Thomas E. Hill (SBN 100861)
`thomas.hill@hklaw.com
`Christina T. Tellado (SBN 298597)
`christina.tellado@hklaw.com
`HOLLAND & KNIGHT LLP
`400 South Hope Street, 8th Floor
`Los Angeles, California 90071
`Telephone: (213) 896-2400
`Facsimile: (213) 896-2450
`
`Sara A. Begley (application for admission pro hac vice pending)
`sara.begley@hklaw.com
`HOLLAND & KNIGHT LLP
`2929 Arch Street, Suite 800
`Philadelphia, Pennsylvania 19104
`Telephone: (215) 252-9600
`Facsimile: (215) 867-6070
`
`Attorneys for Defendant/Cross-Claimant
`TESLA, INC.
`(Additional counsel listed on next page)
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`
`FOR THE COUNTY OF ALAMEDA
`
`DEPARTMENT OF FAIR EMPLOYMENT AND
`HOUSING, an agency of the State of California,
`
`Plaintiff,
`
`v.
`
`TESLA, INC., doing business in California as
`TESLA MOTORS, INC., and DOES ONE through
`FIFTY, inclusive,
`
`Defendants/Cross-Claimant.
`
`No.: 22CV006830
`
`Assigned to The Honorable Evelio Grillo
`
`DECLARATION OF CHRISTINA TELLADO
`IN SUPPORT OF DEFENDANT/CROSS-
`CLAIMANT TESLA, INC.'S OPPOSITION
`TO PLAINTIFF CALIFORNIA CIVIL
`RIGHTS DEPARTMENT’S MOTION TO
`COMPEL TESLA, INC.’S FURTHER
`RESPONSES TO REQUESTS FOR
`PRODUCTION AND SPECIAL
`INTERROGATORIES (SET ONE)
`
`November 15, 2022
`Date:
`10:00 a.m.
`Time:
`Dept.: 21
`
`RESERVATION ID: 734999881131
`
`Compl. Filed: Feb. 9, 2022
`FAC Filed: March 11, 2022
`
`
`DECLARATION OF CHRISTINA TELLADO IN SUPPORT OF
`TESLA, INC.’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
`
`1 2 3 4 5 6 7 8 9
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`400 South Hope Street, 8th Floor
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`Holland & Knight LLP
`
`Los Angeles, CA 90071
`
`Fax: 213.896.2450
`Tel: 213.896.2400
`
`

`

`Samuel J. Stone (SBN 317013)
`sam.stone@hklaw.com
`Mary T. Vu (SBN 323088)
`mary.vu@hklaw.com
`HOLLAND & KNIGHT LLP
`400 South Hope Street, 8th Floor
`Los Angeles, California 90071
`Telephone: (213) 896-2400
`Facsimile: (213) 896-2450
`
`Dana E. Feinstein (application for admission pro hac vice pending)
`dana.feinstein@hklaw.com
`HOLLAND & KNIGHT LLP
`2929 Arch Street, Suite 800
`Philadelphia, Pennsylvania 19104
`Telephone: (215) 252-9600
`Facsimile: (215) 867-6070
`
`Raymond A. Cardozo (SBN 173263)
`rcardozo@reedsmith.com
`Brian A. Sutherland (SBN 248486)
`bsutherland@reedsmith.com
`REED SMITH LLP
`101 Second Street, Suite 1800
`San Francisco, California 94105-3659
`Telephone: (415) 543-8700
`Facsimile: (415) 391-8269
`
`Tyree P. Jones Jr. (SBN 127631)
`tpjones@reedsmith.com
`REED SMITH LLP
`1301 K Street, N.W., Suite 1000
`Washington, DC 20005-3317
`Telephone: (202) 414-9200
`Facsimile: (202) 414-9299
`
`Attorneys for Defendant/Cross-Claimant
`TESLA, INC.
`
`2
`DECLARATION OF CHRISTINA TELLADO IN SUPPORT OF
`TESLA, INC.’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
`
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`400 South Hope Street, 8th Floor
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`Holland & Knight LLP
`
`Los Angeles, CA 90071
`
`Fax: 213.896.2450
`Tel: 213.896.2400
`
`

`

`DECLARATION OF CHRISTINA TELLADO
`I am an attorney-at-law duly licensed to practice before all the courts in the State of
`1.
`California, and I am a partner with Holland & Knight LLP, counsel of record for Defendant/Cross-
`Claimant Tesla, Inc. (“Tesla”) in this matter. I have personal knowledge of the facts stated herein, and
`if called as a witness in this matter, I could and would competently testify regarding those facts. I make
`this declaration in support of Tesla’s Opposition to California Civil Rights Department (“CRD,”
`formerly known as the Department of Fair Employment and Housing, or “DFEH”) Motion to Compel
`Further Discovery Responses.
`
`2.
`
`On March 28, 2022, CRD propounded Special Interrogatories and Requests for Production,
`
`Set 1 (“Set 1 Discovery Requests”) on Tesla.
`
`3.
`
`On June 1, 2022, Tesla provided its original objections and responses to CRD’s Set 1
`
`Discovery Requests.
`On August 23, 2022, Tesla provided an initial document production in response to CRD’s
`
`4.
`
`Requests for Production, Set 1.
`
`5.
`
`On August 25, 26, and 31, 2022, Tesla served numerous Notices of Deposition and
`
`Subpoenas on CRD (the “Deposition Notices”) seeking to depose a number of the individuals whom CRD
`
`references and quotes in its First Amended Complaint.
`
`6.
`
`On September 1, 2022, CRD moved to compel further responses to its Set 1 Discovery
`
`Requests.
`
`7.
`
`On September 2, 2022, Tesla propounded Form Interrogatories, Special Interrogatories,
`
`Requests for Production, and Requests for Admission, Set 1, on CRD. Tesla’s Special Interrogatories,
`
`Requests for Production, and Requests for Admission primarily sought identification of the individuals
`
`whom CRD references and quotes in its First Amended Complaint.
`
`8.
`
`On September 14, 2022, the Court via an email from Phillip Obbard issued guidance in
`
`response to Tesla’s request for an informal discovery conference regarding CRD’s service of third party
`
`subpoenas on various staffing agencies. A true and correct copy of this guidance is attached as Exhibit A.
`
`3
`DECLARATION OF CHRISTINA TELLADO IN SUPPORT OF
`TESLA, INC.’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
`
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`400 South Hope Street, 8th Floor
`
`Holland & Knight LLP
`
`Los Angeles, CA 90071
`
`Fax: 213.896.2450
`Tel: 213.896.2400
`
`

`

`This guidance provided, “If CRD is seeking the employment records of the workers who were assigned to
`
`Tesla, then that would appear unduly burdensome.”
`
`9.
`
`On September 26, 2022, CRD sent Tesla a letter arguing that Tesla’s Deposition Notices
`
`of complainants that CRD referenced and quoted in its First Amended Complaint were improper. CRD
`
`stated that the Deposition Notices were served with respect to “a number of complainants whose
`
`administrative matters are currently being investigated by the Department.” A true and correct copy of this
`
`letter is attached as Exhibit B.
`
`10.
`
`On September 30, 2022, Tesla replied to CRD’s September 26 letter. A true and correct
`
`copy of Tesla’s reply is attached as Exhibit C.
`On October 4, 2022, CRD provided only objections, and not a single substantive response
`
`11.
`
`or document, in response to Tesla’s Form Interrogatories, Special Interrogatories, Requests for Production,
`
`and Requests for Admission. True and correct copies of CRD’s objection-only responses are attached as
`
`Exhibits D, E, F and G.
`
`12.
`
`On October 6, 2022, the Court via an email from Phillip Obbard issued guidance in
`
`response to CRD’s request for an informal discovery conference. A true and correct copy of this guidance
`
`is attached as Exhibit H. In this guidance, the Court explained that the “contact information of workers
`
`assigned to any Tesla place of business appears to be relevant and not particularly private” and indicated
`
`it would not be inclined to order Belaire-West notice before disclosure of such information. The Court
`
`also suggested the parties file a motion to establish the appropriate statute of limitations and how it applies
`
`to this case.
`13.
`
`On November 1, 2022, Tesla served on CRD supplemental responses to CRD’s Set 1
`
`requests for production. A true and correct copy of Tesla’s First Supplemental Objections and Responses
`to CRD’s Requests for Production of Documents, Set One is attached as Exhibit I.
`
`4
`DECLARATION OF CHRISTINA TELLADO IN SUPPORT OF
`TESLA, INC.’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
`
`1 2 3 4 5 6 7 8 9
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`20
`21
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`27
`28
`
`400 South Hope Street, 8th Floor
`
`Holland & Knight LLP
`
`Los Angeles, CA 90071
`
`Fax: 213.896.2450
`Tel: 213.896.2400
`
`

`

`I declare under penalty of perjury under the laws of the State of California that the foregoing is
`true and correct.
`
`Executed on this first day of November, 2022, in Los Angeles, California.
`
`By:
`
` Christina T. Tellado
`
`5
`DECLARATION OF CHRISTINA TELLADO IN SUPPORT OF
`TESLA, INC.’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
`
`1 2 3 4 5 6 7 8 9
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`400 South Hope Street, 8th Floor
`
`Holland & Knight LLP
`
`Los Angeles, CA 90071
`
`Fax: 213.896.2450
`Tel: 213.896.2400
`
`

`

`PROOF OF SERVICE
`
`STATE OF CALIFORNIA
`
`
`
`COUNTY OF LOS ANGELES
`
`)
`)
`)
`
`ss.
`
`I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not
`a party to the within action. My business address is 400 S. Hope Street, 8th Floor, Los Angeles, California
`90071.
`
`On November 1, 2022, I caused the foregoing document described as the DECLARATION OF
`CHRISTINA TELLADO IN SUPPORT OF DEFENDANT/CROSS-CLAIMANT TESLA, INC.'S
`OPPOSITION TO PLAINTIFF CALIFORNIA CIVIL RIGHTS DEPARTMENT’S MOTION TO
`COMPEL TESLA, INC.’S FURTHER RESPONSES TO REQUESTS FOR PRODUCTION AND
`SPECIAL INTERROGATORIES (SET ONE) to be served on the interested parties in this action as
`follows:
`
`Jamie Crook
`Alexis McKenna
`Sirithon Thanasombat
`Civil Rights Department
`2218 Kausen Drive, Suite 100
`Elk Grove, CA 95758-7178
`Email: jamie.crook@dfeh.ca.gov
`alexis.mckenna@dfeh.ca.gov
`Siri.Thanasombat@dfeh.ca.gov
`
`[ X ] BY ELECTRONIC SERVICE (CCP §§ 1013(a)) Based on a court order or an agreement of
`the parties to accept service by e-mail or electronic transmission, I caused the document(s) to be sent to
`the person(s) at the e-mail address(es) indicated above as well as via Case Anywhere. I did not receive,
`within a reasonable time after the transmission, any electronic message or other indication that the
`transmission was unsuccessful.
`
`
`
`(STATE) I declare under penalty of perjury under the laws of the State of California that the
`[ X ]
`above is true and correct.
`
`Executed on November 1, 2022, at Los Angeles, California.
`
`Carolina Del Real
`
`PROOF OF SERVICE FOR DECLARATION OF CHRISTINA TELLADO IN SUPPORT OF
`TESLA, INC.’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
`
`1 2 3 4 5 6 7 8 9
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`20
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`25
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`400 South Hope Street, 8th Floor
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`Holland & Knight LLP
`
`Los Angeles, CA 90071
`
`Fax: 213.896.2450
`Tel: 213.896.2400
`
`

`

`EXHIBIT A
`EXHIBIT A
`
`
`
`
`
`
`

`

`From:
`Sent:
`To:
`
`Cc:
`Subject:
`
`Obbard, Philip, Superior Court <pobbard@alameda.courts.ca.gov>
`Wednesday, September 14, 2022 6:00 PM
`Watson, Brett@DFEH; Tellado, Tina (LAX - X52442); Begley, Sara A (PHL - X49531);
`Sternberg, Jeremy M (BOS - X71476); nicholas.keats@dfeh.ca.gov; Begley, Sara A (PHL -
`X49531); Feinstein, Dana E (PHL - X49566)
`Dept. 21, Superior Court
`RE: DFEH v. Tesla, 22CV006830 - IDC
`
`[External email]
`Counsel,
`
`The court has reviewed the statement of Tesla dated 9/6/22 and the statement of CRD dated 9/8/22. The court’s
`preliminary thoughts are below.
`
`NATURE OF SUBPOENAS
`
`The subpoenas are to third parties and seek business records. The subpoenas appear to seek two categories of
`documents.
`
`First, they appear to seek drafts of and all agreements between the staffing agencies and Tesla.
`
`Second, they appear to seek contact information of workers assigned to any Tesla place of business. The
`contact information does not appear to be “employment records” within the meaning of CCP 1985.6 because
`the CRD does not appear to be seeking the employment files or similar personal information of the workers
`assigned to Tesla.
`
`TEMPORAL SCOPE
`
`The court’s prior IDC thoughts stated: “Temporal scope. The court would be inclined to find that the DFEH
`can seek discovery regarding Tesla’s practices for a period of a few years before the statute of limitations. Case
`law suggests that in a discrimination or harassment case that discovery frequently extends to 2 years prior to the
`statute of limitations period. (Kresefsky v. Panasonic Communs. & Sys. Co. (D.N.J., 1996) 169 F.R.D. 54, 65;
`Robbins v. Camden City Board of Ed, 105 FRD 49, 63 (DNJ 1985); Hardrick v. Legal Services Corp., 96
`F.R.D. 617, 618-619.)”
`
`The Order of 8/24/22 also addressed the statute of limitations issue.
`
`The CRD’s Director’s Complaint is dated 6/18/19.
`
`Tesla acknowledges the one year statute of limitations goes back to June 2018 and seeks to limit discovery to
`two years before June 2018 – which is June 2016.
`
`The CRD seeks discovery going back to January 2014. The CRD asserts a three year statute of limitations, but
`identifies a statutory amendment in 2019 (AB 9) that was later amended out of the statute in 2021 (SB 807) If
`the CRD is asserting the three year statute under 12960(e)(3), then that three year period would apply only to a
`claim under Govt Code 11135. The First Amended Complaint filed 3/11/22 does not appear to allege a claim
`under Govt Code 11135.
`
`1
`
`

`

`
`The court would be inclined to order that the CRD’s discovery is temporally limited to June 2016 to the
`present. The court would consider a longer (or shorter) time period based on specific facts. An example would
`be if Tesla adopted a directly relevant formal policy or began a directly relevant practice at some date and it
`would be sensible to extend (or limit) discovery to when that policy or practice was developed and
`implemented. In the absence of some facts warranting something different, the court would be inclined to have
`discovery extend to June 2016.
`
`RELEVANCE
`
`The drafts of and all agreements between the staffing agencies and Tesla would appear to be relevant. Most
`basically, one issue might be the control and direction Tesla had over the workers assigned to Tesla. More
`speculatively, but suggested by Tesla’s counsel’s letter, is whether the staffing agencies are de facto extensions
`of Tesla.
`
`The contact information of workers assigned to any Tesla place of business appears to be relevant. (Williams v.
`Sup Ct (2017) 3 Cal.5th 531, 544.)
`
`BURDEN
`
`Tesla asserts that the subpoenas would be burdensome on the third party staffing agencies. When considering
`burden, the court would consider that the staffing agencies are third parties. (Calcor Space Facility v. Superior
`Court (1997) 53 Cal.App.4th 216, 223, 225.)
`
`The burden on the staffing agencies is not Tesla’s concern. The CRD can presumably negotiate the burden
`issue with each staffing agency separately. Each staffing agency presumably keeps records in a different
`organization and what might be burdensome for one might be simple for another.
`
`If the CRD is seeking only agreements with Tesla and contact information of workers, then that would not
`appear to be unduly burdensome. If CRD is seeking the employment records of the workers who were assigned
`to Tesla, then that would appear to be unduly burdensome.
`
`PRIVACY
`
`The disclosure of the contact information of the workers assigned to Tesla raises privacy issues, but not
`significant privacy issues. The court would not be inclined to order a Belaire-West procedure.
`
`The workers assigned to Tesla are potentially witnesses to the alleged pattern or practice. The identity of
`witnesses is not California Form Interrogatory 12.1 directs parties to “State the name, ADDRESS, and
`telephone number of each individual: (a) who witnesses the INCIDENT.” The disclosure of witness contact
`information is not unusual.
`
`The nature of the employer or the job can be relevant to the privacy analysis. There are differences between
`witnesses who are identified because they are exempt employees at a grocery (Puerto v. Superior Court (2008)
`158 Cal.App.4th 1242, 1255) and witness who are identified because they are non-party staff and volunteers at
`an abortion clinic (Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347).
`
`Puerto, 158 Cal.App.4th at 1255, states: “This, however, is routine civil litigation, and the invasion of privacy is
`not nearly as significant here. While we do not disregard the privacy interests at stake, as petitioners trenchantly
`observed, “the dangers of being ‘outed’ as individuals who work at a grocery store cannot be equated with the
`
`2
`
`

`

`impingement of associational freedom likely to occur when, as in Planned Parenthood, the disclosure identifies
`the individual as assisting in the operation of an abortion clinic.””
`
`The court would not be inclined to find that witnesses who are identified by virtue of working at Tesla have a
`significant privacy interest in the fact that they used to work at Tesla. This appears materially different from
`Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011,1038, where the
`subpoenas sought “the personal information of investigated or disciplined health care professionals.”
`
`The staffing agencies themselves are not real persons and therefore have limited Constitutional privacy
`interests. “[C]orporations do not have a right of privacy protected by the California Constitution.” (SCC
`Acquisitions, Inc. v. Superior Court (2015) 243 Cal. App. 4th 741, 755.) “[T]he California Constitution protects
`the privacy rights of ‘people’ only.” (Id.) “[T]he constitutional provision simply does not apply to
`corporations.” (Id. at 755-56.) “While corporations do have a right to privacy, it is not a constitutional
`right.” (Id. at 756.) That would affect any analysis of the privacy interest of the staffing agencies.
`
`CONCLUSION
`
`The court encourages the parties to meet and confer to resolve this dispute. If the parties cannot resolve the
`pending discovery dispute through further meet and confer, then either party is authorized to file a motion for
`protective order or to compel through and including 10/7/22. (CCP 2016.080(c)(2).)
`
`To file a motion, a party must obtain reservation numbers from the court’s eCourt system. The motion will not
`be filed without a reservation number. Service of moving and opposition papers must be per Code of Civil
`Procedure.
`
`NOTE - email sent to counsel on the IDC letters and the prior IDC letters. Please forward as appropriate.
` 
` 
`
`  
`Philip Obbard 
`Supervising Legal Research Attorney 
`Alameda County Superior Court 
`Administration Building, 1221, Oak Street, Oakland, CA 94612      
`phone (510) 268‐5126 [x5126] 
`pobbard@alameda.courts.ca.gov 
` 
` 
`This e‐mail contains confidential and privileged material for the sole use of the intended recipient(s). Any review, use, distribution, or disclosure by others is strictly 
`prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply email and delete all copies of this 
`message. 
`
`3
`
`

`

`EXHIBIT B
`EXHIBIT B
`
`
`
`
`

`

` S T A T E O F C AL I F O R NI A | Business, Consumer Services and Housing Agency
`
`Civil Rights Department
`
`GAVIN NEWSOM, GOVERNOR
`
`KEVIN KISH, DIRECTOR
`
`2218 Kausen Drive, Suite 100 | Elk Grove | CA | 95758
`800-884-1684 (voice) | 800-700-2320 (TTY) | California’s Relay Service at 711
`www.dfeh.ca.gov | contact.center@dfeh.ca.gov
`
`
`
`September 26, 2022
`
`Via Electronic Mail Only
` Christina.Tellado@hklaw.com
`
`Tina Tellado, Esq.
`Holland & Knight LLP
`400 South Hope Street, 8th Floor
`Los Angeles, CA 90071
`
`Re: Tesla’s Improper Deposition Notices to Complainants
`/ Tesla, CRD Case No. 202105-13469706
`/ Tesla, CRD Case No. 202105-13468906
`/ Tesla, CRD Case No. 202105-13469506
`/Tesla, CRD Case No. 202109-14751414
`/Tesla, CRD Case No. 202104-13419830
`/Tesla, CRD Case No. 202105-13469006
`/Tesla, CRD Case No. 202105-13469206
`/Tesla, CRD Case No. 202105-13496007
`
`
`Dear Counsel:
`
`
`Respondent Tesla has served the Department with deposition notices for a number of complainants
`whose administrative matters are currently being investigated by the Department. This is procedurally
`improper as the California legislature vested the Department with the sole responsibility to investigate
`administrative claims. (See Gov. Code, § 12960 et seq.) In fact, California Government Code Section
`12963 sets forth that after an administrative complaint is filed, the Department shall investigate promptly.
`(Gov. Code, § 12963.) Importantly regarding deposition subpoenas, California Government Code Section
`12963.1 unambiguously provides that the Department alone may issue subpoenas requiring attendance.
`(Gov. Code, § 12963.1.) Similarly, the Department alone make seek a petition to compel compliance with
`the investigative subpoenas served in the administrative investigation, should any obstruction occur. (Gov.
`Code, § 12963.5, subd. (a).) This is further evidence of the statutory administrative scheme which solely
`grants the Department investigative discovery rights during an ongoing investigation.
`
`There is no statutory authority which permits Tesla, or any respondent, to conduct investigative
`discovery when the Department is conducting active investigation into administrative complaints. The
`California Legislature bestowed investigative authority on the Department to achieve California’s public
`policy of rooting out invidious workplace discrimination. (Gov. Code, §§ 12920, 12930.) This is
`particularly relevant as the Department is best situated to investigate administrative complaints
`independently of the circumstances which allegedly gave rise to the administrative complaint. In these
`matters, respondent Tesla’s aggressive actions in knowingly and improperly noticing the depositions of
`complaining parties can reasonably be seen as an act of retaliation against the complainants for filing their
`administrative complaints. The Department requires that respondent Tesla immediately withdraw its
`deposition subpoenas of the above-mentioned complaining parties or it will seek appropriate remedies.
`
`
`
`
`
`
`
`

`

`September 26, 2022
`Page | 2
`
`
`
`By Friday, September 30, 2022, please confirm that Tesla has withdrawn its deposition
`subpoenas to the above listed complainants, and also confirm that it will not serve any additional
`deposition subpoenas on complainants whose complaints are being investigated by the Department.
`
`Sincerely,
`
`
`Juan Gamboa
`Staff Counsel
`
`
`
`

`

`EXHIBIT C
`EXHIBIT C
`
`
`
`
`
`
`
`

`

`
`
`1650 Tysons Boulevard, Suite 1700 | Tysons, VA 22102 | T 703.720.8600 | F 703.720.8610
`Holland & Knight LLP | www.hklaw.com
`
`Christina T. Tellado
`Partner
`213.896.2442 ext. 52442
`Christina.Tellado@hklaw.com
`
`
`
`September 30, 2022
`
`Via Electronic Mail Only
`
`Juan Gamboa, Esq.
`Civil Rights Department, State of California
`2218 Kausen Drive, Suite 100
`Elk Grove, CA 95758
`Juan.Gamboa@dfeh.ca.gov
`
`
`Re: Response to September 26, 2022 Letter Requiring Withdrawal of Deposition
`Subpoenas
`
`
`Dear Counsel:
`
`We are in receipt of your letter dated September 26, 2022, in which you communicated
`
`that the Civil Rights Department (“CRD”) “requires that respondent Tesla immediately withdraw
`its deposition subpoenas” for the eight relevant individuals whom Tesla, Inc. (“Tesla”)
`subpoenaed, and threatened to seek “appropriate remedies.” CRD also insisted that there is “no
`statutory authority which permits Tesla, or any respondent, to conduct investigative discovery
`when the Department is conducting active investigation[s] into administrative complaints,” and
`further stated that CRD has “the sole responsibility to investigate administrative claims.”
`
`The arguments in your letter rest upon an incorrect assumption that these subpoenas are
`
`issued with respect to the administrative complaints filed by these individuals. Rather, Tesla issued
`the relevant deposition subpoenas under matter of Department of Fair Employment & Housing v.
`Tesla, Inc., Alameda County Superior Court Case No. 22CV0068830, as these individuals’
`allegations are quoted liberally within the First Amended Complaint (“FAC”) filed in this matter
`on March 11, 2022. CRD appears to believe that Tesla may not take appropriate actions to defend
`itself and discover information relevant to CRD’s allegations against the Company. This is
`incorrect. To the contrary, and as further outlined below, Tesla has the right to engage in fact
`discovery in the civil lawsuit filed against it by CRD and therefore will not withdraw its subpoenas.
`
`
`
`
`
`Atlanta | Austin | Boston | Charlotte | Chicago | Dallas | Denver | Fort Lauderdale | Fort Worth | Houston
`Jacksonville | Los Angeles | Miami | New York | Orange County | Orlando | Philadelphia | Portland
`Richmond | San Francisco | Stamford | Tallahassee | Tampa | Tysons | Washington, D.C. | West Palm Beach
`
`
`

`

`
`
`I.
`
`Tesla Is Conducting Fact Discovery, Not “Investigative Discovery” Into
`“Administrative Complaints.”
`
`The code sections cited within CRD’s letter grant CRD the statutory authority to investigate
`administrative complaints filed with CRD. See, e.g., Cal. Gov’t Code § 12963 (“After the filing of
`any complaint alleging facts sufficient to constitute a violation of any of the provisions of this part,
`the department shall make prompt investigation in connection therewith.”); Cal. Gov’t Code §
`12963.1 (“The department may issue and serve upon an individual . . . subpoenas to require the
`attendance of testimony of witnesses by deposition or otherwise.”) But these code provisions are
`inapposite—and irrelevant—because Tesla has not issued deposition subpoenas as part of CRD’s
`own investigations into “administrative complaints.” (Indeed, CRD was required by law to have
`concluded these investigations before relying upon these administrative complaints in a civil
`lawsuit, as discussed below.) Rather, Tesla has issued third-party deposition subpoenas to conduct
`basic fact discovery in the lawsuit CRD filed against Tesla. See California Court Rule 3.1010(a)(1)
`(permitting parties in civil actions to depose individuals if “[n]otice is served with the notice of
`deposition or the subpoena”).
`
`Because there are allegations in the FAC concerning (and in some cases, specifically
`referencing) the individuals Tesla intends to depose, these individuals are directly relevant to
`CRD’s claims and Tesla’s defenses. See FAC ¶¶ 35, 36, 37, 38, 39, 40, 41, 47, 50, and 74. Further,
`the FAC states that CRD brought “this government enforcement action for group relief on behalf
`of the state in the public interest and all Black and/or African American workers.” FAC ¶ 28.
`Because all of the individuals Tesla intends to depose are African American and former or current
`employees of Tesla, all of the individuals are putative class members. Tesla is therefore entitled to
`fact discovery from these individuals regarding the underlying allegations. See Pac. Tel. & Tel.
`Co. v. Superior Ct., 2 Cal. 3d 161, 164-65 (1970) (affirming superior court’s order requiring parties
`to answer relevant questions during oral deposition).
`
`Finally, because CRD failed to provide any factual detail in support of its claims in its pre-
`suit filings (e.g., the “Complaint of Employment Discrimination” and the “Notice of Group or
`Systematic Investigation and Director’s Complaint for Group/Class Relief”), there is an even
`greater need for Tesla to conduct fact discovery in this matter.
`
`II.
`
`CRD Has Admitted That It Filed a Lawsuit Based on “Administrative
`Complaints” That Are Under “Active Investigation.”
`
`The FAC indicates that CRD concluded the investigations upon which it based the claims
`in this lawsuit. See FAC ¶ 22 (“After approximately three years of investigation… DFEH issued a
`cause finding on January 3, 2022.”). Indeed, CRD was legally required to conclude the relevant
`investigations before issuing a cause finding and filing suit. See Cal. Gov’t Code § 12963.7 (“If
`the department determines after investigation that the complaint is valid, the department shall
`immediately endeavor to eliminate the unlawful employment practice complained of by
`conference, conciliation, and persuasion.” (emphasis added)); Cal. Code Regs., tit. 2, § 10057(d)
`(“After an investigation finds reason to believe that discrimination has occurred or is about to
`occur, and prior to filing a civil action, the department shall require the parties to participate in
`mandatory dispute resolution in an effort to resolve the dispute without litigation.” (emphasis
`added)).
`
`
`
`
`2
`
`

`

`
`
`CRD’s letter explicitly states that “Tesla has served the Department with deposition notices
`for a number of complainants whose administrative matters are currently being investigated by the
`Department.” The letter further describes the investigations as “active.” Tesla therefore treats this
`as an admission that CRD (i) issued a cause finding, (ii) engaged in mediation, and (iii) filed a
`lawsuit against Tesla, based on unfinished investigations—while in many instances directly
`referencing such complaints in the FAC.
`
`CRD prevailed on a motion to stay and its case survived a demurrer because CRD advised
`the Court that it had complied with its pre-suit investigation obligations. Its current admissions
`establish that its earlier submissions to the Court were false. Unless CRD withdraws its objections
`to the subpoenas, Tesla will seek judicial estoppel and other remedies available based on CRD
`taking inconsistent positions—and persuading the Court based on its earlier false submissions.
`(See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.)
`
`III. Conducting Fact Discovery Does Not Constitute Retaliation.
`
`CRD asserts that “Tesla’s aggressive actions in knowingly and improperly noticing the
`
`depositions of complaining parties can reasonably be seen as an act of retaliation against the
`complainants for filing their administrative complaints.” Setting aside that noticing such
`depositions is proper and is Tesla’s right (as discussed above), counsel for Tesla is not aware of
`any controlling law establishing that taking a deposition is construed as “retaliation.” CRD’s
`references in its civil lawsuit to the complainants noticed for deposition was an express invitation
`to Tesla to take these depositions. Tesla has every right to examine allegations that appear in the
`FAC and exercise its right to defend itself. This is not retaliation.
`
`***
`
`For these reasons, CRD’s request is inappropriate and prejudicial. Nevertheless, Tesla is
`
`willing to withdraw the deposition subpoenas if CRD (i) stipulates that no allegations in the FAC
`relate to any of the eight deponents; (ii) identifies all of the individuals whose allegations formed
`the basis of FAC ¶¶ 35, 36, 37, 38, 39, 40, 41, 47, 50, and 74; and (iii) to the extent that any of
`the allegations in the FAC refer to the eight deponents, agrees to file an amended complaint that
`strikes all allegations that refer to these individuals. Please provide your response, in writing, no
`later than October 7, 2022. We look forward to hearing from you.
`
`
`
`Sincerely,
`
`
`
`
`
`
`
`
`Tina Tellado
`Partner
`HOLLAND & KNIGHT LLP
`
`
`
`
`3
`
`

`

`EXHIBIT D
`EXHIBIT D
`
`
`
`
`

`

`E-Served: Oct 4 2022 4:15PM PDT Via Case Anywhere
`
`ALEXIS MCKENNA, Assistant Chief Counsel (#197120)
`Alexis.McKenna@dfeh.ca.gov
`SIRITHON THANASOMBAT, Associate Chief Counsel (#270201)
`Siri.Thanasombat@dfeh.ca.gov
`California Civil Rights Department
`2218 Kausen Dr, Suite 100
`Elk Grove, CA 95758-7178
`Telephone: (916) 478-7251
`Facsimile: (888) 382-5293
`Attorneys for Plaintiff
`California Civil Rights Department
`(Fee Exempt, Gov. Code, § 6103)
`
`vs.
`
`TESLA, INC., doing business in California as
`TESLA MOTORS, INC., and DOES ONE
`through FIFTY, inclusive,
`
`IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
`IN AND FOR THE COUNTY OF ALAMEDA
`CALIFORNIA CIVIL RIGHTS
`Case No.: 22CV006830
`)
`DEPARTMENT, an agency of the State of
`)
`California,
`)
`)
`
`Plaintiff, )
`)
`)
`)
`)
`)
`)
`)
`)
`Defendants.
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`PLAINTIFF CALIFORNIA CIVIL
`RIGHTS DEPARTMENT’S OBJECTIONS
`AND RESPONSES TO DEFENDANT
`TESLA, INC.’S SPECIAL
`INTERROGATORIES, SET ONE
`
`Action filed: February 9, 2022
`FAC filed: March 11, 2022
`
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`Cal. Civ. Rights Dept. v. Tesla, Inc. et al. (Case No. 22CV006830)
`Pl. CRD’s Response to Defendant Tesla, Inc.’s Special Interrogatories, Set One
`
`

`

`
`PROPOUNDING PARTY: Defendant Tesla, Inc.
`RESPONDING PARTY: Plaintiff California Civil Rights Department
`SET NUMBER:
`
`One
`Pursuant to Code of Civil Procedure § 2030.210 et seq., Plaintiff California Civil Rights
`Department (Plaintiff or CRD), by and through its attorneys, provides the following responses to
`Defendant Tesla, Inc.’s (Defendant or Tesla) Special Interrogatories, Set One.
`PRELIMINARY STATEMENT
`These introductory comments shall apply to each response given herein and shall be
`incorporated by reference as though fully set forth