Case Number: EC062135 Hearing Date: January 12, 2018 Dept: NCE

7. Salibian v. Gregg

EC062135

Motion of cross-complainant Debra Gregg to compel further responses from cross-defendant Moses Salibian to Request for Production: No tentative.

Cross-complainant Gregg seeks ten follicles of hair from cross-defendant’s head for the purpose of conducting DNA testing to determine whether cross-defendant’s DNA matches the DNA purportedly taken from the severed ear of cross-complainant’s dog. Cross-defendant alleges various objections, including a privacy objection.

In Williams v. Superior Court (2017) 3 Cal.5th 531, the California Supreme Court stated that 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. Then, 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.

An individual clearly has a right to privacy in his or her DNA, an objectively reasonable expectation of privacy in the information and an invasion of that privacy is serious. Moving party argues that the information is necessary to compare to the DNA profile found on the dog’s ear to determine whether cross-defendant was responsible for the mutilation. However, no admissible evidence has been presented that in fact a DNA profile has been made of DNA from the dog’s ear. In response, cross-defendant argues that no documents have been produced in response to discovery requests relating to a DNA analysis of samples taken from the ear, but fails to produce any admissible evidence, such as a deposition transcript or discovery responses, supporting that contention.

Given that the intrusion here is serious in the court’s estimation and that the court must balance the competing considerations, the court requires admissible proof that a DNA analysis has been conducted of DNA from the dog’s ear before it will order the provision of a sample for comparison from cross-defendant.

If proof is demonstrated, the motion will be granted and cross-defendant will be ordered to provide a further response to Request No. 22, without objection, and to provide the requested hair follicles for testing to a third party laboratory to be agreed upon by the parties, subject to a protective order that (1) the testing be limited to genetic markers sufficient to identify Salibian individually, and (2) any test results be subject to a protective order prohibiting disclosure or use outside this litigation.

Monetary sanctions requested by each side are denied.