Case Number: 19STCV16874 Hearing Date: February 20, 2020 Dept: 31

Background

On May 15, 2019, Plaintiff Edward Mayo filed the instant action against Defendant TK1SC and Does 1 through 25. On February 4, 2020, Plaintiff filed the Third Amended Complaint (“TAC”). The TAC asserts causes of action for:

Associational Discrimination on the Basis of Sex in Violation of the FEHA (Cal. Gov’t Code §§ 12940(a) and 12926(o));

Associational Discrimination on the Basis of Disability in Violation of the FEHA (Cal. Gov’t Code §§ 1240(a) and 12926(o));

Failure to Prevent Discrimination in Violation of the FEHA (Cal. Gov’t Code § 12940(k));

Failure to Provide Reasonable Accommodations in Violation of the FEHA (Gov’t Code § 12940(m));

Wrongful Termination in Violation of Public Policy;

Retaliation in Violation of the FEHA (Cal. Gov’t Code §§ 12940(h) and 12940(m)(2)); and

Failure to Indemnify (Labor Code § 2802).

Plaintiff moves to quash the deposition subpoenas for production of business records served upon TTG and KJWW, now IMEG Corp. A/P CSC; and ME Engineers Inc., Plaintiff’s former employers.

Legal Standard

California Code of Civil Procedure section 1987.1, subdivision (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.

(Code of Civ. Proc., § 1987.1(a).) There is no requirement that the motion contain a meet and confer declaration. (See Code of Civ. Proc., § 1987.1.)

“Unless otherwise limited by order of the court . . . any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved . . . 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.) “Even highly relevant, nonprivileged information may be shielded from discovery if its disclosure would impair a person’s ‘inalienable right of privacy’ provided by” Article 1, section 1 of the California Constitution. (See Britt v. Sup. Ct. (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844, 855-856.)

Regarding the right of privacy, courts must carefully balance a right of privacy against the interest in having just litigation. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 371; Valley Bank of Nevada v. Sup. Ct. (1975) 15 Cal.3d 652, 657.) If there is a serious invasion of a constitutional right to privacy, the party seeking the evidence must establish that the information sought is not only essential and directly relevant, but also that this information could not be discovered through less intrusive means. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 552; Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.)

“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.” (Id.)

Discussion

Plaintiff moves to quash the deposition subpoenas for business records served upon his former employers, TTG and KJWW, now IMEG Corp., A/P CSC; and ME Engineers Inc., A/P Frank Stefan (collectively referred to as “Plaintiff’s former employers”), on December 5, 2019.

Service of Subpoena, Meet and Confer, & Separate Statement

Code of Civil Procedure section 1985.3 provides:

Prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c). This service shall be made as follows:

(1) To the consumer personally, or at his or her last known address, or in accordance with Chapter 5 (commencing with Section 1010) of Title 14 of Part 3, or, if he or she is a party, to his or her attorney of record. If the consumer is a minor, service shall be made on the minor’s parent, guardian, conservator, or similar fiduciary, or if one of them cannot be located with reasonable diligence, then service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, and on the minor if the minor is at least 12 years of age.

(2) Not less than 10 days prior to the date for production specified in the subpoena duces tecum, plus the additional time provided by Section 1013 if service is by mail.

(3) At least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail.

(Code of Civ. Proc. § 1985.3(b).)

Plaintiff first moves to quash the instant subpoenas arguing that the subpoenas are procedurally defective because service of the subpoena was improperly served on counsel’s previous address. Plaintiff asserts that on or about October 28, 2019, Plaintiff’s counsel served and filed a Notice of Change of Address or Other Contact Information, thereby giving notice to Defendant and its attorneys of the new address for Plaintiff’s counsel. Plaintiff contends that the deposition subpoena is therefore procedurally defective and should be quashed on this ground alone.

In opposition, Defendant argues that Plaintiff’s procedural argument fails because he did not include it in the meet and confer process and was not prejudiced by the service issue. Defendant asserts that Plaintiff’s omission of the service issue in his meet and confer deprived Defendant of the opportunity to represent to Plaintiff’s counsel that it had not received the Notice of Change of Address that was allegedly mail-served on October 28, 2019. Defendant contends that had Plaintiff addressed these issues in his meet and confer, Defendant likely would have agreed to re-notice the subpoenas. Defendant argues that regardless, Plaintiff was not prejudiced by the service issue as he had adequate time to give notice of the motion to quash.

Defendant asserts that moreover, Plaintiff did not adequately meet and confer in good faith to figure out if the scope of the subpoenas could be paired down to appease his concerns. Defendant contends that instead, Plaintiff demanded that the subpoenas be withdrawn altogether. Defendant argues that Plaintiff’s failure to engage in the meet and confer process in good faith is a basis for denying the motion.

Defendant finally asserts that the motions to quash should be denied as procedurally defective since they were not supported by the required separate statement pursuant to California Rules of Court Rule 3.1345(a)(5).

In reply, Plaintiff argues that his counsel informed Defendant about Plaintiff’s counsel’s new address on December 13, 2019, just eight days after Defendant issued the subpoena. Plaintiff asserts that Defendant thus had notice that it had not properly served the subpoenas, but still failed to re-notice the subpoenas. As to Defendant’s argument that Plaintiff did not meet and confer in good faith, Plaintiff contends that his counsel commenced meet and confer efforts on December 18, 2019 by sending a detailed letter to Defendant’s counsel. Plaintiff argues that thereafter, Defendant did not offer any meaningful limitations on the scope of the request, forcing Plaintiff to file the instant motions.

The Court finds that while it is undisputed that Defendant did not properly serve the subpoenas to Plaintiff’s counsel’s correct address, Plaintiff was not prejudiced by the improper service, as evidenced by the instant motions to quash. Additionally, the Court finds that Plaintiff adequately met and conferred in good faith.

As to Defendant’s argument regarding a lack of a separate statement, the Court finds that the lack of the separate statement did not prejudice Defendant’s ability to oppose the instant motions. Plaintiff attached copies of the subpoenas to his moving papers. Plaintiff’s arguments apply to the entire lists of documents requested. This is not a case where the separate statement is necessary or even provides assistance to the Court. The Court thus finds that Plaintiff’s failure to provide a separate statement is not fatal to the instant motions.

Accordingly, the Court now turns to the merits of the motions to quash.

Employment Records

Courts have found that “personnel records and employment history are within the scope of the protection provided by the state and federal Constitutions.” (San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097; see Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 9-10; Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 530.) Because the balance between public interest in preserving confidential information in personnel records outweighs the interest of a private litigant in obtaining the information, the party seeking confidential records must demonstrate a compelling need for the records. (See San Diego Trolley, Inc., supra, 87 Cal.App.4th at 1097.)

The subpoenas issued to Plaintiff’s former employers request:

Any and all documents (including, but not limited to, any electronically stored data) referring or relating to applicant/employee/independent contractor, Edward Mayo (SSN # xxx-xx-3880; DOB 3/18/1962) (“Mayo”) dating from January 1, 2016 to present, including but not limited to:

All documents which reflect, mention, comment upon or otherwise refer to the reasons for the termination of Mayo’s employment with your company or entity,

Any and all documents which reflect, discuss, mention, comment upon or otherwise refer to any changes, complaints and/or claims (either formal or informal) made by Mayo, or against Mayo, relating to his employment with your company or entity,

All applications, resumes, cover letters and other documents submitted by (or on behalf of) Mayo to your company to obtain employment with your company or entity,

All documents that reflect, discuss, comment up on otherwise refer to any disciplinary actions, written or verbal warnings, demotions, reductions in compensation, excessive absences, and/or work performance issues for Mayo,

All documents sufficient to show Mayo’s wages, compensation, benefits, income and/or pay during Mayo’s employment, and

All documents which reflect, discuss, mention, comment upon or otherwise refer to Mayo’s job titles, duties and/or positions held, job promotions or demotions, and/or pay increases or decreases, during Mayo’s employment.

(Kangavari Decl., Exh. 1.)

Plaintiff moves to quash the subpoenas arguing that the documents requested are overbroad and thus unreasonable. Plaintiff asserts that the subpoenas seek every possible item related to Plaintiff’s employment records. Plaintiff contends that the specific categories of documents seek information that goes beyond the claims and defenses in the present matter. Plaintiff argues that the wide range of information that Defendant seeks regarding any records related to Plaintiff’s former employment is an attempt at a fishing expedition, seeking information that is outside the bounds of discovery.

As to category 2, Plaintiff asserts that while Defendant has claims that Plaintiff’s emotional state prior to commencing his employment with Defendant will allow it to explore whether his emotional distress is the product of other causes, the mere allegation of pain and suffering does not render all records pertaining to Plaintiff’s mental condition as discoverable, as such documents need to still be directly relevant to the mental condition at issue. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1015-1020.) Plaintiff contends that records from Plaintiff’s previous employers regarding charges and complaints made by Plaintiff are not directly related nor relevant to the emotional distress Plaintiff has suffered as a result of his employment with Defendant.

As to category 6, Plaintiff argues that the request for all “wages, compensation, benefits, income and/or pay” is irrelevant to the current case. Plaintiff asserts that his claim for economic damages is based on his income with Defendant had he not been retaliated against and wrongfully terminated. Plaintiff contends that his earnings in the past, prior to his employment with Defendant, is outside the bounds of permissible discovery and is an unwarranted invasion of his privacy rights.

As to the requests for documents about work performance, Plaintiff argues that reasons for Plaintiff’s termination, resumes, and the like from former employers are simply not relevant in the instant action. Plaintiff asserts that Defendant’s response to Special Interrogatory No. 6 states that “Tk1sc made the lawful decision to terminate Plaintiff’s employment because certain work projects that Plaintiff was hired to work on did not come to fruition and thus, tk1sc did not have sufficient work to maintain Plaintiff’s position as Director of Plumbing. Tk1sc did not terminate Plaintiff because of his leave requests or for his association with his pregnant wife.” Plaintiff contends that, accordingly, the documents requested are not relevant and even if they were somehow relevant, Defendant cannot show that on balance, it should be allowed to violate Plaintiff’s privacy rights to get these documents.

Plaintiff finally argues that records of his performance on other occasions are inadmissible as a matter of law on the issue of his performance with Defendant since it would constitute inadmissible character evidence.

In opposition, Defendant argues that the subpoenas are directly relevant to Defendant’s after-acquired evidence defense given Plaintiff’s intentional misrepresentation of his employment history, which may be introduced to limit the damages he seeks in connection with this litigation. Defendant asserts that documents may also bear on Plaintiff’s efforts to mitigate his damages given his December 2019 representation of having been employed by ME Engineering “from September 2016 to the present.” (Jansen Decl., Exh. D.) Defendant contends that moreover, given Plaintiff’s claim that he experienced continuing emotional distress as a result of his separation, records reflecting on “any charges, complaints and/or claims (either formal or informal) made by Mayo . . . relating to his employment with [the] company or entity” would be directly relevant to evidence bearing on Plaintiff’s emotional state prior to commencing his employment with Defendant, as well as after he left Defendant, which is necessary to explore whether Plaintiff’s emotional distress is the product of other causes. As to records reflecting Plaintiff’s qualifications or ability to perform other work and work performance in other positions, Defendant argues that such documents are relevant to a rebuttal of Plaintiff’s allegation that he was qualified to perform other work that was available with Defendant. (TAC ¶ 19.)

Defendant also asserts that Plaintiff has waived his right to privacy over the requested documents. Defendant contends that Plaintiff waived his privacy rights over employment records given that he authorized Defendant to “any and all information concerning [his] previous employment” as part of his job application process. Defendant argues that Plaintiff has thus already consented to this privacy intrusion but explicitly, as part of the job application process, and implicitly, given his allegations of being available for other work and his effort to recover lost income and emotional distress damages.

Defendant finally asserts that such records cannot be discovered through less intrusive means because Plaintiff has failed to produce the requested information in discovery and has proved in his deposition that he could not be a trusted source to seek such discovery. Defendant contends that such discovery was sought by way of document demands, which Plaintiff agreed to produce records in response to, but never did or did not do so completely. Defendant argues that additionally, Plaintiff conceded at deposition that he intentionally submitted fraudulent resumes and job application information to prospective employers because he wanted to better his chances of finding a new job. (Jansen Decl., Exh. D.) Defendant asserts that Plaintiff’s deposition testimony thus cannot be relied upon to discover his employment history and other information related to his damages claims in this lawsuit.

In reply, Plaintiff asserts that Defendant has failed to explain how Plaintiff’s entire personnel record from his former employer is directly relevant to his defenses. Plaintiff contends that while Defendant has referenced Plaintiff’s deposition transcript and exhibits reference therein to claim that Plaintiff committed “resume fraud,” Defendant, at the same time, contends that records from Plaintiff’s former employer are necessary to support its affirmative defenses. Plaintiff argues that Defendant has failed to argue why it cannot asserts its defenses without conducting an unnecessary fishing expedition and intrusive attack on Plaintiff’s right to privacy.

As to category 2, Plaintiff argues that any connection between the documents requested and Plaintiff’s emotional distress and efforts to mitigate damages is extremely attenuated. Plaintiff asserts that even if such documents exist, about which Defendant is only speculating, Defendant must still show that Plaintiff experienced emotional distress as a result of his prior employment. Plaintiff contends that Defendant has therefore failed to show that the requested documents are directly relevant.

Plaintiff argues that Defendant has also failed to address why it needs records pertaining to Plaintiff’s performance at his former employers, especially when Plaintiff’s performance is not at issue in this case. Plaintiff asserts that while Defendant claims that these documents will relate to Plaintiff’s qualification for other positions with Defendant, the issues in dispute are the conduct and events that occurred solely during Plaintiff’s employment with Defendant, not at his former employment. Plaintiff contends that, moreover, because Defendant is claiming that Plaintiff was laid off for lack of work, and the fact that Defendant has not specified that there were other jobs that it would have offered Plaintiff, it is perplexing why records from his former employer would be directly relevant or essential to this case.

Finally, as to Defendant’s argument that Plaintiff has waived his right to privacy because he authorized Defendant, at the time he submitted his job application, to obtain information regarding his previous employment and because Plaintiff told Defendant that he was open to performing other work, Plaintiff argues that Defendant has not provided any legal authority to support any of its contentions.

The Court finds that Defendant, as the party seeking discovery of constitutionally protected information, has failed to establish the direct relevance of the records sought. Defendant has not shown that the information sought is essential to the claims and defenses in this action, as Defendant has asserted that Plaintiff was terminated as a result of a reduction in work force. Accordingly, Defendant has failed to show the direct relevance of Plaintiff’s employment records with his former employers, as Plaintiff’s performance is not at issue here. Moreover, Defendant has failed to show the direct relevance of the information sought purportedly related to Plaintiff’s emotional distress damages and efforts to mitigate. At best, Defendant has made a showing that the information sought may potentially be relevant to the issue of emotional distress damages and mitigation. However, as noted above, mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.

The Court finds that the requests are overbroad and that the information sought can be obtained through less intrusive means. While Defendant argues that Plaintiff has blocked Defendant’s attempts to obtain discovery, any of Plaintiff’s purported discovery abuses do not waive his constitutionally protected right to privacy in his employment records. Moreover, with regard to the two specific discovery requests cited by Defendant, if Defendant is dissatisfied with Plaintiff’s response, the correct method for obtaining such discovery would be to file a motion to compel further responses rather than issuing an overly broad subpoena to Plaintiff’s former employers. Accordingly, Defendant has access to the same relevant information it seeks here.

Based on the foregoing, Plaintiff’s motions to quash deposition subpoena for production of business records are GRANTED.

Monetary Sanctions

Under Code of Civil Procedure section 1987.2(a), “the 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.”

Plaintiff seeks sanctions against Defendant in the amount of $3,420.00 consisting of 3 hours spent preparing the moving papers, an anticipated 6 hours spent reviewing the oppositions and preparing reply briefs, and 3 hours spent traveling to and appearing at the hearing billed at a rate of $275 per hour, plus the $120 in filing fees.

The Court finds that Defendant’s opposition was filed without substantial justification and that Plaintiff is entitled to an award of monetary sanctions. Still, the Court finds that the amount sought is excessive and therefore unreasonable. Plaintiff’s moving papers and replies set forth the same arguments. Moreover, Plaintiff will only be required to attend one hearing, as the motions are scheduled to be heard at the same time. The Court thus awards reduced sanctions in the amount of $1,495.00 consisting of 2 hours spent preparing the moving papers, 2 hours spent preparing the replies, and 1 hour spent appearing at the hearing billed at a rate of $275 per hour, plus the $120 in filing fees.

Conclusion

Plaintiff’s motions to quash deposition subpoena for production of business records are GRANTED. Defendant is ordered to pay monetary sanctions to Plaintiff in the amount of $1,495.00 within thirty (30) days.

Moving party to give notice.