Judge: Armen Tamzarian, Case: 21STCV20454, Date: 2023-01-24 Tentative Ruling

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Case Number: 21STCV20454    Hearing Date: January 24, 2023    Dept: 52

Plaintiff Jose Estuardo Hernandez Motion to Compel Further Testimony and Responses to Requests for Documents Regarding the Deposition of Thana, Inc.

Plaintiff Jose Estuardo Hernandez moves to compel defendant Thana, Inc. to answer questions and produce documents not produced at the deposition of its person most knowledgeable.  “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”  (CCP § 2025.480(a).)

Testimony about other employees

            Plaintiff moves to compel Thana, Inc. to answer the following question: “So who were the co-workers of plaintiff during the time he worked for Douglas burgers?”  Defense counsel objected on the grounds of third-party privacy and instructed deponent Elias Alexopolous not to answer.

            “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.”  (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (Williams).)  If the objecting party shows all three elements, then the court must balance the need for disclosure against the right to privacy.  (Ibid.)

First, defendant shows a legally protected privacy interest.  “The state Constitution expressly grants Californians a right of privacy,” which primarily protects “informational privacy.”  (Williams, supra, 3 Cal.5th at p. 552, citing Cal. Const., art. I, § 1.)  Plaintiff’s former co-workers have a right to privacy in information about them.

Second, defendant shows an objectively reasonable expectation of privacy in the circumstances.  Unlike PAGA cases like Williams, plaintiff does not seek to vindicate the rights of his former coworkers.  He wants to find additional witnesses.  Employees would reasonably expect that their employers would not disclose all employees’ names because one employee brings a FEHA claim. 

Defendant, however, shows no serious intrusion.  This question asked only for the co-workers’ names.  “[A]bsent employees have a bona fide interest in the confidentiality of their contact information.  While less sensitive than one’s medical history or financial data, “home contact information is generally considered private.”  (Williams, supra, 3 Cal.5th at p. 554.)  A person’s name alone is not a serious intrusion.

Defendant’s objection to the question is overruled.  Plaintiff is entitled to an answer.

EDD Form

Plaintiff moves to compel defendant to produce its “EDD form DE9c” from the period of plaintiff’s employment.  Defendant objected that doing so would violate its employees’ privacy rights because the form includes their contact information.

Defendant shows all three elements under Williams.  The first two elements are the same as discussed above.  Defendant now meets the third element because, unlike merely revealing names, this request would reveal employees’ contact information.  The threatened intrusion is serious.  The court therefore must balance the need for disclosure against the right to privacy.  In this context, courts consider “the strength of the countervailing interest sufficient to warrant disclosure of private information varying according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.”  (Williams, supra, 3 Cal.5th at p. 556.)

The strength of the privacy interest and serious of the invasion is substantial.  Defendant has legitimate concerns for not wanting to disclose employees’ contact information to plaintiff—especially the person he allegedly assaulted.  Plaintiff, on the other hand, greatly needs only some of this information.  He cannot adequately investigate his case without his counsel contacting the person he allegedly assaulted.  If she denies that plaintiff assaulted her, that would be critical evidence for plaintiff.  Plaintiff has no great need, however, to see the entire EDD forms.

There is an available alternative to ordering full disclosure.  Defendant offered a partial solution: to disclose the contact information of four specific employees subject to a stipulated protective order with an “attorneys’ eyes only” designation.  Plaintiff did not agree.  Plaintiff has offered no explanation as to why providing employee contact information to his counsel is insufficient. 

The court finds the appropriate compromise is to require: (a) that pursuant to such a protective order, defendant must disclose contact information of the four specified employees; and (b) defendant must produce the EDD DE9c forms disclosing the employees’ names but redacting all employees’ addresses, telephone numbers, email addresses, and any other contact information.

Spreadsheet in native format

            Plaintiff moves to compel Thana, Inc. to produce the native Excel spreadsheet shown in a PDF document, defendant’s “employee conduct notes.” (Jarvis Decl., Ex. C, p. THANA000056.) 

            A requesting party is generally entitled to documents in native format—but must specifically demand that format.  “A party demanding inspection, copying, testing, or sampling of electronically stored information may specify the form or forms in which each type of electronically stored information is to be produced.”  (CCP § 2031.030(a)(2).)  The notice of deposition does not specify that the documents requested must be produced in native format.  (Jarvis Decl., Ex. A.)  Nor does plaintiff’s demand to produce documents, set one.  (Id., Ex. H.) 

            Electronically stored documents must, however, be produced in “the form or forms in which it is ordinarily maintained or in a form that is reasonably usable.”  (CCP § 2031.280(d)(1); see also § 2025.280(c).)  “Federal decisions hold that production of electronically stored information in PDF format may not be sufficient if the requesting party can show that the format is not ‘reasonably usable’ and that the native format, with accompanying metadata, meet the criteria of “reasonably usable” whereas the PDF format does not.”  (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 862, fn. 6, internal quotes and alterations omitted (Ellis).)        

The court finds the PDF form of the document is not “reasonably usable.”  Electronic documents in native format include metadata, such as information on when the document was created or modified.  (See Ellis, supra, 218 Cal.App.4th at p. 859, fn. 5.)  The metadata often has the potential to reveal crucial evidence.  Defendant contends this document evidences a legitimate reason for terminating plaintiff in 2020 and that the notes were written at or near the time the events happened.  If the metadata shows the document was created in 2022, that would be highly probative evidence for plaintiff. 

Moreover, defendant’s person most knowledgeable testified that the original document format is “[a]n Excel spreadsheet.”  (Jarvis Decl., Ex. D, Thana Depo., 76:25-77:4.)  That is the form “in which it is ordinarily maintained.”  (CCP § 2031.280(d)(1).)

Defendant must produce the document in native format. 

Text messages          

            Plaintiff moves to compel defendant to produce additional documents in response to request for production No. 22, which asked for communications with plaintiff from January 1, 2018, to April 30, 2020. 

The deponent testified that he communicated with plaintiff via text messages.  He further testified he did not have any messages from before April 2020 because he got a new phone then.  (Thana Depo., 73:12-74:8.)  The deposition proceeded as follows:

Q. Are you aware of any way to access your text messages with plaintiff from before your purchase of a new phone in April of 2020?

A. I am not aware of any way.

Q. Have you made any attempts to locate text messages with the plaintiff from prior to April 2020?

A. No, I have not.

(Id., 74:9-15.)

            Plaintiff argues the deponent should be required to make further efforts “such as contacting his cell phone carrier, or accessing his phone account online to try and locate the messages.”  (Motion, p. 6.)  When a responding party is not able to comply with a demand for documents, he “shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply.”  (CCP § 2031.230.) 

In these circumstances, the deponent’s search and inquiry was sufficient.  He testified he did not know any way to find older text messages.  Plaintiff relies on speculation such as that “[m]ost people have iPhones and they retain backups so that a person is easily able to restore their new phone to include all their data, including their text messages.”  Plaintiff did not ask Alexopoulos if he used an iPhone.  Furthermore, plaintiff has other ways to discover these documents because he was a party to the messages.    

Sanctions

            Both parties move for sanctions against one another.  Both parties partially succeeded on this motion.  Both acted with substantial justification.  Sanctions are not warranted. 

Disposition

Plaintiff’s motion is granted in part.

Defendant Thana, Inc. is ordered to produce its person most knowledgeable for further deposition within 20 days to answer the following question: “So who were the co-workers of plaintiff during the time he worked for Douglas burgers?”

Defendant Thana, Inc. is ordered to produce EDD DE 9c forms with employees’ contact information redacted within 20 days.

Defendant Thana, Inc. is ordered to disclose contact information for the four employees it previously offered to identify—subject to a protective order designating the information for attorneys’ eyes only—within 20 days.  The parties shall meet and confer by phone or in person within 7 days regarding a stipulated protective order.

Defendant Thana, Inc. is ordered to produce the native Excel file of the “employee conduct notes,” Bates stamped THANA000056, within 20 days.

Plaintiff’s motion is denied as to sanctions and as to document request No. 22 (regarding defendant’s communications with plaintiff before April 2020).