Judge: H. Jay Ford, III, Case: 22STCV27109, Date: 2023-05-18 Tentative Ruling

Case Number: 22STCV27109    Hearing Date: May 18, 2023    Dept: O

Case Name:  Doe v. Men’s Health Foundation, et al.

SUBJECT:                 MOTION FOR PROTECTIVE ORDER

MOVING PARTY:   Defendant Nuno Estevez Dos Santos  

RESP. PARTY:         Plaintiff John Doe

TENTATIVE RULING

            Defendant Dos Santos’ Motion for Protective Order is GRANTED in part and DENIED in part.  Defendants are ordered to produce responsive documents from the beginning of Dos Santos’ employment with Men’s Health until the date Dos Santos left Men’s Health’s employment.  Defendants are only required to produce those documents created after the date of the subject incident if they pertain to the incident and/or termination of Dos Santos’ relationship with Men’s Health.  In addition, parties are to execute a standard protective order.  Defendants are ordered to produce documents in accordance with this Court’s order within 20 days. 

            Dos Santos moves for a protective order preventing his or Men’s Health production of his personnel file.  Parties engaged in multiple meet and confer efforts, including an IDC before the Court on 2-27-27.  Parties partially resolved their dispute and agreed to production of the following documents from Dos Santos’s personnel file:

(1) Any and all hiring documents for Dos Santos, including applications for employment and background checks;

(2) Any and all trainings provided by Men’s Health to Dos Santos;

(3) Any and all performance evaluations for Dos Santos;

(4) Any and all documents relating to the separation of employment of Dos Santos for Men’s Health.

            Parties have been unable to reach any agreement as to the following categories of documents, with Dos Santos maintaining that these documents are irrelevant to this action:

(1) Any and all discipline issued to Dos Santos, with the exception of write ups for attendance;

(2) Any and all coachings provided to Dos Santos, with the exception of coachings relating to attendance;

(3) Any and all complaints made about Dos Santos;

(4) An and all investigations by Men’s Health into Dos Santos’ conduct prior to the separation of Dos Santos’ employment.

            Plaintiff does not dispute that these outstanding categories of documents are protected by the right of privacy and are confidential.  Plaintiff, however, maintains that any right of privacy in the personnel file is outweighed by their direct relevance of these documents to his claims for negligent hiring, retention and supervision.  Defendant, on the other hand, argues these categories are overbroad given the very specific wrongful conduct alleged, i.e. sexual assault. 

I. Burden on motion for protective order

“The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:  (1) That all or some of the items or categories of items in the demand need not be produced or made available at all…”  CCP §2031.060(b). 

            “Where a party must resort to the courts, the burden is on the party seeking the protective order to show good cause for whatever order is sought.”  Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318.  “The issuance and formulation of protective orders are to a large extent discretionary.  Ruling on motions for protective orders will not be disturbed absent an abuse of discretion.”  Id. at 316-317.  “The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery.  A trial court must balance the various interests in deciding “whether dissemination of the documents should be restricted.”

Il.  Defendant fails to establish that the remaining categories of documents are irrelevant

            Defendant’s narrow definition of relevance is contrary to the scope of allowable discovery under CCP §2017.010.   “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.”  CCP §2017.010.

            “The statutory phrase ‘subject matter’ is ‘broader than the issues’ and is not limited to admissible evidence.  For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.  Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence.  These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.”  Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 590–591. 

            Likewise, Defendant’s narrow understanding of what types of prior complaints are relevant to a negligent hiring claim is contrary to applicable law.  An essential element of a negligent hiring, supervision or retention claim of an employee is actual or constructive knowledge of the employee’s unfitness and that this unfitness created a particular risk to others.  See CACI 426.  Negligent hiring, supervision or retention “depends, in part, on showing that the risk of harm was reasonably foreseeable.  Foreseeability is determined light of all the circumstances and does not require prior identical events or injuries.  It is not necessary to prove that the very injury which occurred must have been foreseeable by the [defendant].  Their negligence is established if a reasonably prudent person would foresee that injuries of the same general type would be likely to happen in the absence of adequate safeguards.”  D.Z. v. Los Angeles United School Dist. (2019) 35 Cal.App.5^th 210, 229. 

            The broad definition of “relevance” under CCP §2017.010.  Foreseeability for purposes of an employer’s constructive or actual knowledge is also broad, encompassing injuries of “the same general type,” and “does not require prior identical events or injuries.”  Defendant fails to establish that the requested documents involve conduct so far afield from the alleged wrongful conduct that they are irrelevant to the broad foreseeability analysis as an issue of law.  Given the applicable law, the requested documents are directly relevant to Plaintiff’s negligent hiring, etc. claim. 

            Defendant was required to establish good cause for issuance of the protective order as moving party.  Defendant’s fails to establish good cause for a protective order based either on relevance or overbreadth.

II.  Defendant’s privacy objection is overruled given the direct relevance of the requested documents to Plaintiff’s claim for negligent hiring, etc.

            Defendant argues the requested production violates his right of privacy. Defendant argues good cause for issuance of the requested protective order based on his right of privacy.   

“In Hill, we established a framework for evaluating potential invasions of privacy. The 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. A court must then balance these competing considerations.”  Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35).

            “In general, the court should not proceed to balancing unless a satisfactory threshold showing is made. A defendant is entitled to prevail if it negates any of the three required elements. A defendant can also prevail at the balancing stage. An otherwise actionable invasion of privacy may be legally justified if it substantively furthers one or more legitimate competing interests. (Hill, at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Conversely, the invasion may be unjustified if the claimant can point to “feasible and effective alternatives” with “a lesser impact on privacy interests.” County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 926.

            All parties agree that there is a legally protected privacy interest in one’s own personnel file.  Defendant fails, however, to establish a reasonable expectation of privacy in the given circumstances.  He and his employer are being sued for his alleged sexual assault of Plaintiff and Plaintiff is claiming that his employer had actual or constructive knowledge of his unfitness for employment.  Actual or constructive knowledge requires Plaintiff to delve into Defendant Dos Santos’s employment history with Defendant Men’s Health, particularly prior transgressions, complaints, disciplinary action and remedial training or “coaching.”  See e.g. Rosales v. City of Los Angeles (2000) 82 Cal.App.4^th 419, 428 (officer failed to state a claim for invasion of privacy based on City’s release of his personnel records in prior litigation by alleged victim of officer’s sexual assault because no reasonable expectation of privacy over records existed in action alleging sexual misconduct during his employment as officer). 

            Defendant also fails to establish a serious intrusion.  Plaintiff is seeking production of his personnel file for use in this action.  Defendant’s concerns would be addressed by a standard protective order, which would prevent improper or unnecessary disclosure of the personnel file.  Defendant has not established good cause for the requested protective order, which would excuse Defendants from producing any of the requested documents. 

            Based on this analysis, the disputed categories of documents are discoverable and the protective order to prevent any production is denied.  However, the Court agrees that any documents created after the subject incident and that are unrelated to the subject incident or Dos Santos’ termination are irrelevant.  In addition, the Court agrees that a standard protective order is required to protect Plaintiff’s privacy interests. 

            Defendant’s Motion for Protective Order is GRANTED in part and DENIED in part.  Defendants are ordered to produce responsive documents from the beginning of Dos Santos’ employment with Men’s Health until the date Dos Santos left Men’s Health’s employment.  Defendants are only required to produce those documents created after the date of the subject incident if they pertain to the incident and/or termination of Dos Santos’ relationship with Men’s Health.  In addition, parties are to execute a standard protective order.  Defendants are ordered to produce documents in accordance with this Court’s order within 20 days.