregor that allegedly continued with Gallagher. Therefore, how 21 Gallagher calculates its commissions for other employees is not relevant to any important 22 issue in dispute. Further, Gallagher indicates it has provided Plaintiff with records as to 23 how his commissions were calculated per his agreement with McGregor. (Doc. 40 at 6). 24 This RFP need not be responded to further. 25 d) RFP No. 17 26 Plaintiff seeks all documents which reflect revenue generated by his sales. Plaintiff 27 asserts he was terminated for failure to meet his quarterly sales goals under the PIP. In his 28 Joint Statement, he claims that his performance was measured by the total revenue his sales 1 generated. (Doc. 39 at 6). However, the relevant issue was his failure to meet his sales 2 goals under the PIP, not his failure to generate revenue for Gallagher. Plaintiff does not 3 proffer any facts which indicate that he was terminated for his failure to generate revenue. 4 In his FAC, he consistently alleges he is owed commissions due on his sales. He 5 consistently alleges he was terminated for his inability to meet quarterly sales goals per the 6 PIP plan. Nowhere in his FAC does he even mention revenue. 7 Besides not meeting his burden of showing the relevance of this RFP to his claims, 8 it is overbroad and vague. The term “revenue” and “generated” are not defined. Any 9 attempt to comply with such a broad and ambiguous request is not proportional to 10 important issues in this case and would place an undue burden on the opposing party. 11 This RFP is denied. 12 e) RFP No. 19 13 RFP 19 seeks all complaints of discrimination received by Gallagher for a six-year 14 period prior to Plaintiff’s termination. Plaintiff’s second cause of action alleges 15 discrimination against him based on age and disability under California’s Fair 16 Employment and Housing Act. (Doc. 25 at 12-15). Plaintiff alleges he was discriminated 17 against because of his age and disability by being transferred out of his area of expertise 18 in November 2018. (Id. at 13). Plaintiff further alleges that on April 24, 2019 he was 19 unjustifiably placed on a 90-day PIP by Gallagher. (Id. at 8 and 14). He also alleges that 20 he was terminated on June 27, 2019 by Gallagher for his inability to meet his quarterly 21 sales goals as set for in his PIP. (Id.)1 22 23

24 25 1 Plaintiff has not identified who at Gallagher held the discriminatory intent and caused the adverse employment action. The FAC lists DOES 1-50 because their identities were 26 unknown and states that the FAC will be amended when their identities become known. 27 (Doc. 25 at 3). Plaintiff has not done so either in his Joint Statement or by way of an amended complaint. 28 1 His FEHA discrimination claim alleges disparate treatment by Gallagher and 2 unidentified DOES who were involved in causing the alleged adverse employment 3 actions.2 Plaintiff has to prove that the person(s) who caused the alleged adverse actions 4 were substantially motivated by his protected status.3 Harris v. City of Santa Monica, 56

, 232 (2013). Therefore, the only relevant discovery within the scope of RFP 6 19 would be complaints by employees of age or disability discrimination against the 7 person(s) who caused the adverse employment action(s). See Fed. R. Evid. 404(b)(2). 8 RFP 19 fails to meet Rule 34(b)’s requirement to “describe with reasonable 9 particularity” what it seeks. Plaintiff fails to identify the person(s) who caused the 10 adverse employment actions. As stated, the only relevant complaints, if they exist at all, 11 would be those regarding the people who caused the adverse employment actions, but 12 because Plaintiff has failed to identify them, the RFP is overbroad and seeking irrelevant 13 discovery. 14 Notwithstanding, to the extent Plaintiff identifies the person(s) who allegedly 15 caused the adverse employment actions, Gallagher is to provide employee complaints of 16 age and disability discrimination made against these people to the extent any exist. The 17 Court finds the date range requested to be excessive and limits this inquiry to 3 years 18 prior to June 27, 2019. 19 f) RFP No. 20 20 RFP 20 requests all harassment complaints for six years prior to Plaintiff’s 21 termination. Plaintiff’s second cause of action alleges a violation of FEHA § 12940(j), 22

23 2 This would include others who satisfy the cat’s paw rule. See Reeves v. Safeway Stores, 24 Inc.,

(2004); Judicial Council of California Civil Jury 25 Instructions (“CACI”) 2511. 3 Section 12940(a) of FEHA requires Plaintiff to prove he was member of a protected 26 class; he suffered an adverse employment action; his membership in the protected class 27 was a substantial motivating reason for defendant’s adverse action; and plaintiff was harmed and defendant’s conduct was the substantial cause thereof. 28 1 for hostile work environment harassment. The elements of this cause of action require 2 Plaintiff to prove that as an employee he was subjected to unwanted harassing conduct 3 because of his age or disability; that said conduct was so severe and pervasive that a 4 reasonable person, and the plaintiff, considered the work environment to be hostile or 5 abusive; that the supervisor either engaged in the conduct or knew or should’ve known of 6 the conduct but failed to take immediate and corrective action; and the harassing conduct 7 was a substantial factor in causing his harm. See CACI 2521A. 8 Harassment is distinguishable from discrimination under FEHA. “Discrimination 9 refers to bias in the exercise of official actions on behalf of the employer, and harassment 10 refers to bias that is expressed or communicated through interpersonal relations in the 11 workplace.” Serri v. Santa Clara Univ.,

(2014) (citations 12 omitted). Harassing conduct includes verbal harassment, such as obscene language or 13 demeaning comments. See CACI 2523. It also can involve unwanted touching, offensive 14 posters or cartoons.

Of significance, the conduct must be severe and pervasive. See 15 CACI 2524. 16 In RFP 20, Plaintiff wants 6 years of complaints of harassment. The Court has 17 reviewed the general allegations in the FAC along with the allegations in the second 18 cause of action. (Doc. 25 at 3-10, 12-16). Nowhere in the FAC does Plaintiff describe 19 what discriminatory harassing conduct he was subjected to and by whom. The relevance 20 of complaints of harassment only concern the employee(s) and/or supervisor(s) who 21 Plaintiff alleges did the harassing. RFP 20 is thusly deficient in that it fails to identify 22 who are his alleged harassers. Further, in that Plaintiff fails to provide any facts 23 indicating he was actually harassed due to his age and disability, his request for 24 complaints of harassment are collateral and not proportional to important issues in the 25 case. Gallagher need not respond. 26 g) RFP 21 27 Similar to RFPs 19 and 20, RFP 21 requests all complaints of retaliation received 28 by Gallagher for six years prior to Plaintiff’s termination. Plaintiff’s fourth cause of 1 action alleges retaliation in violation of Labor Code section 1102.5, commonly referred to 2 as Whistleblower Protection. See CACI 2730. 3 Section 1102.5 prohibits termination of an employee “for disclosing information to 4 a government or law enforcement agency, where the employee has reasonable cause to 5 believe that the information discloses a violation of a state or federal statute, or a 6 violation or noncompliance with a state or federal rule or regulation.” Carter v. 7 Escondido Union High Sch. Dist.,

(2007) (quoting 8 § 1102.5(b), (d), (e)). To prevail the Plaintiff has to prove: he was an employee who was 9 engaged in a protected activity, i.e. disclosure of a violation or noncompliance with any 10 federal or state statute, rule or regulation or the employer believed he might disclose the 11 violation to a government agency or law enforcement; the employer retaliated against the 12 employee for the disclosure to a public agency; the employee’s disclosure of information 13 was a contributing factor in the employer’s adverse employment action; and the 14 employer’s conduct was a substantial factor in causing the employee’s harm. CACI 2730. 15 The FAC alleges Gallagher retaliated against him for objecting to their failure to 16 uphold the terms of his compensation agreement and the misappropriation of his 17 commissions to another employee. (Doc. 5 at 17). Plaintiff alleges this conduct was 18 illegal. However, Plaintiff does not identify in his FAC or in his Joint Motion what 19 violation of state or federal law he claims Gallagher violated, nor does he identify to 20 which public agency he intended to report this alleged illegal conduct. He also does not 21 identify the person(s) who retaliated against him by transferring him away from his 22 department, placing him on the PIP plan, and terminating him.4 Like RFP 19 and 20, 23 RFP 21 requests 6 years of complaints of retaliation. 24 25 4 Plaintiff alleges Gallagher caused the same adverse employment actions in both his 26 FEHA discrimination claim and this retaliation claim. In other words, the people who 27 caused these adverse employment actions were motivated by both discriminatory intents based on age and disability, as well as retaliatory intent. Plaintiff has not proffered facts 28 1 RFP 21 is overbroad in that it could include both FEHA and Whistleblower 2 retaliation complaints. See Patten v. Grant Joint Union High Sch. Dist.,

4th 1378, 1386 (2005) (“[U]nder FEHA it is unlawful ‘[f]or any employer ... to 4 discharge, expel, or otherwise discriminate against any person because the person has 5 opposed any practices forbidden under the FEHA or because the person has filed a 6 complaint ... under this Act.’ [and] under Labor Code section 1102.5, subdivision (b), an 7 employer may not ‘retaliate against an employee for disclosing information to a 8 government ... agency, where the employee has reasonable cause to believe that the 9 information discloses a violation of state or federal statute.’”) (citations omitted) (quoting 10 Cal. Gov. Code, § 12940(h) and

(b)). 11 Not only does Plaintiff fail to specify under which statute he seeks this discovery, 12 he also does not explain how this discovery is relevant to his Whistleblower claim. He 13 cites Sallis v. University of Minnesota,

(8th Cir. 2005) to support RFPs 14 19-21, but that case does not stand for the proposition that a plaintiff is entitled to six 15 years’ worth of complaints anywhere at the company and as to anyone. That court found 16 that courts “have limited the discovery of company records to the local facility where 17 plaintiff was employed, where there is no showing of the need for regional or nationwide 18 discovery.”

at 478 (citing Carman v. McDonnell Douglas Corp.,

, 792 19 (8th Cir. 1997). As noted in Sallis, the Carman court found “[c]ompanywide statistics are 20 usually not helpful in establishing pretext in an employment discrimination case, because 21 those who make employment decisions vary across divisions.”

(quoting Carman, 114 22 F.3d at 792). Sallis’ discovery requests were significantly limited because they were 23 found overbroad and unduly burdensome. Id. Sallis’ requests sought university-wide 24 complaints for ten years when Sallis’ had worked in a single division for ten years and his 25 26 27 substantiating his claim that these adverse actions were substantially motivated by his 28 1 allegations were related to supervisors in that division. Id. Discovery was limited to his 2 single division and to complaints filed no more than one year prior. 3 Based on the reasoning of Sallis, RFP 21 is similarly overbroad in that it requests 4 all complaints of retaliation received by Gallagher for 6 years prior to June 27, 2019. 5 Even if narrowed to include retaliation complaints under the Whistleblower and FEHA 6 statutes, and further limited to Plaintiff’s place of employment, it would still suffer from 7 lack of reasonable particularity. The only relevant evidence of prior complaints of 8 retaliation would be those directed at Gallagher employees who made the adverse 9 employment decisions as to Plaintiff. RFP 21 asks for all complaints of retaliation, which 10 necessarily includes people who were not involved in the adverse employment action 11 decisions as to Plaintiff. 12 The Court also denies RFP 21 because the relevance is minimal given that 13 retaliation claims are generally fact specific. 14 Retaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context. 15 Accordingly, although an adverse employment action must materially 16 affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course 17 of conduct rises to the level of actionable conduct should take into 18 account the unique circumstances of the affected employee as well as the workplace context of the claim. 19

20 Yanowitz v. L’Oreal USA, Inc.,

(2005). RFP 21 encompasses 21 irrelevant collateral information. 22 As detailed above, his Whistleblower Protection claim appears to allege a contract 23 dispute is the protected activity, which by definition is not a legal violation as required. 24 The FAC does not explain how Plaintiff was going to “blow the whistle” by reporting 25 this contract dispute to a public agency. Further, there are no facts to support the bald 26 allegation that he was terminated for disclosing protected information to a public agency. 27 Given these limitations, Plaintiff’s RFP is more akin to a fishing expedition that in effect 28 1 would create an undue burden on Gallagher. RFP 21 is not proportional to the needs of 2 the case under Rule 26(b)(1). 3 h) RFP Nos. 24-27 4 Plaintiff requests all documents, including emails regarding any communications 5 of 19 employees of McGregor and Gallagher with the Plaintiff and which concerned the 6 Plaintiff. Plaintiff contends these are relevant because Gallagher alleges Plaintiff was 7 having inappropriate conduct with clients, Plaintiff was not conducting sufficient work 8 for Gallagher, and communication via emails related to Plaintiff’s work performance, 9 sales, client contact, and direction provided by supervisors. (Doc. 39 at 7-8). 10 First, the Court finds that these RFPs are facially overbroad in that they include 11 any communications, which would necessarily include topics that are not relevant to any 12 material issues. Therefore, to search for them would not be proportional to the needs of 13 the case and would create an undue burden on Gallagher. (See Doc. 40 at 9). 14 Plaintiff identifies two reasons Gallagher claimed he was being put on the PIP, 15 Plaintiff using the name of a CSO as a sales lead and Gallagher claimed Plaintiff’s sales 16 activity needed to improve. (FAC ¶ 29.) If Plaintiff is contending that the use of the 17 CSO’s name and poor sales activity were pretext to put him on the PIP, then the only 18 relevant communications under this narrowed topic would be emails regarding Plaintiff’s 19 use of this CSO’s name, emails regarding sales goals under the PIP, and emails about him 20 being placed on the PIP plan and his compliance with it. Doing sufficient work is 21 overboard, ambiguous, and not relevant unless it is narrowed. Additionally, emails from 22 19 people’s email accounts is still overbroad. Plaintiff has not identified who placed him 23 on the PIP, therefore the RFPs also lack reasonable particularity. To the extent Plaintiff 24 or Gallagher identifies who placed him on the PIP, the Court will allow limited discovery 25 on these topics but the scope must be limited to communications between Plaintiff and 26 the PIP decision maker(s), and communications by or between the decision maker(s) 27 28 1 themselves regarding Plaintiff’s allegedly inappropriate name use, his being placed on the 2 PIP plan, and about him meeting or not meeting his sales goals.5 3 Apart from the limited discovery as narrowed by the Court, these RFPs are facially 4 overbroad, not proportional to the important issues in the case and unduly burdensome to 5 Gallagher.6 The parties are to follow their agreed upon ESI procedures as regards search 6 terms. (Doc. 13 at 4-6). 7 i) RFP No. 28 8 Plaintiff is requesting “any communication and emails related to the closing of the 9 sale of VEBA product to SDUHS.” (Doc. 39 at 10). As to relevance, he claims that he 10 was wrongfully denied earned commissions for his sales. In this RFP he identifies the 11 sale of VEBA products to SDUHS for which he claims he is entitled to commissions. 12 (Doc. 39 at 9). 13 First, Plaintiff fails to address how any communication related to the sale of these 14 products has a tendency to make a fact more or less probable than it would be without the 15 evidence and how determination of the fact is of consequence in determining the action. 16 Fed. R. Evid. 401. To the extent he is asking for discovery as to his closed sales and his 17 earned commissions due, the Court has decided this issue. (See RFPs 2 and 16). Apart 18 from commissions due for his closed sales, Plaintiff has not specified what fact of 19 consequence these emails would have a tendency to prove. 20 Although not addressed by Plaintiff in support, his breach of contract cause of 21 action refers to his being entitled to the commission for the SDUHSD account because he 22 was instrumental in securing the business for Gallagher in September of 2018. The 23

24 25 5 Gallagher has proffered that of the 19 employees listed by Plaintiff, only two were Plaintiff’s supervisors. The Court limits this order to these two supervisors. If others 26 terminated Plaintiff for lack of sales, then they are also included in this order. Further, the 27 Parties are to search following their protocol (Doc. 13 at 4) and the terms should be consistent with this order. 28 1 account had an effective date of January 1, 2019. (Doc. 25 at 12). It appears Plaintiff is 2 alleging that even though he did not close the deal, since he established a relationship 3 with key personnel at SDUHSD, and continued to contact them, he should be entitled to 4 the commission for this account. (See id. at 25). 5 This allegation concerns what constitutes a sale under the contract(s) he signed 6 with Gallagher for which he would be entitled to commissions. In his FAC he identifies 7 his contract with McGregor that covered commissions for his sales. (Doc. 11 at 30). 8 However, Plaintiff has not identified the provisions of the contract that define what 9 constitutes a sale. He does not explain how emails regarding the sale of these VEBA 10 products to this SDUHS go to prove or disprove whether he should be credited for this 11 sale as that term is defined under the contract(s) he signed. Plaintiff fails to meet his 12 burden to show relevancy. 13 Apart from his failure to show the discovery sought is relevant, the Court denies this 14 RFP as being overbroad and not proportional to this case. This RFP is facially overbroad. 15 It includes any communications between unidentified persons over an undefined time 16 frame relating to the closing sale of VEBA products. And given the Court’s order regarding 17 RFPs 2 and 16, such discovery would be unreasonably duplicative and cumulative. Finally, 18 it would also place an undue burden on Gallagher.7 For these reasons RFP 28 is denied. 19 “District courts have broad discretion in controlling discovery” and “in determining 20 relevancy.” Laub v. Horbaczewski,

, 521 (C.D. Cal. 2019) (citing Hallett 21 v. Morgan,

(9th Cir. 2002) and Surfvivor Media, Inc. v. Survivor Prods., 22

(9th Cir. 2005)). 23 /// 24 /// 25 26 27 7 The Court adopts Gallagher’s proffer on this issue in its Joint Statement. (Doc. 40 at 28 1 j) RFP No. 29 2 This RFP is denied for the same reasons given in the denial of RFP 28. 3 k) RFP No. 35 4 RFP 35 requests all documents related to any sales made by Gallagher to any 5 potential clients identified by Plaintiff as of his termination. It appears Plaintiff is arguing 6 this is relevant because he should be credited for commission purposes. He has not cited 7 to any contract provision which regards what constitutes such a sale. From Plaintiff’s 8 allegations in his breach of contract claim, as addressed in RFP No. 28, it appears Plaintiff 9 alleges he is entitled to commissions for sales made by Gallagher but which were referred 10 by Plaintiff. Assuming relevancy, from their Joint Statements Plaintiff has narrowed this 11 RFP to which Gallagher has agreed. (Doc. 39 at 11-12; Doc. 40 at 13). Gallagher requests 12 this RFP be under a protective order. Plaintiff has not addressed this issue. 13 Notwithstanding, both parties have already agreed to a stipulated protective order which 14 would cover Gallagher’s concerns. (See Doc. 13 at 3). Therefore, the Court orders the 15 parties to abide by their joint discovery plan as regards this stipulated protective order. 16 Further, in that Gallagher agrees to respond to Plaintiff’s modified RFP, the Court orders 17 Gallagher to respond to this RFP as modified by Plaintiff. 18 2. Interrogatories 19 “An interrogatory may relate to any matter that may be inquired into under Rule 20 26(b).” Fed. R. Civ. P. 33(a)(2). “Each interrogatory must, to the extent it is not objected 21 to, be answered separately and fully in writing under oath.” Rule 33(b)(3). “The grounds 22 for objecting to an interrogatory must be stated with specificity.” Rule 33(b)(4). The 23 party propounding the interrogatory may move to compel an answer if the party fails to 24 answer. Rule 37(a)(3)(B)(iii). 25 a) ROGS Nos. 2-3 26 Both of these ROGs request the total amount of revenue generated from sales made 27 by Gallagher. Plaintiff asserts that these ROGs are clearly relevant because he claims he 28 was denied commissions from his sales. He also states he was terminated for his failure to 1 || generate sales and revenue. (Doc. 39 at 13). Of note, Plaintiff does not proffer facts which 2 ||indicate that he was terminated for his failure to generate revenue. In his FAC he 3 ||consistently alleges he is owed commissions due on his sales. Further, he consistently 4 || alleges he was terminated for his inability to meet quarterly sales goals per the PIP plan. 5 ||No where in his FAC does he even mention revenue. 6 Besides not meeting his burden of showing the relevance of these ROGs the term 7 || “revenue” and “generated” are not defined. In this aspect they are vague and could include 8 ||collateral and irrelevant discovery. The Court otherwise adopts its order for RFP 17. 9 C. Privilege Log 10 Plaintiff requests Gallagher provide a privilege log. (Doc. 39 at 14). Gallagher does 11 address the issue. The Court refers the parties to their discovery plan regarding their 12 agreement for issues regarding claims of privilege. (Doc. 13 at 6). The parties are ordered 13 comply by their agreement. To the extent they cannot resolve the matter, then they 14 || should follow the Chambers Rules. 15 CONCLUSION 16 The parties’ discovery disputes are resolved as set forth above. Where the Court 17 ||has ordered Gallagher to respond further, responses and responsive documents must be 18 || provided by November 17, 2020. 19 IT IS SO ORDERED. 20 || Dated: November 3, 2020 : p / / 1 on. Bernard G. Skomal 22 United States Magistrate Judge 23 24 25 26 27 28 16