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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JEFFREY KEPLAR, §

§

Plaintiff, §

§

V. § No. 3:22-cv-2281-B

§

GOOGLE, LLC, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S THIRD 

MOTION TO COMPEL AND SECOND MOTION FOR SANCTIONS

Plaintiff Jeffrey Keplar filed a Third Motion to Compel and Second Motion for 

Sanctions. See Dkt. No. 135.

Defendant Google, LLC filed a response, see Dkt. No. 136, and Keplar filed a 

reply, see Dkt. No. 138.

For the reasons explained below, the Court denies Keplar’s Third Motion to 

Compel and Second Motion for Sanctions [Dkt. No. 135].

Background

The Court’s initial Scheduling Order, entered on February 7, 2023, provided 

that, “[b]y November 27, 2023, all discovery – including discovery concerning expert 

witnesses – shall be completed”; that “[t]he parties generally may agree to extend 

this discovery deadline, provided: (1) the extension does not affect the trial setting, 

dispositive motions deadline, challenges to experts deadline, or pretrial submission 

dates; and (2) written notice of the extension is given to the Court,” “[b]ut the Court 

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always retains the right to reject an agreed extension if it finds that the parties are 

failing to move the case expeditiously”; that “[a]ny motion to compel discovery or for 

a protective order must be filed by the later of: (1) 14 days before the 

completion-of-discovery deadline; or (2) 10 days after the discovery response at issue 

was served or due to be served”; and that “[a]ny other motions that are related to 

discovery but do not seek to compel or avoid as-yet uncompleted depositions, service 

of discovery responses, or production of documents or electronically stored 

information must be filed by 3 days after the completion-of-discovery deadline.” Dkt. 

No. 25 at 3. The Scheduling Order also mandated that it “controls the disposition of 

this case unless it is modified by the Court on a showing of good cause and by leave 

of court.” Id. at 8 (citing FED. R. CIV. P. 16(b)(4)).

The Court later granted in part and denied in part Plaintiff Jeffrey Keplar’s 

Unopposed Expedited Motion for Extension of Pretrial Deadlines and Continuance of 

Trial [Dkt. No. 58] and entered a September 14, 2023 Amended Scheduling Order, 

which set January 22, 2024 as the deadline for completion of discovery and directed 

that “[t]he parties should reference the original scheduling order (Doc. 25) for details 

regarding the individual deadlines and the requirements to comply with those 

deadlines.” Dkt. No. 60 at 1.

On November 29, 2023, Plaintiff Jeffrey Keplar filed a Motion to Compel. See 

Dkt. No. 66. Keplar asked the Court (1) to order the deposition of Phil Moyer, the VP 

of Global AI Business and Solutions of Defendant Google, LLC’s Google Cloud 

organization, and (2) to order the deposition of one or more of Google’s corporate 

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representatives under Federal Rule of Civil Procedure 30(b)(6) to address (a), as 

relevant to Plaintiff’s age discrimination claim, the ages, qualifications, and 

circumstances of separation, reduction in scope of duties, demotion, or replacement 

of employees of Google employed concurrently with Keplar in the Google Cloud sales 

organization of which Keplar was a part and (b), as relevant to Plaintiff’s ERISA 

claim, the identity and circumstances of separation, if any, of so-called Level 8 

employees of Google employed concurrently with Keplar in the Google Cloud sales 

organization along with Keplar. See Dkt. No. 76 (summarizing Keplar’s requested 

relief on the Motion to Compel).

On December 19, 2023, Keplar served Google with Plaintiff’s First Set of 

Interrogatories to Defendant and Plaintiff’s Second Request for Production to 

Defendant. See Dkt. No. 92-3. Those included the following requests:

• REQUEST FOR PRODUCTION NO. 2: All documents referring to or 

evidencing the age of Level 7 and 8 employees in the Google Cloud sales 

organization during the period from one year before Plaintiff worked 

there to the present.

• INTERROGATORY NO. 6: State the age of each of the following 

persons on the date that such person was hired by Defendant: Bob 

Allison, Jeff Keplar, George Barnes, Yolande Piazza, Erin Williams, 

Russ Kole, Justin DeCastri, Nigel Walsh, Reed Overby, Elizabeth 

Elkins, Roman Kochanowsky, Teena Piccione, David Ooley, Jeff Perry, 

Jenn Smetana, Ivan Fernandez, Emily Walsh, Sam Maule, Dan Greve, 

Michael Thomas, Toby Velte, John Froese, Andrea Austin and Joe 

Johnston.

• INTERROGATORY NO. 7: Identify all employees in the Google Cloud 

sales organization who did not meet their B1 and/or B2 goals from 2018 

to 2022.

Dkt. No. 92-3 at 4, 9 of 10.

After hearing oral argument from Keplar’s counsel and Google’s counsel on 

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January 8, 2024 on Keplar’s Motion to Compel [Dkt. No. 66], the Court granted in 

part and denied in part that motion. In the January 9, 2024 Electronic Order, the 

Court explained and ordered that,

[a]fter narrowing the relief that he seeks in his reply, Keplar asks the 

Court (1) to order the deposition of Phil Moyer, the VP of Global AI 

Business and Solutions of Defendant Google, LLC’s Google Cloud 

organization, and (2) to order the deposition of one or more of Google’s 

corporate representatives under Federal Rule of Civil Procedure 

30(b)(6) to address (a), as relevant to Plaintiff’s age discrimination 

claim, the ages, qualifications, and circumstances of separation, 

reduction in scope of duties, demotion, or replacement of employees of 

Google employed concurrently with Keplar in the Google Cloud sales 

organization of which Keplar was a part and (b), as relevant to 

Plaintiff’s ERISA claim, the identity and circumstances of separation, if 

any, of so-called Level 8 employees of Google employed concurrently 

with Keplar in the Google Cloud sales organization along with Keplar.

Federal Rule of Civil Procedure 37(a) generally governs motions 

to compel discovery but does not, by its terms, address a motion to 

compel a party to appear for a deposition. See Fed. R. Civ. P. 37(a). The 

only recourse expressly provided under the Federal Rules for a party 

seeking another party’s deposition is to properly notice the deposition 

and file a motion under Rule 37(d)(1)(A) if and when the deponent fails 

to appear. See generally Robinson v. Dallas Cty. Cmty. Coll. Dist., No. 

3:14-cv-4187-D, 2016 WL 1273900, at *2 (N.D. Tex. Feb. 18, 2016).

But, “[u]nlike Rule 37, which allows a court to grant a motion to 

compel only after a party has failed to appear for a properly noticed 

deposition, [Federal Rule of Civil Procedure] 26(c)(1) allows a party or 

nonparty from whom discovery is sought to move for a protective order 

so long as that person has ‘in good faith conferred or attempted to 

confer with other affected parties in an effort to resolve the dispute 

without court action.’” Dang ex rel. Dang v. Eslinger, No. 

6:14-cv-37-Orl-21TBS, 2014 WL 3611324, at *2 (M.D. Fla. July 22, 

2014). Under Federal Rule of Civil Procedure 26(c), the Court “may, for 

good cause, issue an order to protect a party or person from annoyance, 

embarrassment, oppression, or undue burden or expense.” FED. R. CIV.

P. 26(c)(1). “[T]he burden is upon [the party seeking the protective 

order] to show the necessity of its issuance, which contemplates a 

particular and specific demonstration of fact as distinguished from 

stereotyped and conclusory statements.” In re Terra Int’l, 134 F.3d 302, 

306 (5th Cir. 1998) (citation omitted). A protective order is warranted in 

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those instances in which the party seeking it demonstrates good cause 

and a specific need for protection. See Landry v. Air Line Pilots Ass’n, 

901 F.2d 404, 435 (5th Cir. 1990). The Court has broad discretion in 

determining whether to grant a motion for a protective order. See 

Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985).

“Under somewhat similar circumstances, even where the movant 

has not served a notice of deposition or subpoena, other courts have 

treated a response to a motion to compel a deposition as a motion for a 

Rule 26(c)(1) protective order or have otherwise decided the 

fully-briefed issues so long as they were sufficiently defined and 

concrete.” Robinson, 2016 WL 1273900, at *4. And, here, where Google 

is effectively asking for a protective order from taking these depositions 

and the issues have been fully argued to the Court, and in light of the 

impending “expiration of the discovery period,” the Court declines 

Google’s invitation to deny the motion because Keplar has not served 

deposition notices and instead “elects to follow these courts’ lead, treat 

[Google’s] response as a request for a Rule 26(c)(1) protective order, and 

address the merits of the dispute as to whether [Google] should be 

ordered to” produce these witnesses for deposition. Id. at *5.

As to the deposition of Phil Moyer, assuming that he qualifies as 

a high-level executive subject to the federal counterpart of Texas’s 

“Apex doctrine,” the Court finds that his testimony regarding his 

alleged or acknowledged involvement in the review and rating of Keplar 

and the decisions to discipline and then terminate Keplar are relevant 

to Keplar’s claims. In short, Keplar seeks to question Mr. Moyer about 

relevant facts of which he has unique personal knowledge and that 

cannot be discovered through “less intrusive means,” including the 

depositions that have already been taken of Yolanda Piazza and 

Elizabeth Elkins and, if such a finding is called for, the Court therefore 

finds, under the circumstances, “exceptional” or “extraordinary” 

circumstances to permit this deposition. See Gaedeke Holdings VII, Ltd. 

v. Mills, No. 3:15-mc-36-D-BN, 2015 WL 3539658, at *3-*4 (N.D. Tex. 

June 5, 2015).

As to the 30(b)(6) topics, courts do limit discovery in this context 

to information on current or former employees who could be a plaintiff’s 

comparators -- that is, who are sufficiently similar to Keplar for these 

purposes. And the Court is persuaded that, as Google argues, Keplar’s 

supervisor and subordinates (that is, here, individual contributors who 

were supervised by directors such as Keplar) are not sufficiently 

similarly situated to warrant discovery under Federal Rule of Civil 

Procedure 26(b)(1). See generally Grimes v. Wal-Mart Stores Texas, 

L.L.C., 505 F. App’x 376, 379 (5th Cir. 2013); Lee v. Kansas City S. Ry. 

Co., 574 F.3d 253, 260-61 (5th Cir. 2009); Amezquita v. Beneficial Texas, 

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Inc., 264 F. App’x 379, 386 (5th Cir. 2008). But, as Google 

acknowledges, Ivan Fernandez, the employee who replaced Keplar after 

his termination, might be considered a comparator. The Court finds, 

under Rules 26(b)(1) and 30(b)(6), that Google must present a corporate 

representative to testify regarding the ages, qualifications, and 

circumstances of separation, reduction in scope of duties, demotion, or 

replacement of any employees of Google, including Mr. Fernandez, who 

were employed as directors (the same level as Keplar) concurrently with 

Keplar in the Financial Services Industry vertical of the Google Cloud 

sales organization of which Keplar was a part and regarding the 

identity and circumstances of separation, if any, of so-called Level 8 

employees who were employed as directors (the same level as Keplar) 

concurrently with Keplar in the Google Cloud sales organization of 

which Keplar was a part.

Without opposition, the Court will also grant Googles requested 

protective order to require that, in any deposition taken going forward 

in this case, (1) all counsel of record must be visible on camera; 

visibility requires that the counsel’s face must not be obscured from the 

witness or other participants; (2) all participants to a deposition 

proceeding must announce their presence in the deposition if 

participating by remote means; (3) all Orders of the Court (including 

the [54] Stipulated Protective Order) must be observed, and any person 

prohibited from reviewing a document marked “Attorneys Eyes Only” 

must leave the deposition before the document is revealed, before 

questions about the document are asked, and before the document is 

introduced as an exhibit; (4) counsel for the parties must allow both 

witnesses and opposing counsel requested breaks when no question is 

pending; and (5) counsel examining any witness must allow the witness 

to fully complete his or her answer to any question asked without 

interruption or other misconduct to impede the answer. See generally

FED. R. CIV. P. 30(b)(5)(B), 30(c)(2).

Finally, after considering all the circumstances here, the Court 

determines that, under Federal Rule of Civil Procedure 37(a)(5)(C), the 

parties will bear their own expenses, including attorneys’ fees, in 

connection with this motion.

Dkt. No. 76.

On January 29, 2024, “after Plaintiff’s agreement to an extension of the time 

for Defendant to respond to” Keplar’s discovery requests served on December 19, 

2023, Dkt. No. 79 at 3, Google served Keplar with Defendant Google, LLC’s 

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Responses and Objections to Plaintiff’s First Set of Interrogatories and Defendant’s 

Responses and Objections to Plaintiff’s Second Requests for Production to Defendant, 

see Dkt. No. 82. Those included the following responses and objections:

• REQUEST FOR PRODUCTION NO. 2: All documents referring to or 

evidencing the age of Level 7 and 8 employees in the Google Cloud sales 

organization during the period from one year before Plaintiff worked 

there to the present.

RESPONSE: Defendant objects to Request No. 2 as overly broad, 

unduly burdensome and not relevant to the claims or issues of this 

litigation and is not proportional to the needs of the case in that it 

requests information about all “Level 7 and Level 8 employees in Google 

Cloud sales organization” and therefore is not sufficiently limited in 

time and scope. Defendant further objects to Request No. 2 to the extent 

it requires Defendant to provide information that exceeds the 

information Defendant is required to provide pursuant to the 

Magistrate Judge’s ruling on the proper scope and span of comparator 

information proportional to the needs of the case. [DKT. 76]. Subject to, 

without waiving, and consistent with the foregoing general and specific 

objections, Defendant refers Plaintiff to Defendants Responses and 

Objections to Interrogatory No. 6.

• INTERROGATORY NO. 6: State the age of each of the following 

persons on the date that such person was hired by Defendant: Bob 

Allison, Jeff Keplar, George Barnes, Yolande Piazza, Erin Williams, 

Russ Kole, Justin DeCastri, Nigel Walsh, Reed Overby, Elizabeth 

Elkins, Roman Kochanowsky, Teena Piccione, David Ooley, Jeff Perry, 

Jenn Smetana, Ivan Fernandez, Emily Walsh, Sam Maule, Dan Greve, 

Michael Thomas, Toby Velte, John Froese, Andrea Austin and Joe 

Johnston.

RESPONSE: Defendant objects to Interrogatory No. 6 on the basis that 

it seeks information not relevant to the claims and issues in this action 

and is not proportional to the needs of the case. Defendant further 

objects to Interrogatory No. 6 to the extent it requires Defendant to 

provide information that exceeds the information Defendant is required 

to provide pursuant to the Magistrate Judge’s ruling on the proper 

scope and span of comparator information proportional to the needs of 

the case. [DKT. 76]. Subject to, without waiving, and consistent with 

the foregoing general and specific objections, Plaintiff already knows his 

age on the date he was hired by Defendant and Defendant will 

supplement its answer limited to the scope of the Magistrate Judge’s 

Order [DKT. 76].

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• INTERROGATORY NO. 7: Identify all employees in the Google Cloud 

sales organization who did not meet their B1 and/or B2 goals from 2018 

to 2022.

RESPONSE: Defendant objects to Interrogatory No. 7 on the basis that 

it is overly broad and unduly burdensome in that it seeks information 

not relevant to the claims and issues in this action and is not 

proportional to the needs of the case because it seeks information 

related to “all employees in the Google Cloud sales organization.” 

Defendant further objects to Interrogatory No. 7 to the extent it 

requires Defendant to provide information that exceeds the information 

Defendant is required to provide pursuant to the Magistrate Judge’s 

ruling on the proper scope and span of comparator information 

proportional to the needs of the case. [DKT. 76]. Subject to, without 

waiving, and consistent with the foregoing general and specific 

objections, Defendant will supplement its answer limited to the scope of 

the Magistrate Judge’s Order [DKT. 76].

Dkt. No. 82 at 13-14, 21 of 23.

On February 6, 2024, Keplar filed an Emergency Motion to Enforce Order on 

Motion to Compel and Extend Discovery Period as Necessary, and to Compel 

Responses to Interrogatories, Requests for Admission and Document Requests. See

Dkt. No. 79. Keplar asked the Court to “order that Defendant fully answer at the 

earliest possible time the interrogatories, requests for admission and document 

requests, including, as indicated in connection with Plaintiff’s motion to enforce the 

order of Magistrate Judge Horan, requiring the production of documents specifically 

relevant to the corporate representative deposition or depositions prior to such 

deposition or depositions occurring.” Id. at 4.

But the parties then filed a Joint Notice on February 8, 2024, reporting on an 

agreement that they reached regarding the disputes raised in the emergency motion 

and providing “as follows:

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• The deposition of Philip Moyer shall take place remotely on February 

14, 2024, beginning at 10:00 a.m. CT;

• The deposition of Google’s Corporate Deponent shall take place 

remotely on February 15, 2024 beginning at 1:30 p.m. CT; and

• In advance of Google’s Corporate Deponent deposition, Google will 

supplement to the extent necessary and consistent with Magistrate 

Judge Horan’s January 9, 2024 Order [DKT. 76] its responses to 

Plaintiff’s First Interrogatories, Requests for Admission and Document 

Requests and will provide responsive documents to the extent necessary 

and consistent with Magistrate Judge Horan’s January 9, 2024 Order 

[DKT. 76].”

Dkt. No. 83 at 1. And the Joint Notice reports that “the parties further agree that 

Court involvement regarding [the emergency motion] is unnecessary at this time.” 

Id. at 2.

But the parties then contacted the Court on February 14, 2024 regarding a 

dispute related to the scope of Phil Moyer’s deposition testimony that the Court had 

previously ordered in granting in part and denying in part Keplar’s Motion to 

Compel. See Dkt. Nos. 76 & 86. The Court held an emergency telephone conference 

on February 14, 2024 on this Oral Motion for Clarification of the Court’s Previous 

Order [Dkt. No. 85] and provided the requested clarification. See Dkt. No. 87.

On February 15, 2024, Google served Keplar with Defendant Google, LLC’s 

First Supplemental/Amended Responses and Objections to Plaintiff’s First Set of 

Interrogatories and Defendant’s First Supplemental/Amended Responses and 

Objections to Plaintiff’s Second Requests for Production to Defendant, see Dkt. Nos. 

105-4 & 105-5. Those included the following supplemental responses and objections:

• REQUEST FOR PRODUCTION NO. 2: All documents referring to or 

evidencing the age of Level 7 and 8 employees in the Google Cloud sales 

organization during the period from one year before Plaintiff worked 

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there to the present.

RESPONSE: Defendant objects to Request No. 2 as overly broad, 

unduly burdensome and not relevant to the claims or issues of this 

litigation and is not proportional to the needs of the case in that it 

requests information about all “Level 7 and Level 8 employees in Google 

Cloud sales organization” and therefore is not sufficiently limited in 

time and scope. Defendant further objects to Request No. 2 to the extent 

it requires Defendant to provide information that exceeds the 

information Defendant is required to provide pursuant to the 

Magistrate Judge’s ruling on the proper scope and span of comparator 

information proportional to the needs of the case. [DKT. 76]. Subject to, 

without waiving, and consistent with the foregoing general and specific 

objections, Defendant refers Plaintiff to Defendants Responses and 

Objections to Interrogatory No. 6.

FIRST SUPPLEMENTAL RESPONSE: Defendant incorporates by 

reference its initial responses and objections to Request No. 2. Subject 

to, without waiving, and consistent with the foregoing general and 

specific objections, Defendant will produce non-privileged, responsive 

documents and refers Plaintiff to its first supplemental/amended 

responses and objections to Plaintiff’s Interrogatory No. 6.

• INTERROGATORY NO. 6: State the age of each of the following 

persons on the date that such person was hired by Defendant: Bob 

Allison, Jeff Keplar, George Barnes, Yolande Piazza, Erin Williams, 

Russ Kole, Justin DeCastri, Nigel Walsh, Reed Overby, Elizabeth 

Elkins, Roman Kochanowsky, Teena Piccione, David Ooley, Jeff Perry, 

Jenn Smetana, Ivan Fernandez, Emily Walsh, Sam Maule, Dan Greve, 

Michael Thomas, Toby Velte, John Froese, Andrea Austin and Joe 

Johnston.

RESPONSE: Defendant objects to Interrogatory No. 6 on the basis that 

it seeks information not relevant to the claims and issues in this action 

and is not proportional to the needs of the case. Defendant further 

objects to Interrogatory No. 6 to the extent it requires Defendant to 

provide information that exceeds the information Defendant is required 

to provide pursuant to the Magistrate Judge’s ruling on the proper 

scope and span of comparator information proportional to the needs of 

the case. [DKT. 76]. Subject to, without waiving, and consistent with 

the foregoing general and specific objections, Plaintiff already knows his 

age on the date he was hired by Defendant and Defendant will 

supplement its answer limited to the scope of the Magistrate Judge’s 

Order [DKT. 76].

FIRST SUPPLEMENTAL RESPONSE: Defendant incorporates by 

reference its initial responses and objections to Interrogatory No. 6. 

Subject to, without waiving, and consistent with the foregoing general 

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and specific objections, Defendant identifies the following: Jeff Keplar: 

61 (DOH 7/15/2019); Reed Overby: 54 (DOH 1/6/2020); Roman 

Kochanowsky: 54 (DOH 10/2/2019); Ivan Fernandez: 48 (DOH 

5/23/2022) and Rohit Bhat: 32 (DOH 2/13/17).

• INTERROGATORY NO. 7: Identify all employees in the Google Cloud 

sales organization who did not meet their B1 and/or B2 goals from 2018 

to 2022.

RESPONSE: Defendant objects to Interrogatory No. 7 on the basis that 

it is overly broad and unduly burdensome in that it seeks information 

not relevant to the claims and issues in this action and is not 

proportional to the needs of the case because it seeks information 

related to “all employees in the Google Cloud sales organization.” 

Defendant further objects to Interrogatory No. 7 to the extent it 

requires Defendant to provide information that exceeds the information 

Defendant is required to provide pursuant to the Magistrate Judge’s 

ruling on the proper scope and span of comparator information 

proportional to the needs of the case. [DKT. 76]. Subject to, without 

waiving, and consistent with the foregoing general and specific 

objections, Defendant will supplement its answer limited to the scope of 

the Magistrate Judge’s Order [DKT. 76].

FIRST SUPPLEMENTAL RESPONSE: Defendant incorporates by 

reference its initial responses and objections to Interrogatory No. 7. 

Subject to, without waiving, Defendant refers Plaintiff to its 

supplemental document production for documents bates-labeled GOOG 

– KEPLAR 4049 - GOOG – KEPLAR 4104.

Dkt. No. 82 at 13-14, 21 of 23.

Also on February 15, 2024 Keplar filed a Motion for Sanctions. See Dkt. Nos. 

88 & 89 & 92. Google then filed a response, see Dkt. No. 101, and Keplar filed a 

reply, see Dkt. No. 103.

Google also filed a Cross-Motion for Sanctions, see Dkt. No. 101, to which 

Keplar responded, see Dkt. No. 104, and in support of which Google filed a reply, see

Dkt. No. 117.

The Court then, on March 8, 2024, granted in part and denied in part Keplar’s 

Emergency Motion to Enforce Order on Motion to Compel and Extend Discovery 

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Period as Necessary, and to Compel Responses to Interrogatories, Requests for 

Admission and Document Requests [Dkt. No. 79], Keplar’s Motion for Sanctions 

[Dkt. No. 88], and Google’s Cross-Motion for Sanctions [Dkt. No. 101]. See Dkt. No. 

124.

And, in doing so, the Court ordered that Google had too narrowly read the 

Court’s January 9, 2024 Electronic Order ordering “‘that Google must present a 

corporate representative to testify ... regarding the identity and circumstances of 

separation, if any, of so-called Level 8 employees who were employed as directors 

(the same level as Keplar) concurrently with Keplar in the Google Cloud sales 

organization of which Keplar was a part’ as ordering only ‘that Google must present 

a corporate representative to testify ... regarding the identity and circumstances of 

separation, if any, of so-called Level 8 employees who were employed as directors 

(the same level as Keplar) concurrently with Keplar in the Financial Services 

Industry vertical of the Google Cloud sales organization of which Keplar was a 

part.’” Dkt. No. 124 at 33. The Court explained that it

has carefully compared its January 9, 2024 Electronic Order [Dkt. No. 

76] with the briefing and deposition excerpts relevant to [Keplar’s 

allegations regarding Google’s failing to produce documents for, and 

offer corporate representative testimony about, all directors within 

Google Cloud’s Financial Services Industry vertical]. The bottom line is 

that the Court ordered “that Google must present a corporate 

representative to testify regarding the ages, qualifications, and 

circumstances of separation, reduction in scope of duties, demotion, or 

replacement of any employees of Google, including Mr. Fernandez, who 

were employed as directors (the same level as Keplar) concurrently with 

Keplar in the Financial Services Industry vertical of the Google Cloud 

sales organization of which Keplar was a part.” Dkt. No. 76.

That is, the required testimony is limited to directors at the same 

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level as Keplar. And Mr. Moyer’s testimony makes clear that those are 

directors in an “M1” position. And, so, the Court finds no violation of its 

January 9, 2024 Electronic Order.

As for Keplar’s document requests and interrogatories, Google 

did not, as Keplar observes, seek a protective order limiting the scope 

its responses and answers. And the Court’s January 9, 2024 Electronic 

Order did not address these written discovery requests because they 

were not before the Court on the Motion to Compel.

But Keplar’s emergency motion [Dkt. No. 79] did address them. 

And the parties then told the Court that there was no need for the 

Court to resolve that motion based on an agreement that “Google will 

supplement to the extent necessary and consistent with Magistrate 

Judge Horan’s January 9, 2024 Order [DKT. 76] its responses to 

Plaintiff’s First Interrogatories, Requests for Admission and Document 

Requests and will provide responsive documents to the extent necessary 

and consistent with Magistrate Judge Horan’s January 9, 2024 Order 

[DKT. 76].” Dkt. No. 83.

And, on the record before the Court, that appears to be what 

Google has done. And, so, the Court finds no basis to enter either a 

sanctions order or an order compelling further answers and production 

under Federal Rules of Civil Procedure 37(a)(3)(B)(iii)-(iv) based on 

these allegations.

....

The same cannot be said as to the second Rule 30(b)(6) topic on 

which the Court ordered Google to present corporate representative 

testimony.

Google apparently read the Court’s ordering “that Google must 

present a corporate representative to testify ... regarding the identity 

and circumstances of separation, if any, of so-called Level 8 employees 

who were employed as directors (the same level as Keplar) concurrently 

with Keplar in the Google Cloud sales organization of which Keplar was 

a part” as ordering only “that Google must present a corporate 

representative to testify ... regarding the identity and circumstances of 

separation, if any, of so-called Level 8 employees who were employed as 

directors (the same level as Keplar) concurrently with Keplar in the 

Financial Services Industry vertical of the Google Cloud sales 

organization of which Keplar was a part.”

But the Court included the limitation “[in] the Financial Services 

Industry vertical” only in the first Rule 30(b)(6) topic that the Court 

ordered on Keplar’s Motion to Compel: “regarding the ages, 

qualifications, and circumstances of separation, reduction in scope of 

duties, demotion, or replacement of any employees of Google, including 

Mr. Fernandez, who were employed as directors (the same level as 

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Keplar) concurrently with Keplar in the Financial Services Industry 

vertical of the Google Cloud sales organization of which Keplar was a 

part.”

The presence of that phrase in the first topic and not in the 

second reflects that the Court intended the limitation to apply to only 

the first topic. And that is what the Court ordered, notwithstanding 

Google’s efforts now to narrow the Court’s ordering language by 

pointing to the Court’s more general statement regarding comparators 

and Google’s resulting limitation of Ms. Piazza’s corporate 

representative testimony. See Dkt. No. 92-2.

Google’s counsel may have thought that the Court should have 

ruled more narrowly in deciding Keplar’s Motion to Compel – but, if so, 

those thoughts did not lead Google to either timely file Federal Rule of 

Civil Procedure 72(a) objections with Judge Boyle or seek clarification 

from the Court in advance of preparing and presenting the required 

corporate representative for deposition.

And Google cannot, based on the agreement reflected in the 

parties’ Joint Notice [Dkt. No. 83], correspondingly limit its 

interrogatory answers and document production when Google did not 

timely move for a protective order, Keplar moved to compel, and the 

parties agreed that “Google will supplement to the extent necessary and 

consistent with Magistrate Judge Horan’s January 9, 2024 Order [DKT. 

76] its responses to Plaintiff’s First Interrogatories, Requests for 

Admission and Document Requests and will provide responsive 

documents to the extent necessary and consistent with Magistrate 

Judge Horan’s January 9, 2024 Order [DKT. 76].” Dkt. No. 83.

Google’s violation of the Court’s January 9, 2024 Electronic Order 

[Dkt. No. 76] in Ms. Piazza’s corporate representative deposition 

testimony and its document production and interrogatory answers 

warrant a sanctions order under Rule 37(b)(2) and an order compelling 

supplemental answers and document production under Federal Rules of 

Civil Procedure 37(a)(3)(B)(iii)-(iv) based on these allegations.

....

Google’s counsel has now twice read the scope of the relief that 

the Court ordered in its January 9, 2024 Electronic Order granting in 

part and denying in part Keplar’s Motion to Compel more narrowly 

than the order’s language provides. 

Google’s counsel made clear during the February 14, 2024 

emergency telephone conference Google’s displeasure with the scope of 

that order as written and as clarified by the Court during the 

conference. That misreading was rendered harmless by counsel’s 

seeking clarification during the February 14, 2024 emergency telephone 

conference, as Keplar acknowledges. See Dkt. No. 103 at 1 n.2.

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But Google’s counsel also misread the Court’s ordering language 

regarding the second Rule 30(b)(6) topic. And the language of the 

Court’s order should have prompted Google to at least seek clarification 

before preparing and presenting its corporate representative to testify 

only “regarding the identity and circumstances of separation, if any, of 

so-called Level 8 employees who were employed as directors (the same 

level as Keplar) concurrently with Keplar in in the Financial Services 

Industry vertical of the Google Cloud sales organization of which Keplar 

was a part” and correspondingly limiting its document production and 

interrogatory answers.

In these circumstances, the just and proper outcome here under 

the Federal Rules is to require the continued deposition of Google’s 

corporate representative witness, Yolande Piazza, for two more hours 

and limited to the second ordered Rule 30(b)(6) topic as ordered in the 

January 9, 2024 Electronic Order [Dkt. No. 76] – after Google 

supplements it its document production and interrogatory answers 

consistent with the parties’ agreement reported in the Joint Notice 

[Dkt. No. 83].

Google will be responsible for paying for the court reporter for 

this limited continued corporate representative deposition, which will 

again take place over Zoom.

Google’s Cross-Motion for Sanctions suggests that Keplar should 

be required to pay for an attorney-mediator (or other Court-designated 

intermediary) to attend this deposition to confirm Keplar’s counsel’s 

compliance with the January 9 protective order. But that would involve 

more expense and trouble that is warranted here.

Rather, the Court orders that the deposition of Yolande Piazza as 

Google’s corporate representative will be continued for no more than 2 

hours on Monday, March 18, 2024 beginning at a mutually agreeable 

time no earlier than 10:00 a.m. Central Time, and the undersigned will 

sign on to the Zoom deposition and, with the undersigned’s camera off 

unless called on to speak, will monitor the deposition’s conduct. 

The Court will not rule on objections, if any, as they are made. 

That is not Rule 30(c)(2) or, more generally, depositions work, and the 

parties here are not, under the circumstances, entitled to special 

treatment or any kind of reward through this extraordinary relief that 

the Court feels compelled to provide. But the undersigned will be 

present in the event that the parties have a dispute regarding the scope 

of the deposition and to ensure compliance with Rule 30 and the 

January 9 protective order. 

Counsel must send an email to Horan_Orders@txnd.uscourts.gov 

by March 14, 2024, providing the time and Zoom log-in information for 

the March 18, 2024 deposition.

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In connection with this continued deposition, Keplar’s and 

Google’s counsel are each admonished to comply with the terms of the 

January 9 protective order and with Rule 30’s mandates, including Rule 

30(c)(2)’s limitations on the manner of objecting.

The Court also orders Google to supplement its document 

production and interrogatory answers, consistent with the Court’s 

orders, in advance of this Court-monitored and limited continued 

corporate representative deposition and by no later than March 14, 

2024.

And the Court finds that no other alleged sanctionable conduct 

warrants any additional relief against Keplar or Google under the 

Federal Rules or the Court’s inherent powers. This limited relief should 

draw discovery in this case to a close.

Dkt. No. 124 at 32-35, 38-41.

On March 12, 2024, Google filed a Motion for Reconsideration; or 

Alternatively, Clarification of Court’s March 8 Order [Dkt. No. 124]. See Dkt. No. 

129. Google explained that it

has reviewed Plaintiff’s Second Requests for Production to Defendant 

and First Set of Interrogatories to Defendant (collectively, “Discovery 

Requests”), and consistent with both this Court’s January 9, 2024 Order 

and March 8 Order, determined that it has no further obligation to 

supplement its document production and interrogatory answers to 

comply with the Court’s March 8 Order.

6. Based on Google’s review, none of Plaintiff’s Discovery 

Requests concern and/or relate to matters “regarding the identity and 

circumstances of separation, if any, of so-called Level 8 employees who 

were employed as directors (the same level as Keplar) concurrently with 

Keplar in the Google Cloud sales organization of which Keplar was a 

part consistent with the Court’s March 8 Order.”

7. Accordingly, Google moves the Court to reconsider its March 8 

Order that an order compelling supplemental answers and document 

production under Federal Rules of Civil Procedure 37(a)(3)(B(iii)-(iv) is 

warranted as to the second corporate representative topic – regarding 

the identity and circumstances of separation, if any, of so-called Level 8 

employees who were employed as directors (the same level as Keplar) 

concurrently with Keplar in the Google Cloud sales organization of 

which Keplar was a part – not limited to the FSI vertical, and find that

the Court has no basis to enter either a sanctions order or an order 

Case 3:22-cv-02281-B Document 139 Filed 03/18/24 Page 16 of 31 PageID 3386
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compelling further answers and production upon reconsideration of 

Plaintiff’s document requests and interrogatories at issue.

8. Alternatively, Google seeks clarification of which Discovery 

Requests propounded by Plaintiff concern and/or relate to matters 

“regarding the identity and circumstances of separation, if any, of 

so-called Level 8 employees who were employed as directors (the same 

level as Keplar) concurrently with Keplar in the Google Cloud sales 

organization of which Keplar was a part” for which Google must 

produce documents or answers to interrogatories, so that it may fully 

comply with its obligations under the Court’s March 8 Order. As 

demonstrated below, the Parties cannot reach agreement on which of 

the Discovery Requests are at issue, and the Court’s intervention is 

necessary, if reconsideration of the March 8 Order is not granted.

Dkt. No. 129 at 2-4.

Keplar responded on March 12, 2024 that Google,

in the face of a detailed consideration by Magistrate Judge David Horan 

of its ongoing discovery obligations in this action in his March 8, 2024 

order on cross-motions for sanctions, insists that it has already 

complied with all document request and interrogatory obligations (even 

if not supplemental deposition obligations) imposed by that order even 

when Magistrate Horan found that it has not done so. Specifically, 

Defendant claims that it need not further produce documents 

responsive to Request No. 7 within Plaintiff’s requests for documents, 

or provide further answers to Interrogatories No. 6 and 7 within 

Plaintiff’s interrogatories, served upon it on December 19, 2023. 

However, as noted in the order, Defendant did not move for a protective 

order as to such discovery requests. Order at 34-35. It therefore has no 

basis for fully producing documents in response to Request No. 2 and 

not fully answering Interrogatory No. 6 and 7. That means it must 

produce documents as to the ages of all Level 8 employees of Defendant 

from 2018 to date, as requested in Request No. 2, and answer 

interrogatories about the ages of named individuals as requested in 

Interrogatory No. 6 and the identity of employees who did not meet B1 

or B2 quotas from 2018 and 2022 as requested in Interrogatory No. 7.

2. Contrary to Defendant’s motion, Defendant’s obligation with 

respect to the document request and interrogatories are not dependent 

on the scope of its corporate representative deposition obligation. 

Magistrate Judge Horan held (Order at 34) that Defendant cannot limit 

its interrogatory answers and document requests on the basis of the 

parties’ agreement as to any corporate representative deposition. Order 

Case 3:22-cv-02281-B Document 139 Filed 03/18/24 Page 17 of 31 PageID 3387
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at 35. He also imposed sanctions upon Defendant related to its 

corporate representative deposition obligation under Rule 37(b) of the 

Federal Rules of Civil Procedure independent of his order compelling 

Defendant’s compliance with document request and interrogatory 

obligations under Rule 37(a). Id. Thus, Defendant may not limit its 

obligation to produce documents in response to Request No. 2 nor its 

obligation to answer Interrogatories Nos. 6 and 7 by reference to any 

aspect of its obligation to give a supplemental corporate representative 

deposition, as it seeks to do in its motion. Rather, it should simply 

produce the requested documents and answer the interrogatories on 

their own terms.

Dkt. No. 130 at 1-2.

On March 13, 2024, the Court granted in part and denied in part Defendant 

Google, LLC’s Motion for Reconsideration; or Alternatively, Clarification of Court’s 

March 8 Order [Dkt. No. 129], explaining that,

[t]o clarify, the Court ordered on March 8, 2024 that, consistent with 

the parties’ agreement in the Joint Notice [Dkt. No. 83], Google must 

supplement its responses and answers and document production to the 

extent that its responses and answers and production were limited 

based on Google’s too-narrow reading of the Court’s January 9, 2024 

Electronic Order. That is, if Google has information or documents that 

are responsive to any of the document requests or interrogatories based 

on the Court’s ordering that Google must provide information 

“regarding the ages, qualifications, and circumstances of separation, 

reduction in scope of duties, demotion, or replacement of any employees 

of Google, including Mr. Fernandez, who were employed as directors 

(the same level as Keplar) concurrently with Keplar in the Financial 

Services Industry vertical of the Google Cloud sales organization of 

which Keplar was a part and regarding the identity and circumstances 

of separation, if any, of so-called Level 8 employees who were employed 

as directors (the same level as Keplar) concurrently with Keplar in the 

Google Cloud sales organization of which Keplar was a part,” Google 

must supplement its answers and responses and document production 

to provide those materials and information before the March 18, 2024 

continued deposition. The Court did not on March 8, 2024 order 

supplemental production or answers beyond that and does not 

otherwise grant any of the relief that Google seeks in this latest motion.

Case 3:22-cv-02281-B Document 139 Filed 03/18/24 Page 18 of 31 PageID 3388
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Dkt. No. 131 at 1-2.

In his Third Motion to Compel and Second Motion for Sanctions, Keplar now 

asserts that, “on their face,” Keplar’s Request for Production No. 2 and 

Interrogatories Nos. 6 and 7 “overlap with the two categories of information as to 

which Defendant has continuing discovery obligations identified by this Court in its 

January 9, 2024 order and then again in its March 8, 2024 order on cross-motions for 

sanctions and March 13, 2024 order on Defendant’s motion for reconsideration or 

clarification of the March 8, 2024 order.” Dkt. No. 135 at 2. Keplar asserts that, 

“[s]pecifically,”

• “(a) the ages of Level 8 employees referred to in Request No. 2 

necessarily bear on the circumstances of separation (specifically the age 

at separation) of so-called Level 8 employees who were employed as 

directors (the same level as Keplar) concurrently with Keplar in the 

Google Cloud sales organization of which Keplar was a part,”

• “(b) the ages of certain employees of Defendant referred to 

Interrogatory No. 6 necessarily bear on the ages of any employees of 

Google, including Mr. Fernandez, who were employed as directors (the 

same level as Keplar) concurrently with Keplar in the Financial 

Services Industry vertical of the Google Cloud sales organization of 

which Keplar was a part and regarding the identity and circumstances 

of separation, if any, of so-called Level 8 employees who were employed 

as directors (the same level as Keplar) concurrently with Keplar in the 

Google Cloud sales organization of which Keplar was a part,” and ‘

• “(c) the quota attainment of employees in Defendant’s Google Cloud 

organization referred to in Interrogatory No. 7 necessarily bear on 

circumstances of separation of any employees of Google, including Mr. 

Fernandez, who were employed as directors (the same level as Keplar) 

concurrently with Keplar in the Financial Services Industry vertical of 

the Google Cloud sales organization of which Keplar was a part and 

[the] circumstances of separation, if any, of so-called Level 8 employees 

who were employed as directors (the same level as Keplar) concurrently 

with Keplar in the Google Cloud sales organization of which Keplar was 

a part.”

Case 3:22-cv-02281-B Document 139 Filed 03/18/24 Page 19 of 31 PageID 3389
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Dkt. No. 135 at 2-3. Keplar explains that, as he

interprets the March 13, 2024 order, the Court has ordered the 

production of documents and answers to interrogatories only to the 

extent of any overlap with the two identified categories of information 

as to which Defendant has continuing discovery obligations in the form 

of a corporate representative deposition, not ordered production of 

additional documents and supplemental answers to interrogatories on 

their own terms, as Plaintiff, in his response to Defendant’s motion for 

reconsideration or clarification of the March 8, 2024 order, claimed was 

appropriate in view of the independence of Defendant’s corporate 

representative discovery obligations and its discovery obligations 

relating to document requests and interrogatories and the independent 

grounds for sanctions on the two separate sets of discovery obligations 

under Rules 37(a) and 37(b) of the Federal Rules of Civil Procedure. 

However, in denying in part Defendant’s motion for reconsideration or 

clarification the March 8, 2024 order (even if granting it in part to the 

limited extent noted), this Court was not, as Defendant seemingly 

believes, thereby effectively vitiating any obligation to provide 

additional documents and supplemental answers. With the critical 

document request and critical interrogatories before it at the time of the 

March 8, 2024 order and the March 13, 2024, it would not have denied 

the motion for reconsideration or clarification of the March 8, 2024 

order to any extent if it believed that Defendant was being excused from 

any further such obligation by the March 13, 2024 order. 

Dkt. No. 135 at 1 n.1.

But, Keplar reports, Google “has not produced any additional documents or 

supplemented any prior answers to interrogatories as of the time of the filing of this 

motion on [March] 15, 2024.” Id. at 3.

Keplar requests that, “[b]ased on Defendant’s failure to produce any 

additional documents or supplement any prior answers to interrogatories in 

response to the specified request for production and interrogatories, this Court 

should compel Defendant to do so and award sanctions for its not doing so prior to 

the March 18, 2024 continued deposition required by the March 8, 2024 order.” Id. at 

Case 3:22-cv-02281-B Document 139 Filed 03/18/24 Page 20 of 31 PageID 3390
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3; see also Dkt. No. 138 at 2 (“Plaintiff prays for an order that Defendant 

immediately (on Tuesday, March 19, 2024, to allow for use by Plaintiff in his 

summary judgment response due March 22, 2024) respond fully to Plaintiff’s 

Request No. 2 and Interrogatories 6 and 7.”).

Google responded on March 17, 2024 that, with the Court’s clarification in its 

March 13, 2024 Order [Dkt. No. 131], “Google again reviewed Plaintiff’s 2nd 

Requests for Production of Documents and First Set of Interrogatories (collectively, 

‘Discovery Requests’) and determined it did not limit its responses and answers and 

document production based on a too-narrow reading of the Court’s January 9, 2024 

Electronic Order.” Dkt. No. 136 at 1.

Google reports that its “counsel notified Plaintiff’s counsel that ‘[i]n 

accordance with its Agreement set forth in the parties’ Joint Notice [Dkt. No. 83], 

Google has no response in advance of the continuation of its corporate representative 

deponent, Ms. Yolande Piazza, on Monday, March 18, responsive to any of Plaintiff’s 

2nd document requests or interrogatories served on December 19, 2023, based on the 

Court’s ordering that, consistent with the parties’ agreement, Google must 

supplement its responses and answers and document production to the extent that 

its responses and answers and production were limited based on Google’s too-narrow 

reading of the Court’s January 9, 2024 Electronic Order. Upon further review and 

analysis, Google has determined that its previous production and supplemental 

answers to interrogatories and responses were in no way limited based on its 

too-narrow reading of the Court’s January 9, 2024 Electronic Order.’” Dkt. No. 136 at 

Case 3:22-cv-02281-B Document 139 Filed 03/18/24 Page 21 of 31 PageID 3391
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2.

Google explains that “[t]he Court has ordered the continued deposition of 

Google’s corporate representative witness, Ms. Yolande Piazza, for two more hours 

limited to the second ordered Rule 30(b)(6) topic – relevant to Plaintiff’s ERISA claim 

– regarding the identity and circumstances of separation, if any, of Level 8 

employees who were employed as directors (the same level as Keplar) concurrently 

with Keplar in the Google Cloud sales organization of which Keplar was a part 

[Dkt.124 No., pp. 33 and 39],” and Google asserts that “Plaintiff’s Request No. 2 and 

Interrogatory Nos. 6 and 7 do not ask Google for the identity and circumstances of 

separation, if any, of Level 8 employees who were employed as directors (the same 

level as Keplar) concurrently with Keplar in the Google Cloud sales organization of 

which Keplar was a part. [Dkt. 105-4, pp. 6 -7; Dkt. No., pp. 8 - 9]” and that, 

“[a]ccordingly, Google did not respond to these Discovery Requests because it was 

not necessary to do so – consistent with the parties’ agreement – and Google did not 

limit its responses and answers and document production to Plaintiff’s Discovery 

Requests based on a too-narrow reading of the Court’s January 9, 2024 Electronic 

Order for this same reason.” Dkt. No. 136 at 2-3.

Discussion

The Court understands Keplar to now be moving for sanctions under Federal 

Rule of Civil Procedure 37(b)(2) and to compel discovery responses and answers 

under Federal Rules of Civil Procedure 37(a)(3)(B)(iii)-(iv).

The Court has already laid out the standards for sanctions under Rule 37(b)(2) 

Case 3:22-cv-02281-B Document 139 Filed 03/18/24 Page 22 of 31 PageID 3392
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for failing to obey an order to provide or permit discovery. See Dkt. No. 124 at 13-18. 

And, as explained above, under the Court’s Scheduling Order and Amended 

Scheduling Order, any Rule 37(a)(3)(B) motion to compel is untimely unless the 

Court’s March 8, 2024 and March 13, 2024 orders established the deadlines for 

service of the discovery answers and responses at issue. See Dkt. No. 25 at 3; Dkt. 

No. 60 at 1.

And, so, the issue to be decided on Keplar’s latest motion comes down to what 

the Court’s March 8, 2024 and March 13, 2024 orders required of Google as to 

supplemental discovery answers and responses and document production.

The Court’s orders as to Keplar’s written discovery and Google’s responses and 

answers were tied to the parties’ agreement in the Joint Notice [Dkt. No. 83] 

providing that, “[i]n advance of Google’s Corporate Deponent deposition, Google will 

supplement to the extent necessary and consistent with Magistrate Judge Horan’s 

January 9, 2024 Order [DKT. 76] its responses to Plaintiff’s First Interrogatories, 

Requests for Admission and Document Requests and will provide responsive 

documents to the extent necessary and consistent with Magistrate Judge Horan’s 

January 9, 2024 Order [DKT. 76].” Dkt. No. 83 at 1.

Keplar contends that the Court’s ensuing March 8, 2024 and March 13, 2024 

orders mean that “the Court has ordered the production of documents and answers 

to interrogatories only to the extent of any overlap with the two identified categories 

of information as to which Defendant has continuing discovery obligations in the 

form of a corporate representative deposition.” Dkt. No. 135 at 1 n.1.

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But, whatever the parties intended their agreement in the Joint Notice [Dkt. 

No. 83] to mean, the Court does not read it to dictate that Google must fully answer 

or respond to any discovery request that overlaps in any way with the two Federal 

Rule of Civil Procedure 30(b)(6) deposition topics ordered in the January 9, 2024 

Electronic Order [Dkt. No. 76].

And, in any event, that is not what the Court ordered on March 8, 2024 and 

March 13, 2024, which was (as clarified) that, “consistent with the parties’ 

agreement in the Joint Notice [Dkt. No. 83], Google must supplement its responses 

and answers and document production to the extent that its responses and answers 

and production were limited based on Google’s too-narrow reading of the Court’s 

January 9, 2024 Electronic Order.” Dkt. No. 131 at 1. 

The Court’s March 8, 2024 order observed, in pertinent part, that, “[a]s for 

Keplar’s document requests and interrogatories, Google did not, as Keplar observes, 

seek a protective order limiting the scope its responses and answers”; “the Court’s 

January 9, 2024 Electronic Order did not address these written discovery requests 

because they were not before the Court on the Motion to Compel,” “[b]ut Keplar’s 

emergency motion [Dkt. No. 79] did address them”; and that “the parties then told 

the Court that there was no need for the Court to resolve that motion based on an 

agreement that ‘Google will supplement to the extent necessary and consistent with 

Magistrate Judge Horan’s January 9, 2024 Order [DKT. 76] its responses to 

Plaintiff’s First Interrogatories, Requests for Admission and Document Requests and 

will provide responsive documents to the extent necessary and consistent with 

Case 3:22-cv-02281-B Document 139 Filed 03/18/24 Page 24 of 31 PageID 3394
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Magistrate Judge Horan’s January 9, 2024 Order [DKT. 76].’” Dkt, No. 124 at 32-33 

(quoting Dkt. No. 83 at 1).

The Court on March 8, 2024 found “no basis to enter either a sanctions order 

or an order compelling further answers and production under Federal Rules of Civil 

Procedure 37(a)(3)(B)(iii)-(iv) based on” Keplar’s allegations regarding Google’s 

failing to produce documents for, and offer corporate representative testimony on the 

first deposition topic about, all directors within Google Cloud’s Financial Services 

Industry vertical. Dkt. No. 124 at 32-33.

The Court then held that Google – having filed no motion for a protective 

order and having agreed to “supplement to the extent necessary and consistent with 

Magistrate Judge Horan’s January 9, 2024 Order [DKT. 76] its responses to 

Plaintiff’s First Interrogatories, Requests for Admission and Document Requests and 

... provide responsive documents to the extent necessary and consistent with 

Magistrate Judge Horan’s January 9, 2024 Order [DKT. 76],” Dkt. No. 83 at 1 – 

“cannot, based on the agreement reflected in the parties’ Joint Notice [Dkt. No. 83], 

correspondingly limit its interrogatory answers and document production based on 

its too-narrow reading of the second deposition topic” “as ordering only ‘that Google 

must present a corporate representative to testify ... regarding the identity and 

circumstances of separation, if any, of so-called Level 8 employees who were 

employed as directors (the same level as Keplar) concurrently with Keplar in the 

Financial Services Industry vertical of the Google Cloud sales organization of which 

Keplar was a part,’” Dkt. No. 124 at 33-35.

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And the Court ordered that “Google’s violation of the Court’s January 9, 2024 

Electronic Order [Dkt. No. 76] in Ms. Piazza’s corporate representative deposition 

testimony [as to the second deposition topic] and its document production and 

interrogatory answers warrant a sanctions order under Rule 37(b)(2) and an order 

compelling supplemental answers and document production under Federal Rules of 

Civil Procedure 37(a)(3)(B)(iii)-(iv)” and ordered “Google to supplement its document 

production and interrogatory answers, consistent with the Court’s orders, in advance 

of this Court-monitored and limited continued corporate representative deposition 

and by no later than March 14, 2024.” Dkt. No. 124 at 35, 40-41

The Court’s March 8, 2024 order, as to Keplar’s document requests and 

interrogatories, was limited to enforcing the parties’ agreement to resolve Keplar’s 

emergency motion [Dkt. No. 79] and specifically to require Google to, if necessary, 

supplement with any responsive information or documents that it may have 

withheld based on its too-narrow reading of the second deposition topic that the 

Court ordered in its January 9, 2024 Electronic Order. And, as the Court explained 

in its March 13, 2024 order, “[t]he Court did not on March 8, 2024 order 

supplemental production or answers beyond that.” Dkt. No. 131 at 2. In that sense, 

in the Court’s March 8, 2024 order, there was, as Keplar now contends, some “legal 

independence, for Rule 37 purposes, of the order for a continued deposition and” the 

order for Google to supplement its discovery answers and responses. Dkt. No. 138 at 

1. And the Court, relatedly, did not order new or continued deposition testimony 

regarding Google’s discovery answers and responses or document production. See 

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Dkt. Nos. 124 & 131.

But the Court’s March 8, 2024 order, by its own terms, also did not compel 

further or supplement answers or document production in connection with the first 

deposition topic that the Court ordered in its January 9, 2024 Electronic Order – 

“the ages, qualifications, and circumstances of separation, reduction in scope of 

duties, demotion, or replacement of any employees of Google, including Mr. 

Fernandez, who were employed as directors (the same level as Keplar) concurrently 

with Keplar in the Financial Services Industry vertical of the Google Cloud sales 

organization of which Keplar was a part.” Dkt. No. 124 at 32-33.

And the Court did not, as Keplar now contends, order that Google must fully 

respond – before or after the March 18, 2024 continued corporate representative 

deposition – to Keplar’s Request for Production No. 2 seeking “[a]ll documents 

referring to or evidencing the age of Level 7 and 8 employees in the Google Cloud 

sales organization during the period from one year before Plaintiff worked there to 

the present,” because, in Keplar’s view, the ages of the subset of that pool of 

employees who were Level 8 employees employed as M1 directors concurrently with 

Keplar in the Google Cloud sales organization and who have separated from Google 

are “circumstances of [their] separation.”

Neither did the Court order that Google must fully answer – before or after 

the March 18, 2024 continued corporate representative deposition – Keplar’s 

Interrogatory No. 6 asking Google to “[s]tate the age of each of the following [listed] 

persons on the date that such person was hired by Defendant” because, in Keplar’s 

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view, the hiring-date ages of the named persons on that list who were Level 8 

employees employed as M1 directors concurrently with Keplar in the Google Cloud 

sales organization and who have separated from Google are somehow “circumstances 

of [their] separation.”

And the Court did not order that Google must fully answer – before or after 

the March 18, 2024 continued corporate representative deposition – Keplar’s 

Interrogatory No. 7 asking Google to “[i]dentify all employees in the Google Cloud 

sales organization who did not meet their B1 and/or B2 goals from 2018 to 2022” 

because, in Keplar’s view, “the quota attainment of employees in Defendant’s Google 

Cloud organization referred to in Interrogatory No. 7 necessarily bear on 

circumstances of separation” of any individuals who did not meet those goals in 

those years and who also were Level 8 employees employed as M1 directors 

concurrently with Keplar in the Google Cloud sales organization and who have 

separated from Google. Dkt. No. 135 at 3.

And, consistent with the requirements of the Court’s March 8, 2024 and 

March 13, 2024 orders, Google now reports that, “[u]pon further review and analysis, 

Google has determined that its previous production and supplemental answers to 

interrogatories and responses were in no way limited based on its too-narrow 

reading of the Court’s January 9, 2024 Electronic Order.’” Dkt. No. 136 at 2.

Keplar contends that, even after he “sought an order compelling Defendant to 

respond to [Plaintiff’s Request for Production No. 2 and Interrogatories Nos. 6 and 

7], as this Court noted, in its March 8, 2024 order (Dkt. 124), [Google] sought no 

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protective order to excuse less than full compliance with such discovery request.” 

Dkt. No. 138 at 1. But Keplar also told the Court that there was no need for the 

Court to resolve his motion to compel based on an agreement that “Google will 

supplement to the extent necessary and consistent with Magistrate Judge Horan’s 

January 9, 2024 Order [DKT. 76] its responses to Plaintiff’s First Interrogatories, 

Requests for Admission and Document Requests and will provide responsive 

documents to the extent necessary and consistent with Magistrate Judge Horan’s 

January 9, 2024 Order [DKT. 76].” Dkt. No. 83 at 1.

The Court has not ordered Google to further respond or answer Keplar’s 

written discovery requests beyond what it ordered in its March 8, 2024 order, and 

the Court’s March 13, 2024 order clarifying its March 8, 2024 order could not and did 

not expand the scope of what the Court had already ordered regarding any further or 

supplemental answers and document production. Neither did the Court make any 

rulings regarding Keplar’s newest motion to compel during the March 18, 2024 

continued deposition of Google’s corporate representative; rather, the Court only 

issued rulings to enforce the continued deposition’s limits under the March 8, 2024 

order.

In the face of Google’s explanations regarding its compliance with the Court’s 

orders, the Court cannot accept Keplar’s assertion that Google failed to comply with 

any requirements of or otherwise violated the Court’s March 8, 2024 and March 13, 

2024 orders based on the fact that Google “has not produced any additional 

documents or supplemented any prior answers to interrogatories as of the time of 

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the filing of this motion on” March 15, 2024. Dkt. No. 135 at 3.

And, insofar as Keplar’s March 15, 2024 motion is intended as a Rule 37(a)(3) 

motion to compel based on Google’s alleged “obligation, independent of the corporate 

representative deposition obligation, to respond to such discovery requests,” Dkt. No. 

138 at 1, the motion is untimely under deadline set by the Court’s scheduling orders, 

see Dkt. No. 25 at 3, 8; Dkt. No. 60 at 1; see generally Brand Servs., L.L.C. v. Irex 

Corp., 909 F.3d 151, 156 (5th Cir. 2018) (“A district court has discretion to deny as 

untimely a motion filed after the discovery deadline.”); Siegel v. Compass Bank, No. 

3:18-cv-1023-X, 2021 WL 4498915, at *2 (N.D. Tex. Jan. 11, 2021) (“Relatedly, the 

Fifth Circuit Court of Appeals has noted that its ‘precedent suggests that a district 

court is within its discretion to deny a motion to compel filed on or after the 

court-ordered discovery deadline – regardless of the requested discovery’s value to 

the party’s case.’’ McCollum v. Puckett Machinery Co., 628 F. App’x 225, 228 n.4 (5th 

Cir. 2015); see also Turnage v. Gen. Elec. Co., 953 F.2d 206, 209 (5th Cir. 1992) 

(holding that the district court did not abuse its discretion when it denied plaintiff’s 

request to conduct potentially dispositive discovery, ‘given (i) the imminence of trial, 

(ii) the impending discovery deadline, and (iii) [plaintiff’s] failure to request an 

inspection earlier’).” (footnote omitted)).

And Keplar has made no attempt to show good cause under Federal Rule of 

Civil Procedure 16(b)(4) to justify the late filing of a motion to compel, days before 

the extended deadline for filing his summary judgment response. See generally 

MidTexas Indus. Properties, Inc. v. U.S. Polyco, Inc., No. 3:19-cv-1573-L, 2020 WL 

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13134083, at *1 (N.D. Tex. Jan. 13, 2020) (“The good cause standard requires the 

party seeking relief to show that the deadlines [could not] reasonably [have been] 

met despite the diligence of the party needing the extension.” (cleaned up)); Squyres 

v. Heico Companies, L.L.C., 782 F.3d 224, 237 (5th Cir. 2015) (“There are four 

relevant factors to consider when determining whether there is good cause under 

Rule 16(b)(4): (1) the explanation for the failure to timely [comply with the 

scheduling order]; (2) the importance of the [modification]; (3) potential prejudice in 

allowing the [modification]; and (4) the availability of a continuance to cure such 

prejudice.” (cleaned up)).

The Court finds no basis enter either a Rule 37(b)(2) sanctions order or an 

order compelling further or supplemental answers and responses or document 

production under Rules 37(a)(3)(B)(iii)-(iv).

Conclusion

For the reasons explained below, the Court denies Plaintiff Jeffrey Keplar’s 

Third Motion to Compel and Second Motion for Sanctions [Dkt. No. 135].

SO ORDERED.

DATED: March 18, 2024

_________________________________________

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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