30-2012-00621132

Motion by Defendants for Order Compelling Production:

Defendant Western Dental Services, Inc.’s Motion to Compel Plaintiff April Olmos to Provide Further Responses to its Third Set of Requests for Production of Documents, and to Compel Plaintiff to Produce Responsive Documents, is granted.

The court compels Plaintiff to provide further responses to Request Nos. 115-125 and 127.  Plaintiff has failed to justify the objections raised.

(a)With respect to the objections based on attorney-client privilege and the attorney work-product doctrine, Plaintiff has failed to meet her burden of justifying these objections.  “The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” (Costco Wholesale Corp. v. Superior Court(2009) 47 Cal.4th 725, 733.)  “Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” (Id.)

(b) Further, Plaintiff raises a privacy objection in response to these requests (although Plaintiff has failed to justify the same in its opposition papers).  Although the burden generally shifts to the responding party to justify the objections made, the party seeking discovery after a privacy objection has been made must show a particularized need for the confidential information sought.  The court must be convinced that the information is directly relevant to a cause of action or defense … i.e., that it is essential to determining the truth of the matters in dispute.  (Britt v. Sup.Ct. (San Diego Unified Port Dist.) (1978) 20 C3d 844, 859–862; Harris v. Sup.Ct. (Smets) (1992) 3 CA4th 661, 665; Rutter, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8C-5 at 8:320.)  The court must carefully balance the requesting party’s need for the information with opposing party’s right of privacy when determining whether the discovery should be permitted.  (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199;Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.)  Additionally, discovery will not be ordered if the information sought is available from other sources or through less intrusive means. (Allen v. Sup.Ct. (Sierra) (1984) 151 CA3d 447, 449; Britt v. Sup.Ct. (San Diego Unified Port Dist.)(1978) 20 C3d 844, 856 [discovery “cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved”]; Rutter, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8C-5 at 8:321.)

Here, the information sought pertains to: (1) the communications involving the alleged harasser (David Joe); (2) Plaintiff’s alleged failure to obtain outside employment with Genoptix as a result of Defendants’ improper interference with Plaintiff’s prospective economic advantage; and (3) Defendant’s alleged failure to remedy the harassment when Plaintiff complained of the same.  The information sought isdirectly relevant and is essential to determining the truth of the matter in this case.  Moreover, when balancing the privacy interests with third-parties with the requesting party’s need for the information, the court should find in favor of the requesting party’s need for the information.  Finally, although it is questionable whether discovery would be available from less intrusive means (i.e., interrogatories and depositions), Plaintiff has failed to justify the privacy objection in the opposition papers, and the discovery sought does not appear to unduly infringe on a third-party’s right to privacy.

Finally, as discussed above with respect to RPD Nos. 115 and 116, the substantive response provided is insufficient and does not comply with the Code.

(c) Further responses without objections, and the production of documents, are due within 14 days.

(d) Plaintiff and her attorneys of record are sanctioned in the amount of $2,610.00.

This motion was caused by the foot-dragging of the Plaintiff and her attorneys.  Plaintiff did not respond to the good faith meet and confer letter of defendants for 27 days and 12 days after defendants filed the motion. The objections were not justified and the responses were sorry and inadequate. Therefore, the court issues monetary sanctions against Plaintiff and her attorney of record in the amount of $2,610.00 payable within 45 days.

Moving Parties shall give Notice.