Stovall v. Align Technology, Inc.

Background

Kristan Stovall alleges that Align Technology, Inc. discriminated against her because of age and sex in connection with her employment. She asserts six claims under federal and state law.

Before a private mediation on October 14, 2020, Stovall’s economic expert, Vanessa Hill, prepared a report calculating Stovall’s lost earnings and benefits. Stovall says the report was prepared and provided to Align solely for the mediation. Align did not dispute that characterization, and its lawyer acknowledged at the hearing that he understood the report had been provided for that purpose.

Stovall later identified Hill as a testifying expert under Federal Rule of Civil Procedure 26 and provided a separate report describing Hill’s opinions and their bases. During Hill’s deposition, Align asked about the October 2020 mediation report. Stovall’s lawyer objected and instructed Hill not to answer. Align then sought further testimony from Hill and unspecified documents concerning that report.

Discovery Dispute

Align argued that the October 2020 report was relevant because it might show that Hill shaped her opinions to reach a desired result or used an unreliable method. Stovall relied on Federal Rule of Evidence 408 and also argued, for the first time at the hearing, that California’s mediation protections barred discovery of the report.

The court explained that state-law privileges apply in a federal civil case only when state law supplies the rule for deciding the relevant claim or defense. Thus, California’s mediation protection did not apply to Stovall’s federal claims. The court also stated that the Ninth Circuit had not interpreted Rule 408 as creating a broad privilege that bars discovery of all mediation or settlement communications. Instead, Rule 408 generally prevents using settlement or mediation communications to prove or disprove the validity or amount of a disputed claim, or to impeach a person through a prior inconsistent statement or contradiction.

The court nevertheless concluded that the additional testimony and documents Align sought were not discoverable. Both parties understood that Hill’s report was provided solely for mediation, and Align acted consistently with that understanding. The court found it unfair to allow Align later to use the report for a different purpose. The lack of a signed writing memorializing the parties’ understanding did not change that conclusion. The court therefore denied Align’s request for further discovery concerning the report.

Daubert Deadline

Align also asked to extend the deadline for a hearing on a Daubert motion, meaning a motion challenging an expert’s qualifications, opinions, or methods. Align said it needed an extension because Hill’s deposition occurred after the existing deadline. Stovall opposed the request, arguing that the presiding judge had already considered and declined to extend the deadline.

The court noted that Align had not asked Judge Richard Seeborg to extend the deadline when the parties sought an extension of the expert-discovery cutoff, even though Align had already taken Hill’s deposition and knew the Daubert deadline had passed. Because the court denied further discovery about the October 2020 report, it found no other justification for an extension. However, because the case would be tried to the court rather than a jury, the court expected that the presiding judge might want substantial expert challenges addressed before the pretrial deadline for motions in limine. The court therefore recommended extending the deadline to allow both parties to bring Daubert motions.

Disposition

The order denied Align’s request for further discovery of Hill’s October 2020 report. It recommended that the presiding judge extend the deadline for hearing Daubert motions to a date convenient for the court’s schedule. The opinion does not state that the presiding judge adopted or rejected that recommendation.