Rubke v. ServiceNow, Inc.

Background

Paul S. Rubke and other plaintiffs brought a class action against ServiceNow, Inc., and the Board of Directors of ServiceNow, Inc., asserting claims under the Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)(2). The presiding district judge had initially stayed discovery while considering the defendants’ motion to dismiss. After granting that motion with leave to amend, the presiding judge lifted the discovery stay for the limited purpose of allowing plaintiffs to gather facts that could address identified pleading defects concerning alleged process failures.

The dispute was referred to Judge Peter H. Kang for discovery purposes. The defendants sought another stay, including while they pursued a request for permission to seek an interlocutory appeal. The plaintiffs sought an order compelling limited discovery. The presiding judge had already denied the defendants’ request for reconsideration of the order lifting the stay.

Rulings on the Discovery Stay

The court denied the defendants’ request to stay discovery. It held that seeking another stay would improperly revisit issues already decided by the presiding district judge. The court also found that another stay could harm plaintiffs’ ability to amend their complaint and would complicate, rather than simplify, the discovery process established by the earlier orders.

Rulings on Document Production

The court granted in part and denied in part the plaintiffs’ request to compel limited documents. It ordered the defendants to produce, from February 2018 to the present:

The court denied the request for materials broadly described as being related to monitoring and replacing the American Century target-date funds because that wording could create further disputes and reach beyond the permitted discovery scope. The court modified that category by limiting it to Plan Committee documents that expressly discuss, mention, or memorialize those subjects.

The court rejected the defendants’ confidentiality and burden objections as boilerplate, conclusory, or speculative. It found that the defendants had not provided sufficient evidence about the information’s nature, the risk of disclosure, or the volume and burden of the requested production. The ordered production was to occur on a rolling basis and be substantially completed by November 4, 2024, before the amended complaint’s November 8, 2024 deadline.

Protective Order and Production Procedures

The court issued the Northern District of California’s Model Protective Order for Standard Litigation as the governing protective order. The parties were ordered to follow it when producing documents and to apply appropriate confidentiality designations where reasonably warranted.

The court also established privilege clawback procedures. If a produced document was later claimed to be privileged or protected, the defendants could issue a clawback notice identifying the materials, providing a privilege log, and supplying a redacted replacement or a notice that the entire document was being withheld. Plaintiffs and their counsel were required to collect and return or destroy the identified materials and not use them unless the court later ordered otherwise.

For the limited discovery at issue, the defendants could initially designate produced documents at the highest confidentiality level under the protective order. After substantial completion of production, they were required to take reasonably prompt steps to assign more appropriate confidentiality levels.

The parties were also ordered to submit joint discovery-status reports on October 24, October 30, and November 7, 2024. The order resolved docket entry 60.