Case Name: Phills v. The Board of Trustees of the Leland Stanford Junior University

Case No.: 1-14-CV-263146

Motion of Plaintiff James Phills, Jr. to Compel Further Responses to Requests for Production of Documents from Defendant The Board of Trustees of the Leland Stanford Junior University, and for Monetary Sanctions

Factual Background

This is an employment discrimination and wrongful termination case. In 2000, Plaintiff and Deborah Gruenfeld, who were married at the time, both went to work at the Stanford Graduate School of Business. In June of 2012, Plaintiff and Ms. Gruenfeld separated. Around the same time, Ms. Gruenfeld became romantically involved with Defendant Garth Saloner, the Dean of Stanford’s Graduate School of Business. Plaintiff thereafter went on an unpaid leave of absence from his faculty position. Pursuant to Stanford’s university rules, Plaintiff was required to return or resign by December 1, 2012. In October of 2012, Plaintiff began negotiating his return to Stanford. During this time, although they were separated, Plaintiff had access to Ms. Gruenfeld’s Facebook account and Stanford email account. Through these accounts, Plaintiff learned that his wife was engaged in a sexual relationship with Defendant Saloner. According to Defendant Saloner, he recused himself from any employment decisions concerning Plaintiff in October of 2012. Ultimately, Stanford terminated Plaintiff’s employment.

On April 2, 2014, Plaintiff instituted this action against Defendants, asserting causes of action for employment discrimination, harassment, retaliation, wrongful termination, interference with contract, and infliction of emotional distress.

Discovery Dispute

On December 10, 2014, Plaintiff served Stanford with Request for Production of Documents (“RPD”), Set One. (Lough Decl., Ex. C.) As to the requests at issue here, Plaintiff sought, among other things, documents relating to the assignment of faculty to programs that Plaintiff had previously run (RPD No. 9), documents relating to Dean Saloner’s reappointment as the Dean of the Graduate School of Business (RPD No. 10), communications between Dean Saloner and Plaintiff’s wife that mention Plaintiff (RPD No. 11), documents pertaining to the commencement of a romantic or sexual relationship between Dean Saloner and Plaitniff’s wife that pre-dated Dean Saloner’s recusal from employment matters concerning Plaintiff (RPD No. 15), communications between Dean Saloner and Plaintiff’s wife concerning Plaintiff’s divorce (RPD No. 19), and documents pertaining to the appointment of Madhav Rajan as a senior associate dean of the Stanford Graduate School of Business (RPD No. 29).

Stanford served responses to the RPD on January 30, 2015. (Id., Ex. E.) Stanford objected to the above referenced requests on various grounds but, common to all of the above requests, Stanford objected on the grounds of relevance and privacy. (Id.)

On March 12, 2015, Plaintiff’s counsel wrote to Stanford’s counsel, seeking a privilege log identifying the documents being withheld. (Id., Ex. H.) Plaintiff’s counsel also set forth his position as to why the information sought is relevant and otherwise subject to disclosure. (Id.)

On March 27, 2015, Stanford’s counsel responded to Plaintiff’s counsel’s meet and confer letter and served Plaintiff with amended responses to the RPD. In the meet and confer letter, Stanford’s counsel stated that amended responses were being provided and that a privilege log would be produced. (Id., Ex. I.) However, as to RPD Nos. 9-11, 15, 19, and 29, counsel for Stanford reiterated that the information sought was protected from disclosure by the right of privacy. (Id.)

On April 8, 2015, Plaintiff’s counsel requested an extension of time to file a motion to compel further response, to which counsel for Stanford acquiesced. (Id., Ex. J.) On the same day, Stanford served Plaintiff with the requested privilege log. (Id., Ex. K.)

On April 22, 2015, Plaintiff’s counsel sent an email to counsel for Stanford, requesting counsel’s availability for a motion to compel hearing. (Declaration of Linda Moroney In Support of Stanford’s Opp. to Pl.’s Mot. to Compel (“Moroney Decl.”), ¶ 11.) Counsel for Stanford encouraged Plaintiff’s counsel to further meet and confer if Plaintiff took issue with the amended responses. (Id.)

On April 23, 2015, without any additional meet and confer efforts, Plaintiff filed this motion seeking further responses to RPD Nos. 9-11, 15, 19, and 29. Stanford filed opposition on May 14, 2015, andPlaintiff filed his reply brief on May 20, 2015. Both parties seek the imposition of monetary sanctions in connection with the discovery dispute.

Discussion

A. Legal Standard

Upon receipt of a response to requests for the production of documents, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply:

1. A statement of compliance with the demand is incomplete.
2. A representation of inability to comply is inadequate, incomplete, or evasive.
3. An objection in the response is without merit or too general.

(Code Civ. Proc., § 2031.310, subd. (a)(1) – (3).) The motion for an order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.)

To establish good cause, the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Super. Ct. (1997) 53 Cal.4th 1113, 1117.) Once the moving party establishes good cause, the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

B. Analysis

The requests at issue in this case seek three categories of information: documents concerning programs that Plaintiff had previously taught and was later excluded from teaching (RPD No. 9); communications between Defendant Saloner and Plaintiff’s wife referencing Plaintiff (RPD Nos. 11, 15, and 19); and documents relating to the appointment of Defendant Saloner and Madhav Rajan as deans of the business school (RPD Nos. 10 and 29). Each category of requests is discussed below.

1. Meet and Confer

Stanford asserts that Plaintiff’s counsel did not meet and confer as to the adequacy of the amended responses and that Plaintiff’s motion should be denied on that basis. This contention is not well taken.

A motion to compel further responses to document requests must be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2031.310, subd. (a)(2), 2016.040.) “Although some effort is required in all instances [citation], the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293-1294.)

Here, Plaintiff does not dispute that, after the amended responses were served, no further meet and confer efforts were made. According to Plaintiff, any further efforts would have been futile given that Stanford has continually stood on its privacy objections and indicated that it did not intend to produce additional documents that it deemed to be protected by the right of privacy. Plaintiff’s action in filing the motion was reasonable and the initial efforts were sufficient for the purpose of satisfying Code of Civil Procedure section 2031.310, subdivision (a)(2).

2. RPD No. 9

RPD No. 9 seeks documents relating to “the assignment of faculty to executive education programs during the period of January 2011 to the present.” (Stanford’s Separate Statement, p. 2.) Stanford objected on the grounds of relevance, overbreadth, vagueness, undue burden, the attorney-client privilege, and privacy.

Concerning good cause, Plaintiff asserts that these documents are relevant because he taught in the executive education program for many years and he believes that he was removed as director of the executive education programs and replaced by less qualified faculty advisors for discriminatory reasons. Stanford, on the other handm claims that the information sought is not relevant because the University does not assign faculty members to executive education programs. According to Stanford, the Graduate School of Business merely permits faculty members to develop stand-alone programs and seminars on specialized topics for members of the business community. (Id., p. 4.)

Stanford’s argument misconstrues the relevance analysis. If Stanford’s assertion about the assignment of faculty members was correct, the proper code-compliant response would be that Stanford was unable to comply with the request because no documents exist concerning the “assignment” of faculty members to the executive education program. Stanford’s assertion, however, does not render the documents sought by the demand irrelevant. Moreover, Stanford has produced a privilege log indicating that documents responsive to RPD No. 9 have been withheld on the basis of privacy, which belies Stanford’s contention that Plaintiff “has requested documents related to an “assignment” that does not exist.” (Id.) Ultimately, because the documents sought by the request are related to Plaintiff’s discrimination claim, Plaintiff has demonstrated good cause for the discovery. The burden therefore shifts to Stanford to justify its objections.

Stanford objected to RPD No. 9 on the grounds of relevance, overbreadth, ambiguity, undue burden, the attorney-client privilege, and privacy. As stated above, Stanford’s relevance argument is without merit, and the relevance objection is therefore overruled. As to the remaining objections, Stanford only attempts to justify its objections on the grounds of overbreadth, ambiguity, and privacy. The remaining objections are therefore overruled, with the exception of the attorney-client privilege, which is preserved. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221 [responding party bears the burden of justifying objections]; see also, Best Products, Inc. v. Super. Ct. (2004) 119 Cal.App.4th 1181, 1188-1189 [holding that, where a defendant asserted the attorney-client privilege in a timely manner, albeit in a boilerplate fashion, the trial court erred in finding a waiver of the privilege].)

As to overbreadth, Stanford claims that RPD No. 9 is overly broad as to time. According to Stanford, Plaintiff has asserted that the relationship between Defendant Saloner and Plaintiff’s wife began in June of 2012. Based on that date, Stanford claims that any information concerning the appointment of faculty that took place prior to that date is irrelevant. Stanford’s argument does not accurately reflect Plaintiff’s allegations. Plaintiff alleges that Defendant Saloner’s interest in Plaintiff’s wife dates back to around 2008 or 2009. The overbreadth objection is therefore overruled.

As to the objection on the ground of ambiguity, Stanford’s argument is essentially the same as its relevance argument. In other words, Stanford argues that, because there is no “assignment” of faculty members to executive education programs, the request is ambiguous. To justify an objection on the basis of vagueness or ambiguity, the responding party must demonstrate that the request at issue is totally unintelligible. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) Stanford has not made such a showing. Moreover, Stanford has produced a privilege log stating that documents responsive to the request have been withheld, confirming that Stanford does understand what is being sought by the request. The objection is therefore overruled.

As to its privacy objection, Stanford asserts that its current and former employees have a constitutional right to maintain the privacy of their personnel records. Stanford is correct that personnel files of employees of a university have been found to be private within the meaning of article 1 of the California Constitution. (See Board of Trustees v. Super. Ct. (1981) 119 Cal.App.3d 516, 528.) The right of privacy, however, is not absolute, and where privacy rights are implicated, the court must “carefully balance” the right of privacy and the right of civil litigants to discover relevant facts. (Valley Bank of Nevada v. Super. Ct. (1975) 15 Cal.3d 652, 657.)

To obtain private information, the party seeking discovery must show that the discovery sought is “directly relevant” to a particular cause of action or defense. (Britt v. Super. Ct. (1978) 20 Cal.3d 844, 859-862.) Direct relevance is a higher standard than the “relevancy to the subject matter” standard generally applicable to discovery requests. (Id., at p. 859.) According to the California Supreme Court, direct relevance means that the discovery sought is essential to the fair resolution of a matter in dispute. (Id.) If direct relevance is shown, the court must then balance the right of privacy, on the one hand, and the right of civil litigants to discover relevant facts, on the other. (Valley Bank, supra, 15 Cal.3d at p. 657.)

Plaintiff has demonstrated direct relevance. Plaintiff’s Complaint alleges that Stanford and Defendant Saloner violated the California Fair Employment and Housing Act (“FEHA”) by unlawfully discriminating and retaliating against Plaintiff. As part of those claims, Plaintiff alleges that he was removed as director of the executive education programs and replaced by less qualified faculty advisors. RPD No. 9 seeks documents indicating who was appointed to serve as faculty director of which executive education program and how these decisions were reached. As Plaintiff points out, these documents will provide evidence as to whether similarly situated employees were treated more favorably than Plaintiff. Such evidence is directly relevant to the issue of whether Stanford took the allegedly illegal employment actions with discriminatory intent. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 [setting forth elements of an FEHA claim, which include discriminatory motive].) The information sought by RPD No. 9 is directly relevant to Plaintiff’s claims under the FEHA.

Turning to the balance between the right of privacy, on the one hand, and the right of civil litigants to discover relevant facts, on the other, the balance tips in favor of disclosure in this case. Plaintiff alleges discrimination on the basis of protected status. The courts have recognized that the elimination of such discrimination is one of the country’s “highest priorit[ies].” (Scharf v. Regents of University of California (1991) 234 Cal.App.3d 1393, 1409-1410.) On the other hand, in opposition to Plaintiff’s motion, Stanford focuses its argument on whether the documents are directly relevant. It does not show, however, how the disclosure of such information would be harmful to its employees or how that harm outweighs Plaintiff’s interest in obtaining the information. In the absence of such information, and in light of Plaintiff’s explanation as to why the information is necessary, Plaintiff’s interest in disclosure outweighs the right of privacy asserted by Stanford. Plaintiff’s motion to compel further responses to RPD No. 9 is therefore GRANTED.

3. RPD Nos. 10 and 29

RPD No. 10 seeks “any and all documents relating to the reappointment of Garth Saloner as Dean of the Graduate School of Business” and RPD No. 29 seeks “all documents pertaining to the appointment of Madhav Rajan as a Senior Associate Dean of the Stanford Graduate School of Business.” (Stanford’s Separate Statement, pp. 7, 27.)

Concerning good cause, Plaintiff asserts that the documents relating to Defendant Saloner’s reappointment would answer the question of whether Stanford ratified Saloner’s wrongful conduct. As to RPD No. 29, Plaintiff asserts that Associate Dean Rajan “could have” been used “as a tool to violate Plaintiff’s FEHA rights.” (Stanford’s Separate Statement, p. 28.) Given the allegations of Plaintiff’s Complaint and the timing of the appointments, the information sought by the requests is relevant to the subject matter of this litigation. Plaintiff has carried his burden of demonstrating good cause.

Stanford objected to RPD Nos. 10 and 29 on the grounds of relevance, vagueness, overbreadth, undue burden, privacy, and the attorney-client privilege. For the reasons stated above, the relevance objection is therefore overruled. Turning to the remaining objections, Stanford contends that the requests require the production of academic peer review materials, which are covered by the right of privacy. This assertion is correct. (Pomona College v. Super. Ct. (1996) 45 Cal.App.4th 1716, 1726 [“The identities of [the candidate’s] peer reviewers and teir candid views and opinions expressed during the tenure review process are protected by the constitutional right to privacy.”].)

In his reply brief, Plaintiff indicates that, as he is not challenging Defendant Saloner’s or Mr. Rajan’s teaching ability, he is not seeking any peer review materials. (Reply, p. 9.) “Instead, Plaintiff seeks documents that arise from their administrative appointments as Deans . . . e.g., who hired, how the hiring decision was made, and what complaints were made against the supervisor.” (Id.) The problem with Plaintiff’s argument is that his assertion of what documents he is seeking is much narrower than the documents encompassed by the language of the requests. The language of the requests clearly encompasses peer review materials. Plaintiff’s assertion that he is not seeking such materials essentially demonstrates that the requests are overly broad. Stanford’s objections to the requests on the ground of overbreadth are therefore sustained and Plaintiff’s motion to compel further responses to RPD Nos. 10 and 29 is DENIED.

4. RPD Nos. 11, 15, and 19

RPD Nos. 11, 15, and 19 seek communications between Plaintiff’s wife and Defendant Saloner concerning Plaintiff. More specifically, RPD No. 11 seeks communications “which mention, touch on, ore relate in any way to Plaintiff.” RPD No. 15 seeks documents “pertaining to the commencement of a romantic and/or sexual relationship between Garth Saloner and Deborah Gruenfeld that pre-date his formal recusal, if any, from matters involving Professor Phills.” RPD No. 19 seeks communications “concerning the financial and the strategic aspects of Deborah Gruenfeld’s divorce from Plaintiff.”

The court (Hon. McGowen) recently ruled on Plaintiff’s motion to compel his wife to produce documents responsive to a deposition subpoena, that requests similar to RPD Nos. 11 and 15 sought relevant information, requiring protection of the documents requested. In the requests at issue in that motion, Plaintiff sought, among other things, communications between Ms. Gruenfeld and Stanford officials relating to Plaintiff or Dean Saloner’s recusal. The court stated that the documents sought by those requests “go to the heart of Plaintiff’s allegations that Defendant Saloner carried on an illicit sexual relationship with Plaintiff’s wife and that Stanford discriminated against him on the basis of that relationship.” (Moroney Decl., Ex. 14.) For the same reasons, information sought by RPD Nos. 11 and 15 is directly relevant to Plaintiff’s discrimination claims and good cause exists for the discovery.

As to RPD No. 19, in the ruling on Plaintiff’s previous motion to compel, the court also addressed a request seeking information related to Plaintiff’s divorce proceedings. The court denied the request, finding that Plaintiff failed to explain how such information was relevant. Plaintiff has cured that defect in the present motion, articulating the relevance of the information sought by RPD No. 19 as follows:

Plaintiff agrees that generic requests for all information about the divorce proceedings might be an overbroad category. The Complaint, however, specifically alleges that Dean Saloner gave material assistance to Gruenfeld in the divorce proceedings during a period he had privileged access to files of faculty members, including Gruenfeld and Phills, and during the period he was Phills’ supervisor and was making decisions concerning housing loans affecting both Phills and Gruenfeld. [Citation]. Documents responsive to No. 19 are clearly relevant and, indeed, Dean Saloner admitted during his deposition that he was proving advice to Gruenfeld about the divorce. [Citation]. In short, while Plaintiff may not be entitled to all documents that Gruenfeld has concerning the divorce he is certainly entitled to the documents Stanford has relating to his supervisor’s role in advising his wife about the divorce during the same period of time that Stanford was discriminating against Phills in terms and conditions of employment, through Saloner . . . .

(Reply, p. 4-5.) Plaintiff has demonstrated good cause for the discovery sought by RPD No. 19.

Because Plaintiff has demonstrated good cause for RPD Nos. 11, 15, and 19, the burden shifts to Stanford to justify its objections to the requests. (Kirkland, supra, 95 Cal.App.4th at p. 98.) In its opposition to Plaintiff’s motion, Stanford spends much of its time arguing that Plaintiff failed to meet and confer and that the court’s previous order found similar requests to be irrelevant. As discussed above, these arguments lack merit. However, in any event, such arguments do not provide justifications for the objections asserted in Stanford’s responses to the RPD.

The only objection that Stanford attempts to justify is its privacy objection. The remaining objections are therefore overruled, with the exception of the attorney-client privilege, which is preserved. (Best Products, Inc., supra, 119 Cal.App.4th at pp. 1188-1189.) Concerning privacy, Stanford asserts that, “[t]o the extent the Court is willing to consider this motion . . . Request No. 19 is improperly invasive of Dean Saloner and Professor Gruenfeld’s constitutional right to privacy.” (Stanford’s Separate Statement, p. 25.) Stanford characterizes these communications as “private and deeply personal.” (Stanford’s Opp., p. 1.) While Stanford dances around the exact nature of the communications it claims are private, it is clear from the parties’ papers that the communications sought to be withheld contain romantic sentiments expressed between Defendant Saloner and Plaintiff’s wife. The California Supreme Court has held that information concerning a person’s sexual practices are protected by the right to privacy enshrined in the California Constitution. (Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 841.)

To the extent that the requests seek information protected by the right of privacy, the information is directly relevant to Plaintiff’s claims. For instance, the documents responsive to each of the requests will show whether Defendant Saloner and Ms. Gruenfeld conspired to deprive Plaintiff of employment and housing benefits and whether the relationship influenced Defendant Saloner in taking adverse employment actions against Plaintiff. Similarly, documents responsive to RPD No. 15 will show whether the relationship began prior to Defendant Saloner recusing himself from employment decisions concerning Plaintiff. All of this information bears directly on Plaintiff’s claims and is necessary for a fair resolution of this matter.

Turning to the balance of interests between the right of privacy and the right to discovery, in light of the above discussion and Stanford’s limited explanation as to why the information should not be disclosed, the balance tips in favor of disclosure. Plaintiff’s motion to compel further responses to RPD Nos. 11, 15, and 19 is GRANTED.

C. Requests for Monetary Sanctions

Both parties seek the imposition of monetary sanctions under Code of Civil Procedure section 2031.310, which provides that “the court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.310, subd. (h).) Here, Plaintiff’s motion is granted in part and denied in part. Plaintiff was not entirely unsuccessful in making his motion and Stanford was not unjustified in opposing the motion. Consequently, neither party is entitled to an award of sanctions and both requests are DENIED.

Conclusion

Plaintiff’s motion to compel further responses to his first set of RPD is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to RPD Nos. 9, 11, 15, and 19. The motion is DENIED as to RPD Nos. 10 and 29. Accordingly, Stanford shall serve verified, code-compliant further responses, without objections (except for attorney-client privilege and work product doctrine, which have been preserved) to RPD Nos. 9, 11, 15, and 19 within 20 days of notice of this order.

Both requests for monetary sanctions are DENIED.