2017-00215268-CU-OE

Ericka Allen vs. Blue Diamond Growers

Nature of Proceeding: Motion to Compel Production and Joinder filed by Hanchett, Mendiola,

Filed By: Martinez, Jennifer M.

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

Defendant Blue Diamond Grower’s (“Blue Diamond”) motion to compel further responses to request for production of documents (set one) from Plaintiff Ericka Allen is ruled upon as follows.

Defendants Michael Hanchett, Konane Mendiola and Mike Silcox’s joinder is DROPPED. Pursuant to Local Rule 2.09, a party desiring to join another party’s motion must comply with all procedural requirements for the filing of motions, including proper notice. Here, the joinder was served via email on January 9, 2018. This provided only 11 court days’ notice prior to the hearing. Defective service deprives the

court of jurisdiction to act. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.)

This is an employment action. Plaintiff began her employment with Blue Diamond in July 2008. Her current position is Shipping Clerk II. Plaintiff alleges that throughout her employment with Blue Diamond, she has been subjected to “a continuing barrage of: horrendously offensive and sexist comments; repeated touching, grabbing, and groping of her intimate parts, including, her buttocks, breast and groin; sexual assaults and batteries; and, “non-sexual” assaults and batteries.” (Complaint, ¶ 2.) Plaintiff asserts causes of action for: (1) Sexual Harassment, (2) Discrimination, (3) Failure to Take all Reasonable Steps to Prevent Harassment and Discrimination. (4) Retaliation,

(5) Sexual Battery, (6) Assault, (7) Battery, (8) Intentional Infliction of Emotional Distress, and (9) Unfair Business Practices in Violation of California Business & Professions Code § § 17200-17208.

The parties entered into a stipulated protective order on 11/21/2017.

Plaintiff’s request for judicial notice is granted.

RFP Nos. 5-11:

Plaintiff moves to compel further responses to these RFPs and to produce documents electronically, in the form they are kept in the ordinary course of business.

1. Further Responses

These requests seek all communications between Plaintiff and any person other than her attorneys “concerning the subject matter of the complaint, including all facts related to any of the claims and allegations contained in the complaint.”

Plaintiff objected on various grounds, including that the requests seek information protected by her own right to privacy, as well as third-parties’ right to privacy. Plaintiff agreed to produce all relevant and non-privileged documents, but narrowed the production to only those communications with former or current Blue Diamond employees. Plaintiff refused to produce communications, including text messages, with individuals who are not parties to the lawsuit on the grounds of her right to privacy and third-parties’ right to privacy. Plaintiff suggested the use of special master to go through all of the text messages with third parties, but at Blue Diamond’s own cost.

It is well-established in California that where privacy rights are involved, the party seeking discovery must show far more than mere legal relevance or likely to lead to admissible evidence. He/she must establish that the information sought is not only “directly relevant” to the parties’ claims but also “essential” to a fair resolution of the lawsuit. (See, e.g., Alch v. Superior Court (Time Warner Entertainment Co.) (2008) 165 Cal.App.4th 1412, 1432-1433.) Additionally, in order to pass constitutional scrutiny, any discovery into matters deemed private must be “narrowly tailored” to

obtain only the “essential” information and the party seeking discovery must show there is no less intrusive means to obtain this information. (See, e.g., Tien v. Superior Court (Tenet Healthcare Corp.) (2006) 139 Cal.App.4th 528, 539-540; In re Marriage of Harris (2004) 34 Cal.4th 210, 244.) Even where these prerequisites are met, there is still no categorical right to conduct discovery on private matters as the trial court is still required to carefully balance the rights and interests involved before permitting the proposed invasion of privacy. (See, e.g., Alch, at 1423-1425.)

Blue Diamond advances that the requested documents are directly relevant to Plaintiff’s causes of action and its defenses in this matter. Thus, there is good cause for the document production. According to Blue Diamond,

The statements that Plaintiff has made to other persons about the very subject matter of this case are relevant on their face. Similarly, the statements that Plaintiff has made regarding her work environment, or the personalities therein, are directly relevant as well. Because such statements are contemporaneous events and are made to persons Plaintiff presumably considers confidants, such statements provide one of the most accurate sources of information on Plaintiff’s feelings regarding the individual defendants, any of her supervisors, or events that she alleges occurred in this case.

(Motion, 8:4-12.) Moreover, her statements to others or social media regarding her claims, such as harassment, can show whether she actually found the conduct to be unwelcome, hostile or offensive. (Motion, 9:6-10.) They can also be used to evaluate Plaintiff’s credibility, the case, prepare for trial and facilitate settlement. (Motion, 9:13-16.) Blue Diamond further claims that “such communications are not available to or discoverable by Defendant from any source other than Plaintiff.” (Separate Statement, 11:16-18.)

The Court partially agrees with Blue Diamond that there may be some text messages that are directly relevant and essential to the fair resolution of the lawsuit. The Court, however, envisions scenarios where Plaintiff sends a text message to a third party which initially concerns the subject matter of the complaint, but within the text message thread, Plaintiff raises other private matters that are not related to the complaint. Likewise, the third party’s text messages with Plaintiff may also implicate that third party’s right to privacy which is not directly relevant or essential to the fair resolution of the lawsuit. These privacy concerns may be alleviated by appropriate redactions for only those texts that Plaintiff claims are protected by her own right to privacy (and outside the scope of the complaint), and/or the third party’s right to privacy.

The motion to compel further responses is GRANTED. Plaintiff shall produce responsive, non-privileged text messages between herself and third parties. Plaintiff may redact those text messages that are protected by her own right to privacy (and outside the scope of the complaint), and/or the third party’s right to privacy. Plaintiff

must also produce a privilege log identifying those texts messages that she has redacted based on privacy or privilege. The Court recognizes that some text messages may no longer identify a date or time. Plaintiff shall make reasonable efforts to identify the date and time. Plaintiff shall serve further responses by no later than February 9, 2018. Plaintiff shall serve the privilege log by no later than February 23, 2018.

The Court declines to appoint a discovery referee as it is not convinced one is appropriate at this time. (CCP §639.)

2. Production of Text Messages

Blue Diamond next takes issue with the manner in which Plaintiff produced the text messages between herself and former/current Blue Diamond employees. Blue Diamond contends that the produced text messages are “in complete disorder and required several hours of Defendant’s time organizing the documents.” (Motion, 9:10-12.) Additionally, the text messages are produced in duplicate, not produced in sequence, some are not time or date stamped, some do not identify the name or phone number of the person with whom she is communicating, and Plaintiff failed to produce the full conversations. (Motion, 9:18-21.)

Blue Diamond requests an order from the Court that Plaintiff produce documents electronically, in the form they are kept in the ordinary course of business.

Plaintiff explains that she has had five different cell phones because she breaks them and replaces it with another. She has had her current cell phone since January 2017, and only has some of the other cell phones. She produced the messages to her counsel by taking screen shots of the text messages and then emailed them to her counsel as photographs. Plaintiff’s counsel then converted the images to PDF format and compiled them into one single document. The photographs were produced in the manner in which Plaintiff emailed them to counsel, she did not rearrange them or intentionally produce them out of order. She did not fail to produce full conversations or remove text messages to make the conversations incomplete. (Opposition, 3:5-28, Plaintiff’s Declaration, ¶¶ 4-10.) Plaintiff’s counsel also states that Blue Diamond never requested Electronically Stored Information and never met and conferred regarding the issue.

Blue Diamond argues in reply that it raised the issue with Plaintiff’s counsel at the deposition of Nathan Cox. Blue Diamond’s counsel proffers no declaration or evidence to support its assertion. In any event, the Court is not persuaded that Plaintiff must produce the text messages in a different form. First, Plaintiff did produce the documents electronically, by serving them via email in PDF form. Blue Diamond has not specified the manner in which the text messages should be produced electronically, and the Court is uncertain as to how electronic production would be accomplished for text messages. Second, Plaintiff is not a business, thus, it is unclear

how she is to produce the text messages in the form they are kept in the ordinary course of business. The motion to compel production is DENIED.

To the extent there are text messages that do not identify the name or phone number of the person with whom Plaintiff is communicating, there are other alternative forms of discovery (such as interrogatories) by which Blue Diamond may be able to obtain the information.

RFP Nos. 12-13:

These requests seek all social media posts made by Plaintiff, her representatives, agents or anyone acting on her behalf or under her authority concerning: (1) the subject matter of the complaint and any facts related to any of the claims and allegations in the complaint, and (2) her employment with Blue Diamond.

Plaintiff objected on various grounds, including that the requests seek information protected by her own right to privacy, as well as third-parties’ right to privacy. Plaintiff responded that she “would not produce any documents to this request as a compilation of social media posts spanning an unidentified time span is unduly overbroad and burdensome. Moreover the requested documents are equally in the possession of propounding party.” Plaintiff suggested that Plaintiff would hire an individual to download Facebook posts and provide them to Blue Diamond, at Blue Diamond’s cost.

In her opposition, Plaintiff states that she has never denied Defendant the right to Plaintiff’s public Facebook posts. She also agrees that the content of her social media posts may be relevant and discoverable to harassment cases and her emotional state. Plaintiff proposes that a special master be appointed to oversee production and conduct an in camera review prior to production.

The motion to compel further responses is GRANTED. Courts have recognized that social networking site content is “neither privileged nor protected by any right to privacy.” (Mailhiot v. Home Depot, U.S.A., Inc. (C.D. Cal. 2012) 285 F.R.D.

566.) California Courts have held, for example, that information posted on MySpace was not entitled to privacy protection since it was available to any person with a computer even if the person posting expected a limited audience. (Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1130.)

Plaintiff shall serve further responses by no later than February 9, 2018.

The Court declines to appoint a discovery referee as it is not convinced one is appropriate at this time. (CCP §639.)

RFP Nos. 27-28:

Plaintiff indicates that she has produced all documents responsive to this request. Defendant withdraws its motion as to these requests expressly conditioned on Plaintiff’s representation. Thus, the Court need not rule on this dispute.

Both parties’ requests for sanctions are DENIED.

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