1 State of California’s civil rights enforcement agency -- the California Department of Fair Employment

2 and Housing (DFEH). Rather than cooperate with the DFEH in its investigation, Riot Games’ strategy

3 appears to be one of delay and non-cooperation. Only incomplete information has been produced thus

4 far in response to the DFEH’s investigative discovery requests served almost four months ago. By the

5 instant petition, the DFEH now seeks assistance from the Court to obtain Riot’s compliance so the

6 investigation can be completed promptly and any civil rights violations remedied accordingly.

7 On October 25, 2018, the Director of the California DFEH issued an administrative complaint

8 against Respondents and initiated an investigation that the Fair Employment and Housing Act (FEHA)

9 authorizes the DFEH to conduct into alleged civil rights violations. (See Declaration of Grace Shim in
10 Support of Petition to Compel (Shim Decl.) ⁋ 2, Exhibit 1 [Director’s Complaint for Group/Class

11 Relief]; Gov. Code1, §§ 11180, 12960, 12961, 12965.) This investigation included serving Riot Games

12 requests for production of employment data, as authorized by the FEHA. (§ 12930, subd. (g)(4); §

13 12963.4 [vesting DFEH with the authority to issue requests for production of records and documents]; §

14 12946 [requiring employers to maintain employment records and files]; § 11180; and Cal. Code Regs.,

15 tit. 2, § 11013, subd. (c).)

16 Instead of complying with these routine requests, Riot Games has impeded the DFEH’s

17 investigation by refusing to produce complete employment information necessary to determine whether

18 Riot has violated civil rights laws. Basic employment data that the FEHA and other employment laws

19 require employers to maintain -- and courts have uniformly recognized is necessary to assess

20 discrimination allegations like those at issue -- has been withheld for several months. Having

21 unsuccessfully met and conferred on numerous occasions with Riot Games and exhausted efforts to

22 obtain the requested employment information without court intervention, the DFEH files this petition to

23 compel compliance with investigative requests for the production of documents, as permitted by

24 Government Code section 12963.5, subdivision (a).

25 The Petition requests that the Court grant an Order to Show Cause, and after the hearing upon

26 that Order, compel Riot Games to comply with DFEH’s document requests.
27 ///

28 1
All further statutory references shall be to the Government Code unless otherwise indicated.
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Dept. Fair Empl. & Hous. v. Riot Games, Inc., et al.
Verified Petition to Compel and Application for Order to Show Cause
 1 II. STATEMENT OF FACTS

2 A. DFEH’S DIRECTOR FILES A GROUP COMPLAINT AGAINST RIOT GAMES.

3 After obtaining information that Riot engaged in unlawful discrimination against female

4 applicants and female employees, the Director of the DFEH issued an administrative complaint against

5 Respondents according to his authority under California Code of Regulations, title 2, section 10012. The

6 complaint, filed in October 2018, alleged gender discrimination in the terms and conditions of

7 employment, including unequal pay, sexual harassment, sexual assault, retaliation, and failure to prevent

8 unlawful acts. The Director’s Complaint was accompanied by a notice that the Director issued the group

9 or class Complaint of Discrimination on behalf of “all female employees and applicants for
10 employment, in the State of California.” (See Shim Decl. ⁋ 2, Exhibit 1.) On June 10, 2019, the DFEH

11 served an amended complaint on Respondents. (See Shim Decl. ⁋ 3, Exhibit 2 [Amended Director’s

12 Complaint].)

13 B. THE DFEH BEGINS INVESTIGATION OF RIOT AND REQUESTS EMPLOYEE

DATA.
14

15 On February 15, 2019, the DFEH propounded Request for Production, Set Two, on Riot Games.

16 (See Shim Decl. ⁋ 5, Exhibit 4.) In this request, the DFEH sought documents related to employee data,

17 specifically in Request No. 6 and Request No. 9. Request No. 6 called for personnel and demographic

18 information such as gender, job title, job classification, starting salary, and performance rankings.

19 Request No. 9 sought information that Riot reported to the United States Internal Revenue Service in

20 employees’ Form W-2.

21 C. RIOT GAMES FAILS TO PROVIDE COMPLETE EMPLOYEE DATA.

22 In the last four months since the DFEH’s request, Riot Games has not provided complete

23 employee data. Instead, in March 2019, Riot Games provided only written responses to the second set of

24 Requests without any of the underlying documents. (See Shim Decl. ⁋ 8, Exhibits 8, 9.) Then on May 8,

25 2019, Riot finally produced only one snapshot of employee data from an unknown point in time. (See

26 Shim Decl. ⁋ 15, Exhibit 17.) As of June 11, 2019, Riot Games failed to provide any more job or

27 basepay data, let alone the complete employee data. (See Shim Decl. ⁋ 23, Exhibits 25, 26.)

28 ///
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Dept. Fair Empl. & Hous. v. Riot Games, Inc., et al.
Verified Petition to Compel and Application for Order to Show Cause
 1 Thus, the DFEH currently does not have any more employee job or basepay data other than the

2 incomplete data that Riot Games provided on May 8, 2019. Even after extensive explanations from the

3 DFEH, Riot Games still has not identified the snapshot date or the year in which the job or basepay data

4 refers in the data Riot produced. Riot Games has also not produced all components of compensation,

5 including all equity and incentive compensation components, bonus information, or the equity and

6 basepay mix for each employee or contractor. (See Shim Decl. ⁋⁋ 20, 23, Exhibits 22, 25, 26.)

7 D. THE DFEH MAKES REPEATED ATTEMPTS TO MEET AND CONFER WITH

8 RIOT GAMES, TO NO AVAIL.

9 Although not required to do so by statute or rule, prior to filing the instant petition, the DFEH

10 engaged in numerous communications with Riot since March 14, 2019 in a good-faith attempt to obtain

11 the responsive documents. (See Shim Decl. ⁋⁋ 6-22, Exhibits 5-24.) The DFEH has explained in detail

12 each request and offered examples to further clarify them. And yet, almost four months after the DFEH

13 originally requested the information, Riot’s response is still incomplete.

14 Most recently, Riot Games has delayed DFEH’s investigation by claiming confusion about the

15 definition of “snapshot” data even though Riot Games itself has conducted multiple pay equity studies

16 of its employment data in the last three years. (See Shim Decl. ⁋ 19, Exhibit 21.) As a last attempt to

17 resolve the purported confusion, the DFEH sent yet another detailed explanation to Riot Games and

18 requested that Riot Games produce complete responsive documents, including basepay data for each

19 year. (See Shim Decl. ⁋ 20, Exhibit 22.) In response, Riot Games asked to “meet and confer” without

20 providing the complete data and without providing answers to any of DFEH’s questions about the data.

21 (See Shim Decl. ⁋ 23, Exhibits 25, 26.)

22 Thus, the DFEH has exhausted its informal efforts to resolve this investigative discovery issue.

23 III. LEGAL ARGUMENT

24 A. THIS COURT MAY COMPEL RIOT GAMES TO PRODUCE RESPONSIVE

DOCUMENTS TO DFEH’S INVESTIGATIVE DISCOVERY REQUESTS.
25

26 The superior courts have jurisdiction to compel compliance with DFEH document requests,

27 subpoenas, and interrogatories. (§ 12963.5, subd. (a).) A petition compelling compliance may be

28 brought in any county in which DFEH’s investigation or inquiry takes place, or in the county of the
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Dept. Fair Empl. & Hous. v. Riot Games, Inc., et al.
Verified Petition to Compel and Application for Order to Show Cause
 1 respondents’ principal office. (Id.) Venue is proper as DFEH has made inquiries and conducted its

2 investigation in Los Angeles County, and Riot has its principal office in Los Angeles, California.

3 B. THE DFEH HAS BROAD INVESTIGATORY POWERS.

4 The California legislature provided the DFEH with broad authority to investigate and prosecute

5 potential violations of the FEHA, Government Code section 12900 et seq. To facilitate investigations

6 and enforcement under the FEHA, the statute and regulations require extensive recordkeeping of

7 employment and applicant data by employers. (§ 12946; Cal. Code Regs., tit. 2 § 11013.). Other state

8 employment laws have similar recordkeeping requirements. (§ 11180; DFEH Directive 216, ⁋ 5.A; Lab.

9 Code, § 1197.5, subd. (e), as amended by Stats. 2015, ch. 546).

10 Additionally, under the FEHA, the DFEH may “receive, investigate, conciliate, mediate, and

11 prosecute complaints alleging practices made unlawful.” (§ 12930, subd. (f)(1).) DFEH’s investigation

12 of discrimination complaints is “similar to grand jury proceedings, and can therefore be initiated ‘merely

13 on suspicion that the law is being violated, or even just because it [the Department] wants assurance that

14 it [the law] is not [being violated].” (Dept. Fair Empl. & Hous. v. Super. Ct. (2002) 99 Cal.App.4th 896,

15 901 [internal citation omitted].) Thus, courts have repeatedly recognized that “the [DFEH’s]

16 investigatory and adjudicatory procedure is to be ‘construed liberally for the accomplishment of the

17 purposes of [FEHA]’” and given great deference. (Dept. Fair Empl. & Hous. v. Law School Admissions

18 Counsel (2012) 896 F.Supp.2d 849, 862, quoting § 12993, subd. (a).)

19 In its investigation, the DFEH may “issue and serve requests for production . . . of . . . records,

20 documents, and physical materials in the possession or under the control of an . . . organization.” (§

21 12963.4, subd, (a).) Upon failure to “comply with a subpoena, interrogatory, request for production, or

22 examination under oath by refusing to respond fully or objecting thereto, or by obstructing any

23 proceeding before the [DFEH] . . .” the DFEH may petition for an order compelling compliance. (§

24 12963.5, subd. (a).)

25 C. THE DFEH SHOWS GOOD CAUSE FOR AN ORDER TO COMPEL RIOT’S

26 COMPLIANCE WITH INVESTIGATIVE DISCOVERY.

27 Government Code section 12963.5 provides the standard for reviewing the DFEH’s application:

28 “[I]f the petition sets forth good cause for relief, the court shall issue an order to show cause to the
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Dept. Fair Empl. & Hous. v. Riot Games, Inc., et al.
Verified Petition to Compel and Application for Order to Show Cause
 1 respondent; otherwise, the court shall enter an order denying the petition.” (§ 12963.5, subd. (b).). A

2 court should grant DFEH’s petition to compel if (1) the request for production were issued or carried out

3 in accordance with FEHA; (2) the information sought was identified with sufficient particularity to

4 allow a response and the information it seeks is reasonably relevant to the inquiry or investigation before

5 it; and (3) the party from whom discovery is sought has failed to comply. (Dept. Fair Empl. & Hous. v.

6 Super. Ct., supra, 99 Cal.App.4th 896, 901, citing § 12963.5, subd. (a).)

7 As described below, the DFEH meets all the requirements to obtain an order compelling

8 compliance with the investigative discovery.

9 1. The DFEH Requested Information In Accordance With The FEHA.

10 The DFEH acted consistently with its statutory authority under the FEHA by serving Riot Games

11 with the request for production of its employee data. (§ 12930, subd. (g)(4); § 12963.4 [vesting DFEH

12 with the authority to issue requests for production of records and documents] and § 12946 [requiring

13 employers to maintain records and files for a minimum of two years]; Cal. Code Regs., tit. 2, § 11013,

14 subd. (c) [requiring employers to preserve personnel and employment records for a period of two years

15 and make records available upon request to the Department]; Civ. Code, § 51.7 [allowing investigations

16 into complaints alleging violations of the Ralph Civil Rights Act of 1976 to go back three years from the

17 date of injury]; § 11180 [empowering DFEH to investigate claims related to its authorities]; DFEH

18 Directive 216, ⁋ 5.A [allowing sharing of information in joint investigation cases between the DFEH and

19 the Labor Commissioner’s Division of Labor Standards Enforcement]; Lab. Code, § 1197.5, subd. (e),

20 as amended by Stats. 2015, ch. 546 [extending the number of years that employers must maintain wage

21 and other employment-related records from two years to three years].) In accordance with the law

22 enforcement powers granted under FEHA, the DFEH served Riot Games with Request for Production,

23 Set Two, together with proof of service. (§ 12963.4, subd. (a); See Shim Decl. ⁋ 5, Exhibit 4.) The

24 DFEH properly served the requests on Respondents via e-mail per the parties’ agreement. (See Shim

25 Decl. ⁋ 4, Exhibit 3.)

26 ///
27 ///

28 ///
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Dept. Fair Empl. & Hous. v. Riot Games, Inc., et al.
Verified Petition to Compel and Application for Order to Show Cause
 1 2. The DFEH Requested Specific And Relevant Information That Is Necessary To
2 Investigate And Assess The Allegations Against Riot Games.

3 The FEHA requires the DFEH’s discovery requests to be made with “sufficient particularity”

4 and be “reasonably relevant” to its investigation. (§ 12963.5, subd. (b).) The DFEH may seek

5 information it deems necessary to “decide whether to charge a statutory violation, or to make the

6 decision that no further action is necessary.” (Dept. Fair Empl. & Hous. v. Super. Ct., supra, 99

7 Cal.App.4th 896, 902.)

8 Here, the DFEH’s discovery request meets these criteria. First, DFEH’s requests for employee

9 data were made with “sufficient particularity” to allow a response. The requests were detailed and

10 specific, explicitly listing the categories of data. (See Shim Decl. ⁋ 3, Exhibit 2.) Not only that, in the

11 following months, the DFEH sent several letters to make the requests as basic and clear as possible. (See

12 Shim Decl. ⁋⁋ 16, 18, 20, Exhibits 18, 20, 22.)

13 Second, the DFEH’s requests for employee data were “reasonably relevant” to its investigation.

14 Courts have long recognized that statistical evidence is the foundation of class claims because it can be

15 properly used to establish a general discriminatory pattern in an employer’s practices. (Diaz v. American

16 Telephone and Telegraph (1985) 752 F.2d 1356, 1363 [a discriminatory pattern “is probative of motive

17 and can therefore create an inference of discriminatory intent with respect to the individual employment

18 decision[s] at issues]; O’Brien v. Sky Chefs, Inc. (1982) 670 F.2d 864, 866 [“[s]tatistical data is one way

19 to establish a prima facie case”]; Hazelwood School Dist. v. U.S. (1977) 433 U.S. 299, 307 [gross

20 statistical disparities between the composition of an employer’s workforce and the composition of the

21 worker population in a proper case may constitute, by themselves, prima facie proof of a pattern or

22 practice of discrimination].) The DFEH’s requests for employee data fall squarely within DFEH’s

23 investigation of systematic disparate treatment of women at Riot Games, as paragraph 2 in the Director’s

24 Complaint alleges that Respondents “discriminated in compensation or in terms, conditions, or

25 privileges of employment based on sex . . . .” (See Shim Decl. ⁋ 2, Exhibit 1.) Employee data will

26 provide crucial information that will allow the DFEH to decide whether to charge a statutory violation.

27 ///

28 ///
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Dept. Fair Empl. & Hous. v. Riot Games, Inc., et al.
Verified Petition to Compel and Application for Order to Show Cause
 1 3. Riot Games Failed To Fully Comply With The Investigative Discovery.

2 The final requirement for the DFEH to obtain an order compelling compliance with investigatory

3 discovery is to show that respondent failed to comply. (Dept. Fair Empl. & Hous. v. Super. Ct., supra,

4 99 Cal.App.4th 896 at 901.) Despite DFEH’s detailed requests and extensive explanations about the

5 requests for the last three months, Riot Games still has not fully provided the information needed. (See

6 Shim Decl. ⁋⁋ 16, 18, 20, Exhibits 18, 20, 22.) On June 11, 2019, Riot Games provided no more job and

7 basepay data and no answers to any of DFEH’s questions about the data, further delaying DFEH’s

8 investigation. (See Shim Decl. ⁋ 23, Exhibits 25, 26.)

9 Riot Games has rebuffed DFEH’s repeated efforts to obtain the company’s full compliance with
10 document requests that are commonly used and important tools for investigating allegations of

11 discriminatory hiring, pay, and promotion practices.

12 IV. CONCLUSION

13 Riot Games and its related companies are alleged to have violated California’s civil rights laws.

14 The DFEH, as the state’s civil rights enforcement agency authorized to investigate cases like this one,

15 requested employee data to examine the claims of gender discrimination and harassment. To date, Riot

16 Games has failed to provide the full data as requested. After an extensive attempt to receive the

17 requested data from Riot in an amicable manner, the DFEH files this petition as a matter of last resort.

18 As Riot Games has had DFEH’s request for nearly four months and has utilized the data to

19 conduct several of its own studies, the DFEH requests that the Court file its order granting the petition

20 within the 30 day window required by the statute and order Riot Games to produce the employee data

21 within 10 days of the Court’s Order Compelling Compliance. (§ 12963.5, subd. (c), (b).)) If the

22 Application for an Order to Show Cause and the underlying Petition to Compel are not granted, DFEH’s

23 investigation of the underlying complaint will be delayed. Although the deadline to file a civil complaint

24 in this matter is tolled by the filing of this petition according to section 12963.5, subdivision (f), speedy

25 compliance is necessary to make a timely determination on the merits of this case.

26 ///
27 ///

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Dept. Fair Empl. & Hous. v. Riot Games, Inc., et al.
Verified Petition to Compel and Application for Order to Show Cause
 1 COURT ACTION REQUESTED

2 By this application, the DFEH requests that the Court grant its application for an Order to Show

3 Cause on the Petition. The DFEH further seeks an order compelling compliance with its Request for

4 Production, Set Two, which seek Riot Games’s employee data.

5 WHEREFORE, it is prayed that the Court:

6 1. Grant the Application for an Order to Show Cause regarding DFEH’s Petition for an Order

7 Compelling Compliance with Requests for Production, Set Two, with the hearing to be scheduled

8 by___________ ________, 2019;

9 2. Order Riot Games to produce the employee data within ten days of the Court’s order; and
10 3. Such other relief as the Court deems just and proper.

11

12 DATED: June 12, 2019 DEPARTMENT OF FAIR EMPLOYMENT

AND HOUSING
13

14 By:
Grace Shim
15
Attorneys for the Petitioner
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Dept. Fair Empl. & Hous. v. Riot Games, Inc., et al.
Verified Petition to Compel and Application for Order to Show Cause
 1 VERIFICATION

2 I, Grace Shim, declare:

3 I am an attorney at law duly licensed to practice before all the courts of the State of California,

4 and employed as senior staff counsel with petitioner Department of Fair Employment and Housing

5 (DFEH). In my official capacity, I am assigned to the captioned matter seeking compliance with the

6 DFEH’s investigative discovery propounded to Respondents Riot Games, Inc. I have personal

7 knowledge of the above-captioned case and the matters contained in this VERIFIED PETITION TO

8 COMPEL COMPLIANCE WITH INVESTIGATIVE DISCOVERY AND APPLICATION FOR

9 AN ORDER TO SHOW CAUSE, except to those statements made upon information and belief, and if
10 called upon to testify, I could do so competently.

11 I declare under penalty of perjury under the laws of the State of California that the foregoing is

12 true and correct.

13 Executed on this 12th day of June 2019, at Elk Grove, California.

14
______________________
15 Grace Shim
16 Attorney for Petitioner

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Dept. Fair Empl. & Hous. v. Riot Games, Inc., et al.
Verified Petition to Compel and Application for Order to Show Cause