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1 STUART D. TOCHNER, CA Bar No. 123758
stuart.tochner@ogletree.com
2 EMILY K. HARVIN, CA Bar No. 299950
emily.harvin@ogletree.com
3 OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C.
4 400 South Hope Street, Suite 1200
Los Angeles, CA 90071
5 Telephone: 213-239-9800
Facsimile: 213-239-9045
6
Attorneys for Plaintiff/Cross-Defendant
7 STEVEN G. JOHNSON DENTAL
CORPORATION
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SANTA BARBARA
11 STEVEN G. JOHNSON DENTAL Case No. 23CV00884
CORPORATION,
12 Date: April 23, 2024
Plaintiff, Time: 8:30 a.m.
13 Place: Dept. 2, Santa Maria
vs. Judge: Hon. James F. Rigali
14 [Assigned for all purposes]
MYLES HOKAMA, an individual,
15 PLAINTIFF/CROSS-DEFENDANT
Defendant. STEVEN G. JOHNSON DENTAL
16 CORPORATION’S OPPOSITION TO
MYLES HOKAMA, DEFENDANT/CROSS-COMPLAINANT’S
17 SEPARATE STATEMENT OF
Cross-Complainant, DISCOVERY IN DISPUTE IN SUPPORT
18 OF MOTION TO QUASH SUBPOENAS
vs. [C.C.P. 1987.1]
19
STEVEN G. JOHNSON DENTAL [Filed concurrently with Opposition to Motion
20 CORPORATION; and Roes 1 through 10, to Quash; Declaration of Emily Harvin;
Inclusive, [Proposed] Order]
21
Cross-Defendants.
22 Action Filed: March 2, 2023
Trial Date: None
23
24
25
26
27
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PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S
SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1]
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1 Plaintiff/Cross-Defendant Steven G. Johnson Dental Corporation (“the Company”) hereby
2 submits the following Response to Defendant/Cross-Complainant Myles Hokama’s (“Hokama”)
3 Separate Statement of Discovery in Dispute in Support of Motion to Quash Subpoenas [C.C.P.
4 1987.1].
5 I. HOKAMA’S OBJECTIONS AND SUPPORTING LEGAL AUTHORITY IN
6 OPPOSITION TO SUBPOENAS FOR EMPLOYMENT RECORDS FROM
7 SMILELAND DENTAL AND WESTERN DENTAL SERVICES, INC.
8 A. This Court Has the Authority to Quash and/or Issue a Protective Order
Limiting the Scope of Deposition Subpoenas.
9
10 California’s Code of Civil Procedure affords parties and non-parties protection against
11 defective subpoenas. Specifically, Code of Civil Procedure section 1987.1 provides that the court,
12 upon a motion “reasonably made” by any party, “may make an order quashing the subpoena entirely,
13 modifying it, or directing compliance with it upon those terms or conditions as the court shall declare,
14 including protective orders. In addition, the court may make any other order as may be appropriate
15 to protect the person from unreasonable or oppressive demands, including unreasonable violations
16 of the right of privacy of the person.” (Code Civ. Proc. §1987.1(a).)
17 “Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space Facility,
18 Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223 (“Calcor Space Facility”).) A subpoena that
19 seeks information that is privileged, protected, or irrelevant may be quashed. (Code Civ. Proc.
20 §2017.010.) Additionally, a court may issue a protective order limiting the scope of discovery “if it
21 determines that the burden, expense or intrusiveness of the discovery clearly outweighs the likelihood
22 that the information will lead to the discovery of admissible evidence.” (Code Civ. Proc. §2017.020.)
23 The more sensitive the information sought in the subpoena, the greater the need for the discovery
24 must be shown. (Hoffman Corp. v. Superior Court (1085) 172 Cal.App.3d 357, 362.) The party
25 seeking discovery must show a particularized need for the confidential information sought. The
26 broad “relevancy to the subject matter” standard is not enough. The court must be convinced that
27 the information is directly relevant to a cause of action or defense, i.e., that it is essential to
28
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PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S
SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1]
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1 determining the truth of the matters in dispute. (Britt v. Superior Court (1978) 20 Ca1.3d 844, 856
2 (“Britt”).)
3 Further, in the context of non-party discovery subpoenas, the courts have determined that
4 requests that are not likely to lead to relevant or admissible evidence, not specified with reasonable
5 particularity, and require overly burdensome searches by non-parties are not reasonable. (Calcor
6 Space Facility, supra, 53 Cal.App.4th at p. 221.)
7 As set forth herein, an order quashing Cross-Defendant’s overly broad and intrusive
8 subpoenas is appropriate.
9 B. The Document Request In The Subpoenas Is Vague And Overbroad
10 Under California law, a subpoena must describe the documents to be produced with
11 reasonable particularity. (Calcor Space Facility, supra, 53 Cal.App.4th at p. 218; see Code Civ.
12 Proc. §2025.220(a)(4) (providing that a deposition notice shall state the “specification with
13 reasonable particularity of any materials or category of materials to be produced by the deponent.”)
14 “When discovery requests are grossly overbroad on their face, and hence do not appear reasonably
15 related to a legitimate discovery need, a reasonable inference can be drawn of an intent to harass and
16 improperly burden.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431 (“Obregon”).)
17 The court’s decision in Calcor Space Facility is directly on point. In that case, the plaintiff
18 issued a subpoena to a nonparty that included a twelve-page document request purporting to be
19 detailed by was interpreted by the court to essentially consist of a “single sentence: Produce
20 everything in your possession which in any way relates to gun mounts.” (53 Cal.App.4th at p. 222.)
21 The appellate court held that this request was insufficiently detailed and issued a writ of mandate
22 directing the trial court to vacate orders compelling the nonparty to produce the requested materials,
23 because the subpoena described “generalized broad categories of materials rather than specific
24 documents, or at least, categories of documents or materials which are reasonably particularized.”
25 (Id. at p. 219.)
26 Here, Cross-Defendant does the same thing as did the plaintiffs in Calcor Space Facility.
27 Cross-Defendant’s subpoenas seek a laundry list of items that essentially seek everything in the
28 deponents’ possession which in any way relates to Cross-Complainant. As demonstrated by Calcor
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PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S
SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1]
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1 Space Facility, Cross-Defendant’s document requests are insufficiently detailed, vague, and
2 overbroad. This Court, therefore, can draw the reasonable inference that Cross-Defendant, by issuing
3 subpoenas for all of Cross-Complainant’s employment records, intends to harass and improperly
4 burden the nonparties to whom the subpoenas are directed. (See, Obregon, supra, 67 Cal.App.4th at
5 p. 431.) Accordingly, this Court should quash the subpoenas.
6 C. The Subpoenas Seek Information That Is Not Relevant Nor Reasonably
Calculated To Lead To The Discovery Of Admissible Evidence
7
8 “Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space Facility,
9 supra, 53 Cal.App.4th at p. 223.) Parties may conduct discovery only of matters that are relevant or
10 are reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc.
11 §2017.010.) “The burden rests upon the party seeking the discovery to provide evidence from which
12 the court may determine these conditions are met. (Calcor Space Facility, supra, 53 Cal.App.4th at
13 p. 223.)
14 The overly broad nature of the subpoenas, seeking virtually every document pertaining to
15 Cross-Complainant in the possession of the subpoenaed entities, means that documents and
16 information not relevant to the issues raised by any party to the litigation nor reasonably calculated
17 to lead to the discovery of admissible evidence necessarily are included in the requests. Cross-
18 Complainant has not put his previous employment history at issue in this case. He is not making a
19 claim for loss of earning capacity or any other claim that would make his prior employment relevant
20 to his employment with Cross-Defendant and subsequent termination. Accordingly, this Court
21 should quash the subpoenas in their entirety.
22 D. Cross-Complainant’s Employment Records Are Protected By The
Constitutional Right To Privacy
23
24 Both the State of California and the United States recognize that individual have a right of
25 privacy in certain information. (California Constitution Art. 1, § 1; Griswold v. Connecticut, 381
26 U.S. 479 (1965).) Even relevant, nonprivileged information may be shielded from discovery if its
27 disclosure would violate a person’s constitutional right of privacy. (Cobb v. Superior Court (1979)
28 99 Cal.App.3d 543, 550 (“Cobb”); Britt v. Superior Court (1978) 20 Ca1.3d 844, 852-864 (“Britt”).)
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PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S
SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1]
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1 It is well established that a person’s work history and confidential personnel files are within
2 a legally recognized zone of privacy and are entitled to protection. (Alch v. Superior Court (2008)
3 165 Cal.App.4th 1412, 1426-1427 [work history]; Board of Trustees v. Superior Court (1981) 119
4 Cal.App.3d 516, 528-530 [personnel records] (“Board of Trustees”).) A party’s financial records are
5 also confidential and protected by the right of privacy. (Valley Bank of Nevada v. Superior Court
6 (1975) 15 Ca1.3d 652, 655-656; Cobb, supra, 99 Cal.App.3d at p. 550.) Quite often, employment
7 records also contain highly confidential information of third parties, the disclosure of which would
8 violate their rights to privacy with no notice that their confidential information is being sought. (See
9 Board of Trustees, supra, 119 Cal.App.3d at pp. 528-530.) Employment records may only be
10 compelled to be produced if they are directly relevant, not merely that they may lead to the discovery
11 of relevant information. (Id. at p. 525.)
12 Generally, information is discoverable if it is not privileged and is either relevant to the
13 subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.
14 (Schnabel v. Superior Court (1993) 5 Ca1.4th 704, 711 (“Schnabel”).) However, when confidential
15 information is sought, it must be directly relevant to one of the issues in the action. (Board of
16 Trustees, supra, 119 Cal.App.3d at p. 525, Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1387
17 (“Tylo”).) The party seeking to invade the other party’s right to privacy must show there is a
18 compelling need for the information. (Williams v. Superior Court (2017) 3 Ca1.5th 531, 557.) Even
19 when discovery of private information is found directly relevant to the issues of ongoing litigation,
20 the compelling public need for discovery must be carefully balanced against the right of privacy.
21 (Tylo, supra, 55 Cal.App.4th at p. 1387.) The more “sensitive” the information (e.g., personal
22 financial information) sought, the greater the need for discovery must be shown. (Hoffman Corp. v.
23 Superior Court (1985) 172 Cal.App.3d 357, 362; Tien v. Superior Court (2006) 139 Cal.App.4th
24 528, 540.) Even when the balance weighs in favor of disclosure of private information because of a
25 compelling state purpose, the scope of such disclosure must be narrowly drawn. (Britt; supra, 20
26 Ca1.3d at p. 856.) Moreover, even when an intrusion on the right of privacy is deemed necessary
27 under the circumstances of a particular case, any such intrusion must be the minimum intrusion
28 necessary to achieve its objective. In other words, the least intrusive means should be utilized to
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PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S
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1 satisfy the compelling public need. (Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449
2 (“Allen”).)
3 E. Records From Cross-Complainant’s Previous Employers Are Not Relevant To
His Claim For Loss Of Future Earnings.
4
5 Damages in a wrongful termination case include back pay, or lost compensation, in the
6 amount a plaintiff would have earned but for the termination, less sums earned from subsequent
7 employment. (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Ca1.3d 176, 181; see also
8 Morgado v. City & County of San Francisco (2020) 53 Cal.App.5th 1216, 1220.) Damages may also
9 include front pay, or loss of future earnings, in the amount a plaintiff would have earned from
10 employment after the trial of a wrongful termination claim. (Mize-Kurzman v. Marin Comm. College
11 Dist. (2012) 202 CA4th 832, 873.) Loss of future earnings is different than loss of earning capacity,
12 or “the loss of the ability to earn money as a result of the injury.” (CACI 3903.) Loss of earning
13 capacity “compensates [a plaintiff] for a for a lifetime of diminished earnings [from other employers]
14 resulting from the reputational harms [he or] she suffered as a result of [employer’s] discrimination.”
15 (Williams v. Pharmacia, Inc., (7th Cir. 1998) 137 F3d 944, 953, emphasis added.)
16 Defendant claims that records concerning Cross-Complainant’s income from prior to his
17 employment with Cross-Defendant are necessary for Cross-Defendant to evaluate a claim for loss of
18 earning capacity. However, Cross-Complainant is not making a claim for loss of earning capacity.
19 Rather, Cross-Complainant’s claim is for lost compensation and loss of future earnings as a result of
20 the wrongful termination of his employment with Cross-Defendant. Consequently, Cross-
21 Complainant’s earning history is not at issue in this case, and the only financial records which relate
22 to Cross-Complainant’s claimed economic damages in this case are the amount that he was earning
23 at Cross-Defendant, which Cross-Complainant believes are in Cross-Defendant’s possession, and
24 the amount he has earned from gainful employment since. Because Cross-Complainant has not
25 secured gainful employment since his termination, there are no records regarding any income
26 associated with such employment. Whatever Cross-Complainant earned from gainful employment
27 before his employment with Cross-Defendant is subject to his right of financial privacy and is not
28
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PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S
SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1]
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1 directly relevant to any issue is this case. As such, Cross-Defendant’s subpoenas for Cross-
2 Complainant’s employment records should be quashed.
3 F. Cross-Defendant May Not Use Subpoenas For Protected Information In A
Fishing Expedition.
4
5 Cross-Defendant also claims that the employment records are necessary to support its
6 unspecified defenses or for impeachment purposes. However, the party seeking discovery
7 information protected by the right to privacy is not permitted to engage in the type of “fishing
8 expedition” that is permissible with respect to general discovery. (Tylo v. Superior Court, supra, 55
9 Cal.App.4th at p. 1387.) During the “meet and confer” process, Cross-Defendant stated that the
10 records are necessary because they may uncover that Cross-Complainant was previously “disciplined
11 or terminated from past employers because of clinical concerns and/or inappropriate behavior toward
12 patients or staff” or that he “sustained emotional or psychological stress while employed by his
13 previous employers.” However, Cross-Defendant has offered no evidence to support these
14 assertions.
15 Possible relevance is not enough to warrant the invasion of a privacy right. As set forth above,
16 when it comes to private documents, the general standard of discovery, that the information or
17 documents are reasonably calculated to lead to admissible evidence, simply does not apply. (Board
18 of Trustees, supra, 119 Cal.App.3d at 524.) Part of this requirement is that the party seeking the
19 discovery must first demonstrate that the information is directly relevant to the litigation. (Tylo,
20 supra, 55 Cal.App.4th at p. 1387.) “Discovery of constitutionally protected information is on a par
21 with discovery of privileged information and is more narrowly proscribed than traditional
22 discovery.” (Id.)
23 G. Cross-Defendant Has Not Attempted To Use Less Intrusive Means To Obtain
The Information It Seeks
24
25 When an intrusion on the right of privacy is deemed necessary under the circumstances of a
26 particular case, any such intrusion must be the minimum intrusion necessary to achieve its objective.
27 In other words, the least intrusive means should be utilized to satisfy the compelling public need.
28 (Allen, supra, 151 Cal.App.3d at p. 449.) In Allen, the appellate court found that the lower court had
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PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S
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1 abused its discretion when it failed to require a less intrusive method of discovery, such as conducting
2 a deposition without production of the records. (Id.)
3 In this case, Cross-Defendant has not attempted to obtain the information it seeks through
4 less intrusive means. It has not taken Cross-Complainant’s deposition, nor did it attempt to take
5 depositions without the production of the records. As such, subpoenaing protected records without
6 attempting to obtain the information it seeks through less intrusive means is inappropriate, and the
7 subpoenas should be quashed in their entirety.
8 PLAINTIFF/CROSS-DEFENDANT’S (“THE COMPANY”)
9 RESPONSE TO PLAINTIFF’S OBJECTION
10 II. THE COMPANY’S REASONS WHY THIS COURT SHOULD NOT QUASH THE
11 SUBPOENAS
12 Hokama’s Motion to Quash should be denied because the information sought is directly
13 relevant to Hokama’s allegations and is essential to a fair resolution of this matter. The Company
14 will be unfairly prejudiced if it is not permitted to obtain Hokama’s pre-employment records.
15 Furthermore, Hokama has failed to establish that the requested information is absolutely protected
16 by his privacy rights, or that any harm resulting from the production of the documents outweighs the
17 importance of allowing the Company to defend itself in this litigation. Hokama’s contention that the
18 records may be obtained through less intrusive means is incorrect and the Company has met its
19 burden of establishing a compelling need for the production of the records sought.
20 A. The Company is Authorized to Subpoena Relevant Documents From
Hokama’s Employers.
21
22 As an initial but critical matter, a party is entitled to obtain discovery of all information that
23 is “relevant to the subject matter involved in the pending action… [and] either is itself inadmissible
24 in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Cal.
25 Code Civ. Proc. § 2017.010; Lipton v. Superior Court, 48 Cal. App. 4th 1599, 1611 (1996) (the
26 permissible scope of discovery must be defined by logic and common sense). Courts have construed
27 the discovery statutes broadly, so as to uphold the right to discovery wherever possible. Greyhound
28 v. Superior Court (Clay), 56 Cal.2d 355, 377-378 (1961) (superseded by statute on other grounds).
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PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S
SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1]
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1 Even where the statutes require a showing of “good cause” to obtain discovery, this term is liberally
2 construed – to permit, rather than prevent, discovery wherever possible. Greyhound, 56 Cal.2d at
3 377-78.
4 B. Hokama’s Employment Records are “Directly Relevant” to His Allegations, the
Company’s Defenses, and “Are Essential to the Fair Resolution of the
5 Lawsuit.”
6 The Company is entitled to obtain the subpoenaed records upon a demonstration that (1) the
7 records are directly relevant to Hokama’s claims; and (2) are essential to the fair resolution of the
8 lawsuit. Lantz v. Superior Court, 28 Cal. App. 4th 1839, 1853-1854 (1987).
9 1. The Records are “Directly Relevant” to Plaintiff’s Claims.
10 Hokama’s employment records - including his personnel files, wage and payroll records, job
11 duties and descriptions, accommodation requests, performance evaluations, complaints by or against
12 Hokama, and disciplinary/discharge records - are directly relevant to Hokama’s causes of action
13 against the Company for fraud, negligent misrepresentation, retaliation in violation of Labor Code
14 sections 6310, 232.5, and 970, and wrongful termination, including issues of emotional distress and
15 other sources of his alleged emotional distress, and lost wages. Gragossian v. Cardinal Health Inc.,
16 2008 U.S. Dist. LEXIS 55680 (S.D. Cal. July 21, 2008).
17 The Gragossian case is directly on point. In Gragossian, the defendant employer contended
18 that plaintiff’s employment records were directly relevant 1) to the extent the plaintiff has made
19 similar claims against other employers; 2) to the extent it relates to the after-acquired evidence
20 doctrine; 3) to determine the extent of her prior management experience and efforts to obtain
21 promotions elsewhere; 4) to her work history in general; 5) to her claims of emotional distress; 6) to
22 her claim for damages; and 7) to test her credibility. Id. The Court agreed and stated that “Plaintiff’s
23 allegation she sustained emotional distress and mental anguish as a result of her employment with
24 Defendants places her emotional state at issue and opens the door for discovery of information about
25 her emotional and mental condition.” Id. The Court held that “[d]iscovery regarding the personnel
26 files and Plaintiff’s wages and benefits, as well as her mental and emotional health is essential to
27 ensure a fair resolution of this suit.” Id.
28
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PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S
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1 Here, the Company seeks Hokama’s employment records for similar reasons as in
2 Gragossian, which are directly relevant to Hokama’s allegations. The Company seeks records
3 demonstrating whether Hokama made similar claims against other employers in the past, may relate
4 to the after-acquired evidence doctrine, to determine the extent of his prior employment experience
5 and prior disciplinary issues, to confirm the truth of his alleged work history in general, to see
6 whether there may be other sources of his alleged emotional distress, to determine his employability
7 as it relates to his claims for lost wages, and to test his credibility. All of these issues are directly
8 relevant to Hokama’s claims and the Company’s defenses in the instant cross-action.
9 2. The Subpoenaed Records Are Essential To A Fair Resolution of the
Lawsuit.
10
11 Courts allow the discovery of personnel records when its discovery could support a
12 defendant’s defenses or could be used for the purposes of impeachment. See, e.g., Guitron v. Wells
13 Fargo Bank, N.A., 2011 U.S. Dist. LEXIS 103072 (N.D. Cal. September 13, 2011) (court allowed
14 discovery of personnel records, including job applications, resumes, performance review/evaluation,
15 disciplinary/corrective action records, investigation records concerning plaintiff’s conduct,
16 termination records, work performance reviews.).
17 The Company has narrowly tailored its requests to discoverable information relevant to
18 Hokama’s claims, and this Court should allow production. Here, the requested information is
19 necessary for a fair resolution of the case, given that the Company must have the opportunity to
20 investigate the validity of the underlying claims, as well as the extent of any purported damages.
21 C. The Company Has No Less Intrusive Means of Obtaining the Information.
22 Generally, discovery of private or confidential information will not be ordered if the
23 information sought is available from other sources or through less intrusive means. Allen v. Sup. Ct.
24 (Sierra), 151 Cal. 3d 447, 449 (1984) (holding that discovery “cannot be pursued by means that
25 broadly stifle fundamental personal liberties when the end can be more narrowly achieved.”).
26 Hokama argues that the Company can acquire the same information from Hokama during his
27 deposition. However, the Company is not required to accept Hokama’s word as truth. The Company
28 should not be limited to a single source of information – it has every right to investigate the claims
10
PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S
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1 through other means. Additionally, despite Hokama’s assertion otherwise, the Company should not
2 be required to wait until after Hokama’s deposition to determine whether it would like to investigate
3 Hokama’s employment history. The Company will have no way of determining the accuracy of the
4 information provided by Hokama without seeing a copy of his actual employment records from his
5 previous employers.
6 D. The Company’s Right to Discovery Outweighs Any Privacy Interests.
7 1. Hokama Does Not Have An Absolute Right to Privacy.
8 The right to privacy protected by the California Constitution, Article I, Section 1, is a
9 fundamental liberty interest and extends to details of one’s personal life. City of Santa Barbara v.
10 Adamson, 27 Cal.3d 123, 130 (1980); Valley Bank of Nevada v. Superior Court, 15 Cal.3d 652, 656
11 (1985). However, Courts recognize “the historically important state interest of facilitating the
12 ascertainment of truth in connection with legal proceedings,” and carefully balance this interest
13 against an individual’s right to privacy to determine if disclosure is appropriate. El Dorado Savings
14 & Loan Assn v. Superior Court, 190 Cal. App. 3d 342, 345-46 (1987) citing Moskowitz v. Superior
15 Court, 137 Cal. App. 3d 313, 316 (1982). As such, California’s right to privacy is not absolute and
16 disclosure of private information may be ordered if a “compelling public interest” would be served.
17 Britt v. Superior Court, 20 Cal.3d 844, 855 (1978).
18 Further, although employment records are typically confidential outside of litigation,
19 Hokama greatly diminishes his reasonable expectation of privacy by initiating this employment
20 cross-action against the Company. See Britt v. Superior Court, 20 Cal. 3d 844, 858 (1978). ([T]he
21 filing of a lawsuit may implicitly bring about a partial waiver of one’s constitutional right of
22 associational privacy . . .”). Indeed, in an employment lawsuit, a Cross-Plaintiff’s privacy interest
23 in employment records is “vastly reduced.” Sirota v. Penske Truck Leasing Corp., 2006 WL 708910
24 (N.D. Cal. March 17, 2006) (relying on California privacy law to deny a motion to quash a subpoena
25 of employment records seeking “any and all records, documentation, and/or files pertaining to
26 plaintiff”).
27 Here, by filing the instant cross-action and seeking damages for lost wages, Hokama has
28 partially waived his right to privacy with respect to his pre-employment wages. Specifically, with
11
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1 respect to his lost wages, Hokama alleges he “suffered and continues to suffer substantial losses in
2 wages, earnings, deferred compensation, and other employment benefits…” (FACC ¶ 65) as well as
3 loss of “future earning capacity.” (FACC ¶ 65.) As such, Plaintiff has directly put his lost wages
4 and financial status at issue.
5 E. The Company’s Right to Discovery Outweighs Hokama’s Privacy Rights.
6 Hokama’s right to privacy is also subject to a balancing test weighing the Company’s right
7 to engage in discovery with Hokama’s reasonable expectation of privacy in the information sought.
8 Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal.4th 360, 371 (2007); Valley Bank of
9 Nevada v. Sup. Ct. (Barkett), 15 Cal. 3d 652, 657 (1975). Courts consider the following factors as
10 part of the balancing inquiry: 1) the purpose of the information sought; 2) the effect that disclosure
11 will have on the parties and on the trial; 3) the nature of the objections urged by the party resisting
12 disclosure; and 4) the ability of the court to make an alternative order granting partial disclosures or
13 protective measures. See Alch v. Superior Court, 165 Cal. App. 4th 1412, 1425 (2008), Valley Bank
14 of Nev. v. Super. Ct., 15 Cal. 3d 652, 657 (1975). In examining these factors, the balancing test
15 significantly favors disclosure of Hokama’s employment records.
16 Notably, the majority of case law dealing with limitations on the discovery of personnel
17 records is responsive to issues arising from the privacy interests of non-parties in an action and not
18 the privacy interest of an actual party’s personnel file. Harding Lawson Associates v. Superior Court,
19 10 Cal. App. 4th 7, 10 (1992). The possibility of the disclosure of confidential information related
20 to a third party is absent in the instant matter. The Company is only seeking defendant/cross-
21 complainant Hokama’s employment records. The only information pertaining to third persons that
22 could possibly be discovered within Hokama’s records are the names of other employees, such as
23 Hokama’s managers, and this information may properly be disclosed without an invasion of third
24 party privacy rights. Puerto v. Superior Court, 158 Cal. App. 4th 1242, 1252 (2008).
25 a. Purpose of the Information Sought.
26 As indicated above, there are multiple reasons justifying the production of Hokama’s
27 employment records. As discussed above, Hokama’s employment records and pay history are
28 relevant to confirm the truth of his alleged work history in general, to see whether he has made
12
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1 similar complaints against employers in the past, to determine the extent of his prior employment
2 experience and discipline issues, to see whether there may be other sources of his alleged emotional
3 distress, to determine his employability as it relates to his claims for lost wages, and to test his
4 credibility. Further, Hokama’s employment records could be relevant for impeachment purposes.
5 See Vinson v. Superior Court, 43 Cal.3d 833, 842 (1987).
6 b. Effect That Disclosure Will Have on the Parties and on the Trial.
7 The Company has a strong countervailing interest in defending itself against Hokama’s
8 allegations. An order preventing the Company from conducting thorough discovery into matters
9 relevant to Hokama’s claims would greatly diminish the Company’s opportunity to defend this
10 action. This runs contrary to principles of fairness and the broad discovery rights afforded under the
11 California Code of Civil Procedure. See Moskowitz v. Superior Court, 137 Cal. App. 3d 313, 316
12 (1982) (holding that there is a “historically important state interest of facilitating the ascertainment
13 of truth in connection with legal proceedings”).
14 c. Specific Showing of the Need for Privacy and Resulting Harm.
15 Importantly, Hokama has cited no specific privacy concerns aside from a general right of
16 privacy pursuant to the California Constitution. Hokama greatly diminishes his reasonable
17 expectation of privacy by initiating this employment cross-action against the Company. See Britt v.
18 Superior Court, 20 Cal. 3d 844, 858 (1978). ([T]he filing of a lawsuit may implicitly bring about a
19 partial waiver of one’s constitutional right of associational privacy . . .”).
20 d. Alternative Orders to Assuage Any Privacy Concerns.
21 If the Court felt there was any remaining threat to Plaintiff’s privacy it could issue a protective
22 order whereby the subpoenaed records would be marked confidential before production. As such,
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1 Hokama’s privacy concerns should be properly assuaged while also permitting the Company to
2 discover relevant information.
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4 DATED: April 8, 2024 OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C.
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7 By:
Stuart D. Tochner
8 Emily K. Harvin
9 Attorneys for Plaintiff/Cross-Defendant
STEVEN G. JOHNSON DENTAL
10 CORPORATION
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Preview
1 STUART D. TOCHNER, CA Bar No. 123758 stuart.tochner@ogletree.com 2 EMILY K. HARVIN, CA Bar No. 299950 emily.harvin@ogletree.com 3 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 4 400 South Hope Street, Suite 1200 Los Angeles, CA 90071 5 Telephone: 213-239-9800 Facsimile: 213-239-9045 6 Attorneys for Plaintiff/Cross-Defendant 7 STEVEN G. JOHNSON DENTAL CORPORATION 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SANTA BARBARA 11 STEVEN G. JOHNSON DENTAL Case No. 23CV00884 CORPORATION, 12 Date: April 23, 2024 Plaintiff, Time: 8:30 a.m. 13 Place: Dept. 2, Santa Maria vs. Judge: Hon. James F. Rigali 14 [Assigned for all purposes] MYLES HOKAMA, an individual, 15 PLAINTIFF/CROSS-DEFENDANT Defendant. STEVEN G. JOHNSON DENTAL 16 CORPORATION’S OPPOSITION TO MYLES HOKAMA, DEFENDANT/CROSS-COMPLAINANT’S 17 SEPARATE STATEMENT OF Cross-Complainant, DISCOVERY IN DISPUTE IN SUPPORT 18 OF MOTION TO QUASH SUBPOENAS vs. [C.C.P. 1987.1] 19 STEVEN G. JOHNSON DENTAL [Filed concurrently with Opposition to Motion 20 CORPORATION; and Roes 1 through 10, to Quash; Declaration of Emily Harvin; Inclusive, [Proposed] Order] 21 Cross-Defendants. 22 Action Filed: March 2, 2023 Trial Date: None 23 24 25 26 27 28 1 PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1] 61046771.v1-OGLETREE 1 Plaintiff/Cross-Defendant Steven G. Johnson Dental Corporation (“the Company”) hereby 2 submits the following Response to Defendant/Cross-Complainant Myles Hokama’s (“Hokama”) 3 Separate Statement of Discovery in Dispute in Support of Motion to Quash Subpoenas [C.C.P. 4 1987.1]. 5 I. HOKAMA’S OBJECTIONS AND SUPPORTING LEGAL AUTHORITY IN 6 OPPOSITION TO SUBPOENAS FOR EMPLOYMENT RECORDS FROM 7 SMILELAND DENTAL AND WESTERN DENTAL SERVICES, INC. 8 A. This Court Has the Authority to Quash and/or Issue a Protective Order Limiting the Scope of Deposition Subpoenas. 9 10 California’s Code of Civil Procedure affords parties and non-parties protection against 11 defective subpoenas. Specifically, Code of Civil Procedure section 1987.1 provides that the court, 12 upon a motion “reasonably made” by any party, “may make an order quashing the subpoena entirely, 13 modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, 14 including protective orders. In addition, the court may make any other order as may be appropriate 15 to protect the person from unreasonable or oppressive demands, including unreasonable violations 16 of the right of privacy of the person.” (Code Civ. Proc. §1987.1(a).) 17 “Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space Facility, 18 Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223 (“Calcor Space Facility”).) A subpoena that 19 seeks information that is privileged, protected, or irrelevant may be quashed. (Code Civ. Proc. 20 §2017.010.) Additionally, a court may issue a protective order limiting the scope of discovery “if it 21 determines that the burden, expense or intrusiveness of the discovery clearly outweighs the likelihood 22 that the information will lead to the discovery of admissible evidence.” (Code Civ. Proc. §2017.020.) 23 The more sensitive the information sought in the subpoena, the greater the need for the discovery 24 must be shown. (Hoffman Corp. v. Superior Court (1085) 172 Cal.App.3d 357, 362.) The party 25 seeking discovery must show a particularized need for the confidential information sought. The 26 broad “relevancy to the subject matter” standard is not enough. The court must be convinced that 27 the information is directly relevant to a cause of action or defense, i.e., that it is essential to 28 2 PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1] 61046771.v1-OGLETREE 1 determining the truth of the matters in dispute. (Britt v. Superior Court (1978) 20 Ca1.3d 844, 856 2 (“Britt”).) 3 Further, in the context of non-party discovery subpoenas, the courts have determined that 4 requests that are not likely to lead to relevant or admissible evidence, not specified with reasonable 5 particularity, and require overly burdensome searches by non-parties are not reasonable. (Calcor 6 Space Facility, supra, 53 Cal.App.4th at p. 221.) 7 As set forth herein, an order quashing Cross-Defendant’s overly broad and intrusive 8 subpoenas is appropriate. 9 B. The Document Request In The Subpoenas Is Vague And Overbroad 10 Under California law, a subpoena must describe the documents to be produced with 11 reasonable particularity. (Calcor Space Facility, supra, 53 Cal.App.4th at p. 218; see Code Civ. 12 Proc. §2025.220(a)(4) (providing that a deposition notice shall state the “specification with 13 reasonable particularity of any materials or category of materials to be produced by the deponent.”) 14 “When discovery requests are grossly overbroad on their face, and hence do not appear reasonably 15 related to a legitimate discovery need, a reasonable inference can be drawn of an intent to harass and 16 improperly burden.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431 (“Obregon”).) 17 The court’s decision in Calcor Space Facility is directly on point. In that case, the plaintiff 18 issued a subpoena to a nonparty that included a twelve-page document request purporting to be 19 detailed by was interpreted by the court to essentially consist of a “single sentence: Produce 20 everything in your possession which in any way relates to gun mounts.” (53 Cal.App.4th at p. 222.) 21 The appellate court held that this request was insufficiently detailed and issued a writ of mandate 22 directing the trial court to vacate orders compelling the nonparty to produce the requested materials, 23 because the subpoena described “generalized broad categories of materials rather than specific 24 documents, or at least, categories of documents or materials which are reasonably particularized.” 25 (Id. at p. 219.) 26 Here, Cross-Defendant does the same thing as did the plaintiffs in Calcor Space Facility. 27 Cross-Defendant’s subpoenas seek a laundry list of items that essentially seek everything in the 28 deponents’ possession which in any way relates to Cross-Complainant. As demonstrated by Calcor 3 PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1] 61046771.v1-OGLETREE 1 Space Facility, Cross-Defendant’s document requests are insufficiently detailed, vague, and 2 overbroad. This Court, therefore, can draw the reasonable inference that Cross-Defendant, by issuing 3 subpoenas for all of Cross-Complainant’s employment records, intends to harass and improperly 4 burden the nonparties to whom the subpoenas are directed. (See, Obregon, supra, 67 Cal.App.4th at 5 p. 431.) Accordingly, this Court should quash the subpoenas. 6 C. The Subpoenas Seek Information That Is Not Relevant Nor Reasonably Calculated To Lead To The Discovery Of Admissible Evidence 7 8 “Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space Facility, 9 supra, 53 Cal.App.4th at p. 223.) Parties may conduct discovery only of matters that are relevant or 10 are reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. 11 §2017.010.) “The burden rests upon the party seeking the discovery to provide evidence from which 12 the court may determine these conditions are met. (Calcor Space Facility, supra, 53 Cal.App.4th at 13 p. 223.) 14 The overly broad nature of the subpoenas, seeking virtually every document pertaining to 15 Cross-Complainant in the possession of the subpoenaed entities, means that documents and 16 information not relevant to the issues raised by any party to the litigation nor reasonably calculated 17 to lead to the discovery of admissible evidence necessarily are included in the requests. Cross- 18 Complainant has not put his previous employment history at issue in this case. He is not making a 19 claim for loss of earning capacity or any other claim that would make his prior employment relevant 20 to his employment with Cross-Defendant and subsequent termination. Accordingly, this Court 21 should quash the subpoenas in their entirety. 22 D. Cross-Complainant’s Employment Records Are Protected By The Constitutional Right To Privacy 23 24 Both the State of California and the United States recognize that individual have a right of 25 privacy in certain information. (California Constitution Art. 1, § 1; Griswold v. Connecticut, 381 26 U.S. 479 (1965).) Even relevant, nonprivileged information may be shielded from discovery if its 27 disclosure would violate a person’s constitutional right of privacy. (Cobb v. Superior Court (1979) 28 99 Cal.App.3d 543, 550 (“Cobb”); Britt v. Superior Court (1978) 20 Ca1.3d 844, 852-864 (“Britt”).) 4 PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1] 61046771.v1-OGLETREE 1 It is well established that a person’s work history and confidential personnel files are within 2 a legally recognized zone of privacy and are entitled to protection. (Alch v. Superior Court (2008) 3 165 Cal.App.4th 1412, 1426-1427 [work history]; Board of Trustees v. Superior Court (1981) 119 4 Cal.App.3d 516, 528-530 [personnel records] (“Board of Trustees”).) A party’s financial records are 5 also confidential and protected by the right of privacy. (Valley Bank of Nevada v. Superior Court 6 (1975) 15 Ca1.3d 652, 655-656; Cobb, supra, 99 Cal.App.3d at p. 550.) Quite often, employment 7 records also contain highly confidential information of third parties, the disclosure of which would 8 violate their rights to privacy with no notice that their confidential information is being sought. (See 9 Board of Trustees, supra, 119 Cal.App.3d at pp. 528-530.) Employment records may only be 10 compelled to be produced if they are directly relevant, not merely that they may lead to the discovery 11 of relevant information. (Id. at p. 525.) 12 Generally, information is discoverable if it is not privileged and is either relevant to the 13 subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. 14 (Schnabel v. Superior Court (1993) 5 Ca1.4th 704, 711 (“Schnabel”).) However, when confidential 15 information is sought, it must be directly relevant to one of the issues in the action. (Board of 16 Trustees, supra, 119 Cal.App.3d at p. 525, Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1387 17 (“Tylo”).) The party seeking to invade the other party’s right to privacy must show there is a 18 compelling need for the information. (Williams v. Superior Court (2017) 3 Ca1.5th 531, 557.) Even 19 when discovery of private information is found directly relevant to the issues of ongoing litigation, 20 the compelling public need for discovery must be carefully balanced against the right of privacy. 21 (Tylo, supra, 55 Cal.App.4th at p. 1387.) The more “sensitive” the information (e.g., personal 22 financial information) sought, the greater the need for discovery must be shown. (Hoffman Corp. v. 23 Superior Court (1985) 172 Cal.App.3d 357, 362; Tien v. Superior Court (2006) 139 Cal.App.4th 24 528, 540.) Even when the balance weighs in favor of disclosure of private information because of a 25 compelling state purpose, the scope of such disclosure must be narrowly drawn. (Britt; supra, 20 26 Ca1.3d at p. 856.) Moreover, even when an intrusion on the right of privacy is deemed necessary 27 under the circumstances of a particular case, any such intrusion must be the minimum intrusion 28 necessary to achieve its objective. In other words, the least intrusive means should be utilized to 5 PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1] 61046771.v1-OGLETREE 1 satisfy the compelling public need. (Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449 2 (“Allen”).) 3 E. Records From Cross-Complainant’s Previous Employers Are Not Relevant To His Claim For Loss Of Future Earnings. 4 5 Damages in a wrongful termination case include back pay, or lost compensation, in the 6 amount a plaintiff would have earned but for the termination, less sums earned from subsequent 7 employment. (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Ca1.3d 176, 181; see also 8 Morgado v. City & County of San Francisco (2020) 53 Cal.App.5th 1216, 1220.) Damages may also 9 include front pay, or loss of future earnings, in the amount a plaintiff would have earned from 10 employment after the trial of a wrongful termination claim. (Mize-Kurzman v. Marin Comm. College 11 Dist. (2012) 202 CA4th 832, 873.) Loss of future earnings is different than loss of earning capacity, 12 or “the loss of the ability to earn money as a result of the injury.” (CACI 3903.) Loss of earning 13 capacity “compensates [a plaintiff] for a for a lifetime of diminished earnings [from other employers] 14 resulting from the reputational harms [he or] she suffered as a result of [employer’s] discrimination.” 15 (Williams v. Pharmacia, Inc., (7th Cir. 1998) 137 F3d 944, 953, emphasis added.) 16 Defendant claims that records concerning Cross-Complainant’s income from prior to his 17 employment with Cross-Defendant are necessary for Cross-Defendant to evaluate a claim for loss of 18 earning capacity. However, Cross-Complainant is not making a claim for loss of earning capacity. 19 Rather, Cross-Complainant’s claim is for lost compensation and loss of future earnings as a result of 20 the wrongful termination of his employment with Cross-Defendant. Consequently, Cross- 21 Complainant’s earning history is not at issue in this case, and the only financial records which relate 22 to Cross-Complainant’s claimed economic damages in this case are the amount that he was earning 23 at Cross-Defendant, which Cross-Complainant believes are in Cross-Defendant’s possession, and 24 the amount he has earned from gainful employment since. Because Cross-Complainant has not 25 secured gainful employment since his termination, there are no records regarding any income 26 associated with such employment. Whatever Cross-Complainant earned from gainful employment 27 before his employment with Cross-Defendant is subject to his right of financial privacy and is not 28 6 PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1] 61046771.v1-OGLETREE 1 directly relevant to any issue is this case. As such, Cross-Defendant’s subpoenas for Cross- 2 Complainant’s employment records should be quashed. 3 F. Cross-Defendant May Not Use Subpoenas For Protected Information In A Fishing Expedition. 4 5 Cross-Defendant also claims that the employment records are necessary to support its 6 unspecified defenses or for impeachment purposes. However, the party seeking discovery 7 information protected by the right to privacy is not permitted to engage in the type of “fishing 8 expedition” that is permissible with respect to general discovery. (Tylo v. Superior Court, supra, 55 9 Cal.App.4th at p. 1387.) During the “meet and confer” process, Cross-Defendant stated that the 10 records are necessary because they may uncover that Cross-Complainant was previously “disciplined 11 or terminated from past employers because of clinical concerns and/or inappropriate behavior toward 12 patients or staff” or that he “sustained emotional or psychological stress while employed by his 13 previous employers.” However, Cross-Defendant has offered no evidence to support these 14 assertions. 15 Possible relevance is not enough to warrant the invasion of a privacy right. As set forth above, 16 when it comes to private documents, the general standard of discovery, that the information or 17 documents are reasonably calculated to lead to admissible evidence, simply does not apply. (Board 18 of Trustees, supra, 119 Cal.App.3d at 524.) Part of this requirement is that the party seeking the 19 discovery must first demonstrate that the information is directly relevant to the litigation. (Tylo, 20 supra, 55 Cal.App.4th at p. 1387.) “Discovery of constitutionally protected information is on a par 21 with discovery of privileged information and is more narrowly proscribed than traditional 22 discovery.” (Id.) 23 G. Cross-Defendant Has Not Attempted To Use Less Intrusive Means To Obtain The Information It Seeks 24 25 When an intrusion on the right of privacy is deemed necessary under the circumstances of a 26 particular case, any such intrusion must be the minimum intrusion necessary to achieve its objective. 27 In other words, the least intrusive means should be utilized to satisfy the compelling public need. 28 (Allen, supra, 151 Cal.App.3d at p. 449.) In Allen, the appellate court found that the lower court had 7 PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1] 61046771.v1-OGLETREE 1 abused its discretion when it failed to require a less intrusive method of discovery, such as conducting 2 a deposition without production of the records. (Id.) 3 In this case, Cross-Defendant has not attempted to obtain the information it seeks through 4 less intrusive means. It has not taken Cross-Complainant’s deposition, nor did it attempt to take 5 depositions without the production of the records. As such, subpoenaing protected records without 6 attempting to obtain the information it seeks through less intrusive means is inappropriate, and the 7 subpoenas should be quashed in their entirety. 8 PLAINTIFF/CROSS-DEFENDANT’S (“THE COMPANY”) 9 RESPONSE TO PLAINTIFF’S OBJECTION 10 II. THE COMPANY’S REASONS WHY THIS COURT SHOULD NOT QUASH THE 11 SUBPOENAS 12 Hokama’s Motion to Quash should be denied because the information sought is directly 13 relevant to Hokama’s allegations and is essential to a fair resolution of this matter. The Company 14 will be unfairly prejudiced if it is not permitted to obtain Hokama’s pre-employment records. 15 Furthermore, Hokama has failed to establish that the requested information is absolutely protected 16 by his privacy rights, or that any harm resulting from the production of the documents outweighs the 17 importance of allowing the Company to defend itself in this litigation. Hokama’s contention that the 18 records may be obtained through less intrusive means is incorrect and the Company has met its 19 burden of establishing a compelling need for the production of the records sought. 20 A. The Company is Authorized to Subpoena Relevant Documents From Hokama’s Employers. 21 22 As an initial but critical matter, a party is entitled to obtain discovery of all information that 23 is “relevant to the subject matter involved in the pending action… [and] either is itself inadmissible 24 in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Cal. 25 Code Civ. Proc. § 2017.010; Lipton v. Superior Court, 48 Cal. App. 4th 1599, 1611 (1996) (the 26 permissible scope of discovery must be defined by logic and common sense). Courts have construed 27 the discovery statutes broadly, so as to uphold the right to discovery wherever possible. Greyhound 28 v. Superior Court (Clay), 56 Cal.2d 355, 377-378 (1961) (superseded by statute on other grounds). 8 PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1] 61046771.v1-OGLETREE 1 Even where the statutes require a showing of “good cause” to obtain discovery, this term is liberally 2 construed – to permit, rather than prevent, discovery wherever possible. Greyhound, 56 Cal.2d at 3 377-78. 4 B. Hokama’s Employment Records are “Directly Relevant” to His Allegations, the Company’s Defenses, and “Are Essential to the Fair Resolution of the 5 Lawsuit.” 6 The Company is entitled to obtain the subpoenaed records upon a demonstration that (1) the 7 records are directly relevant to Hokama’s claims; and (2) are essential to the fair resolution of the 8 lawsuit. Lantz v. Superior Court, 28 Cal. App. 4th 1839, 1853-1854 (1987). 9 1. The Records are “Directly Relevant” to Plaintiff’s Claims. 10 Hokama’s employment records - including his personnel files, wage and payroll records, job 11 duties and descriptions, accommodation requests, performance evaluations, complaints by or against 12 Hokama, and disciplinary/discharge records - are directly relevant to Hokama’s causes of action 13 against the Company for fraud, negligent misrepresentation, retaliation in violation of Labor Code 14 sections 6310, 232.5, and 970, and wrongful termination, including issues of emotional distress and 15 other sources of his alleged emotional distress, and lost wages. Gragossian v. Cardinal Health Inc., 16 2008 U.S. Dist. LEXIS 55680 (S.D. Cal. July 21, 2008). 17 The Gragossian case is directly on point. In Gragossian, the defendant employer contended 18 that plaintiff’s employment records were directly relevant 1) to the extent the plaintiff has made 19 similar claims against other employers; 2) to the extent it relates to the after-acquired evidence 20 doctrine; 3) to determine the extent of her prior management experience and efforts to obtain 21 promotions elsewhere; 4) to her work history in general; 5) to her claims of emotional distress; 6) to 22 her claim for damages; and 7) to test her credibility. Id. The Court agreed and stated that “Plaintiff’s 23 allegation she sustained emotional distress and mental anguish as a result of her employment with 24 Defendants places her emotional state at issue and opens the door for discovery of information about 25 her emotional and mental condition.” Id. The Court held that “[d]iscovery regarding the personnel 26 files and Plaintiff’s wages and benefits, as well as her mental and emotional health is essential to 27 ensure a fair resolution of this suit.” Id. 28 9 PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1] 61046771.v1-OGLETREE 1 Here, the Company seeks Hokama’s employment records for similar reasons as in 2 Gragossian, which are directly relevant to Hokama’s allegations. The Company seeks records 3 demonstrating whether Hokama made similar claims against other employers in the past, may relate 4 to the after-acquired evidence doctrine, to determine the extent of his prior employment experience 5 and prior disciplinary issues, to confirm the truth of his alleged work history in general, to see 6 whether there may be other sources of his alleged emotional distress, to determine his employability 7 as it relates to his claims for lost wages, and to test his credibility. All of these issues are directly 8 relevant to Hokama’s claims and the Company’s defenses in the instant cross-action. 9 2. The Subpoenaed Records Are Essential To A Fair Resolution of the Lawsuit. 10 11 Courts allow the discovery of personnel records when its discovery could support a 12 defendant’s defenses or could be used for the purposes of impeachment. See, e.g., Guitron v. Wells 13 Fargo Bank, N.A., 2011 U.S. Dist. LEXIS 103072 (N.D. Cal. September 13, 2011) (court allowed 14 discovery of personnel records, including job applications, resumes, performance review/evaluation, 15 disciplinary/corrective action records, investigation records concerning plaintiff’s conduct, 16 termination records, work performance reviews.). 17 The Company has narrowly tailored its requests to discoverable information relevant to 18 Hokama’s claims, and this Court should allow production. Here, the requested information is 19 necessary for a fair resolution of the case, given that the Company must have the opportunity to 20 investigate the validity of the underlying claims, as well as the extent of any purported damages. 21 C. The Company Has No Less Intrusive Means of Obtaining the Information. 22 Generally, discovery of private or confidential information will not be ordered if the 23 information sought is available from other sources or through less intrusive means. Allen v. Sup. Ct. 24 (Sierra), 151 Cal. 3d 447, 449 (1984) (holding that discovery “cannot be pursued by means that 25 broadly stifle fundamental personal liberties when the end can be more narrowly achieved.”). 26 Hokama argues that the Company can acquire the same information from Hokama during his 27 deposition. However, the Company is not required to accept Hokama’s word as truth. The Company 28 should not be limited to a single source of information – it has every right to investigate the claims 10 PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1] 61046771.v1-OGLETREE 1 through other means. Additionally, despite Hokama’s assertion otherwise, the Company should not 2 be required to wait until after Hokama’s deposition to determine whether it would like to investigate 3 Hokama’s employment history. The Company will have no way of determining the accuracy of the 4 information provided by Hokama without seeing a copy of his actual employment records from his 5 previous employers. 6 D. The Company’s Right to Discovery Outweighs Any Privacy Interests. 7 1. Hokama Does Not Have An Absolute Right to Privacy. 8 The right to privacy protected by the California Constitution, Article I, Section 1, is a 9 fundamental liberty interest and extends to details of one’s personal life. City of Santa Barbara v. 10 Adamson, 27 Cal.3d 123, 130 (1980); Valley Bank of Nevada v. Superior Court, 15 Cal.3d 652, 656 11 (1985). However, Courts recognize “the historically important state interest of facilitating the 12 ascertainment of truth in connection with legal proceedings,” and carefully balance this interest 13 against an individual’s right to privacy to determine if disclosure is appropriate. El Dorado Savings 14 & Loan Assn v. Superior Court, 190 Cal. App. 3d 342, 345-46 (1987) citing Moskowitz v. Superior 15 Court, 137 Cal. App. 3d 313, 316 (1982). As such, California’s right to privacy is not absolute and 16 disclosure of private information may be ordered if a “compelling public interest” would be served. 17 Britt v. Superior Court, 20 Cal.3d 844, 855 (1978). 18 Further, although employment records are typically confidential outside of litigation, 19 Hokama greatly diminishes his reasonable expectation of privacy by initiating this employment 20 cross-action against the Company. See Britt v. Superior Court, 20 Cal. 3d 844, 858 (1978). ([T]he 21 filing of a lawsuit may implicitly bring about a partial waiver of one’s constitutional right of 22 associational privacy . . .”). Indeed, in an employment lawsuit, a Cross-Plaintiff’s privacy interest 23 in employment records is “vastly reduced.” Sirota v. Penske Truck Leasing Corp., 2006 WL 708910 24 (N.D. Cal. March 17, 2006) (relying on California privacy law to deny a motion to quash a subpoena 25 of employment records seeking “any and all records, documentation, and/or files pertaining to 26 plaintiff”). 27 Here, by filing the instant cross-action and seeking damages for lost wages, Hokama has 28 partially waived his right to privacy with respect to his pre-employment wages. Specifically, with 11 PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1] 61046771.v1-OGLETREE 1 respect to his lost wages, Hokama alleges he “suffered and continues to suffer substantial losses in 2 wages, earnings, deferred compensation, and other employment benefits…” (FACC ¶ 65) as well as 3 loss of “future earning capacity.” (FACC ¶ 65.) As such, Plaintiff has directly put his lost wages 4 and financial status at issue. 5 E. The Company’s Right to Discovery Outweighs Hokama’s Privacy Rights. 6 Hokama’s right to privacy is also subject to a balancing test weighing the Company’s right 7 to engage in discovery with Hokama’s reasonable expectation of privacy in the information sought. 8 Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal.4th 360, 371 (2007); Valley Bank of 9 Nevada v. Sup. Ct. (Barkett), 15 Cal. 3d 652, 657 (1975). Courts consider the following factors as 10 part of the balancing inquiry: 1) the purpose of the information sought; 2) the effect that disclosure 11 will have on the parties and on the trial; 3) the nature of the objections urged by the party resisting 12 disclosure; and 4) the ability of the court to make an alternative order granting partial disclosures or 13 protective measures. See Alch v. Superior Court, 165 Cal. App. 4th 1412, 1425 (2008), Valley Bank 14 of Nev. v. Super. Ct., 15 Cal. 3d 652, 657 (1975). In examining these factors, the balancing test 15 significantly favors disclosure of Hokama’s employment records. 16 Notably, the majority of case law dealing with limitations on the discovery of personnel 17 records is responsive to issues arising from the privacy interests of non-parties in an action and not 18 the privacy interest of an actual party’s personnel file. Harding Lawson Associates v. Superior Court, 19 10 Cal. App. 4th 7, 10 (1992). The possibility of the disclosure of confidential information related 20 to a third party is absent in the instant matter. The Company is only seeking defendant/cross- 21 complainant Hokama’s employment records. The only information pertaining to third persons that 22 could possibly be discovered within Hokama’s records are the names of other employees, such as 23 Hokama’s managers, and this information may properly be disclosed without an invasion of third 24 party privacy rights. Puerto v. Superior Court, 158 Cal. App. 4th 1242, 1252 (2008). 25 a. Purpose of the Information Sought. 26 As indicated above, there are multiple reasons justifying the production of Hokama’s 27 employment records. As discussed above, Hokama’s employment records and pay history are 28 relevant to confirm the truth of his alleged work history in general, to see whether he has made 12 PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1] 61046771.v1-OGLETREE 1 similar complaints against employers in the past, to determine the extent of his prior employment 2 experience and discipline issues, to see whether there may be other sources of his alleged emotional 3 distress, to determine his employability as it relates to his claims for lost wages, and to test his 4 credibility. Further, Hokama’s employment records could be relevant for impeachment purposes. 5 See Vinson v. Superior Court, 43 Cal.3d 833, 842 (1987). 6 b. Effect That Disclosure Will Have on the Parties and on the Trial. 7 The Company has a strong countervailing interest in defending itself against Hokama’s 8 allegations. An order preventing the Company from conducting thorough discovery into matters 9 relevant to Hokama’s claims would greatly diminish the Company’s opportunity to defend this 10 action. This runs contrary to principles of fairness and the broad discovery rights afforded under the 11 California Code of Civil Procedure. See Moskowitz v. Superior Court, 137 Cal. App. 3d 313, 316 12 (1982) (holding that there is a “historically important state interest of facilitating the ascertainment 13 of truth in connection with legal proceedings”). 14 c. Specific Showing of the Need for Privacy and Resulting Harm. 15 Importantly, Hokama has cited no specific privacy concerns aside from a general right of 16 privacy pursuant to the California Constitution. Hokama greatly diminishes his reasonable 17 expectation of privacy by initiating this employment cross-action against the Company. See Britt v. 18 Superior Court, 20 Cal. 3d 844, 858 (1978). ([T]he filing of a lawsuit may implicitly bring about a 19 partial waiver of one’s constitutional right of associational privacy . . .”). 20 d. Alternative Orders to Assuage Any Privacy Concerns. 21 If the Court felt there was any remaining threat to Plaintiff’s privacy it could issue a protective 22 order whereby the subpoenaed records would be marked confidential before production. As such, 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 13 PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1] 61046771.v1-OGLETREE 1 Hokama’s privacy concerns should be properly assuaged while also permitting the Company to 2 discover relevant information. 3 4 DATED: April 8, 2024 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 5 6 7 By: Stuart D. Tochner 8 Emily K. Harvin 9 Attorneys for Plaintiff/Cross-Defendant STEVEN G. JOHNSON DENTAL 10 CORPORATION 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 PLAINTIFF/CROSS-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH SUBPOENAS [C.C.P. 1987.1] 61046771.v1-OGLETREE