Preview
1 Jack W. Weaver, Esq., Bar No. 278469
Rachel M. Mackie, Esq. Bar No. 318461
2 WELTY, WEAVER & CURRIE
141 North Street, Suite 300
3
Santa Rosa, CA 95403
4 Tel: (707) 433-4842 Fax: (707) 473-9778
jack@weltyweaver.com
5 rachael@weltyweaver.com
6 Alexander M. Schack, Esq., (SBN 99126)
7 Natasha N. Serino, Esq., (SBN 284711)
Shannon F. Nocon, Esq., (SBN 316523)
8 SCHACK LAW GROUP
16870 West Bernardo Drive, Suite 400
9 San Diego, California 92127
Telephone: (858) 485-6535
10 Facsimile: (858) 485-0608
11 alexschack@schacklawgroup.com
natashaserino@schacklawgroup.com
12 shannonnocon@schacklawgroup.com
13 Attorneys for Plaintiffs
14
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SONOMA
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DAVID SUCHARD, JODY SUCHARD, and Case No.: SCV-270984
17 JANE DOE, individually, and on behalf of all
others similarly situated,
18 PLAINTIFFS’ MEMORANDUM OF
Plaintiff, POINTS AND AUTHORITIES IN
19 OPPOSITION TO DEFENDANT
SONOMA ACADEMY’S MOTION FOR
20 v. PROTECTIVE ORDER
21 SONOMA ACADEMY, a California non- Hearing Date: 7/5/2023
profit; and DOES 1 through 500. Hearing Time: 3:00 p.m.
22
Judge: Hon. Oscar A. Pardo
23 Defendants. Dept: 19
Complaint Filed: June 10, 2022
24 Trial Date: None Set
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MEMORANDUM OF POINTS AND AUTHORITIES
1 TABLE OF CONTENTS
2 INTRODUCTION .........................................................................................................................- 1 -
FACTUAL BACKGROUND ........................................................................................................- 2 -
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ARGUMENT ..................................................................................................................................- 3 -
4 A. Defendant Failed to Meet Its Burden To Show a Stay of Discovery Is Warranted .... - 4 -
5 B. There Is No Bar on Discovery Before Class Certification And In Fact, It Is An Abuse of
Discretion To Deny Discovery on Class Certification Issues as Defendant Requests. - 4 -
6 C.Plaintiffs’ Discovery Requests Pose No Privacy Concerns Because Plaintiffs Agreed that
Defendant Could Use Redactions to Protect Victim and Class Member Information ... - 6 -
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8 1. There Is No Basis to Preclude Discovery On Complaints of Abuse Because Defendants Can
Redact Third Parties Names and Information ..................................................................... - 7 -
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2. Plaintiffs Do Not Seek Private Sexual Information Because They Agreed that Defendant
10 Could Redact Victim Information ...................................................................................... - 8 -
11 3. Plaintiffs Are Entitled to Tuition Information Because They Do Not Seek Tuition Payers’
Identities, Defendant Does Not Have a Right to Privacy in This Regard and the Information
12 Is Relevant to Damages ...................................................................................................... - 9 -
CONCLUSION ............................................................................................................................- 10 -
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TABLE OF CONTENTS
MEMORANDUM OF POINTS AND AUTHORITIES
1 Plaintiffs David Suchard, Jody Suchard, and Jane Doe, individually, and on behalf of all
2 others similarly situated (“Plaintiff” or “Plaintiffs”) submit the following Memorandum of Points
3 and Authorities in opposition to Defendant Sonoma Academy’s (“SA” or “Defendants”) Motion for
4 Protective Order.
5 INTRODUCTION
6 There is no basis for a blanket and indefinite stay on discovery in this matter. The law is clear:
7 Plaintiffs are entitled to discovery prior to class certification. (Stern v. Superior Court (2003) 105
8 Cal.App.4th 223, 232-233.) To preclude such discovery constitutes an abuse of discretion. (Ibid.)
9 This case concerns Defendant’s employment of a sexual predator and its failure to disclose
10 repeated reports of sexual abuse of students for over eighteen years. All the while, the school
11 charged approximately $50,000 each year for tuition, accumulating over $100 million in assets as of
12 June 2020. (Plaintiffs’ First Amended Class Action Complaint (“FAC”) at ¶ 2.) Defendants never told
13 students, law enforcement or tuition payers about complaints that faculty sexually abused and
14 harassed students until the release of an investigation report on November 28, 2021 (the “Debevoise
15 Report”). (FAC at ¶ 3, 5, 44-46, 64, 69, 73-74, 97, 159.) Meanwhile, students were knowingly put in
16 harm’s way and the Class of tuition payers paid substantially more for tuition than they otherwise
17 would have. (Id. at ¶ 131-132)
18 In light of these claims, which are corroborated by the independent Debevoise investigation,
19 Plaintiffs seek discovery on (1) complaints of abuse, (2) when SA learned of faculty misconduct, (3)
20 whether Defendant reported complaints of abuse to law enforcement, (4) whether Defendant disclosed
21 any of this information to tuition payers (i.e. the Class), and (5) the amount of tuition charged to the
22 Class. (Declaration of Ryan Abernethy in Support of Defendant Sonoma Academy’s Motion for
23 Protective Order (Abernethy Dec.”), Exhibits (“Exs.”) E-H.) Defendant’s Motion for Protective
24 Order seeks a blanket stay on nearly all discovery based on unsubstantiated privacy concerns and
25 shear ipse dixit. The arguments are without merit.
26 As further detailed below, there is no ban on precertification discovery. To the contrary,
27 Plaintiffs are entitled to all relevant discovery that is reasonably calculated to lead to the discovery
28 of admissible evidence and it is Defendant’s burden to establish the need for a protective order.
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MEMORANDUM OF POINTS AND AUTHORITIES
1 (Code Civ. Proc., § 2017.010; Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th
2 261.) Under this framework, Plaintiffs are entitled to the above-requested discovery because it goes
3 to common questions of fact, damages, and whether the class is ascertainable. Defendant has failed
4 to meet its burden to show otherwise.
5 In addition, Defendant failed to substantiate its vague privacy concerns. Plaintiffs are
6 extremely mindful of the privacy of potential victims of abuse and former students of SA. For this
7 reason, during meet and confer discussions Plaintiff’s counsel repeatedly stated that Defendant
8 could redact victim and third-party information to protect individuals’ privacy. (Abernethy Dec.,
9 Ex. M at 2-3 [“Plaintiffs have repeatedly stated they are agreeable to a protective order and/or
10 appropriate redactions to protect these individuals’ privacy”].) Defendant’s rejected these offers and
11 instead filed the pending motion seeking a stay on all discovery. However, there are no privacy
12 grounds to preclude the requested discovery because Defendant can redact identifying information
13 and/or use pseudonyms, thereby eliminating the need for a balancing test and ensuring the privacy
14 of victims. For the foregoing reasons, and as further detailed below, Defendant’s motion to stay
15 discovery should be denied.
16 FACTUAL BACKGROUND
17 Sonoma Academy is a private high school located in Santa Rosa, once known as a premier
18 college preparatory school. (FAC at ¶ 13, 31.) For nearly two decades, SA concealed sexual abuse and
19 harassment by its faculty, including Morrone and others. (Id. at ¶ 44, 50, 75.) Starting in 2002, SA
20 received reports of abuse of students by the assistant girls’ soccer coach. (Id. at ¶ 38.) SA and then
21 Head of School Janet Durgin failed to contact outside counsel or report the conduct under Penal Code
22 section 11164 et seq. (“CANRA”). (Ibid.) In 2004, SA received reports that its film teacher sexually
23 abused one or more students, but again failed to contact law enforcement. (Id. at ¶ 41.) Between 2004
24 and 2006, SA received complaints concerning Morrone’s inappropriate relationships with female
25 students. (Id. at ¶ 44, 73.) In 2007, multiple students complained that Morrone sexually harassed
26 them. (Ibid.) In 2008, the school inquired into continuing rumors about Morrone’s sexual misconduct
27 with students, but SA took no action. (Id.) In 2012, six alumni submitted a letter detailing Morrone’s
28 sexual abuse and harassment of them, but SA conducted no investigation. (Id.) From 2013 to 2019,
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MEMORANDUM OF POINTS AND AUTHORITIES
1 SA continued to receive reports about Morrone’s alleged sexual relationships with students and in
2 February 2020 SA received a complaint from an alumni that Mororne engaged in sexual misconduct
3 with female students. (Id.) Again, SA failed to disclose the information to the Class or report it to law
4 enforcement under CANRA. (Id. at ¶ 73-75.) All the while, SA continued to charge parents and the
5 Class of tuition payers exorbitant rates for educational services. In the 2020-2021 school year, for
6 example, SA charged $49,600 for tuition. (FAC at ¶ 2, 32.) During this time, SA never disclosed
7 Morrone’s record of misconduct, allowed him to continue teaching and concealed the information by
8 failing to report him to the police. (Id. at ¶ 5, 51-52, 69, 73-75.) By hiding this information, SA
9 benefitted handsomely at the expense of the Class. (Id. at ¶ 16, 57, 111-112, 131-132.)
10 It was not until August 2020, nearly 18 years later, that the new Head of School consulted
11 outside counsel and hired a third-party investigator after receiving more allegations of misconduct.
12 (FAC at ¶ 44.) On November 28, 2021, Debevoise & Plimpton released an investigation report (the
13 “Debevoise Report”), which found that SA administrators were informed of numerous acts of
14 sexual harassment and abuse committed by faculty against students between 2002 and 2020. (Ibid.)
15 Through this prolonged concealment, SA harmed innocent minor students, damaged the school’s
16 reputation and wrongfully received tuition rates that the Class otherwise would not have paid.
17 In light of these claims, which are corroborated by the independent Debevoise investigation,
18 Plaintiffs sought discovery on (1) complaints of abuse, (2) when SA learned of faculty misconduct,
19 (3) whether Defendant reported complaints of abuse to law enforcement, (4) whether Defendant
20 disclosed any of this information to tuition payers (i.e. the Class), and (5) the amount of tuition
21 charged to the Class. (Declaration of Ryan Abernethy in Support of Defendant Sonoma Academy’s
22 Motion for Protective Order (Abernethy Dec.”), Exhibits (“Exs.”) E-H.) In consideration of the
23 privacy of third parties and the Class members, Plaintiffs repeatedly stated during meet and confer
24 discussions that Defendant could redact identifying information and/or identify Class members
25 through a unique identification number. (Abernethy Dec., Exs. G at p. 7, M at p. 2-3.) Despite these
26 offers, Defendant seeks to indefinitely stay all relevant discovery until sometime after class
27 certification in contravention of California law.
28 ARGUMENT
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MEMORANDUM OF POINTS AND AUTHORITIES
1 A. Defendant Failed to Meet Its Burden To Show a Stay of Discovery Is Warranted
2 Pursuant to the Civil Discovery Act, a “party may obtain discovery regarding any matter,
3 not privileged, that is relevant to the subject matter involved in the pending action or to the
4 determination of any motion made in that action, if the matter either is itself admissible in evidence
5 or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc.,
6 § 2017.010 (emphasis added).) Discovery may therefore only be limited via a protective order upon
7 a showing of good cause and even then, restrictions should balance the interests of all parties in a
8 manner that facilitates the search for truth. (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130,
9 1145 [noting the standard is a preponderance of the evidence].)
10 In order to overcome these established rules, the party seeking the protective order has the
11 burden of proof to show good cause for limiting access to information. (Nativi, supra, 223
12 Cal.App.4th at p. 318 [holding the burden not met by a conclusory declaration lacking factual
13 specificity].) As further detailed below, Defendant failed to meet its burden to show good cause
14 because Plaintiffs are entitled to discovery on matters relating to damages, commonality and
15 ascertainability. In addition, Defendant failed to justify – with specificity – its vague claims of
16 privacy given that Plaintiffs agreed Defendant could redact victims’ and Class members’ identifying
17 information.
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B. There Is No Bar on Discovery Before Class Certification And In Fact, It Is An
19 Abuse of Discretion To Deny Discovery on Class Certification Issues as Defendant
Requests
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21 Under the permissive discovery framework outlined above, there is no bar on merit-based
22 discovery prior to class certification. (Stern, supra, 105 Cal.App.4th at p. 232-233; see e.g.
23 Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 375 [noting that the
24 parties engaged in discovery on the merits and class certification issues prior to the motion for class
25 certification] (abrogated on other grounds by Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct.
26 1906.) In fact, it is an abuse of discretion for a trial court to determine class certification without
27 giving the parties an opportunity to conduct discovery on certification issues. (See Carabini v.
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MEMORANDUM OF POINTS AND AUTHORITIES
1 Superior Court (1994) 26 Cal.App.4th 239, 244; Stern, supra, 105 Cal.App.4th at p. 232-233.) 1 In
2 Stern, for example, the Court of Appeal held that the trial court abused its discretion by determining
3 the plaintiffs’ claims were not a class action without giving the parties an opportunity to conduct
4 discovery or present evidence and argument on class certification. (Stern, supra, 105 Cal.App.4th at
5 p. 232-233.)
6 Here, the discovery sought is necessary and permitted before certification because it
7 addresses common questions of fact, damage issues and ascertainability – all of which Plaintiffs are
8 required to show at class certification. For example, Special Interrogatories Nos. 1-3, 5, 7, 9, and
9 11, Form Interrogatories Nos. 12.1 and 17.1, Requests for Production Nos. 3,4, 5, 6, 19, 20, 21, 24,
10 32, and Requests for Admission Nos. 3, 5, seek information and documents concerning complaints
11 Defendant received about abuse, harassment, and inappropriate conduct by SA faculty against SA
12 students. (Abernethy Dec., Exs. E at p. 2-5, 7-8, F at p. 5, 7, G at p. 6-9, H at p. 2-3.) These
13 documents and responses address Sonoma Academy’s knowledge of faculty misconduct and its
14 failure to disclose this information to the Class for over eighteen years. The crux of Plaintiffs’
15 claims is that Sonoma Academy knew of faculty abuse against students, it failed to disclose or
16 report this information to the Class or law enforcement (despite a duty to do so), and it profited
17 handsomely from this concealment at the expense of tuition payers (i.e. the Class). (FAC at ¶ 5, 16,
18 57, 124.) In order to pursue these claims on a class-wide basis, Plaintiffs must establish SA’s
19 knowledge as of a certain time. (See FAC at ¶ 118.) Defendant’s knowledge is therefore relevant to
20 establish common questions of fact and law at class certification and, as such, Plaintiffs are entitled
21 to this information. (Id.) Similarly, Requests for Production Nos. 11-15, 21, 26-28, Requests for
22 Admission Nos. 8, 10-15 and Special Interrogatories Nos. 2-3 concern disclosures SA made (or
23 failed to make) to the Class or law enforcement regarding complaints of abuse, harassment and
24 misconduct by its employees. (Abernethy Dec., Exs. E at p. 2-3, G at p. 7-9, H at p. 4-6.) Again,
25 these requests concern commonality and typicality and are therefore relevant to class certification.
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Carabini does not, as Defendant claims, stand for the proposition that merit-based discovery must be deferred until
28 after class certification. Rather, the court held that each party must have an opportunity to conduct discovery on class
action issues before a motion for or opposition to class certification is filed. (Carabini, supra, 26 Cal.App.4th at p. 244.)
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MEMORANDUM OF POINTS AND AUTHORITIES
1 Pre-certification discovery is also appropriate where it relates to potential defenses and
2 damages. In Spoon v. Superior Court (1982) 130 Cal.App.3d 735, 740-742, the court permitted
3 discovery on class members as to damage issues, noting that the amount of damage was related to
4 certain defenses and therefore a necessary question for certification. Here, Plaintiffs sought
5 discovery on damages through requests about the tuition charged at SA, such as Requests for
6 Production Nos. 8, 10 2, Requests for Admission Nos. 1, 17, and Special Interrogatory No. 4
7 (Abernethy Dec., Exs. E at p. 4, G at p. 6-7.) Pursuant to Spoon, this material is also discoverable.
8 Based on the foregoing and on Plaintiffs’ Separate Statement in Opposition to Defendant’s
9 Motion for Protective Order, the discovery sought is directly relevant to issues at class certification.
10 Plaintiffs further note that, but for a handful of Form Interrogatories on the nature of Defendant’s
11 business and its insurance, Defendant seeks a protective order for nearly all of the discovery served
12 by Plaintiffs. Despite this, Defendant has failed to cite any authority supporting such a sweeping
13 ban. To the contrary, Plaintiffs are entitled to the discovery requested as a matter of law and need
14 not wait until after class certification to obtain it.
15 C. Plaintiffs’ Discovery Requests Pose No Privacy Concerns Because Plaintiffs Agreed
that Defendant Could Use Redactions to Protect Victim and Class Member
16 Information
17 Plaintiffs are entitled to discovery on complaints of abuse because Plaintiffs repeatedly
18 agreed that Defendants could redact victim and third-party information to address privacy concerns.
19 (Abernethy Dec., Ex. M at p. 2-3.) Given the concessions offered in prior meet and confer efforts,
20 Plaintiffs do not seek the identity of victims or Class members and, as such, there are no privacy
21 issues that warrant banning or staying discovery.
22 Defendant blurs two distinct concepts by claiming that precertification discovery is not a
23 matter of right, but in fact, parties are entitled to precertification discovery as a matter of right.
24 (Stern, supra, 105 Cal.App.4th at p. 232-233.) As with precertification discovery generally, there is
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Request for Production No. 10, which asks for documents reflecting tuition amounts paid, also goes to
ascertainability because it requests Defendant produce documents identifying tuition payers by substituting their names
27 with a unique identification number to protect Class members’ identities. (Abernethy Dec., Ex. G at p. 7.) These
documents enable Plaintiffs to show that the proposed class is ascertainable and easily identified. Discovery on these
28 matters is therefore warranted.
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MEMORANDUM OF POINTS AND AUTHORITIES
1 also no inherent ban on precertification discovery into the names of potential class members. (See
2 Parris v. Superior Court (2003) 109 Cal.App.4th 285, 300-301; CashCall, Inc. v. Superior Court
3 (2008) 159 Cal.App.4th 273, 284.)
4 Instead, class representatives are entitled to discovery on the identity of potential class
5 members where the rights of the parties outweigh any potential abuses created if the discovery is
6 allowed. (Ibid.) In Parris v. Superior Court (2003) 109 Cal.App.4th 285, 290, the class
7 representatives moved for leave to compel discovery of class members’ names and addresses.
8 (Ibid.) The Court of Appeal held that the trial court erred in denying the discovery without weighing
9 the actual or potential abuse that might be caused by permitting the discovery, on the one hand,
10 against the rights of the parties, on the other hand. (Ibid.) In this case, a balancing test is not needed
11 because Plaintiffs have repeatedly stated in meet and confer discussions that they were agreeable to
12 redactions and other measures to protect victim and third-party privacy. (Abernethy Dec., Ex. M at
13 p. 2-3.)
14 1. There Is No Basis to Preclude Discovery On Complaints of Abuse Because
Defendants Can Redact Third Parties Names and Information
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Plaintiffs do not seek the names or contact information of potential victims or tuition payers
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and, as such, there is no basis to preclude Plaintiffs’ discovery. As noted above, Plaintiffs are
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entitled discovery on any matter that is relevant to the action and reasonably calculated to lead to
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the discovery of admissible evidence, including discovery into potential class members’ identities.
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(Code Civ. Proc., § 2017.010; CashCall, Inc., supra, 159 Cal.App.4th at p. 284.) With that said,
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Plaintiffs have repeatedly stated that Defendant does not need to provide victim or class member
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information. (Abernethy Dec., Ex. M at p. 2-3, Ex. G at p. 7.) For Special Interrogatories that
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request information regarding victim complaints, the individuals can be referred to by pseudonyms
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such as Victim 1 or Victim 2. And for requests that seek information about class members,
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Defendant can redact identifying information or assign class members a unique identification
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number as expressly suggested in Request for Production No. 10. (Abernethy Dec., Ex. G at p. 7.)
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To be clear, Defendant can redact all victim and third party/class member identifying information
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MEMORANDUM OF POINTS AND AUTHORITIES
1 from the discovery responses and documents, thereby eliminating any privacy concerns. 3 A stay of
2 discovery, in comparison, employs a hammer where a scalpel is appropriate.
3 To the extent the Court still employs a Parris balancing test, it weighs in favor of the
4 discovery because there is no risk of abuse if victim information is not disclosed. On the other hand,
5 the need for discovery is great because the information is essential to Plaintiffs’ claims and ability
6 to certify the class. Moreover, Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820,
7 which Defendant cites, is wholly distinguishable. In that case, class representatives brought claims
8 against Starbucks alleging the company’s job application violated provisions of the marijuana
9 reform legislation that prohibited employers from asking about convictions on job applications. (Id.
10 at p. 822.) The court held discovery into class members identities was not permitted because it
11 required defendant to disclose job applicants with minor marijuana convictions, which was
12 expressly prohibited by the statute. (Id. at p. 823.) This case, in comparison, does not involve a
13 statute prohibiting disclosure of the information sought and Defendant can use redactions or
14 pseudonyms where necessary. As such, there is no basis to bar discovery on complaints of abuse,
15 SA’s knowledge of abuse or any reports of abuse to the Class or law enforcement.
16 2. Plaintiffs Do Not Seek Private Sexual Information Because They Agreed that
Defendant Could Redact Victim Information
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There is also no basis to preclude discovery into complaints of sexual abuse and misconduct
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by Defendant’s employees because Defendant can redact victim and third-party information where
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appropriate. None of the cases cited by Defendant are instructive or prevent the discovery at issue in
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this case. In Vinson v. Superior Court (1987) 43 Cal.3d 833, 839-842, for example, the Court held
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that the defendants in a sexual harassment action could not seek unlimited discovery into the
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plaintiff’s sexual history where it was not related to the claims at issue, but could obtain a limited
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mental examination of the plaintiff. Similarly, in Boler v. Superior Court (1987) 201 Cal.App.3d
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Defendant vaguely references this offer in their Motion and contends it does not address the issues with the Discovery
26 Requests. Defendant, however, fails to explain why they refused to explore this offer during meet and confer
discussions or why redacting victim and third-party information is insufficient to protect these individuals’ privacy.
27 Unless Defendant is prepared to provide a privilege log or a more detailed explanation of the issues, Plaintiffs are
unable to ascertain how redactions of all identifying information are insufficient to address privacy concerns. The
28 critical information sought by Plaintiffs is when Defendant received complaints of abuse and when the information was
disclosed to the Class and law enforcement.
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MEMORANDUM OF POINTS AND AUTHORITIES
1 467, 472-473 the plaintiff sought discovery into the defendant’s sexual history with other people.
2 This case is distinguishable.
3 Unlike the parties in Vinson and Boler, Plaintiffs do ask Defendant to identify sexual abuse
4 victims or their sexual histories. Rather, the discovery seeks information about when Sonoma
5 Academy received complaints that faculty had abused or harassed students and whether Sonoma
6 Academy disclosed those complaints to law enforcement or the Class. (Requests for Production
7 Nos. 3-6, 11-15, 19-21, 24, 26-28, 32; Requests for Admission Nos. 3, 5, 8, 10-15; Special
8 Interrogatories Nos. 1-3, 5, 7, 9, 11.) As noted, Plaintiffs repeatedly agreed that Defendant could
9 redact victim and third-party information to address privacy concerns. (Abernethy Dec., Ex. M at p.
10 2-3.) Defendant cannot simply make vague privacy claims to preclude discovery on damaging
11 topics that are unfavorable to the school. In addition, Defendant has not provided a privilege log or
12 identified any specific information that would be revealed in response to Plaintiffs’ requests. Given
13 the protections offered by Plaintiffs, discovery into Defendant’s knowledge of abuse is warranted
14 and appropriate under the circumstances.
15 3. Plaintiffs Are Entitled to Tuition Information Because They Do Not Seek Tuition
Payers’ Identities, Defendant Does Not Have a Right to Privacy in This Regard
16 and the Information Is Relevant to Damages
17 Plaintiffs sought and are entitled to certain information regarding Defendant’s finances,
18 including its receipt of tuition in exchange for services, because this information is directly relevant
19 to Plaintiffs’ ability to establish damages. Under the general rule permitting discovery on relevant
20 matters, a plaintiff is entitled to discovery on financial information where it is relevant to damages.
21 (Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court, 137 Cal.App.4th 579, 595-
22 596.) Moreover, courts have held that the constitutional provision of privacy “simply does not apply
23 to corporations.” (Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 790-791; see also Vepo
24 Design Corporation v. American Economy Insurance Company (C.D. Cal. Sept. 23, 2021) Case No.
25 CV 20-04950, 2012 WL 6882161, at *2.) Discovery is also appropriate where it is relevant to
26 damage issues at class certification. For example, in Spoon v. Superior Court (1982) 130
27 Cal.App.3d 735, 740-742, the court permitted discovery on class members as to damage issues,
28 noting that the amount of damage was a necessary question for certification and potential defenses.
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MEMORANDUM OF POINTS AND AUTHORITIES
1 In this case, Plaintiffs sought documents showing the amount of tuition charged by SA (RPD
2 No. 8), the amount of tuition paid by each tuition payer (who were to be identified by a unique
3 number and not a name) (RPD No. 10), and Defendant’s profitability and financial condition (RPD
4 No. 31 and 33.) In accordance with Roberts, Defendant does not have a right to privacy on these
5 matters and the information sought is discoverable. In addition, the tuition data sought in Requests
6 for Production Nos. 8 and 10 is directly relevant to class damages and class certification and
7 therefore authorized under Spoon. Finally, there are no privacy concerns regarding individual
8 tuition payers because Request for Production No. 10 specifically instructs Defendant to identify
9 each tuition payer by a unique identification number, and not by name.
10 CONCLUSION
11 As discussed above, Plaintiffs are entitled to the requested discovery on tuition information,
12 complaints of abuse, and Defendant’s reporting to authorities, because the information is relevant to
13 class certification and generally discoverable. Any potential privacy concerns can easily be addressed
14 through the redaction of identifying information and/or the use of pseudonyms—to which Plaintiffs
15 offered in meet and confer efforts. As such, the Court should deny Defendant’s request for a
16 Protective Order staying all discovery in this matter until after class certification.
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18 Dated: June 21, 2023 Respectfully submitted,
19
20 SCHACK LAW GROUP
21
s/ Natasha N. Serino
By: _________________________________
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Natasha N. Serino, Esq.
23 Attorney for Plaintiffs
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MEMORANDUM OF POINTS AND AUTHORITIES
Preview
1 Jack W. Weaver, Esq., Bar No. 278469 Rachel M. Mackie, Esq. Bar No. 318461 2 WELTY, WEAVER & CURRIE 141 North Street, Suite 300 3 Santa Rosa, CA 95403 4 Tel: (707) 433-4842 Fax: (707) 473-9778 jack@weltyweaver.com 5 rachael@weltyweaver.com 6 Alexander M. Schack, Esq., (SBN 99126) 7 Natasha N. Serino, Esq., (SBN 284711) Shannon F. Nocon, Esq., (SBN 316523) 8 SCHACK LAW GROUP 16870 West Bernardo Drive, Suite 400 9 San Diego, California 92127 Telephone: (858) 485-6535 10 Facsimile: (858) 485-0608 11 alexschack@schacklawgroup.com natashaserino@schacklawgroup.com 12 shannonnocon@schacklawgroup.com 13 Attorneys for Plaintiffs 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 IN AND FOR THE COUNTY OF SONOMA 16 DAVID SUCHARD, JODY SUCHARD, and Case No.: SCV-270984 17 JANE DOE, individually, and on behalf of all others similarly situated, 18 PLAINTIFFS’ MEMORANDUM OF Plaintiff, POINTS AND AUTHORITIES IN 19 OPPOSITION TO DEFENDANT SONOMA ACADEMY’S MOTION FOR 20 v. PROTECTIVE ORDER 21 SONOMA ACADEMY, a California non- Hearing Date: 7/5/2023 profit; and DOES 1 through 500. Hearing Time: 3:00 p.m. 22 Judge: Hon. Oscar A. Pardo 23 Defendants. Dept: 19 Complaint Filed: June 10, 2022 24 Trial Date: None Set 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1 TABLE OF CONTENTS 2 INTRODUCTION .........................................................................................................................- 1 - FACTUAL BACKGROUND ........................................................................................................- 2 - 3 ARGUMENT ..................................................................................................................................- 3 - 4 A. Defendant Failed to Meet Its Burden To Show a Stay of Discovery Is Warranted .... - 4 - 5 B. There Is No Bar on Discovery Before Class Certification And In Fact, It Is An Abuse of Discretion To Deny Discovery on Class Certification Issues as Defendant Requests. - 4 - 6 C.Plaintiffs’ Discovery Requests Pose No Privacy Concerns Because Plaintiffs Agreed that Defendant Could Use Redactions to Protect Victim and Class Member Information ... - 6 - 7 8 1. There Is No Basis to Preclude Discovery On Complaints of Abuse Because Defendants Can Redact Third Parties Names and Information ..................................................................... - 7 - 9 2. Plaintiffs Do Not Seek Private Sexual Information Because They Agreed that Defendant 10 Could Redact Victim Information ...................................................................................... - 8 - 11 3. Plaintiffs Are Entitled to Tuition Information Because They Do Not Seek Tuition Payers’ Identities, Defendant Does Not Have a Right to Privacy in This Regard and the Information 12 Is Relevant to Damages ...................................................................................................... - 9 - CONCLUSION ............................................................................................................................- 10 - 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES 1 Plaintiffs David Suchard, Jody Suchard, and Jane Doe, individually, and on behalf of all 2 others similarly situated (“Plaintiff” or “Plaintiffs”) submit the following Memorandum of Points 3 and Authorities in opposition to Defendant Sonoma Academy’s (“SA” or “Defendants”) Motion for 4 Protective Order. 5 INTRODUCTION 6 There is no basis for a blanket and indefinite stay on discovery in this matter. The law is clear: 7 Plaintiffs are entitled to discovery prior to class certification. (Stern v. Superior Court (2003) 105 8 Cal.App.4th 223, 232-233.) To preclude such discovery constitutes an abuse of discretion. (Ibid.) 9 This case concerns Defendant’s employment of a sexual predator and its failure to disclose 10 repeated reports of sexual abuse of students for over eighteen years. All the while, the school 11 charged approximately $50,000 each year for tuition, accumulating over $100 million in assets as of 12 June 2020. (Plaintiffs’ First Amended Class Action Complaint (“FAC”) at ¶ 2.) Defendants never told 13 students, law enforcement or tuition payers about complaints that faculty sexually abused and 14 harassed students until the release of an investigation report on November 28, 2021 (the “Debevoise 15 Report”). (FAC at ¶ 3, 5, 44-46, 64, 69, 73-74, 97, 159.) Meanwhile, students were knowingly put in 16 harm’s way and the Class of tuition payers paid substantially more for tuition than they otherwise 17 would have. (Id. at ¶ 131-132) 18 In light of these claims, which are corroborated by the independent Debevoise investigation, 19 Plaintiffs seek discovery on (1) complaints of abuse, (2) when SA learned of faculty misconduct, (3) 20 whether Defendant reported complaints of abuse to law enforcement, (4) whether Defendant disclosed 21 any of this information to tuition payers (i.e. the Class), and (5) the amount of tuition charged to the 22 Class. (Declaration of Ryan Abernethy in Support of Defendant Sonoma Academy’s Motion for 23 Protective Order (Abernethy Dec.”), Exhibits (“Exs.”) E-H.) Defendant’s Motion for Protective 24 Order seeks a blanket stay on nearly all discovery based on unsubstantiated privacy concerns and 25 shear ipse dixit. The arguments are without merit. 26 As further detailed below, there is no ban on precertification discovery. To the contrary, 27 Plaintiffs are entitled to all relevant discovery that is reasonably calculated to lead to the discovery 28 of admissible evidence and it is Defendant’s burden to establish the need for a protective order. -1- MEMORANDUM OF POINTS AND AUTHORITIES 1 (Code Civ. Proc., § 2017.010; Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 2 261.) Under this framework, Plaintiffs are entitled to the above-requested discovery because it goes 3 to common questions of fact, damages, and whether the class is ascertainable. Defendant has failed 4 to meet its burden to show otherwise. 5 In addition, Defendant failed to substantiate its vague privacy concerns. Plaintiffs are 6 extremely mindful of the privacy of potential victims of abuse and former students of SA. For this 7 reason, during meet and confer discussions Plaintiff’s counsel repeatedly stated that Defendant 8 could redact victim and third-party information to protect individuals’ privacy. (Abernethy Dec., 9 Ex. M at 2-3 [“Plaintiffs have repeatedly stated they are agreeable to a protective order and/or 10 appropriate redactions to protect these individuals’ privacy”].) Defendant’s rejected these offers and 11 instead filed the pending motion seeking a stay on all discovery. However, there are no privacy 12 grounds to preclude the requested discovery because Defendant can redact identifying information 13 and/or use pseudonyms, thereby eliminating the need for a balancing test and ensuring the privacy 14 of victims. For the foregoing reasons, and as further detailed below, Defendant’s motion to stay 15 discovery should be denied. 16 FACTUAL BACKGROUND 17 Sonoma Academy is a private high school located in Santa Rosa, once known as a premier 18 college preparatory school. (FAC at ¶ 13, 31.) For nearly two decades, SA concealed sexual abuse and 19 harassment by its faculty, including Morrone and others. (Id. at ¶ 44, 50, 75.) Starting in 2002, SA 20 received reports of abuse of students by the assistant girls’ soccer coach. (Id. at ¶ 38.) SA and then 21 Head of School Janet Durgin failed to contact outside counsel or report the conduct under Penal Code 22 section 11164 et seq. (“CANRA”). (Ibid.) In 2004, SA received reports that its film teacher sexually 23 abused one or more students, but again failed to contact law enforcement. (Id. at ¶ 41.) Between 2004 24 and 2006, SA received complaints concerning Morrone’s inappropriate relationships with female 25 students. (Id. at ¶ 44, 73.) In 2007, multiple students complained that Morrone sexually harassed 26 them. (Ibid.) In 2008, the school inquired into continuing rumors about Morrone’s sexual misconduct 27 with students, but SA took no action. (Id.) In 2012, six alumni submitted a letter detailing Morrone’s 28 sexual abuse and harassment of them, but SA conducted no investigation. (Id.) From 2013 to 2019, -2- MEMORANDUM OF POINTS AND AUTHORITIES 1 SA continued to receive reports about Morrone’s alleged sexual relationships with students and in 2 February 2020 SA received a complaint from an alumni that Mororne engaged in sexual misconduct 3 with female students. (Id.) Again, SA failed to disclose the information to the Class or report it to law 4 enforcement under CANRA. (Id. at ¶ 73-75.) All the while, SA continued to charge parents and the 5 Class of tuition payers exorbitant rates for educational services. In the 2020-2021 school year, for 6 example, SA charged $49,600 for tuition. (FAC at ¶ 2, 32.) During this time, SA never disclosed 7 Morrone’s record of misconduct, allowed him to continue teaching and concealed the information by 8 failing to report him to the police. (Id. at ¶ 5, 51-52, 69, 73-75.) By hiding this information, SA 9 benefitted handsomely at the expense of the Class. (Id. at ¶ 16, 57, 111-112, 131-132.) 10 It was not until August 2020, nearly 18 years later, that the new Head of School consulted 11 outside counsel and hired a third-party investigator after receiving more allegations of misconduct. 12 (FAC at ¶ 44.) On November 28, 2021, Debevoise & Plimpton released an investigation report (the 13 “Debevoise Report”), which found that SA administrators were informed of numerous acts of 14 sexual harassment and abuse committed by faculty against students between 2002 and 2020. (Ibid.) 15 Through this prolonged concealment, SA harmed innocent minor students, damaged the school’s 16 reputation and wrongfully received tuition rates that the Class otherwise would not have paid. 17 In light of these claims, which are corroborated by the independent Debevoise investigation, 18 Plaintiffs sought discovery on (1) complaints of abuse, (2) when SA learned of faculty misconduct, 19 (3) whether Defendant reported complaints of abuse to law enforcement, (4) whether Defendant 20 disclosed any of this information to tuition payers (i.e. the Class), and (5) the amount of tuition 21 charged to the Class. (Declaration of Ryan Abernethy in Support of Defendant Sonoma Academy’s 22 Motion for Protective Order (Abernethy Dec.”), Exhibits (“Exs.”) E-H.) In consideration of the 23 privacy of third parties and the Class members, Plaintiffs repeatedly stated during meet and confer 24 discussions that Defendant could redact identifying information and/or identify Class members 25 through a unique identification number. (Abernethy Dec., Exs. G at p. 7, M at p. 2-3.) Despite these 26 offers, Defendant seeks to indefinitely stay all relevant discovery until sometime after class 27 certification in contravention of California law. 28 ARGUMENT -3- MEMORANDUM OF POINTS AND AUTHORITIES 1 A. Defendant Failed to Meet Its Burden To Show a Stay of Discovery Is Warranted 2 Pursuant to the Civil Discovery Act, a “party may obtain discovery regarding any matter, 3 not privileged, that is relevant to the subject matter involved in the pending action or to the 4 determination of any motion made in that action, if the matter either is itself admissible in evidence 5 or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., 6 § 2017.010 (emphasis added).) Discovery may therefore only be limited via a protective order upon 7 a showing of good cause and even then, restrictions should balance the interests of all parties in a 8 manner that facilitates the search for truth. (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 9 1145 [noting the standard is a preponderance of the evidence].) 10 In order to overcome these established rules, the party seeking the protective order has the 11 burden of proof to show good cause for limiting access to information. (Nativi, supra, 223 12 Cal.App.4th at p. 318 [holding the burden not met by a conclusory declaration lacking factual 13 specificity].) As further detailed below, Defendant failed to meet its burden to show good cause 14 because Plaintiffs are entitled to discovery on matters relating to damages, commonality and 15 ascertainability. In addition, Defendant failed to justify – with specificity – its vague claims of 16 privacy given that Plaintiffs agreed Defendant could redact victims’ and Class members’ identifying 17 information. 18 B. There Is No Bar on Discovery Before Class Certification And In Fact, It Is An 19 Abuse of Discretion To Deny Discovery on Class Certification Issues as Defendant Requests 20 21 Under the permissive discovery framework outlined above, there is no bar on merit-based 22 discovery prior to class certification. (Stern, supra, 105 Cal.App.4th at p. 232-233; see e.g. 23 Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 375 [noting that the 24 parties engaged in discovery on the merits and class certification issues prior to the motion for class 25 certification] (abrogated on other grounds by Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 26 1906.) In fact, it is an abuse of discretion for a trial court to determine class certification without 27 giving the parties an opportunity to conduct discovery on certification issues. (See Carabini v. 28 -4- MEMORANDUM OF POINTS AND AUTHORITIES 1 Superior Court (1994) 26 Cal.App.4th 239, 244; Stern, supra, 105 Cal.App.4th at p. 232-233.) 1 In 2 Stern, for example, the Court of Appeal held that the trial court abused its discretion by determining 3 the plaintiffs’ claims were not a class action without giving the parties an opportunity to conduct 4 discovery or present evidence and argument on class certification. (Stern, supra, 105 Cal.App.4th at 5 p. 232-233.) 6 Here, the discovery sought is necessary and permitted before certification because it 7 addresses common questions of fact, damage issues and ascertainability – all of which Plaintiffs are 8 required to show at class certification. For example, Special Interrogatories Nos. 1-3, 5, 7, 9, and 9 11, Form Interrogatories Nos. 12.1 and 17.1, Requests for Production Nos. 3,4, 5, 6, 19, 20, 21, 24, 10 32, and Requests for Admission Nos. 3, 5, seek information and documents concerning complaints 11 Defendant received about abuse, harassment, and inappropriate conduct by SA faculty against SA 12 students. (Abernethy Dec., Exs. E at p. 2-5, 7-8, F at p. 5, 7, G at p. 6-9, H at p. 2-3.) These 13 documents and responses address Sonoma Academy’s knowledge of faculty misconduct and its 14 failure to disclose this information to the Class for over eighteen years. The crux of Plaintiffs’ 15 claims is that Sonoma Academy knew of faculty abuse against students, it failed to disclose or 16 report this information to the Class or law enforcement (despite a duty to do so), and it profited 17 handsomely from this concealment at the expense of tuition payers (i.e. the Class). (FAC at ¶ 5, 16, 18 57, 124.) In order to pursue these claims on a class-wide basis, Plaintiffs must establish SA’s 19 knowledge as of a certain time. (See FAC at ¶ 118.) Defendant’s knowledge is therefore relevant to 20 establish common questions of fact and law at class certification and, as such, Plaintiffs are entitled 21 to this information. (Id.) Similarly, Requests for Production Nos. 11-15, 21, 26-28, Requests for 22 Admission Nos. 8, 10-15 and Special Interrogatories Nos. 2-3 concern disclosures SA made (or 23 failed to make) to the Class or law enforcement regarding complaints of abuse, harassment and 24 misconduct by its employees. (Abernethy Dec., Exs. E at p. 2-3, G at p. 7-9, H at p. 4-6.) Again, 25 these requests concern commonality and typicality and are therefore relevant to class certification. 26 27 1 Carabini does not, as Defendant claims, stand for the proposition that merit-based discovery must be deferred until 28 after class certification. Rather, the court held that each party must have an opportunity to conduct discovery on class action issues before a motion for or opposition to class certification is filed. (Carabini, supra, 26 Cal.App.4th at p. 244.) -5- MEMORANDUM OF POINTS AND AUTHORITIES 1 Pre-certification discovery is also appropriate where it relates to potential defenses and 2 damages. In Spoon v. Superior Court (1982) 130 Cal.App.3d 735, 740-742, the court permitted 3 discovery on class members as to damage issues, noting that the amount of damage was related to 4 certain defenses and therefore a necessary question for certification. Here, Plaintiffs sought 5 discovery on damages through requests about the tuition charged at SA, such as Requests for 6 Production Nos. 8, 10 2, Requests for Admission Nos. 1, 17, and Special Interrogatory No. 4 7 (Abernethy Dec., Exs. E at p. 4, G at p. 6-7.) Pursuant to Spoon, this material is also discoverable. 8 Based on the foregoing and on Plaintiffs’ Separate Statement in Opposition to Defendant’s 9 Motion for Protective Order, the discovery sought is directly relevant to issues at class certification. 10 Plaintiffs further note that, but for a handful of Form Interrogatories on the nature of Defendant’s 11 business and its insurance, Defendant seeks a protective order for nearly all of the discovery served 12 by Plaintiffs. Despite this, Defendant has failed to cite any authority supporting such a sweeping 13 ban. To the contrary, Plaintiffs are entitled to the discovery requested as a matter of law and need 14 not wait until after class certification to obtain it. 15 C. Plaintiffs’ Discovery Requests Pose No Privacy Concerns Because Plaintiffs Agreed that Defendant Could Use Redactions to Protect Victim and Class Member 16 Information 17 Plaintiffs are entitled to discovery on complaints of abuse because Plaintiffs repeatedly 18 agreed that Defendants could redact victim and third-party information to address privacy concerns. 19 (Abernethy Dec., Ex. M at p. 2-3.) Given the concessions offered in prior meet and confer efforts, 20 Plaintiffs do not seek the identity of victims or Class members and, as such, there are no privacy 21 issues that warrant banning or staying discovery. 22 Defendant blurs two distinct concepts by claiming that precertification discovery is not a 23 matter of right, but in fact, parties are entitled to precertification discovery as a matter of right. 24 (Stern, supra, 105 Cal.App.4th at p. 232-233.) As with precertification discovery generally, there is 25 26 2 Request for Production No. 10, which asks for documents reflecting tuition amounts paid, also goes to ascertainability because it requests Defendant produce documents identifying tuition payers by substituting their names 27 with a unique identification number to protect Class members’ identities. (Abernethy Dec., Ex. G at p. 7.) These documents enable Plaintiffs to show that the proposed class is ascertainable and easily identified. Discovery on these 28 matters is therefore warranted. -6- MEMORANDUM OF POINTS AND AUTHORITIES 1 also no inherent ban on precertification discovery into the names of potential class members. (See 2 Parris v. Superior Court (2003) 109 Cal.App.4th 285, 300-301; CashCall, Inc. v. Superior Court 3 (2008) 159 Cal.App.4th 273, 284.) 4 Instead, class representatives are entitled to discovery on the identity of potential class 5 members where the rights of the parties outweigh any potential abuses created if the discovery is 6 allowed. (Ibid.) In Parris v. Superior Court (2003) 109 Cal.App.4th 285, 290, the class 7 representatives moved for leave to compel discovery of class members’ names and addresses. 8 (Ibid.) The Court of Appeal held that the trial court erred in denying the discovery without weighing 9 the actual or potential abuse that might be caused by permitting the discovery, on the one hand, 10 against the rights of the parties, on the other hand. (Ibid.) In this case, a balancing test is not needed 11 because Plaintiffs have repeatedly stated in meet and confer discussions that they were agreeable to 12 redactions and other measures to protect victim and third-party privacy. (Abernethy Dec., Ex. M at 13 p. 2-3.) 14 1. There Is No Basis to Preclude Discovery On Complaints of Abuse Because Defendants Can Redact Third Parties Names and Information 15 Plaintiffs do not seek the names or contact information of potential victims or tuition payers 16 and, as such, there is no basis to preclude Plaintiffs’ discovery. As noted above, Plaintiffs are 17 entitled discovery on any matter that is relevant to the action and reasonably calculated to lead to 18 the discovery of admissible evidence, including discovery into potential class members’ identities. 19 (Code Civ. Proc., § 2017.010; CashCall, Inc., supra, 159 Cal.App.4th at p. 284.) With that said, 20 Plaintiffs have repeatedly stated that Defendant does not need to provide victim or class member 21 information. (Abernethy Dec., Ex. M at p. 2-3, Ex. G at p. 7.) For Special Interrogatories that 22 request information regarding victim complaints, the individuals can be referred to by pseudonyms 23 such as Victim 1 or Victim 2. And for requests that seek information about class members, 24 Defendant can redact identifying information or assign class members a unique identification 25 number as expressly suggested in Request for Production No. 10. (Abernethy Dec., Ex. G at p. 7.) 26 To be clear, Defendant can redact all victim and third party/class member identifying information 27 28 -7- MEMORANDUM OF POINTS AND AUTHORITIES 1 from the discovery responses and documents, thereby eliminating any privacy concerns. 3 A stay of 2 discovery, in comparison, employs a hammer where a scalpel is appropriate. 3 To the extent the Court still employs a Parris balancing test, it weighs in favor of the 4 discovery because there is no risk of abuse if victim information is not disclosed. On the other hand, 5 the need for discovery is great because the information is essential to Plaintiffs’ claims and ability 6 to certify the class. Moreover, Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820, 7 which Defendant cites, is wholly distinguishable. In that case, class representatives brought claims 8 against Starbucks alleging the company’s job application violated provisions of the marijuana 9 reform legislation that prohibited employers from asking about convictions on job applications. (Id. 10 at p. 822.) The court held discovery into class members identities was not permitted because it 11 required defendant to disclose job applicants with minor marijuana convictions, which was 12 expressly prohibited by the statute. (Id. at p. 823.) This case, in comparison, does not involve a 13 statute prohibiting disclosure of the information sought and Defendant can use redactions or 14 pseudonyms where necessary. As such, there is no basis to bar discovery on complaints of abuse, 15 SA’s knowledge of abuse or any reports of abuse to the Class or law enforcement. 16 2. Plaintiffs Do Not Seek Private Sexual Information Because They Agreed that Defendant Could Redact Victim Information 17 There is also no basis to preclude discovery into complaints of sexual abuse and misconduct 18 by Defendant’s employees because Defendant can redact victim and third-party information where 19 appropriate. None of the cases cited by Defendant are instructive or prevent the discovery at issue in 20 this case. In Vinson v. Superior Court (1987) 43 Cal.3d 833, 839-842, for example, the Court held 21 that the defendants in a sexual harassment action could not seek unlimited discovery into the 22 plaintiff’s sexual history where it was not related to the claims at issue, but could obtain a limited 23 mental examination of the plaintiff. Similarly, in Boler v. Superior Court (1987) 201 Cal.App.3d 24 25 3 Defendant vaguely references this offer in their Motion and contends it does not address the issues with the Discovery 26 Requests. Defendant, however, fails to explain why they refused to explore this offer during meet and confer discussions or why redacting victim and third-party information is insufficient to protect these individuals’ privacy. 27 Unless Defendant is prepared to provide a privilege log or a more detailed explanation of the issues, Plaintiffs are unable to ascertain how redactions of all identifying information are insufficient to address privacy concerns. The 28 critical information sought by Plaintiffs is when Defendant received complaints of abuse and when the information was disclosed to the Class and law enforcement. -8- MEMORANDUM OF POINTS AND AUTHORITIES 1 467, 472-473 the plaintiff sought discovery into the defendant’s sexual history with other people. 2 This case is distinguishable. 3 Unlike the parties in Vinson and Boler, Plaintiffs do ask Defendant to identify sexual abuse 4 victims or their sexual histories. Rather, the discovery seeks information about when Sonoma 5 Academy received complaints that faculty had abused or harassed students and whether Sonoma 6 Academy disclosed those complaints to law enforcement or the Class. (Requests for Production 7 Nos. 3-6, 11-15, 19-21, 24, 26-28, 32; Requests for Admission Nos. 3, 5, 8, 10-15; Special 8 Interrogatories Nos. 1-3, 5, 7, 9, 11.) As noted, Plaintiffs repeatedly agreed that Defendant could 9 redact victim and third-party information to address privacy concerns. (Abernethy Dec., Ex. M at p. 10 2-3.) Defendant cannot simply make vague privacy claims to preclude discovery on damaging 11 topics that are unfavorable to the school. In addition, Defendant has not provided a privilege log or 12 identified any specific information that would be revealed in response to Plaintiffs’ requests. Given 13 the protections offered by Plaintiffs, discovery into Defendant’s knowledge of abuse is warranted 14 and appropriate under the circumstances. 15 3. Plaintiffs Are Entitled to Tuition Information Because They Do Not Seek Tuition Payers’ Identities, Defendant Does Not Have a Right to Privacy in This Regard 16 and the Information Is Relevant to Damages 17 Plaintiffs sought and are entitled to certain information regarding Defendant’s finances, 18 including its receipt of tuition in exchange for services, because this information is directly relevant 19 to Plaintiffs’ ability to establish damages. Under the general rule permitting discovery on relevant 20 matters, a plaintiff is entitled to discovery on financial information where it is relevant to damages. 21 (Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court, 137 Cal.App.4th 579, 595- 22 596.) Moreover, courts have held that the constitutional provision of privacy “simply does not apply 23 to corporations.” (Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 790-791; see also Vepo 24 Design Corporation v. American Economy Insurance Company (C.D. Cal. Sept. 23, 2021) Case No. 25 CV 20-04950, 2012 WL 6882161, at *2.) Discovery is also appropriate where it is relevant to 26 damage issues at class certification. For example, in Spoon v. Superior Court (1982) 130 27 Cal.App.3d 735, 740-742, the court permitted discovery on class members as to damage issues, 28 noting that the amount of damage was a necessary question for certification and potential defenses. -9- MEMORANDUM OF POINTS AND AUTHORITIES 1 In this case, Plaintiffs sought documents showing the amount of tuition charged by SA (RPD 2 No. 8), the amount of tuition paid by each tuition payer (who were to be identified by a unique 3 number and not a name) (RPD No. 10), and Defendant’s profitability and financial condition (RPD 4 No. 31 and 33.) In accordance with Roberts, Defendant does not have a right to privacy on these 5 matters and the information sought is discoverable. In addition, the tuition data sought in Requests 6 for Production Nos. 8 and 10 is directly relevant to class damages and class certification and 7 therefore authorized under Spoon. Finally, there are no privacy concerns regarding individual 8 tuition payers because Request for Production No. 10 specifically instructs Defendant to identify 9 each tuition payer by a unique identification number, and not by name. 10 CONCLUSION 11 As discussed above, Plaintiffs are entitled to the requested discovery on tuition information, 12 complaints of abuse, and Defendant’s reporting to authorities, because the information is relevant to 13 class certification and generally discoverable. Any potential privacy concerns can easily be addressed 14 through the redaction of identifying information and/or the use of pseudonyms—to which Plaintiffs 15 offered in meet and confer efforts. As such, the Court should deny Defendant’s request for a 16 Protective Order staying all discovery in this matter until after class certification. 17 18 Dated: June 21, 2023 Respectfully submitted, 19 20 SCHACK LAW GROUP 21 s/ Natasha N. Serino By: _________________________________ 22 Natasha N. Serino, Esq. 23 Attorney for Plaintiffs 24 25 26 27 28 - 10 - MEMORANDUM OF POINTS AND AUTHORITIES