Judge Daniel M. Crowley, Case Number: 22STCV32618, Date: 2023-08-10 Tentative Ruling

Defendant Barrett Financial Group, LLC (“Barrett”) (“Defendant”) moves for a protective order for the exchange of information regarding Barrett’s confidential and proprietary information, and to preserve the private information of mortgage loan borrowers and other third-party company employees. (Notice of Motion, pg. 1.)

On October 5, 2022, Plaintiff Andrew Taylor (“Taylor”) (“Plaintiff”) filed his initial complaint. On November 14, 2022, Plaintiff filed his first amended complaint (“FAC”). On May 15, 2023, Plaintiff filed the operative second amended Complaint (“SAC”) against Defendant alleging eight causes of action: (1) failure to pay wages on time and at termination; (2) failure to pay overtime wages; (3) failure to provide accurate wage statements; (4) failure to provide meal periods; (5) failure to provide rest periods; (6) failure to reimburse; (7) unfair business practices; and (8) penalties pursuant to PAGA (Labor Code §§2698, et seq.). (See FAC.)

On October 31, 2023, Defendant filed the instant motion. On November 29, 2023, Plaintiff filed his opposition. On December 1, 2023, Defendant filed its reply.

Defendant’s counsel declares he discussed with Plaintiff’s counsel via email on November 28, 2023, regarding the issues in this motion. (Decl. of Wright ¶9, Exh. A.) The Court finds Defendant’s counsel’s declaration states facts showing a “reasonable and good faith attempt” to resolve the matter outside of court. (C.C.P. §§2016.040, 2033.080(a).)

C.C.P. §2033.080(b) provides that a party that has received discovery may file a motion for a protective order, seeking a variety of types of orders “that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.”

The decision upon whether to enter a protective order lies within the sound discretion of the court. (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588, 591; Meritplan Insurance Co. v. Superior Court (1981) 124 Cal.App.3d 237, 242.) Moving parties have the burden to show good cause for the protective order. (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.)

Under Williams v. Superior Court and Hill v. National Collegiate Athletic Association, Defendant has the burden of establishing: (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) conduct by Plaintiff constituting a serious invasion of that privacy interest. (See Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1, 39-40; Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) If Defendant can meet its burden, the court must then weigh the alleged invasion of privacy against Plaintiff’s countervailing interests. (See Hill, 7 Cal.4th at pgs. 37-38 [“Privacy concerns are not absolute; they must be balanced against other important interests . . . Invasion of a privacy interest is not a violation of the state constitutional right to privacy if the invasion is justified by a competing interest.”].)

Wage and hour data, and other employment records, are not secrets as a matter of law. Employers are required to turn over employee wage and hour data to employees and/or the Labor Commissioner without preconditions. (See Lab. Code §§226(b), 247.5, 1174, 1198.5.) California law also expressly allows employees to discuss and share their wages and working conditions with whoever they like. (See Lab. Code §§232, 232.5.)

In Williams, the California Supreme Court held that a PAGA representative is entitled to the contact information for all aggrieved employees in a PAGA action. (Williams, 3 Cal.5th at pg. 549.) The Williams Court also affirmed its ruling in Hill regarding the test for weighing a third-party’s privacy interests against a party’s right to discovery. (Williams, 3 Cal.5th at pgs. 552-553, 557.)

Here, Plaintiff acknowledges that the information sought implicates third-party employees’ privacy interests, and the records Plaintiff seeks fall within the category of “informational privacy,” which invokes a lower standard of protection that “autonomy privacy.” (See Hill, 7 Cal.4th at pg. 34.) The seriousness of the alleged invasion of privacy can be mitigated by protective measures, which in this case include a Belair-West notice and protective order. (See id., at pg. 38 [“[I]f intrusion is limited and confidential information is carefully shielded from disclosure except to those who have a legitimate need to know, privacy concerns are assuaged.”].)

Plaintiff sufficiently demonstrated, on balance, a countervailing interest in having access to the information sought. In pursuing a PAGA claim, Plaintiff is acting as the deputized agent of the State on behalf of and for the benefit of the very employees whose records are sought. The issue in Williams involved the disclosure of contact information, but the same rationale applies here: that “fellow employees ‘might reasonably expect, and even hope, that their [information] would be given to’ a plaintiff seeking to vindicate their rights.” (Williams, 3 Cal.5th at pg. 554, citing Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 372.) Considering the lower standard of protection for the type of information sought, the protective order that will protect the employees’ privacy interests, and the compelling interest by the state, Plaintiff, and the employees themselves in allowing Plaintiff to obtain these records, the standard set forth in Hill and Williams strongly favors the release of those records subject to a standard protective order.

Defendant’s motion for a protective order is denied as to the requirement that there is a second tier of the proposed protective order designated “Highly Confidential – Attorney’s Eyes Only,” and is otherwise granted.

Hon. Daniel M. Crowley

Judge of the Superior Court