UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

SHEILA Y. THOMAS (SB No. 110 REBECCA HENRY (SB No. 100 EQUAL RIGHTS ADVOCATES 1 Mission Street, Suite 0 San Francisco, CA Telephone: (1 1-0 Facsimile: (1 1- Attorneys for Plaintiff JAMES L. WHITE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JAMES L. WHITE, v. Plaintiff, CHEVRON CORPORATION, CHEVRON OVERSEAS PETROLEUM INCORPORATED, Defendant. Case No.: C-00 0 CRB (WDB PLAINTIFF S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL RESPONSES TO INTERROGATORIES, PRODUCTION OF DOCUMENTS AND RESPONSES TO DEPOSITION QUESTIONS FROM DEFENDANTS CHEVRON CORPORATION AND CHEVRON OVERSEAS PETROLEUM, INCORPORATED Date: December 1, 000 Time: :0 p.m. Ctrm: Plaintiff s Memorandum of Points and Authorities C-00 0 CRB

1 1 1 1 1 1 1 1 0 1 I. INTRODUCTION Plaintiff is an African American man who alleges that Defendants Chevron Corporation and Chevron Overseas Petroleum, Incorporated ( COPI discriminated against him on the basis of his race when he was denied positions within COPI and, subsequently, terminated despite his excellent qualifications. Defendants have withheld documents relevant to Plaintiff s race discrimination claim despite the Court s holding that such evidence is relevant to his claim that Defendants engage in a pattern and practice of discrimination. They also unreasonably withhold documents that are likely relevant to Plaintiff s claims that Chevron Corporation ratified and/or condoned COPI s racially discriminatory conduct despite the fact that the discovery rules clearly require that they do so. Defendants should not be allowed to hamper Plaintiff s efforts to obtain information to establish his claims. For these reasons, Plaintiff s motion to compel should be granted. II. STATEMENT OF FACTS Plaintiff alleges that he was informed in October 1 that COPI would eliminate his position. (First Amended Complaint (hereinafter FAC at at 1 He further alleges that after he learned his position was eliminated, Defendants discriminated against him when they refused to find him another position within COPI and denied him positions offered to white candidates that he was qualified to fill. (FAC at Plaintiff filed his complaint on February, 000. He filed an Amended Complaint on May, 000. On June 1, 000 Plaintiff served Defendants with his Initial Disclosures. On July 1, 000 Plaintiff served his First Requests for Production of Documents on Defendants. (Exh. 1 In mid- July, 000, Defendants served Plaintiff with their Initial Disclosures documents, however, they failed to include attachments to the email documents that they produced. On July, 000, Plaintiff sent Defendants the first of many letters requesting attachments to email documents Defendants failed to produce. (Exh. However, Defendants have not produced the requested documents Plaintiff s Memorandum of Points and Authorities C-00 0 CRB 1

1 1 1 1 1 1 1 1 0 1 despite repeated requests that they do so and despite the fact that these attachments were also responsive to Plaintiff s First Requests for Production of Documents. (Exhs.,,, 1 and 1 Plaintiffs served its First Set of Interrogatories on July, 000. On August, 000, Defendants requested and Plaintiff granted Defendants a three-week extension to September, 000 to respond to Plaintiff s First Requests for Production of Documents. (Exhs., and On August, 000, Defendants responded to Plaintiff s First Set of Interrogatories by indicating that they lacked sufficient information to respond to the two interrogatories that Plaintiff propounded. (Exh. On September, 000, Defendants produced documents to Plaintiff. (Exh. On September, 000, Plaintiff sent Defendants a letter addressing Defendants Responses to Plaintiff s First Requests for Production of Documents and requested that Defendants provide Plaintiff with dates to meet-and-confer about Defendants discovery responses. (Exh. Defendants failed to respond to Plaintiff s request for a meet-and-confer. Due to the fact that Plaintiff was able to make little headway with the Defendants in obtaining requested documents, Plaintiff sent Defendants yet another letter on September 1, 000, requesting meet-and-confer dates to resolve outstanding discovery issues. (Exh. 1 Defendants, again, failed to respond and Plaintiff sent Defendants a letter on September, 000, once again addressing outstanding discovery issues. (Exh. 1 1 Finally, on October, 000, Plaintiff and Defendants were able to meet-and-confer telephonically about the outstanding discovery issues. (Exhs. 1 and 1 The parties agreed that they would state in writing their respective positions in regards to Defendants responses to Plaintiff s First Set of Interrogatories and Requests for Production of Documents. On October, 000, Plaintiff s Memorandum of Points and Authorities C-00 0 CRB

1 1 1 1 1 1 1 1 0 1 Plaintiff sent Defendants a meet-and-confer letter indicating by Defendant and request number Defendants responses to Plaintiff s First Set of Interrogatories and Requests for Production of Documents, which Plaintiff believed required additional responses. (Exh. 1 Defendant Chevron Corporation has yet to serve Plaintiff with adequate, supplemental responses to Plaintiff s First Set of Interrogatories. On October 1, 000, Plaintiff, once again, sent Defendants a letter indicating a need to resolve outstanding discovery issues. (Exh. 0 On October, 000, Defendants responded to Plaintiff s meet-and-confer letter and continued to produce documents to which Plaintiff is entitled to discover (Exh. 1. Finally on October and November 1, 000, Plaintiff sent Defendants letters responding to Defendants meet-and-confer letter in a hope to narrow issues for this motion. (Exhs., and Defendant COPI finally supplemented its responses to Plaintiff s First Set of Interrogatories on November, 000. However, Chevron Corporation has yet to supplement its responses. Despite Plaintiff s good faith efforts to resolve the issues raised in this motion, the parties have been unable to resolve the discovery issues discussed below. II. LEGAL ARGUMENT Federal Rule of Civil Procedure (b(1 provides that [p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. 1 During this same time period, Plaintiff noticed the deposition of Noel Avocato which has not yet been scheduled and Plaintiff has filed a motion to compel scheduled for hearing on December, 000. Plaintiff s Memorandum of Points and Authorities C-00 0 CRB

1 1 1 1 1 1 1 1 0 1 Fed. R. Civ. P. ((b(1, U.S.C. (West 1. The United States Supreme Court has held that Federal courts are to construe civil discovery rules liberally in Title VII cases to provide the plaintiff with broad access to employers records. Wards Cove Packing Co. v. Atonio, 0 U.S., (1; see also Leroy Ladson v. Ulltra East Parking Corp. et al., 1 F.R.D., (S.D.N.Y. 1; Jose Maria Soto, Jr. v. City of Concord, et al., 1 F.R.D. 0, (N.D. Cal. 1 (holding that [t]he scope of the discovery under the Federal Rules is extremely broad.. Consequently, [a]ll that must be shown is that the discovery requested possibly might be relevant [citation omitted] or reasonably calculated to lead to the discovery of admissible evidence. Ladson v. Ulltra East Parking, 1 F.R.D. at. A. Defendant Chevron Is A Proper Party To This Lawsuit. As an initial matter, Defendant Chevron has recently assumed the position that Chevron is not a proper party to this lawsuit and therefore has no obligation to respond to Plaintiff s discovery requests. Plaintiff first became aware of Chevron s position when Defendants produced their delayed responses to Plaintiff s First Requests for Production of Documents. Although Defendants filed two motions to dismiss in this matter, not once did they argue that Chevron Corporation should be dismissed as a party. In their responses to Plaintiff s First Requests, Defendants contended that as of December 1, 1, COPI had merged into Chevron U.S.A. ( CUSA and became Chevron Overseas Petroleum ( COP, a division of CUSA. Plaintiff contends that Defendants assertion does not negate the fact that Chevron, as the parent corporation, developed, maintained and implemented policies and procedures that were utilized by COPI and that both Defendants pattern and practice of racially discriminatory behavior is relevant to the issues in this case. Therefore, Plaintiff contends that Chevron is a proper party to this lawsuit and as long as it remains a party, Plaintiff s Memorandum of Points and Authorities C-00 0 CRB

1 1 1 1 1 1 1 1 0 1 Plaintiff will propound discovery to both Defendants as allowed by the Federal Rules of Civil Procedure. B. Defendant Chevron Should Be Compelled to Provide Responses To Plaintiff s Interrogatories. Pursuant to Rule of the Federal Rules of Civil Procedure, on July, 000 Plaintiff propounded two interrogatories on Defendants. Defendant Chevron has yet to provide Plaintiff with appropriate responses to these interrogatories. Federal Rule of Civil Procedure Rule (a( provides that an evasive, or incomplete disclosure, answer or response is to be treated as a failure to disclose, answer, or respond. F.R.C.P. (a(. Likewise, Federal Rule of Civil Procedure (b( provides that [t]he party submitting the interrogatories may move for an order with respect to [a] failure to answer an interrogatory. F.R.C.P. (b(. Similarly, Courts have found that failure to provide answers to interrogatories is an appropriate ground for sanctions. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 00 F.d, ( nd Cir. (district court properly exercised its discretion in imposing Rule sanctions for failure to answer interrogatories. Plaintiff s interrogatories Nos. 1 and seek the name, race, telephone number and job title of each person who was involved in the decision to terminate Plaintiff s assignment in Papua, New Guinea and also the date the decision was made to terminate Plaintiff. On August, 000, Defendants indicated in their responses that their investigation is ongoing and that they did not, at that time, possess information to respond to these interrogatories. Two months later, on October, 000, Defendant responded to Plaintiff s request to meet-and-confer on this issue by communicating to Plaintiff that [d]efendants are in the process of collecting information to respond to Plaintiff s First Set of Interrogatories, and will respond to these interrogatories as soon as they can confirm the information for their responses. COP anticipates that it will have the information necessary to Plaintiff s Memorandum of Points and Authorities C-00 0 CRB

1 1 1 1 1 1 1 1 0 1 respond to Plaintiff s First Set of Interrogatories in the near future. (Exh. It was not until November, 000 that Defendant COPI provided Plaintiff with supplemental responses to these interrogatories and Defendant Chevron has yet to provide adequate responses. Defendant Chevron is a party to this lawsuit. Therefore, Plaintiff is entitled to any information that Chevron has that is responsive to these interrogatories and requests that the Court compel Chevron to provide responses to his First Set of Interrogatories. C. Defendants Should Be Compelled to Produce Documents Responsive To Plaintiff s Document Requests. Pursuant to Rule, Plaintiff propounded Requests for Production of Documents on Defendants. Defendants have withheld information related to five categories of documents: (1 documents related to administrative charges, court complaints, investigations alleging racial discrimination and harassment, affirmative action/eeo policies, payroll and personnel tapes containing race information and reports relating to the representation of African Americans in Defendants workforce (Chevron and COPI Request Nos. 1,,,,,,, 1,, Chevron Request Nos. 1, and and COPI Request No.1; ( personnel, manager and supervisor handbooks and manuals, personnel policies and diversity, discrimination and harassment training documents (Chevron and COPI Request Nos., and ; ( the personnel files of the individuals who competed against Plaintiff for available positions (Chevron Request Nos. 1, 0, 1,,, and ; COPI Request Nos. 1, 1, 0, 1,, and and ( documents related to the investigation of Plaintiff s race discrimination complaint (Chevron and COPI Request Nos. and, Chevron Request No. 1 and COPI Request No. 1. In addition, Defendants have withheld organizational charts that Plaintiff in good faith believes to exist and to respond to discovery requests for documents related to Plaintiff s personnel file, Papua New Guinea s localization plan, the layoff, redeployment and termination of Plaintiff, Plaintiff s Memorandum of Points and Authorities C-00 0 CRB

and Defendants layoff and termination policies. (Chevron and COPI Request No.,,, 1 and, Chevron Request No., COPI Request No. 1 and. 1 1 1 1 1 1 1 1 0 1 1. Plaintiff Is Entitled To Documents Relating To Administrative Charges, Court Complaints And Investigations Of The Defendants Alleging Racial Discrimination And Harassment. In Chevron and COPI Requests Nos. 1,,,,,,, 1 and, Chevron Request Nos. 1, and and COPI Request No. 1, Plaintiff seeks production of administrative charges, court complaints, investigations alleging racial discrimination and harassment, affirmative action/eeo policies, payroll and personnel tapes containing race information and reports relating to the representation of African Americans in Defendants workforce. Defendants have withheld this information on relevancy grounds. Defendants objections are without merit. It is well-established that the testimony of other employees about their treatment by the defendant [employer] is relevant to the issue of the employer s discriminatory intent. See Heyne v. Caruso, F.d 1, 10 ( th Cir. 1 citing Spulak v. K Mart Corp., F.d 0, ( th Cir. ; Burns v. Thiokol Chemical Corporation, F.d 00, 0 ( th Cir. 1 (holding that information relevant to establishing an overall pattern of discriminatory conduct is discoverable and Estes v. Dick Smith Ford, Inc., F.d, 1 ( th Cir. 1 (holding that evidence of prior acts of discrimination is relevant to an employer s motive in discharging a plaintiff, even where this evidence is not extensive enough to establish discriminatory animus by itself. It is also well settled that the information Plaintiff seeks is relevant to his claims that Defendants have engaged in intentional discrimination against African-Americans and Africans that would allow for an inference about Chevron and/or COPI s motives in this matter. See Diaz v. American Telephone and Telegraph, F.d 1, 1 ( th Cir. 1 (the existence of a pattern of racial disparity would Plaintiff s Memorandum of Points and Authorities C-00 0 CRB

1 1 1 1 1 1 1 1 0 1 allow for an inference about [the company s] motives. Defendants have stated that they have no documents related to claims of race and/or national origin discrimination by Nigerian citizens. However, Hilman Walker, Chevron Corporation s Assistant Corporate Secretary testified during his deposition that he is on a committee that is implementing the Sullivan principles Chevron Corporation signed in Nigeria that address racially discriminatory practices throughout Chevron Corporation and its subsidiaries. (Exhs. and Plaintiff contends that he is entitled to any documents related to the Sullivan principles and Chevron Corporation s decision to sign them because they are also relevant to the issues of intent, motive and Chevron s pattern and practice of racial discrimination. Moreover, Defendants have recently indicated in response to Plaintiff s request for documents related to the investigation of complaints alleging racial discrimination and harassment and/or employment discrimination complaints (Chevron and COPI Request No. that they have produced all responsive, unprivileged documents. However, Defendants have not produced a privilege log in order that Plaintiff can determine whether he has a basis for challenging the assertion of privilege. Consequently, Defendants should be ordered to produce all nonprivileged documents responsive to these requests and a privilege log describing all documents withheld on the basis of attorney client privilege or attorney work product.. Plaintiff Is Entitled To Discover Personnel Policies, Manager And Supervisor Handbooks And Manuals. Plaintiff s Chevron and COPI Request Nos., and seek production of all Personnel, Manager, Supervisor, Employee or other handbooks and manuals, personnel policies and diversity, Judge Breyer cited Diaz v. American Telephone and Telegraph in his order denying Defendants motion to dismiss Plaintiff s Amended Complaint. Order dated July 1, 000 at :1-. Plaintiff s Memorandum of Points and Authorities C-00 0 CRB

1 1 1 1 1 1 1 1 0 1 discrimination and harassment training documents. Defendants have produced some documents responsive to these requests in a very piecemeal fashion. Consequently, Plaintiff has not been able to confirm whether Defendants have produced all documents responsive to this request. Plaintiff requests an order compelling Defendants to produce all documents responsive to this request within seven days of its order.. Plaintiff Is Entitled To Personnel Files Of Individuals Who Competed Against Plaintiff For Available Positions. Plaintiff s Chevron Requests Nos. 1, 0, 1,,, and and COPI Requests Nos. 1, 1, 0, 1,, and seek production of the personnel files of Ronald D. Lee, Kent Gilstrap, Murphy Guillory, Charles Rivard, Jr., David Rafal, Alex Raymond and John Thornhill, the white candidates who received positions at Chevron and/or COPI which Plaintiff alleges he was qualified to fill. Defendant is unwilling to produce these documents although it is well-established that a plaintiff in an employment discrimination case may discover performance evaluations and other documents related to comparable employees in order to prove race discrimination. See University of Pennsylvania v. EEOC, (1 U.S. 1, 1; Dorsten v. Lapeer County General Hospital (E.D. Mich. 10 F.R.D. ( it is difficult to perceive how any Plaintiff can be expected to argue and prove [disparate treatment] without access to the type of review and decision-making process undertaken in comparable situations with Plaintiff s male counterparts. Plaintiff has alleged Defendants discriminated against him on the basis of race when they failed to offer him a position within COPI in accordance with company policy and practice and falsely informed him that no positions were available after his assignment in Papua, New Guinea was terminated. (FAC at Plaintiff further alleges that his COPI sponsor, Noel Avocato assisted non-copi white employees in finding positions within COPI, including the positions that Plaintiff s Memorandum of Points and Authorities C-00 0 CRB

1 1 1 1 1 1 1 1 0 1 Plaintiff sought. Id. at, 1, 1 and 1. Moreover, Defendants contend that the persons selected were better qualified than Plaintiff. Consequently, Plaintiff should be allowed to discover the personnel files of these selected candidates to refute Defendants contention and support his claims.. Plaintiff Is Entitled to Documents Related To The Investigation Of Plaintiff s Race Discrimination Complaint. In response to Plaintiff s Chevron and COPI Request No., Defendants assert the attorneyclient privilege and attorney work product doctrine to withhold documents concerning Defendants interviews with current or former employees of Defendants concerning James White. Defendants assert this privilege despite the fact that they have not produced a privilege log that would allow Plaintiff to determine whether he has a basis for challenging Defendants assertion of privilege and/or work product. In Federal Court, the party asserting a privilege to withhold discoverable information bears the burden to establish the applicability of the privilege. See In re: Grand Jury Subpoenas, Hirch, 0 F.d, ( th Cir. 1 (Correction printed1 F.d ( th Cir. 1, quoted in Ralls v. United States, F.d, ( th Cir. 1. Without producing a privilege log, Defendants clearly have not met their burden. To establish the attorney-client privilege or attorney work product, the party asserting the privilege shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. Fed. R. Civ. P. (b(, U.S.C. Although during the October, 000 telephonic meet-and-confer Defendants asserted attorney work product and/or attorney client privilege as a basis to withhold documents responsive to this request, their failure to produce a privilege log renders this assertion meaningless. Plaintiff s Memorandum of Points and Authorities C-00 0 CRB

1 1 1 1 1 1 1 1 0 1 In addition, Chevron and COPI Request No., Chevron Request No. 1 and COPI Request No. 1 also request documents concerning Defendants internal investigation of Plaintiff s race discrimination complaint. During the October, 000 telephonic meet-and-confer Defendants indicated that they would check with Noel Avocato to determine if there are outstanding documents that have not been produced that are responsive to this request. Plaintiff has not been informed as to whether or not all documents from Noel Avocato have been produced. Defendants have had sufficient time to ascertain whether or not Noel Avocato has documents responsive to this request. Therefore, in order to prevent any further prejudice to Plaintiff by Defendants delays, the Court should compel Defendants to produce the requested documents.. Plaintiff Is Entitled To Timely Production Of Documents. Defendants have failed to produce documents responsive to Chevron and COPI Request Nos.,, 1 and, Chevron Request No., and COPI Request Nos. 1 and. These documents include portions of Plaintiff s personnel file, the Papua New Guinea localization plan and documents related to the layoff, redeployment and termination of Plaintiff located in Papua New Guinea. Defendants have had sufficient time to retrieve these documents from their overseas locations and to check with Noel Avocato regarding any responsive documents that he has in his possession. In addition, since July 000, Plaintiff has requested attachments to email documents that Defendants failed to produce as part of their Initial Disclosures. (Exhs.,,, 1 and 1 Despite repeated assurances from Defendants that they are going to address this issue, Plaintiff has not received the documents. (Exh. 1 Any further delays in producing these documents that Defendants have indicated they will produce will delay Plaintiff s ability to prepare for trial. Defendants should be ordered to produce all documents responsive to these requests immediately. Moreover, Defendants have also failed to produce organizational charts that Plaintiff in good faith believes to exist. (Chevron and COPI Request No. At his deposition on October 1, 000, Plaintiff s Memorandum of Points and Authorities C-00 0 CRB

1 1 1 1 1 1 1 1 0 1 Hilman Walker produced a Chevron organizational chart. The document dated August 1, 000, contained a footer indicating that it replaced a previous document dated February 1, 000. (Exh. Defendants maintain that the chart produced at the deposition is the only known chart, despite the evidence on the face of the document to the contrary. However, Carol Breslin testified during her deposition that she had seen a chart of COP or COPI that listed corporate officers. (Exh. Therefore, Plaintiff has reason to believe that additional charts exist and seeks an order compelling production of organization charts from to 000.. Plaintiff is Entitled To Relevant Deposition Testimony On September, 000, Plaintiff took the 0(b( deposition of Carol Breslin, Human Resources Manager for Chevron Overseas Petroleum. Ms. Breslin testified, on behalf of Defendants, as the person most knowledgeable about human resources issues. During Ms. Breslin s deposition Plaintiff s counsel asked Ms. Breslin the following permissible questions about Ms. Breslin s preparation for her 0(b( deposition: Q. Did you meet with counsel to prepare for your deposition? A. Yes, I did. Q. When? A. Last Wednesday. Q. How long did you meet? Ms. Bersch: I m going to object. I m going to instruct her not to answer that. You re not entitled to delve into her communications with counsel. Ms. Thomas: I can ask her how long she met with you. That s not a divulgence. Are you going to instruct her not to answer? Ms. Bersch: Yeah, I am. *** Q. Going back to your meeting with counsel, who was present? Plaintiff s Memorandum of Points and Authorities C-00 0 CRB 1

1 1 1 1 1 1 1 1 Ms. Bersch: Objection. I m going to instruct her not to answer that. Ms. Thomas: Well, as I have said, I m entitled to know if there was anyone present who could possibly result in the privilege not applying, so I ll ask the court reporter to please are you instructing her not to answer? Ms. Bersch: That question, yes. (Exh., Breslin Depo. 1:-, 1:-1 Plaintiff contends that Defendants improperly invoked the attorney-client privilege during the deposition of Breslin as indicated above. Although the attorney-client privilege protects confidential communications between a client and an attorney, the information that Plaintiff sought at Breslin s deposition falls outside privileged communications. Samuels v. Mitchell, 1 F.R.D. 1, 1 (N.D. Cal. 1. Plaintiff simply wanted to know the length of time that Breslin met with Defendants counsel and the identity of individuals who may or may not have been present during this meeting. It is a well-settled legal principle that disclosure of privileged communications to third parties generally waives the attorney-client privilege. Id. Also, Breslin s disclosure of the length of time that she met with counsel in preparation for the 0(b( deposition does not involve the disclosure of any confidential communications whatsoever. Therefore, Defendants improperly objected to the foregoing questions based on attorney-client privilege and Plaintiff requests that the Court enter an order stating that Plaintiff may inquire into nonprivileged areas concerning witness depositions preparation. 0 IV. CONCLUSION 1 For these reasons, Plaintiff s Motion to Compel Responses to Plaintiff s First Set of Interrogatories, Responses to Requests for Production of Documents and Responses to Deposition // // Plaintiff s Memorandum of Points and Authorities C-00 0 CRB 1

Questions should be granted and Defendants ordered to produce all responsive documents and a privilege log within seven days. 1 1 1 1 1 1 1 1 0 1 DATED:, 000 EQUAL RIGHTS ADVOCATES By: REBECCA L. HENRY Attorneys for Plaintiff Plaintiff s Memorandum of Points and Authorities C-00 0 CRB 1