MELINA CAMERON vs BALFOUR BEATTY CONSTRUCTION, LLC, et al.

2024CUOE026155: MELINA CAMERON vs BALFOUR BEATTY CONSTRUCTION, LLC, et al.

FEHA hostile work environment – race harassment; (4) FEHA gender discrimination; (5) FEHA race discrimination; (6) FEHA retaliation; (7) FEHA failure to prevent harassment; (8) whistleblowing retaliation; (9) violation of the Ralph Civil Rights Act of 1976; and (10) violation of the Bane Act. Plaintiff was assigned to supervise a large Balfour construction project at the Del Sol High School in Oxnard. During her time at the project, she alleges she was subjected to racial, gender and sexual harassment, and workplace violence in the form of racist and sexual drawings of her, drawings of nooses, swastikas, slashed tires and other threats. She asserts that Balfour turned a blind eye and ultimately terminated her for her complaints.

Defendant Balfour moves for the following based upon Plaintiff’s failure to serve any response to Balfour’s Demand for Inspection of Plaintiff’s Cell Phone and USB Flash Drive, served on January 8, 2026, by the statutory deadline of February 7, 2026, therefore waiving all objections to the scheduled February 12th inspection:

• Plaintiff to submit her cell phone (or any replacement device to which cell phone data was transferred), the USB flash drive, and any iCloud or backup accounts to Epiq Insurance Practice Group for forensic inspection; • Plaintiff to provide a declaration explaining: (a) when she returned her cell phone to T-Mobile; (b) whether any data was backed up, transferred, or preserved before returning the device; (c) the identity of any replacement device, including make, model, phone number, and carrier; and (d) all iCloud or cloud-based accounts associated with the returned device; • Monetary sanctions in the amount of $7,150.50 for attorneys’ fees and costs; and • Additional issue, evidentiary, or terminating sanctions as appropriate for Plaintiff’s willful spoliation of evidence and pattern of discovery abuse, including serving false discovery responses, concealing video evidence, and destroying her cell phone in defiance of the explicit preservation instruction

Defendant notes that Plaintiff has admitted to having documents, photos and videos supporting her claims on her electronic devices. Defendant maintains that metadata related to these materials will show that Plaintiff manipulated data produced in discovery and/or used photos and videos to manufacture a claim against Defendant. Defendant’s basis for believing this is rooted in prior testimony given by Plaintiff, Plaintiff’s statements to Balfour when it was investigating her complaint, and what appear to be changing stories in terms of whether Plainitff does or does not have the videos and photographs in her possession, and if so, on what devices these materials are stored.

Her counsel also previously acknowledged that he had downloaded documents from Plaintiff’s Balfour-issued laptop to a USB thumb drive, and would provide a copy of the thumb drive. These materials have not been produced.

Plaintiff responds that she has timely provided all photos, texts, videos, and recordings to Mr. Baruch, former counsel, twice in 2023 (September and November) and again in February 2026, and believed that relevant information would be provided to Defendant. She maintains there was no misconduct, no destruction of evidence, no intentional relinquishment of any cell phone used to video/photo evidence related to the porta-potties, Plaintiff did not edit video of the May 3rd meeting, and she believes she has produced everything relevant to this case. She is not refusing

2024CUOE026155: MELINA CAMERON vs BALFOUR BEATTY CONSTRUCTION, LLC, et al.

to produce relevant documents, and her former counsel has sole custody, possession and control of the USB device. Mr. Baruch did not tell her to do anything, appear or provide devices, in response to the Demand for Inspection. She asserts that she did not know about the failure to provide responses or objections until last week. Mr. Baruch provided a declaration stating that he received the discovery demand on January 8th, but believed there was a “verbal agreement or understanding” for a stay on discovery during the time the parties were actively working on settlement.

He didn’t formally object or respond during that time. Plaintiff asserts she used two separate cell phones to document evidence while working for Defendant, one was her former active cell phone and the second was an inactive cell phone. The first (former active) broke in early 2024 and she still has possession. The second (former inactive) was lost in early 2024, but no data was lost because she saved the photos and videos to her laptop. Plaintiff previously indicated she purchased her current phone in February 2024, but has since retracted that and now states she has a different phone currently.

Afte supplemental submissions to the Court, Plaintiff identifies at least 5 different phones that she has had since 2023. She disputes her former counsel’s statement that she ever returned a cell phone to her cell carrier, and she maintains that she provided all videos and photographs to her prior counsel. Plaintiff explains she has significant privacy interests in her devices. She does not distinguish amongst the devices in terms of which phones have personal or private information and which may not.

Plaintiff’s new counsel attempts to corroborate Plaintiff’s statements, but her declaration lacks foundation. While the Court appreciates that counsel is concerned about the waiver of privilege, counsel has already placed the issue before the Court of whether it is true that Plaintiff produced all videos and photographs to prior counsel such that this is all a misunderstanding. There is still no declaration from prior counsel corroborating that Plaintiff produced everything to him and he failed to produce it, nor is there documentary evidence, such as redacted emails or other evidence of transmissions by Plaintiff to her counsel.

Plaintiff’s counsel indicates she is prepared to provide the USB to the defense.

Discussion:

The subject Demand for Inspection of Plaintiff Melina Cameron’s Cell Phone and USB Flash Drive was propounded on January 8, 2026, with an inspection date of February 12, 2026. It was served via email on Plaintiff’s counsel Mr. Baruch. Moving-party Balfour requested that Plaintiff:

“produce and permit the inspection, duplication, copying, testing, and examination of the tangible items described herein relating to electronically stored information on or in connection with relevant data on Plaintiff’s cell phone and a USB flash drive in her possession during her employment with Defendant and relating to this lawsuit up until the present, as described and identified below.”

The “INSTRUCTIONS” were outlined in section I as follows:

2024CUOE026155: MELINA CAMERON vs BALFOUR BEATTY CONSTRUCTION, LLC, et al.

A. “Plaintiff shall make available for inspection and copying her iPhone, any other cell phones, and the USB flash drive containing the contents of Plaintiff’s work laptop issued by Defendant, which were downloaded by Plaintiff’s counsel (and other items that contain the requested electronic data which has been transferred from the cell phone(s) or USB flash drive such as iCloud accounts, computers, laptops, iPads, or other backup devices) that are within Plaintiff’s custody, possession, or control, or within the custody, possession, or control of Plaintiff’s attorneys, investigators, agents, employees, or other representatives.”

Section B included the method to withhold any tangible items.

Section II outlined the protocol for forensic inspection of the “cell phone(s), USB flash drive and related back-up device(s)” named the forensic inspector, date and location for inspection, and that the inspection would attempt to recover: “the following information and data listed below, and its related metadata and electronic information, including but not limited to: time sent or received, dates, sender, recipients, group texting, creation, deletion, saved, replies, images, attachments, recordings attached or sent files (video, photo, audio, pdf, etc.), forwarding, revisions, uploads, opened, read, and any other metadata: 1.

All video and audio recordings taken by Plaintiff, at Defendant’s worksites, while she was working for Defendant; 2. All texts, emails, images, photos, video, and audio recordings sent and received, from January 1, 2022, through the date of the inspection, to and from Defendant and Defendant’s employees; 3. All texts, emails, images, photos, video, and audio recordings sent and received, from January 1, 2022, through the date of the inspection, to and from Defendant Richard Porter; 4. All texts, emails, images, photos, video, and audio recordings sent and received, from January 1, 2022, through the date of the inspection, to and from Jesse Mellon and Taft Electric; 5.

All texts, emails, images, photos, video, and audio recordings sent and received, from January 1, 2022, through the date of the inspection, to and from Defendant Joe Wandolowski; 6. All texts, emails, images, photos, video, and audio recordings sent and received, from January 1, 2022, through the date of the inspection, to and from Defendant Tim Gridley; 7. All texts, emails, images, photos, video, and audio recordings sent or received by Plaintiff that refer or relate to Defendant and/or Plaintiff’s employment with Defendant; and 8.

All texts, emails, images, photos, video, and audio recordings sent or received by Plaintiff that refer or relate to Plaintiff’s allegations in her Complaint for this lawsuit filed on June 24, 2024.

Section III includes the inspection and production guidelines, stating that after Epiq provides both counsel with “the active and deleted records and other files that were recovered and assembled during the forensic processing activities” the parties expressly “retain all rights to

2024CUOE026155: MELINA CAMERON vs BALFOUR BEATTY CONSTRUCTION, LLC, et al.

assert objections to the production of documents” and that “[p]roduction pursuant to this inspection protocol shall not waive the parties’ rights to object to the introduction of the evidence at trial.” Defendant Balfour has shown sufficient good cause to compel Plaintiff to provide her cell phones and the USB device for forensic inspection in the narrowly tailored manner described by the Court in this ruling. There appears to be a longstanding and unjustified failure of Plaintiff to comply with her discovery obligations to produce all responsive photos and videos, and Defendant should be provided with some means of confirming that production is complete.

Plaintiff’s new counsel recently provided videos and photographs, some of which appear to be exculpatory, but which still do not match the description of evidence that Plaintiff previously stated was in her possession. Given the changing and at-time contradictory responses provided throughout litigation, including about the number of videos taken and the number and identity of the cell phones used by Plaintiff (first one phone, then three or maybe four, now at least five), and the lack of corroboration between Plaintiff and her prior counsel, the proposed inspection protocol appears reasonable.

The attempt to meet and confer failed. Defendant should not have to take Plaintiff’s word that the responses provided thus far are complete, but should be able to verify whether any data was lost, deleted or modified.

The protocol provides that Plaintiff expressly retains all rights to assert objections to the actual production of documents extracted from the inspection. Plaintiff’s argument that counsel is to blame for the failure to respond is not persuasive, in part because the declaration from Mr. Baruch does not confirm Plaintiff’s lack of knowledge about the requested discovery. Mr. Baruch also did not confirm that he was provided with data from Plaintiff in 2023 or 2026 as Plaintiff states in her declaration, and says nothing about the failure to provide the USB as he said he would. Nor did Mr. Baruch offer any explanation for his assertion to opposing counsel that Plaintiff turned the phone into T-Mobile.

As for waiver of objections to the Demand, Plaintiff filed a Motion seeking relief from the waiver and the Court will address that issue in due course. The Court also gives little credit to Mr. Baruch’s statement that he thought there was a stay on discovery; this statement is inconsistent with the factual record before the Court. Notably though, any waiver of objections to the Demand has a limited effect because the protocol included in the Demand explicitly states that the parties retain all rights to assert objections to the underlying production of documents.

Objections to the inspection are not the same as objections to the production of the underlying documents themselves. Allowing inspection of the phones and USB drive does not appear to be harassing, or intrusive given the history and circumstances of this case, and Plaintiff offers no argument regarding how the requests are overbroad.

The request for issue/evidentiary/terminating sanctions is denied without prejudice. It may be that such request are meritorious, particularly depending on what the forensic inspection reveals, but that showing has not been made yet. There is insufficient showing of misconduct or destruction of evidence.

The request that Plaintiff provide a sworn declaration explaining facts about the phone(s), the backup to the computer, etc. is also denied.

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