Motion to Seal (name extension) in ALI TAGHAVI vs. THE LELAND STANFORD JUNIOR UNIVERSITY, A CALIFORNIA NONPROFIT CORPORATION, et al| Trellis.Law

On October 04, 2017 a Party Discovery was filed involving a dispute between Taghavi, Ali, and Alticor, Inc., A Michigan Corporation, Does 1-10, Inclusive, The Leland Stanford Junior University, A California Nonprofit Corporation, for (36) Unlimited Wrongful Termination in the District Court of San Mateo County.

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1 Fredrick A. Hagen, California Bar No. 196220
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BERDING& WEIL LLP
2175 N. California Blvd, Suite 500
F I L
SAN MATEO COUNTY
E D
3 Walnut Creek, California 94596
Telephone: 925-838-2090 AUG 2 '0 2018
4 Facsimile: 925—820-5592 >

fhagen@,berdingv_veil.com :._ meat"!
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kpineo@berdingweil.com
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6 Attorneys for Plaintiff
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ALI TAGHAVI, an individual
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MPAS
Memorandum01Points and Authorities in Sup; SUPERIOR COURT OF THE STATE OF CALIFORNIA
”mm IN AND FOR THE COUNTY OF SAN MATEO
mum” mu
1v
ALI TAGHAVI, an individual, No. 17 CIV045 70
1 1
Plaintiff, MEMORANDUM OF POINTS AND
12 AUTHORITIES IN SUPPORT OF
vs. PLAINTIFF ALI TAGHAVI’S MOTION
13 ,

FOR PROTECTIVE ORDER SEALING
THE LELAND STANFORD JUNIOR HIS DEPOSITION
‘14 UNIVERSITY, a California nonproﬁt
corporation, doing business as STANFORD Date: September 21, 2018
15 UNIVERSITY; ALTICOR, INC, a Michigan Time: 9:00 a.m.
corporation; and DOES 1—10, inclusive, Dept: L&M
16
Defendants.
17 / aria

18 Plaintiff ALI TAGHAVI hereby submits his memorandum of points and authorities in Aa

19 support of his motion for a protective order regarding his deposition.
xv:
20 I. INTRODUCTION

21 Mr. Taghavi ﬁles this motion for a protective order to preclude Defendants THE LELAND

22 STANFORD JUNIOR UNIVERSITY (“the University”) and ALTICOR, INC. (“Amway”) from

23 inequitably pressuring Mr. Taghavi with the threat of revealing conﬁdential information. At three
24 deposition sessions in the instant wrongful termination case, Mr. Taghavi discussed various

25 conﬁdential topics including his ﬁnances, personnel ﬁles for employers who hired him after his

26 termination, his work history, and medical records. Under the California Constitution, Mr.

27 Taghavi has a right of privacy to this information.

28 ///
-1 _
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF ALI TAGHAVI’S
BERDING &WEIL, LLP MOTION FOR PROTECTIVE ORDER SEALING HIS DEPOSITION
1175 N Calilamiz Ehtd Suite 500
Walnul Creek, Callfomla 04595
The parties ﬁled a stipulation regarding conﬁdential matters, which allows a party to

designate deposition materials as “Conﬁdential Information.” Mr. Taghavi ﬁled this motion

because Defendants objected to his designation, despite the fact that a majority of Mr. Taghavi’s

deposition covered conﬁdential material. Mr. Taghavi moves for a protective order that his

deposition should be sealed from the public to protect his constitutionally protected privacy

interests. Importantly, Mr. Taghavi does not seek to prevent discovery: the information has

already been discovered. Instead, he seeks to merely prevent disclosure of the constitutionally—

protected information to the public. Therefore, Mr. Taghavi respectﬁllly requests that this Court

grant his motion for a protective order.

10
II. FACT SUMNIARY

11 This case arises out of Defendant the Leland Stanford Junior University’s (“the

12 University”) termination of Ali Taghavi from the University’s School of Medicine. (Declaration

13 of Fredrick A. Hagen in Support of Plaintiff‘s Motion for Protective Order Regarding Deposition

14 of Ali Taghavi 112.) On October 4, 2017, Mr. Taghavi ﬁled a complaint against the University for

15 wrongful termination and against Alticor, Inc. (“Amway”) for international interference with
16 prospective economic advantage. (Decl. Hagen 1[ 2.) _

17 On July 30, 31, and August 8, 2018, the University deposed Mr. Taghavi. (Decl. Hagen 1]

18 3.) On multiple instances during his deposition, Mr. Taghavi testiﬁed to conﬁdential matters

19 regarding his ﬁnances, personnel ﬁle, work history, and medical records that are protected

20 pursuant to his right to privacy under the California Constitution. (Decl. Hagen 1] 3.) For

21 example, Mr. Taghavi discussed the names of his employers after his termination from the

22 University, his job titles,salary, and‘ work application documents such as third party references.

23 (Decl. Hagen 1] 3.) A majority of his testimony concerned conﬁdential matters. (Decl. Hagen 11

24 3.)

25 On July 30, 2018, the Parties ﬁled a Stipulation and [Proposed] Protective Order

26 Regarding Conﬁdential Information (“the Stipulation”). (Decl. Hagen 1] 4.) The Stipulation

27 permits a party to designate any document as conﬁdential that the party “reasonably considers in
28 good-faith to contain information involving trade secrets, or conﬁdential business or ﬁnancial
-2-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF ALI TAGH‘AVI’S
BERDING & WEIL, LLP MOTION FOR PROTECTIVE ORDER SEALING HIS DEPOSITION
2175 N Calilnrnia Blvd Suits 5111:
Walnut Clank, Calﬂomlz 94585
information, including personal ﬁnancial information about any party to this lawsuit, putative

class members or employee of any party to this lawsuit, information regarding any individual’s

banking relationship with any banking institution, including information regarding the individual’s

financial transactions or ﬁnancial accounts, and any information regarding any party not otherwise

available to the public, subject to protection under Rules 2.550, 2.551, 2.580, 2.585, 8.160, and

8.490 of the California Rules of Court or under other provisions of California law.” (Decl. Hagen
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114; Stipulation 111.)

In addition, “A party or non—party may designate information disclosed during a deposition

. as “Conﬁdential” by so indicating in said responses or on the record at the deposition and

10 requesting the preparation of a separate transcript of such material.” (Decl. Hagen 11 5; Stipulation

11 112.) “In addition, a party may designate in writing, within thirty (30) days after receipt of said

12 responses or of the deposition transcript for which the designation is proposed, that speciﬁc pages

13 of the transcript and/or speciﬁc responses be treated as ‘Conﬁdential Information.’ Any other

14 party may object to such proposal, in writing or on the record. Upon such objection, the parties

15 shall follow the procedures described in Paragraph 8.” (Decl. Hagen 11 5; Stipulation 11 2.)

16 According to Paragraph 8 of the Stipulation, “[i]f a party contends that any material is not

17 entitled to conﬁdential treatment, such party may at any time give written notice to the party or

18 non—party who designated the material. The party or non-party who designated the material shall

19 have twenty (20) days from the receipt of such written notice to apply to the Court for an order

20 designating the material as conﬁdential. The party seeking the order has the burden of
21 establishing that the document is entitled to protection.” (Decl. Hagen 11 6; Stipulation 11 8.)

22 On July 31, 2018, Mr. Taghavi’s counsel emailed counsel for Defendants that he

23 designated Mr. Taghavi’s three deposition sessions, including the transcripts and videos, as

24 conﬁdential (“Designation Notice”). (Decl. Hagen 117.) He also emailed a “meet and confer”

25 email to Defendants on August 15, 2018. (Decl. Hagen 118.) Counsel for the University objected

26 to the designation of the July 30-31 on August 7, 2018 (“University Objection Letter”). (Decl.

27 Hagen 11 9.) Counsel for the University objected to the designation of the remaining deposition

28 sessions on August 15, 2018 (“University Objection Email”). (Decl. Hagen 119.) Counsel for
_

_3_
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF ALI TAGHAVI’S
BERDING & WEIL, LLP MOTION FOR PROTECTIVE ORDER SEALING HIS DEPOSITION
2175 N Calilnmiz Blvd Suite 51m
Walnut Creek, California 94596
Amway objected to the designation on August 1 and 17, 2018 (“Amway Objection Email”).

(Decl. Hagen 1110.) Because counsel for both Defendants objected when Mr. Taghavi’s counsel

designated the deposition materials as conﬁdential, Mr. Taghavi ﬁled this motion pursuant to the

Stipulation 8. Mr. Taghavi seeks a protective order that seals the deposition—including the

W
11

transcripts and videos—from disclosure to the public.
111-
\DOOQQUI-D-

Before, during, or after a deposition, any party may promptly move for a protective order.

(Code Civ. Proc., § 2025.420, subd. (21).) If a moving party demonstrates good cause for its

motion, a court “may make any order that justice requires to protect any party from

10 unwarranted annoyance, embarrassment, or oppression, or undue burden or expense.” (Id., §

11 2025.420, subd. (b).) For example, a court may grant a protective order that a deposition be sealed

12 and thereafter opened only on order of the court. (Id., § 2025.420, subd. (b)(15).) A protective
13 order sealing a deposition directs counsel and the parties not to publish or disclose the information

14 contained in the testimony. (See, e.g., Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313,

15 316 overruled on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531.)

16 Here, Mr. Taghavi has good cause \for a motion to seal his deposition from public use.

17 First, Mr. Taghavi testiﬁed to his personnel records, medical records, ﬁnances, and work history,

18 which are protected by his constitutional right to privacy. Second, Defendants would not be

19 prejudiced because they could stilluse the testimony in the instant case. Mr. Taghavi merely

20 requests that the deposition be sealed from the general public. Third, Mr. Taghavi met the

21 procedural meet and confer requirements. Therefore, Mr. Taghavi respectfully requests that this

22 Court grant his motion for protective order.

23 A. Mr. Taghavi has a constitutional right of privacy that applies to his personnel,
employment, medical, and ﬁnancial records that requires his deposition to be
24 sealed from the public.

25 The state Constitution expressly grants Californians a right of privacy. (Cal. Const., art.I,

26 § 1.) Article I, sectionl’s inalienable right of privacy is a fundamental interest of our society,

27 essential to those rights guaranteed by the First, Third, Fourth, Fifth, and Ninth Amendments to

28 the U.S. Constitution. (City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130.) Here,
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF ALI TAGI-IAVI’S
BERDING 8. WEIL. LLP MOTION FOR PROTECTIVE ORDER SEALING HIS DEPOSITION
Suit: son
2175 N camel-nil Blvd
Walnm Creek, Californla 94596
Mr. Taghavi has a constitutional right of privacy the precludes the disclosure of his employment,

personnel, medical, and ﬁnancial information.

1. Employment personnel, work history, ﬁnance, and medical records are
constitutionally protected.
4}.

An employee has a privacy interest in certain records from his or her place of employment,

such as “personnel, tenure, and promotion ﬁles, whether relating only to his [or her] initial
employment
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or also to his [or her] promotion, additional compensation, or termination.” (Board

of Trustees v.Superior Court (1981) 119 Cal.App.3d 516, 528; El Dorado Sav. & Loan Ass’ri v.

Superior Court (1987) 190 Cal.App.3d 342, 345 [noting an opposing party conceded that

10 personnel records are protected by the right of privacy].) Even third parties in the personnel ﬁles

11 enjoy a right of privacy. (See Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th

12 640, 652 overruled on other grounds in Williams v. Superior Court, supra, 3 Cal.5th 531.)

13 Moreover, a person’s work history (e.g. names of employers, dates of employment, job
14 titles,ﬁill or part—time) is protected by a right of privacy, but where the work history of third
15 persons is directly relevant and essential to the fair resolution of the suit, the court could order

16 disclosure. (Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1426—1427.) Furthermore, a

17 right of privacy exists as to a party’s conﬁdential ﬁnancial affairs, even when the information

18 sought is admittedly relevant to the litigation. (Cobb v. Superior Court (1979) 99 Cal.App.3d 543,

19 550.) The constitutional right of privacy also applies to a party’s medical records. (John E. v.

2o Superior Court (2006) 38 Cal.4th 1177, 1198.)

21 Here, Mr. Taghavi disclosed several types of conﬁdential information during his three

22 deposition sessions: ﬁnances, personnel ﬁles, work history, and medical records. For example,

23 Mr. Taghavi testiﬁed to the names of his employers who hired him after he was terminated by the

24 University, his job titles,salary, and work application documents such as third party references.
25 He had a right of privacy regarding this information, and third parties in his deposition had a right

26 of privacy for corresponding information as well. The right to privacy protects Mr. Taghavi’s

27 deposition from disclosure to the public.

28 ///
-5-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF ALI TAGHAVI’S
BERDING 8. WEIL, LLF MOTION FOR PROTECTIVE ORDER SEALING HIS DEPOSITION
2175 N caliinmia Blvd Suits 50!)
Walnm break, Call'nmla 94596
The entirety of Mr. Taghavi’s deposition should be deemed conﬁdential. Given a majority

of the deposition covered conﬁdential information, it would be impractical, unduly burdensome,
and oppressive for Mr. Taghavi to identify every instance he testiﬁed to the conﬁdential
ADJ

information. Instead, the entire deposition—including the deposition videos—should be deemed

conﬁdential.

2. There is little countervailing interest in opening Mr. Taghavi’s
deposition to the general public because Defendants would have access
to the deposition in the instant case.
KDOO\]O\

The constitutional right of privacy is not absolute. (See Williams v. Superior Court, supra,

3 Ca1.5th at p. 556; El Dorado Sav. & Loan Ass’n v. Superior Court, supra, 190 Ca1.App.3d at p. .

10 345.) In an invasion of privacy analysis, when there is an obvious invasion of an interest

11 fundamental to personal autonomy, a party needs a compelling interest to discover the

12 information. (Williams, infra, 3 Cal.5.th at p.556.) But whenever lesser interests are at stake, a

13 court balances the strength of the compelling interest with that of the privacy interest, the

14 seriousness of the invasion, and the availability of alternatives and protective measures. (Ibid.)

15 One compelling interest is the historically important state interest of facilitating the ascertainment

16 of truth in connection with legal proceedings. (Britt v. Superior Court (1978) 20 Cal.3‘d 844, 857.)

17 Even where the balance weighs in favor of disclosure of private information, a court will
18 narrowly circumscribe the disclosure; such an invasion of the right of privacy must be drawn with

19 narrow speciﬁcity and is permitted only to the extent necessary for a fair resolution of the lawsuit.
20 (Britt v. Superior Court (1978) 20 Cal.3d 844, 856, 859 overruled on other grounds in Williams v.

21 Superior Court, supra, 3 Ca1.5th 531.) Under this standard, the public interest in discovering

22 protected information is low when a moving party does not seek to restrict the scope of discovery
23 or prevent disclosure to opposing parties. (Moskowitz v. Superior Court, supra, 137 Ca1.App.3dat

'24 p. 316 overruled on other grounds in Williams v. Superior Court, supra, 3 Ca1.5th at p. 557.)

25 The facts in Moskowitz are similar to those in the instant case. In Moskowitz, a plaintiff

26 moved for a protective order sealing his deposition and limiting dissemination of the information

27 from the deposition to counsel for the parties and to such other persons who would necessarily

28 need the information to prepare for trial. (Id. at p.316.) The Court of Appeal noted the plaintiff
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF ALI TAOHAVI’S
BERDING &‘WEIL, LLP MOTION FOR PROTECTIVE ORDER SEALING HIS DEPOSITION
aw Suhu sun
2115 N Cali'omia
Walmn Clack, callbmla 94555
did not seek to restrict the scope of discovery nor deny that opposing parties were entitled to

discover the details of his conﬁdential information. (Ibid.) In contrast, the plaintiff sought only to
prevent “disclosure of the personal ﬁnancial information, contained in his deposition, to persons

who have no legitimate interest in its use for purposes of the litigation.” (12nd) Irnportantly, the

court noted “the fact that [plaintiff] is attempting to restrict the use of the facts discovered, rather

than the scope of the discovery itself, cannot justify denial of his constitutional right of privacy . ..
KOOONONUIJ>

divulged in his deposition.” (Ibia'.) Thus, there is less of a public interest in discovering

information when a party limits the use of discovered information instead of the scope of the
information.

10 Here, the public interest in obtaining Mr. Taghavi’s personnel records is negligible. Mr.

11 Taghavi disclosed the conﬁdential information to opposing counsel during his deposition. Like

12 Moskowitz, Mr. Taghavi does not seek to limit the scope of the discovered information. Instead,

13 he seeks to limit the use of the information by sealing it ﬁom the general public. There would be

14 virtually no prejudice to Defendants if the Court sealed Mr. Taghavi’s deposition because

15 Defendants could access and use the information for their case, and the general public would have

16 no need to use the information in this case. Mr. Taghavi’s proposed protection order would not

17 hinder Defendants in pursuing this litigation.

18 Furthermore, Defendants may gain an inequitable advantage if the Court denied the motion
19 for protective order. (Moskowitz v. Superior Court, supra, 137 Cal.App.3d at p. 318 [“It seems a

20 rare instance indeed that the potential of disclosure for purposes unrelated to the lawsuit or to

21 persons other than counsel and their representatives serves any purpose except to give a tactical

22 edge to the party who has obtained discovery of the information by allowing that party the beneﬁt
23 of pressure in settlement negotiations by threat or implication of disclosure”].) Therefore, Mr.
24 Taghavi’s privacy right outweighs the public’s nonexistent interest in discovering his personnel,

25 medical, ﬁnancial, and work history records.

26 ///
.27 // /
28 ///
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF ALI TAGHAVI’S
EERDING 8. WElL. LLP MOTION FOR PROTECTIVE ORDER SEALING HIS DEPOSITION
2|75 N Calllamla Blvd Suite sou
Walnut Creek, California 91596
B‘. Mr. Taghavi met the procedural requirements for ﬁling a motion for a
protective order.

The motion for protective order must be accompanied by a declaration stating facts

A showing a “reasonable and good faith attempt” to resolve the matter outside court. (Code Civ.
\
Proc., § 202.420, subd. (a).) Here, on July 31, 2018, Mr. Taghavi’s counsel emailed counsel for

Defendants that he was planning to designate Mr. Taghavi’s deposition transcript and Video as

conﬁdential.
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He also emailed a “meet and confer” email to Defendants on August 15, 2018.

Counsel for both Defendants were unwilling to allow Mr. Hagen to designate the materials as

conﬁdential, prompting the ﬁling of this motion. Because the procedural requirements were met,

1o this Court should grant Mr. Taghavi’s motion for protective order.

11 IV. CONCLUSION
12
For the foregoing reasons, Mr. Taghavi respectfully requests that the Court grant this
13
request for a protective order to maintain the conﬁdentiality of Mr. Taghavi’s deposition
14
transcript, including the written transcript, the videos taken during his deposition, and exhibits to
15
his deposition.
16

21
Date: August 20, 2018 .
BERDIN

By:
Fredri
Attorn
j
k A. Hagen
IL LLP

ys for Plaintiff
ALI TAGHAVI

27
X:\Wdocs\8236\91\PLD\00942072.DOCX

28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF ALI TAGHAVI’S
BERDING & WElL, LLP MOTION FOR PROTECTIVE ORDER SEALING HIS DEPOSITION
2175 N Calilnmia BM! Suiul 500
Walnut Clack, Califomlz 94596

Case Info

Judge

John L. Grandsaert Track Judge’s New Case

Case No.

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Document Filed Date

August 20, 2018

Case Filing Date

October 04, 2017

County

Parties

ALTICOR, INC., A MICHIGAN CORPORATION Defendant
DOES 1-10, INCLUSIVE Defendant
EKLOF, AMBER A. Attorney for the Defendant
HAGEN, FREDRICK A Attorney for the Plaintiff
KUBIN, KAREN J. Attorney for the Defendant
TAGHAVI, ALI Plaintiff
THE LELAND STANFORD JUNIOR UNIVERSITY, A CALIFORNIA NONPROFIT CORPORATION Defendant
David Zins Attorneys for Defendants
Marcie Fitzsimmons Attorneys for Defendants
Kyle Pineo Attorneys for Plaintiffs

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Party Discovery: ALI TAGHAVI vs. THE LELAND STANFORD JUNIOR UNIVERSITY, A CALIFORNIA NONPROFIT CORPORATION, et al

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