Judge Richard S. Whitney, Case Number: 37-2023-00012321-CU-WT-CTL, Date: 2024-06-28 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2023-00012321-CU-WT-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - June 27, 2024

06/28/2024 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Wrongful Termination Discovery Hearing 37-2023-00012321-CU-WT-CTL VAIZBURD VS MODULAR MEDICAL INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF'S MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS DIRECTED TO PHILIPS PEOPLE SERVICES is DENIED.

Plaintiff Alexander Vaizburd ('Plaintiff') seeks to quash the subpoena issued by Defendant Modular Medical, Inc. ('Defendant') to Plaintiff's prior employer, Philips People Services ('Philips'). Defendant Modular Medical, Inc. ('Defendant') opposes the motion. This Court has the authority to quash or modify the subpoenas under CCP section 1987.1. Where the constitutional right to privacy is involved, the court must 'balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.' (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) 'The burden is on the party seeking the constitutionally protected information to establish direct relevance.' (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.) The Court interprets this requirement as being fulfilled where it is shown specific averments or reasonable interpretations from the pleadings indicate the information sought would be relevant to the action and that such indications must go beyond mere speculation. (Id.) The California Supreme Court has described the manner to address privacy concerns in the context of discovery disputes as follows: 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.

[Citation] 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.) '[I]f intrusion is limited and confidential information is carefully shielded from disclosure except to those who have a legitimate need to know, privacy concerns are assuaged.' (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 38.) Plaintiff asserts the subpoena seeks employment records that are private. 'In the context of discovery of confidential information in personnel files, even when such information is directly relevant to litigation, discovery will not be permitted until a balancing of the compelling need for discovery against the fundamental right of privacy determines that disclosure is appropriate.' (El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 346 disapproved of by Williams v. Superior Court (2017) 3 Cal.5th 531 on other grounds.) Personnel records are within the zone of privacy, which deserves protection. (See Cobb v. Superior Court (1979) 99 Cal.App.3d 543, 550; see Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528-530 disapproved of by Williams v. Superior Court (2017) 3 Cal.5th 531 on other grounds.) Calendar No.: Event ID: TENTATIVE RULINGS

3080671 45 CASE NUMBER: CASE TITLE: VAIZBURD VS MODULAR MEDICAL INC [IMAGED] 37-2023-00012321-CU-WT-CTL While Plaintiff does have a right to privacy in his personnel records, Plaintiff can waive that right.

(Vinson, supra, 43 Cal.3d at 842.) Waiver may apply where the information sought is directly relevant to the issues in the lawsuit initiated by the plaintiff. (Id.) ''Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' (Evid.

Code, � 210.) '[D]oubts as to relevance should generally be resolved in favor of permitting discovery.' (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790 [Citation omitted].) Defendant asserts the information sought is relevant to the issue of accommodation of Plaintiff's disability. The information sought could reveal that Plaintiff's only need for an accommodation was permission to attend doctor appointments. Such information could support Defendant's defense that it accommodated Plaintiff by permitting Plaintiff leave to attend doctor appointments.

Defendant also asserts the information sought could reveal information that is relevant to Plaintiff's retaliation claim. Defendant believes Plaintiff did not have the amount of experience with FDA regulations as represented by Plaintiff. Plaintiff's level of experience with FDA regulations could inform whether Plaintiff's belief about reporting non-compliance with FDA regulations was reasonable. (CACI 4603.) Finally, Defendant asserts the information sought is relevant to the after-acquired-evidence doctrine.

In general, the after-acquired-evidence doctrine shields an employer from liability or limits available relief where, after a termination, the employer learns for the first time about employee wrongdoing that would have led to the discharge in any event. Employee wrongdoing in after-acquiredevidence cases generally falls into one of two categories: (1) misrepresentations on a resume or job application; or (2) posthire, on-the-job misconduct.

(Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 632.) Discovery responses have already revealed Plaintiff was not honest with Defendant during the application process by representing Plaintiff was employed by Philips at the time he applied to work for Defendant. The information sought could reveal further misrepresentations that could support the after-acquired-evidence doctrine.

The Court finds Defendant has demonstrated the information sought is directly relevant in this case.

While Plaintiff is correct that 'evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion,' the same information may be admissible 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident ...) other than his or her disposition to commit such an act.' (Evid. Code, � 1101(a) and (b).) The information could be relevant to Plaintiff's knowledge in this case. In any event, Evidence Code section 1101 is not a standard for discoverability.

After balancing the parties' interests, the Court finds that with a protective order that limits use of the information to this litigation the privacy concerns should be sufficiently assuaged so as to permit discovery of the information. The motion is denied. However, the Court orders a protective order that limits use of the information to this litigation. No sanctions are awarded.

Calendar No.: Event ID: TENTATIVE RULINGS

3080671 45