Case Name: Mohammed Haniff v. James Nathan Hohman, et al.
Case No.: 1-13-CV-252992
Date: August 4, 2015
Time: 9:00 a.m.
Dept.: 8

This is a personal injury case. Plaintiff Mohammed Haniff (“Plaintiff”), a delivery driver, was struck and pinned against the back of his delivery van by an unoccupied vehicle that rolled down a hill. Plaintiff alleges that defendant James Nathan Hohman (“Mr. Hohman”) negligently parked the vehicle on the top of the hill immediately prior to the incident. Plaintiff filed the operative complaint against Mr. Hohman and defendant Monhee Kim, the registered owner of the vehicle, alleging claims for negligence. Subsequently, Plaintiff filed a Doe Amendment to the complaint, substituting defendant The Board of Trustees of the Leland Stanford Junior University (hereinafter “Stanford”) for Doe 6. Plaintiff alleges that Stanford is vicariously liable for his injuries because Mr. Hohman was a postdoctoral research fellow at Stanford acting in the course and scope of his employment at the time of the incident.

Currently before the Court is the motion by Plaintiff to compel Stanford to provide further responses to requests for production of documents, set two (“RPD”), Nos. 1-2 and for an award of monetary sanctions.

A party propounding a request for production may move for an order compelling a further response if it deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, or an objection is without merit. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Super. Ct. (Guess, Inc.?) (2002) 95 Cal.App.4th 92, 98.) Good cause is established simply by a fact-specific showing of relevance. (Kirkland v. Super. Ct., supra, 95 Cal.App.4th at p. 98.) If good cause is shown, the burden shifts to the responding party to justify any objections. (Ibid.)

RPD Nos. 1-2 asked Stanford to produce all writings, including but not limited to emails, that it sent to and/or received from Mr. Hohman “from one month before the date of the SUBJECT INCIDENT until one month after the date of the SUBJECT INCIDENT.” (Plaintiff’s Sep. Stmt., pp. 1:22-24, 3:4-6.)

In its response to the RPD, Stanford raised numerous objections, including that “the demand category includes, potentially, a request for a class of documents or WRITINGS protected by the Family Education Rights and Privacy Act (FERPA) 20 United States Code § 1232g; 34 CFR Part 99” and “[n]o written permission has been received from the (‘eligible student’) ….” (Plaintiff’s Sep. Stmt., pp. 2:2-6, 3:11-15.)

Plaintiff persuasively argues, and Stanford does not dispute, that there is good cause for the discovery sought because it includes writings exchanged between Mr. Hohman and Stanford that are reasonably calculated to lead to the discovery of relevant evidence regarding whether Mr. Hohman was an employee and/or agent of Stanford and whether he was acting in the course and scope of his employment and/or agency at the time of the incident. Since Plaintiff demonstrates good cause for the discovery sought, the burden shifts to Stanford to justify its objections.

As indicated above, Stanford raised numerous objections in response to the RPD. Stanford does not attempt to defend any of its objections other than its objection that the RPD seek documents protected by FERPA. Therefore, the Court finds that the undefended objections are without merit and overruled, with the exception of the general objections based upon the attorney-client privilege and work product doctrine, which are preserved. (See Coy v. Super. Ct. (Wolcher, et al.) (1962) 58 Cal.2d 210, 220-221 [stating that “he who asserts the affirmative of an issue has the burden of proving it”]; see also Best Products, Inc. v. Super. Ct. (Granatelli Motorsports, Inc.) (2004) 119 Cal.App.4th 1181, 1188-1189 [boilerplate assertions of the attorney-client and work product privileges are adequate to preserve these objections].)

With respect to its remaining objection, Stanford argues the Court should deny Plaintiff’s motion to compel because it cannot disclose the discovery sought without violating FERPA. Stanford asserts that the discovery sought includes Mr. Hohman’s education records and it cannot release the same under FERPA as it has not received Mr. Hohman’s express written consent to the disclosure. Stanford points out that the term “education records” as used in FERPA is broad and includes any documents that contain information directly related to a student and are maintained by an educational agency or institution or a person acting for such agency or institution. Stanford contends that the writings sought by the RPD “unquestionably ‘contain information directly related to’ [Mr.] Hohman and fall under FERPA’s privacy protections.” (Opp’n., p. 5:15-16.) Stanford indicates that it wrote to Mr. Hohman’s counsel requesting that Mr. Hohman provide the requisite written authorization for release of his student records, but it has not received any response.

Plaintiff states that he “does not know if [Stanford’s] objection is properly made or whether the requested documents fall into the categories of documents protected by FERPA.” (Mem. Ps. & As., p. 8:15-16.) Nonetheless, Plaintiff argues that Stanford should be compelled to produce the subject writings because Mr. Hohman waived any privacy interest that he may have under FERPA. Plaintiff asserts that Mr. Hohman was served with discovery requests that are identical to RPD Nos. 1-2 and Mr. Hohman produced 133 pages of emails in response to the discovery requests. Plaintiff also indicates that Stanford previously produced Mr. Hohman’s appointment letter, which was marked as an exhibit to Mr. Hohman’s deposition “without any objections being asserted.” (Mem. Ps. & As., p. 5:3-4.) Plaintiff also suggests that the objection somehow lacks merit because Stanford waited approximately three months before it requested the requisite written authorization from Mr. Hohman.

Stanford’s contention that it would be in violation of FERPA if it discloses the discovery sought by the RPD is not well-taken because “FERPA does not actually prohibit the release of education records;” “[r]ather, FERPA conditions the availability of federal funds on conformance with its provisions.” (Rim of the World Unified School Dist. v. Super. Ct. (2002) 104 Cal.App.4th 1393, 1398; see also Gonzaga Univ. v. Doe (2002) 536 U.S. 273, 276 [stating that the provisions of FERPA “prohibit the federal funding of educational institutions that have a policy or practice of releasing education records to unauthorized persons”].)

Moreover, FERPA provides that information may be “furnished in compliance with judicial order … upon condition that parents and the students are notified of all such orders … in advance of the compliance therewith by the educational institution or agency….” (20 U.S.C. § 1232g, subd. (b)(2)(B).) The proofs of service filed with the Court establish that Mr. Hohman’s counsel was served with the RPD and the instant motion such that Mr. Hohman received ample notice that his education records might be disclosed. Mr. Hohman did not raise any objection to the disclosure of his education records and, in fact, evidence submitted by Plaintiff indicates that Mr. Hohman has produced at least some of those records himself. Therefore, FERPA does not prohibit the Court from ordering the disclosure of Mr. Hohman’s education records and Stanford’s objection based on FERPA is overruled.

The Court notes that the California Legislature adopted Education Code section 49060, et seq. in response to FERPA and those statutes limit the situations in which an educational institution can disclose student records. (See Ed. Code, §§ 49075 and 49076; see also BRV, Inc. v. Super. Ct. (2006) 143 Cal.App.4th 742, 751-752.) Stanford did not raise any objection based on the provisions of the Education Code. In any event, Education Code section 49077 also allows for the disclosure of student records pursuant to a court order. (Ed. Code, § 49077 [stating that “[i]nformation concerning a student shall be furnished in compliance with a court order” and the educational institution “shall make a reasonable effort to notify the parent or legal guardian and the pupil in advance of compliance … if lawfully possible within the requirements of the order”].) Therefore, the applicable provisions of the Education Code do not prohibit the Court from ordering the disclosure of Mr. Hohman’s education records.

The Court further notes that case law indicates that it is appropriate to consider a third party’s constitutional right to privacy even when an objection on privacy grounds has not been properly raised. (See e.g., Boler v. Super. Ct. (1987) 201 Cal.App.3d 467, 472, fn. 1.) However, Mr. Hohman is not a third party to this lawsuit, but a defendant. Moreover, as articulated above, Mr. Hohman has not objected to the release of his education records and has actually released some of those records himself. Thus, the Court need not evaluate any potential constitutional right to privacy that Mr. Hoffman may have in the subject documents.

In light of the foregoing, Plaintiff’s motion is GRANTED. Accordingly, within 20 calendar days of the date of the filing of the order, Stanford shall serve verified, code-compliant further responses, without objection, to RPD Nos. 1-2 and produce responsive documents in accordance with its responses. To the extent Stanford withholds any documents on the grounds of attorney-client privilege or the work product doctrine, it shall provide Plaintiff with a privilege log.

Plaintiff’s request for monetary sanctions is DENIED. Code of Civil Procedure section 2031.310, subdivision (h) provides that the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully opposes a motion to compel further response 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).) The Court finds that Stanford acted with substantial justification because if Stanford simply disclosed Mr. Hohman’s education records in response to the RPD absent Mr. Hohman’s written consent or a judicial order it could have potentially affected its ability to receive funding under FERPA.