Preview
1 JOSHUA S. FALAKASSA (SBN: 295045)
FALAKASSA LAW, P.C.
2 1901 Avenue ofthe Stars Suite # 450
3 Los Angeles, Califomia 90067
Tel.: (818) 456-6168; Fax: (888) 505-0868
4 Email: josh@falakassalaw.com FILEO/EIDOKEO
5 ARASH S. KHOSROWSHAHI (SBN: 293246)
6 LIBERTY MAN LAW, P.C.
AUG - 3 2022
1010 F Street, Ste. 300
7 Sacramento, Califomia 95814 By: H. PEMELTON
Deputy Clerk
Tel.: (916) 573-0469; Fax: (866) 700-0787
8 Email: ash@libertymanlaw.com
9
Attomeys for Plaintiff,
10 SAJIDA ZAMAN
11 SUPERIOR COURT OF CALIFORNIA
12
COUNTY OF SACRAMENTO
13
14 SAJIDA ZAMAN, CASE NO.: 34-2019-00252121
RESERVATION ID: 2664202
15 Plainfiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
16 vs. MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF SAJIDA
17 LIQUI-BOX CORPORATION, and DOES 1 ZAMAN'S REQUESTS FOR
through 20, inclusive.
PRODUCTION OF DOCUMENTS, SET
18 FOUR, AND MONETARY SANCTIONS
Defendants.
19
Date: October 18, 2022
20 Time: 1:30pm BY FAX
Dept.: 53
21 Trial Date: September 12, 2022
22 INTRODUCTION
23 Plaintiff Sajida Zaman ("Plaintiff') brings this instant Motion to Compel seeking discovery
24 sanctions after having attempted to meet and confer as to Defendant Liqui-Box Corporation's
25 ("Defendant") objections without responses with no luck.
26 Plaintiff alleges she was terminated after reporting her work-related injury in violation oi
27 the FEHA, public policy, and the UCL. Plainfiff alleges that her supposed violafion of Defendant's
28 Critical Safety Behaviors ("CSB") policy, which requires employees to immediately report all
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1 incidences, including work-related injuries, or else face immediate terminafion, was used
2 pretextually against her to terminate her for her disabilities and work-related injury. As part ol
3 Plaintiff reporting her work-related injury. Defendant needed to complete certain OSHA
4 recordable injury documents ("OSHA logs") by law.
5 Plaintiff propounded her Requests for Production of Documents, Set Four, on or about May
6 18, 2022, making three requests asking for all documents comprising Defendant's OSHA logs
7 detailing any injury/illness at its Sacramento Facility. This proceeded over a month of requesting
8 the OSHA logs per OSHA regulations via letter, which Plaintiff as a former employee has a right
9 to by law. But rather than respond to the requests. Defendant provided only objections. PlaintiflTs
10 counsel met and conferred on the objections, making some offers of compromise and clarifying
11 scope, but ultimately Defendant's counsel did not get back to Plaintiff prior to the motion to
12 compel/discovery cutoff deadlines.
13 Defendant's objections are without merit and/or too general to allow refiisal to respond to
14 the interrogatories. Plaintiff fiirther has good cause to request the documents, as they will show
15 whether Defendant's proffered business justification for terminating her for not immediately
16 reporting her injury is pretext, especially if the logs indicate contradictory information as to
17 Plaintiffs injury than what Defendant's documents used to terminate Plaintiff state. Given
18 Defendant's history of misuse of the discovery process and failure to meet and confer in good
19 faith, monetary sanctions are also warranted.
20 With the motion to compel deadline and discovery cutoff fast approaching. Plaintiff files
21 the instant Motion and respectfiilly requests that this Court GRANT her Motion in its entirety.
22 H. STATEMENT OF FACTS
23 A. Plaintiff Sustained Work-Related Injuries and Disabilities to her Knee While
24 on the Job but was Terminated for Allegedly Not Reporting Immediately.
25 Plaintiff alleges in her First Amended Complaint for Damages and Injunctive Relief
26 ("FAC") filed on January 24, 2020, that she was originally hired as a "Packer" at Defendant's
27 liquid bad manufacturing center in Sacramento in December 2003 and was eventually promoted
28 to "Inspector-Packer" (FAC, 16.) Plaintiff s job duties included packing and inspecting bags and
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1 other labor-intensive tasks, requiring her to stand for long periods of time and lift/haul heavy loads
2 over 16 years of employment. (Id.)
3 On or about December 3, 2018, Plaintiff suffered an injury to her left knee while working
4 for Defendants, and over time her knee stiffness tumed into consistent and considerable pain. (Id.,
5 I 7.) Plaintiff first became aware her pain was a work-related knee injury on or about January 3,
6 2019, which was when she reported it to Defendant to seek treatment and begin her worker's
7 compensation claim. (Id.) Defendant's human resources department sent Plainfiff for medical
8 examination to the workers compensation medical provider and monitored the examination
9 without PlainfifPs consent. (Id., | 8.)
10 Thereafter, Plaintiff was instmcted by Defendant to go home until fiirther notice but was
11 then summoned back for a work meefing on January 10,2019. (Id., ^ 9.) At the meeting Plainfiffs
12 16 years of employment was terminated because she allegedly "neglected to report [her] injury
13 timely" in violation of Defendant's Critical Safety Behaviors ("CSB") policy, which states in
14 relevant part, "Immediately report all incidents to your supervisor, management team member no
15 matter how minor or without exception," and that "[a]ny violation of these Critical Safety
16 Behaviors will result in immediate termination of employment." (Id.)
17 Based on these allegations. Plaintiff alleges she was terminated because of her work-related
18 injuries and disabilities, with the CSB policy used as pretext. (Id., ^ 10.) Plaintiff brings causes of
19 action for (1) Wrongful Termination in Violation of Public Policy; (2) Retaliation in Violation of
20 Public Policy; (3) Disability Discrimination in Violation of FEHA; (4) Failure to Engage in the
21 Interactive Process in Violation of FEHA; (5) Failure to Provide a Reasonable Accommodation in
22 Violation of FEHA; (6) Intenfional Infliction of Emofional Distress; and (7) Unfair Competition
23 Law.(M,ini 19-64.)
24 B. Plaintiff Requested Defendant's Current or Stored OSHA Logs via Letter as
25 was Her Right Under OSHA Regulations.
26 On May 3, 2022, counsel for Plaintiff sent counsel for Defendant a letter requesting
27 Defendant's OSHA 300 Logs and annual summaries of recordable occupational injuries and
28 illnesses from 2017 to 2022, as well as OSHA 301 Incident Reports describing any and all injuries
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1 or illnesses to Plainfiff. (Declaration of Arash Khosrowshahi in Support of Motion to Compel
2 Further Responses to Plainfiff Sajida Zaman's Requests for Producfion of Documents, Set Four,
3 and Monetary Sanctions ["Khos Decl."], | 3; attached as Exhibit A is a tme and correct copy of
4 the May 3, 2022 letter.) Per 29 CFR § 1904.35(b)(2), employers must provide former employees
5 and their authorized representatives all retained OSHA injury and illness records within the next
6 business day without redactions. (Id., subds. (b)(2)(iii)-(v).)
7 Rather than simply provide the requested logs by the next business day. Defendant's
8 counsel began his oft-employed tacfic of delay and obstmction. On May 5, 2022, Defendant's
9 counsel requested written authorizationfromPlaintiff, and attempted to limit the scope of the
10 productionfromwhen Plaintiff was terminated in 2019 onward. (Khos Decl., | 4; attached as
11 Exhibit B is a tme and correct copy of the May 5 through 9, 2022 meet and confer emails.)
12 Plaintiffs counsel responded that day claiming that Plaintiff was entitled to all "current or stored
13 OSHA logs with no limitation in the regulation as to the date employment ended. (Khos Decl., 1
14 4; see Exhibit B.)
15 However, by May 9, 2022, Defendant's counsel had still not provided the documents, and
16 instead continued to quibble about the scope of the regulation, claiming the production of the
17 records should be limited to what was "relevant", and that he would only provide logs from 2019
18 onward. (Khos Decl., ^ 5; see Exhibit B.) Plaintiffs counsel responded that day arguing that
19 Defendant was already late in its production and cited no law in support of its position. (Khos
20 Decl., I 5; see Exhibit B.) Instead, Defendant's counsel went down an interpretative rabbit-hole,
21 claiming that Plaintiff was requesting records as far back as 20 years, and that the scope of the
22 regulation was not that broad. (Khos Decl., | 5; see Exhibit B.) Plaintiffs counsel responded that
23 Defendant's counsel was quibbling about the term "relevant" when it simply meant "current or
24 stored" logs, and that he was creating false limitations on Plaintiffsrights.(Khos Decl., ^ 5; see
25 Exhibit B.)
26 Then Defendant's counsel engaged in hypotheticals, asking if an 18-year-old employee
27 who worked for an employer one day could request OSHA logs as far back as 50 years. (Khos
28 Decl., I 6; see Exhibit B.) Plaintiffs counsel responded in detail, citing OSHA's own standard
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1 interpretation ofthe regulation requiring the disclosure of all current and stored OSHA logs, but
2 Defendant's counsel continued to bicker about the scope of the regulation going into the past
3 forever. (Khos Decl., 16; see Exhibit B.) Plaintiffs counsel responded that per OSHA regulations
4 employers were only supposed to keep such logs for afive-yearperiod, and that Plaintiff was
5 entitled to any logs Defendant had, regardless of when they were drafted—^thus. Defendant's
6 counsel was simply "making things up." (Khos Decl., ^ 6; see Exhibit B.)
7 Thereafter Defendant produced a piecemeal version of the logs, which was missing OSHA
8 Form 300 for years 2019 through 2021, OSHA 300a logs, and OSHA Form 301 Incident Reports.
9 (Khos Decl., | 7; attached as Exhibit C is a tme and correct copy of the piecemeal production;
10 attached as Exhibit D are counsel's communications re: the production being piecemeal and late.)
11 C. Plaintiff Sent Formal Discoverv as to the OSHA Logs Given Defendant's
12 Gamesmanship, But Defendant Continued to Delay and Served Only
13 Objections.
14 Not tmsting Defendant's piecemeal production, and given Defendant's history of
15 gamesmanship. Plaintiff thereafter served her Requests for Production of Documents, Set Four, on
16 or about May 18, 2022, asking for all documents compromising Defendant's (1) OSHA 300
17 (Request for Production of Documents, Set Four, No. 1), (2) OSHA 300a (Id., No. 2), and (3)
18 OSHA 301 (Id., No.3) at its Sacramento facility where Plaintifif worked. (Khos Decl., 18; attached
19 as Exhibit E is a tme and correct copy of Plaintiff Sajida Zaman's Requests for Production of
20 Documents to Defendant LiquiBox, Inc., Set Four (4).)
21 While waiting for Defendant's responses, on June 15, 2022 Plaintiffs counsel sent a
22 follow-up email as to the status of Plaintiff s OSHA 301 Incident Log related to her work-related
23 injury leading to her termination of employment. (Khos Decl., 19; attached as Exhibit F is a tme
24 and correct copy of counsel's June 15 meet and confer emails.) Defendant's counsel responded
25 that Defendant could notfindit and continued to make arguments about how the document would
26 not state anything different than other documents in the matter, causing further delay and
27 obstmction. (Khos Decl., ^ 4; see Exhibit F.)
28
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1 On June 20, 2022, Plaintiffs counsel followed up on when the OSHA logs would be
2 produced, to which Defendant's counsel repeated that the only one not sent was Plaintiffs OSHA
3 301 log. (Khos Decl., T[ 10; attached as Exhibit G is a tme and correct copy of counsel's June 20
4 to July 12 meet and confer emails.)
5 Thereafter, on or about June 21,2022, rather than provided responses. Defendant continuedj
6 its obstmction by serving only objections to Plaintiffs interrogatories. (Khos Decl., 111; attached
7 as Exhibit H is a tme and correct copy of Defendant Liqui-Box Corporation's Response to
8 Plaintiffs Request for the Inspection and Production of Documents and Other Things, Set Four.)
9 The objections were that the Requests: (1) were vague and ambiguous (Response to Request foi
10 Production of Documents, Set Four, Nos. 1-3); (2) overbroad (Id.); (3) irrelevant/not calculated to
11 lead to the discovery of admissible evidence (Id.); (4) were protected by the attomey-client
12 privilege/attomey work-product doctrine (Id.); and (5) were protected by therightto privacy. (Id)
13 (Khos Decl., 111; see Exhibit H.)
14 D. Plaintiff Could Not Informally Resolve the Issues via the Meet and Confer
15 Process.
16 On June 22, 2022, Plaintiff sent a detailed, seven-page meet and confer letter arguing why
17 each and every objection to the Requests were without merit. (Khos Decl., II 12; attached as
18 Exhibit I is a tme and correct copy of the June 22, 2022 meet and confer letter.) Not having heard
19 from Defendant, on July 8, 2022 counsel sent follow-up emails as to Defendant's incomplete and
20 late production ofthe OSHA logs and lack of meet and confer response. (Khos Decl., Tl 12; see
21 Exhibit G and Exhibit I.)
22 In response to the logs requested in Plaintiffs original May 3, 2022 letter. Defendant's
23 counsel incredulously asked what was still outstanding, despite it being Defendant's obligation to
24 maintain the records. (Khos Decl., ^ 13; see Exhibit G.) Once again Plaintiffs counsel reiterated
25 that the OSHA 300 Logs of Work Related Injuries/Illnesses for 2017-2021 and all OSHA 301
26 Incident Reports, including PlaintifPs, from 2017-2021 were missing. (Khos Decl., | 13; see
27 Exhibit G.) Defendant's counsel then responded once again that Plaintiff was only entitled, and
28 Defendant would only produce, logs during Plaintiffs employment period, in clear contravention
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1 of the OSHA regulation met and conferred about a month prior. (Khos Decl., t 13; see Exhibit
2 G.) PlaintifPs counsel once again cited OSHA's standard interpretation of its own regulations thai
3 Plaintifif was entitied to all "current and stored" logs. (Khos Decl., f 13; see Exhibit G.)
4 Defendant's counsel then went back to his hypothetical scenarios, arguing that PlaintifPs counsel's
5 interpretation was too broad because a hypothetical employee could request records 80 years into
6 the future. (Khos Decl., f 13; see Exhibit G.) PlaintifPs counsel responded that he was simply
7 citing OSHA's own interpretation documents, and that Defendant's counsel's hypothetical
8 scenarios were contrived and missed the point, and further even offered to compromise that names
9 and contact information be redacted to alleviate privacy concems. (Khos Decl., ^13; see Exhibit
10 G.) Then Defendant's counsel argued that Plaintiff was only entitled to her OSHA logs, not the
11 logs of other employees, and that either her logs no longer existed or could not be located. (Khos
12 Decl., H 13; see Exhibit G.)
13 In response to the June 22, 2022 meet and confer letter. Defendant's counsel responded
14 July 10, 2022, arguing that Request for Production No. 1 was overbroad as time and scope
15 interpreting "documents comprising OSHA logs" to mean the OSHA logs, and once again limiting
16 production to the period of PlaintifPs employment. (Khos Decl., 114; see Exhibit I.) Defendant's
17 counsel further maintained the documents were produced, without addressing the separate point
18 that no verified responses were provided. (Khos Decl., f 14; see Exhibit I.) Defendant's counsel
19 made similar arguments as to Request Nos. 2 and 3, and also argued there were privacy concems
20 implicated given potential third-party employee disclosures of injuries and illnesses. (Khos Decl.,
21 1 14; see Exhibit I.) On July 29, 2022, Plaintiffs counsel clarified that Plaintifif wanted all of
22 Defendant's documents related to the OSHA logs, including each of Defendant's interna
23 investigation forms (the "AS 1059" and "4 Panel EHS Disciplinary Review") completed when such
24 OSHA logs were also completed in tandem. (Khos Decl., ^ 14; see Exhibit I.) On August 1, 2022
25 Plaintiffs counsel sent a follow up email, stating the motions to compel deadlines were fast
26 approaching, and given discovery motions seeking sanctions against Defendant already filed as to
27 other discovery requests he hoped the parties could come to an agreement to resolve the
28
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1 outstanding issues. (Khos Decl., | 14; see Exhibit I.) But as of this writing no response was
2 provided. (Khos Decl., ^ 14.)
3 With the motion to compel and discovery cutoff dates fast approaching, and having
4 exhausted her meet and confer obligations. Plaintiff brings this Motion seeking sanctions.
5 III. ARGUMENT
6 Under Code of Civil Procedure § 2031.310(a)(3), a party may move for an ordei
7 compelling further response to a demand if a "An objection in the response is without merit or too
8 general." Such a motion must show specific facts showing good cause justifying the discovery
9 sought by the demand and include a meet and confer declaration. (Id., subd. (b)(l)-(2).)
10 A. Defendant's Objections are Without Merit/Too General.
11 Vague & Ambiguous: this is a nuisance objection which is disfavored by the Courts.
12 "Indeed, where the question is somewhat ambiguous, but the nature of the information sought is
13 apparent, the proper solution is to provide an appropriate response." (Deyo v. Kilbourne (1978) 84
14 Cal. App. 3d 771, 783.) "[C]omprising OSHA 300 logs detailing any injury/illness" (No. 1),
15 "comprising OSHA 300a logs detailing any injury/illness" (No. 2), and "comprising OSHA 301
16 logs detailing any injury/illness" (No. 3) are not vague and ambiguous clauses, and given
17 Defendant's own legal requirements to maintain such logs per 29 CFR § 1904.35(b)(2), h knows
18 precisely what Plaintiff is asking for. Defendant's steadfast refusal to hide behind this objection,
19 especially after having met and conferred for the better part of three months on this issue, is made
20 in bad faith.
21 Overbroad: This objection is also without merit. There is nothing overbroad about
22 requesting Defendant's Sacramento facility OSHA logs, which Defendant by law must maintain
23 and provide to us per 29 CFR § 1904.35(b)(2). Recall that this regulation represents that "Yes
24 your employees, former employees, their personal representatives, and their authorized
25 employee representatives have the right to access the OSHA injury and illness records....'
26 (emphasis added) within the next business day. (Id., subd. (b)(2)(iii), (b)(2)(v)(A).) Defendant's
27 illegal and unjustified delay in providing all of its OSHA logs, which it should as a matter of course
28 be maintaining, is in no way overbroad.
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1 Relevance/Not Calculated to Lead to the Discoverv of Admissible Evidence: Defendant
2 should be aware that Code of Civil Procedure § 2017.010 states that "any party may obtain
3 discovery regarding any matter, not privileged, that is relevant to the subject matter involved
4 in the pending action or to the determination of any motion made in that action, if the matter
5 either is itself admissible in evidence or appears reasonably calculated to lead to the
6 discovery of admissible evidence. Discovery may relate to the claim or defense of the party
7 seeking discovery or of any other party to the action. Discovery may be obtained of the identity
8 and location of persons having knowledge of any discoverable matter, as well as of the existence,
9 description, nature, custody, condition, and location of any document, electronically stored
10 information, tangible thing, or land or other property." (emphasis added.)
11 Indeed, "For the guidance of the trial courts the proper mle is declared to be not only one
12 of liberal interpretation, but one that also recognizes that disclosure is a matter of right unless
13 statutory or public policy considerations clearly prohibit it." (Greyhound Corp. v. Superior
14 Court (1961) 56 Cal.2d 355, 378)(emphasis added.) The purposes of discovery are "(1) to give
15 greater assistance to the parties in ascertaining the truth and in checking and preventing
16 perjury; (2) to provide an effective means of detecting and exposing false, fraudulent and
17 sham claims and defenses; (3) to make available, in a simple, convenient and inexpensive
18 way, facts which otheiTvise could not be proved except with great difficulty: (4) to educate
19 the parties in advance of trial as to the real value of their claims and defenses, thereby
20 encouraging settlements: (5) to expedite litigation; (6) to safeguard against surprise; (7) to
21 prevent delay: (8) to simplify and narrow the issues: and, (9) to expedite and facilitate both
22 preparation and trial. Certainly, it can be said, that the Legislature intended to take the *game'
23 element out of trial preparation while yet retaining the adversary nature of the trial itself.'
24 (Greyhound Corp., 56 Cal. 2d at 376)(emphasis added.)
25 Plaintiffhas broadrightsto discovery, which includes obtaining Defendant's OSHA logs
26 reflecting any injury or illness at the Sacramento facility. Indeed, given Plaintiffs UCL cause of
27 action that Defendant's Critical Safety Behavior's policy facially violates OSHA reasonable
28 reporting regulations, and given that her FEHA disability/wrongfiil termination causes of action
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1 surround her pain and injury incurred at work, it is absurd to suggest these OSHA injury/illness
2 logs are in no way relevant. By objecting without responding. Defendant is only preventing
3 ascertainment of the tmth about the merits of Plaintiffs claims; preventing determination of
4 whether Defendant's proffered "business justification" that Plaintiff was terminated for reporting
5 her pain late is nothing more than a sham and pretext; preventing convenient and inexpensive
6 discovery from moving forward; preventing educating the parties on the value of theii
7 claims/defenses; and only serves to further delay the case and grind the litigation to a standstill
8 when trial is fast approaching. Plaintiff will not tolerate Defendant's gamesmanship. Defendant
9 must participate in good faith.
10 Attorney-Client Privilege/Attorney Work Product: these Requests seek OSHA logs which
11 Defendant must provide to Plaintiff as a former employee by law per 29 CFR § 1904.35(b)(2).
12 This in no way implicates any attomey-client privileged documents or work product, and is an
13 objection made solely in bad faith.
14 Right to Privacy of Third Parties: this objection is likewise absurd. 29 CFR §
15 1904.35(b)(2)(iv) provides the general mle: "May 1 remove the names of the employees or any
16 other informationfromthe OSHA 300 Log before 1 give copies to an employee, former employee,
17 or employee representative? No. you must leave the names on the 300 Log." (emphasis added.)
18 Insofar as employee names have already been recorded in the requested logs. Defendant must now
19 provide the logs.
20 B. Good Cause Exists for Plaintiff to Request OSHA Logs and Related
21 Documents.
22 Importantly, after Plaintiff reported her knee pain on January 3, 2019, Defendant hac
23 Plaintiff complete a AS 1059 investigation report. (Khos Decl., ^15; attached as Exhibit J is a tme
24 and correct copy of PlaintifPs AS1059 investigation report.) Subsequently, Defendant's Managei
25 of Human Resources, along with Chief Operating Officer Andrew McLeland and Chief Human
26 Resources Officer Angela Kenyon and supervisor Ken Villani, all emailed one another about how
27 PlaintifPs injury would be an OSHA recordable injury for 2018, and how they would push back
28 against Plaintiffs workers compensation claim, as they were claiming PlaintifPs injury was first
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1 known to Plainfiff December 3, 2018, not January 3, 2019. (Khos Decl., H 15; attached as Exhibit
2 K is a tme and correct copy of the January 3, 2019 emails between Defendant's management
3 discussing Plaintiffs work-related injury.) Defendants then used their intemal "4 Panel EHS
4 Disciplinary Review" to claim Plaintiff was diagnosed with a knee and hamstring sprain, and to
5 claim Plaintiff reported her injury late, as pretextual justification for terminating her employment
6 for not reporting her injury immediately per the CSB policy. (Khos Decl., 115; attached as Exhibit
7 L is a tme and correct copy of PlaintifPs 4 Panel EHS Disciplinary Report.)
8 Thus, it is important to review how Defendant documented PlaintifPs recordable injury in
9 its OSHA logs to see whether there were any inconsistencies as to the way Defendant described
10 Plaintiffs injuries, or inconsistencies as to the date the injury was reported as recordable (i.e
11 December 3,2018 or January 3,2019). For example, if Defendant called PlaintifPs injury a strain
12 rather than a sprain in its OSHA logs compared to its 4 Panel EHS Disciplinary Review
13 respectively, or recorded Plaintiffs injury as occurring January 3, 2019 rather than December 3,
14 2018 respectively, good cause exists to see those discrepancies. (Khos Decl., 1 16; attached as
15 Exhibit M is a tme and correct copy of Plaintiff s workers compensation medical records dated
16 January 3, 2019 diagnosing her with strain, not sprain, injuries, and compare with Exhibit L
17 characterizing the injury as a sprain.) It is also important to see what OSHA logs, AS 1059 forms,
18 and 4 Panel EHS Disciplinary Review documents exist for other employees who Defendant claims
19 neglected to report their injuries immediately per the terms of the CSB policy, and to compare
20 those to employees with OSHA logs for work-related injuries where AS 1059 and 4 Panel EHS
21 Disciplinary Review documents were not completed, i.e., for employees who were not disciplined
22 or terminated for reporting their injuries. This will all go towards showing Defendant's intent to
23 discriminate against injured and disabled employees such as Plaintiff by reporting different
24 versions of events between its own intemal documents versus the OSHA logs Defendant is
25 required to accurately maintain by law, while using its intemal discipline processes as pretext.
26 C. Plaintiff Adequately Met and Conferred Before Filing the Motion.
27 Plaintiffs counsel's meet and confer declaration is attached to this Motion, and Plaintiffs
28 efforts to resolve these issues informally was discussed in Section II supra. Plaintiff exhausted her
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1 meet and confer obligations and had no choice but to file this Motion. (See also Section III.D
2 infra.)
3 D. Defendant is Subject to Monetary Sanctions for Misuse of the Discovery
4 Process by Providing Meritless Objections and Failing to Meet and Confer in
5 Good Faith.
6 Discovery is meant to be a self-executing process. (Clement v. Alegre (2009), 177 Cal
7 App. 4'*' 1277, 1281.) Misuse of the discovery process includes (1) making without substantial
8 justificafion an unmeritorious objection to discovery; and (2) failing to confer with an opposing
9 party in a reasonable and good faith attempt to resolve informally any dispute conceming
10 discovery. (Code Civ. Proc. § 2023.010(e), (i).) Such misuse is subject to monetary sanctions in
11 the form of reasonable attomey's fees. (Id. §§ 2023.020, 2023.030(a), 2031.310(h).) Further, a
12 separate sanction of $250 may be imposed on a party which does not respond in good faith to a
13 request for production of documents, nor meet and confers. (Id., § 2023.050(a)(1), (3).)
14 Meeting and conferring requires there be a serious effort at negotiation and informal
15 resolution. The law requires that counsel attempt to talk the matter over, compare their views,
16 consult, and deliberate. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218
17 Cal.App.4th 853, 879.) In discussing the sufficiency of the meet and confer efforts, the court in
18 Stewart v. Colonial Western Agency (2001) 87 Cal.App.4th 1006, 1016 held:
19 "A determination of whether an attempt at informal resolution is adequate ... involves the
20 exercise of discretion. The level of effort at informal resolution which satisfies the
21 'reasonable and good faith attempt' standard depends upon the circumstances. In a larger,
22 more complex discovery context, a greater effort at informal resolution may be warranted
23 In a simpler, or more narrowly focused case, a more modest effort may suffice. The
24 history of the litigation, the nature of the interaction between counsel, the nature ol
25 the issues, the type and scope of discovery requested, the prospects for success and
26 other similar factors can be relevant. Judges have broad powers and responsibility to
27 determine what measure and procedures are appropriate in varying circumstances."
28
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1 (emphasis added.) Indeed, the burden to meet and confer reasonably and in good-faith is not taken
2 lightiy. (Manzetti v. Superior Court, (1993) 21 Cal.App.4th 373, 379-80 [Counsels are obligated
3 to engage in this process in good faith and cannot reject reasonable proposals without suffering
4 the consequences].)
5 Defendant should be sanctioned for its gamesmanship and misuse of the discovery process
6 here. Even prior to discovery being served. Defendant and its counsel showed clear disregard foi
7 Plaintiffsrightsto OSHA logs under 29 CFR § 1904.35(b)(2), continually bickering and quibbling
8 for months about the scope of the regulation despite Plaintiffs counsel providing OSHA's own
9 interpretations of its regulation. Thereafter, Defendant objected to the interrogatories, delayed in
10 meeting and conferring for weeks, and would not respond to PlaintifPs follow-up efforts to flirthei
11 meet and confer and resolve the disputes. Defendant and its counsel seem to think it is appropriate
12 to hold discovery hostage, rather than engage in the meet and confer process in good faith. In so
13 doing. Defendant has averted the self-executing purposes of discovery in (1) failing to make
14 information and documents available which cannot otherwise be provided except with great
15 difficulty (i.e. forcing Plaintifif to file this Motion and incurring expense); and (2) delaying the
16 litigation and preparation for trial. Plaintiff only requires her straightforward Requests be
17 responded to under oath, and the documents produced in full. But the history of the litigation and
18 interactions between counsel show that Defendant would rather waste time, obstmct as a matter of
19 course, and never meet and confer in good faith, leading to an inference of bad faith on Defendant's
20 part. Indeed, the fact that Plaintiff has already filed two separate discovery motions seeking
21 sanctions in this matter (to be heard September 1, 2022), should clearly reveal Defendant's modus
22 operandi of obstmction.'
23 Given that Plaintiffs counsel has expended considerable hours in researching and drafting
24 the instant motion, as well as Plaintiff incurring costs for court filing, monetary sanctions should
25 be issued in the amount of $5,410.00, and a separate monetary sanction of $250.00. (Khos. Decl
26 11117-18.)
27
' This would be PlaintifPs (1) Motion for Requests for Admissions, Set One (1) Be Deemed Admitted, and Monetary
28 Sanctions; and (2) Motion to Compel Discovery Responses as to Form Interrogatories—General, Set Two (2), and
Monetary Sanctions.
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1 IV. CONCLUSION
2 Given the foregoing, Plainfiff respectfiilly requests this Court GRANT the instant Motion
3 and ORDER Defendant (1) be compelled to provide further response to Requests for Production
4 of Documents, Set Four, and (2) to pay separate monetary sanctions in an amount of $5,410.00
5 and $250.00.
6 Dated: August 2, 2022 LIBERTY MAN LAW, P.C.
FALAKASSA LAW, P.C.
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Arash S. Khosrowshahi
10 Joshua S. Falakassa
Attomeys for Plaintiff Sajida Zaman
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MEMORANDUM OF POINTS AND AUTHORITffiS
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1 JOSHUA S. FALAKASSA (SBN: 295045) FALAKASSA LAW, P.C. 2 1901 Avenue ofthe Stars Suite # 450 3 Los Angeles, Califomia 90067 Tel.: (818) 456-6168; Fax: (888) 505-0868 4 Email: josh@falakassalaw.com FILEO/EIDOKEO 5 ARASH S. KHOSROWSHAHI (SBN: 293246) 6 LIBERTY MAN LAW, P.C. AUG - 3 2022 1010 F Street, Ste. 300 7 Sacramento, Califomia 95814 By: H. PEMELTON Deputy Clerk Tel.: (916) 573-0469; Fax: (866) 700-0787 8 Email: ash@libertymanlaw.com 9 Attomeys for Plaintiff, 10 SAJIDA ZAMAN 11 SUPERIOR COURT OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 14 SAJIDA ZAMAN, CASE NO.: 34-2019-00252121 RESERVATION ID: 2664202 15 Plainfiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16 vs. MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF SAJIDA 17 LIQUI-BOX CORPORATION, and DOES 1 ZAMAN'S REQUESTS FOR through 20, inclusive. PRODUCTION OF DOCUMENTS, SET 18 FOUR, AND MONETARY SANCTIONS Defendants. 19 Date: October 18, 2022 20 Time: 1:30pm BY FAX Dept.: 53 21 Trial Date: September 12, 2022 22 INTRODUCTION 23 Plaintiff Sajida Zaman ("Plaintiff') brings this instant Motion to Compel seeking discovery 24 sanctions after having attempted to meet and confer as to Defendant Liqui-Box Corporation's 25 ("Defendant") objections without responses with no luck. 26 Plaintiff alleges she was terminated after reporting her work-related injury in violation oi 27 the FEHA, public policy, and the UCL. Plainfiff alleges that her supposed violafion of Defendant's 28 Critical Safety Behaviors ("CSB") policy, which requires employees to immediately report all MEMORANDUM OF POINTS AND AUTHORITffiS 1 of 14 1 incidences, including work-related injuries, or else face immediate terminafion, was used 2 pretextually against her to terminate her for her disabilities and work-related injury. As part ol 3 Plaintiff reporting her work-related injury. Defendant needed to complete certain OSHA 4 recordable injury documents ("OSHA logs") by law. 5 Plaintiff propounded her Requests for Production of Documents, Set Four, on or about May 6 18, 2022, making three requests asking for all documents comprising Defendant's OSHA logs 7 detailing any injury/illness at its Sacramento Facility. This proceeded over a month of requesting 8 the OSHA logs per OSHA regulations via letter, which Plaintiff as a former employee has a right 9 to by law. But rather than respond to the requests. Defendant provided only objections. PlaintiflTs 10 counsel met and conferred on the objections, making some offers of compromise and clarifying 11 scope, but ultimately Defendant's counsel did not get back to Plaintiff prior to the motion to 12 compel/discovery cutoff deadlines. 13 Defendant's objections are without merit and/or too general to allow refiisal to respond to 14 the interrogatories. Plaintiff fiirther has good cause to request the documents, as they will show 15 whether Defendant's proffered business justification for terminating her for not immediately 16 reporting her injury is pretext, especially if the logs indicate contradictory information as to 17 Plaintiffs injury than what Defendant's documents used to terminate Plaintiff state. Given 18 Defendant's history of misuse of the discovery process and failure to meet and confer in good 19 faith, monetary sanctions are also warranted. 20 With the motion to compel deadline and discovery cutoff fast approaching. Plaintiff files 21 the instant Motion and respectfiilly requests that this Court GRANT her Motion in its entirety. 22 H. STATEMENT OF FACTS 23 A. Plaintiff Sustained Work-Related Injuries and Disabilities to her Knee While 24 on the Job but was Terminated for Allegedly Not Reporting Immediately. 25 Plaintiff alleges in her First Amended Complaint for Damages and Injunctive Relief 26 ("FAC") filed on January 24, 2020, that she was originally hired as a "Packer" at Defendant's 27 liquid bad manufacturing center in Sacramento in December 2003 and was eventually promoted 28 to "Inspector-Packer" (FAC, 16.) Plaintiff s job duties included packing and inspecting bags and MEMORANDUM OF POINTS AND AUTHORITffiS 2 of 14 1 other labor-intensive tasks, requiring her to stand for long periods of time and lift/haul heavy loads 2 over 16 years of employment. (Id.) 3 On or about December 3, 2018, Plaintiff suffered an injury to her left knee while working 4 for Defendants, and over time her knee stiffness tumed into consistent and considerable pain. (Id., 5 I 7.) Plaintiff first became aware her pain was a work-related knee injury on or about January 3, 6 2019, which was when she reported it to Defendant to seek treatment and begin her worker's 7 compensation claim. (Id.) Defendant's human resources department sent Plainfiff for medical 8 examination to the workers compensation medical provider and monitored the examination 9 without PlainfifPs consent. (Id., | 8.) 10 Thereafter, Plaintiff was instmcted by Defendant to go home until fiirther notice but was 11 then summoned back for a work meefing on January 10,2019. (Id., ^ 9.) At the meeting Plainfiffs 12 16 years of employment was terminated because she allegedly "neglected to report [her] injury 13 timely" in violation of Defendant's Critical Safety Behaviors ("CSB") policy, which states in 14 relevant part, "Immediately report all incidents to your supervisor, management team member no 15 matter how minor or without exception," and that "[a]ny violation of these Critical Safety 16 Behaviors will result in immediate termination of employment." (Id.) 17 Based on these allegations. Plaintiff alleges she was terminated because of her work-related 18 injuries and disabilities, with the CSB policy used as pretext. (Id., ^ 10.) Plaintiff brings causes of 19 action for (1) Wrongful Termination in Violation of Public Policy; (2) Retaliation in Violation of 20 Public Policy; (3) Disability Discrimination in Violation of FEHA; (4) Failure to Engage in the 21 Interactive Process in Violation of FEHA; (5) Failure to Provide a Reasonable Accommodation in 22 Violation of FEHA; (6) Intenfional Infliction of Emofional Distress; and (7) Unfair Competition 23 Law.(M,ini 19-64.) 24 B. Plaintiff Requested Defendant's Current or Stored OSHA Logs via Letter as 25 was Her Right Under OSHA Regulations. 26 On May 3, 2022, counsel for Plaintiff sent counsel for Defendant a letter requesting 27 Defendant's OSHA 300 Logs and annual summaries of recordable occupational injuries and 28 illnesses from 2017 to 2022, as well as OSHA 301 Incident Reports describing any and all injuries MEMORANDUM OF POINTS AND AUTHORITffiS 3 of 14 1 or illnesses to Plainfiff. (Declaration of Arash Khosrowshahi in Support of Motion to Compel 2 Further Responses to Plainfiff Sajida Zaman's Requests for Producfion of Documents, Set Four, 3 and Monetary Sanctions ["Khos Decl."], | 3; attached as Exhibit A is a tme and correct copy of 4 the May 3, 2022 letter.) Per 29 CFR § 1904.35(b)(2), employers must provide former employees 5 and their authorized representatives all retained OSHA injury and illness records within the next 6 business day without redactions. (Id., subds. (b)(2)(iii)-(v).) 7 Rather than simply provide the requested logs by the next business day. Defendant's 8 counsel began his oft-employed tacfic of delay and obstmction. On May 5, 2022, Defendant's 9 counsel requested written authorizationfromPlaintiff, and attempted to limit the scope of the 10 productionfromwhen Plaintiff was terminated in 2019 onward. (Khos Decl., | 4; attached as 11 Exhibit B is a tme and correct copy of the May 5 through 9, 2022 meet and confer emails.) 12 Plaintiffs counsel responded that day claiming that Plaintiff was entitled to all "current or stored 13 OSHA logs with no limitation in the regulation as to the date employment ended. (Khos Decl., 1 14 4; see Exhibit B.) 15 However, by May 9, 2022, Defendant's counsel had still not provided the documents, and 16 instead continued to quibble about the scope of the regulation, claiming the production of the 17 records should be limited to what was "relevant", and that he would only provide logs from 2019 18 onward. (Khos Decl., ^ 5; see Exhibit B.) Plaintiffs counsel responded that day arguing that 19 Defendant was already late in its production and cited no law in support of its position. (Khos 20 Decl., I 5; see Exhibit B.) Instead, Defendant's counsel went down an interpretative rabbit-hole, 21 claiming that Plaintiff was requesting records as far back as 20 years, and that the scope of the 22 regulation was not that broad. (Khos Decl., | 5; see Exhibit B.) Plaintiffs counsel responded that 23 Defendant's counsel was quibbling about the term "relevant" when it simply meant "current or 24 stored" logs, and that he was creating false limitations on Plaintiffsrights.(Khos Decl., ^ 5; see 25 Exhibit B.) 26 Then Defendant's counsel engaged in hypotheticals, asking if an 18-year-old employee 27 who worked for an employer one day could request OSHA logs as far back as 50 years. (Khos 28 Decl., I 6; see Exhibit B.) Plaintiffs counsel responded in detail, citing OSHA's own standard MEMORANDUM OF POINTS AND AUTHORITffiS 4 of 14 1 interpretation ofthe regulation requiring the disclosure of all current and stored OSHA logs, but 2 Defendant's counsel continued to bicker about the scope of the regulation going into the past 3 forever. (Khos Decl., 16; see Exhibit B.) Plaintiffs counsel responded that per OSHA regulations 4 employers were only supposed to keep such logs for afive-yearperiod, and that Plaintiff was 5 entitled to any logs Defendant had, regardless of when they were drafted—^thus. Defendant's 6 counsel was simply "making things up." (Khos Decl., ^ 6; see Exhibit B.) 7 Thereafter Defendant produced a piecemeal version of the logs, which was missing OSHA 8 Form 300 for years 2019 through 2021, OSHA 300a logs, and OSHA Form 301 Incident Reports. 9 (Khos Decl., | 7; attached as Exhibit C is a tme and correct copy of the piecemeal production; 10 attached as Exhibit D are counsel's communications re: the production being piecemeal and late.) 11 C. Plaintiff Sent Formal Discoverv as to the OSHA Logs Given Defendant's 12 Gamesmanship, But Defendant Continued to Delay and Served Only 13 Objections. 14 Not tmsting Defendant's piecemeal production, and given Defendant's history of 15 gamesmanship. Plaintiff thereafter served her Requests for Production of Documents, Set Four, on 16 or about May 18, 2022, asking for all documents compromising Defendant's (1) OSHA 300 17 (Request for Production of Documents, Set Four, No. 1), (2) OSHA 300a (Id., No. 2), and (3) 18 OSHA 301 (Id., No.3) at its Sacramento facility where Plaintifif worked. (Khos Decl., 18; attached 19 as Exhibit E is a tme and correct copy of Plaintiff Sajida Zaman's Requests for Production of 20 Documents to Defendant LiquiBox, Inc., Set Four (4).) 21 While waiting for Defendant's responses, on June 15, 2022 Plaintiffs counsel sent a 22 follow-up email as to the status of Plaintiff s OSHA 301 Incident Log related to her work-related 23 injury leading to her termination of employment. (Khos Decl., 19; attached as Exhibit F is a tme 24 and correct copy of counsel's June 15 meet and confer emails.) Defendant's counsel responded 25 that Defendant could notfindit and continued to make arguments about how the document would 26 not state anything different than other documents in the matter, causing further delay and 27 obstmction. (Khos Decl., ^ 4; see Exhibit F.) 28 MEMORANDUM OF POINTS AND AUTHORITffiS 5 of 14 1 On June 20, 2022, Plaintiffs counsel followed up on when the OSHA logs would be 2 produced, to which Defendant's counsel repeated that the only one not sent was Plaintiffs OSHA 3 301 log. (Khos Decl., T[ 10; attached as Exhibit G is a tme and correct copy of counsel's June 20 4 to July 12 meet and confer emails.) 5 Thereafter, on or about June 21,2022, rather than provided responses. Defendant continuedj 6 its obstmction by serving only objections to Plaintiffs interrogatories. (Khos Decl., 111; attached 7 as Exhibit H is a tme and correct copy of Defendant Liqui-Box Corporation's Response to 8 Plaintiffs Request for the Inspection and Production of Documents and Other Things, Set Four.) 9 The objections were that the Requests: (1) were vague and ambiguous (Response to Request foi 10 Production of Documents, Set Four, Nos. 1-3); (2) overbroad (Id.); (3) irrelevant/not calculated to 11 lead to the discovery of admissible evidence (Id.); (4) were protected by the attomey-client 12 privilege/attomey work-product doctrine (Id.); and (5) were protected by therightto privacy. (Id) 13 (Khos Decl., 111; see Exhibit H.) 14 D. Plaintiff Could Not Informally Resolve the Issues via the Meet and Confer 15 Process. 16 On June 22, 2022, Plaintiff sent a detailed, seven-page meet and confer letter arguing why 17 each and every objection to the Requests were without merit. (Khos Decl., II 12; attached as 18 Exhibit I is a tme and correct copy of the June 22, 2022 meet and confer letter.) Not having heard 19 from Defendant, on July 8, 2022 counsel sent follow-up emails as to Defendant's incomplete and 20 late production ofthe OSHA logs and lack of meet and confer response. (Khos Decl., Tl 12; see 21 Exhibit G and Exhibit I.) 22 In response to the logs requested in Plaintiffs original May 3, 2022 letter. Defendant's 23 counsel incredulously asked what was still outstanding, despite it being Defendant's obligation to 24 maintain the records. (Khos Decl., ^ 13; see Exhibit G.) Once again Plaintiffs counsel reiterated 25 that the OSHA 300 Logs of Work Related Injuries/Illnesses for 2017-2021 and all OSHA 301 26 Incident Reports, including PlaintifPs, from 2017-2021 were missing. (Khos Decl., | 13; see 27 Exhibit G.) Defendant's counsel then responded once again that Plaintiff was only entitled, and 28 Defendant would only produce, logs during Plaintiffs employment period, in clear contravention MEMORANDUM OF POINTS AND AUTHORITffiS 6 of 14 1 of the OSHA regulation met and conferred about a month prior. (Khos Decl., t 13; see Exhibit 2 G.) PlaintifPs counsel once again cited OSHA's standard interpretation of its own regulations thai 3 Plaintifif was entitied to all "current and stored" logs. (Khos Decl., f 13; see Exhibit G.) 4 Defendant's counsel then went back to his hypothetical scenarios, arguing that PlaintifPs counsel's 5 interpretation was too broad because a hypothetical employee could request records 80 years into 6 the future. (Khos Decl., f 13; see Exhibit G.) PlaintifPs counsel responded that he was simply 7 citing OSHA's own interpretation documents, and that Defendant's counsel's hypothetical 8 scenarios were contrived and missed the point, and further even offered to compromise that names 9 and contact information be redacted to alleviate privacy concems. (Khos Decl., ^13; see Exhibit 10 G.) Then Defendant's counsel argued that Plaintiff was only entitled to her OSHA logs, not the 11 logs of other employees, and that either her logs no longer existed or could not be located. (Khos 12 Decl., H 13; see Exhibit G.) 13 In response to the June 22, 2022 meet and confer letter. Defendant's counsel responded 14 July 10, 2022, arguing that Request for Production No. 1 was overbroad as time and scope 15 interpreting "documents comprising OSHA logs" to mean the OSHA logs, and once again limiting 16 production to the period of PlaintifPs employment. (Khos Decl., 114; see Exhibit I.) Defendant's 17 counsel further maintained the documents were produced, without addressing the separate point 18 that no verified responses were provided. (Khos Decl., f 14; see Exhibit I.) Defendant's counsel 19 made similar arguments as to Request Nos. 2 and 3, and also argued there were privacy concems 20 implicated given potential third-party employee disclosures of injuries and illnesses. (Khos Decl., 21 1 14; see Exhibit I.) On July 29, 2022, Plaintiffs counsel clarified that Plaintifif wanted all of 22 Defendant's documents related to the OSHA logs, including each of Defendant's interna 23 investigation forms (the "AS 1059" and "4 Panel EHS Disciplinary Review") completed when such 24 OSHA logs were also completed in tandem. (Khos Decl., ^ 14; see Exhibit I.) On August 1, 2022 25 Plaintiffs counsel sent a follow up email, stating the motions to compel deadlines were fast 26 approaching, and given discovery motions seeking sanctions against Defendant already filed as to 27 other discovery requests he hoped the parties could come to an agreement to resolve the 28 MEMORANDUM OF POINTS AND AUTHORITffiS 7 of 14 1 outstanding issues. (Khos Decl., | 14; see Exhibit I.) But as of this writing no response was 2 provided. (Khos Decl., ^ 14.) 3 With the motion to compel and discovery cutoff dates fast approaching, and having 4 exhausted her meet and confer obligations. Plaintiff brings this Motion seeking sanctions. 5 III. ARGUMENT 6 Under Code of Civil Procedure § 2031.310(a)(3), a party may move for an ordei 7 compelling further response to a demand if a "An objection in the response is without merit or too 8 general." Such a motion must show specific facts showing good cause justifying the discovery 9 sought by the demand and include a meet and confer declaration. (Id., subd. (b)(l)-(2).) 10 A. Defendant's Objections are Without Merit/Too General. 11 Vague & Ambiguous: this is a nuisance objection which is disfavored by the Courts. 12 "Indeed, where the question is somewhat ambiguous, but the nature of the information sought is 13 apparent, the proper solution is to provide an appropriate response." (Deyo v. Kilbourne (1978) 84 14 Cal. App. 3d 771, 783.) "[C]omprising OSHA 300 logs detailing any injury/illness" (No. 1), 15 "comprising OSHA 300a logs detailing any injury/illness" (No. 2), and "comprising OSHA 301 16 logs detailing any injury/illness" (No. 3) are not vague and ambiguous clauses, and given 17 Defendant's own legal requirements to maintain such logs per 29 CFR § 1904.35(b)(2), h knows 18 precisely what Plaintiff is asking for. Defendant's steadfast refusal to hide behind this objection, 19 especially after having met and conferred for the better part of three months on this issue, is made 20 in bad faith. 21 Overbroad: This objection is also without merit. There is nothing overbroad about 22 requesting Defendant's Sacramento facility OSHA logs, which Defendant by law must maintain 23 and provide to us per 29 CFR § 1904.35(b)(2). Recall that this regulation represents that "Yes 24 your employees, former employees, their personal representatives, and their authorized 25 employee representatives have the right to access the OSHA injury and illness records....' 26 (emphasis added) within the next business day. (Id., subd. (b)(2)(iii), (b)(2)(v)(A).) Defendant's 27 illegal and unjustified delay in providing all of its OSHA logs, which it should as a matter of course 28 be maintaining, is in no way overbroad. MEMORANDUM OF POINTS AND AUTHORITffiS 8 of 14 1 Relevance/Not Calculated to Lead to the Discoverv of Admissible Evidence: Defendant 2 should be aware that Code of Civil Procedure § 2017.010 states that "any party may obtain 3 discovery regarding any matter, not privileged, that is relevant to the subject matter involved 4 in the pending action or to the determination of any motion made in that action, if the matter 5 either is itself admissible in evidence or appears reasonably calculated to lead to the 6 discovery of admissible evidence. Discovery may relate to the claim or defense of the party 7 seeking discovery or of any other party to the action. Discovery may be obtained of the identity 8 and location of persons having knowledge of any discoverable matter, as well as of the existence, 9 description, nature, custody, condition, and location of any document, electronically stored 10 information, tangible thing, or land or other property." (emphasis added.) 11 Indeed, "For the guidance of the trial courts the proper mle is declared to be not only one 12 of liberal interpretation, but one that also recognizes that disclosure is a matter of right unless 13 statutory or public policy considerations clearly prohibit it." (Greyhound Corp. v. Superior 14 Court (1961) 56 Cal.2d 355, 378)(emphasis added.) The purposes of discovery are "(1) to give 15 greater assistance to the parties in ascertaining the truth and in checking and preventing 16 perjury; (2) to provide an effective means of detecting and exposing false, fraudulent and 17 sham claims and defenses; (3) to make available, in a simple, convenient and inexpensive 18 way, facts which otheiTvise could not be proved except with great difficulty: (4) to educate 19 the parties in advance of trial as to the real value of their claims and defenses, thereby 20 encouraging settlements: (5) to expedite litigation; (6) to safeguard against surprise; (7) to 21 prevent delay: (8) to simplify and narrow the issues: and, (9) to expedite and facilitate both 22 preparation and trial. Certainly, it can be said, that the Legislature intended to take the *game' 23 element out of trial preparation while yet retaining the adversary nature of the trial itself.' 24 (Greyhound Corp., 56 Cal. 2d at 376)(emphasis added.) 25 Plaintiffhas broadrightsto discovery, which includes obtaining Defendant's OSHA logs 26 reflecting any injury or illness at the Sacramento facility. Indeed, given Plaintiffs UCL cause of 27 action that Defendant's Critical Safety Behavior's policy facially violates OSHA reasonable 28 reporting regulations, and given that her FEHA disability/wrongfiil termination causes of action MEMORANDUM OF POINTS AND AUTHORITffiS 9 of 14 1 surround her pain and injury incurred at work, it is absurd to suggest these OSHA injury/illness 2 logs are in no way relevant. By objecting without responding. Defendant is only preventing 3 ascertainment of the tmth about the merits of Plaintiffs claims; preventing determination of 4 whether Defendant's proffered "business justification" that Plaintiff was terminated for reporting 5 her pain late is nothing more than a sham and pretext; preventing convenient and inexpensive 6 discovery from moving forward; preventing educating the parties on the value of theii 7 claims/defenses; and only serves to further delay the case and grind the litigation to a standstill 8 when trial is fast approaching. Plaintiff will not tolerate Defendant's gamesmanship. Defendant 9 must participate in good faith. 10 Attorney-Client Privilege/Attorney Work Product: these Requests seek OSHA logs which 11 Defendant must provide to Plaintiff as a former employee by law per 29 CFR § 1904.35(b)(2). 12 This in no way implicates any attomey-client privileged documents or work product, and is an 13 objection made solely in bad faith. 14 Right to Privacy of Third Parties: this objection is likewise absurd. 29 CFR § 15 1904.35(b)(2)(iv) provides the general mle: "May 1 remove the names of the employees or any 16 other informationfromthe OSHA 300 Log before 1 give copies to an employee, former employee, 17 or employee representative? No. you must leave the names on the 300 Log." (emphasis added.) 18 Insofar as employee names have already been recorded in the requested logs. Defendant must now 19 provide the logs. 20 B. Good Cause Exists for Plaintiff to Request OSHA Logs and Related 21 Documents. 22 Importantly, after Plaintiff reported her knee pain on January 3, 2019, Defendant hac 23 Plaintiff complete a AS 1059 investigation report. (Khos Decl., ^15; attached as Exhibit J is a tme 24 and correct copy of PlaintifPs AS1059 investigation report.) Subsequently, Defendant's Managei 25 of Human Resources, along with Chief Operating Officer Andrew McLeland and Chief Human 26 Resources Officer Angela Kenyon and supervisor Ken Villani, all emailed one another about how 27 PlaintifPs injury would be an OSHA recordable injury for 2018, and how they would push back 28 against Plaintiffs workers compensation claim, as they were claiming PlaintifPs injury was first MEMORANDUM OF POINTS AND AUTHORITffiS 10 of 14 1 known to Plainfiff December 3, 2018, not January 3, 2019. (Khos Decl., H 15; attached as Exhibit 2 K is a tme and correct copy of the January 3, 2019 emails between Defendant's management 3 discussing Plaintiffs work-related injury.) Defendants then used their intemal "4 Panel EHS 4 Disciplinary Review" to claim Plaintiff was diagnosed with a knee and hamstring sprain, and to 5 claim Plaintiff reported her injury late, as pretextual justification for terminating her employment 6 for not reporting her injury immediately per the CSB policy. (Khos Decl., 115; attached as Exhibit 7 L is a tme and correct copy of PlaintifPs 4 Panel EHS Disciplinary Report.) 8 Thus, it is important to review how Defendant documented PlaintifPs recordable injury in 9 its OSHA logs to see whether there were any inconsistencies as to the way Defendant described 10 Plaintiffs injuries, or inconsistencies as to the date the injury was reported as recordable (i.e 11 December 3,2018 or January 3,2019). For example, if Defendant called PlaintifPs injury a strain 12 rather than a sprain in its OSHA logs compared to its 4 Panel EHS Disciplinary Review 13 respectively, or recorded Plaintiffs injury as occurring January 3, 2019 rather than December 3, 14 2018 respectively, good cause exists to see those discrepancies. (Khos Decl., 1 16; attached as 15 Exhibit M is a tme and correct copy of Plaintiff s workers compensation medical records dated 16 January 3, 2019 diagnosing her with strain, not sprain, injuries, and compare with Exhibit L 17 characterizing the injury as a sprain.) It is also important to see what OSHA logs, AS 1059 forms, 18 and 4 Panel EHS Disciplinary Review documents exist for other employees who Defendant claims 19 neglected to report their injuries immediately per the terms of the CSB policy, and to compare 20 those to employees with OSHA logs for work-related injuries where AS 1059 and 4 Panel EHS 21 Disciplinary Review documents were not completed, i.e., for employees who were not disciplined 22 or terminated for reporting their injuries. This will all go towards showing Defendant's intent to 23 discriminate against injured and disabled employees such as Plaintiff by reporting different 24 versions of events between its own intemal documents versus the OSHA logs Defendant is 25 required to accurately maintain by law, while using its intemal discipline processes as pretext. 26 C. Plaintiff Adequately Met and Conferred Before Filing the Motion. 27 Plaintiffs counsel's meet and confer declaration is attached to this Motion, and Plaintiffs 28 efforts to resolve these issues informally was discussed in Section II supra. Plaintiff exhausted her MEMORANDUM OF POINTS AND AUTHORITffiS 11 of 14 1 meet and confer obligations and had no choice but to file this Motion. (See also Section III.D 2 infra.) 3 D. Defendant is Subject to Monetary Sanctions for Misuse of the Discovery 4 Process by Providing Meritless Objections and Failing to Meet and Confer in 5 Good Faith. 6 Discovery is meant to be a self-executing process. (Clement v. Alegre (2009), 177 Cal 7 App. 4'*' 1277, 1281.) Misuse of the discovery process includes (1) making without substantial 8 justificafion an unmeritorious objection to discovery; and (2) failing to confer with an opposing 9 party in a reasonable and good faith attempt to resolve informally any dispute conceming 10 discovery. (Code Civ. Proc. § 2023.010(e), (i).) Such misuse is subject to monetary sanctions in 11 the form of reasonable attomey's fees. (Id. §§ 2023.020, 2023.030(a), 2031.310(h).) Further, a 12 separate sanction of $250 may be imposed on a party which does not respond in good faith to a 13 request for production of documents, nor meet and confers. (Id., § 2023.050(a)(1), (3).) 14 Meeting and conferring requires there be a serious effort at negotiation and informal 15 resolution. The law requires that counsel attempt to talk the matter over, compare their views, 16 consult, and deliberate. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 17 Cal.App.4th 853, 879.) In discussing the sufficiency of the meet and confer efforts, the court in 18 Stewart v. Colonial Western Agency (2001) 87 Cal.App.4th 1006, 1016 held: 19 "A determination of whether an attempt at informal resolution is adequate ... involves the 20 exercise of discretion. The level of effort at informal resolution which satisfies the 21 'reasonable and good faith attempt' standard depends upon the circumstances. In a larger, 22 more complex discovery context, a greater effort at informal resolution may be warranted 23 In a simpler, or more narrowly focused case, a more modest effort may suffice. The 24 history of the litigation, the nature of the interaction between counsel, the nature ol 25 the issues, the type and scope of discovery requested, the prospects for success and 26 other similar factors can be relevant. Judges have broad powers and responsibility to 27 determine what measure and procedures are appropriate in varying circumstances." 28 MEMORANDUM OF POINTS AND AUTHORITffiS 12 of 14 1 (emphasis added.) Indeed, the burden to meet and confer reasonably and in good-faith is not taken 2 lightiy. (Manzetti v. Superior Court, (1993) 21 Cal.App.4th 373, 379-80 [Counsels are obligated 3 to engage in this process in good faith and cannot reject reasonable proposals without suffering 4 the consequences].) 5 Defendant should be sanctioned for its gamesmanship and misuse of the discovery process 6 here. Even prior to discovery being served. Defendant and its counsel showed clear disregard foi 7 Plaintiffsrightsto OSHA logs under 29 CFR § 1904.35(b)(2), continually bickering and quibbling 8 for months about the scope of the regulation despite Plaintiffs counsel providing OSHA's own 9 interpretations of its regulation. Thereafter, Defendant objected to the interrogatories, delayed in 10 meeting and conferring for weeks, and would not respond to PlaintifPs follow-up efforts to flirthei 11 meet and confer and resolve the disputes. Defendant and its counsel seem to think it is appropriate 12 to hold discovery hostage, rather than engage in the meet and confer process in good faith. In so 13 doing. Defendant has averted the self-executing purposes of discovery in (1) failing to make 14 information and documents available which cannot otherwise be provided except with great 15 difficulty (i.e. forcing Plaintifif to file this Motion and incurring expense); and (2) delaying the 16 litigation and preparation for trial. Plaintiff only requires her straightforward Requests be 17 responded to under oath, and the documents produced in full. But the history of the litigation and 18 interactions between counsel show that Defendant would rather waste time, obstmct as a matter of 19 course, and never meet and confer in good faith, leading to an inference of bad faith on Defendant's 20 part. Indeed, the fact that Plaintiff has already filed two separate discovery motions seeking 21 sanctions in this matter (to be heard September 1, 2022), should clearly reveal Defendant's modus 22 operandi of obstmction.' 23 Given that Plaintiffs counsel has expended considerable hours in researching and drafting 24 the instant motion, as well as Plaintiff incurring costs for court filing, monetary sanctions should 25 be issued in the amount of $5,410.00, and a separate monetary sanction of $250.00. (Khos. Decl 26 11117-18.) 27 ' This would be PlaintifPs (1) Motion for Requests for Admissions, Set One (1) Be Deemed Admitted, and Monetary 28 Sanctions; and (2) Motion to Compel Discovery Responses as to Form Interrogatories—General, Set Two (2), and Monetary Sanctions. MEMORANDUM OF POINTS AND AUTHORITffiS 13 of 14 1 IV. CONCLUSION 2 Given the foregoing, Plainfiff respectfiilly requests this Court GRANT the instant Motion 3 and ORDER Defendant (1) be compelled to provide further response to Requests for Production 4 of Documents, Set Four, and (2) to pay separate monetary sanctions in an amount of $5,410.00 5 and $250.00. 6 Dated: August 2, 2022 LIBERTY MAN LAW, P.C. FALAKASSA LAW, P.C. 7 8 9 Arash S. Khosrowshahi 10 Joshua S. Falakassa Attomeys for Plaintiff Sajida Zaman 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITffiS 14 of 14