Judge: Michael E. Whitaker, Case: 19STCV20310, Date: 2022-08-01 Tentative Ruling

Case Number: 19STCV20310    Hearing Date: August 1, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Plaintiff Rebecca Scherer sued defendants Douglas Emmett 1998, LLC and Mitsubishi Electric US, Inc. (collectively, “Defendants”) based on injuries Plaintiff alleges she sustained in an elevator owned and maintained by Defendants when it abruptly fell four stories.  Plaintiff moves to quash the deposition subpoena for production of employment records Defendants served on AXS Group, LLC (“AXS”) as well as the deposition notice for the person most qualified for AXS (“Deponent”) with request for production of documents.  Plaintiff also moves for a protective order precluding Defendants from obtaining employment records protected by Plaintiff’s constitutional right to privacy and from taking Deponent’s deposition.  Defendants oppose the motion.

            The Court notes that Plaintiff has filed a combined motion to quash the deposition subpoena and deposition notice, as well as for protective order.  Instead, Plaintiff should have filed a separate motion as to each form of requested relief for a total of two motions.  The Court will therefore order Plaintiff to pay an additional $60 in filing fees. (Gov. Code, § 70617, subd. (a).)

ANALYSIS

1. DEPOSITION SUBPOENA

    

If a subpoena requires the production of documents, the court may quash the subpoena entirely or modify it.  (Code Civ. Proc., § 1987.1, subd. (a).)  In ruling on a motion to quash, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's 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 was oppressive.”  (Code Civ. Proc., § 1987.2, subd. (a).)

Current discovery standards hold that, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  (Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, 1039 (hereafter, Board of Nursing).)  “To meet this [test], a party seeking to compel [the] production of records . . . must articulate specific facts justifying the discovery sought; it may not rely on mere generalities.”  (Ibid.; see Johnson v. Superior Court (1968) 258 Cal.App.2d 829, 837 [finding that a subpoena was “insufficient” to compel production because it was “based wholly on the [party’s] alleged information and belief without any statement of supporting facts”].)  However, “[e]ven if information is otherwise discoverable, it may be protected by a constitutional or statutory privilege[,] [including] the right to privacy . . . .”  (Board of Nursing, supra, 59 Cal.App.5th at p. 1039.) 

            “The state Constitution expressly grants Californians a right of privacy.  Protection of informational privacy is the provision's central concern.  .  .  .  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.^[1]  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 [cleaned up].)

            “Legally recognized privacy interests [include] interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’) .  .  .  .”  (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35 (hereafter, Hill).)  “A particular class of information is [sensitive or confidential] when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.”  (Ibid.) 

Plaintiff has a right of privacy in her employment records. (See Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1426.)  “The public interest in preserving confidential, personnel information generally outweighs a private litigant’s interest in obtaining that information.  A showing of relevancy may be enough to cause the court to balance the compelling public need for discovery against the fundamental right of privacy.”  (Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652)  “[O]bvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.”  (Williams, supra, 3 Cal.5th at p. 557.)  “Even when the balance does weigh in favor of disclosure, the scope of disclosure must be narrowly circumscribed.” (Life Technologies, supra, 197 Cal.App.4th at pp. 652-653 [emphasis original].) 

Here, Defendants’ subpoena to the AXS seeks any and all documents pertaining to Plaintiff from the first date of employment through the last date of employment or the present.  (Declaration of Troy C. Skinner, ¶ A.)  Plaintiff argues the subpoenas are overbroad because the information sought, i.e.,  Plaintiff’s past work performance, progress, incident reports, et cetera, are not relevant, and any information Defendants seek may be obtained by less intrusive means.   

      In opposition, Defendants point to Plaintiff’s written discovery responses in which she indicates that, as a result of the incident, she has suffered injury to her brain, spine, and neck that may affect her ability to work and earning capacity.  (Declaration of Kelsey Maxwell, Exhibit A.)  Defendants also point to Plaintiff’s deposition testimony on September 29, 2020, at which time Plaintiff testified that her injuries related to the incident have affected her ability to work because she can no longer sit for more than 20 minutes without having to stand up, she suffers headaches that make it difficult to focus and concentrate, she suffers nausea and light-headedness, and, because she can no longer multitask, the speed at which she works has become much slower than before the incident.  (Declaration of Kelsey Maxwell, Exhibit C.)

            According to counsel for Defendants, Kelsey Maxwell (“Maxwell”), Defendants has previously issued a subpoena to Plaintiff’s former employer, Tinuiti, Inc. (“Tinuiti”), with whom Plaintiff had begun working around the same time she served her written discovery responses in May 2020.  (Declaration of Kelsey Maxwell, ¶¶ 2-3.)  Maxwell states that Defendants then issued a deposition subpoena to Tintuiti that contained the same language as the subject subpoena, to which responsive records were produced without issue.  (Declaration of Kelsey Maxwell, ¶ 3, Exhibit B.)  Maxwell states that she learned in Spring of 2022 that Plaintiff had started a new position with AXS.  (Declaration of Kelsey Maxwell, ¶ 6.)  Maxwell states she then issued a subpoena to AXS seeking the same categories of records provided by Tinuiti and requested a deposition of Plaintiff’s supervisor concerning Plaintiff’s hiring date, salary compensation, job performance, and variable compensation.  (Declaration of Kelsey Maxwell, ¶ 6, Exhibits E, F.)  Maxwell thus concludes that without the requested records and testimony, Defendants will be limited in their ability to dispute Plaintiff’s claims that her ability to work and earning capacity have been diminished as a result of the incident.  (Declaration of Kelsey Maxwell, ¶¶ 9-10.) 

The Court finds Defendants have sufficiently demonstrated that the records requested from AXS are relevant to Plaintiff’s claims of diminished ability to work and earning capacity such that Defendants have a compelling interest in the records.  The Court therefore denies in part the motion to quash the subpoena for the requested records.

1. DEPOSITION NOTICES AND PROTECTIVE ORDER

Per Code of Civil Procedure section 2025.420, subdivision (a), “[b]efore, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) “Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in [the discovery procedure] clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.)

Plaintiff argues that the subject deposition notice should be quashed and a protective order is warranted because Defendants cannot justify taking the deposition of Deponent.  Plaintiff asserts that Defendants may utilize less intrusive means to obtain the information protected by Plaintiff’s right to privacy that they seek.  In opposition,  Defendants contend that the deposition is necessary in addition to the production of records because, considering Plaintiff has worked at AXS for less than one year, her performance review may not have occurred yet. 

The Court first notes that the deposition notice served in connection with the subject subpoena on April 11, 2022, and subsequent amended deposition notice at issue are both invalid to compel Deponent’s appearance for deposition.  AXS is not a party to the litigation.  Accordingly, neither AXS nor Deponent may be required to provide discovery absent a deposition subpoena.  (Code Civ. Proc., § 2020.010, subd. (b); cf. Code Civ. Proc., § 2025.280, subd. (a) [“service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or officer, director, managing agent, or employee of a party to attend and to testify” and produce requested documents or tangible things].)  Only the subject subpoena may operate to compel Deponent’s appearance and production of requested documents.  The Court therefore finds the deposition notice and amended deposition notice Defendants served on AXS to be invalid.

            With respect Deponent’s deposition pursuant to the deposition subpoena and Plaintiff’s request protective order, the Court finds Defendants have not established the necessity for Deponent’s deposition at this time such that it would not constitute unwarranted annoyance or embarrassment or undue burden and expense on Plaintiff and AXS.  If upon receipt of the requested records, Defendants determine that they still lack sufficient information to refute Plaintiff’s diminished ability to work and earning capacity claims, then Deponent’s deposition may prove to be necessary.  But that is not the case for now.  The Court therefore grants in part the motion to quash the subpoena with respect to Deponent’s deposition, and denies Plaintiff’s motion for a protective order.

CONCLUSION AND ORDER

Therefore, the Court grants in part Plaintiff’s motion to quash the subpoena Defendants served on AXS, and orders said subpoena quashed with respect to the deposition of Deponent.  The Court denies in part Plaintiff’s motion to quash the subpoena with respect to the production of Plaintiff’s employment records in the possession, custody and control of AXS.  The Court also denies Plaintiff’s motion for protective order.

Finally, the Court orders Plaintiff to pay an additional $60 in filing fees to the Clerk of the Court by August 15, 2022 and sets an Order to Show Cause re Proof of Payment on August 29, 2022 at 8:30 A.M. in Department 32.

Plaintiff shall give notice of the Court’s ruling, and file a proof of service of such.