United States District Court, D. Arizona
BERNARDO P. VELASCO, UNITED STATES MAGISTRATE JUDGE
before the Court are the following discovery-related motions:
(1) Plaintiff's two motions seeking protective orders
(Docs. 30, 39); (2) Defendant Tucson Tamale Company's
Motion to Quash and for Protective Order Protecting
Third-Party Koty-Leavitt Insurance Agency from
Plaintiff's Subpoena (Doc. 55); and (3) Plaintiff's
Motion to Compel (Doc. 70). Although Defendants have
requested oral argument, the Court, upon consideration of the
parties' extensive briefing of the issues, has determined
that oral argument is unnecessary to resolve the instant
motions. See LRCiv 7.2(f), Local Rules of Practice
of the U.S. District Court for the District of Arizona
(“The Court may decide motions without oral
April 15, 2016, Plaintiff filed a pro se complaint in Arizona
Superior Court alleging state law claims against Tucson
Tamale Company (“TTC”), Todd and Sherry Martin,
TTC's co-founders, and Lisa Martin, who works at TTC.
See Complaint, McBeath v. Tucson Tamale Company,
et. al., No. C20161794 (Arizona Superior Court, Pima
County April 15, 2016) (“the state
action”). Plaintiff's state claims arose
from her employment at TTC and subsequent termination.
(See Id.). TTC filed several counterclaims. (May 26,
2016 Answer to Verified Complaint and Counterclaims; June 13,
2016 Amended Counterclaims filed in the state
the state litigation was ongoing, Plaintiff filed this pro se
action against TTC, alleging employment discrimination in
violation of the Age Discrimination in Employment Act, 29
U.S.C. § 631. (July 11, 2016 Complaint (Doc. 1)). After
TTC unsuccessfully sought to dismiss this action based upon a
theory of claim-splitting (see Defendant's
Motion for Judgment on the Pleadings (Doc. 18); Report and
Recommendation (Doc. 29); Order adopting Report and
Recommendation (Doc. 31)), the parties agreed that Plaintiff
could file a Second Amended Complaint (“SAC”)
with this Court essentially combining her state and federal
claims, and that the state court action would be stayed
pending resolution of the federal court action. (See
Plaintiff's Notice of Withdrawal of Motion for Leave to
Amend the Complaint (Doc. 43); Plaintiff's Notice of
Entry of Order Staying Pima County Superior Court Proceedings
(Doc. 50)). Where, as here, the plaintiff wishes to amend the
complaint after the time period for amendment allowed by the
rules has passed, and the defendant agrees to the amendment,
there is no need to obtain court approval. See
Fed.R.Civ.P. 15(a)(2). See also, American States Ins. Co.
v. Dastar Corp., 318 F.3d 881, 888 (9th Cir. 2003)
(parties who obtain consent to amendment of pleadings need
not obtain court approval).
Second Amended Complaint (“SAC”), Plaintiff added
the Martins as co-defendants and alleges: (Count One)
violation of the Age Discrimination in Employment Act against
TTC; (Count Two) national origin, race and ancestry
discrimination against TTC; (Count Three) retaliatory
discharge against all Defendants; (Count Four) fraud against
all Defendants; (Count Five) negligent misrepresentation
against all defendants; (Count Six) failure to pay earned
wages against TTC; (Count Seven) breach of employment
agreement against TTC; and (Count Eight) restitution/unjust
enrichment against all defendants. (SAC (Doc. 44)).
filed the following counter claims: (Count I) breach of
contract; (Count II) violation of the Arizona Uniform Trade
Secrets Act, A.R.S. § 44-401, et seq.; (Count
III) breach of fiduciary duty; (Count IV) violation of the
Stored Communications Act, 18 U.S.C. §§ 2510, 2711;
(Count V) civil conspiracy; and (Count VI) Aiding and
Abetting.(Defendants' Answer to SAC and
Counterclaims (Doc. 45)).
Court has thoroughly reviewed the parties' briefs
together with the voluminous exhibits in support of same that
reflect in great detail the factual and procedural path of
the parties' discovery efforts and issues.
pending discovery-related motions
Plaintiff's “Motion for a Protective Order that
Protects Defendant's Employees from Intimidation and
Declares that Plaintiff may have Ex Parte Contact with
Them” (Doc. 30) (all capitalization omitted).
requests a protective order that: (1) will shield TTC's
employees “from harassment, intimidation and
retaliatory adverse actions for speaking with
[her]”; and (2) “declares that she, as
a pro se litigant, may have ex parte contact with
TTC's employees.” (Doc. 30 at 2). According to
Plaintiff, “TTC has threatened [her] with sanctions if
she contacts TTC's current and former employees.”
(Id.). Although Plaintiff does not identify the
employees whom she wishes to contact by name, she refers to
them as “witnesses” who are not
“officers”, “directors”, or
“managing agents”. (Id. at 3). Plaintiff
also requests permission for her attorney, should she retain
counsel in the future, to speak with current and former TTC
employees outside the presence of defense counsel.
(Id. at 4).
contests Plaintiff's motion for a variety of reasons,
including that the state court denied essentially the same
motion. TTC goes on to state that defense
counsel has “met with these general managers for
purposes of securing legal advice in connection with both the
Superior Court Matter and the underlying matter[, ]”
although TTC has not identified the general managers. (Doc.
35 at 10). TTC also asserts that defense counsel “has
had various communications regarding this case with TTC and
each of the employees with which McBeath seeks to
communicate.” (Id. at 11). TTC has offered
“to allow [Plaintiff] to record informal conversations
in the presence of [defense] counsel so that she could save
money taking depositions.” (Id. at 11 and Exh.
H). However, Plaintiff rejected this offer because she felt
defense counsel's presence would disrupt the free flow of
frames her request as a motion for a protective order. Under
Rule 26(c) of the Federal Rules of Civil Procedure, in
pertinent part: “A party or any person from whom
discovery is sought may move for a protective order in the
court where the action is pending. . . . The court may, for
good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense . . . .” Fed.R.Civ.P. 26(c)(1). “A party
asserting good cause bears the burden, for each particular
[item] it seeks to protect, of showing that specific
prejudice or harm will result if no protective order is
granted.” Foltz v. State Farm Mut. Auto Ins.
Co., 331 F.3d 1122, 1130 (9th Cir. 2003) (citation
omitted); see also Beckman Indus., Inc. v. Int'l Ins.
Co., 966 F.2d 470, 476 (9th Cir. 1992) (“[B]road
allegations of harm, unsubstantiated by specific examples or
articulated reasoning, do not satisfy the Rule 26(c)
test.”) (internal quotation marks and citation
omitted). The district court should “identify and
discuss the factors it considered in its ‘good
cause' examination to allow appellate review of the
exercise of its discretion.” Foltz, 331 F.3d
at 1130 (citation omitted).
Plaintiff is not subject to a discovery request. Instead, she
is the party desiring to question others. Consequently,
Plaintiff has not shown that she is entitled to a protective
order. To some extent, TTC's response may be construed as
a request for a protective order in that TTC seeks to prevent
Plaintiff from speaking to “general managers and
employees.” (Doc. 35 at 9-11). Although TTC indicates
that defense counsel “has had various communications
regarding this case with . . . each of the employees”
Plaintiff wishes to interview (Id. at 11), TTC has
not suggested that the present and former non-managerial
employees play any role other than as potential percipient
Arizona Rules of Professional Conduct “apply to
attorneys admitted or otherwise authorized to practice before
the United States District Court for the District of
Arizona.” LRCiv. 83.2(e). Arizona Rule of Professional
Conduct 4.2 (“ER 4.2”) provides:
In representing a client, a lawyer shall not communicate
about the subject of the representation with a party the
lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer
or is authorized by law to do so.
parties have acknowledged (see Doc. 30 at 2-3; Doc.
35 at 6), “[t]he prohibition is intended to (1) prevent
unprincipled attorneys from exploiting the disparity in legal
skills between attorneys and lay people, (2) preserve the
integrity of the attorney-client relationship, (3) help to
prevent the inadvertent disclosure of privileged information,
and (4) facilitate settlement.” Lang v. Superior
Court, 170 Ariz. 602, 604, 826 P.2d 1228, 1230
(Ariz.Ct.App. 1992). “Where an organization is
involved, Rule 4.2 prohibits attorneys from communicating
with three groups of individuals: ‘(1) those having a
managerial responsibility on behalf of the organization; (2)
any person whose act or omission in connection with the
matter may be imputed to the organization; and (3) any person
whose statement may constitute an admission on the part of the
organization.'” Dream Team Holdings, LLC v.
Alacron, 2016 WL 5408318, at *2 (D. Ariz. Sept. 28,
2016) (quoting Lang 170 Ariz. at 604-05, 826 P.2d at
1230-31). “Importantly, this ethical obligation is
triggered if the statement of the employee ‘might'
be admissible-it need not be demonstrated that the statement
is, in fact, admissible.” Id. (quoting
State ex re. Ariz. Dept. of Health Servs. v.
Gottsfield, 146 P.3d 574, 577 (Ariz.Ct.App. 2006));
see also Kaiser v. AT&T, 2002 WL 1362054 (D.
Ariz. April 5, 2002) (restricting ex-parte access to high
ranking former employees). After Lang was decided,
the Arizona State Bar issued an ethics opinion recognizing in
pertinent part, that whether the testimony of the current (or
former) employee may be detrimental to the employer (or
former employer) is not determinative. State Bar of Arizona
Ethics Opinion No. 95-07 (1995).
“district court ‘has wide latitude in controlling
discovery, and its rulings will not be overturned in absence
of a clear abuse of discretion.'” Lane v.
Dep't of Interior, 523 F.3d 1128, 1134 (9th Cir.
2008) (quoting White v. City of San Diego, 605 F.2d
455, 461 (9th Cir.1979)); see also Little v. City of
Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (same).
Although the parties have presented no Arizona authority to
support the contention that Plaintiff, who is unrepresented,
is bound by the ethical rules that govern attorneys, the
policy reasons advanced by the promulgation of ER 4.2 support
extension of the parameters of the Rule to this case.
light of the applicable authority discussed supra,
Plaintiff shall not be permitted to speak to TTC's
current and former general managers outside the presence of
defense counsel. Plaintiff may speak outside the presence of
defense counsel to other TTC former and current employees who
are not or were not employed in a managerial or supervisory
capacity; however, to do so, Plaintiff or any investigative
representative must inform the employee or former employee at
the beginning of any contact:
(1) of Plaintiff's reason for seeking the interview;
(2) the right of the employee or former employee to refuse
the interview as there is no legal obligation to consent to
the informal interview; and
(3) the right of the employee or former employee to have
counsel of his or her choice present during the interview.
is advised that should she fail to abide by this Order,
Defendants may file an appropriate motion requesting to
preclude such testimony and/or other information gained from
the communication and may request any other sanctions they
deem are in order.
request for permission for future counsel she may retain to
speak ex parte with TTC employees is denied as
premature. Plaintiff's request to protect any employees
who choose to speak with her from intimidation by Defendants
does not appear to fall within the realm of a protective
order. Moreover, even if it did, Plaintiff's declaration
(see Doc. 30 at 8) fails to provide a sufficient
evidentiary basis as to why such protection would be
Plaintiff's Motion for a Protective Order to Shield
Experts Consulted Informally (Doc. 39)
requests that the Court order TTC: (1) to cease all efforts
to identify any experts she has or is consulting informally;
(2) cease all efforts to discover the nature and content of
the advice/services provided by these experts; and (3)
neither mention nor comment on individuals in court filings
whom Plaintiff has indicated she has consulted or may be
consulting informally. (Doc. 39 at 2).
motion concerns Francisco Marquez and Ehud Gavron, and it
appears that TTC has issued at least one subpoena duces tecum
directed to Gavron. (See Doc. 48, Exhs. 12, 13).
theory is that Plaintiff disclosed to Gavron and Marquez
“TTC's protected information in violation of her
employment duties and contractual obligations.”
(Defendants' Opposition to Plaintiff's Motion for a
Protective Order to Shield Experts Informally Consulted (Doc.
48 at 2)). TTC references both men in its First Supplemental
Disclosure Statement filed with this Court. (See
Doc. 48, Exh. 4 at ¶¶7, 8). According to TTC:
Mr. Marquez is a disbarred California attorney who, upon
information and belief, is providing legal services and
advice to McBeath without a license, coordinated with McBeath
before the lawsuit to obtain relevant information to build a
case against TTC, is in possession of protected confidential
information belonging to TTC that McBeath provided to him
without authorization, and who is aware of the facts and
legal theories raised in Plaintiff's Complaint. He is
expected to testify regarding his knowledge of the subject
lawsuit, the facts and circumstances surrounding the events
that occurred before the filing of this lawsuit, TTC's
confidential information obtained in his possession, actions
taken by him in collaboration with Plaintiff, any
communications with Plaintiff or Defendant, or any witnesses
with knowledge of the disputed facts. . . . Mr. Marquez may
provide foundation for the admission of evidence, as
(Id. at 7) (emphasis omitted).
identifies Gavron as “a friend of the Plaintiff and one
of the individuals [sic] McBeath disclosed TTC's
confidential information.” (Id. at ¶8).
TTC anticipates that Gavron will provide testimony along the
same lines as TTC expects from Marquez. (Id.).
According to TTC, over the course of Plaintiff's
employment at TTC, Plaintiff sent Gavron over 100 e-mails.
(Doc. 48 at 4). Further according to TTC, Plaintiff violated
her confidentiality agreement when she sent Gavron
information to access TTC's Revel Point of Sale system
where TTC stores its business operational data.”
(Id. at 5 (citing Doc. 48, Exh. 6 (October 21, 2015
e-mail from Plaintiff to Gavron))). Defendants also assert
that Plaintiff sought advice from Gavron to circumvent
mandatory liquor license training, one of her alleged
improper acts forming the basis of Defendants'
affirmative defense based on after-acquired evidence of
wrongful acts. (Id. at 6 (citing Doc. 48, Exh. 8
(Aug. 12 2015 e-mail from Plaintiff to Gavron))). According
to Defendants, when Plaintiff sent these e-mails, the factual
basis supporting her claim of wrongful termination had not
has not disclosed either Gavron or Marquez as experts whom
she intends to call to testify at trial. (See
Plaintiff's Reply (Doc. 58 at 4, 7)). Gavron has stated
that he is Plaintiff's friend and assists her in her
lawsuit as her friend. (Doc. 48, Ex. 9). In addition to
providing “generic legal information…direct[ing]
[Plaintiff] to resources where she may find more information,
. . .” Gavron, who has worked as a “computer
expert”, is a providing free assistance to Plaintiff
“as a computer technology consulting expert.”
(Id. (Letter written sometime between October 14,
2016 and November 4, 2016)). He does not expect to testify at
trial. (Id.; see Id. (Gavron also helps Plaintiff by
proofreading documents for accurate grammar, spelling, and
punctuation)). According to Defendants, Plaintiff claimed in
state court that Gavron was acting as a consultant regarding
TTC's counterclaims arising under the Stored
Communication Act (“SCA”). (Doc. 48 at 8).
does not dispute that TTC may discover Gavron's
“personal knowledge of any material facts at issue in
this case that predate his retention as an expert[, ]”
although she fails to identify the date and circumstances of
his retention. (Doc. 58 at 2). Additionally, Defendants are
clear that they “do not seek information relating to
the narrow scope of [Gavron's] purported expertise. . . .
Defendants do not seek discovery on any such after-the-fact-,
narrowly-construed consultation and advice [re the SCA].
Defendants do, however, seek discovery on all other aspects
of interaction between Gavron and McBeath, including her
underlying conduct, in which Gavron participated, violative
of the SCA including, without limit, her dissemination and
disclosure of TTC's legally and contractually protected
information to various third-parties not authorized to
receive said information.” (Doc. 48 at 8).
26(b)(4)(D) of the Federal Rules of Civil Procedure governs
disclosures from experts who are employed for trial
preparation but are not expected to testify:
Ordinarily, a party may not, by interrogatories or
deposition, discover facts known or opinions held by an
expert who has been retained or specially employed by another
party in anticipation of litigation or to prepare for trial
and who is not expected to be called as a witness at trial.
But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on