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Roberta L. Steele, SBN 188198 (CA) Marcia L. Mitchell, SBN 18122 (WA) James H. Baker, JR, SBN 291836 (CA) Mariko Ashley, SBN 311897 (CA) Kena C. Cador, SBN 321094 (CA) U.S. Equal Employment Opportunity Commission San Francisco District Office 450 Golden Gate Ave., 5th Floor West P.O. Box 36025 San Francisco, CA 94102 Telephone No. (650) 684-0950 Fax No. (415) 522-3425 james.baker@eeoc.gov
Attorneys for Plaintiff EEOC
Christina T. Tellado (SBN 298597) ttellado@polsinelli.com Mary Vu (SBN 323088) mvu@polsinelli.com POLSINELLI LLP 2049 Century Park East Suite 2900 Los Angeles, CA 90067 Telephone: 310-556-1801 Facsimile: 310-556-1802
Attorneys for Defendant TESLA, INC. (Additional counsel listed on next page)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
vs.
TESLA, INC.
Case No.: 3:23-cv-04984-JSC
JOINT STIPULATION AND PROPOSED ORDER REGARDING A PROTOCOL TO LIMIT DISCOVERY FOR POTENTIALLY AGGRIEVED INDIVIDUALS
Defendant.
JT STIP. & PROPOSED ORDER RE PROTOCOL
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Sara A. Begley (admitted pro hac vice) sbegley@polsinelli.com POLSINELLI Three Logan Square 1717 Arch St, Suite 2800 Philadelphia, PA 19103 Telephone: 215-267-3001 Facsimile: 215-267-3002 Tyree P. Jones Jr., SBN 127631 (CA) POLSINELLI 1401 I Street, N.W., Washington, DC 2005-3317 Telephone No. (202) 783-3300 tjones@polsinelli.com
Raymond A. Cardozo, SBN 173263 (CA) REED SMITH LLP 101 Second Street, Suite 1800 San Francisco, California 94105-3659 Telephone No. (415) 543-8700 Fax No. (415) 391-8269
Attorneys for Defendant TESLA, INC.
JT STIP. & PROPOSED ORDER RE PROTOCOL
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Pursuant to Pretrial Order No. 2, (ECF 65), Plaintiff U.S. Equal Employment Opportunity
Commission (EEOC) and Defendant Tesla, Inc. (Tesla), (collectively, the parties), hereby submit the
following Joint Stipulation and Proposed Order Regarding a Protocol to Limit Discovery for
Potentially Aggrieved Individuals.
The parties’ proposal seeks to reduce some of the expected discovery burdens regarding
discovery into the potentially aggrieved individuals. The parties also see benefits in a mechanism for
the mutual, rolling exchange of certain documents and information. While the parties seek to manage
the discovery volume in this initial stage, they reserve the right to develop their claims and defenses
and to articulate to the Court how the next phase of discovery and the case should proceed. See ECF
63, p. 8 “. . . [A]the end of the Initial Fact Discovery Period, [the parties] will have a better
understanding of our respective claims and defenses, and be better positioned to brief the Court on
our proposal(s) for completing fact and expert discovery and resolving any subjects that may aid the
Court in narrowing issues and managing the case through trial, such as the appropriateness of
bifurcation, the timing of dispositive motions, models of proof.”
In proposing these discovery limitations, the parties do not limit, waive, or prejudice either
party’s right to seek additional information during the Initial Fact Discovery period or at any point
prior to close of discovery. For example, the protocol will not restrict the parties’ ability to pursue
other information and communications concerning complaints or evidence of racial harassment or
retaliation and Tesla’s responses to them. Nor shall this protocol limit the objections and defenses
otherwise available to the parties in discovery. The parties further do not waive the right to select,
propose, or stipulate to other discovery methods during this Initial Fact Discovery periods or in
subsequent phases of the case. Lastly, the information exchanged through this protocol does not bind
either party to a particular theory, model of proof, or defense, and does not limit either party to only
using evidence relating to the PAIs (as defined below).
The parties are still negotiating their proposed Supplemental ESI Protocol which will also apply to productions of records pursuant to this stipulation.
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1.
Proposed Protocol (a)
Scope of Potentially Aggrieved Individuals Subject to Discovery:
During the Initial Fact Discovery Period, the parties will limit the direct discovery on the
potentially aggrieved individuals (PAIs), hereinafter defined as Black current and former Tesla
employees employed since May 29, 2015, at Tesla’s Fremont, California factory (ECF 1 p. 1-2), to a
subset of those who have specifically sought advice or assistance from the EEOC in connection with
this lawsuit to date. At present, EEOC has identified to Tesla roughly 1,100 such individuals (PAIs).
The EEOC anticipates that additional individuals will seek the Commission’s advice or assistance
during discovery, particularly after EEOC receives a more complete class list from Tesla. The EEOC
agrees to regularly and timely update Tesla regarding the existence of additional PAIs. During the
Initial Fact Discovery Period the parties will not seek records from PAIs except as provided in this
protocol, absent a stipulation or court order.
(b)
Selection Criteria:
Each party will select 50 PAIs (100 total) for whom they will each make stipulated
disclosures during the Initial Fact Discovery Period. The parties are limited to 10 total depositions
during the Initial Fact Discovery Period. See ECF 63 p. 9.
(c)
Disclosures:
For each PAI selected during the Initial Fact Discovery Period, parties will produce the following records and information concerning them:
(1)
From Tesla:
(i)
Available employee data (e.g., complete “personnel”
records and data, performance evaluations, disciplinary records, termination records, job
descriptions, etc.), regardless of how such data is maintained;
(ii)
Non-privileged complaint/investigation records and all
related non-privileged correspondence and documentation, if any, concerning allegations of
mistreatment based on race, or retaliation;
(iii)
Available records reflecting the identities of the PAI’s
leads, supervisors and managers, and assigned HR staff, and records reflecting the departments they
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worked in, and,
(iv)
Any other document(s) in Tesla’s possession upon
which it may rely to support its defenses concerning any allegations of harassment or retaliation
from the PAI, including but not limited to any relevant declarations produced in or depositions taken
in the CRD and Vaughn cases.
(2)
From the EEOC (i)
Any non-privileged EEOC records and communications
concerning the selected PAI’s allegations of harassment or retaliation to the extent not already
produced in the litigation;
(ii)
Available diary, journal, calendar entries, and non-
privileged communications maintained by the PAI concerning the factual allegations or claims at
issue in this lawsuit;
(iv)
Any other available document(s) in the PAI’s
possession upon which the EEOC may rely to support its claims.
Available documentation regarding any complaints
submitted by the PAI to Tesla; and
(iii)
(3)
The EEOC intends to seek items #2(ii)-2(iv) directly from the
selected PAIs.
The parties do not agree as to the procedure to be followed if the Commission is unable to
obtain this information from the PAIs within the specified deadline. Tesla’s position is that the
Commission should agree not to oppose Tesla’s right to subpoena information in the above-listed
categories directly from the PAIs, which is the most efficient and comprehensive method of
document collection. The Commission’s position is that if either party cannot comply with the
Protocol, they should meet and confer and, if necessary, seek appropriate guidance or relief from the
Court.
(d)
Timing of Selections and Disclosures:
The selections will occur on a rolling basis beginning December 1, 2024, or the first Monday
following Court approval of this Protocol, whichever is later. Thereafter, each party may select up to
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PAIs at a time every 90 days with the disclosures due every 90 days after the selection. The
parties reserve the right to conduct discovery regarding PAIs in further phases of discovery, up to the
close of fact discovery.
(e)
Changes or Modifications to the Protocol:
The parties will meet and confer about the proposed protocol, as may be warranted, after they
assess the efficacy of this protocol, and particularly after additional potentially aggrieved individuals
are identified. Neither party shall be prejudiced from seeking a modification of these limitations by
stipulation or Court order at any time.
Dated: October 30, 2024
ROBERTA STEELE
Regional Attorney
KARLA GILBRIDE
General Counsel
MARCIA L. MITCHELL
Assistant Regional Trial Attorney
CHRISTOPHER LAGE
Deputy General Counsel
JAMES H. BAKER
Senior Trial Attorney
Office of the General Counsel 131 M Street, N.E.
Washington, D.C. 20507
KENA C. CADOR
Senior Trial Attorney MARIKO ASHLEY Senior Trial Attorney BY:
/s/ James H. Baker James H. Baker U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Francisco District Office 450 Golden Gate Ave., 5th Floor West P.O. Box 36025 San Francisco, CA 94102 Telephone (650) 684-0950 james.baker@eeoc.gov Attorneys for Plaintiff EEOC
BY:
/s/ Tyree P. Jones, Jr.
Tyree P. Jones Jr., SBN 127631 (CA) POLSINELLI 1401 I Street, N.W., Washington, DC 2005-3317 Telephone No. (202) 783-3300
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tjones@polsinelli.com
Attorneys for Defendant Tesla Inc.
LOCAL RULE 5-1(i)(3) ATTESTATION I, James H. Baker, am the ECF User whose ID and password are being used to file the Joint Case Management Conference Statement. In compliance with Local Rule 5-1(i)(3), I hereby attest that Tyree P. Jones concurs in this filing.
Dated: October 30, 2024
/s/ James H. Baker James H. Baker, Senior Trial Attorney
JT STIP. & PROPOSED ORDER RE PROTOCOL
Case No.: 3:23-cv-04984-JSC
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[PROPOSED] ORDER
The parties’ Joint Stipulation Regarding a Protocol to Limit Discovery for Potentially Aggrieved Individuals is hereby ordered as stipulated.
DATED:___________________
___________________________ JACQUELINE SCOTT CORLEY United States District Judge
JT STIP. & PROPOSED ORDER RE PROTOCOL
Case No.: 3:23-cv-04984-JSC
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