Zaccardo v. Horne Motors of Gilbert LLC et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Michael Zaccardo,
Plaintiff,
v.
Horne Motors of Gilbert LLC, et al.,
Defendants.
No. CV-24-00767-PHX-SHD
ORDER
At issue are several matters arising from the parties’ ongoing discovery disputes
including Discovery Dispute 2 (Docs. 65, 71, 76, 77, 81, 84, 88), Discovery Dispute 4
(Docs. 80, 82, 89, 94), and Discovery Dispute 5 (Docs. 86, 90), and Defendants’ Motion
to Strike Zaccardo’s Unauthorized Filings, (Doc. 91). Having considered the parties’
written position statements, the arguments presented at the hearings, and the supplemental
briefing, I issue the following findings and orders.
I. BACKGROUND
The parties were before me for a Discovery Dispute hearing on March 17, 2026, to
address, among other things, discovery disputes relating to Defendants’ alleged discovery
deficiencies. (Doc. 68.) Following the hearing, I ordered supplemental briefing on Joint
Discovery Dispute 2, (Doc. 65), to develop the record on Defendants’ February 18, 2026
Federal Rule of Civil Procedure 26(g) certification and the documents Zaccardo contends
remain outstanding. (Doc. 70 at 5–6.) Specifically, I directed Zaccardo to file (1) a list
identifying each document he contends was produced after Defendants’ February 18, 2026
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certification (“February 18 certification”), with a brief description and date of production,
along with copies attached as exhibits; and (2) a bullet-point list identifying every
document he contends remains outstanding. (Id.) I directed Defendants to file a response
confirming, for each document on Zaccardo’s first list, whether it had been previously
produced and, if not, providing an explanation for why the document was not produced
until after that date, and addressing each item on Zaccardo’s second list with specificity.
(Id.) Zaccardo filed his list of documents he alleges were produced after the February 18
certification, together with his list of documents he contends remain outstanding. (Doc.
71.) Defendants filed a response to Zaccardo’s list of documents produced after the
February 18 certification, (Doc. 76), and provided an item-by-item response to the
documents Zaccardo contends remain outstanding, (Doc. 77).
Defendants’ item-by-item response, (id.), referenced agreed modifications between
counsel to certain of Zaccardo’s Requests for Production (“RFPs”) but did not attach the
underlying materials. I therefore ordered Defendants to file the underlying RFPs,
responses, and any written stipulations, agreements, or correspondence reflecting
modifications to the extent Defendants relied on such materials in their response, (id.).
(Doc. 81.) Defendants filed the requested materials, (Doc. 84), and Zaccardo filed a
response contending that the materials are selectively incomplete in a manner that obscures
rather than informs the Court, (Doc. 88).
Additionally, in the period following the March 17, 2026 hearing, the parties
presented two additional discovery disputes. Zaccardo filed his position summary on
Discovery Dispute 4, (Doc. 80), Defendants separately filed their position the following
day, (Doc. 82), and Zaccardo responded, (Doc. 89). Discovery Dispute 4 concerns four
related issues: (1) Defendants’ designation of certain documents as “Confidential—
Attorneys’ Eyes Only” (“AEO”), and their request for leave to amend the Protective Order,
(Doc. 26), to replace the AEO designation with a new “Highly Confidential” designation;
(2) Defendants’ use of a “Clawback Designation” that does not appear in the Protective
Order; (3) Defendants’ redactions of customer and employee identifying information and
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the adequacy of Defendants’ privilege log; and (4) the use of unredacted documents at the
remaining Rule 30(b)(6) deposition. (Docs. 80, 82.)
Defendants then filed their position statement on Discovery Dispute 5, (Doc. 86),
and Zaccardo responded, (Doc. 90). Discovery Dispute 5 raises two issues:
(1) Defendants’ contention that Zaccardo failed to supplement his discovery responses in
connection with Zaccardo’s production of approximately 100 documents on February 27,
2026 and March 15, 2026; and (2) Defendants’ contention that Zaccardo’s February 26,
2026 disclosure of approximately 26 new fact witnesses was untimely and deficient.
(Docs. 86, 90.)
In addition to the discovery disputes, on May 6, 2026, Defendants filed a Motion to
Strike Zaccardo’s Unauthorized Filings, (Doc. 91), seeking an order striking three of
Zaccardo’s filings: (1) Zaccardo’s Response to Defendants’ Notice of Compliance, (Doc.
88); (2) Zaccardo’s Response to Discovery Dispute 4, (Doc. 89); and (3) Zaccardo’s
Response to Discovery Dispute 5, (Doc. 90). Defendants seek relief under Federal Rule of
Civil Procedure 12(f) and, in the alternative, under my inherent authority to manage my
docket. (Id. at 2.) Defendants contend that the three filings were not authorized. (Id.)
The parties appeared before me for another Discovery Dispute hearing on May 12,
2026 to address the foregoing matters. At the hearing, I denied the Motion to Strike and
heard argument on all the parties’ filings on the discovery disputes, given that the discovery
deadline has passed and the parties need rulings to move this case forward.
II. DISCOVERY DISPUTE 2
The parties’ Joint Discovery Dispute 2, (Doc. 65), concerns Zaccardo’s claims that
Defendants have failed to fully comply with their discovery obligations. Zaccardo
contends that (1) Defendants’ February 18 certification of completed production was false
when signed; and (2) numerous documents remain unproduced. (Id. at 1–2.)
A. Rule 26(g) Certification
Based on his contention that the February 18 certification was false when signed,
Zaccardo requested “Relief: Order to show cause re: Rule 26(g)(3) sanctions against
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counsel personally.” (Id. at 2.) Defendants asserted that any supplemental production was
part of an agreed process negotiated at the parties’ meet and confers that took place on
February 18 and 20, 2026. (Id. at 3.)
At the March 17, 2026 hearing, Zaccardo reiterated his position, contending the
certification was false because Defendants produced additional responsive documents on
February 27, 2026—the last day of written discovery. Zaccardo emphasized the
significance of several late-produced documents, asserting that discipline policies and a
page from his employment application had been withheld, and that the application page
would have triggered the Americans with Disabilities Act (“ADA”) interactive process.
Zaccardo identified the latter document as Bates-numbered HMG000016.001. Given the
weight Zaccardo placed on these documents, I ordered supplemental briefing, (Doc. 70 at
5–6), so that I could review the late-produced documents firsthand before ruling on the
Rule 26(g)(3) sanctions request. Based on the record now before me, sanctions are not
warranted.
1. Legal Standard
Rule 26(g)(1)(B) requires an attorney or party responding to a discovery request to
certify that every response or objection “to the best of the person’s knowledge, information,
and belief formed after a reasonable inquiry” is (i) consistent with the Federal Rules of
Civil Procedure and warranted by existing law, (ii) not interposed for an improper purpose,
and (iii) neither unreasonable nor unduly burdensome or expensive. Fed. R. Civ. P.
26(g)(1)(B). The Advisory Committee Notes accompanying Rule 26(g) reflect that the
“reasonable inquiry” standard is satisfied “if the investigation undertaken by the attorney
and the conclusions drawn therefrom are reasonable under the circumstances . . . what is
reasonable is a matter for the court to decide on the totality of the circumstances.” Fed. R.
Civ. P. 26 advisory committee’s note, 1983 amend., subdivision (g). The certification
speaks as of the time it is made; the duty to supplement discovery responses as new
information becomes available is governed separately by Rule 26(e). Id. “The
reasonableness of counsel’s inquiry is measured by an objective standard and does not
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require a showing of bad faith.” Optronic Techs., Inc. v. Ningbo Sunny Elec. Co., 2020
WL 2838806, at *3 (N.D. Cal. 2020) (citation omitted). “If a certification violates this rule
without substantial justification, the court . . . must impose an appropriate sanction on the
signer, the party on whose behalf the signer was acting, or both.” Fed. R. Civ. P. 26(g)(3).
2. The February 18 Certification
Zaccardo’s argument rests on a flawed legal premise: that the February 18
certification was rendered “false” when Defendants produced additional documents nine
days later. That is not the case—Rule 26(e) requires supplementation, and supplementation
was specifically contemplated by Defendants’ February 18 certification:
Subject to the foregoing objections, Defendants, pursuant to Rule 26(e) and based
on their current understanding of the Request, will supplement this Response if new
or additional information is uncovered and will produce any additional non-
duplicative, responsive, and non-privileged documents within a reasonable time,
including correcting any incomplete or inaccurate information.
(Doc. 76 at 6.) This certification satisfies Rule 26(g): it confirms that Defendants believed
they produced the relevant documents, and it acknowledges that supplementation under
Rule 26(e) may be required and contains a commitment to make that supplementation.
When Defendants did in fact supplement nine days later—following an intervening meet
and confer on February 20, 2026—they did precisely what Rule 26(e) required them to do.
Defendants further represent that the parties held a series of meet and confers in
February 2026 after Zaccardo began representing himself, including on February 10,
February 18, and February 20, 2026. (Id. at 2–3.) According to Defendants, at the February
20 meet and confer, Zaccardo articulated for the first time specific additional requests,
including records not maintained in his personnel file and records that would need to be
recreated or reconstructed from source systems. (Id. at 3, 4, 5.) Defendants state that the
February 27 production responded to those specific February 20 requests. (Id. at 4–5.)
A certification made on February 18 cannot be deemed “false when signed” because
Defendants thereafter accommodated requests Zaccardo first articulated on February 20.
Rule 26(g) is tested by what was reasonable to believe at the time of signing, not by the
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wisdom of hindsight.
3. The February 27, 2026 Supplemental Production
Even setting aside the timing issue, the documents Defendants produced on
February 27 do not establish that defense counsel failed to make the reasonable inquiry
required by Rule 26(g). Defendants have explained that the February 27 production was
comprised of two categories of records. (Doc. 76 at 3–4; Doc. 76-2.) The first category
consists “primarily of double-sided pages” of materials in Zaccardo’s personnel file. (Doc.
76 at 3; Doc. 76-2 at 1.) Defendants represent that these additional pages were
inadvertently missed in the December 12, 2024 production and were produced “in line with
the parties’ meet and confer discussions of February 18 and February 20.” (Doc. 76-2 at
1.) An inadvertent omission of back-side pages does not establish the kind of failure that
Rule 26(g)(3) reaches.
The second category consists of documents Defendants describe as “[n]ewly
requested documents by [Zaccardo] which Defendants were required to recreate or
reconstruct documents that were not part of the original maintained files/records.” (Doc.
76 at 3; Doc. 76-2 at 2.) Defendants represent that these materials were not part of
Zaccardo’s personnel file and were produced following Zaccardo’s specific requests at the
February 20 meet and confer. (Id.) Again, production of documents in response to requests
first articulated after February 18 cannot render the February 18 certification deficient
under Rule 26(g).
4. The Documents Identified at the March 17 Hearing
At the March 17 hearing, Zaccardo framed two documents as particularly
significant: (1) discipline policies, and (2) a page from his employment application,
identified as Bates number HMG000016.001, which Zaccardo asserted was a document
that would have initiated the ADA interactive process. These representations contributed
materially to my decision to order supplemental briefing. Having reviewed the exhibits
attached to Doc. 71, I find that Zaccardo’s characterization of these documents at the
hearing is not supported by the documents themselves.
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HMG000016.001 is a page from Zaccardo’s Application for Employment. (Doc.
71-2 at 3.) It includes a pre-printed question: “Are you capable of satisfactorily performing
the essential job duties required of the position for which you are applying with or without
a reasonable accommodation?” (Id.) Two check-boxes follow, marked “Yes” and “No.”
Neither box was checked. (Id.) A blank, unchecked question on a pre-employment
application Zaccardo completed in 2019 does not bear the significance Zaccardo ascribed
to it at the hearing. That the page was produced as a back-side page of Zaccardo’s own
application does not transform it into evidence of concealment; at most, it reflects that
Defendants’ 2024 production inadvertently omitted the reverse side of a document
Zaccardo himself signed.
The “discipline policy” pages are generic, one-page “Process and Procedure”
descriptions of how the employer uses verbal warnings and employee counseling reports.
(See e.g., Doc. 71-7 at 5.) These are generic policy documents, not documents specific to
Zaccardo. (See id.) Regardless of whether these policy pages were produced earlier in
other proceedings, their late production in this litigation does not, on this record,
demonstrate the absence of reasonable inquiry that Rule 26(g)(3) requires. The substantive
disciplinary documents themselves were produced in the initial production. The later
production of generic policy pages attached to those already-produced warnings does not
establish a Rule 26(g) violation.
In short, the two categories of documents Zaccardo emphasized at the March 17
hearing are neither the “smoking gun” concealment Zaccardo suggested nor documents
whose later production calls the February 18 certification into question. The concerns that
prompted me to order supplemental briefing have been addressed by the document-by-
document record now before me. On that record, I cannot find that defense counsel’s
February 18, 2026 certification violated Rule 26(g)(1)(B) or that any violation occurred
without substantial justification under Rule 26(g)(3). Zaccardo’s request for an order to
show cause and for sanctions against defense counsel personally will therefore be denied.
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B. Outstanding Document Production
In Joint Discovery Dispute 2, (Doc. 65), Zaccardo also contends that numerous
documents remain unproduced. At the March 17, 2026 hearing, Zaccardo was unable to
identify with specificity which documents he believed were missing. I ordered Zaccardo
to file, as part of his supplemental briefing, a bullet-point list identifying every document
he contends is outstanding, and ordered Defendants to address each item on that list
specifically. (Doc. 70.) Zaccardo filed his list, (Doc. 71 at 9–13), and Defendants filed
their response, (Doc. 77). At the May 12, 2026 hearing, the parties addressed Zaccardo’s
list of outstanding documents, and I heard argument from both sides as to the disputed
items.
1. Legal Standard
Rule 34(b)(2)(B) requires a party responding to an RFP to either produce the
requested documents or state with specificity the grounds for objecting. Fed. R. Civ. P.
34(b)(2)(B). “Absent evidence to the contrary, . . . [a party] is required to accept [the
responding party’s] response [that] no such documents exist.” Mootry v. Flores, 2014 WL
3587839, at *2 (E.D. Cal. 2014); see also Moran v. Pak, 2017 WL 11632943, at *2 (C.D.
Cal. 2017) (“[C]ourts do not grant motions to compel based solely on speculation that the
responding party has incorrectly asserted that all responsive documents have been
produced.”). The continuing duty to supplement under Rule 26(e) ensures that any
responsive documents later identified will be produced. Fed. R. Civ. P. 26(e).
2. Disposition of Zaccardo’s Outstanding-Items List
Zaccardo’s list identifies items across twelve different RFPs, ranging from
performance evaluations and personnel-file materials to internal management
communications, repair-order packets, comparator productivity records, and a privilege
log. (Doc. 71 at 9–13.) Defendants addressed each item on Zaccardo’s list, (Doc. 77), and
the parties further addressed certain items at the May 12, 2026 hearing. The items on
Zaccardo’s list fall into five categories: (a) items as to which Defendants represent that all
responsive documents have been produced; (b) items as to which the underlying RFP was
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modified by agreement of counsel and Defendants represent that all responsive documents
within the modified scope have been produced; (c) items as to which Zaccardo concedes
he has in his possession; (d) items that fall outside the scope of the RFP as written or that
do not exist; and (e) the repair order packets sought under RFP No. 17, which require
further action. I will address each category in turn, followed by a separate discussion of
the privilege log.
a. Items for Which Defendants Represent All Responsive
Documents Have Been Produced
As to the following items on Zaccardo’s list, Defendants represent in their written
response, (Doc. 77), that all available responsive records have been produced: performance
evaluations for 2020, 2021, and 2022 (RFP No. 2); the complete HR termination file (RFP
No. 2); drug test records for 2020–2022 (RFP No. 2); August 21–22, 2023 vacation and
time-off approval records (RFP No. 2); internal payroll records from July 31 to September
20, 2023 (RFP No. 2); Earned Paid Sick Time (“EPST”) tracking records for employees
during Zaccardo’s employment (RFP No. 5); source records underlying HMG002564–
HMG002568 (RFP No. 5); the commission document referenced as “see attached” in
HMG000048 (RFP No. 6); formula used to calculate advisors’ commissions (RFP No. 6);
emails, texts, and communications among the six identified custodians regarding
Zaccardo’s EPST request, performance, discipline, and termination (RFP No. 14); the
written EPST policy or changes in effect during Zaccardo’s employment (RFP No. 19);
and any procedure, instruction, or employee guidance governing how EPST was requested
or used (RFP No. 19). (See Doc. 77 at 5–14.)
I have reviewed Zaccardo’s list and Defendants’ written response, and have
considered the parties’ arguments at the May 12, 2026 hearing. Defendants’
representations are made by counsel as officers of the court and are subject to Rule 26(g)
and the continuing duty to supplement under Rule 26(e). Zaccardo has not identified,
beyond his general assertion that documents remain outstanding, any specific basis to
question the accuracy of Defendants’ representations as to any particular item in this
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category. I accept counsel’s representations and find no basis to compel further production
as to the items addressed in this subsection. See Mootry, 2014 WL 3587839, at *2.
b. Items Subject to Agreed Modifications Between Counsel
As to the following items, Defendants represent that the underlying RFP was
modified by agreement of counsel and that all responsive records within the modified scope
have been produced: documents referring to EPST/Paid Time Off (“PTO”) policies,
changes, and communications of changes (RFP No. 5); the “CDK Monthly Sales Reports”
and monthly commission calculation worksheets from September 2019 to September 2023
(RFP No. 9); internal communications relating to the August 2022, May 2023, and August
2023 commission changes (RFP No. 10); and the monthly productivity reports for all
Service Advisors from February to July 2023 (RFP No. 15). (See Doc. 77 at 6–12.)
At the May 12, 2026 hearing, Defendants identified the specific portions of Doc. 84
reflecting each agreed modification, including the relevant pages of the meet-and-confer
transcript and supporting correspondence. I have reviewed the cited portions of Doc. 84,
and I am satisfied that the modifications were in fact agreed between counsel. Defendants
clarified at the hearing that, with respect to RFP No. 5, counsel had misspoken in
characterizing the RFP itself as modified; the agreement was instead limited to a two-year
temporal scope for communications of policy changes. That clarification does not alter the
analysis, as Defendants represent that all responsive records within that two-year scope—
and in fact all responsive EPST policies, addendums, and time-off requests across the full
employment period—have been produced.
With respect to RFP No. 15, Zaccardo raised at the hearing a concern that the
parameters used to generate the produced productivity reports may differ from those used
to generate reports produced in other proceedings. Defendants represented that the reports
were produced as maintained, and Zaccardo confirmed he has in his possession the
comparison versions he believes reflect different parameters. I find no basis to compel
further production; any question concerning the parameters, authenticity, or admissibility
of the reports may be addressed if it arises in connection with the merits.
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Zaccardo is bound by the discovery agreements his prior counsel reached. See Link
v. Wabash R.R. Co., 370 U.S. 626, 633–34 (1962) (a party “voluntarily chose [his] attorney
as his representative in the action, and he cannot now avoid the consequences of the acts
or omissions of this freely selected agent”). I will not reopen agreements that were reached
in good faith between counsel during the period when Zaccardo was represented.
c. Items in Zaccardo’s Possession
At the May 12, 2026 hearing, Zaccardo confirmed on the record that he is already
in possession of several categories of documents on his outstanding-items list, either
because he produced them himself in this litigation or because they have been produced.
With respect to the “May 5, 2023 email from Marsh to Service Advisors regarding
the rental income exclusion from sales totals,” referenced under both RFP No. 6 and RFP
No. 10, (Doc. 71 at 10, 11), Defendants represented at the hearing that the email has been
produced multiple times—by Zaccardo, by Defendants, and as part of subpoenaed
materials—and Zaccardo confirmed that the document has been produced.
With respect to the monthly productivity reports for service advisors sought under
RFP No. 15, (id. at 12), Zaccardo confirmed at the hearing that he is in possession of
versions of those reports that he produced himself in this litigation, including versions
reflecting the parameters he contends are missing from Defendants’ production. Zaccardo
confirmed on the record that he already has what he needs. As discussed in subsection (b)
above, Defendants have also produced responsive reports within the agreed scope of
redaction.
With respect to the commission calculation records and “CDK reports” sought under
RFP No. 9, (id. at 11), Defendants represented at the hearing that Zaccardo himself
produced versions of these records in his own document production, including records
dating back to 2020. As discussed in subsection (b) above, Defendants have also produced
commission records within the agreed temporal scope of April 2023 through July 2023.
With respect to the agency-proceeding records identified under RFP No. 16 (ICA
DOL RETALIATION 000001–000644; ICA EARNED SICK TIME 000001–000296; ICA
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WAGE CLAIM 000001–001004), (id. at 12), Zaccardo confirmed at the hearing that he
produced these records himself and that all parties already possess them. As to the
documents Defendants submitted to DES, ICA DOL, and EEOC, (id.), Defendants
represent—and Zaccardo confirmed at the hearing—that those documents have been made
available for inspection and that Zaccardo is in possession of the relevant documents.
(Doc. 77 at 12–13.)
I will not order the production of documents that the requesting party already has in
his possession.
d. Items Outside the Scope of the RFP as Written
As to the following items, Defendants represent that the documents identified by
Zaccardo either fall outside the scope of the RFP as written or do not exist: the Payroll
Status Change Form authorizing a May 2023 rental income exclusion and the written
authorization from Marty Jones for a May 2023 commission change (RFP No. 6); the
complete repair order packets open and assigned to Zaccardo as of May 1, 2023 (RFP No.
10); the documents sought under RFP No. 11 concerning Zaccardo’s individual X-Time
software access and scheduling permissions; the IT-related documents concerning the
replacement of Zaccardo’s computer and the deactivation of his email account, and
communications regarding unspecified “these actions” (RFP No. 14); and the supporting
documents underlying the disciplinary entries in HMG000345–000377 and HMG000478–
000480 (RFP No. 18). (Doc. 77 at 7–13.)
Having reviewed the text of each cited RFP and the items identified by Zaccardo, I
agree that these items either fall outside the scope of the RFPs as written or, with respect
to the Marty Jones authorization and Payroll Status Change Form, do not exist. Several of
the items appear to be new requests for production framed as outstanding items. For
example, the IT records concerning computer replacement and email deactivation are not
encompassed by RFP No. 14’s enumerated subjects and custodians, and the supporting
documentation underlying disciplinary entries goes beyond the personnel files and
disciplinary records sought by RFP No. 18. Zaccardo cannot use the supplemental briefing
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process to expand the scope of his RFPs. With respect to the Marty Jones authorization
and the Payroll Status Change Form, Defendants represented at the hearing that no such
documents exist; the commission plans signed by Marty Jones (for 2019 and August 2022)
have been produced, and Defendant Bauman as general manager had authority to
implement commission changes without separate written authorization. I accept those
representations. The absence of these documents may be the subject of argument on the
merits, but it cannot be the basis for an order compelling production of something that does
not exist. See Mootry, 2014 WL 3587839, at *2.
e. Repair Order Packets
The only item on Zaccardo’s list that requires follow-up is his request for complete
repair order packets opened and assigned to Zaccardo on July 31, 2023, per RFP No. 17.
(Doc. 71 at 12.) Zaccardo contends that the repair order packets, as maintained in the
ordinary course, consist of multiple components and that Defendants produced only single
pages rather than full packets. Defendants represented at the hearing that the copy they
produced is the most complete version because it contains the financial data, but they
acknowledged that different copies exist with varying information. Defendants further
represented that they offered Zaccardo the opportunity to inspect the originals in March
2026, and that Zaccardo did not appear for the inspection.
I will order the parties to proceed as follows. By May 22, 2026, Defendants shall
make available for inspection the original repair order packets responsive to RFP No. 17
at a mutually agreeable date and time. Zaccardo shall attend the inspection and identify
any pages of which he requests copies. Defendants shall produce copies of the identified
materials within fourteen days thereafter. By May 20, 2026, the parties shall file a joint
notice identifying the date on which the inspection will take place.
f. Privilege Log
Zaccardo’s list also seeks a privilege log identifying each document withheld or
redacted on grounds of attorney-client privilege, work product, or any other asserted
protection, as required by Rule 26(b)(5)(A). (Id. at 13.) Defendants, however, have already
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produced a privilege log identifying the documents they have produced in redacted form,
including documents redacted on the basis of attorney-client privilege, which Zaccardo
attached to his own filing as Doc. 80-2. Defendants have therefore satisfied their obligation
under Rule 26(b)(5)(A). No further privilege log is required.
III. DISCOVERY DISPUTE 4
Discovery Dispute 4 presents two principal questions: (1) the propriety of
Defendants’ redactions to produced documents; and (2) whether the operative Protective
Order (Doc. 26) should be modified and/or Zaccardo’s use of documents bearing an AEO
designation restricted.
A. Defendants’ Redactions
Zaccardo seeks an order compelling Defendants to produce unredacted copies of
approximately 37 documents, including repair orders, disciplinary records of other
employees, and service advisor productivity reports. (Doc. 80.) He also seeks waiver of
Defendants’ privilege and confidentiality claims as to documents he contends were not
logged in compliance with Rule 26(b)(5)(A). (Id.)
At the May 12, 2026 hearing, Defendants represented that the redactions are
narrowly tailored and limited to: (1) customer identifying information (names, addresses,
phone numbers, and vehicle identifying information including make, model, VIN, and tag
number); (2) employee personal identifying information, principally the names of other
service advisors; and (3) in one or two instances, attorney-client communications between
defense counsel and Defendants concerning this litigation. Defendants have produced a
privilege/redaction log, (Doc. 80-2), identifying each redacted document, describing the
document, and stating the basis for each redaction. I construe Defendants’ opposition as a
request, under Federal Rule of Civil Procedure 26(c), for a protective order authorizing the
limited redaction of customer and employee identifying information from documents
produced in this litigation.
Federal Rule of Civil Procedure 26(c)(1) authorizes courts, “for good cause,” to
issue an order “to protect a party or person from annoyance, embarrassment, oppression,
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or undue burden or expense,” including by limiting disclosure of discovery materials. The
party seeking protection bears the burden of showing good cause by demonstrating that
specific prejudice or harm will result if no protective order is granted. Foltz v. State Farm
Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003). Additionally, Rule 26(b)(5)(A)
requires a party withholding information on the basis of privilege to (i) expressly make the
claim and (ii) describe the nature of the documents not produced “in a manner that, without
revealing information itself privileged or protected, will enable other parties to assess the
claim.”
Defendants have established good cause for the limited redactions at issue. With
respect to employee identifying information, I am persuaded that redaction of the names of
non-party employees from disciplinary records, productivity reports, and repair orders is
appropriate to protect those employees from potential embarrassment or other prejudice
arising from disclosure of personnel and performance information in litigation to which
they are not parties. The substantive content of the documents has not been redacted, and
Zaccardo therefore has access to the information relevant to his case. The names of those
individual employees are not necessary to evaluate that information for discovery purposes.
With respect to customer identifying information, I likewise find good cause for the
limited redactions. The redacted information—customer names, addresses, phone
numbers, and vehicle identifiers (make, model, VIN, and tag number)—has no apparent
relevance to any claim or defense in this employment case, which concerns Zaccardo’s
compensation, his use of paid sick leave, and the circumstances of his July 2023
termination. Defendants further represent that Zaccardo competed in the automotive
service industry during a substantial portion of the discovery period, and although Zaccardo
represents that he has not been employed in the industry since October 2025, he was so
employed for the majority of the discovery period in this case. Protection of customer
identifying information from a former employee who competed in the same industry is
reasonable and supported by good cause.
Zaccardo’s specific challenges to the redactions do not alter this conclusion.
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Zaccardo identified Bates number HMG000958–959 as an example of an improper
redaction. I reviewed Defendants’ explanation and the redaction log entry for that
document. (Doc. 80-2 at 6.) The redaction is limited to the attorney-client communications
that appear in the document. The remainder of the document is produced unredacted. The
redaction is properly supported by the attorney-client privilege, and the log adequately
describes the basis for the redaction. Zaccardo’s objection to this redaction will be
overruled.
Zaccardo also identified the repair order at Bates number HMG000068.003 of the
redaction log (HMG000068.001–.004) as a document for which he disputes the basis for
redaction. (Id. at 1.) Zaccardo contends that Defendants have redacted not only customer
identifying information but also lines on the repair order itself bearing on Defendants’
contention that he improperly applied a coupon twice—the conduct Defendants cite in
support of his termination as to this transaction. At the hearing, Defendants represented
that the only information redacted is customer identifying information (customer name,
address, phone number, and vehicle identifying information). I ordered Defendants to
submit the document for in camera review. (See Doc. 94.) I have conducted an in camera
review of the redacted and unredacted versions of HMG000068.001 through
HMG000068.004. I find that the only information redacted from those pages is customer
identifying information and employee identifying information, consistent with Defendants’
representations. The redactions are properly maintained under the Rule 26(c) protective
order granted herein. Zaccardo’s objection to the redactions on HMG000068.001–.004
will be overruled.
As to Zaccardo’s request that I find Defendants’ privilege and confidentiality claims
waived under Rule 26(b)(5)(A), the request will be denied. Defendants produced the
documents at issue with redactions and provided a log identifying each redacted document,
describing the document, and stating the basis for each redaction. That log enables
Zaccardo, who possesses the documents themselves in redacted form, to identify what has
been withheld and on what basis.
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Accordingly: (1) Defendants’ request for a protective order under Rule 26(c)
authorizing redaction of customer and employee identifying information will be granted;
(2) Zaccardo’s request to compel production of unredacted copies of the documents
identified in Doc. 80-2 will be denied; and (3) Zaccardo’s request for a finding of waiver
under Rule 26(b)(5)(A) will be denied.
B. AEO and “Clawback” Designations, and the Protective Order
Zaccardo seeks an order (1) striking the AEO designations Defendants have applied
to certain documents, and (2) striking the “Clawback” designations Defendants have
applied to certain documents, on the grounds that the AEO designation operates as a de
facto bar on a pro se litigant’s review of his own discovery and that “Clawback” is not a
category authorized by the Protective Order. (Doc. 80 at 2.) Defendants, conversely, seek
(1) leave to file an amended protective order replacing the AEO designation with a new
“Highly Confidential” designation, and (2) an order requiring Zaccardo to return all
unredacted AEO-designated documents in his possession, on the grounds that the existing
AEO category was not designed for a pro se litigant and is necessary to protect documents
allegedly removed from Defendants without authorization. (Doc. 82 at 3.)
1. AEO Documents and Request for Return of Documents
As a preliminary matter, Defendants’ request that Zaccardo return the unredacted
AEO documents in his possession will be denied. As I observed at the hearing, the horse
is out of the barn: Zaccardo already has the documents, having obtained them both through
Defendants’ prior production to his then-counsel and, allegedly, from sources outside the
discovery process. Ordering their return at this stage would not afford Defendants any
meaningful additional protection. The documents will instead remain subject to the
Protective Order’s existing confidentiality provisions and may be used only for purposes
of this litigation. (See Doc. 26 at 6.)
That leaves the question of how those documents should be designated. As
Defendants themselves acknowledge, the AEO designation “was not intended” to apply to
a pro se litigant, (Doc. 82 at 3), and on the present record Defendants have not made the
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particularized showing of good cause that Rule 26(c) requires to support a designation that
effectively denies a party access to discovery in his own case. No amendment to the
Protective Order is necessary, however, because the existing “Confidential” designation
already affords the protections Defendants legitimately seek: documents so designated may
be used only in connection with this litigation and are subject to the use and disclosure
restrictions set forth in the Protective Order. (Doc. 26 at 6.) Accordingly, Defendants’
request to amend the Protective Order to substitute a “Highly Confidential” designation
will be denied, and all documents currently designated “Confidential–For Counsel Only”
(i.e., AEO) will be deemed redesignated as “Confidential” under the existing Protective
Order.
2. Clawback Designations
Relatedly, Zaccardo contends that Defendants have employed a “Clawback
Designation”—purporting to require the return of certain documents—that does not appear
in the Protective Order, (Doc. 26), and seeks an order striking that designation. (Doc. 80.)
Defendants did not address this argument in their position summary. (See Doc. 82.) For
substantially the same reason set forth above, this request will be granted. The “Clawback
Designation” is not a category contemplated by the Protective Order and therefore has no
independent force, and I will not order the return of documents in Zaccardo’s possession.
The documents to which Defendants have applied the “Clawback” designation will instead
be governed by the Protective Order’s existing confidentiality provisions.
3. Use of Documents at the Remaining Rule 30(b)(6) Deposition
At the May 12, 2026 hearing, the parties disputed whether the Rule 30(b)(6)
deposition of Defendant Horne Motors of Gilbert, LLC remains open. Defendants
represented that the deposition was completed on April 28, 2026, although they
acknowledged that the parties may yet present a dispute regarding topics Zaccardo
contends were not adequately addressed. Zaccardo represented that the deposition remains
ongoing. I will not resolve that dispute here and will direct the parties to meet and confer.
To the extent the deposition remains open, Zaccardo may use the redesignated AEO
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documents at that deposition, subject to the “Confidential” designation set forth above.
Any portion of the deposition testimony concerning such documents may be designated
“Confidential” in accordance with the procedures set forth in the Protective Order.
4. Zaccardo’s Request for Expenses Under Rule 37(a)(5)
Zaccardo requests an award of expenses under Federal Rule of Civil Procedure
37(a)(5). If a motion for protective order or motion to compel is granted, a court generally
must order “the party or deponent whose conduct necessitated the motion, the party or
attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred
in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5). However, a
court must not order such payment if the opposing party’s position “was substantially
justified” or if “other circumstances make an award of expenses unjust.” Id. I find that
Defendants’ positions on the redactions and the existing Protective Order designations
were substantially justified, and that the mixed relief obtained on the present dispute makes
an award of expenses unjust. I therefore decline to award expenses.
IV. DISCOVERY DISPUTE 5
Discovery Dispute 5 raises two issues: (1) Defendants’ contention that Zaccardo
failed to supplement his discovery responses in connection with Zaccardo’s production of
approximately 100 documents on February 27, 2026 and March 15, 2026; and
(2) Defendants’ contention that Zaccardo’s February 26, 2026 disclosure of approximately
26 new fact witnesses was untimely and deficient. (Doc. 86.)
A. Supplementation of Discovery Responses
Defendants seek an order compelling Zaccardo to serve compliant supplemental
responses identifying the documents, information, and witnesses responsive to each
request, disclosing whether any documents have been withheld, and avowing that each
response is complete, as well as an order requiring Zaccardo to map his newly produced
documents to corresponding Bates ranges from prior productions. (Doc. 86.) Defendants’
principal concern, as articulated at the hearing, is that Zaccardo’s discovery responses do
not affirmatively certify that his production is complete and that no responsive documents
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are being withheld.
Zaccardo represents that he served Third Supplemental Responses to Defendants’
Request for Production No. 9 and Fourth Supplemental Responses to Defendants’
Interrogatories Nos. 5–25, with redlines, on March 21, 2026, and that defense counsel
acknowledged receipt of those supplemental responses in writing on March 24, 2026.
(Doc. 90.)
Zaccardo, appearing pro se, represented on the record at the May 12, 2026 hearing
that his responses to all of Defendants’ discovery requests are complete and that he is not
withholding any responsive documents. That representation resolves the substance of
Defendants’ first request. Zaccardo is reminded that his on-the-record representation is
binding and that he remains under a continuing duty to supplement under Rule 26(e) to the
extent he later learns that his responses are incomplete or incorrect.
Defendants’ request for an order compelling Zaccardo to map newly produced
documents to corresponding Bates ranges from prior productions will be denied, as
Defendants’ did not argue this issue at the May 12 hearing.
B. Disclosure of Twenty-Six Additional Fact Witnesses
Defendants seek automatic exclusion under Rule 37(c)(1) of the approximately
twenty-six fact witnesses Zaccardo disclosed on February 26, 2026. (Doc. 86.) Defendants
contend that the disclosure was untimely, that the descriptions of each witness’s anticipated
testimony are inadequate, and that they have had no opportunity to conduct discovery
regarding these witnesses now that the fact discovery period has closed. Zaccardo contends
that the disclosure was timely, that the witnesses are Defendants’ own current and former
employees and customers whose identities and roles were already known to Defendants,
and that the disclosure was substantially justified in light of his January 23, 2026 transition
to pro se representation. (Doc. 90.)
I decline to resolve the exclusion issue on the present record. Defendants’ request
to exclude witnesses is more properly raised through a motion in limine on a developed
record, with full briefing, than through the expedited discovery dispute procedure. I will
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not extend fact discovery to permit further inquiry into any witnesses newly disclosed by
either party; fact discovery is closed, subject only to the inspection and any continued
deposition addressed in this Order.
Defendants’ request for automatic exclusion of the 26 fact witnesses under Rule
37(c)(1) will be denied without prejudice to renewal by appropriate motion.
Accordingly,
IT IS ORDERED that Zaccardo’s request for an order to show cause and for Rule
26(g)(3) sanctions against defense counsel personally is DENIED.
IT IS FURTHER ORDERED that Zaccardo’s request to compel further
production of the documents identified on his outstanding-items list (Doc. 71) is DENIED,
except as to the repair order packets sought under RFP No. 17, which are addressed below.
IT IS FURTHER ORDERED that, with respect to the complete repair order
packets open and assigned to Zaccardo on July 31, 2023, sought under RFP No. 17:
(a) By May 22, 2026, Defendants shall make the original repair order packets
available for inspection at a mutually agreeable date and time;
(b) Zaccardo shall attend the inspection and identify any pages of which he requests
copies;
(c) Defendants shall produce copies of the identified materials within fourteen (14)
days following the inspection; and
(d) By May 20, 2026, the parties shall file a joint notice identifying the date on
which the inspection will take place.
IT IS FURTHER ORDERED that Zaccardo’s request for a finding that
Defendants’ privilege and confidentiality claims are waived under Rule 26(b)(5)(A) is
DENIED.
IT IS FURTHER ORDERED that Zaccardo’s request to compel production of
unredacted copies of the documents identified in Doc. 80-2 is DENIED.
IT IS FURTHER ORDERED that Defendants’ request for a protective order under
Federal Rule of Civil Procedure 26(c) authorizing the limited redaction of customer and
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employee identifying information is GRANTED.
IT IS FURTHER ORDERED that Zaccardo’s objections to the redactions of
HMG000958–959 and HMG000068.001–004 are OVERRULED.
IT IS FURTHER ORDERED that Defendants’ request that Zaccardo return the
unredacted AEO documents in his possession is DENIED.
IT IS FURTHER ORDERED that Defendants’ request to amend the Protective
Order to substitute a “Highly Confidential” designation is DENIED.
IT IS FURTHER ORDERED that all documents currently designated
“Confidential–For Counsel Only” (i.e., AEO) under the Protective Order (Doc. 26) are
hereby REDESIGNATED as “Confidential” under the Protective Order.
IT IS FURTHER ORDERED that Zaccardo’s request to strike Defendants’
“Clawback Designation” is GRANTED.
IT IS FURTHER ORDERED that, to the extent the Rule 30(b)(6) deposition of
Defendant Horne Motors of Gilbert, LLC remains open, Zaccardo may use the
redesignated documents at that deposition subject to the “Confidential” designation under
the Protective Order, and the parties shall meet and confer regarding any remaining dispute
as to whether the deposition remains open.
IT IS FURTHER ORDERED that Zaccardo’s request for an award of expenses
under Federal Rule of Civil Procedure 37(a)(5) is DENIED.
IT IS FURTHER ORDERED that Defendants’ request for an order compelling
Zaccardo to serve compliant supplemental responses is DENIED AS MOOT in light of
Zaccardo’s on-the-record representation that his responses are complete and that no
responsive documents are being withheld.
IT IS FURTHER ORDERED that Defendants’ request for an order compelling
Zaccardo to map newly produced documents to corresponding Bates ranges from prior
productions is DENIED.
IT IS FURTHER ORDERED that Defendants’ request for automatic exclusion of
the approximately 26 fact witnesses disclosed by Zaccardo on February 26, 2026, under
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Rule 37(c)(1) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Defendants’ Motion to Strike Zaccardo’s
Unauthorized Filings, (Doc. 91), is DENIED.
Dated this 19th day of May, 2026.
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