Case Name:??? Stephanie Ziesel v. Ballet San Jose Silicon Valley, et al.??? ?????????????
Case No.:??????? 2015-1-CV-286768
Motion to Quash Subpoena for Employment Records by Plaintiff Stephanie Ziesel????????????
Factual and Procedural Background
This is an employment action.? Plaintiff Stephanie Ziesel (?Plaintiff?) began working for defendant Ballet San Jose Silicon Valley (?Ballet?) on May 19, 2009, as its Executive Director, pursuant to a written employment contract that set her compensation and other terms of employment.? (See First Amended Complaint [?FAC?] at ? 5.)? The written contract had a four-year term.? (Ibid.)? Defendant Millicent Powers (?Powers?) is the Chair of the Ballet?s Board and Plaintiff?s joint employer as she personally controlled Plaintiff?s wages, hours, and/or working conditions.? (Id. at ? 3.)? Plaintiff alleges that the Ballet failed to pay her wages and reimburse her for business expenses.? (Id. at ?? 13, 14, and 19.)? Powers, accompanied by another Board member, terminated Plaintiff?s employment in May 2014, with defendants still owing her substantial wages and reimbursements.? (Id. at ? 15.)
On January 20, 2016, Plaintiff filed a FAC, now the operative pleading, setting forth causes of action for: (1) breach of written contract; (2) breach of oral contract; (3) failure to pay wages upon termination; (4) waiting time penalties; (5) failure to pay minimum wage; (6) failure to pay business expenses; (7) failure to pay overtime; and (8) unfair business practices.
On March 22, 2016, Powers served subpoenas to Latham and Watkins and the San Francisco Ballet Association requesting production of Plaintiff?s employment records.? Specifically, each subpoena requested the following:
?ALL RECORDS, INCLUDING ALL ELECTRONICALLY STORED INFORMATION, RELATING TO EMPLOYMENT, INCLUDING BUT NOT LIMITED TO: (A) Personnel records, including employment application/resume, performance evaluations, records of disciplinary action, disability claims, workers compensation claims, and medical records pertaining to the individual?s employment.? (B) Payroll records including salary, wages, commissions or other remuneration paid or held by the employer, W-2 forms, time sheets and records of time off the job and reasons therefore, including sick leave and vacation.?
(See Declaration of Michael Curtis at ? 2, Exhibit A & B.)
Plaintiff?s attorney initiated a meet and confer with defense counsel in an effort to withdraw or narrow the subpoenas as they were overbroad.? (See Declaration of Michael Curtis at ? 3, Exhibit C.)? During meet and confer, defense counsel suggested that Powers would be willing to narrow or withdraw the subpoenas if Plaintiff produces documents relating to her unlicensed practice of law at Latham and Watkins.? (Ibid.)? Defense counsel also agreed to narrow the scope of the subpoenas to exclude any confidential medical information contained in her files, except for information related to substance abuse.? (Ibid.)? Plaintiff rejected the proposed modifications and the parties were unable to informally resolve the discovery dispute.
Currently before the Court is Plaintiff?s motion to quash the subpoenas for employment records.? (See Code Civ. Proc., ?? 1985.6, subd. (f) and 1987.1.)? Powers filed written opposition.? Plaintiff filed reply papers.? Both sides seek an award of monetary sanctions in conjunction with the motion.
Motion to Quash Subpoenas
Plaintiff moves to quash the subpoenas for employment records because the requests are overbroad and violate Plaintiff?s privacy rights.? Powers argues that the subpoenas seek information that is directly relevant to Plaintiff?s claims in this action.
Legal Standard
Code of Civil Procedure section 1985.6, subdivision (f) in conjunction with Code of Civil Procedure section 1987.1 authorize a party to bring a motion for an order ?quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders.? In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of a witness?s or consumer?s right of privacy.?
Overbroad
Plaintiff persuasively argues that the subject subpoenas are overbroad as they request information and documents beyond the scope of this litigation.? As written, the subpoenas request any and all employment records from Latham and Watkins and the San Francisco Ballet Association which were Plaintiff?s former employers.? As stated above, Powell, during meet and confer, attempted to limit the scope of the documents to those related to Plaintiff?s alleged unlicensed practice of law and information related to her substance abuse.? In doing so, Powell argues that such documents are relevant to Plaintiff?s claim for unfair business practices as well as Plaintiff?s ability to perceive facts in the case.? However, such documents do not appear sufficiently relevant as this case involves statutory Labor Code violations for failing to pay wages to Plaintiff and reimburse her for business expenses.? Furthermore, to the extent that Powell only intended to request these documents, she should have withdrawn her subpoenas and served new subpoenas to narrow the universe of documents.? Having failed to do so, the Court finds that the subpoenas are overbroad.
Right to Privacy
Even if the requested documents meet the standard for relevance, Plaintiff argues that the subpoenas violate his constitutional right to privacy.? Powell claims that such documents are directly relevant to claims and defenses in this action.
The right to privacy protects an individual?s ?reasonable expectation of privacy against a serious invasion.?? (Pioneer Electronics, Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.)? It is well-established that the right to privacy extends to a person?s work history and personnel documents.? (See Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1426-1427 [work history]; Board of Trustees of Leland Stanford Jr. Univ. v. Superior Court (1981) 119 Cal.App.3d 516, 528-530 [personnel records].)
Where a serious invasion of the right to privacy is shown, the proponent of the discovery must demonstrate that the information sought is ?directly relevant? to a claim or defense, and ?essential to the fair resolution of the lawsuit.?? (Britt v. Superior Court (1978) 20 Cal.3d 844, 859; see also Binder v. Superior Court (1987) 196 Cal.App.3d 893, 901 [holding ?direct relevance? requires something more than an assertion that the requested discovery might lead to admissible evidence].)? Once direct relevance has been demonstrated, the proponent of discovery must show that the information sought is not available through less intrusive means.? (Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.)? The Court must then carefully balance the right to privacy on the one hand, and the right of civil litigants to discover facts, on the other.? (Pioneer Electronics, Inc. v. Superior Court, supra, 40 Cal.4th at p. 371.)
Confidential personnel files at a person?s place of employment are within a zone of privacy.? (Board of Trustees of Leland Stanford Jr. Univ. v. Superior Court, supra, 119 Cal.App.3d at pp. 528-530.)? The subpoenas seek documents from Plaintiff?s previous employers which are protected by Plaintiff?s right of privacy.? Therefore, Powell must show that the documents are directly relevant to the instant lawsuit.
Powell argues that the documents are directly relevant to her defense of unclean hands, to Plaintiff?s claim for unfair business practices, to impeach Plaintiff?s credibility, to investigate Plaintiff?s joint employer allegations, and to examine Plaintiff?s ability to perceive facts in her lawsuit by obtaining documents related to her substance abuse. However, to the extent that any documents are relevant to affirmative defenses in Powell?s answer or any cross-complaint, no such pleadings have been filed with the Court at this time.? Nor does Powers explain how Plaintiff?s employment records from prior employers are directly relevant to the joint employer allegations.? Even if the employment records were directly relevant, Powell fails to demonstrate that the requested information is not available through less intrusive means.? The documents requested likely include extraneous and potentially embarrassing information with little or no relevance to this lawsuit.? Powell does not argue otherwise.? Furthermore, as Plaintiff is a party in this action, Powell may be able to obtain the requested information through noticing Plaintiff?s deposition and including a request for production of documents. Accordingly, as Powell has not established that the employment records are directly relevant to Plaintiff?s claims or that the subpoenas are the least intrusive means of acquiring the information, the privacy objection is also well-taken.
Therefore, the motion to quash subpoenas for employment records is GRANTED.
Requests for Monetary Sanctions
Powell?s request for monetary sanctions is DENIED as she fails to prevail in opposing the motion.
Plaintiff?s request for monetary sanctions is DENIED as the Notice of Motion fails to request sanctions against Powell or her counsel.? (See Code Civ. Proc., ? 2023.040 [?A request for sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.?].)