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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 THIRD UPDATED JOINT CASE MANAGEMENT CONFERENCE STATEMENT
TESLA, INC.
Defendant.
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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 01/07/25
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Pursuant to the Court’s Pretrial Order No. 1 (ECF 77), Plaintiff U.S. Equal Employment
Opportunity Commission (EEOC) and Defendant Tesla, Inc. (Tesla), (collectively, the parties),
hereby submit the following Updated Joint Case Management Conference Statement (CMC
Statement). In accordance with the Court’s Civil Standing Order, this CMC Statement only
addresses new issues. See ECF 65; Civil Standing Order at 2, Section E.
1.
Motions
There are no pending motions, though the parties are continuing to meet and confer on the
following issues, some of which may be submitted to the Court in Discovery Dispute Letters,
summarized below in Section 2 (Pending Discovery Disputes).
2.
Pending Discovery Disputes a. Supplemental ESI Protocol
1) EEOC’s Update
The EEOC has sought from Tesla its sources of ESI that it believes to be potentially relevant,
the applicate date ranges for these sources, confirmation that Tesla has taken reasonable steps and
other information that the District’s guidance on ESI anticipates that the parties will meet and confer
about. See e.g., NDCA Guidelines for the Discovery of Electronically Stored Information (Updated
December 1, 2015). This information is predicate to finalizing a 2nd ESI Protocol, as the EEOC
explained in the parties’ update on the status of the 2nd ESI Protocol. See ECF 76. Tesla eventually
identified some ESI sources in late-December, which the parties met and conferred about on January
3. On January 6, the EEOC circulated a revised draft ESI Protocol and a separate letter (January 6
Letter) explaining the agency’s revisions and inquiring about the sources of ESI that Tesla identified
and other potential sources, as well as whether the data on these sources has been preserved. The
EEOC awaits Tesla’s reply and anticipates that the parties will need to meet next with their
respective liaisons.
Besides identifying key ESI sources and confirming their preservation, the main remaining disputes concern:
•
The parties’ respective relevant date ranges for preserving ESI;
•
The date each party’s preservation obligation arose;
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•
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Whether Tesla needs to preserve ESI contained in certain sources it describes as “legacy systems” for which it lacks a license or software to access and the identity of those sources;
•
Whether the use of search terms to review data, such as emails, should be guided by specific
timeframes for the exchange of proposed search terms, reports, counter-proposals, etc., and
the information that the parties should disclose during technologically assisted reviews; and,
•
The scope of any exclusions to the parties’ privilege logs.
As the parties are just now engaging in substantive conversations concerning the ESI sources
Tesla identified last month, it is unclear to the EEOC which, of any, of the outstanding disputes will
end up before the Court. Tesla’s response to the EEOC’s January 6 Letter, however, will help to
clarify the breadth of any lingering disputes.
2) Tesla’s Update
Although Tesla highlighted to the EEOC the difficulty of providing a comprehensive list of
relevant ESI sources without knowing the specifics of the EEOC’s forthcoming discovery requests,
Tesla nonetheless worked diligently to identify potential sources of ESI that it deems relevant and to
timely provide same to the EEOC as a basis for further discussion. On December 23, 2024, Tesla
submitted its revisions to the Second ESI Protocol, which included its list of potentially relevant ESI
sources. On January 3, 2025, the parties met and conferred, and the EEOC posed additional
questions to Tesla that it requested Tesla address before the EEOC would agree to the Second ESI
Protocol. Tesla requested that the EEOC submit these requests in writing, and the EEOC provided
the requests 9:51 pm PT on January 6, 2025. Tesla is in the process of reviewing the EEOC’s
requests in order to determine whether any additional responsive potential sources of ESI exist, and
the preservation dates of same, and will provide an update to the EEOC regarding same. Tesla is
committed to continued collaboration with the EEOC regarding the Second ESI Protocol and will
provide prompt feedback to the EEOC’s correspondence received on January 6, 2025.
While the parties are still in negotiations over the Second ESI Protocol and several terms
remain unresolved, Tesla looks forward to continuing to collaborate with the EEOC to reach an
agreement and to minimize any outstanding disputes to be brought before the Court. Throughout the
process, Tesla continues to emphasize to the EEOC that the parties could reach a temporary
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agreement on protocol terms without prejudice, leaving room to address any future concerns the
parties may have regarding their respective relevant ESI source lists or their respective "legacy
systems."
b. EEOC Interrogatory: Identifying Information Concerning Black Employees (Employee List) 1) EEOC’s Update
On September 24, 2024, the EEOC issued an Interrogatory pursuant to Fed. R. Civ. P. 33, for identifying information for Black employees at Tesla’s Fremont Facility. On December 5, 2024, Tesla produced names, dates of employment, last known home address, last known email address, last known telephone number, last known job title, last known supervisor, last known job family, last known job function, and separation reason (if applicable) its Black employees. Although the Interrogatory also sought Social Security Numbers (last four digits) and birth dates for these individuals, the EEOC agreed to relinquish its pursuit of this information without prejudice to seek it later.
Therefore, the only remaining dispute is over outstanding information for an estimated 430 remaining employees. On January 3, Tesla committed to providing the outstanding information early this week. Assuming Tesla does so, then this dispute will be at least temporarily resolved. 2) Tesla’s Update
On January 6, 2025, Tesla produced a supplemental contact list which provided outstanding information for the estimated 430 remaining employees. As such, this dispute is resolved for the time being.
c. EEOC Request for Production: Deposition transcripts in actions concerning race harassment at Fremont Facility.
1)
On September 24, 2024, the EEOC issued a Request for Production for deposition transcripts
EEOC’s Update
in any actions alleging harassment based on race (Black or African American) or retaliation at
Tesla’s Fremont Facility. On January 3, Tesla committed to answering this week whether:
•
Tesla will stand on objections to producing any deposition transcripts except for certain nonconfidential depositions taken in Department of Fair Employment and Housing v. Tesla, Inc.,
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Alameda County Superior Court No. 22CV006830; and Vaughn et al., v. Tesla, Inc., et al.,
Alameda County Superior Court No. RG 17882082, and,
•
Tesla has withheld any transcripts for non-confidential depositions taken in these cases.
Once the EEOC has Tesla’s answers, the parties will proceed with preparing a discovery dispute
letter regarding the remaining disputes.
2)
The parties met and conferred on January 3, 2025, regarding the EEOC’s additional
Tesla’s Update
questions about Tesla’s production of deposition transcripts. Tesla is actively working to address
these questions and expects to provide responses this week. To the extent that the parties cannot
reach agreement regarding same, the parties will submit a discovery dispute letter for the Court’s
review.
d. Tesla’s Request for Production: EEOC Communications with plaintiffs in Department of Fair Employment and Housing v. Tesla, Inc., Alameda County Superior Court No. 22CV006830, and Vaughn, et al. v. Tesla, Inc., et al., Alameda County Superior Court No. RG 17882082
1)
Tesla’s Update
On September 26, 2024, Tesla requested that the EEOC produce documents provided to it by the California Civil Rights Department (“CRD”), private plaintiffs’ firms California Civil Rights Law Group and Bryan Schwartz Law, P.C., and/or any other non-party that the EEOC reviewed, relied upon, or otherwise referenced in its investigation and/or litigation of its claims against Tesla. See Tesla’s First Requests for Production Nos. 12-15. This request encompasses all relevant communications, as per Tesla’s definition of “Documents” contained in its First Set of Requests for Production of Documents. 1 During a meet and confer call on November 4, 2024, the EEOC referenced purported information that led Tesla to understand that the EEOC engaged in communications with non-parties to this litigation that were not produced in response to RFPs 12-15. As a result, on December 4, 2024, Tesla requested that the EEOC supplement its productions to include these additional communications, as well as any other responsive documents that had not yet
Tesla’s Requests define documents as including “communications, electronic messages, text messages, e-mails,
correspondence…any kind of records of meetings or conversations…”
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been provided.
The parties met and conferred again regarding this request on January 3, 2025, and the EEOC
agreed to provide a privilege log once the Second ESI Protocol is finalized. This log will help clarify
the scope of the communications at issue and narrow any disputes over documents that have been
withheld. To the extent that the parties cannot reach agreement regarding same following Tesla’s
review of the EEOC’s privilege log, the parties will submit a discovery dispute letter for the Court’s
review.
2)
The parties have been negotiating, through the 2nd ESI protocol, potential categories of
EEOC’s Update
communications and documents that need not be included on a privilege log. This, of course, needs
to be finalized before either party can provide a privilege log, which Tesla has requested in
connection with this dispute. The EEOC, and presumably Tesla also, is committed to promptly
producing an initial privilege log once the 2nd ESI Protocol containing any privilege log exclusions
has been finalized. Thereafter, the EEOC’s log, which will include the subset of communications
with plaintiffs’ counsels in the aforementioned cases that Tesla seeks and which the EEOC asserts
are protected from disclosure by the common interest doctrine, should inform the parties and Court
on the scope of the communications at issue and hopefully narrow this dispute.
e. Additional Information for Potentially Aggrieved Individuals.
1)
On December 4, 2024, Tesla requested identifying information about approximately 106
Tesla’s Update
individuals who have contacted the EEOC regarding this matter, whom Tesla has not yet been able
to identify based on the limited information provided by the EEOC regarding these individuals. The
EEOC represented to Tesla that it agreed to provide email addresses and/or phone numbers for each
of the identified potentially aggrieved individuals. To the extent Tesla still cannot identify these
individuals with the additional information, the parties will meet and confer further.
2)
The EEOC will provide Tesla with email addresses and/or phone numbers for each of the
EEOC’s Update
potential aggrieved individuals Tesla has identified, by the end of January. To the extent Tesla later
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requests additional information for some of these individuals, the parties can meet and confer
further. The EEOC believes this issue can be resolved without additional Court guidance.
Dated: January 7, 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: January 7, 2024
/s/ James H. Baker James H. Baker, Senior Trial Attorney
3RD UPDATED JT CASE MANAGEMENT CONFERENCE STATEMENT
Case No.: 3:23-cv-04984-JSC
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