Judge Bruce G. Iwasaki, Case Number: 24STCV02569, Date: 2024-07-11 Tentative Ruling

This is an employment retaliation case. Plaintiff Lee Segura sued defendant J.T. Wimsatt Contracting Co., Inc. on January 31, 2024, asserting two causes of action: one for whistleblower retaliation (Labor Code section 1102.5), the other for wrongful termination in violation of public policy.

According to the complaint, Plaintiff worked as defendant’s chief financial officer beginning in October 2019. (Compl., ¶¶ 16-19.) Plaintiff discovered Defendant’s executives were engaged in a self-dealing scheme to improperly benefit from tax incentives intended for businesses owned by economically-disadvantaged women. (Id., ¶¶ 30-42.)

Plaintiff brought the illegality of the scheme to Defendant’s executives’ attention in April 2023. (Id., ¶¶ 67-73.) The following month, Defendant began implementing a policy requiring all employees to sign confidentiality and non-solicitation agreements. (Id., ¶ 86.) When Defendant presented the agreement to employees for signature in October 2023, several employees – including Plaintiff – objected. (Id., ¶¶ 91-99.) Defendant’s chief executive suggested the agreement “could potentially be modified on a case-by-case basis.” (Id., ¶ 100.) But on October 24, 2023, rather than offering to modify Plaintiff’s agreement, Defendant fired him. (Compl., ¶ 101.) Plaintiff sued.

On April 30, 2024, Defendant issued subpoenas for business records from four of Plaintiff’s former employers. Each subpoena requested the same seventeen sets of documents, quoted or paraphrased as follows:

1)	“Personnel File”
2)	“Performance Evaluations”
3)	“Wage Statements”
4)	Job applications
5)	Offers/acceptances of employment
6)	Signed onboarding materials
7)	Job descriptions
8)	All records of pay/benefits
9)	Total wages earned
10)	Medical leaves of absence
11)	Accommodation requests
12)	Records of termination
13)	Records of discipline
14)	Documents “related to ... performance”
15)	Performance reviews & improvement plans
16)	Complaints by Plaintiff to the employer
17)	Complaints to the employer about Plaintiff

On May 2, 2024, Plaintiff filed a single motion to quash all four subpoenas. On June 27, 2024, Defendant opposed. On July 2, 2024, Plaintiff replied.

A party is entitled to obtain business records within this state from “a person who is not a party to the action in which the discovery is sought” through use of a deposition subpoena. (Code Civ. Proc., § 2025.010.) A deposition subpoena may be used to command “the production of business records for copying” without requiring the testimony of the deponent. (Code Civ. Proc., § 2020.020 (b).) When the deposition subpoena is one for a nonparty’s business records, the custodian of records is the “deponent,” even though he or she is merely delivering the records, and is not technically being “deposed.” (Ibid.)

A deposition subpoena is the only means by which discovery may be obtained from a nonparty. (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127.) The obtaining of business records through a deposition subpoena “is a ‘deposition’ within the plain meaning of the Civil Discovery Act.” (Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 578.) A deposition subpoena must be personally served with “sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated business records, documents, electronically stored information, and tangible things . . . and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.” (Code Civ. Proc., § 2020.220(a)-(c).)

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things . . . at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare . . . .”

The parties agree on the relevant facts: Defendant served four subpoenas on Plaintiff’s former employers. Each requests the seventeen categories of documents indicated above.

Plaintiff argues these overbroad requests violate his constitutional right to privacy. He relies on Williams v. Superior Court (2017) 3 Cal.5th 531 (Williams) and Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1 (Hill), which govern how the courts should apply the right to privacy in civil discovery disputes. Defendant argues Plaintiff has waived his right to privacy protections, but even if he hadn’t, he can’t satisfy the tests in Williams and Hill.

Defendant argues Plaintiff has waived his right to privacy by detailing his “ ‘more than four decades of experience’ ” in his complaint and “seeking damages for lost wages, benefits, and emotional distress”. (Opp., 11:25-27.) Defendant cites case law that stands for the general, common-sense principle that a Plaintiff cannot rely on certain materials to prove his case but also protect them from discovery via privacy objections. (See id., 12:1-6, citing Vinson v. Superior Court (1987) 43 Cal.3d 844, City and County of San Francisco v. Superior Court (1951) 37 Cal.2d 227.) That broad principle does not control the issue here.

Plaintiff has not placed his past employment at issue merely by alleging that he was employed in the past. Nor did Plaintiff waive his right to privacy in all his prior employment records when he sued one of his former employers. His wages at past jobs are not necessarily relevant to future lost wages. His past job performance does not establish whether he performed satisfactorily for Defendant. His physical and mental state and reasonable accommodations have no relevance to any issue raised in this case.

Under California law, the scope of discovery is broad. In general, information is discoverable in litigation if it is (1) “not privileged,” (2) “relevant to the subject matter” of the action, and (3) either itself admissible or “reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.)

However, under certain conditions a responding party may protect materials from disclosure during discovery by invoking California’s constitutional right to privacy. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 556 (Williams).) If a responding party shows (1) a legally protected privacy interest, (2) an objectively reasonable expectation of privacy under the circumstances, and (3) a serious intrusion on that privacy, then the propounding party must do more than satisfy the “reasonably calculated” standard in Code of Civil Procedure section 2017.010. (See ibid., citing Hill v. National Collegiate Athletic Ass’n (1994) 7 Cal.4th 1, 26 (Hill).)

Plaintiff has made his threshold showing of a legally protected interest, reasonable expectation, and serious intrusion:

It is settled law that employees enjoy a legally protected privacy interest in their employment records. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528.)

Defendant proposes that Plaintiff forfeited his objective expectation of privacy in all prior employment records because he sued his most recent employer. But Defendant cites no law for this bold proposition.

Finally, Defendant’s extremely broad requests – for example, for information regarding medical leave and reasonable accommodations – seriously and unnecessarily intrude on Plaintiff’s privacy, with little connection to the issues in this case.

Once a party satisfies its threshold burden, the court must balance several competing interests to determine whether disclosure is proper, and to what extent.

“In determining whether disclosure is required, the court must indulge in a ‘careful balancing’ of the right of a civil litigant to discover relevant facts, on the one hand, and the right of the third parties to maintain reasonable privacy regarding their sensitive personal affairs, on the other. [Citation.] The court must consider the purpose of the information sought, the effect that disclosure will have on the affected persons and parties, the nature of the objections urged by the party resisting disclosure and availability of alternative, less intrusive means for obtaining the requested information. [Citation.] ... [T]he more sensitive the nature of the personal information that is sought to be discovered, the more substantial the showing of the need for the discovery that will be required before disclosure will be permitted. [Citations.]” (Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1004.)

Plaintiff asserts Defendant must show a “compelling need” for the discovery; not so. The “compelling need” requirement only applies in cases implicating rights fundamental to an individual’s personal autonomy. (See Williams, supra, 3 Cal.5th at pp. 556-557.) This is not such a case.

That said, Defendant has not shown a specific need for this discovery, nor has it shown that no less intrusive means are available to obtain the information it seeks. Plaintiff’s past employment records are irrelevant to events that allegedly occurred while he was employed with Defendant. Plaintiff’s medical records from past employers and requests for accommodation do not relate to a whistleblower retaliation claim, nor are they the best means for Defendant to evaluate Plaintiff’s claims for damages. Although Defendant’s requests might implicate some discoverable information, they are drafted so broadly that they unnecessarily and impermissibly invade Plaintiff’s privacy.

Where a court grants a motion to quash a third-party subpoena, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2(a).)

The Court declines to award sanctions. With respect to issues of privacy, reasonable minds may differ on the balance to be struck between privacy interests and the truth-seeking function of the courts. There are cases when appropriately fashioned discovery requests to a previous employer are allowable. The Court cannot say that either party’s view of that balance lacks substantial justification.

Plaintiff’s motion to quash subpoenas to former employers is granted. No sanctions are awarded.