Case Number: BC524720 Hearing Date: May 22, 2014 Dept: 34

Moving Party: Plaintiff Osvaldo Velez (“plaintiff”)

Resp. Party: Defendants Payless Holdings, Inc.; Payless Shoesource Worldwide, Inc.; Payless Shoesource, Inc.; Bruce Sotoohi; and John Dudek (“defendants”)

Plaintiff’s motion to quash the subpoena propounded upon Savers is GRANTED.

Plaintiff’s motion to compel defendants Payless Shoesource Worldwide, Inc., and Payless Shoesource, Inc., to provide further responses to special interrogatories (set one) is GRANTED.

BACKGROUND:

Plaintiff commenced this action on 10/16/13 against defendants for: (1) defamation per se; (2) false imprisonment; (3) age discrimination; (4) wrongful termination in violation of public policy; (5) breach of covenant of good faith and fair dealing; (6) wrongful termination in violation of public policy; (7) IIED; (8) failure to pay wages; and (9) unfair business practices. Plaintiff worked for defendants and alleges they made false accusations against him. Plaintiff alleges that defendants wrongfully terminated his employment.

ANALYSIS:

Motion to Quash Subpoena

Plaintiff moves to quash a subpoena seeking plaintiff’s employment records from Savers, plaintiff’s current employer.

The subject subpoena was served on Savers and seeks the following documents:

1. All WRITINGS which evidence, refer to, reflect, or relate to any EMPLOYMENT between SAVERS on the one hand, and VELEZ on the other;

2. All employment applications, resumes, written inquiries, or solicitations submitted by VELEZ to SAVERS in connection with VELEZ seeking employment with SAVERS;

3. All WRITINGS and COMMUNICATIONS between VELEZ and SAVERS in connection with VELEZ seeking employment with SAVERS;

4. All WRITINGS and COMMUNICATIONS wherein VELEZ states his qualifications for employment;

5. All WRITINGS, including but not limited to contracts, agreements, deal memos or letters of engagement between VELEZ and SAVERS;

6. All WRITINGS constituting SAVERS’ personnel and employment file regarding VELEZ;

7. All WRITINGS that evidence any payment of money, benefits, or other compensation, made by SAVERS to VELEZ including, without limitation, salary and wage records, commission records, bonus records, profits, or profit-sharing records, payroll records, and records indicating financial interest in real estate property, but excluding tax documents (i.e., W2, W-4 and 1099 forms); and

8. All WRITINGS and COMMUNICATIONS that evidence, refer to or reflect VELEZ job titles, work descriptions, duties, assignments, and responsibilities for SAVERS.

(Pl. Exh. A, attachment A.) In the opposition, defendants state that they have offered to limit the subpoena to three categories: (1) any and all payroll records; (2) any and all documents relating to benefits plaintiff is presently receiving or will be entitled to receive; and (3) any resumes or other documents that identify or mention defendants. (See Galindo Decl., ¶ 4, Exh. B.)

“California accords privacy the constitutional status of an ‘inalienable right,’ on a par with defending life and possessing property.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 841 [citing Cal. Const., art. I, § 1; White v. Davis (1975) 13 Cal.3d 757].) In determining this issue, “courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (Id. at p. 843.) Employee personnel records are protected by the right to privacy. (See El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 345-346.)

The right to privacy is not absolute and is limited by the right to discovery. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853.) “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) However, “when the constitutional right of privacy is involved, the party seeking discovery of private matter must do more than satisfy the section 2017 standard. The party seeking discovery must demonstrate a compelling need for discovery, and that compelling need must be so strong as to outweigh the privacy right when these two competing interests are carefully balanced.” (Lantz, 28 Cal.App.4th at pp. 1853-1854.)

“[D]etermination of the nature of the compelling state interest does not complete the constitutional equation.” (Palay v. Superior Court (1993) 18 Cal.App.4th 919, 934.) “An impairment of the privacy interest ‘passes constitutional muster only if it is necessary to achieve the compelling interest.’” (Ibid. [quoting Wood v. Superior Court (1985) 166 Cal.App.3d 1138, 1148].)

“That means that the conflict between the competing values must be unavoidable, i.e., that it does not arise from the choice of means by which to secure the compelling interest. It can readily be seen that if the conflict is avoidable but is not avoided the real conflict is not between the compelling interest and the constitutional interest but between the means chosen to achieve the compelling interest and the constitutional interest. Thus, a logical corollary of the compelling interest doctrine is the alternatives test. It requires a reordering of the values to be placed on the constitutional scales. If an alternative means of securing the compelling interest can be devised by which to avoid or minimize the conflict between the values protected by the constitution and the values found to be of compelling interest, that must be done. [Citation.] This results in a prohibition, among other things, of overbroad means of enforcement. It requires that the state utilize the ‘least intrusive’ means to satisfy its interest. [Citation.]”

(Palay, 18 Cal.App.4th at p. 934 [quoting Wood, 166 Cal.App.3d at p. 1148].) “The scope of methods used must be tailored to avoid disclosure of protected records.” (Palay, 18 Cal.App.4th at p. 934.)

“The burden is on the party seeking the constitutionally protected information to establish direct relevance.” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.) “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.” (Ibid.) “[W]hile the filing of a lawsuit may implicitly bring about a partial waiver of one’s constitutional right of . . . privacy, the scope of such ‘waiver’ must be narrowly rather than expansively construed.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 859.)

Defendants argue that the payroll and benefit records are relevant to the issue of mitigation of damages, and the documents that refer to or identify defendants are relevant to plaintiff’s claims. Defendants have not sufficiently shown that the documents sought are directly relevant. As an initial matter, though defendants have offered to limit the scope of the subpoena, there is no showing that the original subpoena has been withdrawn or otherwise limited. Moreover, the offered limitations are still overly broad. For example, defendants have not offered to limit the scope of the subpoena only to documents that discuss plaintiff’s reasons for being terminated by defendants; instead, defendants seek all documents that in any way mention or identify defendants. This could include documents in plaintiff’s personnel record that have nothing to do with this action. Defendants have not shown that they cannot obtain this information via less intrusive means.

Accordingly, plaintiff’s motion to quash the subpoena propounded upon Savers is GRANTED.

Motion to Compel Further Responses to Special Interrogatories

A motion to compel lies where the party to whom the interrogatories were directed gave responses deemed improper by the propounding party; e.g., objections, or evasive or incomplete answers. (Code Civ. Proc., § 2030.300.) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (California Rules of Court, rule 3.1020(c).) “The statement of reasons is required to help the judge prepare for the hearing. But this does not change the burden of persuasion at the hearing-i.e, the responding party still has the burden of justifying at the hearing each objection raised to discovery.” (Weil & Brown, Cal. Prac. Guide: Civil Pro. Before Trial (The Rutter Group 2011) ¶ 8:1157, 8:1179.) “The ruling usually is based on consideration of the following factors: the relationship of the information sought to the issues framed in the pleadings; the likelihood that disclosure will be of practical benefit to the party seeking discovery; the burden or expense likely to be encountered by the responding party in furnishing the information sought.” (Id., ¶ 8:1181.)

Plaintiff seeks to compel further responses to special interrogatory number 1, which asks defendants to provide the names, addresses, telephone numbers, and e-mail addresses of all of defendants’ employees that reported to plaintiff during the last three years of his employment. Defendant responded with objections and the substantive response that defendants would produce a list of names of employees and that plaintiff could reach the management level employees through defense counsel. Plaintiff argues that this information is essential to the fair resolution of this action.

The Court rejects defendant’s argument that plaintiff already has the requested information in his possession, custody, or control. During his deposition, plaintiff testified that he has a day planner that contained phone numbers of employees that he has contacted. (See Galindo Decl., Exh. C.) At most, this testimony establishes that plaintiff has some contact information for some employees. It does not establish that plaintiff already possess the names, addresses, telephone numbers, and e-mail addresses of all of the subject employees.

Defendant next argues that the contact information is protected by the right to privacy. In Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, the plaintiffs (former employees of the defendant) brought an action for wage and hour violations. (Puerto, 158 Cal.App.4th at p. 1245.) The plaintiffs served written discovery that included form interrogatory number 12.1, which requested the name, address, and telephone numbers of witnesses. (Id. at pp. 1245-1246.) The defendant eventually responded by providing the names of employees, but not their contact information. (Id. at p. 1246.) The plaintiffs filed a motion to compel further responses, and the defendant opposed and in the alternative proposed an opt-in procedure for notifying the affected employees of the request for their contact information. (Id. at p. 1247.) The trial court granted the motion, but with directions to utilize the opt-in procedure. (Ibid.) The plaintiffs then filed a petition with the Court of Appeal for writ of mandate. (Ibid.)

The appellate court recognized that “the right to privacy in contact information is unlikely to trump the [plaintiffs’] right to investigate their claims by contacting witnesses.” (Puerto, 158 Cal.App.4th at p. 1248.)

[Plaintiffs] have a statutory entitlement to the contact information for these witnesses. Code of Civil Procedure [Fn. omitted] section 2017.010 provides that unless the court imposes limits, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” “The scope of discovery is very broad” [citation], and it includes the right to “obtain[ ] … the identity and location of persons having knowledge of any discoverable matter….” (§ 2017.010.)

(Id. at p. 1249.) “Central to the discovery process is the identification of potential witnesses. ‘The disclosure of the names and addresses of potential witnesses is a routine and essential part of pretrial discovery.’ [Citation.]” (Id. at pp. 1249-1250.)

The court noted that this right to discovery is not absolute, and that it must be balanced with the right to privacy. (Puerto, 158 Cal.App.4th at p. 1250.) The court recognized that the employees had “a legitimate expectation of privacy in their addresses and telephone numbers,” but that this did not necessarily mean that the employees would be opposed to disclosure of the information under the circumstances in that case. (Id. at pp. 1252-1253.) The court next addressed whether disclosure of the information constituted a serious invasion of privacy. (Id. at p. 1253.)

Here, just as in [Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360], the 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. [Citations.] This is basic civil discovery. These individuals have been identified by [defendant] as witnesses. Nothing could be more ordinary in discovery than finding out the location of identified witnesses so that they may be contacted and additional investigation performed. [Citation.] As the Supreme Court pointed out in Pioneer, the information sought by the petitioners here—the location of witnesses—is generally discoverable, and it is neither unduly personal nor overly intrusive. [Citation.] In some respects, the potential intrusion here is even less significant than that in Pioneer, because here the requested disclosure does not involve individuals’ identities, which had already been disclosed by [defendant] prior to the filing of the motion to compel. There simply is no evidence that disclosure of the contact information for these already-identified witnesses is a transgression of the witnesses’ privacy that is “sufficiently serious in [its] nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.” [Citation.]

(Id. at pp. 1253-1254.) “[I]t is only under unusual circumstances that the courts restrict discovery of nonparty witnesses’ residential contact information.” (Id. at p. 1254.) “Discovery may be prohibited where the information violates the right to privacy and is not necessary to the prosecution of the matter” or “in the unusual circumstance of true danger.” (Ibid.) The court concluded that there was no serious invasion of privacy. (Id. at p. 1256.)

Because the court found that there was no serious invasion of privacy, the court was not required to balance the opposing interests. (Puerto, 158 Cal.App.4th at p. 1256.) The court performed the balance nonetheless, and found that it weighed in favor of disclosure. (Ibid.) The court found that the trial court had abused its discretion by ordering an opt-in procedure because such procedure resulted in an inequitable situation where the defendant had access to all potential witnesses while the plaintiff was dependent on the willingness of the witnesses to participate. (Ibid.) Moreover, it unnecessarily restricted the plaintiffs in their efforts to conduct discovery. (Ibid.)

Puerto is on point here because, as in that case, plaintiff here is merely seeking the contact information of potential witnesses. Like the defendant in Puerto, defendant here agreed to provide the names of the employees, but refused to provide the contact information. Because the employees may have information as to the reasons for plaintiff’s termination, it cannot be said that the information is not necessary to the prosecution of this matter. (See Puerto, 158 Cal.App.4th at p. 1254.) There is no showing that the employees may be exposed to any danger if the information is disclosed. (See ibid.) Therefore, as in Puerto, disclosure of the employee contact information here would not be a serious invasion of privacy. Because there is no showing of a serious invasion of privacy, the Court need not balance the opposing interests. (See id. at p. 1256.) Even if the interests were balanced, they would weigh in favor of discovery for the reasons articulated in Puerto. (See ibid.)

The Court rejects defendants’ argument that there are less intrusive means of learning discoverable information because the employees could be contacted through defense counsel. This could unnecessarily impose restrictions on plaintiff’s access to the witness where defendants face no such restrictions. (See Puerto, 158 Cal.App.4th at pp. 1256-1259.)

Finally, defendants argue that direct ex parte communications with the managerial employees would violate Rules of Professional Conduct number 2-100. This rule provides:

(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.

(B) For purposes of this rule, a “party” includes:

(1) An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or

(2) An association member or an employee of an association, corporation, or partnership, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

(C) This rule shall not prohibit:

(1) Communications with a public officer, board, committee, or body; or

(2) Communications initiated by a party seeking advice or representation from an independent lawyer of the party’s choice; or

(3) Communications otherwise authorized by law.

(Rules Prof. Conduct, rule 2-100.) “[R]ule 2-100 permits opposing counsel to initiate ex parte contacts with unrepresented former employees, and present employees (other than officers, directors or managing agents) who are not separately represented, so long as the communication does not involve the employee’s act or failure to act in connection with the matter which may bind the corporation, be imputed to it, or constitute an admission of the corporation for purposes of establishing liability.” (Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 140. See also San Francisco Unified School District ex. rel. Contreras v. First Student, Inc. (2013) 213 Cal.App.4th 1212, 1231-1232 [“For purposes of this opinion, we shall assume that any act or omission of a corporate defendant’s employee within the scope of that employee’s employment might be imputed to the corporation within the meaning of the act or omission clause of rule 2–100.”].)

Defendant fails to establish that rule 2-100 prohibits disclosure of the requested contact information. Defendant provides no authority which holds that a party may withhold the contact information of employees due to a fear that rule 2-100 might be violated. Defendant provides no evidence which shows that any of the subject employees are “managing agents” under rule 2-100(B)(1). (See Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1209 [“the term ‘managing agent’ in rule 2–100 refers to those employees that exercise substantial discretionary authority over decisions that determine organizational policy”].) For any non-management employees, there is no showing that plaintiff will engage in communications related to the employees’ own acts or omissions, as opposed to the acts or omissions of others. (See rule 2-100(B)(2).) There is no showing that any statements made by the employees “may constitute an admission on the part of the organization” because this provision “covers only ‘high-ranking organizational agents who have actual authority to speak on behalf of the organization.’ [Citation.]” (SFUSD, 213 Cal.App.4th at p. 1232; rule 2-100(B)(2).)

Accordingly, plaintiff’s motion to compel defendants to provide further responses to special interrogatory number 1 is GRANTED.

Defendant to supplement its response within 20 days.