Alma Alfaro et al vs Waterhouse Management Corp., et al
Case No: 17CV02185
Hearing Date: Wed May 30, 2018 9:30

Nature of Proceedings: Motion: Protective Order

TENTATIVE RULING:

The motion of defendants Waterhouse Management Corp. and Lazy Landing MHP, LLC, for a protective order is granted as set forth herein.

Background:

This action is brought by 76 individual residents who own mobilehomes at Nomad Village Mobilehome Park (the Park), which is owned and managed, respectively, by defendants Lazy Landing MHP, LLC, and Waterhouse Management Corp. Plaintiffs’ operative pleading, their first amended complaint (FAC), alleges that defendants have failed to provide and maintain conditions at the Park as legally required and that defendants have interfered with plaintiffs’ rights in the Park. Defendants generally deny the allegations of the FAC and assert affirmative defenses to the claims of the FAC.

The parties have engaged in substantial discovery, including requests for production of documents. (Ballantine decl., ¶ 9-10.)

Defendants by this motion seek a protective order to protect the confidentiality of documents disclosed in discovery. Defendants propose one form of a protective order to address this issue.

Plaintiffs do not dispute that some of the documents are subject to confidentiality, but oppose the form of the protective order proposed by defendants. Instead, plaintiffs propose a different form, which is, in turn, opposed by defendants.

Analysis:

“When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.060, subd. (a).)

The parties sufficiently, albeit unsuccessfully, met and conferred in an attempt to resolve this matter informally.

“The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: [¶] … [¶]

(4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions.

“(5) That a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.” (Code Civ. Proc., § 2031.060, subd. (b)(4), (5).)

According to defendants, responsive documents include the terms of each individual rental agreement, rental history and information, communications between the Park and the homeowner, homeowners’ confidential financial information. (Ballantine decl., ¶ 10.)

According to plaintiffs, most of the information requested is confidential only as to the plaintiffs themselves and that defendants have not shown the need for an expansive and burdensome protective order. (Reich decl., ¶ 17 & exhibit Q.)

There is no dispute between the parties that business and personal financial information is generally protected as confidential. (See Fireman’s Fund Ins. Co. v. Superior Court (1991) 233 Cal.App.3d 1138, 1141.) The only real dispute is how documents are included or excluded from the confidentiality order.

The court notes that the interests in protecting privacy and confidentiality are different as they relate to discovery and as they relate to information used at trial or in other matters before the court unrelated to discovery. (See Rules of Court, rules 2.550, 2.551.) The court also notes that this motion for a protective order does not seek to prevent the disclosure or production of any documents relative to any discovery request, only to protect such responsive documents from further disclosure or use. No inference should be drawn from the court’s ruling that any particular document or document containing a type of information is or is not properly disclosed pursuant to a discovery request.

Although the document requests themselves are not before the court, based upon the arguments of the parties the affected documents contain three types of confidential information:

(1) Plaintiffs’ own confidential information (such as financial information and social security numbers) in the possession of defendants (such as in tenant files);

(2) Defendants’ own confidential information (such as checks and bank account information); and,

(3) Documents in the possession of defendants that are communications between defendants and one or more plaintiffs or documents that have been communicated between defendants and one or more plaintiffs (such as tenancy agreements).

The first category addresses only those documents containing plaintiffs’ own confidential information. Plaintiffs argue that they should not be burdened with a confidentiality order that protects their own information from themselves. The privacy interest to be protected by the protective order here is the privacy interest of the specific plaintiffs affected even though the motion is brought by the defendants. While each affected plaintiff may, of course, waive any privacy interest he or she wishes to waive, it does not appear from the evidence before the court either that the plaintiffs have waived their privacy rights in this information as to the dissemination into the public record without qualification or that the plaintiffs have waived their privacy rights as among themselves. In the former case, the protective order is intended to keep the information confidential from the general public; in the latter case, the protective order is intended to keep the information confidential as among the plaintiffs even if plaintiffs’ joint counsel has access to the information. By way of example, plaintiff 1 may not want plaintiff 2 to know about plaintiff 1’s finances.

The second category addresses only those documents containing defendants’ own confidential information. The privacy interest to be protected is the defendants’ own interest. Defendants have a reasonable expectation of privacy in their own financial and other confidential records.

The third category addresses documents shared between defendants and plaintiffs. In the first category, particular plaintiffs may share their financial or other confidential information with defendants but such disclosure is with the expectation that defendants would maintain the confidentiality. This expectation of confidentiality is the appropriate basis for defendants to bring the motion for a protective order. In this third category, neither party has a reasonable expectation that the communications would be kept private, except as may be evident from the affected documents themselves (such as a confidentiality provision in a contract) or shown extrinsically (such as communications expressed by the parties as to be kept confidential).

These categories demonstrate that the existence and scope of confidentiality depends upon the type of document, the information contained in the document, the party whose privacy interest is being maintained, and the intent of the party whose privacy interest is being maintained to keep the information confidential.

The better approach to addressing this document-specific confidentiality is a protective order that more closely follows the protective order proposed by defendants than by plaintiffs. The elaborate order proposed by defendants, while appropriate in many cases, is unnecessary here. The court will make the following protective order:

Unless otherwise ordered by the court, confidential information, including all or part of a specific document, shall be kept confidential by the parties and their counsel and shall not be disclosed to any person, or used in any way, except as and to the limited extent necessary for the conduct of this litigation. A party is not bound to keep confidential information specific to that party, e.g., a party may disclose that party’s own financial information, and may use the party’s own information without restriction.

A party responding to discovery may designate any specific document, part of a document, or information in a response as “confidential.” The designation shall be made on the document or in connection with the response, e.g., with the stamp “confidential,” so that the confidential designation is immediately apparent to any person to whom the document or response is disclosed. Such information shall be treated as confidential information under this order until determined otherwise by the court.

In all proceedings before the court, the party designating the information as “confidential” bears the burden of establishing that the information should be protected as confidential information. Once information is found by the court to be confidential information, a party seeking disclosure or use beyond the terms of this protective order bears the burden of establishing that the information should be so disclosed or used. The parties shall meet and confer, in person or by telephone, as to any disputes as to the designation of information as “confidential” and as to any disputes as to disclosure or use of such information.

With respect to the use or disclosure of confidential information in any court proceeding, the parties shall comply with California Rules of Court, rules 2.550 and 2.551.

Any party may at any time make a noticed motion to determine that confidential information is improperly designated or information not so designated should be so designated, or that the use or disclosure of confidential information should be further permitted or limited. Such motion shall be treated in all respects as a motion for protective order, including the requirement of a detailed meet and confer prior to filing the motion and the potential award of sanctions under the standards for a protective order motion.