The California Litigator

April 30, 2012

While it is very broad, the right to discovery is not absolute, particularly where issues of privacy are involved.  The right of privacy in the California Constitution at Article I, § 1 “protects the individual’s reasonable expectation of privacy against a serious invasion.” [emphasis added] [Pioneer Electronics (USA) Inc. v. Superior Court (2007) 40 Cal. 4th 360, 370.]  Even highly relevant, non-privileged information may be shielded from discovery if its disclosure would impair a person's “inalienable right of privacy” provided by the California Constitution.  [San Diego Unified Port Dist. (1978) 20 C3d 844, 855–856; Pioneer, supra, at 370]  The right to privacy is also guaranteed by the U.S. Constitution.

The constant theme among the decisions relating to privacy rights is that, “California courts balance the public need against the weight of the right.”  [Denari v. County of Kern (1989) 215 Cal. App. 3d 1488]  Drawing this ultimate balance requires a careful evaluation of the privacy right asserted, the magnitude of the imposition of that right, and the interests militating for and against any intrusion on privacy.  [Pioneer, supra, at 370]

Who is Protected?  

A.     Natural Persons: The right of privacy is limited to “people,” meaning natural persons.

 B.     Business Entities: Some privacy protection exists for artificial business entities, apart from its members or shareholders: “(T)he nature and purposes of the corporate entity and the nature of the interest sought to be protected will determine the question whether under given facts the corporation per se has a protectable privacy interest.  Two critical factors are the strength of the nexus between the artificial entity and human beings and the context in which the controversy arises.” [Roberts v. Gulf Oil Corp. (1983) 147 CA3d 770, 791, 796–797]   Assuming a business entity has a right of privacy, courts must determine whether it is outweighed by the relevance of the information sought to the subject matter in the pending action. “(D)oubts as to relevance should generally be resolved in favor of permitting discovery.” [Hecht, Solberg, Robinson, Goldberg & Bagley v. Sup.Ct. (Panther) (2006) 137 CA4th 579, 595]

Privacy of Nonparties:

Information pertaining to a third person may be within the recognized “zone of privacy” protected from discovery in an action between other parties.

 A.     Identity of nonparties (contact information): Where nonparties' identity is relevant to the action, a party may be compelled to disclose their names, addresses, and phone numbers, provided the nonparties are notified and given an opportunity to object to disclosure of their contact information. No serious invasion of privacy is involved in such cases. [Pioneer Electronics (USA), Inc. v. Sup.Ct. (Olmstead) (2007) 40 C4th 360, 367]

 B.     Percipient Witnesses: Although disclosure may invade their privacy, there is generally no protection for the identity, addresses, and phone numbers of percipient witnesses.  Therefore, a court may not require the party seeking discovery to obtain the witnesses' consent to disclosure: “(A) percipient witness's willingness to participate in civil discovery has never been considered relevant—witnesses may be compelled to appear and testify whether they want to or not.” [Puerto v. Sup.Ct. (Wild Oats Markets, Inc.) (2008) 158 CA4th 1242, 1251–1252]  This rule is subject to certain limitations not discussed in this text.

C.     Private Information of Nonparties: In certain instances, a party may be entitled to discover confidential personal information of nonparties.  However, nonparties must be given notice and an opportunity to object to disclosure of their private information. Upon objection, the party seeking discovery must show a “compelling need” for the nonparty information.  A “compelling need” is demonstrated where the information is “directly relevant” and “essential to the fair resolution” of the lawsuit. [Britt v. Sup.Ct. (1978) 20 Cal 3d 844, 859]   Some of the factors to consider are contained in Alch v. Superior Court (2008) 165 Cal.App.4th 1412, as follows:

  • Purpose of the information sought;
  • Effect that disclosure will have on the parties and on the trial;
  • Nature of the objections urged by the party resisting disclosure;
  • Alternative order: partial disclosure, disclosure in another form, or on condition;
  • Nature of the information sought;
  • Inherent intrusiveness;
  • Specific showing of need for privacy and any specific harm that might result;
  • Countervailing interests, which include the interest of the requesting party, fairness to the litigants in conducting the litigation, and the consequences of granting or restricting access to the information.
  • Patently sensitive items such as medical and financial records.

D.     Special notice required when “personal records” of “consumer” or “employment records” subpoenaed: Special notice must be given upon subpoenaing the “personal records” of a “consumer” or “employment records” (unless the subpoenaing party is the consumer or employee whose records are sought). The person whose records are being subpoenaed is entitled to a hearing before delivery of the records. [See California Code of Civil Procedure Section 1985.3; 1985.6; 1985.7]



 

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DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this newsletter, or to any other website to which this e-zine/article may be linked.

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DISCLAIMER:  Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this website, or to any other website to which this website or articles may be linked.