Case Name: Girl Doe v. Los Altos School District, et al.

Case No.: 17CV307094

This cases arises out of allegations plaintiff Girl Doe (“Plaintiff”), a minor, was sexually attacked, bullied and harassed by two boys while attending a school located within the jurisdiction of defendant Los Altos School District (“Defendant”). According to the allegations in the Complaint, the boys attacked Plaintiff behind an unfenced shed on two separate days during the lunch recess period. (Complaint, ¶¶ 10-11.) During the first attack, only Plaintiff and the two boys were present. (Id. at 10.) On the second occasion, the boys brought another boy to watch and participate. (Id. at 11.) This third boy told another student and the two of them told the playground aide what was occurring behind the shed. (Ibid.)

On both occasions, all the students were under the direct supervision of Defendant who failed to take reasonable steps to protect Plaintiff. (Id. at ¶¶ 14-15.) As a result of the incidents, Plaintiff suffered serious injuries and damages including the loss of society, companionship and enjoyment of her peers. (Id. at ¶¶ 24-25.) She will continue to incur future damages in the form of medical costs for the care and treatment of the injuries she suffered as a result of the attacks. (Id. at ¶ 26.) The Complaint alleges causes of action for negligence and negligence per se.

The instant matter involves two discovery motions: (1) Defendant’s motion to compel further responses to their Request for Production of Documents, Set One (“RPD”); and (2) Plaintiff’s motion to compel further responses to their Form Interrogatories, Set One (“FI”) and Special Interrogatories, Set One (“SI”).

II. Defendant’s Motion to Compel Further Responses to RPD

Defendant served Plaintiff with the RPD seeking, among other things, educational and medical records that would substantiate her claim of injuries from the attack and documents relating to her parent’s physical and/or legal custody of her. (Brough Decl., ¶ 2.) Plaintiff served written responses along with document production. (Id. at ¶ 3.) Defendant deemed the responses deficient and initiated meet and confer efforts. (Id. at ¶ 4.)

Shortly thereafter, Plaintiff served unverified amended responses to the RPD. (Id. at ¶ 5.) Subsequently, counsel for the parties continued to engage in meet and confer discussions regarding the sufficiency of the responses and further agreed to extend the deadline for Defendant to file a motion to compel. (Id. at ¶ 6.) Among the issues discussed was whether some of the documents requested are subject to a family court protective order preventing the disclosure of Santa Clara Family Court Services records from a custody dispute between Plaintiff’s parents (“FCS Protective Order”). (Ibid.) Around this time, Plaintiff’s counsel also e-mailed Defendant’s counsel the verification for the amended discovery responses but it was unsigned. (Id. at ¶ 7.)

The parties were unable to resolve their dispute and Defendant timely filed the present motion to compel further responses to RPD Nos. 10, 24-29, 37-38, and 49-50 on the ground Plaintiff’s objections to the requests are meritless.

After the motion was filed, Plaintiff served Defendant with supplemental document production, including all educational records in her possession, the family court order granting full custody of Plaintiff to her father, and a video chat with her father which had been referenced in her response to another set of discovery requests. (Lewis Decl., ¶ 11-12.) She also served Defendant with a signed verification for her amended discovery responses as she did not realize the prior verification she sent was unsigned. (Id. at ¶ 13.)

A. Preliminary Issue

At the outset, Plaintiff argues in her opposition that Defendant’s motion to compel should not be granted because she has produced all records within her possession, custody and control along with a valid statement of compliance. As such, Plaintiff essentially contends the motion to compel is moot. She acknowledges, however, that with respect to the medical records sought, she is unable to comply because she believes they may be covered by the FCS Protective Order.

When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) For example, the court can deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (Sinaiko, supra, 148 Cal.App.4th at p. 409.)

Here, though Plaintiff served Defendant with multiple rounds of supplemental document production after the motion to compel was filed, she does not indicate she served further written responses. In the absence of discovery responses that were served after the filing of the present motion, there is no basis for deeming the motion moot. The Court will therefore address the sufficiency of her responses.

B. Merits of the Motion

Upon receipt of a response to a request for production, the requesting party may move for an order compelling a further response if the party deems the responding party’s objections are too general or lack merit or its substantive responses are inadequate, incomplete or evasive. (Code Civ. Proc., § 2031.310, subd. (a)(1)-(3).) The propounding party must first demonstrate good cause for the discovery sought. (Code Civ. Proc., § 2031.310, subd. (b)(1).) Once good cause is established, the burden shifts to the responding party to justify any objections and responses. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

1. Good Cause

To satisfy its burden of demonstrating good cause for the discovery sought, the moving party must make “a fact-specific showing of relevance.” (Glenfeld Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Discovery is allowed for any matters not privileged that are either relevant to the subject matter involved in the action or reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Information is relevant to the subject matter if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) “Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Ibid.) Courts liberally construe the relevance standard and any doubts as to whether a request seeks information within the scope of discovery are generally resolved in favor of discovery. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)

RPD Nos. 10, 24-29 and 37 seek documents supportive of Plaintiff’s allegation she suffered and will continue to suffer serious injuries as a result of the attack, including medical records regarding treatment she received in connection with the physical and emotional injuries she sustained and documents relating to future medical care that will be required. Defendant argues good cause exists for production of these documents because they are directly relevant to Plaintiff’s allegations of harm and damages. The Court agrees. These documents are relevant to Plaintiff’s claims of injury and will reasonably assist Defendant in evaluating its case and preparing for trial. Accordingly, Defendant has demonstrated good cause exists for the discovery sought.

RPD No. 38 seeks all documents relating to communications between Plaintiff and any other person concerning the events alleged in the Complaint. Defendant argues these documents are relevant because they are reasonably calculated to lend to the discovery of admissible evidence regarding the incidents that occurred at the school. The Court agrees. Documents relating to Plaintiff’s communications regarding the events giving rise to this action are necessarily relevant to her claims and will reasonably assist Defendant in preparing its defense. Accordingly, good cause for the discovery sought has been established.

RPD No. 49 seeks all documents regarding Plaintiff’s parent’s custody of her. Defendant argues these documents are relevant to the issue of damages as the custody dispute between her parents and the frequent changes of address that resulted had a clear impact on her emotional state. This argument is well-taken. Other circumstances that could have influenced Plaintiff’s emotional condition are relevant to her claim of injuries. As such, these documents could reasonably assist Defendant in the preparation of its case. Therefore, Defendant has sufficiently established good cause for the discovery sought.

RPD No. 50 seeks all documents identified in Plaintiff’s response to a set of form interrogatories Defendant propounded upon her. Defendant argues these documents are relevant to the case because Plaintiff referenced them in her response to the form interrogatories. The Court agrees. Documents identified by Plaintiff in interrogatories that were presumably relevant to this matter can reasonably assist Defendant in its evaluation and preparation of the case. As such, Defendant demonstrated good cause for the discovery sought.

For the reasons stated, Defendant established good cause for the discovery requested in RPD Nos. 10, 24-29, 37-38, and 49-50, and the Court observes that Plaintiff does not otherwise dispute good cause exists.

2. Objections and Substantive Responses

The Court finds it difficult to evaluate the merits of the instant motion and determine the proper outcome for a variety of reasons.

For context, a party responding to a document demand may respond by any of the following: (1) an objection; (2) a statement of compliance; (3) a representation of inability to comply. (Code Civ. Proc., § 2031.210.) Code of Civil Procedure section 2031.220 states the requirements for a code-complaint agreement to produce while section 2031.230 sets forth the required contents of a code-compliant representation of inability to comply. As previously indicated, the propounding party may move to compel a further written response because an objection lacks merit or is too general, a statement of compliance is incomplete, and/or a representation of inability to comply is inadequate, incomplete or evasive. (Code Civ. Proc., § 2031.310, subd. (a).) Such a motion does not concern the quality of production where the responding party agrees to produce documents; instead, Code of Civil Procedure section 2031.320 authorizes a motion to compel compliance with an agreement to produce. A motion to compel a further response is concerned solely with the written response itself.

Plaintiff’s responses to all of the RPD at issue contained objections stating some variation of the following: “Objection. Right to privacy, as medical records are subject to the protective order issued by the Family Court Services Division of the Santa Clara Superior Court. This responding party has made a diligent search and reasonable inquiry and is unable to comply with the request in that the records are in the FCS files covered by its protective order, and in the possession, custody and control of the following entities…” (Brough Decl., Exh. 4.) Plaintiffs also objected to RPD Nos. 38 and 50 on the ground the information sought is equally available to Defendant. In addition to objections, RPD Nos. 10, 26-29, 29, 49 and 50 also included the following substantive answer: “Without waiving the objections, plaintiff has produced those responsive records [ ].”

Plaintiff apparently believes a representation of inability to comply qualifies as an objection, which is erroneous. Code of Civil Procedure section 2031.210, by its own terms, makes clear that an objection and a statement of inability to comply are distinct forms of responses. The function of an objection is to provide a basis for refusing in whole or in part to substantively respond and/or produce documents. A statement of inability to comply, in contrast, is in the nature of a substantive response as is an agreement to produce. As such, Plaintiff’s responses are innately confusing because they frame her purported inability to comply as an objection. That confusion is amplified since the majority of Plaintiff’s responses also include a statement of agreement to produce.

Plaintiff’s responses, of course, provided the backdrop for Defendant’s motion to compel which itself is somewhat confusing in that Defendant treats Plaintiff’s representations of inability comply as though they do in fact constitute objections, failing to recognize that such representations are effectively substantive answers. Further, Defendant does not otherwise speak at all to the adequacy of Plaintiff’s statements of agreement to produce. The Court can state without hesitation that the statements of agreement to produce are not code-complaint. With that said, Defendant did not actually base its motion on the ground the responses are incomplete. Rather, Defendant solely takes issue with the merits of Plaintiff’s asserted objections. As such, relative to the requests that contain a statement of compliance, it would seem Defendant is merely seeking to compel further responses that exclude the objections, which would arguably be a useless exercise since Defendant does not otherwise deem the substantive responses to be inadequate.

Plaintiff’s opposition to the motion further confounds matters because she makes some assertions that are incompatible with her responses. For example, with respect to RPD Nos. 10, 24-29 and 37, she states she “does not object to the production of the records” but “does request that considerations of third party privacy be respected.” (Opp., p. 4:17-19.) Yet, she did in fact assert objections in response to these requests; did not specifically mention third party privacy in those requests; and does not explain what she means by asking for third party privacy considerations to be respected. Despite the assertion she is not objecting to production, she then goes on to state an order compelling production would not be appropriate as to certain documents.

For these reasons, the Court declines to rule on the merits of the motion at this time. The hearing on the motion will be CONTINUED to April 3, 2018 at 9:00 a.m. and the parties are ordered to further meet and confer regarding this matter. In the Court’s opinion, there is no reason the parties should not be able to resolve this discovery dispute. If the parties resolve this matter in full, they are directed to notify the Court prior to the hearing that the motion is taken off calendar. On the other hand, if the parties do not fully resolve the matter or only resolve it in part, their counsel shall file a joint declaration no later than March 23, 2018, describing their further meet and confer efforts and specifying what issues, if any, were successfully resolved so the Court can limit its evaluation of the motion accordingly.

To facilitate the parties’ further meet and confer efforts, the Court makes the following observations regarding the FCS Protective Order since the scope and effect of that order is a centerpiece of this discovery dispute.

The Court is not convinced the FCS Protective Order extends to cover all medical records in Plaintiff’s possession simply because some copies of those records may also be included within a copy of the family court services file. The language of the FCS Protective Order seems clear in its statement that it is the “entire family court services file” that is protected against disclosure. Defendant argues in its motion to compel that the location of a document does not change its inherent nature. On first impression, this argument seems to have merit. (See, e.g., Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 119 [documents prepared independently by a party do not become privileged simply because they are turned over to counsel].) Put another way, the Court is not persuaded that copies of any medical records that happen to be included in the family court services file are transformed into documents protected from disclosure.

III. Plaintiff’s Motion to Compel Further Responses to FI and SI

Plaintiff served Defendant with the FI and SI which seek the names and contact information of witnesses to the subject incidents. (Lewis Decl., ¶¶ 5-7.) Defendant served verified responses to these requests. (Id. at ¶ 8.) Plaintiff deemed the responses deficient and initiated meet and confer efforts. (Id. at ¶ 9.) Defendant’s counsel subsequently informed Plaintiff’s counsel that the parents of two of the students would not consent to the release of their contact information. (Id. at ¶ 10.) The parties thereafter continued meeting and conferring, and Defendant agreed to extend the deadline for Plaintiff to file a motion to compel. (Id. at ¶ 11-13.)

The parties were unable to resolve their dispute and Plaintiff timely filed the present motion to compel, seeking further responses to FI Nos. 12.1 and 12.2 and SI Nos. 1 and 3. Defendant opposes the motion and filed a request for judicial notice in support of its opposition.

A. Request for Judicial Notice

Defendant requests judicial notice of a district board policy, which provides that student directory information may not be released without a parent’s consent. The request is made pursuant to subdivisions (b), (c) and (h) of Evidence Code section 452. Subdivision (b) permits judicial notice of regulations or legislative enactments issued by the United States or any public entity in the United States; subdivision (c) permits judicial notice of official acts of the legislative, executive or judicial departments; and subdivision (h) permits judicial notice of facts not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of indisputable accuracy. Plaintiff opposes the request, arguing the policy does not fall within any of the cited categories of judicial notice.

While Plaintiff’s position is questionable (see, e.g., Warmington Old Town Assocs., L.P. v. Tustin Unified Sch. Dist. (2002) 101 Cal.App.4th 840, 858, fn. 3), the Court nevertheless declines to take judicial notice of the policy because it is not helpful or necessary to the determination of the issues raised by the motion to compel. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [a court need not take judicial notice of a matter unless it “is necessary, helpful, or relevant”].)

Accordingly, Defendant’s request for judicial notice is DENIED.

B. Form Interrogatories

A party propounding interrogatories may move for an order compelling further responses if that party deems an answer is evasive or incomplete, the exercise of the option to produce documents is unwarranted, or an objection is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) Plaintiff moves to compel further responses to FI Nos. 12.1 and 12.2 and SI Nos. 1 and 3 on the ground Defendant’s responses are incomplete and its objections are without merit. (See Code Civ. Proc., § 2030.300.)

FI No. 12.1 seeks the names and contact information of any individual who witnessed, made statements about, heard statements about or has knowledge of the incidents that occurred at the school. FI No. 12.2 requests the names and contact information of anyone who interviewed any individual regarding the incidents. Defendant responded to these FI with a mix of objections and substantive responses.

1. Objections

Defendant objected to both requests on the grounds of vagueness and ambiguity; attorney-client privilege, attorney work product doctrine and official privilege; and confidentiality and privacy rights. It is Defendant’s burden to justify these objections. (See Kirkland, supra, 95 Cal.App.4th at 98 [responding party must justify its objections].)

Defendant only attempts to justify its objection on the ground of privacy, which will be addressed below. It also states in passing that “to the extent the interrogatories could be interpreted [as requesting privileged information],” its objection was proper. Defendant fails to adequately substantiate its objections on the basis of attorney-client privilege, attorney work product doctrine and official privilege. Each of these objections warrant separate treatment and analysis regarding their applicability to the requests at issue. In treating the three objections together and broadly stating they were proper to the extent the interrogatories could be interpreted as requesting privileged information, Defendant fails to carry its burden of justifying these objections. As such, its objections on the grounds of attorney-client privilege, attorney work product doctrine and official privilege, and the remaining undefended objections are overruled. (See Kirkland, supra, 95 Cal.App.4th at 98.)

As to the objection on the ground of privacy, the right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer, supra, 40 Cal.4th at 370.) A party seeking to prevent discovery on the basis of the right of privacy must demonstrate that a legally protected privacy interest exists, there is a reasonable expectation of privacy under the particular circumstances, and the disclosure of the information would constitute a serious invasion of that interest. (Alch, supra, 165 Cal.App.4th at 1423.)

Defendant argues the students have a right to privacy that protects them against the disclosure of documents and information held by the school district. However, the case it cites in support – BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742 (“BRV, Inc.”) – is inapplicable. BRV, Inc. discusses the issue of the privacy of student records under the Family Educational Rights and Privacy Act (“FERPA”). Here, Plaintiff is not seeking student records from Defendant but, rather, contact information of witnesses to the incidents that occurred at the school. FERPA specifically excludes “directory information” – which includes name, address and phone number information – from its prohibition. (See 20 U.S.C. § 1232g, subdivision (b)(1) [“No funds shall be made available…to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information… .])

Furthermore, the law is well-settled that contact information is not particularly sensitive information and, as such, its disclosure fails to amount to a serious invasion of the right to privacy. (See Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1253 [“[T]he requested 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.”])

As such, Defendant’s privacy objection lacks merit and is overruled.

2. Substantive Response

Each answer to an interrogatory must be as complete and straightforward as the information reasonably available to a party permits. (Code Civ. Proc., § 2030.220, subd. (a).) If an interrogatory cannot be answered completely, it must be answered to the extent possible. (Code Civ. Proc., § 2030.220, subd. (b).)

Defendant provided substantive responses to FI Nos. 12.1 and 12.2, without waiving its objections. In response to FI No. 12.1, it identified the names of several students by initials and also identified various individuals by their full names. It also provided the address of the school and the Los Altos Police Department along with a phone number for the police department. No further contact information was provided. In response to FI No. 12.2, Defendant identified several students by initials only and stated they were interviewed by Kimberly Attell, listing the school address as her address. For both responses, Defendant stated all witnesses could be contacted through counsel. Plaintiff argues these responses are incomplete because Defendant failed to provide the full identities and contact information of the witnesses. In opposition, Defendant argues it was prohibited from disclosing student contact information by federal and state law and was also prohibited from disclosing the contact information of district employees.

A. Student Contact Information

Defendant argues that under FERPA and Education Code section 49073, it was not permitted to release directory information for the students to Plaintiff. It also argues it was barred from disclosing this information because the students’ parents did not consent to the release of the information. Both of these arguments are misplaced.

As a preliminary matter, FERPA applies to education records and, as discussed, these are not at issue in this case. As such, FERPA is inapplicable. Moreover, FERPA does not actually prohibit the release of education records but, instead, conditions the availability of federal funds on conformance with its provisions. (Rim of the World Unified School Dist. v. Super. Ct. (2002) 104 Cal.App.4th 1393, 1398; see also Gonzaga Univ. v. Doe (2002) 536 U.S. 273, 276 [stating that the provisions of FERPA “prohibit the federal funding of educational institutions that have a policy or practice of releasing education records to unauthorized persons”].) As such, the argument FERPA barred Defendant from disclosing student contact information lacks merit.

Defendant’s argument regarding Education Code section 49073 (“Section 49073”) is similarly flawed. Section 49073 discusses the general conditions under which a school district can release directory information, which is defined by Education Code section 49061, subdivision (c) as including a student’s name, address and telephone number. Nothing in this statute addresses the issue of disclosure of student contact information within the context of properly propounded discovery in a lawsuit. Moreover, Defendant fails to cite any authority supporting the proposition Section 49073 permits a party to refrain from providing the contact information of students who witnessed the type of incidents at issue in this case.

With respect to the issue of parental consent, Defendant asserts the district implemented a board policy preventing the disclosure of such information absent consent from a student’s parents. Though Defendant contends FERPA purportedly permits disclosure of “directory information” only to the extent permitted by a school board policy, citing 34 Code of Federal Regulations section 99.37 (“34 C.F.R. § 99.37”) in support, this regulation does not stand for that proposition. 34 C.F.R. § 99.37 discusses general notice and opt-out procedures that must be complied with in the disclosure of student directory information and does not state disclosure is permitted only to the extent permitted by a school board policy. Defendant also does not indicate why 34 C.F.R. § 99.37 would apply to the issue of whether such information can be disclosed in the context of properly propounded discovery that seeks the contact information of witnesses to the type of incidents alleged in this matter.

Accordingly, Defendant’s arguments are without merit. Moreover, as argued by Plaintiff in her motion to compel, Education Code section 49077 provides that a court is otherwise permitted to order the disclosure of student information, provided the school district makes reasonable efforts to notify the parent or guardian in advance of compliance.

B. District Employee Contact Information

Defendant argues its response are not deficient with respect to the district employee contact information because, as individuals whose actions could be imputed to defendant, Plaintiff’s counsel is not permitted to directly contact them anyway. It does not cite any authority supporting the proposition that discovery of such information can be refused where a party is seeking the contact information of witnesses to the incidents that form the basis of a complaint’s allegations. Instead, it cites San Francisco Unified Sch. Dist. ex. rel. Contreras v. First Student, Inc. (2013) 213 Cal.App.4th 1212, a case discussing the issue of whether California Rules of Professional Conduct, rule 2-100, was violated where an attorney contacted the employees of a litigant.

The issue of whether Plaintiff’s counsel is permitted to directly contact various district employees is not relevant to the issue of whether Defendant is obligated to provide Plaintiff with the contact information for those employees as requested in the interrogatories. Therefore, Defendant’s failure to provide this information renders its responses not complete and straightforward. (See Code Civ. Proc., § 2030.220, subd. (a).)

Accordingly, Defendant’s argument lacks merit and its failure to provide a complete response to FI Nos. 12.1 and 12.2 is not justified.

3. Conclusion

For the reasons stated, the motion to compel further responses to FI Nos. 12.1 and 12.2 is GRANTED. In accordance with Education Code section 49077, Defendant shall make a reasonable effort to notify the students’ parents in advance of compliance with this Order. Defendant shall serve verified code-compliant further responses, without objections, within 20 calendar days of this Order.

C. Special Interrogatories

SI Nos. 1 and 3 seeks the contact information of specifically named students. Defendant responded to these SI with objections only.

It objected on the grounds these interrogatories violate the student’s right to privacy and its own obligation under federal and state law to keep student records confidential. It is Defendant’s burden to justify these objections. (See Kirkland, supra, 95 Cal.App.4th at 98 [responding party must justify its objections].)

Defendant advances arguments identical to its justifications for its privacy objection to FI Nos. 12.1 and 12.2. As previously discussed, these arguments lack merit. Accordingly, the privacy objection relative to these requests is overruled.

Its objection on the ground it is prohibited from disclosing student records also lacks merit. As discussed, the information sought by these interrogatories is not a student record but rather contact information of the students. As such, its objection on the basis of confidentiality is overruled.

For the reasons stated, the motion to compel further responses to SI Nos. 1 and 3 is GRANTED. In accordance with Education Code section 49077, Defendant shall make a reasonable effort to notify the students’ parents in advance of compliance with this Order. Defendant shall serve verified code-compliant further responses, without objections, within 20 calendar days of this Order.