Judge: Donald F. Gaffney, Case: Llamas v. Trader Joe’s Company, Date: 2022-10-26 Tentative Ruling
TENTATIVE RULING:
Plaintiff seeks an order quashing three subpoenas that Defendant served on Plaintiff’s former/current employers related to Plaintiff’s personnel records. Plaintiff also requests sanctions. For the reasons set forth below, Plaintiff’s Motions to Quash and request for sanctions are GRANTED.
A. Legal Standard
Under Code of Civil Procedure section 1987.1, subdivision (a): “[i]f a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or 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, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”
The standards for judicial limitations on discovery are governed by section 2017.020, which states that: “[t]he court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.020(a).)
A party seeking documents from a nonparty “must articulate specific facts justifying the discovery sought; it may not rely on mere generalities. (Board of Registered Nursing v. Superior Court, 59 Cal.App.5th 1011, 1039 (2021).) Courts must assess a party’s justifications with a mind towards the limited scope of discovery that is available from nonparties. (Ibid.) Particularly for non-party subpoenas, courts have scrutinized “[a] practice [that] has arisen to use the procedures of sections 2020 and 2031 as devices to determine whether documents exist.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224). “This places a great burden on the responding party, a burden which should generally be borne by the party seeking the discovery.” (Id. at 222). “[P]articularly when dealing with an entity which is not even a party to the litigation, the court should attempt to structure discovery in a manner which is least burdensome to such an entity.” (Id.) “The very vice of [a] subpoena's promiscuity is well illustrated by [a party’s] inability to provide focused, fact-specific justifications for its demands.” (Id. at 224). Accordingly, when demanding documents from a party, it is not enough to ask broad questions to determine “whether documents exist;” rather the demands must be specific and particularized and the party must have a specific reason for any particular item. (Id.)
California’s Constitutional right to privacy protects against the unwarranted, compelled disclosure of various private or sensitive information regarding one’s personal life. (Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856.) When privacy rights are implicated, the broad sweep of discovery is significantly narrowed, such that information can be discovered on a showing of a particularized need by the party seeking discovery, and by demonstrating that the discovery sought is directly relevant to a claim or defense, and that there is no less intrusive alternative. (Ibid.) “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice” for showing direct relevance as to private information sought in discovery. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017-1020 [directing trial court to grant motion to quash as to discovery request that was not narrowly drawn to enable the court to evaluate the appropriate extent of disclosure].) If the court determines that the records are directly relevant to the action, it must carefully balance the need for discovery against the right of privacy. (Id. at 525.) The party seeking the discovery must show that the information cannot be obtained through depositions or non-confidential sources, and if discovery is allowed it must be minimally intrusive. (Harding Lawson Assocs. v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.)
There is a right to privacy in confidential employee personnel information. (Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1004; El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342.) An employee’s personnel records concerning when and why the employee was fired have a legally protected privacy interest, and disclosure of the records may implicate a threatened intrusion into privacy that is serious. (Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652, disapproved on different grounds by Williams v. Superior Court, supra, 3 Cal.5th 531.)
Further, there is a privacy interest in a person’s mental health. (Vinson v. Superior Court (1987) 43 Cal. 3d 833, 840 [requiring a showing that a party put their mental state in “controversy” and, if yes, performing a balancing act between the rights to discovery and a party’s privacy concerns before allowing narrowly tailored discovery.]) To discover a party’s medical records related to their mental health, the moving party must produce specific facts justifying the discovery and narrowly tailoring the scope of the examination. (Ibid.)
In each of the three subpoenas at issue, Defendants demand that the non-party employers produce the same following fourteen categories of documents:
1. Application for employment (or engagement as an independent contractor), resume, and interview notes of LLAMAS;
2. DOCUMENTS and correspondence, electronic or otherwise, pertaining to offers of employment or engagement extended to LLAMAS;
3. DOCUMENTS and correspondence, electronic or otherwise, sent by LLAMAS in response to offers of employment (or engagement as an independent contractor);
4. DOCUMENTS and correspondence, electronic or otherwise, RELATING to reference checks for employment (or engagement as an independent contractor) of LLAMAS;
5. DOCUMENTS that reflect the job titles, duties, and compensation earned for each position LLAMAS applied for, and/or held;
6. W-2 and/or 1099 forms supplied to LLAMAS;
7. Performance reviews and/or evaluations, warnings, and disciplinary notices, (electronic, verbal or written), issued to LLAMAS;
8. DOCUMENTS and correspondence, electronic or otherwise, concerning investigations conducted that reference LLAMAS;
9. The complete contents of LLAMAS’s personnel/employment file, including the file jacket;
10. Payroll and salary information including, but not limited to, any and all checks or other evidence of payment for salary, compensation, commissions, and/or bonuses issued to LLAMAS;
11. DOCUMENTS RELATED to reasons for the termination of LLAMAS, if applicable;
12. DOCUMENTS RELATED to reasons for the resignation by LLAMAS, if applicable;
13. Civil, administrative, and/or internal complaints that reference LLAMAS; and
14. All settlement terms, agreements, and/or memoranda of understanding, whether verbal or written, that reference LLAMAS, unless subject to a confidentiality agreement.
C. Analysis
Based on the standard above, as a preliminary matter, the court finds that Defendant’s subpoenas seek documents that implicate Plaintiff’s privacy—particularly Plaintiff’s employee personnel records and medical records. (See e.g., Hooser, supra, 84 Cal.App.4th at p. 1004 (employee records); Vinson, supra, 43 Cal. 3d at p. 840 (medical records.) Given that the records implicate privacy concerns, Defendant must establish a particularized need for the discovery or establish that no less intrusive alternative exists. The court finds that Defendant has failed to do so.
Defendant argues that the information requested in the subpoenas are relevant because it relates to Plaintiff’s emotional distress allegations and lost wages claim. Rather than requesting narrowly tailored, particularized documents that directly relate to these claims, Defendant essentially asks for Plaintiff’s entire employee file from 2014 (even though Plaintiff’s claims against Defendant occurred in 2020).
Mental Records:
By citing unpublished federal cases that do not bind this court, Defendant argues that prior accusations that Plaintiff has made against other employers of emotional distress are relevant in establishing a pattern and habit. The problem is that Defendant does not specifically ask for this information (e.g., “Produce any complaint or accusation that Plaintiff has made against you claiming that you caused her emotional distress.”) While the court agrees that Plaintiff’s mental state is relevant, Defendant’s requests are not narrowly tailored to only the specific documents and/or information related to Plaintiff’s allegations. Specifically, Plaintiff alleges that she suffered from anxiety, worry, embarrassment, humiliation, and mental anguish due to Defendant’s conduct. (Complaint, ¶ 57.) The relevant time period of Plaintiff’s employment with Defendant is 2016 through February 2021, when she was terminated. Defendant does not narrow any request to only these conditions during this time period.
Further, even if Plaintiff put her medical condition at issue, Defendant has not made the showing necessary under Vinson to obtain the documents requested.
Even where a plaintiff alleges “rather extreme mental and emotional damage,” that does not function “to waive all her privacy interests, exposing her persona to the unfettered mental probing of defendants' expert.” (Vinson, supra, 43. Cal. 3d 833 at p. 841). “Plaintiff is not compelled, as a condition to entering the courtroom, to discard entirely her mantle of privacy.” (Id. at 841-42). “At the same time, plaintiff cannot be allowed to make her very serious allegations without affording defendants an opportunity to put their truth to the test.” (Id. at 842).
In Vinson, the defendant “sought to discover the plaintiffs' entire medical history, including all illnesses, injuries, and mental or emotional disturbances for which they had sought treatment at any time in their lives. Furthermore, it asked for information regarding their membership in various community organizations.” (Id. at 842). “Nowhere do defendants establish specific facts justifying inquiry into plaintiff's zone of sexual privacy or show how such discovery would be relevant.” (Id. at 843-44). “Rather they make only the most sweeping assertions regarding the need for wide latitude in the examination.” (Id. at 844). “Because good cause has not been shown, discovery into this area of plaintiff's life must be denied.” (Id.)
That is exactly what has occurred here. Defendant has made sweeping assertions, without any specific evidentiary facts and have not shown good cause for the sweeping discovery they seek.
Finally, Defendant has not met its burden to show that less, non-intrusive alternative means are not available. Defendant offers no evidence of what specific discovery Defendant has propounded on Plaintiff and what Plaintiff refused to produce. Defendant offers no evidence that Plaintiff has been deposed. Defendant offers no evidence why Defendant did not move for an IME and why the results of an IME are not sufficient.
Employee Records
Similarly, Defendant does not narrowly tailor their demands to Plaintiff’s lost wages claim. Plaintiff alleges lost wages since her termination in February 2021. Yet, Defendant seeks records from former employers from before 2014 through 2016. Rather than narrowly tailoring records to (1) dates of hire and separation; (2) payroll records/W-2s; and (3) employment benefits between February 2021 and the present, Defendant’s demands, on their face, are overbroad in scope, time-frame, and subject matter. There is no showing of a particularized need for any specific document and/or how Defendant has minimized the requests to only directly relevant documents. Defendant’s requests, as currently phrased, constitute “mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue.” Further, Defendant fails to establish that less intrusive alternatives exist to obtain the specific information about which Defendant seeks—e.g., written interrogatories/depositions from Plaintiff.
For the above reasons, Plaintiff’s motions are GRANTED without prejudice to Defendant re-serving new, amended subpoenas to these entities that are narrowly tailored and particularized.
D. Sanctions
California Code of Civil Procedure section 1987.2 provides in pertinent part: “In making an order pursuant to motion made under...Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorneys’ 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 were oppressive.”
The court finds that Defendant’s position is without substantial justification (particularly by failing to modify or narrow the scope of the subpoena during the meet/confer process) and that the requirements that Defendant imposed on the subpoenas were oppressive. The court finds that sanctions are warranted.
However, the court finds Plaintiff’s sanctions request to be unreasonable. The three motions were all essentially a copy/paste of each other. The court finds that the following constitutes a reasonable attorneys’ fees and costs for the three motions:
As such, the court awards Plaintiff a total sanctions award of $1,930. This amount is to be paid by Defendant within 30-days of being served with notice of this ruling.
Plaintiff to give notice.