2015-00186194-CU-OE

Michael Asberry vs. County of Sacramento

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Telfer, Jill P.

Plaintiff Michael Asberry’s (“Plaintiff”) Motion to Compel Defendant County of Sacramento (“Defendant” or the “County”) to Provide Further Verified Responses and Production of Documents to Plaintiff’s Request for Production of Documents, Set Eight, Nos. 111, 112, 113, and 118 is GRANTED.

Plaintiff’s request for judicial notice of Defendant’s Answer to Plaintiff’s First Amended Complaint is GRANTED.

In this employment action, Plaintiff, a former Collections Equipment Officer for Defendant from September 2005 to February 2016, alleges Defendant discriminated and retaliated against him based on his race (African American), age, and association with his wife who had cancer. He claims Defendant engaged in pretextual discipline and denied him promotions. Defendant maintains Plaintiff was disciplined for poor performance, including multiple preventable accidents.

In this instant motion, four Requests for Production (“RFPs”) are at issue. These RFPs seek “me too” evidence related to other employees of Defendant who lodged complaints of race discrimination (African Amercian), age discrimination, and disability discrimination.

RFPs 111, 112, and 113

RFPs 111, 112, and 113 seek all “logs and/or reports listing” complaints of race discrimination by African American employees, age discrimination, and disability discrimination from January 1, 2010, to January 1, 2017 (including the disposition, date, employee’s position, and employee’s current status).

Defendant objected to the RFP on the grounds that it calls for private personnel information protected by the constitutional right to privacy.

RFP 118

RFP 118 seeks “all documents regarding any complaints of race discrimination and/or harassment by civil litigants and/or former employees of Defendant (to include Willie Jones, Earl Sallie, Michael Walton, Lewis Scott and Patricia McElroy), including any investigative documents and reports.”

Defendant objected to the RFP on the grounds that it calls for private personnel information protected by the constitutional right to privacy and that the request is overbroad, unduly burdensome, and duplicative of prior document demands.

Discussion

Plaintiff now moves for an order compelling further verified responses and production of documents. Plaintiff contends third-party privacy rights are not absolute and are outweighed by his need for the documents. Plaintiff contends the documents are directly relevant to his claims and admissible as “me too” evidence. He contends the documents are relevant to rebut Defendant’s affirmative defenses and attack Defendant’s credibility and rebut witness claims. Plaintiff further contends if the documents contain private information such as employee names, such information can be redacted. Plaintiff further notes the parties have entered into a protective order to protect third party privacy rights.

In opposition, Defendant contends Plaintiff has not met his burden to establish the documents are “directly relevant” to his claims because he has not established the other complaining employees suffered a similar type of harm or that they are similarly situated to him.

There is a constitutionally protected zone of privacy set forth under Article I, Section 1 of California’s Constitution. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 526, 528-529.) The California Supreme Court has decided the analytical framework for assessing a privacy claim: (1) there must be a specific legally, protected privacy interest; (2) a reasonable expectation of privacy must exist; and (3) the invasion of the privacy interest must be serious. (Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1, 39-40.)

As to items protected by the right to privacy, the threshold requirement is that such items must be “directly relevant” to the issue in the case. (Britt v. Superior Court (1978) 20 Cal.3d 844; Tylo v. Superior Court (1997) 55Cal.App.4th 1379.) Yet, even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a “careful balancing” of the compelling public need for discovery against the fundamental right of privacy. ( Board of Trustees, supra, 119 Cal.App.3d at 525.)

“Even when the balance does weigh in favor of disclosure, the scope of disclosure must be narrowly circumscribed.” (Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652-53 (citing Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10; Britt v. Superior Court (1978) 20 Cal.3d 844, 855-864 (even party plaintiffs could not be compelled to provide information about all their political activities or their entire medical histories; party seeking discovery must show both compelling need for the information and that discovery request is narrowly and specifically drawn to minimize intrusion into private matters).)

As to RFPs 111, 112, and 113, Defendant has not cited to any legal authority indicating the documents sought (i.e., logs and/or records listing general information regarding prior discrimination complaints) is protected by the constitutional right to privacy. Defendant’s attempt to categorize these documents as private personnel information to invoke the right to privacy is not persuasive. The RFPs are not requesting personnel files or personnel information; they are not even requesting employee names. The RFPs seek a basic list of similar complaints that have been internally lodged with Defendant, which information Defendant testified is maintained in a searchable database that can populate the requested information.

The Court is not persuaded employees have a reasonable expectation of privacy in the basic details regarding their internal complaints when their personal information is not requested alongside such information. Further, assuming a privacy interest did exist, the Court is not persuaded the invasion would be a serious invasion of that privacy interest as Plaintiff is not seeking names or contact information of the complaining employees. Further, the parties have entered into a protective order to protect third party privacy interests for employees who have not waived their privacy rights.

In opposition, Defendant also contends these RFPs are overbroad and unduly burdensome, but Defendant failed to raise these objections in its verified responses and therefore these objections have been waived. (Stadish v. Sup. Ct. (1999) 71 Cal.App.4th 1130, 1141.)

The motion to compel further verified responses and documents for RFPs 111, 112, and 113 is GRANTED.

RFP 118 can be differentiated from the prior requests in that it seeks the production of documents, including internal investigative documents and reports, related to civil litigants and former and current employees of Defendant.

Defendant has produced responsive external complaints in response to this request, leaving only a dispute regarding the production of internal investigative documents and reports. Defendant contends these internal documents are private personnel records. The Court agrees. RFP 118 is broader than the other requests and seeks documents contained within employee personnel files. “It is clear…personnel records and employment history are within the [privacy] protection provided by the state and federal Constitutions.” (San Diego Trolley, Inc . v. Super. Court (2001) 87 Cal.App.4th 1083, 1097.) Accordingly, whether discovery is permissible depends on whether the information sought is “directly relevant” to the claims at issue and, even then, it is not automatically allowed. (Britt, supra, 20 Cal.3d at 859; Board of Trustees, supra, 119 Cal.App.3d at 525.)

Defendant contends Plaintiff has failed to establish the requested documents are directly relevant to his claims because Plaintiff has failed to establish these employees are similarly situated.

In order to utilize “me too” evidence it must be shown that the plaintiff is similarly situated to the employees whose “me too” evidence the plaintiff wishes to use. ( Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 767; Evid. Code § 1101, subd. (b).)The relevance of evidence of discrimination or harassment by defendants against non-parties (which is known as “me too” evidence) is “fact based and depends on many factors, including how closely related the evidence is to the plaintiffs circumstances and theory of the case.” (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 296-297 [citations omitted].) Several courts have found “me too” evidence from other employees to be relevant and admissible in discrimination and harassment cases. (See Johnson, supra, 173 Cal.App.4th at 747; Pantoja v. Anton (2011) 198 Cal.App.4th 87.)

Plaintiff explains the investigation documents sought concern specifically named employees who appear to have had the same manager and superintendent as Plaintiff. Accordingly, the Court is persuaded that Plaintiff and the named employees

are “similarly situated” at least on some level.

To the extent Defendant contends the documents are protected by the attorney-client privilege and attorney work product doctrine, Defendant’s verified response does not raise these objections and, therefore, these objections have been waived. (Evid. Code §§ 954, 955.)

Defendant’s objection that the request is unduly burdensome is overruled. Defendant has failed to provide any evidence indicating the amount of work required to comply with the demand or any explanation as to why the demand is unreasonably oppressive. Defendant has failed to meet the heavy burden to substantiate its objections based on undue burden and oppression. (See West Pico Furniture Co. v. Superior Court (1961) 56 Cal. 2d 407.)

Defendant’s objection that the request is overbroad is overruled. While the request could be construed to be somewhat overbroad and apply to any and all former and current employees who complained of race discrimination without a limiting time period, the parties appear to have agreed that the request is specifically limited to those individuals specifically enumerated in the parentheticals.

The motion to compel further verified responses and documents for RFP 118 is GRANTED.

The Court notes Plaintiff’s understanding that private personnel information is subject to the parties’ stipulated protective order on file.

Conclusion

No later than March 28, 2018, Defendant shall serve verified further responses, without objections, to Plaintiff’s Requests for Production of Documents, Nos. 111, 112, 113, and 118, and produce responsive documents.