Case Name: Ivory Thomas vs Los Gatos Ace Mercantile, Inc.
Case No.: 16CV296521

Plaintiff Ivory Thomas (“Plaintiff”) has filed a motion to compel the production of private and personal information from another employee’s personnel file (Thomas Furtado), namely documents related to “misconduct”, including absences, tardiness, or failing to call in absences, along with the employer’s response. As stated in the evidence submitted in opposition, these documents likely include private medical information of the third party Furtado who has disclosed that he suffers from diabetes that is not directly relevant to this action. Defendant Los Gatos Mercantile, Inc. (“Defendant”) and the third party Furtado have objected to the production of the documents on privacy grounds, citing to Alch v. Superior Court (2008) 165 Cal.App.4th 1412 and Board of Trustees of Leland Stanford Jr. Univ. v. Sup. Ct. (1982) 119 Cal.App.3d 516. The Court agrees with Defendant that the employee documents sought are protected by the privacy rights of third party Furtado.

Although a party need not always show a compelling public need for particular documents to seek discovery of private records, the Court is required to examine the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and other protective measures. (Williams v. Superior Court (2017) 3 Cal.5th 531; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1.) Moreover, when a discovery request seeks information implicating the constitutional right of privacy, to order discovery simply upon a showing that the test for relevance has been met is an abuse of discretion. (Williams, supra.) Here Plaintiff argues that the documents are needed to prove discrimination, if the third party Furtado was treated differently than the Plaintiff.

The motion to compel is DENIED. The Court finds Plaintiff has not established a sufficient need for these documents that are admittedly private, that overrides Furtado’s privacy interests in both his employment and his medical history. Plaintiff relies heavily on the Williams case cited above, in which the court held that the identity of and contact information of other employees could be sought in a PAGA case in which the other employees could potentially recover, but only after a notice was sent by the employer to determine if any employee objected. The Williams court specifically noted that the contact information sought in that case, was admittedly less sensitive than “one’s medical history.” Here, the records sought go far beyond contact information, and specifically invade not only Furtado’s privacy rights as an employee, but also his privacy rights to medical records. The requests are not narrowly tailored, Plaintiff has not shown a sufficient need for the documents, Furtado has objected, and Plaintiff has been provided a satisfactory alternative means to gain the information he needs, by taking Furtado’s deposition. The Court finds that Furtado did not waive his privacy interests by submitting to a deposition, but in fact that deposition provides an appropriate alternative in this setting to satisfy Plaintiff’s legitimate needs for discovery.