Canton v. U.S. Foods, Inc.

Background

Brian Canton brought individual, non-class claims alleging race-based employment discrimination, retaliation, and constructive discharge. He also alleged that US Foods had a pattern and practice of promoting less-qualified White employees over Black employees. The discovery dispute concerned Canton’s Requests for Production Nos. 40, 57, and 70.

Request No. 40 sought documents reflecting the demographic makeup of all employees at US Foods’ Livermore, California facility, including EEO-1 reports. Request No. 57 sought documents reflecting the demographic makeup of senior leadership—including supervisors, managers, and directors—at that facility during the prior 10 years. Request No. 70 sought US Foods’ affirmative-action plan data, including utilization-summary data, since 2004.

Canton had previously submitted a public-records request for EEO-1 reports filed by US Foods in California. The Office of Federal Contract Compliance Programs denied that request under a public-records exemption protecting certain confidential commercial or financial information. US Foods argued that the EEO-1 reports were irrelevant to Canton’s individual discrimination claims, that the requests were overbroad and disproportionate, and that the agency’s denial prevented Canton from seeking the same information.

Legal standard

Federal Rule of Civil Procedure 26 allows discovery of nonprivileged information that is relevant to a claim or defense and proportional to the needs of the case. The party seeking discovery initially must show relevance. The opposing party must show why discovery should not be allowed and support its objections. Rule 34 also requires document requests to describe the requested items or categories with reasonable particularity.

Court’s analysis

The court concluded that workforce statistics could be relevant to Canton’s individual discrimination claims because he alleged a pattern or practice of discriminatory promotion decisions. Statistical evidence might help show motive or discriminatory intent, even if it would not by itself prove Canton’s claim. The court relied on Ninth Circuit authority recognizing that statistical evidence can remain relevant even when it is insufficient, standing alone, to establish a discrimination claim.

The court also found that US Foods had not shown that producing the requested EEO-1 reports would be burdensome. At the hearing, US Foods’ counsel conceded that producing the reports would not be burdensome, although counsel argued that the requests were disproportionate because of their time span and breadth. The court declined to rule on documents or data not specifically presented in the parties’ joint discovery statement and noted that other requests could raise different relevance, burden, or proportionality concerns.

The court limited the time period for Requests Nos. 40 and 57. It found that producing EEO-1 reports from 2004 forward was not proportional to the needs of this individual case, but ordered production from 2010 to the present because the record indicated that Canton first applied for and was rejected for a promotion in 2010. The same period applied to both requests because the record did not show that senior-leadership and manager information was reported separately from employee information in the EEO-1 reports.

The court rejected US Foods’ argument that the agency’s public-records decision barred discovery under Rule 26. It explained that the public-records law governs disclosure of government records and does not determine what documents are discoverable from a litigant under the Federal Rules of Civil Procedure. The court also noted that US Foods had not identified legal authority establishing that the agency’s decision precluded discovery from US Foods.

For Request No. 70, the court applied the same relevance and proportionality reasoning. Canton’s affirmative-action policy and utilization data had not been included in his earlier public-records request, and his counsel agreed at the hearing to limit the request to 2010 through the present.

Disposition

The court granted in part Canton’s request to compel discovery concerning Requests for Production Nos. 40, 57, and 70. It ordered US Foods to produce, within two weeks from the date of the order, EEO-1 reports and affirmative-action policies and utilization data covering 2010 through the present. The opinion does not identify the judge by name.