Judge: Richard Y. Lee, Case: 30-2021-01202365, Date: 2022-10-27 Tentative Ruling

Plaintiff, Jorge Guerra (“Plaintiff”) moves for an order compelling Defendant Dave & Buster’s Management Corporation, Inc. (“DBMC”) to serve complete, verified, Code-compliant responses to Plaintiff’s Requests for Production of Documents, Set One (“RFP”), Nos. 37-40, and 50, and to produce any and all responsive documents in Defendant’s possession, custody, and control as to these requests along with any applicable privilege log in response to all of Plaintiff’s RFPs. Plaintiff also moves for an order awarding monetary sanctions against Defendant and/or its counsel in the amount of $6,500.

Plaintiff provides that DBMC served responses on February 7, 2022 after two extensions; and that DBMC failed to provide any substantive response or responsive documents to RFP, Nos. 37-40 and 50, including (1) documents about communications around terminating other hourly employees at Plaintiff’s work location as part of the reduction of force since January 1, 2020 (RFP No. 37), (2) contact information about employee witnesses who worked with Plaintiff and those who were furloughed, terminated, and returned to work since January 1, 2020 (RFP Nos. 37-40), and (3) individual defendant Miguel Ayala’s personnel file relating to complaints against him, performance reviews, training records relating to the claims in this matter, records of promotions or demotions or any other potentially relevant documents (RFP No. 40), and did not produce a privilege log for any documents withheld on the basis of privilege. Plaintiff asserts that Plaintiff’s counsel attempted to meet and confer as to the requests; that while DBMC provided that it would serve supplemental responses, it did so for other discovery requests and not for those at issue; that the information sought in the RFPs at issue is relevant, non-privileged and go directly to Plaintiff’s claims, and that as to the information sought in RFP No. 50, the right of privacy is not absolute and Plaintiff’s request for Ayala’s personnel file has been narrowly tailed to only those documents that go directly to Plaintiff’s claim at issue. Lastly, Plaintiff requests monetary sanctions in the amount of $6,500 against Defendant and/or its counsel, arguing that DBMC has no justification for failing to provide the information sought by the RFPs and that DBMC improperly delayed and refused to meaningfully meet and confer.

DBMC provides that Declaration of Shideh N. Balali, Plaintiff’s counsel, cites to, relies on, and attaches improper and/or incomplete evidence; that RFP No. 37 was omitted from Plaintiff’s March 8, 2022 letter; and that Plaintiff fails to meet his burden to show “good cause” to compel further responses to the instant requests and provides no explanation for how contact information requested in RFP Nos. 37-40 could be relevant in light of DBMC’s responses to Form Interrogatory Nos. 201.1 and 201.6. DBMC also contends its objections are proper as Plaintiff seeks documents that are: (1) subject to privacy rights, including those of third parties, and Plaintiff has failed to show a compelling need that overcomes these privacy rights; (2) overly broad and do not reasonably particularize the documents requested; and/or (3) so overbroad as to seek attorney-client privileged communications or defense counsel’s work product. DBMC asserts that to the extent that the Court considers granting Plaintiff access to any private personnel documents, it should do so only upon a showing of a specific, appropriate method designed to minimize the invasion of privacy and that Plaintiff’s request for sanctions is moot because on August 19, 2022, the parties reached an agreement to mutually waive their respective sanctions requests.

Each request for production must “[d]esignate the documents, tangible things, land or other property, or electronically stored information to be inspected, copied, tested, or sampled either by specifically describing each individual item or by reasonably particularizing each category of item” (CCP § 2031.030(c)(1).)

A demanding party may move for an order compelling a further response to a demand for inspection if a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. (CCP § 2031.310(a).) A motion to compel further responses to a request for production “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (CCP § 2031.310(b)(1).)

For a request to produce documents, “a party who seeks to compel production must show ‘good cause’ for the request . . . but where, . . . , there is no privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance.” (Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117 (“Glenfed”).)

“To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224 disapproved of on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531; Glenfed, supra, 53 Cal.App.4th at p. 1117.)

Arguments made in the moving papers or in a separate statement are insufficient to satisfy this requirement; good cause must be shown by way of admissible evidence, such as by declaration. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223-224.)  If the moving party demonstrates good cause, then the opposing party must justify any objections. (Kirkland v Superior Court (2002) 95 Cal. App. 4th 92, 98.) 

RFP No. 37

ALL DOCUMENTS, including COMMUNICATIONS, around the decision to terminate other hourly employees who were terminated as a part of a reduction in force since January 1, 2020.

As noted by DBCM, this request was not identified in Plaintiff’s meet and confer letter dated March 8, 2022. (Ex. D to Declaration of Shideh N. Balali (“Balali Decl.”); Declaration of Gayle Lynne Gonda (“Gonda Decl.”), ¶ 10.) DBMC’s counsel also provides that RFP. No. 37 were not discussed on the March 30, 2020 telephonic meet and confer. (Gonda Decl., ¶ 11.) However, it appears that a purported deficiency with DBMC’s response to RFP, No. 37 was raised in a meet and confer email on June 15, 2022, and Plaintiff’s counsel provides that this request was discussed in a call on June 20, 2022. (Gonda Decl., ¶ 17 Balali Decl. ¶ 11.)

Here, although Plaintiff generally argues that the request seeks information that goes directly to Plaintiff’s allegations in this action, Plaintiff provides no evidence in support of this contention and provides no specific facts showing how the documents sought are relevant to his claims.

Even assuming the requested documents were relevant to support Plaintiff’s claim of discrimination or disparate treatment, DBMC submits its verified responses to Plaintiff’s interrogatories served on February 7, 2022 which provide that all hourly employees in California were temporarily furloughed as a result of COVID-19 restrictions, and that Plaintiff, along with all other hourly employees in California, were permanently laid off by Defendant effective November 8, 2020 due to COVID-19-related government restrictions, i.e., Form Interrogatory Nos. 201.1 and 201.6. (Declaration of Gayle Lynne Gonda (“Gonda Decl.”), ¶ 7; Ex. D, DBMC’s Response to Plaintiff’s Form Interrogatory-Employment Law, Set One, No. 201.1) DBMC additionally provides that Plaintiff’s work location temporarily re-opened in June 2020, that no Banquet Chefs were brought on, and that Plaintiff was contacted about “working some occasional to-go/curbside shifts,” but that Plaintiff declined. (Ibid.)

As Plaintiff has failed to meet his initial burden to show good cause, the Court DENIES the motion as to RFP No. 37.

RFP Nos. 38-40

REQUEST FOR PRODUCTION NO. 38:

ALL DOCUMENTS, which reflect and include the names of other employees along with their titles, ages, dates of employment, phone numbers, last known addresses, last known phone numbers, and last known email addresses, who were terminated as a part of a reduction in force since January 1, 2020 at PLAINTIFF'S work location.

REQUEST FOR PRODUCTION NO. 39:

ALL DOCUMENTS, which reflect and include the names of other employees along with their titles, ages, dates of employment, phone numbers, last known addresses, last known phone numbers, and last known email addresses, who were furloughed or placed on a temporary layoff since January 1, 2020 at PLAINTIFF's work location.

REQUEST FOR PRODUCTION NO. 40:

ALL DOCUMENTS, which reflect and include the names of other employees along with their titles, ages, dates of employment, phone numbers, last known addresses, last known phone numbers, and last known email addresses, who were returned from furlough or placed on a temporary layoff since January 1, 2020 at PLAINTIFF's work location.

Plaintiff contends that the contact information for witnesses sought in these requests is discoverable and relevant and go directly to the claims at issue, and argues that Plaintiff has the burden to establish the discrimination, harassment, and retaliation occurred. In support thereof, Plaintiff’s counsel’s declaration states that on the telephonic meet and confer on March 30, 2022, counsel “explained that it [contact information about other employees who were furloughed, terminated and/or later returned to work since January 2020 at Plaintiff’s work location] was discoverable witness contact information especially because Plaintiff believes he was terminated whereas others were brought back to work.” (Balali Decl., ¶ 6.)

However, Plaintiff fails show in what manner this information is relevant to Plaintiff’s claims or how this information is relevant in light of DBMC’s verified responses to Form Interrogatory Nos. 201.1 and 201.6.

Even if Plaintiff’s counsel’s statement in the declaration was sufficient to establish good cause, these requests are overly broad in scope, seeking “ALL DOCUMENTS” which “reflect and include the names of all other employees with their titles, ages, dates of employment, phone number, last known address, last known phone numbers, and last known email addresses” for “other employees” who were terminated as a part of a reduction in force, who were furloughed or placed on a temporary layoff, and who were returned from furlough or placed on a temporary layoff since January 1, 2020 from Plaintiff’s work location without limitation in time.

As to privacy, Plaintiff relies on Puerto v. Superior Court (2008) 158 Cal.App.4th 1242. However, that case involved a response to Form Interrogatory No. 12.1 where the responding party identified approximately 2600 witnesses. (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249 (“Puerto”).) In contrast, here, Plaintiff seeks to compel the production of “ALL DOCUMENTS” containing personal information of other employees who have not been identified as witnesses.

In evaluating a claim of invasion of privacy, the party asserting the privacy claim must first establish a legally protected privacy interest, and second, must have a reasonable expectation of privacy under the particular circumstances, including the customs, practices, and physical setting surrounding particular activities. (Puerto, supra, 158 Cal.App.4th at pp. 1250-1251.) “Third, the invasion of privacy must be serious in nature, scope, and actual or potential impact.” (Id. at p. 1251.) “If there is a reasonable expectation of privacy and the invasion of privacy is serious, then the court must balance the privacy stake against other competing or countervailing interests, which include the interest of the requesting party, fairness to the litigants in conducting the litigation, and the consequences of granting or restricting access to the information.” (Id. at p. 1251.) Current and former employees have a legitimate expectation of privacy in their addresses and telephone numbers. (Id. at p. 1252.) Contact information, while personal, “is not particularly sensitive, as it is merely contact information, not medical or financial details, political affiliations, sexual relationships, or personnel information,” such that there is not a serious invasion of privacy. (Id. at pp. 1253-1254.) “[I]t is only under unusual circumstances that the courts restrict discovery of nonparty witnesses’ residential contact information. Discovery may be prohibited where the information violates the right to privacy and is not necessary to the prosecution of the matter.” (Id. at p. 1254.)

A compelling interest or compelling need is not required all cases, although it “is still required to justify ‘an obvious invasion of an interest fundamental to personal autonomy.’ [Citation.]” (Williams v. Superior Court (2017) 3 Cal.5th 531, 556.)

Here, these “other employees” have a legally protected privacy interest in their contact information and a reasonable expectation of privacy in the circumstances here where they are not parties to the litigation, nor identified as witnesses. “[A]bsent employees have a bona fide interest in the confidentiality of their contact information.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 554.) The intrusion is serious as Plaintiff does not merely seek contact information, but seeks “ALL DOCUMENTS” containing not only contact information, but also titles, ages, and dates of employment, which would include personnel files containing the requested information. There is a constitutional right to privacy of an employee’s personnel file, and related employment documents. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 526, disapproved of on other grounds by Williams, supra, 3 Cal.5th at p. 231.)

A response to the requests would also reveal employee status as those who were terminated, those who were furloughed or placed on a temporary layoff, and those who returned from the latter. Plaintiff fails to show a compelling interest or compelling need for the requested documents or how they are necessary to the prosecution of this matter. In addition, Plaintiff has alternative means of obtaining third party contact information. Thus, on balance, the documents and information sought by these requests for production of documents do not outweigh the privacy interests of these “other employees.”

Based on the foregoing, the Court DENIES the motion as to RFP Nos. 38-40.

RFP No. 50

REQUEST FOR PRODUCTION NO. 50:

The complete personnel file maintained by YOU for DEFENDANT MIGUEL AYALA including, but not limited to, terms, benefits and conditions of employment; employment contracts, if any; evaluations and/or reviews of job performance; reprimands, warnings, discipline; complaints; responses to complaints; grievances, notes of grievance meetings or hearings, and results of grievance proceedings; investigations; rates of pay, salary, wages, earnings, compensation, commissions, bonuses, benefits, or any other form of remuneration; threatened or potential termination and/or separation of employment; termination and/or other separation from employment.

Initially, Plaintiff’s counsel provides that this request was limited to “documents relating to Defendant Ayala’s performance records, training records, complaints against him, records of promotions and anything else relevant to this case.” (Balali Decl., ¶ 6.)

Here, as with the prior requests, Plaintiff fails to meet his initial burden to set forth specific facts showing good cause justifying the discovery sought, and presents no evidence to support any purported good cause. Thus, the Court DENIES the motion as to RFP, No. 50.

Privilege Log

Code of Civil Procedure section 2031.240 states, in relevant part:

If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.  (CCP § 2031.240(c)(1).)

Here, Plaintiff contends that “many of Defendant’s RFP responses state that Defendant will provide relevant response ‘non-privileged’ documents or things.” (Motion, 16:3-10.) However, Plaintiff does not identify or set forth in the Separate Statement which requests are at issue except for RFP Nos. 37-40, and 50, nor does such a response establish that DBMC is asserting a privilege as that a particular request.

DBMC, in opposition, states, “[i]n light of the overbroad nature of the RFPs, . . . , DBMC asserted the attorney-client privilege and work production objection only ‘to the extent’ that Plaintiff seeks to reach privileged communications between DBMC and its counsel or defense counsel’s work product.” (Opposition, 17:18-21.) DBMC does not dispute that no privilege log was provided and this explanation is not supported by evidence.

Based on the foregoing, as it relates to RFP Nos. 37-40, and 50, to the extent that DBMC is relying on the assertion of attorney-client privilege or work product production to withhold any documents as to these requests, DBMC is to serve a privilege log which contains sufficient factual information for Plaintiff to evaluate the merits of that claim within 14 days of the notice of ruling.

Plaintiff’s Request for Monetary Sanctions

DBMC’s counsel provides that on August 19, 2022, counsel and Plaintiff’s counsel agreed that DBMC would no longer pursue its requests for sanctions in its motions to compel, and Plaintiff would remove his request for sanctions. (Gonda Decl., ¶¶ 20-24; Ex. I.)

In light of this agreement, the Court disregards Plaintiff’s request for sanctions as MOOT.

DBMC’s Objections to the Declaration of Shideh Balali

Objection No. 1:  Sustain.

Objection No. 2:  Overrule.

Objection No. 3:  Sustain.

Objection No. 4:  Overrule.

Objection No. 5:  Overrule.

Objection No. 6:  Overrule.

Objection No. 7:  Overrule.

Objection No. 8:  Sustain.

Objection No. 9:  Overrule.

Objection No. 10:  Overrule.

Objection No. 11:  Overrule.

Objection No. 12:  Sustain.

Objection No. 13:  Overrule.

DBMC to give notice.