Case Number: BC511734    Hearing Date: July 21, 2014    Dept: 34

Moving Party: Plaintiff David Derse (“plaintiff”)

Resp. Party: Defendants Battery-Biz, Inc.; Ophir Marish; Elad Marish; and Keegan Marish-Roehr (“defendants”)

Plaintiff’s motion to quash the subpoena served by defendants on Targus USA, Inc. is GRANTED. The Court grants sanctions in the amount of $1460.

The Court need not take judicial notice of the item requested by defendants because it is already in the record of this action.

BACKGROUND:

Plaintiff commenced this action on 6/10/13 against defendants for: (1) age discrimination; (2) wrongful termination; (3) breach of fiduciary duty; and (4) breach of implied covenant of good faith and fair dealing. Plaintiff alleges he was wrongfully terminated by defendants so that they could avoid paying his high salary or the full value of his stock ownership interest.

ANALYSIS:
Plaintiff moves to quash defendants’ subpoena served upon Targus USA, Inc., a company to which plaintiff currently provides consulting services. Plaintiff alternatively moves for a protective order.

California Code of Civil Procedure section 1987.1, subd. (a) provides:

If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, 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 order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

The subject subpoena seeks 33 categories of documents from Targus:

1. All DOCUMENTS in YOUR HUMAN RESOURCES file(s) for DERSE.
2. All DOCUMENTS in YOUR PAYROLL file(s) for DERSE.
3. All DOCUMENTS relating to COMMUNICATIONS between YOU and DERSE concerning his employment relationship with YOU (but excluding all DOCUMENTS in which the subject matter related only to tasks which DERSE was working on for YOU in the course of his employment).
4. All DOCUMENTS relating to COMMUNICATIONS about DERSE between YOU and any person whom at that time was not employed by YOU.
5. All DOCUMENTS relating to DERSE’S application(s) for employment with YOU (including but not limited to materials provided by DERSE in support of his application).
6. All DOCUMENTS relating to any background checks YOU conducted on DERSE at.any time.
7. All DOCUMENTS relating to YOUR decision to hire DERSE.
8. All DOCUMENTS relating to DERSE’s job duties while he worked for YOU.
9. All DOCUMENTS relating to DERSE’S pay while he worked for YOU (including but not limited to Labor Code section 226 pay statements).
10. All DOCUMENTS relating to all bonuses YOU offered to DERSE while he worked for YOU.
11. All DOCUMENTS relating to any stock options YOU offered to DERSE while he worked for YOU.
12. All DOCUMENTS relating to any of YOUR own shares which YOU offered to DERSE while he worked for YOU (including, but not limited to employee stock ownership plans).
13. All DOCUMENTS relating to ownership of any kind of any part of a corporate entity which YOU offered to DERSE while he worked for YOU.
14. All DOCUMENTS relating to any work-related injuries reported by DERSE while he worked for YOU.
15. All DOCUMENTS relating to DERSE’S benefits while he worked for YOU.
16 All DOCUMENTS relating to all leaves taken by DERSE for any reason while he worked for YOU.
17. All DOCUMENTS relating to DERSE’S performance while he worked for YOU (including but not limited to performance evaluations).
18. All DOCUMENTS relating to THE END of DERSE’s employment relationship with YOU.
19. All DOCUMENTS relating to who first initiated the events leading to THE END of DERSE’s employment relationship with YOU.
20. ALL severance agreements which YOU entered into with DERSE.
21. ALL settlement agreements which YOU entered into with DERSE.
22. All DOCUMENTS which were withheld from DERSE’S permanent HUMAN RESOURCES file(s) by agreement with DERSE.
23. ALL DOCUMENTS relating to severance pay provided by YOU to DERSE.
24. ALL DOCUMENTS relating to severance benefits provided by YOU to DERSE.
25. ALL DOCUMENTS relating to outplacement benefits provided by YOU to DERSE.
26. ALL DOCUMENTS relating to any threat of legal action by DERSE against YOU at any time.
27. ALL DOCUMENTS relating to any lawsuits filed by DERSE against YOU at any time in any venue.
28. ALL DOCUMENTS relating to any threat of administrative charges by DERSE against YOU at any time.
29. ALL DOCUMENTS relating to any administrative charges filed by DERSE against YOU at any time with any agency.
30. ALL DOCUMENTS relating to any COMMUNICATIONS between YOU and the California Employment Development Department concerning DERSE.
31. ALL DOCUMENTS relating to any COMMUNICATIONS between YOU and Cal/OSHA (also known as the Division of Occupational Safety and Health of the California Department of Industrial Relations) concerning DERSE.
32. ALL DOCUMENTS relating to any COMMUNICATIONS between YOU and the California Department of Fair Housing and Employment concerning DERSE.
33. ALL DOCUMENTS relating to any COMMUNICATIONS between YOU and the U.S. Equal Emiiployment Opportunity Commission concerning DERSE.

(Pl. Exh. A.) Plaintiff argues that these requests are overly broad and seek documents protected by plaintiff’s right to privacy.

“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.) Though defendants are correct that plaintiff does not identify himself as an “employee” of Targus, defendants do not provide clear California authority which holds that an independent contractor has no expectation of privacy in his records. (See Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1338 [this case is cited by defendants to support their argument, but it only found that independent contractors’ contact information was discoverable, and not their employment records].)

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 requested documents are relevant to plaintiff’s mitigation of damages and to whether plaintiff engaged in “competing activity” in violation of the shareholder agreement. This argument is not well taken. The subpoena is not limited to documents pertaining to plaintiff’s earnings or the nature of the work performed by plaintiff. Instead, defendants seek literally every document Targus has relating to Plaintiff, including, inter alia:

· all personnel documents related to plaintiff;
· all documents relating to communications with plaintiff;
· all documents relating to communications plaintiff with ANY third-party;
· all documents relating to the decision to hire plaintiff;
· all documents relating Targus’ background check on plaintiff;
· all documents relating to plaintiff’s leaves and work-related injuries;
· all documents relating to plaintiff’s performance evaluations;
· all documents relating to legal actions and administrative charges between plaintiff and Targus.

Defendants make no showing as to why any of this information is directly relevant. Moreover, to the extent that defendants are seeking to learn information as to how much plaintiff has been compensated by Targus or his duties there, such information could be sought by less restrictive means, such as interrogatories or requests for production propounded upon plaintiff.

Accordingly, plaintiff’s motion to quash the deposition subpoena propounded by defendants on Targus USA, Inc., is GRANTED.

Plaintiff seeks sanctions in the amount of $2,860.00 against defendants and their counsel of record. “[T]he court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2(a).) Plaintiff has indicated that he would not have opposed a more narrowly-tailored subpoena to Targus – i.e., a subpoena that would have required production of his personnel file and any agreements between plaintiff and Targus. Such a proposal would have provided defendants with relevant and material concerning plaintiff’s earnings and duties at Targus.

Defendants rejected that proposal. The Court imposes sanctions of $1460 (four hours of attorney time @ $350/hour, plus filing fee of $60), against defendants and defendants’ counsel, jointly and severally. Sanctions to be paid within 30 days.