Case Name: Phills v. The Board of Trustees of the Leland Stanford Junior University

Case No.: 1-14-CV-263146

Motion of Defendants for a protective order preventing Plaintiff from using or disclosing any communications between Defendant Saloner and non-party Gruenfeld produced in response to Plaintiff’s Request for Documents (“RPD”) Nos. 11, 15 and 19, for any purpose outside this litigation. Defendants also seek an order that these communications be designated as “Confidential” throughout the litigation, and submitted to the Court under seal pursuant to California Rule of Court 2.551.

Discussion

The content of communications between the identified persons, one a party (Defendant Saloner) and one not (Gruenfeld), has been the subject of prior motions before this court. The court’s order filed May 22, 2015 denied Defendant’s prior motion for a protective order regarding such communications, and further ordered Gruenfeld to respond to deposition questions and to produce additional documents. The court’s appropriate denial of the protective order pursuant to California Code of Civil Procedure (“C.C.P.”) §2031.060 was based on the fact that this request did not flow from a discovery demand or request. As the court stated, “Defendants’ motion for a protective order is not tethered to any request for production of documents,” and the court found that §2013.060 did not authorize the protective order relief then requested by Defendants.

The current motion is “tethered” to a demand for production of documents, on which the court has ruled on May 28, 2015. This motion concerns RPD Nos. 11, 15 and 19 – to which the court ordered Defendants to provide further responses. Each of these requests seeks communications between Plaintiff’s wife (Gruenfeld) and Defendant Saloner concerning Plaintiff. The court’s minutes of May 28 reflect its ruling regarding this production was stayed 30 days.

Defendants’ current motion does now appear to have a proper procedural basis in §2031.060.

The court will not repeat here the detailed description of the factual and procedural background of this case, as it has been discussed in detail in the court’s prior orders, all of which the court has reviewed in considering the current motion.

Analysis

A. Motion for Protective Order
Defendants’ motion for a protective order is brought pursuant to C.C.P. §2031.060. As the moving parties, defendants bear the burden of proof, and must show the good cause required by the statute for a protective order to issue. (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.) Plaintiff correctly states that protective orders may only apply to documents produced in discovery (as this court has recently ruled), and Defendants’ motion does appear appropriately limited to obtaining protection of documents that Defendants will be required to produce. As the issue of a protective order has already been addressed – and denied – by the court regarding documents already in Plaintiff’s possession that were obtained other than through formal discovery, a protective order – if appropriate and issued – would necessarily be limited to unique, non-repetitive documents if such were to be produced by Defendants and were not already in the possession of Plaintiff.

However, the court does not reach this issue nor find need to carefully define any such limitation. The court does find that Defendants have failed to make a sufficient showing of good caused required by C.C.P. 2013.060 in order to support the issuance of a protective order in this case. The court further questions whether Defendants have moved “promptly” as required by the statute, when these discovery requests were initially propounded on December 10, 2014.

The court is persuaded that the documents Defendants are now compelled by court order to produce, their relevance having been established and the court having balanced the interests between the right of privacy and the right to discovery, have not been shown to warrant protection by a protective order. There was no reasonable expectation of privacy between any of the participants to such communications, as is expressly stated in the University’s Computer and Network Usage Policy (Exhibit C to Declaration of Andrew F. Pierce.). Defendants have failed to make a sufficient showing of good cause, which is required for the court to issue the requested protective order. The declaration of counsel for Defendants, that “many” of the electronic communications and documents are “very personal and sensitive in nature, and appear to have been intended at all times (by Dean Saloner and Gruenfeld) to remain confidential,” is not sufficient, does not meet Defendants’ burden of proof, and fails to demonstrate the parties to such communication would have a reasonable expectation of privacy contrary to the University’s stated email policies.

Defendants’ motion for protective order is DENIED.

B. Request to File Under Seal

Defendants’ Notice of Motion requests a further order that the same communications for which a protective order is sought be designated as “Confidential” and only submitted to the court under seal pursuant to California Rule of Court (“CRC”) 2.551.

To the extent that this request is to be construed as a motion or application to seal under CRC 2.551, Defendants have failed to present facts sufficient for the court to make all of the required findings of CRC 2.550(d). This request is DENIED.

Conclusion

Defendants’ Motion for Protective Order is DENIED.
Defendants’ request that certain documents be marked “confidential” and submitted under seal is DENIED.

Neither party having requested monetary sanctions in this instance, each party shall bear its own costs in connection with the motion and opposition.