Judge: Carolyn M. Caietti, Case: 37-2022-00030524-CU-WT-CTL, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 10, 2023

08/11/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Wrongful Termination Discovery Hearing 37-2022-00030524-CU-WT-CTL GIANNELLA VS SHARP HEALTHCARE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Amended Motion, 07/14/2023

Plaintiff's Second Amended Motion to Compel Further Responses from Defendants Sharp Healthcare and Grossmont Hospital Corporation to Request for Production of Documents, Set One; and Request for Sanctions is DENIED.

Background In this case, Plaintiff Keitha Giannella alleges Defendants Sharp Healthcare (Sharp) and Grossmont Hospital Corporation (GHC) failed to accommodate her religious beliefs after she submitted a written request for a religious accommodation to be exempt from Defendants' COVID-19 vaccine booster policy.

The complaint asserts causes of action for: (1) religious discrimination – failure to accommodate; (2) religious discrimination-disparate treatment; (3) harassment; (4) retaliation; (5) failure to prevent discrimination and harassment; and (6) wrongful termination.

Plaintiff first brought this motion with three other motions to compel concerning interrogatories and admissions. At the hearing on June 2, 2023, the Court continued this motion to compel further documents and denied the interrogatory/admissions motions. (ROA 135.) The Court noted it was 'troubling' that, 'despite representations a privilege log would be provided to Plaintiff, Defendants did not provide one until or after their opposition to this motion' and that 'it precluded Plaintiff from evaluating the privileges asserted and sufficiently addressing them in this motion.' (ROA 135.) The Court continued the motion and set a briefing schedule. (Ibid.) Discussion In the second amended motion, Plaintiff asks for code-compliant responses, a privilege log 'along with Plaintiff's ongoing right to contest claims of privilege' and $5,500 in sanctions. Per the reply, only two requests remain at issue: No. 12 – 'All documents that refer to or relate to your employees' requests for religious exemption from your Covid-19 vaccination policies'; and No. 13 – 'All documents that refer to or relate to religious exemptions you have granted to any of your employees from your Covid-19 vaccination policies.' The Privilege Log Complies with the Court's Order On June 2, 2023, the Court ordered Defendants to serve a supplemental privilege log, providing: (i) the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document; (ii) the document's date; (iii) a brief description of the document and its contents or subject Calendar No.: Event ID:  TENTATIVE RULINGS

2981484  43 CASE NUMBER: CASE TITLE:  GIANNELLA VS SHARP HEALTHCARE [IMAGED]  37-2022-00030524-CU-WT-CTL matter sufficient to determine whether the privilege applies; (iv) and the precise privilege or protection asserted. (ROA 135 – Minute Order dated June 2, 2023; see, Catalina Island Yacht Club v. Sup. Ct.

(2015) 242 Cal.App.4th 1116, 1130.) As part of this latest round of meeting and conferring, Defendants produced at least two privilege logs. (ROA 153 – Declaration of David Hallett, at ¶¶ 15-19.) Based on the sample provided by Plaintiff at Exhibit 7, Defendants complied with this order. (Hallett Decl., at Ex. 7.) The log identifies the date and describes the document, author, recipients and their titles, the basis for protection/privilege and which requests the documents are responsive to. Plaintiff's argument that the second supplemental privilege log is vague, ambiguous and fails to sufficiently identify the documents is unpersuasive. Specific documents are identified, for example, 'Email communication with in house counsel' versus 'Denial of religious exemption from COVID-19 vaccine.' (See, ROA 160 – Declaration of Heather Stone, at ¶ 17 ['the description changed from 'request for medical exemption from COVID-19 vaccine requirement and related communications regarding approval,' to separate entries for the request, approval or denial, requests for additional information, etc.'].) Plaintiff has not requested any additional time to assess the second supplemental privilege log.

The Requests are Overbroad and Unduly Burdensome While Plaintiff does not dispute she did not allege a class action or disparate impact claims, under the low threshold for discovery, the documents are discoverable. (C.C.P., § 2017.010.) However, the requests far exceed a reasonable reach. Plaintiff's requests are not limited to just the request for religious exemption and Defendants' response, but to 'All documents that refer' to employees' exemption requests and those that were granted. Despite the fact Plaintiff worked at a single hospital facility, in a discrete department, in a highly specialized patient-facing, clinical role, she seeks production of religious exemption records pertaining to employees who worked in any position, in any department, at any Sharp location, at any time. Further, the requests are not limited to requests for religious exemptions from the vaccine booster like Plaintiff sought, but for all religious exemption requests from the COVID-19 Vaccination Policy.

In addition, Defendants met their burden of supplying evidence showing the quantum of work required and that it is undue. (Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 549-550.) Sharp processed 1,176 requests for religious exemption from Sharp's COVID-19 Vaccination Policy and approved 949 of those requests. (ROA 159 – Declaration of Rachel Davis, at ¶ 7.) To complete production, Sharp would have to search through electronically stored information for each affected employee, including their email, the Sharp 'HROperations' email box and other communications/emails for other involved employees. (Id., at ¶ 9.) A document conversion, redaction and review process would then have to take place. (Ibid.) Assuming Sharp only spends one hour for each request, it could take 1,176 hours of work to gather and redact the requested information for the religious exemptions alone, resulting in a high cost estimated to be $79,958. (Davis Decl., at ¶¶ 9-10.) In reply, Plaintiff does not address how the requests are not overbroad and only summarily concludes these estimates are inflated. These objections hold merit.

Production of the Requested Documents Impermissibly Invades Nonparty Privacy The California Constitution expressly recognizes a right to privacy. (Cal. Const., art. I., § 1.) In Hill v. National Collegiate Athletic Assn., the California Supreme Court articulated a two-party inquiry for determining whether the right to privacy under article I, section 1 has been violated. (Hill v. National Collegiate Athletic Assn (1994) 7 Cal.4th 1, 26; see also, Lewis v. Sup. Ct. (2017) 3 Cal.5th 561, 571.) The Hill test also applies to circumstances where litigation requires a court to reconcile asserted privacy interests with competing claims for access to third party information. (See, Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 552 (stating Hill applies to a discovery dispute that 'requires a court to reconcile asserted privacy interests with competing claims for access' and assessing privacy interests related to third party contact information); County of Los Angeles v. Sup. Ct. (2021) 65 Cal.App.5th 621, 629, 640 (assessing privacy interests related to patient records concerning healthcare services).) In applying the Hill test, the party asserting a privacy right must establish: (i) a legally protected privacy Calendar No.: Event ID:  TENTATIVE RULINGS

2981484  43 CASE NUMBER: CASE TITLE:  GIANNELLA VS SHARP HEALTHCARE [IMAGED]  37-2022-00030524-CU-WT-CTL interest; (ii) an objectively reasonable expectation of privacy in the given circumstances; and (iii) a threatened intrusion that is serious. (Williams, supra, at p. 552; Hill, supra, at p. 35-37.) The party seeking information may raise in response whatever legitimate and important countervailing interests the disclosure serves and a court must then balance the competing considerations. (Williams, supra; Hill, at p. 40.) The First Inquiry Here, Defendants established – and Plaintiff does not challenge - the first inquiry of the Hill test. Several legally protected privacy interests are at issue. By seeking documents related to religious exemption requests and outcomes, Plaintiff seeks deeply personal information regarding: the employees' religious beliefs, preferences and practices; medical information; and their employment records. All are generally private. (See, Pacific-Union Club. v. Sup. Ct. (1991) 232 Cal.App.3d 60, 70-71 [the privacy of personal association is protected by the First and Fourteenth Amendments of the United States Constitution]; County of Los Angeles, supra, 65 Cal.App.5th at p. 641 [patients have a bona fide interest in the

confidentiality of their medical information]; C.C.P., § 1985.6; Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1271 [public employee had significant privacy interest in investigative report regarding sexual harassment]; BRV, Inc. v. Sup. Ct. (2006) 143 Cal.App.4th 742, 756 ('[E]mployees have a legally protected interest in their personnel files.').) There is also no dispute the employees had an objectively reasonable expectation of privacy in these circumstances and that production of over 1,000 employee religious exemption requests/outcomes would be a serious intrusion. The nature of the religious exemption requests is deeply personal and the scope of what is requested is broad. (County of Los Angeles, supra, 65 Cal.App.5th at p. 645 [a serious invasion of privacy is whether the ordered disclosure is sufficiently serious in its nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right].) As Defendants explained, employees completed a religious accommodation request form detailing the name of their religion, the particular church or religious organization to which they belong, if applicable, how their sincerely held religious belief, practice or observance conflicted with Sharp's COVID-19 vaccination requirement and to provide as much information as possible and include attachments as necessary. According to Defendants, some employees attached personal letters from their church or spiritual leaders and gave intimate details of their religious journeys, health issues and/or family history. (Davis Decl., at ¶ 6.) In reply, Plaintiff does not address the first inquiry of the Hill framework, nor Defendants' positions.

Rather, Plaintiff only argues Defendants' privacy concerns are overstated because no personal identifiable information is sought. No supporting legal authority is provided and 'constitutional privacy concerns are not eliminated by the existence of protections against public disclosure.' (Lewis, supra, 3 Cal.5th at p. 577.) Plaintiff also does not discuss whether the records would contain other identifying information, whether employees maintain privacy rights in deidentified records and the potential for re-identification. (See, County of Los Angeles, supra, 65 Cal.App.5th at pp. 647-652.) The religious accommodation request form includes several ways for the employees to be identified: their name, employee ID number, Sharp email address, personal email address, job title, Sharp location, department, supervisor, employment status, name of religion, name of church or religious organization, identification of personal, sincerely held religious beliefs and their signature. (Davis Decl., at ¶ 11.) As discussed above, the accommodation request form asked for specific details on the employee's religious beliefs and practices, providing even more ways for the employees to be identified.

The Second Inquiry The second part of the inquiry requires courts to consider whether the requesting party identified interests in favor of disclosure that outweigh the serious invasion of privacy. (County of Los Angeles, supra, at p. 653, citing Williams, supra, 3 Cal.5th at p. 557.) In conducting this inquiry, courts consider the interest of the requesting party, fairness to litigants in conducting the litigation and the consequences of granting or restricting access to the information. (County of Los Angeles, supra.) Calendar No.: Event ID:  TENTATIVE RULINGS

2981484  43 CASE NUMBER: CASE TITLE:  GIANNELLA VS SHARP HEALTHCARE [IMAGED]  37-2022-00030524-CU-WT-CTL Here, contrary to the statement of the law provided in Hill, Williams, Lewis and County of Los Angeles, Plaintiff maintains she does not need to show such an interest. (ROA 152 – Memo., at p. 8; ROA 161 - Reply, at p. 6.) Similarly, Plaintiff does not address whether fairness to her in conducting the litigation outweighs the privacy interests at stake or whether the consequences of granting or restricting access to the information support disclosure.

Rather, Plaintiff argues the requests only seek informational privacy without supporting legal authority.

But the state Constitution 'expressly grants Californians a right of privacy' and '[p]rotection of informational privacy is the provision's central concern. (Williams, supra, at p. 552, citing Hill, supra, at p. 35; see also County of Los Angeles, supra, at p. 639 [protection of informational privacy is the interest in precluding the dissemination or misuse of sensitive and confidential information].) Critically, Sharp produced written declarations outlining the number of religious exemption requests it received and approved and detailed the uniqueness of Plaintiff's religious exemption request. Sharp received a limited number of religious exemption requests from employees using the same or a similar declaration as Plaintiff used from her church, Awaken Church. Sharp explained three other submissions using the Awaken Church template were found, described details about the requests and their outcomes, and provided redacted/attorney eyes-only versions of these documents for Plaintiff's counsel to independently confirm the statements made in the declaration. (ROA 160 – Declaration of Heather Stone, at ¶ 18 & Ex. F (Declaration of Mica Togami).) There are other conceivable ways Plaintiff can learn about the accommodations Defendants offered and why or why not they would not be offered without exploring nonparty employees' accommodation requests. The information Defendants provided is fair and strikes a reasonable balance between protecting the employees' privacy and providing Plaintiff with sufficient information for purposes of prosecuting the claims alleged.

For these reasons, Plaintiff lacks good cause justifying the discovery sought and an order compelling further documents is DENIED. (C.C.P., § 2031.310(b)(1).) Sanctions The Court understands Plaintiff's frustration with how long this process took and Defendant's production of documents and privilege logs on the eve of Plaintiff's motion deadlines. As indicated before, this is troubling to the Court and Defendants did it again right before Plaintiff's deadline on these motion papers. The Court set a specific briefing schedule and intended for all parties to have ample time to fully brief these important matters. But in light of the ultimate ruling and the important privacy interests implicated, Defendants acted with substantial justification and the Court declines to impose any sanctions. All parties' requests for sanctions are DENIED.

For these reasons, the motion is DENIED.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Plaintiff is ordered to serve written notice of the Court's final ruling on all appearing parties by August 15, 2023.

The Court remains available for Informal Discovery Conferences on any future discovery issues.

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