Judge: Teresa A. Beaudet, Case: 20STCV19290, Date: 2023-11-16 Tentative Ruling

Case Number: 20STCV19290    Hearing Date: February 5, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Jason Dizon (“Plaintiff”) filed this action against Defendant Western Asset Management Company, LLC (“WAM”) on May 20, 2020. In the Complaint, Plaintiff alleges causes of action for (1) retaliation in violation of Equal Pay Act, (2) whistleblower retaliation, (3) retaliation in violation of FEHA, (4) retaliation in violation of Labor Code section 98.6, (5) discrimination on the basis of association with protected group in violation of FEHA, (6) failure to prevent discrimination and/or retaliation in violation of FEHA, (7) wrongful termination in violation of public policy, and (8) unlawful prohibition on discussing wages and working conditions.[1]

            On December 8, 2023, Plaintiff filed a Motion in Limine No. 3 to Exclude Evidence of Emails that Plaintiff Forwarded to Himself (herein, “Motion in Limine No. 3”). Plaintiff’s counsel, Tamara Freeze, filed a declaration in support of Plaintiff’s Motion in Limine No. 3, which attaches Exhibits A-E. 

WAM now moves “for an order sealing documents publicly filed by Plaintiff in his Motion in Limine No. 3 To Exclude Evidence of Emails That Plaintiff Forwarded Himself.” Plaintiff opposes.

Discussion

¿¿ Generally, court records are presumed to be open unless confidentiality is required by law. (Cal. Rules of Court, rule 2.550, subd. (c).) If the presumption of access applies, the court may order that a record be filed under seal “if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” (Cal. Rules of Court, rule 2.550, subd. (d).)

Plaintiff’s counsel’s declaration in support of Plaintiff’s Motion in Limine No. 3 provides, inter alia, “[t]he email dated December 6, 2019 from Jason Dizon to himself (Bates Nos. WAM000350-357) was identified as Exhibit 32 to Mr. Twitchell’s deposition. Mr. Twitchell admitted it did not paly [sic] any role in Mr. Dizon’s termination. A true and correct copy of Exhibit 32 to Mr. Twitchell’s deposition/ document bearing the Bates Nos. WAM000350-357 is attached hereto as Exhibit B.” (Freeze Decl., ¶ 5, emphasis added.) Plaintiff’s counsel further states that “[t]he email dated October 19, 2019 from Jason Dizon to himself (Bates Nos. WAM000338-342) was identified as Exhibit 33 to Mr. Twitchell’s deposition. Mr. Twitchell admitted it did not paly [sic] any role in Mr. Dizon’s termination. A true and correct copy of Exhibit 33 to Mr. Twitchell’s deposition/ document bearing the Bates Nos. WAM000338-342 is attached hereto as Exhibit C.” (Freeze Decl., ¶ 6, emphasis added.)

Plaintiff’s counsel’s declaration in support of Plaintiff’s Motion in Limine No. 3 further provides, “[t]he email dated October 30, 2018 from Jason Dizon to himself (Bates Nos. WAM000343-344) was identified as Exhibit 34 to Mr. Twitchell’s deposition. Mr. Twitchell admitted it did not paly [sic] any role in Mr. Dizon’s termination. A true and correct copy of Exhibit 34 to Mr. Twitchell’s deposition/ document bearing the Bates Nos. WAM000343-344 is attached hereto as Exhibit D.” (Freeze Decl., ¶ 7, emphasis added.) In addition, Plaintiff’s counsel states that “[t]he email dated January 4, 2019 from Jason Dizon to himself (Bates Nos. WAM000343-344) was identified as Exhibit 35 to Mr. Twitchell’s deposition. Mr. Twitchell admitted it did not paly [sic] any role in Mr. Dizon’s termination. A true and correct copy of Exhibit 35 to Mr. Twitchell’s deposition/ document bearing the Bates Nos. WAM000343-344 is attached hereto as Exhibit E.” (Freeze Decl., ¶ 8, emphasis added.)

In the instant motion, WAM states that it seeks an order sealing and keeping confidential Exhibits B, C, D, and E to the Declaration of Tamara Freeze attached to and in support of Plaintiff’s Motion in Limine No. 3 (collectively referred to herein as the “Exhibits”). (See Notice of Motion at p. iii:7-18.)

WAM asserts that an overriding interest exists to overcome the right of public access to the Exhibits. WAM cites to Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1280-1281, where the Court of Appeal noted as follows:

“In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, supra, 20 Cal.4th at page 1222, footnote 46, the Supreme Court explained that closure of a court hearing and, by inference, sealing of documents may be justified if necessary to protect a civil litigant’s fair trial rights. The Supreme Court then identified other examples of where an overriding interest had been found which warranted closure of civil proceedings as follows: ‘Courts have acknowledged various other overriding interests. (Globe [Newspaper Co. v. Superior Court (1982)] 457 U.S. 596, 607 [73 L. Ed. 2d 248, 102 S. Ct. 2613] [protection of minor victims of sex crimes from further trauma and embarrassment]; accord, Press-Enterprise [Co. v. Superior Court (1986)] 478 U.S. 1, 9, fn. 2 [92 L. Ed. 2d 1, 106 S. Ct. 2735]; Press-Enterprise [Co. v. Superior Court of Cal. (1984)] 464 U.S. 501, 512 [78 L. Ed. 2d 629, 104 S. Ct. 819] [privacy interests of a prospective juror during individual voir dire]; Rovinsky [v. McKaskle (5th Cir. 1984)] 722 F.2d 197, 200 [protection of witnesses from embarrassment or intimidation so extreme that it would traumatize them or render them unable to testify]; Publicker [Industries, Inc. v. Cohen (3d Cir. 1984)] 733 F.2d 1059, 1073 [protection of trade secrets, protection of information within the attorney-client privilege, and enforcement of binding contractual obligations not to disclose] ….’ (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, supra, 20 Cal.4th at p. 1222, fn. 46.).” (Emphasis added.)

            WAM asserts that the Exhibits “contain confidential company information, including trade secrets and information about WAM’s IT department infrastructure, operations, strategies, and tools.” (Mot. at pp. 5:28-6:1.) In support of the motion, WAM submits the Declaration of Rob Sibbrel, the Global Head of Human Resources at WAM. (Sibbrel Decl., ¶ 1.)

In his supporting declaration, Mr. Sibbrel states that “I have reviewed the exhibits attached to Plaintiff Jason Dizon’s Motion in Limine No. 3 to Exclude Evidence of Emails that Plaintiff Forwarded to Himself…The exhibits contain confidential information developed by WAM relating to the reorganization of its Information Technology (“IT”) department, IT strategies and goals, the detailed inner workings of its IT department, and tools and processes used or considered by WAM to provide exceptional client services and maintain its competitive advantage in the marketplace.” (Sibbrel Decl., ¶ 6.)

            More specifically, Mr. Sibbrel states that Exhibit B to Plaintiff’s Motion in Limine No. 3 is email correspondence that “contains sensitive business strategy, including year-end analysis of WAM’s IT department’s performance, as well as strategies for improvement and meeting objectives. The attachment to the email includes a PowerPoint training created by WAM on how to meet its objectives, including a discussion on Agile, a project management method implemented by WAM…” (Sibbrel Decl., ¶ 7.) Mr. Sibbrel states that Exhibit C to Plaintiff’s Motion in Limine No. 3 is an email chain that “contains sensitive information about WAM’s consideration, implementation, troubleshooting, and use of various IT tools. The work WAM’s IT team does to maintain and improve WAM’s systems is not revealed to the public. IT infrastructure is a critical piece of WAM’s business and gives WAM a competitive advantage over less technically sophisticated competitors.” (Sibbrel Decl., ¶ 8.)

            Mr. Sibbrel further asserts that Exhibit D to Plaintiff’s Motion in Limine No. 3 is an email that “discloses confidential information about the structure, hierarchy, and inner workings of WAM’s IT department, as well as a technology innovation that helps WAM provide top-notch service to its clients, and therefore maintain its competitive advantage.” (Sibbrel Decl., ¶ 9.) In addition, Mr. Sibbrel states that Exhibit E to Plaintiff’s Motion in Limine No. 3 is an email chain that “contains sensitive troubleshooting processes, details on IT configurations, and tools used by WAM’s IT department as part of its strategy to deliver high-level client services. IT infrastructure is a critical piece of WAM’s business and gives WAM a competitive advantage over less technically sophisticated competitors.” (Sibbrel Decl., ¶ 10.)

            In the opposition, Plaintiff asserts that WAM “never claimed or considered the Exhibits B, C, D and E to the Declaration of Tamara Freeze in support of Plaintiff Jason Dizon’s Motion in Limine No. 3 to be confidential.” (Opp’n at p. 5:10-12.) In her declaration in support of the opposition, Plaintiff’s counsel states that “[o]n or around February 10, 2022, I took a deposition of Gregory Twitchell who was involved in making the decision of terminating Plaintiff.” (Freeze Decl., ¶ 2.) Plaintiff’s counsel further states that “[d]uring Mr. Twitchell’s deposition, I reviewed every documents at issue (Exhs. B-E to Freeze Decl. ISO Plaintiff’s MIL No. 3.) with Mr. Twitchell. Mr. Twitchell admitted these emails (the documents at issue) did not serve as a basis for finding Dizon’s violation of the confidentiality policy and they did not play any role in his termination.” (Freeze Decl., ¶ 5.)

            But as noted by WAM, Plaintiff does not appear to provide evidence that Mr. Twitchell testified that the subject Exhibits were not confidential. Rather, Plaintiff references testimony regarding whether the subject emails played a role in Plaintiff’s termination. (See Opp’n at p. 2:22-4:21.) In his declaration in support of the instant motion, Mr. Sibbrel states that Exhibit B-E are “confidential” and “should not have been disclosed to the public.” (Sibbrel Decl., ¶¶ 7-10.) In addition, as noted by WAM, “the testimony cited by Plaintiff…reflects that Mr. Twitchell was not…the WAM representative who made the decision to terminate Plaintiff…” (Reply at p. 2:27-28; see Opp’n at p. 3:6-7, “it was not my decision to terminate Jason Dizon.”)

            Plaintiff also cites to Universal City Studios, Inc. v. Superior Court, supra, 110 Cal.App.4th at page 1286, where the Court of Appeal noted that “the financial data at issue also appears in an unsealed portion of the superior court file in another case. The financial data appears in an unsealed superior court file in the case of Enright v. Universal City Studios, Inc. (Super. Ct. L.A. County, 2002, No. BC259811). The financial information appears in an unsealed document filed by defendant. In the absence of any evidence of inadvertence or mistake, we are satisfied that defendant’s own voluntary disclosure of the financial data in an unsealed document it filed in superior court where the information has been available for public review for over one year substantially outweighs the confidentiality interests identified in Mr. Martinez’s declaration.” But here, Plaintiff does not show that WAM filed the subject Exhibits in this case or any other case such that the Exhibits would be available for public review.

            Plaintiff also asserts that the Exhibits do not contain trade secrets or confidential information. Plaintiff cites to In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 308-309, where the Court of Appeal noted that “the leading treatise excludes as trade secrets what is called general business ‘know-how,’ which it defines as ‘the informational and experiential expertise related to practical application of specifics, such as . . . processes.’ (1 Milgrim on Trade Secrets, supra, § 1.09[3], p. 1-386.) Much, if not most, of the documents ordered unsealed would appear to come within this definition. The treatise goes on to state: ‘If protection is sought for a very broad accumulation of knowledge and experience, a court might reject such claim as an attempt to simply cover knowledge and skill. Accordingly, when asserting methods and techniques and know-how to be trade secrets, a reasonable degree of precision and specificity is appropriate.’” Plaintiff argues that here, “[t]he material WAM sought to protect from disclosure does encompass ‘a very broad accumulation of knowledge and experience,’ rather than trade secrets.” (Opp’n at pp. 6:27-7:2.) But as noted by WAM, Plaintiff does not further “elaborate on this argument or provide any factual basis for this assertion.” (Reply at p. 7:17-18, emphasis omitted.)

            WAM asserts that the compelling interests “will be prejudiced if the records are not filed under seal.” (Mot. at p. 7:11-12.) In his supporting declaration, Mr. Sibbrel asserts that “[i]f the Confidential Documents are allowed to remain in the public record, this will allow third parties to gain access to, analyze, and copy WAM’s IT goals, strategies, and infrastructure, as well as the tools and processes used or considered by WAM, and the troubleshooting thereof. Further, allowing WAM’s competitors to gain insight into the confidential inner workings of WAM’s IT department exposes WAM to the possibility that its competitors will use such information to ascertain WAM’s potential weaknesses and take advantage of those weaknesses in the competitive marketplace.” (Sibbrel Decl., ¶ 12.)

            Mr. Sibbrel further asserts that “if the details of the Confidential Documents were to remain public, this would undermine WAM’s confidentiality policies put in place by WAM to protect sensitive information and cause a potentially significant detriment to WAM…If WAM’s confidential documents are allowed to remain in the public record, WAM risks its clients’ diminished confidence in WAM’s ability to protect confidential information, and its’ employees’ diminished respect for WAM’s important confidentiality policies.” (Sibbrel Decl., ¶ 13.)  

            Plaintiff asserts in the opposition that sealing the Exhibits would prejudice him. Plaintiff asserts that “if the Court grants Defendant’s Motion, there is a risk that the jury would be misled into believing that Plaintiff was terminated for forwarding himself the documents at issue rather than supporting his coworker’s unequal pay and discrimination claims. As such, an order granting Defendant’s Motion would prejudice Plaintiff and fail to align with the public policy.” (Opp’n at p. 7:21-25.) The Court agrees with WAM that this argument is perplexing, as “Plaintiff seems to imply that sealing the Confidential Documents would prejudice Plaintiff by leading a jury to believe that the Confidential Documents were in fact confidential…” (Reply at p. 8:12-13.) Moreover, as noted by WAM, Plaintiff does not appear to offer any authority to support the proposition that prejudice suffered by the non-moving party is a factor in a court’s decision to seal records.

            WAM also asserts that the proposed sealing is narrowly tailored. WAM asserts that “[i]n order to protect the confidentiality interests at stake, WAM has proposed only sealing what is absolutely necessary in Plaintiff’s Motion in Limine No. 3 (which is Exhibits B through E of the Declaration of Tamara Freeze attached to and in support of Plaintiff’s Motion in Limine No. 3). By narrowly tailoring the sealing request to the sealing of only four specific documents, this will allow the particular sensitive information at issue to remain confidential while also allowing the public to understand the substance of the arguments being made in Plaintiff’s Motion in Limine No. 3 itself.” (Mot. at p. 8:19-25.)

            WAM also asserts that there are no less restrictive means to preserve the confidentiality of the subject Exhibits. WAM asserts that “[d]enial of the instant Motion would allow confidential information to remain publicly available, thereby effectively depriving WAM of its ability to protect its legitimate confidentiality concerns and uphold its confidentiality policies, as well as protect sensitive information as to WAM’s IT department infrastructure, strategies, and work product (which are critical to its business operations) through no fault of its own.” (Mot. at p. 9:7-11.)

Based on the foregoing, the Court finds that WAM has demonstrated good cause under California Rules of Court, rule 2.550 for an order sealing the subject Exhibits.

Conclusion

Based on the foregoing, WAM’s motion is granted. Pursuant to California Rules of Court, rule 2.551, subdivision (e), the Court directs the clerk to file this order, maintain the Exhibits ordered sealed in a secure manner, and clearly identify the Exhibits as sealed by this Order.

WAM is ordered to provide notice of this Order.

DATED:  February 5, 2024                            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court