Legal Document: Monika Chopra vs. Natera, Inc, a Delaware corporation, et al

On August 12, 2021 a resp to sep stmt was filed involving a dispute between Chopra, Monika, and Does 1 Through 50, Inclusive, Natera, Inc, A Delaware Corporation, for (36) Unlimited Wrongful Termination in the District Court of San Mateo County.

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1 F. Shawn Azizollahi (SBN 268116)
shawn@marqueelaw.com
2
Poya Ghasri (SBN 268119)
3 poya@marqueelaw.com
Gary Brotman (SBN 287726)
4 gary@marqueelaw.com
5
MARQUEE LAW GROUP, A Professional Corporation
9100 Wilshire Boulevard, Suite 445, East Tower
6 Beverly Hills, California 90212
(310) 275-1844 telephone
7 (310) 275-1801 fax
8
Attorneys for Plaintiff
9 MONIKA CHOPRA
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
COUNTY OF SAN MATEO
12
MONIKA CHOPRA, an individual, ) Case No.: 21-CIV-04310
13 ) Assigned for all purposes to:
) Hon. Nancy L. Fineman, Dept. 4
14 Plaintiff, )
) PLAINTIFF MONIKA CHOPRA’S
15 v. ) RESPONSE TO DEFENDANT’S
) SEPARATE STATEMENT IN
16
NATERA, INC., a Delaware corporation; and ) OPPOSITION TO
) PLAINTIFF’S MOTION TO
17 DOES 1 through 50, inclusive, ) COMPEL RESPONSES TO
) PLAINTIFF’S REQUESTS FOR
18 Defendants. ) PRODUCTION (SET TWO);
) REQUEST FOR MONETARY
19 )
) SANCTIONS
20 )
) Date: November 1, 2022
21 ) Time: 2:00 p.m.
) Dept: 4
22 )
) Judge: Nancy L. Fineman
23 )
) Complaint Filed: 08/12/2021
24 ) Trial Date: 01/18/2023
)
25 )
)
26 )
27

PLAINTIFF MONIKA CHOPRA’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR
PRODUCTION (SET TWO)
1
1
Pursuant to California Rule of Court 3.1345, Plaintiff Monika Chopra (“Plaintiff”) sets
2
forth verbatim the following items that are the subject of Plaintiff’s Motion to Compel,
3
Defendant Natera Inc’s (“Defendant”) responses, and Plaintiff’s contentions why further
4
responses to its second set of Requests for Production of Documents should be compelled.
5
REPLY TO DEFENDANT’S OPPOSITION TO SEPARATE STATEMENT
6

8 REQUEST FOR PRODUCTION NO. 17:

9 Any and all COMMUNICATIONS between Karie Lau and Mike Forcht that REFER OR

10 RELATE TO the annual performance review for Paul Deppmeir that was completed in or about

11 the beginning of 2021.
12 RESPONSE TO REQUEST FOR PRODUCTION NO. 17:
13 Defendant objects to this request on the grounds that it seeks information not relevant to the
14 subject matter of this action, nor reasonably calculated to lead to the discovery of admissible
15
evidence. Defendant further objects to this request to the extent that it seeks disclosure of
16
documents that are protected from disclosure by the attorney-client privilege, work product
17
privilege, and third-party privacy rights. Defendant objects to this request on the grounds that it
18
is unduly burdensome and harassing.
19
PLAINTIFF’S ARGUMENT WHY A FURTHER RESPONSES SHOULD BE
20
COMPELLED:
21
“To prevail under a disparate treatment theory, the employee must show that the employer
22
harbored a discriminatory intent.” (Mixon v. Fair Employment & Housing Com., (1987) 192
23
Cal.App.3d 1306, 1317.) Such disparate treatment can be shown by comparing Plaintiff’s
24

25
treatment to that of similarly situated employees. Information concerning other employees thus

26 becomes relevant in disparate impact cases, when tailored to the employment practice at issue

27 and limited to a reasonable time period. (Alch. v. Sup.Ct. (Time Warner Entertainment Co.),

28 (2008) 165 Cal.App.4th 1412, 1428.) Evidence that the Defendant treated other employees more

PLAINTIFF MONIKA CHOPRA’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR
PRODUCTION (SET TWO)
2
1
favorably may show that its alleged nondiscriminatory reasons for its action against Plaintiff
2
were pretextual. (See Diaz v. AT&T, 752 F.2d 1356, 1363-1364 (9th Cir. 1985).)
3
The communications sought are relevant because through prior discovery in this matter,
4
documents have been produced which show that Ms. Lau made peculiar comments to Mr. Forcht
5
concerning his completion of Plaintiff’s 2021 performance review. Emails between Ms. Lau and
6

7
Mr. Forcht show that Ms. Lau made comments to Mr. Forcht regarding how he shouldn’t “forget

8 to enter the feedback comments for Monika just in case we need to refer to her review for other

9 actions later on.” Mr. Forcht responds with “Thanks for the reminder. I will take advantage of

10 the extra time to carefully finish Monika’s review.” This conversation took place March 22 – 23,

11 2021. Not coincidentally, Mr. Forcht and Ms. Lau discussed a severance for Plaintiff and
12 anticipated termination date the very same day (March 23, 2021). This took place one month
13 prior to Plaintiff’s return from her medical leave of absence and weeks before Mr. Forcht ever
14 developed the organizational restructuring that would serve as the pretextual reason for
15
Plaintiff’s termination.
16
Based upon the aforementioned communications, it is relevant to see if Ms. Lau made
17
similar comments to Mr. Forcht concerning his other direct reports who were not Indian/Asian,
18
disabled, or on medical leave at the time. Such information would potentially serve as additional
19
evidence of the disparate treatment afforded to Plaintiff as it pertains to the adverse employment
20
action of Plaintiff’s negative performance review which directly led to Plaintiff’s demotion,
21
reduction in equity and bonus, and her wrongful termination. Plaintiff is entitled to see how Ms.
22
Lau and Mr. Forcht handled the preparation of the performance reviews for Mr. Forcht’s other
23
direct reports.
24

25
DEFENDANT’S FACTUAL AND LEGAL REASONS WHY FURTHER RESPONSES

26 SHOULD NOT BE COMPELLED:

27 A. California Law Has Long Protected the Right to Privacy in Personnel Records.

PLAINTIFF MONIKA CHOPRA’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR
PRODUCTION (SET TWO)
3
1
“The California Constitution expressly grants Californians a right of privacy. Protection of
2
informational privacy is the provision's central concern.” Williams v. Superior Court, 3 Cal. 5th
3
531, 552, (2017). Accordingly, California courts have long held third parties have a protectable
4
right of privacy in their employment records and information concerning their employment
5
history. El Dorado Savings & Loan Assn. v. Superior Court, 190 Cal.App.3d 342, 345 (1987)
6

7
(employee personnel records are protected by California's constitutional right of privacy.) Board

8 1 of Trustees v. Superior Court, 119 Cal.App.3d 516, 525–26, (1981); see also Lieberman

9 v. Unum Grp., 2021 U.S. Dist. LEXIS 200941, at *18 (C.D. Cal. Oct. 14, 2021) (“California's

10 constitutional right to privacy protects the personnel records of employees.”); Dep't of Fair

11 Employment & Hous. v. Lucent Techs., Inc., 2008 WL 5068863, at *1 (N.D. Cal. Nov. 26, 2008)
12 (personnel records are protected by the right privacy).
13 The California Court of Appeal identified this right in Board of Trustees v. Superior Court,
14 119 Cal. App. 3d 516 (1981). In that case the plaintiff, a former professor, brought an action for
15
defamation against the university and others, alleging malicious acts and publications by a
16
former colleague that were republished by the university. In discovery, the former employee
17
sought personnel, tenure and promotion files of a former university colleague. The Court of
18
Appeal held the trial court abused its discretion in granting the discovery because the records and
19
files the plaintiff sought were private and maintained in confidence. Id. at 526.
20
Similarly, in El Dorado Sav. & Loan Assn. v. Superior Court, 190 Cal. App. 3d 342 (1987),
21
the Court of Appeal issued a writ of mandate instructing the trial court to vacate an order
22
directing the defendant-employer to produce a third-party employee’s personnel file. In that case
23
the Court of Appeal held “in the context of discovery of confidential information in
24

25
personnel files, even when such information is directly relevant to litigation, discovery will not

26 be permitted until a balancing of the compelling need for discovery against the fundamental right

27 of privacy determines that disclosure is appropriate.” Id. at 346. The court held the plaint was not

PLAINTIFF MONIKA CHOPRA’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR
PRODUCTION (SET TWO)
4
1
entitled to the requested discovery because there may have been less intrusive means to obtain
2
the same information. Id.
3
In Harding Lawson Associates v. Superior Court, 10 Cal. App. 4th 7 (1992), the plaintiff,
4
a former employee alleging wrongful termination, submitted document requests seeking
5
personnel records and employment information of non-party employees. The trial court ordered
6

7
production of the records. The Court of Appeal overturned the trial court’s order holding “the

8 public interest in preserving confidential information outweighs the interest of a private litigant

9 in obtaining the confidential information” and finding the plaintiff had not shown a compelling

10 need for the information that could not be obtained through depositions or from non-confidential

11 sources. Id. at 9-10.
12 In Life Techs. Corp. v. Superior Court, 197 Cal. App. 4th 640 (2011) the Court of Appeal
13 also applied this well-established rule of law to protect employment records from disclosure. In
14 that case the plaintiff sued his former employer and served interrogatories seeking detailed
15
employment information about third party employees. The Court of Appeal ordered the trial
16
court to vacate its order, which directed the employer-defendant to answer the interrogatories,
17
because “the interrogatories effectively [sought] the disclosure of confidential, personnel records
18
of nonwitness third parties [and] the public interest in preserving confidential, personnel
19
information generally outweighs a private litigant's interest in obtaining that information.” Id. At
20
652. Third parties unquestionably have a right of privacy which protects their employment
21
records, and information concerning their employment, from disclosure.
22
In addition, an employer has a duty to protect the privacy of its employees. Board of
23
Trustees v. Superior Court, at 525-26 (holding the “custodian of private information has the
24

25
right, in fact the duty, to resist attempts at unauthorized disclosure and the person who is the

26 subject of it is entitled to expect that his right will thus be asserted”). Furthermore, “the custodian

27 of such private information may not waive the privacy rights of persons who are constitutionally

28 guaranteed their protection.” Id.

PLAINTIFF MONIKA CHOPRA’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR
PRODUCTION (SET TWO)
5
1
B. Plaintiff has failed to demonstrate good cause justifying production of the
2
documents she seeks.
3
Plaintiff is required to demonstrate good cause to justifying production of the information
4
she seeks. Mere relevance is not sufficient to establish good cause for requiring
5
production of private information. Rather, discovery of private information is governed by the
6

7
more stringent standard of direct relevance in order to prevent a fishing expedition of

8 “tangentially pertinent sensitive information.” Boler v. Sup. Ct. (Everett) 201 Cal.App.3d 467,

9 472 (1987). Thus, information that would otherwise be protected by the constitutional right to

10 privacy may be discoverable if it is “directly relevant” and the disclosure of such information is

11 “essential to the fair resolution of the lawsuit. Morales v. Sup. Ct. 99 Cal.App.3d 283, 290(1979);
12 Lantz v. Sup. Ct. 28 Cal.App.4th 1839, 1854 (1994).
13 C. Plaintiff has failed to establish that the documents she seeks are directly relevant to
14 her claims.
15
In this request Plaintiff seeks “any and all communications” between a Natera Human
16
Resources Business Partner and Natera’s VP of Human Resources regarding a third party
17
employee’s annual performance evaluation. Plaintiff’s makes no effort to show that the
18
information in the documents she seeks is directly relevant to her claims. Rather, Plaintiff argues
19
the documents are relevant because “documents have been produced which show that Ms. Lau
20
made peculiar comments to Mr. Forcht concerning his completion of Plaintiff's 2021
21
performance review.” (emphasis added.) Plaintiff’s argument does not justify production of the
22
documents she seeks. An employee’s performance evaluation is a personnel record. Accordingly,
23
it is protected by the employee’s privacy rights under California law. Similarly documents
24

25
between Human Resources professionals concerning the employee’s annual performance

26 evaluations are also protected by the employee right to privacy. Plaintiff has utterly failed to

27 demonstrate the good cause required to justifying production of communications concerning a

28 third party employee’s annual performance evaluation.

PLAINTIFF MONIKA CHOPRA’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR
PRODUCTION (SET TWO)
6
1
PLAINTIFF’S REPLY AS TO WHY A FURTHER RESPONSES SHOULD BE
2
COMPELLED:
3
Defendant relies on El Dorado Savings & Loan Assn. v. Superior Court (1987) 190
4
Cal.App.3d 342, Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, Harding
5
Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, Lantz v. Superior Court (1994)
6

7
28 Cal.App.4th 1839, and Life Techs. Corp. v Superior Court (2011) 197 Cal.App.4th 640 to

8 argue that Plaintiff is automatically beholden to a heightened standard for the discoverability of

9 confidential information in personnel files. However, each one of these cases have been

10 disapproved by Williams v. Superior Court (2017) 3 Cal.5th 531.

11 In Williams, the California Supreme Court found that the party asserting a privacy
12 interest has the burden to establish the extent of the privacy interest and the seriousness of the
13 prospective invasion, and against that showing must weigh the countervailing interests the
14 opposing party identifies. (Id. at 557.) The party asserting a privacy right must establish (1) a
15
legally protected privacy interest, (2) an objectively reasonable expectation of privacy in the
16
given circumstances, and (3) a threatened intrusion that is serious. (Id. at 552, citing Hill v.
17
National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37.) The party seeking information
18
may raise in response whatever legitimate and important countervailing interests disclosure
19
serves, while the party seeking protection may identify feasible alternatives that serve the same
20
interests or protective measures that would diminish the loss of privacy. A court must then
21
balance these competing considerations. (Ibid.)
22
a. Defendant Has Failed To Establish a Legally Protected Privacy Interest.
23
Defendant’s privacy interest relies upon the premise that Plaintiff seeks the employee
24

25
performance evaluations of Mr. Deppmeier, Mr. Gonzalez, and Mr. Emery Jr. Yet Plaintiff is not

26 seeking the actual performance evaluations themselves. These requests are clear, Plaintiff seeks

27 only communications between Ms. Lau and Mr. Forcht that refer or relate to the annual

28 performance review that was completed in or about the beginning of 2021. As set forth in

PLAINTIFF MONIKA CHOPRA’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR
PRODUCTION (SET TWO)
7
1
Plaintiff’s Motion to Compel, she is not necessarily concerned with the performance reviews
2
themselves or the ratings received by her fellow direct reports. Merely the communications
3
between their direct supervisor, Mike Forcht, and Ms. Lau, the Human Resources Business
4
Partner for the Human Resources Department. Thus, this request is akin to the many other
5
communications Defendant had already produced in this litigation. The privacy interest is
6

7
minimal at best. In further support of the lack of any privacy interest, the Hon. Judge Halperin

8 did not see any need for or suggest a Belaire-West notice be sent to these employees for the

9 requested information. (Amended Brotman Decl., Ex. C.)

10 b. The Information Sought is Directly Relevant to Plaintiff’s Discrimination and
Retaliation Claims.
11
Yet again, Defendant attempts to distract the Court from the evidence provided in
12

13
Plaintiff’s Motion concerning the comments made by Mr. Forcht and Ms. Lau concerning

14 Plaintiff’s performance evaluation, emphasizing the need to detail Ms. Chopra’s performance

15 evaluation to use in actions against her. These comments were made to Mr. Forcht concerning

16 Defendant’s only negative performance review, which happened to take place while she was on

17 medical leave, served as the pretext for the reduction to Plaintiff’s bonus, equity, reduction in
18 role, and wrongful termination.
19 Thus, it is relevant to determine whether Ms. Lau and Mr. Forcht emphasized the
20 importance of entering feedback comments for the performance reviews of Mr. Forcht’s other
21 direct reports for actions later on as well. Other direct reports who were male, who were not
22
disabled, and who were not on medical leave at the time. Such communications may serve as
23
evidence of disparate treatment. Evidence that the Defendant treated other employees more
24
favorably may show that its alleged nondiscriminatory reasons for its action against Plaintiff were
25
pretextual. (See Diaz, supra, 752 F.2d at 1363-1364.)
26
As such, it is unequivocally clear that these requests outweigh any privacy concerns not
27
already addressed through the protective order and which are minimal at best.
28

3 As the Court is aware, Plaintiff filed a Notice of Errata to remove Exhibits E, F, and G
4 from its Motion and the public record due to the inadvertent filing of these documents with the
5 confidential designation. (Supp. Brotman Decl. ¶ 2.) Plaintiff disputes the confidentiality of these
6 exhibits as they fail to qualify for protection under the protective order, which states that
7 documents must qualify for protection pursuant to California Rule of Court 2.550 et seq. and
8
California Code of Civil Procedure Sections 2025.420, 203.090, 2031.060, and 2033.080. These
9
documents appear to have been marked confidential in Defendant’s “mass, indiscriminate, and
10
routinized designations” which is prohibited by the protective order.
11
Plaintiff has contested the confidential designation of these Exhibits E, F, and G and has
12
provided Defendant with a detailed explanation of her reasoning. (Supp. Brotman Decl. ¶ 3.)
13
Plaintiff has attempted to meet and confer with Defendant in order to have these exhibits refiled
14
or filed under seal but has been unable to do so as of the date of this filing. As of the date of this
15
reply, Defendant has failed to provide a response to Plaintiff’s meet and confer efforts. (Supp.
16
Brotman Decl. ¶ 4.) Thus, Plaintiff requests an in-camera review of Exhibits E, F, and G to
17

18
determine whether they properly qualify for the confidential designation and can be takin into

19 consideration so that this Motion is determined on its merits.

22
REQUEST FOR PRODUCTION NO. 18:
23
Any and all COMMUNICATIONS between Karie Lau and Mike Forcht that REFER OR
24
RELATE TO any annual performance review for David Gonzalez that was completed in or about
25
the beginning of 2021.
26
RESPONSE TO REQUEST FOR PRODUCTION NO. 18:
27

PLAINTIFF MONIKA CHOPRA’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR
PRODUCTION (SET TWO)
9
1
Defendant objects to this request on the grounds that it seeks information not relevant to
2
the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible
3
evidence. Defendant further objects to this request to the extent that it seeks disclosure of
4
documents that are protected from disclosure by the attorney-client privilege, work product
5
privilege, and third-party privacy rights. Defendant objects to this request on the grounds that it
6

7
is unduly burdensome and harassing.

8 PLAINTIFF’S ARGUMENT WHY A FURTHER RESPONSES SHOULD BE

9 COMPELLED:

10 “To prevail under a disparate treatment theory, the employee must show that the employer

11 harbored a discriminatory intent.” (Mixon v. Fair Employment & Housing Com., (1987) 192
12 Cal.App.3d 1306, 1317.) Such disparate treatment can be shown by comparing Plaintiff’s
13 treatment to that of similarly situated employees. Information concerning other employees thus
14 becomes relevant in disparate impact cases, when tailored to the employment practice at issue
15
and limited to a reasonable time period. (Alch. v. Sup.Ct. (Time Warner Entertainment Co.),
16
(2008) 165 Cal.App.4th 1412, 1428.) Evidence that the Defendant treated other employees more
17
favorably may show that its alleged nondiscriminatory reasons for its action against Plaintiff
18
were pretextual. (See Diaz v. AT&T, 752 F.2d 1356, 1363-1364 (9th Cir. 1985).)
19
The communications sought are relevant because through prior discovery in this matter,
20
documents have been produced which show that Ms. Lau made peculiar comments to Mr. Forcht
21
concerning his completion of Plaintiff’s 2021 performance review. Emails between Ms. Lau and
22
Mr. Forcht show that Ms. Lau made comments to Mr. Forcht regarding how he shouldn’t “forget
23
to enter the feedback comments for Monika just in case we need to refer to her review for other
24

25
actions later on.” Mr. Forcht responds with “Thanks for the reminder. I will take advantage of

26 the extra time to carefully finish Monika’s review.” This conversation took place March 22 – 23,

27 2021. Not coincidentally, Mr. Forcht and Ms. Lau discussed a severance for Plaintiff and

28 anticipated termination date the very same day (March 23, 2021). This took place one month

PLAINTIFF MONIKA CHOPRA’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR
PRODUCTION (SET TWO)
10
1
prior to Plaintiff’s return from her medical leave of absence and weeks before Mr. Forcht ever
2
developed the organizational restructuring that would serve as the pretextual reason for
3
Plaintiff’s termination.
4
Based upon the aforementioned communications, it is relevant to see if Ms. Lau made
5
similar comments to Mr. Forcht concerning his other direct reports who were not Indian/Asian,
6

7
disabled, or on medical leave at the time. Such information would potentially serve as additional

8 evidence of the disparate treatment afforded to Plaintiff as it pertains to the adverse employment

9 action of Plaintiff’s negative performance review which directly led to Plaintiff’s demotion,

10 reduction in equity and bonus, and her wrongful termination. Plaintiff is entitled to see how Ms.

11 Lau and Mr. Forcht handled the preparation of the performance reviews for Mr. Forcht’s other
12 direct reports.
13 DEFENDANT’S FACTUAL AND LEGAL REASONS WHY FURTHER RESPONSES
14 SHOULD NOT BE COMPELLED:
15
A. California Law Has Long Protected The Right To Privacy In Personnel Records.
16
“The California Constitution expressly grants Californians a right of privacy. Protection
17
of informational privacy is the provision's central concern.” Williams v. Superior Court, 3 Cal.
18
5th 531, 552, (2017). Accordingly, California courts have long held third parties have a
19
protectable right of privacy in their employment records and information concerning their
20
employment history. El Dorado Savings & Loan Assn. v. Superior Court, 190 Cal.App.3d 342,
21
345 (1987) (employee personnel records are protected by California's constitutional right of
22
privacy.) Board of Trustees v. Superior Court, 119 Cal.App.3d 516, 525–26, (1981); see also
23
Lieberman v. Unum Grp., 2021 U.S. Dist. LEXIS 200941, at *18 (C.D. Cal. Oct. 14,
24

25
2021)(“California's constitutional right to privacy protects the personnel records of employees.”);

26 Dep't of Fair Employment & Hous. v. Lucent Techs., Inc., 2008 WL 5068863, at *1 (N.D. Cal.

27 Nov. 26, 2008)(personnel records are protected by the right privacy).

PLAINTIFF MONIKA CHOPRA’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR
PRODUCTION (SET TWO)
11
1
The California Court of Appeal identified this right in Board of Trustees v. Superior
2
Court, 119 Cal. App. 3d 516 (1981). In that case the plaintiff, a former professor, brought an
3
action for defamation against the university and others, alleging malicious acts and publications
4
by a former colleague that were republished by the university. In discovery, the former employee
5
sought personnel, tenure and promotion files of a former university colleague. The Court of
6

7
Appeal held the trial court abused its discretion in granting the discovery because the records and

8 files the plaintiff sought were private and maintained in confidence. Id. at 526.

9 Similarly, in El Dorado Sav. & Loan Assn. v. Superior Court, 190 Cal. App. 3d 342

10 (1987), the Court of Appeal issued a writ of mandate instructing the trial court to vacate an order

11 directing the defendant-employer to produce a third party employee’s personnel file. In 1 that
12 case the Court of Appeal held “in the context of discovery of confidential information in
13 personnel files, even when such information is directly relevant to litigation, discovery will not
14 be permitted until a balancing of the compelling need for discovery against the fundamental right
15
of privacy determines that disclosure is appropriate.” Id. at 346. The court held the plaintiff was
16
not entitled to the requested discovery because there may have been less intrusive means to
17
obtain the same information. Id.
18
In Harding Lawson Associates v. Superior Court, 10 Cal. App. 4th 7 (1992), the plaintiff,
19
a former employee alleging wrongful termination, submitted document requests seeking
20
personnel records and employment information of non-party employees. The trial court ordered
21
production of the records. The Court of Appeal overturned the trial court’s order holding “the
22
public interest in preserving confidential information outweighs the interest of a private litigant
23
in obtaining the confidential information” and finding the plaintiff had not shown a compelling
24

25
need for the information that could not be obtained through depositions or from non-confidential

26 sources. Id. at 9-10.

27 In Life Techs. Corp. v. Superior Court, 197 Cal. App. 4th 640 (2011) the Court of Appeal

PLAINTIFF MONIKA CHOPRA’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR
PRODUCTION (SET TWO)
12
1
also applied this well-established rule of law to protect employment records from disclosure. In
2
that case the plaintiff sued his former employer and served interrogatories seeking detailed
3
employment information about third party employees. The Court of Appeal ordered the trial
4
court to vacate its order, which directed the employer-defendant to answer the interrogatories,
5
because “the interrogatories effectively [sought] the disclosure of confidential, personnel records
6

7
of nonwitness third parties [and] the public interest in preserving confidential, personnel

8 information generally outweighs a private litigant's interest in obtaining that information.” Id. At

9 652. Third parties unquestionably have a right of privacy which protects their employment

10 records, and information concerning their employment, from disclosure.

11 In addition, an employer has a duty to protect the privacy of its employees. Board of
12 Trustees v. Superior Court, at 525-26 (holding the “custodian of private information has the
13 right, in fact the duty, to resist attempts at unauthorized disclosure and the person who is the
14 subject of it is entitled to expect that his right will thus be asserted”). Furthermore, “the
15
custodian of such private information may not waive the privacy rights of persons who are
16
constitutionally guaranteed their protection.” Id.
17
B. Plaintiff has failed to demonstrate good cause justifying production of the
18
documents she seeks.
19
Plaintiff is required to demonstrate good cause to justifying production of the information
20
she seeks. Mere relevance is not sufficient to establish good cause for requiring production of
21
private information. Rather, discovery of private information is governed by the more stringent
22
standard of direct relevance in order to prevent a fishing expedition of “tangentially pertinent
23
sensitive information.” Boler v. Sup. Ct. (Everett) 201 Cal.App.3d 467, 472 (1987). Thus,
24

25
information that would otherwise be protected by the constitutional right to privacy may be

26 discoverable if it is “directly relevant” and the disclosure of such information is “essential to the

27 fair resolution of the lawsuit. Morales v. Sup. Ct. 99 Cal.App.3d 283, 290(1979); Lantz v. Sup.

28 Ct. 28 Cal.App.4th 1839, 1854 (1994).

PLAINTIFF MONIKA CHOPRA’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR
PRODUCTION (SET TWO)
13
1
C. Plaintiff has failed to establish that the documents she seeks are directly relevant to
2
her claims.
3
In this request Plaintiff seeks “any and all communications” between a Natera Human
4
Resources Business Partner and Natera’s VP of Human Resources regarding a third party
5
employee’s annual performance evaluation. Plaintiff’s makes no effort to show that the
6

7
information in the documents she seeks is directly relevant to her claims. Rather, Plaintiff argues

8 the documents are relevant because “documents have been produced which show that Ms. Lau

9 made peculiar comments to Mr. Forcht concerning his completion of Plaintiff's 2021

10 performance review.” (emphasis added.) Plaintiff’s argument does not justify production of the

11 documents she seeks. An employee’s performance evaluation is a personnel record.
12 Accordingly, it is protected by the employee’s privacy rights under California law. Similarly
13 documents between Human Resources professionals concerning the employee’s annual
14 performance evaluation are also protected by the employee right to privacy. Plaintiff has utterly
15
failed to demonstrate the good cause required to justifying production of communications
16
concerning a third-party employee’s annual performance evaluation.
17
PLAINTIFF’S REPLY AS TO WHY A FURTHER RESPONSES SHOULD BE
18
COMPELLED:
19
Defendant relies on El Dorado Savings & Loan Assn. v. Superior Court (1987) 190
20
Cal.App.3d 342, Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, Harding
21
Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, Lantz v. Superior Court (1994)
22
28 Cal.App.4th 1839, and Life Techs. Corp. v Superior Court (2011) 197 Cal.App.4th 640 to
23
argue that Plaintiff is automatically beholden to a heightened standard for the discoverability of
24

25
confidential information in personnel files. However, each one of these cases have been

26 disapproved by Williams v. Superior Court (2017) 3 Cal.5th 531.

27 In Williams, the California Supreme Court found that the party asserting a privacy

28 interest has the burden to establish the extent of the privacy interest and the seriousness of the

PLAINTIFF MONIKA CHOPRA’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR
PRODUCTION (SET TWO)
14
1
prospective invasion, and against that showing must weigh the countervailing interests the
2
opposing party identifies. (Id. at 557.) The party asserting a privacy right must establish (1) a
3
legally protected privacy interest, (2) an objectively reasonable expectation of privacy in the
4
given circumstances, and (3) a threatened intrusion that is serious. (Id. at 552, citing Hill v.
5
National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37.) The party seeking information
6

7
may raise in response whatever legitimate and important countervailing interests disclosure

8 serves, while the party seeking protection may identify feasible alternatives that serve the same

9 interests or protective measures that would diminish the loss of privacy. A court must then

10 balance these competing considerations. (Ibid.)

11 a. Defendant Has Failed To Establish a Legally Protected Privacy Interest.
12 Defendant’s privacy interest relies upon the premise that Plaintiff seeks the employee
13 performance evaluations of Mr. Deppmeier, Mr. Gonzalez, and Mr. Emery Jr. Yet Plaintiff is not
14 seeking the actual performance evaluations themselves. These requests are clear, Plaintiff seeks
15
only communications between Ms. Lau and Mr. Forcht that refer or relate to the annual
16
performance review that was completed in or about the beginning of 2021. As set forth in
17
Plaintiff’s Motion to Compel, she is not necessarily concerned with the performance reviews
18
themselves or the ratings received by her fellow direct reports. Merely the communications
19
between their direct supervisor, Mike Forcht, and Ms. Lau, the Human Resources Business
20
Partner for the Human Resources Department. Thus, this request is akin to the many other
21
communications Defendant had already produced in this litigation. The privacy interest is
22
minimal at best. In further support of the lack of any privacy interest, the Hon. Judge Halperin
23
did not see any need for or suggest a Belaire-West notice be sent to these employees for the
24

25
requested information. (Amended Brotman Decl., Ex. C.)
b. The Information Sought is Directly Relevant to Plaintiff’s Discrimination and
26
Retaliation Claims.
27

PLAINTIFF MONIKA CHOPRA’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR
PRODUCTION (SET TWO)
15
1
Yet again, Defendant attempts to distract the Court from the evidence provided in
2
Plaintiff’s Motion concerning the comments made by Mr. Forcht a

Case Info

Judge

Fineman, Nancy L. Track Judge’s New Case

Case No.

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Document Filed Date

October 26, 2022

Case Filing Date

August 12, 2021

County

Parties

AZIZOLLAHI, F. SHAWN Attorney for the Plaintiff
Chopra, Monika Plaintiff
DOES 1 THROUGH 50, INCLUSIVE Defendant
KHANNA, SWAJA Attorney for the Defendant
Natera, Inc, a Delaware corporation Defendant
Farshid Azizollahi Attorneys for Plaintiffs
Poya Ghasri Attorneys for Plaintiffs
Gary Brotman Attorneys for Plaintiffs
Harold Jones Attorneys for Defendants
Heidy Nurinda Attorneys for Plaintiffs
Jeffrey Krivis Attorneys for Plaintiffs
Anna Cai Attorneys for Plaintiffs
Gary Sax Attorney

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Document for Monika Chopra vs. Natera, Inc, a Delaware corporation, et al

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