Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; application for Super. Ct. No. GC38713. Joseph DeVanon, Judge.
The Garcia Law Firm, Stephen M. Garcia, David M. Medby, William M. Artigliere, Edward Lara; Schadrack & Chapman and Mark Schadrack for Petitioners.
No appearance for Respondent.
Beach│Whitman│Cowdrey, Thomas E. Beach and Rebecca Blackstone Lowell for Real Parties in Interest.
ZELON, J.
Margaret Andrews and the other successors in interest of Reyes C. Angelo filed a civil suit against entities who provided care to Angelo prior to her death and against individuals who owned or operated the facilities. During discovery, the defendants obtained a protective order blocking the release of nursing facility employees’ records and the use of an opt-in letter to contact other residents of the nursing facility. Plaintiffs, petitioners here, seek a writ of mandate compelling the trial court to vacate its order granting the protective order. We issued an order to show cause, and now issue a writ of mandate ordering the trial court to vacate its ruling granting the protective orders and to enter new, more limited protective orders that allow relevant discovery in this elder abuse litigation while protecting the privacy interests of nonparties who are involved.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs, petitioners here, filed a complaint on March 15, 2007, alleging 11 causes of action against the defendants, including elder abuse and wrongful death. The complaint alleged that Angelo had been a resident of a skilled nursing facility called San Marino Manor from January 2003 to January 2006, except for a brief period in 2005 during which she was in a hospital.
I. Requests for Production of Documents
In the course of discovery, plaintiffs served a notice for the deposition of the person most knowledgeable for defendant Coordinated Care Center, Inc. In the deposition notice, plaintiffs requested that the deponent produce two categories of documents: the job performance evaluations for all San Marino Manor employees during the time Angelo resided there; and all writings reflecting any San Marino Manor employee discipline during the time Angelo resided there. The notice provided that employee names could be redacted. Coordinated Care Center objected to the document demands on the basis of privacy, relevance, overbreadth, and a claim that the documents’ production would violate confidentiality regulations.
Coordinated Care Center moved for a protective order to bar this discovery. Andrews subsequently offered to narrow the document production requests to only seek the job performance evaluations and discipline records from 2003 through 2006 for employees who provided care to Angelo.
II. Special Interrogatories
Also during discovery, plaintiff Elizabeth Masumoto propounded special interrogatories to Coordinated Care Center. Special Interrogatory No. One asked for the name, last known residence, and telephone number of each resident of the facility during the time Angelo lived there. Special Interrogatory No. 2 asked for the name, last known residence, and telephone number of the responsible party for each of the facility residents who resided in the facility while Angelo did. Concurrently with these interrogatories, plaintiffs’ counsel served what it termed “a pre-emptive meet and confer letter” proposing a compromise process for obtaining the information sought by the interrogatory. According to this letter, “plaintiff is willing to compromise and have a third party mailing house send letters to these residents notifying them that their names and contact information will be disclosed to plaintiff only absent their affirmative objection to such disclosure. See, attached letter.” Although this text appears to propose an opt-out system, the attached draft letter set forth an opt-in procedure by which contact information would be disclosed to plaintiffs’ counsel only upon the recipient’s return of a completed form authorizing such disclosure.
Coordinated Care Center objected to the interrogatories and moved for a protective order.
III. Hearing on Motions for Protective Orders
The motions for protective orders were calendared together. Prior to the hearing, the trial court issued the following tentative ruling: “Motions for protective orders are granted. Objections to Special Interrogatories 1 and 2, and to Requests for Production of Documents in Connect[]ion with Deposition of Defendant’s Person Most Knowledgeable, are sustained. Plaintiffs and their attorney of record are ordered to pay monetary sanctions to Defendant in the amount of $3,200.00 within 30 days.”
The court conducted its hearing on the motions for protective orders on September 3, 2009. On the subject of the document requests, plaintiffs’ counsel argued that to prove a cause of action for elder abuse, they would have to prove the unfitness of employees. Because the administrator of the facility had stated at deposition that discipline reports of employees, employee satisfaction surveys, and annual performance evaluations were used by the facility to determine whether employees were fit for their job duties, plaintiffs argued that they needed those documents to prove their charge of unfitness. The court asked, “[I]f defendants have employees who are not meeting the standards of an elder care establishment, can’t you reach that information by way of interrogatories?” The court continued, “Why this wholesale invasion of the personnel files? It seems like a fishing expedition to me.”
Plaintiffs’ counsel responded that during discovery in this type of litigation, they frequently obtain the names and addresses of former employees who are witnesses to the alleged elder abuse. He argued that in his experience, when these former employees are called to testify about the faults of the facility, on cross-examination the facility’s counsel relies on the personnel file for impeachment-in other words, the facility uses personnel records “as a sword and a shield.” Counsel reiterated his argument that the personnel files, with names redacted, were necessary to prove the elder abuse case, stating that plaintiffs would be unable to prove the unfitness of employees without the records. Counsel contended that at deposition, if he were to ask, “Did you have any employees who were unfit? Did you have notice or knowledge of that? Of course they are going to say no.” He asserted, “There should be something in the file according to the deposition I took and attached to our opposition that shows a process by which these employees are disciplined, and their performances evaluated, which we should be able to explore and see whether or not these employees were fit for their job.”
Defense counsel argued in response that if there are former employees who have reported deficiencies at the facility to plaintiffs’ counsel, then plaintiffs’ counsel is aware of these individuals’ names “and they can narrowly tailor a request for production of documents for that particular employee’s personnel file.” Counsel complained about the wholesale nature of the original request, stating that it would be a different matter if the plaintiffs were seeking records of individuals who allegedly fell below the standard of care, “[b]ut right now they just want every single employment file of every single employee in the facility for three years.”
Plaintiff’s counsel drew the trial court’s attention to the narrowed request for production proposed during the meet and confer process: “[W]e actually offered that before the deposition that we would narrow our request for the production of documents only to those individuals who treated or cared for our client and that was refused by defendants out[]right.” The court responded, “The problem I have is all those employees have privacy rights as well. So, without more of a showing by you, I don’t think that statutorily I even have authority-the authority to order their disclosure of their personnel file in the hopes that it might lead to something you can use down the line. That’s kind of where you are.” The court adopted its tentative ruling as its ruling on the request for the production of employee personnel records.
Turning to the special interrogatories, plaintiffs’ counsel inquired whether the court’s view toward granting the protective order was based on privacy concerns, and the trial court responded, “Certainly a major portion of the court’s concern.” Plaintiffs’ counsel argued that the opt-in procedure that plaintiffs had proposed would completely address any privacy concerns: “[W]e may not even know what the names and addresses of these individuals are. [¶] Our offer was to send a letter to either the responsible party or to the resident themselves, should they still be living and competent at this point in time to be able to opt in and come forward with information regarding the care and treatment that was provided either to [Angelo], or the substandard care they were provided by the facility. We may never know. If they decide not to call us, then there is no privacy concern there.”
Counsel also asserted that the residents of the facility were percipient witnesses. “Who are better to come in and testify about whether or not the call bells were answered in a timely manner. Whether or not they were allowed to wallow in [their] own feces and urine, but these residents themselves or their loved ones who witnessed these things. [¶] We feel that this information is discoverable, it’s pertinent, it’s relevant and these are percipient witnesses to our complaint in this matter.”
Counsel for the defendants said nothing. The court declined to change its tentative ruling and adopted it as the ruling of the court. Petitioners seek a writ vacating the protective orders.
DISCUSSION
I. Applicable Law
Code of Civil Procedure section 2017.010 provides that unless the court orders limits on discovery, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” “The scope of discovery is very broad” (Tien v. Superior Court (2006) 139 Cal.App.4th 528, 535), and it includes the right to “obtain[]... the identity and location of persons having knowledge of any discoverable matter....” (§ 2017.010.)
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
We discussed discovery rights and the intersection between discovery and the right to privacy in Puerto v. Superior Court (2008) 158 Cal.App.4th 1242. “The ‘expansive scope of discovery’ (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1108 (Emerson)) is a deliberate attempt to ‘take the “game” element out of trial preparation’ and to “do away ‘with the sporting theory of litigation-namely, surprise at the trial.”’ (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376 (Greyhound); see also Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 712, fn. 8 [discovery process is ‘designed to eliminate the element of surprise’].) One key legislative purpose of the discovery statutes is ‘to educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and facilitate trial.’ (Emerson, at p. 1107.) The discovery procedures are also ‘designed to minimize the opportunities for fabrication and forgetfulness.’ (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1119.) Consistent with these purposes, our Supreme Court has often stated that discovery statutes are to be construed broadly in favor of disclosure, so as to uphold the right to discovery whenever possible. (Greyhound, at pp. 377-378; Emerson, at pp. 1107-1108.) ‘Matters sought are properly discoverable if they will aid in a party’s preparation for trial.’ (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987.)
“Central to the discovery process is the identification of potential witnesses. ‘The disclosure of the names and addresses of potential witnesses is a routine and essential part of pretrial discovery.’ (People v. Dixon (2007) 148 Cal.App.4th 414, 443 [applying Civil Discovery Act (§ 2016.010 et seq.) in context of sexually violent predator proceeding].) Indeed, our discovery system is founded on the understanding that parties use discovery to obtain names and contact information for possible witnesses as the starting point for further investigations: ‘The Civil Discovery Act also provides that a party may obtain information by the use of various methods, including oral and written depositions. (Code Civ. Proc., § 2020.010, subd. (a).) The party’s ability to subpoena witnesses presumes that he has the witnesses’ contact information.’ (Dixon, at p. 443.) One glance at the form interrogatories approved by the Judicial Council, particularly the interrogatories in the 12.0 series, demonstrates how fundamentally routine the discovery of witness contact information is. These standard form interrogatories request the names, addresses, and telephone numbers of witnesses to the relevant incident, persons possessing tangible objects relevant to the investigation, and persons who have been interviewed or given statements about the incident, or made a report or investigation of the incident. (Judicial Council of Cal., Form Interrogatory Nos. 12.1-12.7.)
“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 (art. I, § 1), ‘protects the individual’s reasonable expectation of privacy against a serious invasion.’ (Pioneer Electronics (USA), Inc. v. Superior Court (2007)40 Cal.4th 360, 370 (Pioneer).) While there are many different phrasings of the analysis that is performed when a discovery request seeks arguably private information, the constant theme among the decisions is that in deciding whether to permit discovery that touches upon privacy, ‘California courts balance the public need against the weight of the right.’ (Denari v. Superior Court (1989) 215 Cal.App.3d 1488.) Drawing this ultimate balance requires a careful evaluation of the privacy right asserted, the magnitude of the imposition on that right, and the interests militating for and against any intrusion on privacy. (Pioneer, supra, 40 Cal.4th 360.)
“The methodology for considering the intersection of privacy and discovery was recently articulated by the California Supreme Court in a related, though not identical, context in Pioneer. The specific question presented in Pioneer, supra, 40 Cal.4th 360, was whether to use an opt-out or opt-in notice for precertification discovery of potential class members in a putative class action suit-consumers who had complained that their DVD players were defective. In evaluating the discovery order, the court applied the framework set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40 (Hill), for evaluating invasion of privacy claims. First, a claimant must possess a ‘legally protected privacy interest.’ (Hill, at p. 35.) Second, the claimant must have a reasonable expectation of privacy under the particular circumstances, including the customs, practices, and physical settings surrounding particular activities. (Id. at pp. 36-37.) Third, the invasion of privacy must be serious in nature, scope, and actual or potential impact. Trivial invasions do not create a cause of action. (Id. at p. 37.) If there is a reasonable expectation of privacy and the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing or 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. (Pioneer, at pp. 370-371.)” (Puerto, supra, 158 Cal.App.4th at pp. 1249-1251.)
This privacy analysis applies regardless of whether the individuals whose privacy interests are implicated have previously been identified as witnesses. (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 969.)
II. Application of Privacy Framework to the Discovery Requests and Protective Orders
Applying the Pioneer and Hill privacy framework here, we review the trial court’s order for an abuse of discretion. (Pioneer, supra, 40 Cal.4th at p. 371.)
A. Employee Personnel Records
Petitioners argue that the trial court entirely failed to perform the balancing test with respect to access to the employees’ performance reviews, as evidenced by the court’s failure to specifically mention the balancing test set forth in Hill, supra, 7 Cal.4th 1. Petitioners also assert that rather than performing the Hill balancing test, the trial court “erroneously stated that it was statutorily precluded from ordering the disclosure of the employment files.” The court’s comment, however, shows that the court performed the required balance but found plaintiff’s showing insufficient to outweigh the employees’ privacy concerns. The court said, “[W]ithout more of a showing by you, I don’t think that statutorily I even have authority-the authority to order their disclosure of their personnel file in the hopes that it might lead to something you can use down the line.” (Emphasis added.)
Although in its ruling the trial court did not state any reasoning for granting the protective order with respect to the request for production of employee personnel records, at the hearing it did express concerns that the request violated the employees’ privacy rights and that relevant information or a more targeted request could be developed through discovery. Implicit in the trial court’s ruling granting the protective order is the factual determination that the employees entertained a reasonable expectation of privacy in their personnel files, that there would be a serious invasion of privacy from the disclosure of the requested portions of the personnel files, and that in balancing the opposing interests the witnesses’ privacy interest in their personnel files outweighed plaintiffs’ interest in obtaining the information contained therein. We conclude that although the private nature of the employees’ performance evaluations in their personnel files merited a protective order, the protective order entered by the trial court was overly broad and failed to adequately ensure that the plaintiffs could gain access to that information in the records to which they were entitled in the course of discovery.
There is no question that the facility employees entertained a privacy interest and a reasonable expectation of privacy in their employment records, including the performance reviews that petitioners seek. (Puerto, supra, 158 Cal.App.4th at p. 1251 [describing the “obvious privacy interest” nonparty individuals have in their employee personnel files]; Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10.) This privacy interest is recognized by section 1985.6, which requires advance warning and a specific warning to employees when employment records are sought by subpoena. Moreover, the invasion of privacy that would result from the release of the personnel records is serious in nature, scope, and potential impact. What is at stake is not some identifying information concerning witnesses-it is information that goes to the heart of individuals’ employment performance, and it is not the sort of information that employees would customarily expect an employer to share with third parties. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 526 (Board of Trustees) [“manifest” that the personnel, tenure, and promotion files of a professor are private and maintained in confidence].)
With an obvious privacy interest and a clear intrusion on the nonparties’ employment records, pursuant to Hill, supra, 7 Cal.4th 1 we balance those privacy interests with the competing interests in favor of some form of access to the records sought. Petitioners clearly have an interest in obtaining evidence relevant to their elder abuse claims. The Legislature has set a high bar for elder abuse claims: “[T]he acts proscribed by [Welfare and Institutions Code] section 15657 do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence.” (Delaney v. Baker (1999) 20 Cal.4th 23, 32.) Before a plaintiff may obtain damages or attorney fees from an employer for elder abuse perpetrated by its employees, “[t]he standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied.” (Welf. & Inst. Code, § 15657, subd. (c).) Section 3294, subdivision (b) of the Civil Code precludes the imposition of liability on an employer for employee acts “unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” As the California Supreme Court has observed, “In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.” (Delaney, at p. 31.) Particularly when considering the heightened standard for elder abuse, documented lapses in employees’ performance-to the extent that they relate to patient care-are highly relevant to establishing claims that employer had advance knowledge of an employee’s unfitness and employed unfit individuals with conscious disregard of the rights and safety of others.
Job evaluations and discipline records identifying employee deficiencies that do not relate to any possible issue of elder abuse-for instance, employee violations of facility standards that have no connection to patient care-would not appear to be relevant to the issues raised by the elder abuse litigation.
Public policy concerns, those that motivated the enactment of the elder abuse laws, also weigh in favor of the disclosure of conduct relevant to the elder abuse claims here. The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) was designed to protect elders and dependent adults from abuse, neglect, and abandonment. The Legislature recognized that elderly persons are particularly vulnerable to risks of abuse, neglect, and abandonment, and identified infirm elders and dependent adults as a disadvantaged class (Welf. & Inst. Code, § 15600, subds. (b) & (h).) Recognizing that “few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits” (Welf. & Inst. Code, § 15600, subd. (h)), the Legislature specified that its intent in enacting the remedies provisions of the Act was “to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.” (Welf. & Inst. Code, § 15600, subd. (j).) In short, the Legislature sought to encourage and promote legal actions in cases of elder abuse, and identified the problem of recourse for elder abuse as a particular state priority. (Welf. & Inst. Code, § 15600; see also Sanders v. Lawson (2008) 164 Cal.App.4th 434, 439 [purpose of Elder Abuse Act is “to encourage private enforcement of laws to protect a particularly vulnerable sector of the population from abuse and custodial neglect”].)
Also considered in the balance is the employees’ strong interest in the privacy of their personnel files. The facility argues that the discovery would “invad[e] their expectation of privacy of their home information.” Even in its initial broad wording, we do not understand how “home information” would be at stake, for job performance evaluations and employee discipline records are all that are sought, and the facility does not explain how those would divulge address information. Moreover, the plaintiffs narrowed their request from its original broad incarnation: plaintiffs declared that they sought the job performance evaluations and discipline records of only those facility employees who provided care to Angelo, and with the names of the individuals redacted. Plaintiffs’ proposed limitation to job performance evaluations and the redaction of the employees’ names addresses the privacy concern that personal information unrelated to the litigation would be made available to the plaintiffs here. Furthermore, plaintiffs limited the scope of their request by time period as well, seeking records only from 2003 through 2006, the period of Angelo’s residence in the facility and further limiting the potential intrusion on privacy to only the time period relevant to the litigation.
Having examined the competing interests, we conclude that it was an abuse of discretion for the trial court to issue a protective order blocking the document production in its entirety rather than permitting the discovery limited to job performance evaluations and employee discipline records (1) concerning patient care; (2) for those employees who provided care to Angelo; (3) for the period 2003 through 2006; and (4) with the identifying information of the employees redacted.
B. Request for an Opt-In Letter to Facility Residents and Responsible Parties
Plaintiffs requested that residents who lived at the facility while Angelo was a resident, as well as their responsible parties, be contacted by a third party by means of a letter permitting them to authorize disclosure of their contact information to counsel. Here, the trial court made no comments in the tentative order, the final order, or at argument about why the protective order was granted, except to confirm that privacy was “a major portion of the court’s concern.” As an opt-in letter would have addressed any privacy concerns here, we conclude that the trial court abused its discretion in issuing a protective order with respect to the requests for witness contact information rather than ordering the requested opt-in letter procedure.
Plaintiffs’ request for this information was clearly designed to elicit the “fundamentally routine” discovery of the identities and contact information of potential witnesses. (Puerto, supra, 158 Cal.App.4th at p. 1250.) Moreover, by the time of the hearing on the protective order motion, the plaintiffs were not even seeking direct access to the contact information-they had scaled back their original request to ask only that those potential witnesses be contacted to see if they wished their contact information to be disclosed to the plaintiffs. The opt-in letter approach completely remedied any potential intrusion on the individuals’ privacy involved in a release to plaintiffs of the contact information. Under plaintiffs’ proposed plan for an opt-in letter, no information would be disclosed to the plaintiffs unless the individuals consented. Therefore, under plaintiffs’ compromise proposal for opt-in letters, there was no invasion of privacy that was “serious in nature, scope, and actual or potential impact.” (Hill, supra, 7 Cal.4th at p. 37.)
Defendants’ argument that the mere receipt of the opt-in letter is a violation of the residents’ privacy rights is not well taken. To the extent that receipt of a single communication inquiring whether the individual wished contact information to be disclosed to counsel could possibly be considered to infringe on the right to be left alone (White v. Davis (1975) 13 Cal.3d 757, 774), this invasion of a single piece of mail-which, if ignored, would result by default in no disclosure of contact information-cannot be considered serious in nature, scope, and actual or potential impact. (Hill, supra, 7 Cal.4th at p. 37.)
When there is no serious invasion of privacy, no balance of opposing interests is required. (Pioneer, supra, 40 Cal.4th at p. 373.) Because no serious invasion of privacy existed based on plaintiffs’ proposed plan for the issuance of opt-in letters, it was an abuse of discretion to grant a sweeping protective order rather than to order the discovery by means of plaintiffs’ proposed opt-in procedure. (§ 2030.090, subd. (b)(4).)
III. Sanctions Order
The trial court ordered sanctions in the amount of $3,200 against plaintiffs and their counsel in conjunction with the two protective orders issued at the September 3, 2009 hearing. Our conclusion that a peremptory writ should issue ordering the requested discovery to proceed under the limited protective orders consistent with the positions advocated by the petitioners requires that the sanctions award be vacated.
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to vacate its protective orders and its sanctions order, and to enter two new protective orders as follows: With respect to the document production requests, the court is directed to enter a new order requiring the production of the requested job performance evaluations and employee discipline records (1) concerning patient care; (2) for those employees who provided care to Angelo; (3) for the time period 2003 through 2006; and (4) with the identifying information of the employees redacted. With respect to the special interrogatories, the court is directed to enter a new order allowing disclosure and contact only if the witness consents by means of an opt-in procedure. The order to show cause, having served its purpose, is discharged. Petitioners shall recover their costs.
We concur: PERLUSS, P. J., WOODS, J.