1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 JENNIFER TOM, Case No. 19-cv-06322-JST (RMI)

9 Plaintiff, ORDER RE: DISCOVERY DISPUTE 10 v. Re: Dkt. No. 83 11 ANDREW SAUL, 12 Defendant.

13 14 Now pending before the court is a jointly filed letter brief (dkt. 83) setting forth a 15 discovery dispute that boils down to Plaintiff’s request to compel the production of certain 16 documents pertaining to a facet of the job description for a position in which she was formerly 17 employed. For the reasons stated below, Plaintiff’s request is denied.1 18 Plaintiff, who previously worked as a Benefit Authorizer for the Social Security 19 Administration (“SSA”), has sued her former employer for employment and disability 20 discrimination. See generally Amend. Compl. (dkt. 46) at 1-156. Plaintiff alleges that her former 21 employer failed to accommodate her “known disabilities and medical needs” in that she required a 22 fragrance-free and chemical-free workplace while employed at the SSA between 2008 and 2018, 23 but and that her requests for frequent teleworking from home were denied, at least in part, on 24 grounds that Plaintiff’s job duties included answering the SSA’s telephone systems on days with 25 unusually high call volumes (otherwise known as “Spike” days) – a job function which could not 26 be performed from offsite locations due to the onsite telephone equipment required to answer 27 1 SSA’s incoming phone calls. See id.; see also Ltr. Br. (dkt. 83) at 2-6. In its Answer to Plaintiff’s 2 Amended Complaint, Defendant initially contended that “part of a Benefit Authorizer[’]s job 3 duties included assisting the agency’s teleservice centers by answering SSA’s 1-800 number on 4 occasions that the agency expected to receive an elevated number of calls (i.e., ‘spike’ days).” See 5 Answer (dkt. 47) at 4-5. However, Defendant has now changed the course of its defense by 6 confirming that “[t]he SSA does not intend to raise SPIKE as a defense in this litigation . . . [a]s 7 such, burdensome discovery concerning SPIKE is no longer relevant.” See Ltr. Br. (dkt. 83) at 5. 8 Plaintiff’s arguments in support of her continued desire to receive documents and 9 information relating to this issue seem to be based on her mistaken impression that Defendant is 10 attempting to trick her into forgoing discovery on this issue only to surprise her with this defense 11 at trial. See id. at 2-4. In essence, the gist of Plaintiff’s dissatisfaction with Defendant’s concession 12 seems to be rooted in Plaintiff’s focus on Defendant’s fluctuation between the use of past and 13 present tense when explaining that the SSA “will not argue that SPIKE duties, which generally 14 cannot be performed remotely, are an essential function of her job.” Id. at 5 (emphasis added). 15 According to Plaintiff, who is not currently employed by the SSA, Defendant’s use of the present 16 tense in some of the statements found in the Parties’ jointly filed letter brief is indicative of some 17 sort of trickery because, as Plaintiff puts it, “Defendant[’]s current offer to admit that as of 2021[,] 18 SPIKE is not an essential function is useless to Plaintiff because Plaintiff was employed in 2008 19 and wrongfully terminated in 2018[,] well before 2021.” Id. at 4. However, Plaintiff’s focus on 20 Defendant’s occasional use of the present tense overlooks Defendant’s other statements that 21 unequivocally indicate Defendant’s commitment not to raise this issue at all in the course of this 22 case. In this regard, Defendant has repeatedly stated that the SSA will not claim that answering the 23 phone on spike days was part of Plaintiff’s job duties: (1) “Defendant will not argue that SPIKE 24 duties, which generally cannot be performed remotely, are an essential function of her job” (the 25 use of the personal pronoun, “her,” necessarily refers to the job that Plaintiff had, during the 26 period in which Plaintiff had the job); (2) Defendant clearly states that “[t]he SSA does not intend 27 to raise SPIKE as a defense in this litigation . . . Benefit Authorizers do not currently perform 1 Thus, Plaintiff should rest assured that there is no trickery at play here. Instead, Plaintiff should 2 view this concession as a victory of sorts because Defendant has effectively reduced the number 3 || of defenses that can be raised in response to the allegations in Plaintiff's Amended Complaint. 4 A party seeking to compel discovery has the initial burden of establishing that the request 5 satisfies the relevancy requirements of Fed. R. Civ. P. Rule 26(b)(1). See e.g., In re Glumetza 6 || Antitrust Litig., No. 19-cv-05822-WHA (RMD),

, at *31 (N.D. Cal. 7 June 29, 2020); see also Soto v. City of Concord,

(N.D. Cal. 1995). 8 Furthermore, while Rule 26(b) is quite broadly phrased, it does limit discovery to those non- 9 || privileged matters that are “relevant to any party’s claim or defense,” meaning that relevance is 10 || tethered to the claims and defenses in the parties’ pleadings. See In re Flash Memory Antitrust 11 || Litig., No. C 07-0086 SBA,

, at *27 (N.D. Cal. Dec. 24, 2007). 12 || Accordingly, because Defendant has now committed to the abandonment of its defense that 13 || Plaintiffs “spike” duties precluded accommodating her proposed teleworking accommodations, 14 || the requested discovery pertaining to this issue is no longer relevant to any of Defendant’s 2 15 defenses (nor has Plaintiff established its independent relevance to any of the claims in her a 16 || operative complaint) — and, for that reason, Plaintiff's request to compel the production of this 2 17 material must be DENIED. S 18 Counsel for Defendant is ORDERED to promptly serve this Order on Plaintiff via 19 electronic mail pursuant to the Parties’ agreement to that effect (see dkt. 81). 20 IT IS SO ORDERED. 21 Dated: April 6, 2021 22 Mt Z 23 RQBERT M. ILLMAN 24 United States Magistrate Judge 25 26 27 28