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ROBERTA L. STEELE, SBN 188198 (CA) MARCIA L. MITCHELL, SBN 18122 (WA) JAMES H. BAKER JR, SBN 291836 (CA) KENA C. CADOR, SBN 321094 (CA) MARIKO M. ASHLEY, SBN 311897 (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 (CA) MARY VU, SBN 323088 (CA) POLSINELLI LLP 20249 Century Park East Suite 2900 Los Angeles, CA 90067 Telephone (310)-556-1801 Fax No. (310)-556-1802 ttellado@polsinelli.com mvu@polsinelli.com
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,
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vs.
Case No.: 3:23-cv-04984-JSC JOINT UPDATE REGARDING STATUS OF SUPPLMENTAL ESI PROTOCOL
TESLA, INC.
Defendant.
JT UPDATE RE ESI PROTOCOL
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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
Attorneys for Defendant TESLA, INC.
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SARA A. BEGLEY (admitted pro hac vice) DANA E. FEINSTEIN (admitted pro hac vice) POLSINELLI LLP Three Logan Square 1717 Arch St, Suite 2800 Philadelphia, PA 19103 Telephone: 215-267-3001 Facsimile: 215-267-3002 sbegley@polsinelli.com dfeinstein@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 rcardozo@reedsmith.com
Filed 12/11/24
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Pursuant to the Court’s Order Granting the Parties’ Stipulation to Extend The Deadline to
Submit a Second ESI Protocol (ECF 75), Plaintiff U.S. Equal Employment Opportunity Commission
(EEOC) and Defendant Tesla, Inc. (Tesla), (collectively, the parties), hereby submit the following
joint updates on the status of their efforts to finalize the supplemental ESI protocol.
1.
EEOC Position As the EEOC feared would be the case last Friday (see ECF 74), the parties’ three-day
extension was insufficient for the parties to resolve the supplemental ESI protocol (2nd ESI
Protocol). It did not help that the EEOC received Tesla’s first round of revisions only on Monday,
December 9. Id. But the main obstacle, by far, has been a lack of substantive ESI discussions: Tesla
has not yet disclosed which of its sources/systems contain relevant ESI, including which are
inaccessible, as well as what it has preserved, as of the filing of this update. The EEOC disclosed its
ESI sources/systems by letter on April 15, 2024, and expected Tesla to identify its own in the draft
supplemental protocol that the EEOC circulated on November 22, which included a section
specifically for the purpose. But Tesla did not do so. Yet, this basic information is a predicate to
finishing the 2nd ESI Protocol, which is meant to “address issues of ESI sources, relevant
custodians, document searches and review, [etc.]” See ECF 50, p. 8.
If the parties had not initially sought to defer discussing substantive ESI issues (see Id.), then
they would have been required topics at the parties’ April Rule 26(f) Conference. See Rule 26(f)
(mandating that the parties, among other things, discuss “any issues about disclosure, discovery, or
preservation of electronically stored information, including the form or forms in which it should be
produced.”); see also, Scheindlin & Daniel J. Capa, Electronic Discovery and Digital Evidence 257
(2015) (Rule 26(f) Conference is an “opportunity for the parties to . . . anticipate and resolve
electronic discovery disputes before they escalate, expedite the progress of their case, and assess and
manage litigation costs.”).
This district’s ESI guidelines and checklists also reinforce the need for early and robust
discussions about ESI, particularly ESI systems and sources. See NDCA Guidelines for the
Discovery of Electronically Stored Information (Updated December 1, 2015)(“At the required Rule
26(f) meet and confer conference, when a case involves electronic discovery, the topics that the
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parties should consider discussing include: 1) preservation; 2) systems that contain discoverable ESI
. . .”); see also, NDCA Checklist for Rule 26(f) Meet and Confer Regarding Electronically Stored
Information (Updated December 1, 2015), Section 3 (topics to be discussed include description and
location of systems potentially containing ESI). Thus, in accordance with the parties’ plans, the
Court’s orders, and the federal rules, the EEOC has sought to engage in these discussions.
The EEOC does not intend to sift through every grain of sand on all matters ESI-related. Nor
does it anticipate resolving all ESI related disputes before the 2nd ESI Protocol can be finalized. But
the EEOC cannot engage in meaningful discussions about the protocol, including Tesla’s recent
proposal to not preserve certain “legacy systems that they no longer have the licenses or software to
search,” without Tesla disclosing its ESI systems.
Tesla asserted on Tuesday, December 10, that it is still identifying its ESI sources and does
intend, at some point, to disclose them to the EEOC. 1 So, the EEOC understands that the main
question to be “when,” not “whether,” Tesla will do so. 2 Therefore, a reasonably prompt timeframe
both for sharing information and circulating revisions will enable the parties to narrow, if not
resolve, the remaining disagreements in the 2nd ESI Protocol.
Therefore, the EEOC believes the parties would benefit from a specific timeframe for:
1.
Identifying ESI sources and systems, including those Tesla believes 1) should be
preserved and searched, 2) preserved and not searched, and 3) not preserved, as well as any
preservation issues concerning them, and,
2.
provided.
Exchanging revisions to the draft 2nd ESI Protocol once this information has been
It would seem Tesla has had more than enough time in the 14-months that this case has been pending to identify its ESI
sources, particularly as the company has already produced some ESI to the EEOC, including emails and employee data for 14,000 of its Black employees. Cf. McLaughlin vs. Tesla, Inc., 22-cv-07849-SVK, (NDCA Apr. 19, 2023), Order on Joint Discovery Submission. Dkt. 20 (ordering Tesla to identify relevant custodians and data sources less than five months into litigation).
But if Tesla changes its position on this, then the parties may need to address this issue in a discovery dispute letter.
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We look forward to discussing these matters at the case management conference.
2.
Tesla’s Position On November 22, 2024, the EEOC first circulated a draft Second ESI Protocol. Due to the
technical nature of the protocol, Tesla needed to consult with its ESI liaison prior to entering into
specific agreements regarding electronic discovery. As a result, Tesla was unable to provide
revisions to the EEOC’s draft until December 9, 2024. Tesla then offered to meet and confer at the
EEOC’s convenience to discuss and reach an agreement on the Second ESI Protocol before the
extended deadline of December 11, 2024.
During a meet and confer on December 10, 2024, the EEOC informed Tesla for the first time
that it might not be able to propose further revisions to the Second ESI Protocol until Tesla provided
a list of relevant ESI sources. Despite this, it appeared the parties were close to an agreement on
several of the provisions of the protocol as the conference continued. After the call, Tesla expected
to receive further revisions from the EEOC in anticipation of reaching at least partial agreement
prior to the December 11, 2024 filing deadline. However, in the afternoon of December 11, 2024
that the EEOC indicated it would not be prepared to propose further revisions until it is informed of
the ESI sources that have been and will be preserved, including those that Tesla believes are
inaccessible, and any preservation issues. At no point prior to December 10, 2024 was Tesla made
aware that the Second ESI Agreement could not be agreed upon without a list of relevant ESI
sources.
Tesla disagrees with the EEOC’s assertion that it has not engaged in substantive ESI
discussions with the Commission. Tesla has been forthright in all its discussions with the EEOC and
invited its ESI liaison to join the December 10, 2024 discussion to ensure transparency and clarity
regarding Tesla’s revisions to the Second ESI Protocol. During that conversation, Tesla and its ESI
liaison highlighted the challenge of providing a complete list of relevant ESI sources without
knowing the specifics of the EEOC’s future requests. Despite this challenge, Tesla reiterated that it
is actively working on compiling a list of relevant ESI sources and will provide it as soon as
possible. Tesla also made it clear that the parties could reach a temporary agreement without
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prejudice, preserving the opportunity to address any future concerns the EEOC may have regarding
Tesla’s relevant ESI source list.
Dated: December 11, 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 M. 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 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: December 11, 2024
/s/ James H. Baker James H. Baker, Senior Trial Attorney
JT UPDATE RE ESI PROTOCOL
Case No.: 3:23-cv-04984-JSC
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