Case Number: BC609704 Hearing Date: March 21, 2018 Dept: 32

Preston Baty,

Plaintiff,

v.

Walgreen’s corporation, et al.,

Defendants.

Case No.: BC609704

Hearing Date: March 21, 2018

[TENTATIVE] order RE:

Motion to quash defendant’s subpoena

BACKGROUND

As set forth in the first amended complaint (“FAC”), Plaintiff Preston Baty (“Plaintiff”) alleges that he was severely injured at a Walgreens store. Plaintiff asserts causes of action against Defendants Walgreen’s Corporation (“Walgreens”) and Sean Anderson (“Anderson”),a store employee, for (1) negligence; (2) negligent hiring/retention/supervision/training; (3) assault; and (4) battery.

DISCUSSION

Plaintiff moves to quash the subpoena served by Walgreens on T-Mobile USA, Inc. The subpoena seeks the cellular phone records of Plaintiff and non-party Simeon Molina. In opposition, Walgreens explains that the incident at the center of the FAC occurred when Plaintiff attempted to return two items which he claims were purchased from another Walgreens location. The Walgreens employee assisting Plaintiff purportedly informed him that she was unable to find the items in Walgreens’ database and thus was unable to process the return. Plaintiff purportedly became upset which led to the incident alleged in the FAC.

To that end, Walgreens contends that one of the issues in this case is whether Plaintiff’s attempted return of the items was proper. However, this assertion is made without any explanation or justification. Walgreens does not explain how the propriety of Plaintiff’s attempted return is relevant to the elements of negligence. Walgreens asserts that the phone records of Plaintiff and his partner, Simeon Molina, will verify this information in that they will identify telephone numbers that are linked with frequent purchaser programs at CVS, Rite-Aid, and Walgreens. This assertion is also made without any explanation or justification. Even if the propriety of Plaintiff’s attempted return was shown to be relevant, Walgreens fails to explain how Plaintiff’s phone records tend to prove or disprove that the attempted return was improper.

“[T]he California Constitution recognizes a number of inalienable rights, including the right to privacy. . . . Accordingly, a litigant may invoke the constitutional right to privacy as justification for refusing to answer questions that unreasonably intrude on that right. The right to privacy, however, is not absolute. In appropriate circumstances, this right must be balanced against other important interests. ‘On occasion [a party’s] privacy interests may have to give way to [the] opponent’s right to a fair trial. Thus courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.’” (John B. v. Superior Court (2006) 38 Cal. 4th 1177, 1198–99 [citations omitted].) “The proponent of discovery of constitutionally protected material has the burden of making a threshold showing that the evidence sought is ‘directly relevant’ to the claim or defense.” (Harris v. Superior Court (1992) 3 Cal. App. 4th 661, 665.)

Here, Walgreens fails to make any showing of relevance, let alone direct relevance. As such, Plaintiff’s right to privacy in his phone records overrides Walgreens’ right to discovery.

Based on the foregoing, the motion to quash is GRANTED.