2012-00128000-CU-WT
Joel Venegas Macias vs. Marquez Brothers Foods Inc
Nature of Proceeding: Motion to Quash or Modify Deposition Subpoenas
Filed By: Rodriguez, Edris W.I.
*** If oral argument is requested, the parties must at the time oral argument is
requested notify the clerk and opposing counsel of the specific discovery
requests 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 Joel Venegas Macias’s (“Macias” or “Plaintiff”) motion to quash the deposition
subpoenas for the production of his employment records served on his current
employer, WorldPac, Inc. is ruled upon as follows.
Background
In the complaint, Macias alleges that he is disabled as the result of irregularities in his
urethra, i.e., urethral stricture and urethral diverticulum. According to Macias, these
conditions arose after a childhood accident. He alleges that, after undergoing surgery
to remove a bladder tumor in 2006, he has had additional medical problems. He
further alleges that, due to his conditions, he must periodically “adjust an ice bag that
he uses to control the pain and inflammation, and a clamp that he uses to control
incontinence.” (Compl., ¶ 11.)
Defendant Marquez Brothers Food (“Marquez”) contends it terminated Macias based
on complaints that he had fondled himself while working and while in the presence of
others. Macias disputes this version and contends that the termination was unlawful
given his medical conditions. Macias worked for Marquez from January 2005 to
September 1, 2011.
In early 2013, Macias moved to quash deposition subpoenas that Marquez had served
on Macias’ former employer, Merchandising Systems Manufacturing, Inc. The Court
granted the motion to quash on the grounds that the subpoena was overbroad.
Thereafter, Marquez learned that Macias was employed by Mother’s Cookies
(“Mother’s) and Reser’s Fine Foods (“Reser”) between November 2007 and October
2008 (the same time that Macias was employed with Marquez.) Marquez issued
subpoenas for Macias’ employment records from Mother’s and Reser. The parties
extensively met and conferred regarding the language of the requests and ultimately
reissued subpoenas based on the parties’ agreement. The documents requested in
the subpoena at issue here are almost identical to those previously agreed upon.
The parties have entered into a stipulated protective order.
Records Requested
Marquez’s subpoena to WorldPac seeks the following documents:
(1) Any records referring to, relating to, or reflecting medical conditions or symptoms
impacting his ability to perform the duties of his position at Worldpac, Inc., to the extent
they relate to the following:
a. Urethral stricture;
b. Urethral diverticulum;
c. Incontinence;
d. The need for dialysis;
e. Bladder tumors;
f. Surgeries or other treatments for bladder tumors;
g. Surgeries or other treatment for urinary leakage;
h. Urinary infections;
i . Pain and inflammation in the urethral tract or related areas;
j . Mr. Venegas’ Macias having difficulty walking, standing, or sitting for
prolonged periods of time;
(2) Any records referring to, relating to, or reflecting symptoms or conditions which
would impact Mr. Venegas Macias’ ability to perform the following work duties:
a. Ability to lift at least 50 lbs;
b. Ability to pull 1,500 lbs pallet.
c. Driving to and visiting retail grocery stores to stock perishable products;
d. Communicating with clients and their employees;
e. Rotating and displaying merchandise;
f Removing product from grocery shelves, refrigerators and stock rooms;
g. Cleaning grocery shelves, refrigerators and stock rooms;
h. Walking, stand and/or sitting for prolonged periods of time;
i. Maintaining a good driving record;
(3) Any requests for accommodation and any notes reflecting accommodations given,
if any, to the extent they relate to (1) A-J or (2) A-I above;
(4) Any doctor’s notes submitted by Plaintiff to the extent they relate to (1) A-J or (2) A-
I above;
(5) Any records reflecting, referring, or relating to any of the following symptoms,
behaviors, or conditions;
a. Anxiety;
b. Depression;
c. Fear;
d. Shame;
e. Low self-esteem;
f. Feeling like a failure;
g. Insomnia;
h. Difficulty concentrating;
i. Irritability; and
j . Argumentative behavior.
(6) Applications for employment;
(7) Resumes;
(8) Disciplinary or performance-related records;
a. To the extent these records relate to any of the symptoms, behaviors,
limitations or conditions as described in numbers (1) through (5) above
(including argumentative behavior, irritability, and other conditions and
limitations described in numbers (1) through (5) above); or
b. To the extent these records refer or relate to actions associated with
grabbing, fondling or adjusting his genital area
(9) Performance Reviews;
a. To the extent these records relate to any of the symptoms, behaviors,
limitations or conditions as described in numbers (1) through (5) above
(including argumentative behavior, irritability, and other conditions and
limitations described in numbers (1) through (5) above); or
b. To the extent these records refer or relate to actions associated with
grabbing, fondling or adjusting his genital area
(10) Any complaints of, by or concerning Mr. Joel Venegas Macias including related
investigation reports;
a. To the extent these records relate to any of the symptoms, behaviors,
limitations or conditions as described in numbers (1) through (5) above
(including argumentative behavior, irritability, and other conditions and
limitations described in numbers (1) through (5) above); or
b. To the extent these records refer or relate to actions associated with
grabbing, fondling or adjusting his genital area
(11) Termination records;
a. To the extent these records relate to any of the symptoms, behaviors,
limitations or conditions as described in numbers (1) through (5) above
(including argumentative behavior, irritability, and other conditions and
limitations described in numbers (1) through (5) above); or
b. To the extent these records refer or relate to actions associated with
grabbing, fondling or adjusting his genital area
(12) Rehire Status;
a. To the extent these records relate to any of the symptoms, behaviors,
limitations or conditions as described in numbers (1) through (5) above
(including argumentative behavior, irritability, and other conditions and
limitations described in numbers (1) through (5) above); or
b. To the extent these records refer or relate to actions associated with
grabbing, fondling or adjusting his genital area
(13) Earnings and payroll records; and
(14) Employee benefit records.
Analysis
There can be no legitimate dispute that a person’s employment records fall within the
right to privacy. To overcome the protection afforded to such private matters, Marquez
must demonstrate that the employment records sought are directly relevant to the
issues in this case and are essential to proving one or more elements of the asserted
claims and/or defenses, that the subpoena is narrowly tailored to obtain the essential
information and there is no less intrusive means to
obtain this information, and that there is a compelling need for this discovery which
outweighs the privacy interests. (See, e.g., Board of Trustees v. Superior Court (Dong)
(1981) 199 Cal.App.3d 516, 526; Alch v. Superior Court (Time Warner Entertainment
Co.) (2008) 165 Cal.App.4th 1412, 1432-1433; Tien v. Superior Court (Tenet
Healthcare Corp.) (2006) 139 Cal.App.4th 528, 539-540.)
Request Nos. 1-5 – DENIED
Macias objects to these requests on the grounds that they are overbroad and not
directly relevant to his claims or Marquez’s defenses. Macias argues that unlike the
Mother’s and Reser’s subpoenas, Marquez seeks information from a post-termination
employer with no relation to the instant matter except as it relates to Macias’ duty to
mitigate.
In opposition, Marquez argues that documents are directly tied to the specific
conditions and symptoms in the complaint and that Macias previously agreed to such
terms. Marquez argues that the timeframe of Plaintiff’s employment with Worldpac
does not change the direct relevancy analysis because Plaintiff testified in his
February 2014 deposition that he was still impacted by the physical and mental
conditions at issue in his complaint. Marquez claims that Plaintiff’s current ability to
perform the job duties are in question, along with any current request for
accommodations is directly relevant to his claims against Marquez because it denies
that Plaintiff ever requested accommodations or informed it of any job restrictions.
Thus, according to Marquez, Plaintiff’s communications with its current employer
provides “very probative evidence of Plaintiff’s habit and custom for how he
communicates with his employers regarding the matters at issue in this
lawsuit.” (Opposition, 10:11-17.) Marquez further argues that there are no less
obtrusive means to obtain the information because Plaintiff’s credibility “has repeatedly
been called into question” and that Plaintiff admitted that he lied on his job application
to get hired at Marquez. (Opposition, 12:27-13:3.)
The motion to quash is DENIED. The Court agrees with Marquez that the requests
are directly relevant and narrowly tailored. Moreover, Plaintiff’s credibility is at issue,
and the requests are reasonably calculated to lead to the discovery of admissible
evidence. The Court also agrees with Marquez that the protective order currently in
place will alleviate the privacy concerns.
Requests No. 6-7 – DENIED.
Macias objects to these requests on the grounds that they are overbroad and not
directly relevant to his claims or Marquez’s defenses. Macias argues that unlike the
Mother’s and Reser’s subpoenas, Marquez seeks information from a post-termination
employer with no relation to the instant matter except as it relates to Macias’ duty to
mitigate.
In opposition, Marquez argues that Plaintiff’s application and resume(s) submitted to
WorldPac is needed to determine the manner in which Plaintiff represented himself
and his past employment to WorldPac. For example, Marquez seeks to learn whether
Plaintiff disclosed his disabilities to WorldPac, stated any job restrictions or disclosed
that he was terminated from Marquez. (Opposition 10:25-11:12.) Marquez argues
that this information demonstrate Plaintiff’s habit and custom for how he communicates
with his employers.
The motion to quash is DENIED. The Court agrees with Marquez that the requests
are directly relevant and narrowly tailored. Moreover, Plaintiff’s credibility is at issue,
and the requests are reasonably calculated to lead to the discovery of admissible
evidence. The Court also agrees with Marquez that the protective order currently in
place will alleviate the privacy concerns.
Request Nos. 8-12 – DENIED
Macias objects to these requests on the grounds that they are overbroad and not
directly relevant to his claims or Marquez’s defenses. Macias argues that unlike the
Mother’s and Reser’s subpoenas, Marquez seeks information from a post-termination
employer with no relation to the instant matter except as it relates to Macias’ duty to
mitigate.
In opposition to the motion, Marquez argues that the documents are directly relevant to
discover whether Plaintiff exhibited similar performance issues at his subsequent job,
and if so, whether they were impacted by his alleged disability, emotional distress
symptoms, and his need to adjust his genitals. Marquez argues that the information
will reveal Plaintiff’s habit and customs for engaging in the specific behavior.
The motion to quash is DENIED. The Court agrees with Marquez that the requests
are directly relevant and narrowly tailored. Moreover, Plaintiff’s credibility is at issue,
and the requests are reasonably calculated to lead to the discovery of admissible
evidence. The Court also agrees with Marquez that the protective order currently in
place will alleviate the privacy concerns.
Request No. 13 – Moot
It appears that Macias has agreed to produce his paystubs.
Request No. 14 – DENIED
Macias argues that whether his current employer offers him any benefits has no
bearing or direct relevance on any damages because Marquez did not offer any
benefits to Plaintiff. The Court notes, however, that Macias produced a copy of
WorldPac’s benefit guide (although a fairly illegible copy). Thus, Macias appears to
agree that the documents are directly relevant to the issues in his lawsuit.
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.
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