Case Number: BC690807 Hearing Date: May 14, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR PROTECTIVE ORDER

On January 17, 2018, Plaintiffs Lindsey Therese Knight and Kyrstin Nicole Knight (collectively, “Plaintiffs”) filed this action against Defendants Brian Bulos Khoury, and Nader Khoury CE Engineering Structures, Inc. (collectively, “Defendants”) for injuries sustained in an April 15, 2016 automobile accident. On January 28, 2019, Plaintiff issued a deposition subpoena to Trotter Building Designs seeking documents related to any and all contracts, services, projects, correspondence and documents between Trotter Building Designs and Defendants. Defendants seek a protective order on grounds the subpoena is overbroad, seeks documents not reasonably calculated to lead to the discovery of admissible evidence, invades Defendant Khoury’s privacy rights, and is not limited in time or scope.

A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (Code Civ. Proc., § 2020.020.) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .” (Code Civ. Proc., §2020.410, subd. (a).)

The court, upon motion or the court’s own motion, “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 orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).) A deponent may promptly move for a protective order and such motion shall be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b.).)

“‘[F]or discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement’ and ‘[a]dmissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.’ These rules are applied liberally in favor of discovery . . . and (contrary to popular belief) fishing expeditions are permissible in some cases.” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653, citations omitted.) The Court must “balance the public need against the weight of the privacy right” and only serious invasions of privacy will bar discovery. (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 966; In re The Clergy Cases I (2010) 188 Cal.App.4th 1224, 1234 [“The right of privacy protects the individual’s reasonable expectation of privacy against a serious invasion”].) There is not an egregious invasion of privacy every time there is a request for private information and courts must “place the burden on the party asserting a privacy interest to establish its extent and seriousness of the prospective invasion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) “‘Not every act which has some impact on personal privacy invokes the protections of [our Constitution] . . A court should not play the trump card of unconstitutionality to protect absolutely every assertion of individual privacy.’ [Citation.]” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37.)

Defendants argue the subpoena violates his right to privacy, and that Plaintiff has not met the threshold requirement of showing the employment documents are directly relevant. (Britt v. Superior Court (1978) 20 Cal.3d 844.) The subpoena seeks all contracts, documents, projects, correspondence and documents without limitation to time or scope, which Defendants contend is constitutionally overbroad.

Plaintiff argues there is good cause to discover the documents sought to ascertain whether Defendant Khoury may have been acting within the course and scope of his employment with Nader Khoury CE Engineering Structures, Inc. (“Nader Khoury”) and if so, to determine whether there existed an alter ego relationship. In support of her alter ego theory and request for discovery, Plaintiff argues Defendant Khoury and Nader Khoury share the same company insignia; Defendant admitted to falsely holding himself to the public as having an incorporated business; Defendant Khoury and an owner of Nader Khoury are relatives and share client resources; and Plaintiff admitted that his dba (Engineering Structures Inc.) is a dba for Nader Khoury.

Plaintiff states that at a July 19, 2016 Manhattan Beach City Council Meeting, Defendant Khoury was involved in plans for a proposed single family residence for Surfside Properties. Among the other contractors was Trotter Building Designs, Inc., the subpoenaed party. Plaintiff seeks to determine the scope of the relationship between Defendants and Trotter Building Designs because the work performed on or around July 19, 2016 could encompass the April 2016 subject accident. Discovery may show Defendant Khoury was working in the course and scope of employment, which may trigger insurance coverage on the part of Nader Khoury, or may prove that Engineering Structures Inc. is a dba of Nader Khoury.

In reply, Defendant Khoury cites to his deposition testimony where he testified his company is separate from Nader Khoury, his brother’s company, and that he did not have insurance for his company, Engineering Structures Inc.. Therefore, production of the documents from Trotter is not directly related this action or reasonably calculated to lead to admissible evidence.

Whether Defendant Khoury was employed by Defendant Nader Khoury at the time of the incident and acting within the scope of that employment is relevant. The subpoena is overbroad, but can be narrowed to protect privacy rights:

Category 1: Responsive contracts shall be produced. The financial terms of the contracts may be redacted.

Category 2: Responsive documents shall be produced. Financial terms of the documents may be redacted.

Category 3: If such a list exists, it shall be produced as it would not reveal private financial information.

Categories 4 and 5: These are overbroad and could encompass various documents about the project that reveal nothing about who employees Defendant Khoury.

The Motion for protective order is GRANTED and the subject subpoena is quashed.

Moving party to give notice.