Judge: John C. Gastelum, Case: 20-01125066, Date: 2022-11-29 Tentative Ruling
(1) Motion to Compel Production (2) Motion to Compel Deposition (Oral or Written)
Tentative Ruling: (1) Plaintiff Scott Shainman (“Plaintiff”) moves for an order compelling Defendant Getac, Inc. (“Getac”) to produce all documents responsive to Plaintiff’s Request for Production No. 119 in Plaintiff’s Fourth Amended Notice of Deposition of Getac’s PMK. Plaintiff also seeks monetary sanctions in the amount of $5,835.00.
As an initial matter, the Court finds Plaintiff has not waived his right to move to compel as to Request No. 119 as to the Notice of Deposition, pursuant to Carter v. Superior Court (1990) 218 Cal.App.3d 994, 996. The Court notes that the parties adequately met and conferred prior to the filing of this Motion.
Request No. 119 seeks the personnel file for Getac employee Michael McMahon. Plaintiff contends the personnel file is relevant given the assertion that Rick Hwang, on behalf of Getac, hired McMahon to replace Plaintiff because he was impressed with McMahon’s qualifications and background. Plaintiff argues the personnel file contents will be used to demonstrate this assertion is a fabrication to cover up Plaintiff’s retaliatory termination and Hwang was not motivated by anything other than McMahon’s status as a former Panasonic employee. Plaintiff also argues Hwang testified that he accessed McMahon’s personnel file at deposition, which puts the personnel file at issue in this matter.
Plaintiff’s arguments regarding relevancy lack merit. The testimony by Hwang does not indicate that Hwang ever viewed the personnel file. He testified that Getac had McMahon’s resume. He does not state when, or even if, he ever reviewed that resume, let alone the rest of McMahon’s personnel file. Further, Plaintiff provides no reasoning into how the personnel file might be used to demonstrate that Hwang was not motivated to hire McMahon for any reason other than his status as a former Panasonic employee. Thus, Plaintiff has failed to show that the personnel file of McMahon has any relevance to his claims here.
Further, the Court finds the personnel file is subject to McMahon’s right to privacy. Personnel and promotion files and records unquestionably relate to the private affairs of third parties and are maintained in confidence. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 526, disapproved on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531, 557 fn. 8.)
“The party asserting a privacy right must establish a legally protected privacy interest, and objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citations.] The party seeking information may raise in response whatever legitimate and important countervailing interest disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interest or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [Citation.]” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.)
Plaintiff argues McMahon has no expectation of privacy into his own personnel records because Defendants have put the personnel file at issue. Not so. McMahon’s expectation of privacy to his personnel files is not dictated by whether Defendants have put his file at issue. Regardless of whether Defendants have done so, McMahon has a reasonable expectation of privacy into his personnel file, which likely includes disciplinary history, reviews, salary information, and other similar private information.
Plaintiff’s argument that there would be no serious invasion of privacy also lacks merit. RFP No. 119 seeks McMahon’s entire personnel file, without limitation. As discussed above, McMahon, a third party, has a reasonable expectation of privacy into that file. Any argument that production of the entire file would not constitute a serious invasion into McMahon’s privacy rights is disingenuous. Even if such production were made pursuant to the parties’ Protective Order, McMahon’s private information would be disseminated to individuals beyond those whom he would normally expect to have access. Thus, the personnel file is subject to the right of privacy.
As to Plaintiff’s countervailing interest, Plaintiff argues the personnel file will show Hwang hired McMahon due to his past employment at Panasonic and Getac’s reasons for promoting McMahon are fabricated. However, Plaintiff fails to provide further reasoning into how or why he expects the personnel file to support his claims. To the extent Plaintiff believes the personnel file’s contents would reveal that McMahon did not have the right qualifications for the role to which he was promoted, Plaintiff could obtain this information through less intrusive means, such as the deposition of McMahon or a further deposition of a person most knowledgeable of Getac.
Accordingly, the Motion is DENIED.
Plaintiff to give notice.
(2) Motion to Compel Deposition (Oral or Written)
Tentative Ruling: Plaintiff Scott Shainman’s Motion to Compel the Deposition of Party-Affiliated Witness Michael McMahon is DENIED.
The Court has considered defendants’ late-filed Opposition only for the purpose of its statement that the deposition of Mr. McMahon happened on September 27, 2022. The Motion to Compel his appearance at deposition is moot.
As to production of documents, plaintiff’s own Notice of Taking Deposition stated that documents were to be produced at deposition. If this did not happen, a motion to compel must be filed under Code of Civil Procedure section 2025.450. This Motion was not filed under that statute and does not suffice.
MP to give notice.
Plaintiff Scott Shainman (“Plaintiff”) moves to compel Third Party Panasonic Corporation of North America’s (“Panasonic”) compliance with Plaintiff’s Deposition Subpoena for the Production of Business Records and, specifically, Requests for Production Nos. 1 and 3.
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 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(a).)
Request for Production No. 1 seeks complete personnel file for Michael McMahon with redactions of personal bank account information, social security number and other personal identifying information. Request for Production No. 3 seeks all documents and communications that evidence the reasons for Michael McMahon’s separation from employment with Panasonic.
Plaintiff’s arguments in support of production mirror those made with respect to Plaintiff’s Motion to Compel Production re: RFP 119 against Defendants. Plaintiff argues McMahon has no legitimate expectation of privacy in the personnel records because Defendants put his file directly at issue. There would be no serious intrusion because the documents can be produced under the parties’ Protective Order. And even if there is a serious invasion into privacy, the balance weighs in Plaintiff’s favor because he is unable to obtain the information from any other source.
For the same reasons as with the Motion to Compel Production re: RFP 119, the Court DENIES the Motion to the extent it seeks to compel McMahon’s entire personnel file from Panasonic. McMahon has a reasonable expectation of privacy into his personnel file, production of his file would be a serious invasion into his privacy, and Plaintiff has other means to obtain the information it seeks.
Request for Production No. 3 is more narrowly tailored. It seeks all documents and communications that evidence the reasons for Michael McMahon’s separation from employment with Panasonic. These documents are relevant to Plaintiff’s claims that Getac hired McMahon to replace Plaintiff after Plaintiff refused to testify in the Panasonic Litigation because McMahon was known to have a bias against Panasonic. They are also relevant to show why McMahon made the ultimate decision to move from Panasonic to Getac.
In light of the above, the Motion as to Request for Production No. 1 is DENIED; the Motion as to Request No. 3 is GRANTED.
Plaintiff to give notice.