An issue that occasionally arises in employment case is, what are the bounds of third party privacy rights during discovery? This issue can arise when a plaintiff seeks discovery of information about his or her former coworkers (including age, race, dates of employment and job titles) in support his or her case, but the employer refuses to produce the information, claiming it is protected on privacy grounds.
The right to privacy springs from the California Constitution, Article 1, section 1. Since the right to privacy was added to the Constitution in 1974, there have been numerous cases that discuss how this right to privacy interacts with a litigant’s right to conduct discovery and pursue his or her claim. One such case is Valley Bank of Nevada v. Superior Court (1975) 15 Cal. 3d 652, 657, which discusses the balancing of these competing issues.
This week, the Court of Appeals again addressed this issue in the case of Alch v. Superior Court, (2008) ___ Cal.App.4th ___ (Second Appellate Dist., No. C203726) Cecile Alch and other television writers, brought class action lawsuits against Time Warner Entertainment Company and other studios, alleging age discrimination.
As part of discovery, Alch served subpoenas on third party companies including the Writers Guild of America, requesting data on members of the guild. Alch hoped to use this data to create a statistical analysis which would demonstrate that the studios were discriminating against older writers and that even neutral policies had a disparate impact on older writers. The subpoenaed information included demographic and work-history information for the guild’s members.
After receiving the subpoenas, the guild sent a notice to its 47,000 members informing them of the subpoena and allowing them the opportunity to object on privacy grounds. 4,700 members objected on various grounds including concerns that disclosure of this information would lead to identity theft. The trial court sustained the objections, after which the plaintiffs filed a petition for writ of mandate.
The court of appeals granted the plaintiffs’ petition and overruled the trial court’s order. The court of appeals employed the balancing test found in Valley Bank. The court first found the objectors met the criteria to establish the requested documents were an invasion of their privacy. The plaintiffs then demonstrated that the requested information was directly relevant to their claims and essential to a fair resolution of the lawsuit. Thus, the information was discoverable. The court of appeals found that the trial court’s failure to analyze each category of requested information under the standard of Valley Bank was an abuse of discretion.
The most interesting points come in what were found to be insufficient defenses to the production of the information. First, the court held that just because some of the information may eventually prove irrelevant, it does not mean the information was totally irrelevant. The court stated that it does not make sense to require the plaintiff to show how this information fits into their statistical analysis before they are even in possession of it.
Second, work-history information, including employer identification, dates of employment, job titles, etc., was not reasonably expected to be confidential. Likewise, demographic information, including dates of birth and death, gender, race, residential ZIP codes, were not reasonably sensitive.
Finally, the court found that the number of people who objected, 4,700, was irrelevant to the balancing process and that nothing in this litigation caused a greater risk of identity theft than in any other civil litigation.
--Michael Sachs
