2016-00199026-CU-OE

Dene Starks vs. Nationwide Mutual Insurance

Nature of Proceeding: Motion to Quash Deposition Subpoena

Filed By: Workman, Robin G.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the specific subpoenas that will be addressed at the hearing. Counsel are also reminded that pursuant to local court rules, only limited oral argument is permitted on law and motion matters. ***

Plaintiff Dene Starks’ motion to quash deposition subpoenas is ruled upon as follows.

This is a putative class action for race and sex discrimination, failure to prevent and various violation of the Labor Code, including failure to pay overtime.

Defendant Nationwide Mutual Insurance Co. served subpoenas which can be split into

two categories:

1. Teaching Position(s): subpoenas to the Davis School of Realty (“DSR”) and Superior School of Real Estate (“SSRE”);
2. Educational/Student Positions: subpoenas to Grand Canyon University (“GCU”) and The University of Phoenix (“UOP”).

Teaching Position(s) Subpoenas

The subpoenas to the Davis School of Realty and Superior School of Real Estate each sought:

1. Personnel or employment file of Dene Starks, including but not limited to wage statements, schedules, and time sheets.

2. Schedules of classes taught by Dene Starks at DSR/SSRE.

3. Any documents or communications reflecting the time actually spent or expected to be spent by Dene Starks for work performed for DSR/SSRE.

4. Any documents or communications reflecting weekly and/or daily time spent by Dene Starks for work performed for DSR/SSRE.

Plaintiff does not move to quash the entirety of the subpoena. Rather, she moves to quash item # 1, her entire personnel or employment file on the ground that it invades her right to privacy, and is overbroad. Therefore, the Court construes the motion as one to modify the subpoena by striking item #1.

Defendant insists that the subpoenas are narrowly tailored and seek records directly relevant to her claims for overtime and failure to promote. Plaintiff worked at DSR/SSRE while she was also employed with Defendant. She testified that she worked at least four to five hours of overtime during the workweek. According to Defendant, her entire personnel file may dispute her claim of overtime and will tend to show how much time she spent on these other activities. Moreover, Plaintiff claims that after she was denied promotions, she attempted to make herself more qualified by pursing education activities, teaching and performing volunteer work. Defendant advances that her personnel records will show the courses she taught to make herself more qualified. Defendant also contends that Plaintiff waived her right to privacy in her personnel files by filing the action and that the subpoenas “do not seek highly sensitive information such as Plaintiff’s medical records or sexual history” or her “tax, financial, or medical information.” (Opposition, 9:25-26; 11:7-8.) And, that her privacy concerns may be alleviated by protective order.

The Court disagrees with Defendant that item #1 requesting her entire personnel record is narrowly tailored and/or directly relevant, or that Plaintiff waived all her right to privacy by filing the action. Although some portions of Plaintiff’s personnel file might be relevant to the issues identified above which are relevant and discoverable, the unqualified request for the complete personnel file is unnecessarily broad and

unjustified in light of the private nature of the information typically contained therein.

The motion to modify the subpoena and remove #1 is GRANTED.

Educational/Student Positions

The subpoenas to the Grand Canyon University and The University of Phoenix each sought:

1. Student file of Dene Starks, reflecting her registration for enrollment of classes with GCU/UOP and extracurricular activities, from the period of January 1, 2006, to the present.

2. Schedules of courses attended by Dene Starks at GCU/UOP from August 17, 2012 through April 22, 2016.
3. Syllabus and description of each course taken by Dene Starks at GCU/UOP from August 17, 2012 through April 22, 2016.
4. Any documents or communications reflecting the time actually spent or expected to be spent by Dene Starks for coursework or extracurricular activities at GCU/UOP from August 17, 2012 through April 22, 2016.
5. Any documents or communications reflecting weekly and/or daily time spent by Dene Starks, including sign-in sheets, attendance records, or roll call records, at GCU/UOP from August 17, 2012 through April 22, 2016.

The Court again construes the motion as one to modify the subpoena by striking item #1 since Plaintiff only moves to quash item # 1, her entire student file. Plaintiff moves to modify on the ground that under the Family Educational Rights and Privacy Act of 1974 (“FERPA”), student files are entitled to “heightened protection.” Plaintiff, however, provides no explanation of what the “heightened protection is,” or how it is applied. She further objects that the information in the student file may include her tax and personal financial information, medical records, membership in associations which are all protected by the right to privacy and right to association/personal association.

Defendant claims that student records are not subject to heightened protection, and that Plaintiff has not sufficiently demonstrated that FERPA prohibits the disclosure of her student records. Defendant insists that the subpoenas are narrowly tailored and seek records directly relevant to her claims for overtime and failure to promote.

Plaintiff attended GSU and UOP while she was also employed with Defendant. She testified that she worked at least four to five hours of overtime during the workweek. According to Defendant, her entire student file may dispute her claim of overtime and will tend to show how much time she spent on these other activities. Moreover, Plaintiff claims that after she was denied promotions, she attempted to make herself more qualified by pursing education activities, teaching and performing volunteer work. Defendant advances that her entire student file is directly relevant to Plaintiff’s qualifications and will show the courses she took to make herself more qualified. Lastly, Defendant contends that Plaintiff waived her right to privacy by filing the action,

has already disclosed the affiliations to which she belonged, and, that her privacy concerns may be alleviated by protective order.

The Court agrees with Defendant only in relation to the heightened standard argument. “FERPA does not actually prohibit the release of education records. Rather, FERPA conditions the availability of federal funds on conformance with its provisions.” (Rim of the World Unified School Dist. v. Superior Court (2002) 104 Cal.App.4th 1393, 1398; 20 U.S.C. § 1232g.) Moreover, although FERPA conditions federal funding on an educational institution’s disclosure/right to inspect policies, FERPA funding is not withheld where the student file “is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency.” (20 USCS §1232g(b)(2)(B).)

According to Defendant, since no “heightened standard” applies, the Court should use standard set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1. (See Lachtman v. Regents of University of California (2007) 158 Cal.App.4th 187, 213 [applying the Hill test to student records].) Under Hill, a plaintiff alleging a violation of a privacy interest under the California Constitution must establish (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) conduct by the defendant constituting a serious invasion of that privacy interest. (Hill at 39-40.) “A defendant challenging the privacy claim may do so either by negating one of the three elements or by proving the invasion of privacy is justified ‘because it substantively furthers one or more countervailing interests.’ If the defendant establishes that defense, the plaintiff may rebut it by ‘showing there are feasible and effective alternatives to defendant’s conduct which have a lesser impact on privacy interests.'” ( Lachtman v. Regents of University of California (2007) 158 Cal.App.4th 187, 213 [internal citations omitted].)

Here, as phrased, the subpoenas are overboard and includes private medical and financial information that has no relevance whatsoever to this action. Additionally, item nos. 2-5 will show her course work and time spent at the schools. The Court disagrees with Defendant that Plaintiff waived her right to privacy due to her filing the action, but agrees with Defendant that since she has already disclosed the affiliations to which she belonged, her associational objection is waived.

On balance, however, the Court concludes that the request for her entire student file is unnecessarily broad and unjustified in light of the private nature of the information most likely contained in the file.

Therefore, the motion to quash item #1 is GRANTED.

Plaintiff’s request for sanctions is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.