Judge Michelle C. Kim, Case 21STCV33291 2023-04-20 Tentative Ruling

Plaintiff Marlene Lorberer Balian (“Plaintiff”) filed this action against Defendant Los Angeles County Metropolitan Transit Authority (“Defendant”) for damages arising from a motor vehicle accident involving Defendant’s bus.

On September 14, 2022, the parties participated in an Informal Discovery Conference (“IDC”) regarding multiple discovery issues, including Plaintiff’s Request for Production of Documents (“RPDs”) served on Defendant. The issues were deemed partially resolved, with Defendant to serve responses by October 12, 2022. Plaintiff then had 45 fays to file a motion to compel further. The only remaining issues in dispute concerned requested phone records and an employee file.

On October 14, 2022, Plaintiff filed the instant motion to compel further responses to RPDs, set one, Nos. 10, 26, 34-35, 37-38, 41, and 67. Plaintiff provides that following the IDC, Defendant has refused to provide further responses. Plaintiff asserts that the requests seek Defendant’s bus driver’s employment records and cellphone records for the day of the incident. Plaintiff contends that Defendant’s responses to the RPDs are deficient and contain meritless objections.

In opposition, Defendant argues that Plaintiff’s separate statement fails to comply with California Rules of Court, Rule 3.1345(c). Additionally, Defendant argues that Plaintiff’s RPDs seek irrelevant evidence that implicate the privacy rights of Defendant’s employee bus driver, and that the requests are duplicative of each other. Further, Defendant argues that the requests seek inadmissible character evidence.

In reply, Plaintiff contends that her separate statement is not deficient, and that the RPDs seek information relevant to Plaintiff’s claims against Defendant. Plaintiff avers that the RPDs do not seek inadmissible character evidence.

California Rules of Court, Rule 3.1345(a)(1)-(3) require the moving party to file a separate statement with a motion to compel further responses.

A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include--for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested--the following:

(2) The text of each response, answer, or objection, and any further responses or answers;

(3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;

(4) If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;

(5) If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and

(6) If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.

Here, Defendant contends that Plaintiff does not indicate the specific requests that the reasons for compelling a further response relate to. Plaintiff’s separate statement indicates each request a further response is sought to. Further, Plaintiff states in a footnote that the reasons to compel a further response to each RPD are identical, so they are not repeated after each request. Although not a model of clarity, the separate statement sufficiently complies with California Rules of Court, Rule 3.1345(c) in identifying the RPDs a further response is being sought to and stating the reasons why a further response should be compelled.

CCP § 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if:

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

A motion to compel further responses to RPDs “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Id. at § 2031.310(b)(1).)

“Unless otherwise limited by order of the court in accordance with [the discovery statutes], 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. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action....” (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012-13.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....’ [Citation.] Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Id. at 1013.)

Unlike privilege, privacy protection afforded is qualified, not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery. The showing required to overcome the protection depends on the nature of the privacy right asserted; in some cases, a simple balancing test is sufficient, while in others, a compelling interest must be shown. (Hill v. National Collegiate Athletic Ass'n (1994) 7 Cal.4th 1, 34-35.)

“In Hill, [the California Supreme Court] established a framework for evaluating potential invasions of privacy.” (Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 552, citing Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) “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.” (Williams, supra, 3 Cal.5th at 552.) “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.” (Ibid.) “A court must then balance these competing considerations.” (Ibid.)

The California Supreme Court has rejected the “de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information.” (Id. at 557.) It has directed courts to “instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.” (Ibid.) A compelling need for the discovery is not always required. (Ibid.) “What suffices to justify an invasion will…vary according to the context.” (Ibid.)

RPD 10 seeks all cellphone records related to Defendant’s bus driver’s cellphone for the date of the incident, and RPD 67 requests, “If a cellular communications device was being used by the LACMTA bus driver at the time of the INCIDENT, all cellular telephone bills for said device which encompass the date of the INCIDENT.” (Separate Statement at p. 8:8-10.) Defendant asserts that both parties have access to DVR footage of the accident that does not depict Defendant’s bus driver using a cellphone at the time of the accident. Defendant contends that production of the requested records would thus be an unnecessary intrusion in its bus driver’s privacy rights regarding the use of his cellphone.

In reply, Plaintiff asserts that she seeks Defendant’s bus driver’s cellphone records to determine whether he was using his phone at the time of the accident. However, Plaintiff does not respond to Defendant’s claims that Plaintiff has access to DVR footage showing that the bus driver was not using a cellphone at the time of the accident. Furthermore, while Plaintiff states that the records are sought to determine whether Defendant’s employee was using a cellphone at the time of the accident, Plaintiff provides no specific facts justifying the production of Defendant’s employee’s cellphone records for the entire day of the accident, or for all billing records for any cellphone device encompassing the date of the accident. Lastly, although Plaintiff asserts that Plaintiff agreed to limit the requested cellphone records to 30 minutes before and after the accident, the RPDs as drafted are not so limited.

Plaintiff asserts that RPDs, set one, 26, 34-35, 37-38, and 41 seek the bus driver’s employment records with Defendant. In response to these RPDs, Plaintiff contends that Defendant asserted meritless objections and does not justify the privacy objections. Plaintiff argues that the requested information is relevant to the issue of liability in this matter, as it goes to Defendant’s hiring of the bus driver, whether the bus driver was negligent, and any history of negligence involving the bus driver.

In opposition, Defendant contends that the RPDs seek irrelevant and inadmissible information that implicate its employee’s privacy rights. Admittedly, confidential personnel files at a person's place of employment are within a zone of privacy. (Board of Trustees of Leland Stanford Jr. Univ. v. Superior Court (1981) 119 Cal.App.3d 516, 528-30.)

RPDs 26 and 41 essentially seek Defendant’s entire personnel file for its bus driver, including all applications for employment, drug tests, resumes, physicals, and background checks, among other records. These records often contain sensitive information. It is unclear how Defendant’s bus driver’s entire personnel file is discoverable, and Plaintiff does not set forth specific facts showing good cause justifying the discovery sought. The requests as drafted are therefore overbroad. Plaintiff offers no explanation as to how all of the requested information is relevant to this matter or likely to lead to the discovery of admissible evidence.

RPDs 34-35 and 37-38 seek copies of all DMV, driving and criminal records of Defendant’s bus driver in Defendant’s possession, documents regarding the bus driver’s attendance of safety meetings, documents pertaining to any bus accidents the bus driver was involved in for 10 years prior to September 30, 2020, and all documents showing any felony convictions of Defendant’s bus driver.

Defendant contends that the records sought would have no admissible purpose at trial other than to attack Defendant’s employee’s character. Defendant argues the requested information is not relevant, and that Plaintiff has not shown a strong interest in the records. However, to the extent that Defendant contends that the requested records would not be admissible at trial, admissibility is not the test. (Stewart, 87 Cal.App.4th at 1012-13.) Moreover, as Plaintiff contends, the information may be relevant, or lead to the discovery of admissible evidence, as it may show that Defendant was negligent in allowing the bus driver to operate the bus, or whether the bus driver was negligent in operating the bus.

Therefore, the motion to compel further is granted as to RPDs, set one, 34-35 and 37-38. Defendant is ordered to serve further responses to these requests within twenty (20) days.

Sanctions are mandatory unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2031.310(h).) In this case, because the motion is being granted only in part, sanctions are unwarranted.

Hon. Michelle C. Kim

Judge of the Superior Court