Judge Robert S. Draper, Case 21STCV41669 2022-08-12 Tentative Ruling

Plaintiff Mary Pat Dodson’s Motion to Quash Defendant’s Deposition Subpoena for Employment Records is DENIED.

This is an employment action. The operative First Amended Complaint alleges as follows.

Plaintiff Mary Pat Dodson (“Plaintiff”) was hired by Defendant City of Monterey Park (the “City”) as a literacy coordinator in September, 2019. (FAC ¶ 4.) She worked there until her termination on or around October 7, 2020. (Ibid.) While employed with the City, Plaintiff was subject to discrimination based on her age and disability. (FAC ¶ 7.)

On March 13, 2020, the Premises closed to public due to the COVID pandemic, and Plaintiff was sent home because “people of a certain age had to go home.” (FAC ¶ 10.)

Additionally, Plaintiff suffered from a disability as defined by the Fair Employment and Housing Act (“FEHA”). (FAC ¶ 11.) This disability made her exceptionally susceptible to COVID. (FAC ¶ 11.)

Nonetheless, in late March or early April 2020, Plaintiff was told she had to return to work, in person. (FAC ¶ 13.) Plaintiff provided the City with a doctor’s note stating that she was to work remotely while the pandemic continued. (FAC ¶ 14.) She submitted several similar notes over the coming months. (FAC ¶ 15.)

The City required that Plaintiff return to work in person in August, 2020. (FAC ¶ 39.) She was subjected to retaliation and discrimination. (Ibid.) Shortly thereafter, Plaintiff was terminated. (FAC ¶ 40.)

On August 4, 2022, this Court held a hearing on the instant Motion. Plaintiff’s Counsel requested a continuance, as she did not receive the City’s Opposition until the day before. The Court continued the hearing until August 12, 2022, and allowed Plaintiff to file a Reply by August 8, 2022, and the City to file a Sur-Reply by August 10, 2022.

Plaintiff moves to quash the City’s subpoena requesting documents from Plaintiff’s former employer, the City of Glendora. The subpoena requested her application for employment, pre-employment examinations, performance evaluations, disciplinary records, and all documents related to requests for reasonable accommodation made by Plaintiff. (Motion at pp. 2-3; Exh. 1.) Plaintiff moves to quash pursuant to California Code of Civil Procedure section 1978.1.

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, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, 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.

Here, Plaintiff argues that the subpoena impinges on Plaintiff’s Constitutional right to privacy. (See Puerto v. Superior Court (2008) 158 Cal.App.4^th 1242, 1252-53 (holding disclosure of information in personnel files requires balancing of competing interests).) The competing interest test is described in Williams v. Superior Court (2017) 3 Cal.5^th 531, 552:

“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. [Citation]” (Williams v. Superior Court (2017) 3 Cal.5^th 531, 552.

Plaintiff has established that she has a legally protected privacy interest in her personnel records. Next, Plaintiff argues that the requested records are not relevant to the instant suit because they address Plaintiff’s disability before her employment by the City, not as it presently exists. Finally, Plaintiff argues that the subpoena is unnecessarily broad, as it seeks employment records that could only be used by the City to attack Plaintiff’s character, and are not relevant to her requests for reasonable accommodations.

In response, the City argues that the records are relevant, as Plaintiff was employed in the exact same position with the City of Glendora, and received accommodations for her disability there. Second, the City notes that in Plaintiff’s discovery responses, she stated that the interactive process meeting notes from the City of Glendora support her claims and contentions in this litigation. Finally, the City argues that Plaintiff has a diminished expectation of privacy, as in her employment application, Plaintiff gave Defendant permission to contract her prior employers about her work history.

In her Reply, Plaintiff concedes that the records regarding Plaintiff’s accommodation are relevant to the instant action and offers to “let the subpoena entity produce records pursuant to Plaintiff’s disability at issue.”[1] (Reply at p. 4.)

Additionally, Plaintiff repeatedly argues that the City must provide a compelling government interest in obtaining the records, as Plaintiff has an expectation of privacy in her employment records.

However, as the City notes in its Sur-Reply, the Williams Court did not hold that the party seeking information must provide a compelling interest anytime there is a potential violation of privacy. Instead, the Williams Court states that it is error to assume “that such an egregious invasion is involved in every request for discovery of private information” and that courts “must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against the showing must weight the countervailing interests the opposing party identifies. . .” (Williams, Supra, at 557.)

Here, though Plaintiff has asserted a right to privacy in her employment records, her permission for the City to contact her former employers evinces a diminished privacy expectation, as her disciplinary history is exactly the sort of information that the City would seek in that instance. More importantly, the fact that the City seeks records of reasonable accommodations provided by Plaintiff’s former employer, for Plaintiff’s same position, for Plaintiff’s same disability, makes the records extremely relevant to the instant litigation. Finally, the Court finds that it is not in the interest of justice to allow Plaintiff to use her prior accommodations as evidence of the City’s failure to provide accommodations, without granting the City full access to those same records.

The Court recognizes that Plaintiff’s disciplinary records are not as directly relevant to the action as the records regarding her disability. However, as the City notes in its Sur-Reply, information in her personnel records could indicate whether the accommodations the City of Glendora provided were actually effective, or whether they proved to be impediments to Plaintiff’s performance. Finally, Plaintiff’s concerns regarding the use of Plaintiff’s disciplinary records to improperly attack Plaintiff’s character are not relevant at this juncture.

While it is true that the records are likely to contain evidence ultimately inadmissible in the instant action, discovery need only be “reasonably calculated to lead to the discovery of admissible evidence.” (CCP section 2017.010.) Here, the City has identified how evidence contained in the disciplinary records could be relevant and admissible in the instant action. If the City attempts to introduce evidence from those records to impugn Plaintiff’s character, the Court will consider Plaintiff’s Motion in Limine arguing the matter as needed.

[1] The Court notes that this appears to be in direct contradiction with Plaintiff’s initial offer, which was to “modify the foregoing subpoena by limiting it to payroll records including paystubs, IRS W-2 and 1099 forms, and benefits information” but to preclude information regarding Plaintiff’s disability. (Motion at p. 3)

MARY PAT DODSON, Plaintiff, vs. City of monterey park, et al. Defendants.	Case No.:	21STCV41669
	Hearing Date:	August 12, 2022

	[TENTATIVE] RULING RE: Plaintiff mary pat dodson’s motion to quash defendant’s deposition subpoena for employment records.

Superior Court of California

County of Los Angeles

Department 78