I.                MOTION TO QUASH DEPOSITION SUBPOENA

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, 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.” (Code Civ. Proc. § 1987.1, subd. (a).) A party may bring a motion under this section. (Code Civ. Proc. § 1987.1, subd. (b)(1).)

 

Plaintiff Louise Sulka (Plaintiff) moves to quash a subpoena for records issued to Plaintiff’s current employer and third party Sorenson Communications, LLC (Sorenson), seeking the following documents:

 

Any and all DOCUMENTS (as defined by Evidence Code section 250) stored in any format, including paper, electronic and/or digital image, referring, reflecting or relating to employment, payroll and records of LOUISE SULKA . . .including, but not limited to, resumes and applications submitted by her; performance evaluations; and her work schedules, time sheets and wage statements from the period from 1/1/2017 to present.

 

(Motion Exh. 1.)

 

Sorenson has been Plaintiff’s employer since 2006, concurrent with her employment with Defendant Los Angeles Community College District (LACCD) until her termination there in November 2020. (Shahmaram Decl. ¶ 5.) Plaintiff seeks to quash the subpoena on the grounds that its request for all documents relating to herself is an overbroad infringement on her privacy, particularly when Plaintiff can provide evidence of subsequent income and damage mitigation herself.(Motion at pp. 7–10.) Plaintiff argues that such records are designed solely to find inadmissible character evidence. (Motion at p. 10.)

 

Defendants oppose the motion, reasoning that the information sought is for the following legitimate reasons:

 

·     An increase in work opportunities or compensation at Sorenson during the final period of Plaintiff’s employment with LACCD would be relevant to assess the reasons for Plaintiff’s resignation (Opposition at p. 6);

·     Evidence of whether Plaintiff took leave at Sorenson contemporaneous with her taking of leave from LACCD could show whether she was taking leave under CFRA for a genuine condition that “makes the employee unable to perform the functions of the position of that employee” (Opposition at pp. 6–¶, citing Gov. Code § 12945.2, subd. (c)(3)(C));

·     Evidence that Plaintiff requested accommodations from Sorenson similar to those sought from LACCD are relevant to show whether the accommodations sought were reasonable (Opposition at p. 7);

·     Evidence of Plaintiff’s interpersonal conflicts with employees at Sorenson is relevant to determine the veracity of Plaintiff’s complaints of harassment in this action, which Defendants argue are based on Plaintiff’s habit of “drawing baffling conclusions from innocuous events” (Opposition at p. 8);

·     Evidence of Plaintiff’s earnings will show Plaintiff’s damages. (Opposition at pp. 8–9.)

 

The California Constitution protects an individual’s right to privacy. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1013.) In the constitutional context, “[t]he 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. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.)

Although employees like Plaintiff generally have a privacy right in their personnel records (See El Dorado Savings & Loan v. Superior Court (1987) 190 Cal.App.3d 342, 345, overruled on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531.), such privacy rights are weakened when the employee whose records are sought is the plaintiff in an employment-related action. Defendants in these actions “are generally entitled to discover plaintiff’s previous employer’s payroll records and personnel files (including performance evaluations).” (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2017) ¶ 19:684.) Indeed, “[e]vidence of the plaintiff's work history and earnings is a standard subject of discovery.” (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 296 fn. 9.)

 

However, as Plaintiff argues in her motion, a plaintiff’s privacy interest in such records is heightened when the defendant employer seeks personnel records from a current employer, as Defendants seek here. This is because “subpoenas to the current employers could “unfairly and unnecessarily damage [the individuals’] relationship[s] with [their] current employer[s].” (Equal Employment Opportunity Commission v. Schuff Steel Company (D. Ariz., July 14, 2023, No. CV-22-01653-PHX-JJT) 2023 WL 4758614, at *3; Pajak v. Under Armour, Inc. (N.D.W. Va., Oct. 13, 2020, No. 1:19-CV-160) 2020 WL 6049914, at *2 [“Interference with something as important as one's current employment is not to be taken lightly or permitted as a matter of course in this context.”].)[1]

Here, Defendants have shown good cause for much of the information sought. Plaintiff acknowledges Defendants’ interest in seeking information related to damage mitigation, and although Plaintiff argues that information related to other conflicts at other workplaces is “character assassination,” the statutory prohibition against character evidence expressly permits the introduction of evidence “to support or attack the credibility of a witness.” (Evid. Code § 1009, subd. (c).) Defendants’ interest overrides the basic privacy interest that Plaintiff claims in such records. Although Plaintiff claims that Defendants must show a “compelling need” (Reply at p. 8), this interpretation was overruled in the case Williams v. Superior Court (2017) 3 Cal.5th 531, 557. There, the necessity of a “compelling need” showing was reserved only for “an obvious invasion of an interest fundamental to personal autonomy” (Id. at p. 556), which in the case cited for that proposition referred to the examples of “freedom from involuntary sterilization or the freedom to pursue consensual familial relationships.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 34.) It manifestly did not apply to any and all claimed privacy interests, which under Williams require a more delicate “balanc[ing] of these competing considerations.”

However, the showing of good cause that Defendants make in their opposition to the motion does not match the breadth of the subpoena issued. Defendants have shown good cause for seeking, (1) Plaintiff’s compensation at Sorenson for the period named in the subpoena, (2) Plaintiff’s requests for leave and Sorenson’s responses prior to Plaintiff’s resignation from LACCD, (3) Plaintiff’s requests for accommodation and Sorenson’s responses prior to Plaintiff’s resignation from LACCD; (4) personnel complaints made by or against Plaintiff at Sorenson for the period named in the subpoena, and (5) Plaintiff’s performance evaluations at Sorenson for the same period.

However, because Plaintiff’s privacy interest is magnified when applied to records sought from her current employer, these concerns warrant a less-intrusive mode of discovery than the subpoena at issue. Namely, prior to seeking the documents through a subpoena to Sorenson, Defendant may seek the same discovery from or through Plaintiff, as Plaintiff has already offered to do in the limited area of her compensation. (Shahmaram Decl. ¶ 5; see Pajak v. Under Armour, Inc. (N.D.W. Va., Oct. 13, 2020, No. 1:19-CV-160) 2020 WL 6049914, at *2 [quashing subpoena to allow the employer to seek the same discovery through Plaintiff first].) If Plaintiff does not produce the items sought within a reasonable time, a subpoena seeking that discovery may be re-issued.

The motion to quash is therefore GRANTED subject to the conditions described above. Plaintiff seeks sanctions in the amount of $3,060.00, representing six hours of attorney work at $500 per hour, plus a $60 filing fee. (Shahmaram Decl. ¶ 13.) Defendants seek sanctions in the amount of $2,870.00, representing seven hours of attorney work at $410 per hour. (Berndt Decl. ¶ 3.) No sanctions are awarded.