Case Name: Rachel Danae Vachata v. Lucio Lanza
Case No.: 18CV323454

I. Background and Discovery Dispute

Rachel Danae Vachata (“Plaintiff”), a startup founder, alleges a drunk venture capitalist, Lucio Lanza (“Defendant”), sexually assaulted her on a red-eye flight and used his position in the industry to threaten and coerce her into acquiescing to his advances. Plaintiff commenced this action against Defendant, asserting causes of action against him for: (1) sexual battery; (2) battery; (3) gender violence; and (4) intentional infliction of emotional distress.

After Plaintiff came forward, a number of other women in the industry reached out to her and asserted they had been victims of similar assaults. And so, Plaintiff filed the first amended complaint (“FAC”) asserting the same causes of action against Defendant, but additionally alleging:

After this lawsuit was filed, other women approached [Plaintiff] to share their experiences of being sexually assaulted by [Defendant]. As of the filing of the First Amended Complaint, [Plaintiff] is informed and believes and therefore alleges, that [Defendant] has groped and fondled multiple women over a period of more than ten years, similarly boasting about his power in the tech community to “make or break” careers as part of his pattern of abusing and exploiting women.

(FAC, ¶ 32.) Plaintiff seeks to obtain discovery regarding this alleged pattern of assault.

Plaintiff deposed Defendant for just over two hours, including breaks, on January 29, 2019. Plaintiff asked Defendant about the allegations made by five other women. Defendant objected on the grounds of relevance and privacy and refused to answer the questions. When asked whether anyone accused him of similar behavior prior to this lawsuit, Defendant provided a vague answer that this may have happened, but refused to respond to follow up questions. Plaintiff takes the position that Defendant should be required to answer deposition questions about alleged prior instances of sexual assault. Defendant maintains that his responses would be inadmissible character evidence such that he should not be required to answer such questions. The parties were unable to reconcile their conflicting positions and informally resolve this dispute in the course of their meet and confer discussions.

Currently before the Court is Plaintiff’s motion to compel Defendant to provide further deposition testimony, which includes a request for monetary sanctions. Plaintiff also filed a renewed motion, which is unopposed, to seal portions of documents filed by Defendant in connection with a previous motion for protective order.

II. Motion to Compel

Plaintiff moves to compel Defendant to answer questions at a further deposition under Code of Civil Procedure section 2025.480, which states: “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” “If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (Code Civ. Proc., § 2025.480, subd. (i).)

Defendant’s opposition primarily contains arguments about the admissibility and weight of the evidence Plaintiff seeks to discover. (Opp. at pp. 7:10–13:19.) The Court is not persuaded the discovery sought will be inadmissible at trial. More significantly, Code of Civil Procedure section 2017.010 states: “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Courts interpret this provision liberally in favor of allowing discovery. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546–47.) “Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Ibid., original italics.) This means a party may discover evidence “if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement….’ [Citation.]” (Ibid.) It follows that Defendant’s arguments about the weight and admissibility of the evidence sought do not establish the evidence is not discoverable. These arguments are premature and misdirected.

Defendant also states he has not conceded the information sought is discoverable. But he does not provide a reasoned and legally-substantiated explanation to support his position. And, courts have routinely concluded evidence of past sexual harassment and assault is generally relevant and discoverable. (See, e.g., Boler v. Super. Ct. (1987) 201 Cal.App.3d 467, 472; Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 871.) The Court is persuaded the deposition questions at issue seek discoverable information based on the facts presented here, particularly given Defendant deposed several of these other alleged victims and will be deposing others soon.

Defendant also asserts he did not waive his right to object to the questions on the ground of privacy. He argues the questions intrude on his right to privacy in his sexual history.

“In Hill, [the California Supreme Court] established a framework for evaluating potential invasions of privacy.” (Williams v. Super. Ct. (2017) 3 Cal.5th 531, 552, citing Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams, supra, 3 Cal.5th at p. 552.) “The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.” (Ibid.) “A court must then balance these competing considerations.” (Ibid.)

To be clear, the California Supreme Court has rejected the “de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information.” (Williams, supra, 3 Cal.5th at p. 557.) It has directed courts to “instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.” (Ibid.) A compelling need for the discovery is not always required. (Ibid.) “What suffices to justify an invasion will…vary according to the context.” (Ibid.)

Defendant is correct that “[t]he constitutional right of sexual privacy, both within and without the marital relationship, is a fundamental liberty arising from both the United States and the California Constitutions.” (Boler, supra, 201 Cal.App.3d at p. 473.) “The California right has been described as a protective zone of privacy surrounding sexual behavior….” (Ibid., internal quotation marks and citations omitted].) Nevertheless, in addition to the fact that Defendant did not clearly state a privacy objection to each of the questions at issue, he does not explain how each question implicates this right. Some of the questions at issue concern events leading up to alleged prior instances of sexual assault and do not themselves seek information about Defendant’s sexual behavior. Moreover, he does not articulate why his expectation of privacy is objectively reasonable and threatened by a serious intrusion under the circumstances. Plaintiff alleges and other victims testified that Defendant primarily engaged in misconduct in public and in front of other people, and so it is not a foregone conclusion that he had an objectively reasonable expectation of privacy that is threatened by a serious intrusion.

In any event, even assuming a number of the questions (e.g., No. 9) do intrude into this protected sphere, Defendant’s right is not absolute. Under the circumstances, the Court finds Plaintiff has a strong countervailing need for this evidence to prove her case and rebut attacks on her credibility by Defendant. The Court finds this countervailing need outweighs the limited intrusion, if any, based on a review of the specific questions Plaintiff seeks to have answered. This finding is bolstered by the course of discovery and the litigation history of this case. For these reasons, Defendant’s right to privacy does not justify his refusal to answer the questions at issue.

Finally, Defendant concludes his opposition by diverging into past discovery disputes that are not material to the present motion. He also asks the Court to reconsider earlier rulings, while simultaneously stating he is actually just inviting the Court to do so on its own and is not formally requesting this himself. He also states he should be afforded broader discovery. None of these arguments are relevant and responsive. And so, the Court does not address them.

For all of these reasons, Plaintiff’s motion to compel Defendant to answer the deposition questions set forth in her separate statement is GRANTED. Defendant shall appear for further deposition within 30 calendar days of the Court’s order.

III. Request for Monetary Sanctions

Plaintiff seeks an award of monetary sanctions against Defendant and his counsel in the amount of $25,795.

Under Code of Civil Procedure section 2025.480, subdivision (j): “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, 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.” Defendant unsuccessfully opposed the motion in the absence of substantial justification. And, there are no other circumstances that make the imposition of a sanction unjust. Plaintiff is, therefore, entitled to an award of monetary sanctions.

The Court applies well-settled principles to determine the amount of the award. (See generally Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691.) Attorney Michelle Lee, a partner at her firm, states she spent 32 hours preparing the moving papers and 14.9 hours preparing the reply at a rate of $550.00 per hour for a total of $25,795. This is not a reasonable amount of attorney’s fees. Upon reviewing Ms. Lee’s billing entries, the Court finds the time spent was grossly disproportionate to the nature, scope, and complexity of the motion, particularly the large number of hours spent researching hornbook principles of admissibility that are not dispositive of the issue actually presented to the Court. The Court also finds the hourly rate is not reasonable based on its experience, in the absence of other evidence, and for vague administrative tasks such as “oversee filing.” (Lee Reply Decl., Ex. E.) The Court therefore concludes the reasonable attorney’s fees incurred in connection with the motion are $8,500.

Plaintiff’s request for an award of monetary sanctions is, therefore, GRANTED. Defendant and his counsel shall pay Plaintiff—through her counsel—$8,500 within 30 calendar days of the Court’s order.

IV. Renewed Motion to Seal

In February 2019, Plaintiff filed a motion for a protective order. She also filed a motion to seal Defendant’s opposition to the motion as well as the accompanying declaration of KC Maxwell and exhibits attached thereto. The Court denied Plaintiff’s motion without prejudice because she did not make a sufficient showing that the records should be filed under seal. Before the Court is Plaintiff’s renewed motion, which Defendant does not oppose.

Under rules 2.550 and 2.551 of the California Rules of Court, a party that seeks to seal court records must establish: “(1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” (Cal. Rules of Court, rule 2.550(d).) These rules do not apply to discovery motions. (Cal. Rules of Court, rule 2.550(a).) Nevertheless, the Sixth District has stated that—even if the strict standards above do not apply in the context of a discovery dispute—“a reasoned decision about sealing or unsealing records cannot be made without identifying and weighing the competing interests and concerns…[namely:] (1) identifying the specific information claimed to be entitled to such treatment; (2) identifying the nature of the harm threatened by disclosure; and (3) identifying and accounting for countervailing considerations.” (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894.) When a party fails to establish court records should be sealed, the records may be publicly filed upon notice from the party or stricken from the record. (Id. at pp. 899–900.) The records may not remain lodged under seal in perpetuity. (Ibid.)

Plaintiff now provides a conclusory statement that the redactions she proposes are warranted because failure to redact would invade her privacy and cause embarrassment. In other words, she really has not made any additional effort to justify her motion. With that said, the Court reviewed the materials, and it is self-evident some of the materials are quite sensitive.

With respect to the opposition brief, Plaintiff’s rationale solely justifies the following redactions: p. 17:10–11 as well as the first three words on line 12; and p. 17:16–17. These specific redactions are warranted given the level of detail they contain. Plaintiff’s own evidence shows the remaining proposed redactions are not warranted because they concern matters with no privacy nexus, such as whether an objection was made, as well as matters that she spoke publicly about on a number of occasions and has already publicly-filed in the record. (Opp. at p. 8:19–28; see Lee Decl., Ex. 8.) And so, only the redactions to page 17 of the opposition (specified above) are warranted.

Turning to the declaration of KC Maxwell, Plaintiff seeks to seal portions of the declaration itself as well as Exhibits 2–7 attached thereto. The proposed redactions to the declaration itself are warranted—with the exception of paragraph 19—because the information consists of materials from Plaintiff’s medical records and more detailed information about her childhood. As for the exhibits, there is justification for sealing Exhibits 4–7. But Plaintiff fails to justify sealing Exhibits 2–3, deposition testimony and responses to form interrogatories, in their entirety.

Given the nature of this case, the Court anticipates the parties will request to seal court records again in the future. Counsel for Plaintiff and Defendant shall review and comply with the California Rules of Court, local rules, and procedures for electronically filing redacted documents and electronically lodging unredacted documents under seal. This is in addition to the Court’s expectation that counsel review and comply with established precedent. (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 499–500; Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 600.) The Court need not abide noncompliance, irrespective of whether it results from inadvertence or intentional conduct; it is an inefficient use of judicial resources, needlessly increases litigation costs, and impairs the Court’s ability to timely and effectively seal matters that are truly sensitive and need to be shielded. (See Overstock.com, supra, 149 Cal.App.4th at p. 498.)

In conclusion, Plaintiff’s motion to seal is GRANTED IN PART and DENIED IN PART. The Court directs the clerk of court and the parties as follows.

The clerk shall immediately:

1. Seal the unredacted opposition to Plaintiff’s motion for protective order filed by Defendant on February 20, 2019 at envelope 2535004.
2.
3. Strike and permanently delete from the record as irrelevant and unnecessary the lodged under seal declaration of KC Maxwell filed by Defendant on June 6, 2019, in support of his statement of nonopposition to the motion to seal and permanently delete the unredacted version of the same that was conditionally lodged under seal in electronic form. (See Overstock.com, supra, 149 Cal.App.4th at pp. 499–500.)
4.
Plaintiff shall:

1. Notify the Court within 10 calendar days of the Court’s order whether she wishes Exhibits 2–3 of the declaration of KC Maxwell lodged on February 21, 2019, to be filed unsealed. (See Cal. Rules of Court, rule 2.551(b)(6).)
2.
a. In the event Exhibits 2–3 are to be publicly filed, Plaintiff shall file an updated version of the KC Maxwell declaration and accompanying exhibits that does not redact either paragraph 19 or Exhibits 2–3.
b.
c. In the event Plaintiff does not wish Exhibits 2–3 to be publicly filed, they shall not remain lodged under seal and will be permanently deleted. To this end, Plaintiff’s updated redactions of the KC Maxwell declaration shall entirely omit Exhibits 2–3.
d.
Defendant shall:

1. Redact the opposition to Plaintiff’s motion for protective order consistent with the Court’s ruling above about the redactions that are warranted and electronically file this document within 10 calendar days of the Court’s order.
2.
The Court will prepare the order.