Preview
1 Jesse J. Maddox, Bar No. 219091 E-FILED
jmaddox@lcwlegal.com 9/10/2021 4:42 PM
2 Nathan T. Jackson, Bar No. 285620 Superior Court of California
njackson@lcwlegal.com County of Fresno
3 LIEBERT CASSIDY WHITMORE By: L Peterson, Deputy
A Professional Law Corporation
4 5250 North Palm Ave, Suite 310
Fresno, California 93704
5 Telephone: 559.256.7800
Facsimile: 559.449.4535
6
Attorneys for Defendant BOARD OF TRUSTEES OF
7 CALIFORNIA STATE UNIVERSITY
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF FRESNO
11 A. SAMEH EL KHARBAWY, Case No.: 21CECG02214
12 Plaintiff, [ASSIGNED FOR ALL PURPOSES TO
5250 North Palm Ave, Suite 310
A Professional Law Corporation
KIMBERLY GAAB, DEPT. 503]
Liebert Cassidy Whitmore
Fresno, California 93704
13 v.
Complaint Filed: October 23, 2020
14 BOARD OF TRUSTEES OF
CALIFORNIA STATE UNIVERSITY; SEPARATE STATEMENT IN SUPPORT OF
15 DARRYL L. HAMM, an individual; DEFENDANT BOARD OF TRUSTEES OF
LYNNETTE ZELEZNY, an individual; CALIFORNIA STATE UNIVERSITY’S
16 JOSEPH I. CASTRO, an individual; MOTION TO QUASH OR MODIFY
SAUL JIMENEZ-SANDOVAL, an RECORDS SUBPOENAS ISSUED TO THIRD
17 individual; XUANNING FU, an PARTIES ANDREA HARVERY AND EDLIN
individual; AND DOES 1 through 50, CUTTS, AND FOR A PROTECTIVE ORDER
18
Defendants. Date: December 2, 2021
19 Time: 3:30 p.m.
Dept.: 503
20
(*Exempt from filing fees pursuant to Gov.
21 Code, § 6103.)
22
23 TO THE COURT, PLAINTIFF AND HIS ATTORNEYS OF RECORD:
24 PLEASE TAKE NOTICE that Defendant Board of Trustees of California State University
25 (“Defendant” or “CSU”) hereby submits, pursuant to California Rules of Court, Rule 3.1345, the
26 following Separate Statement in Support of its Motion to Quash and for a Protective Order.1
27 1
CSU has prepared one separate statement for both of the subpoenas at issue, because the
28 requests within each subpoena are identical.
1
Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order
9785261.2 FR007-003
1 DEFINITIONS APPLICABLE TO ALL REQUESTS
2 1. "BOARD" shall refer to the Board of Trustees of California State University and
3 (i) all of its present and former agents, representatives, accountants, investigators, consultants,
4 employees, and attorneys; (ii) any other person or entity acting on its behalf or on whose behalf it
5 acted, or (iii) any other person or entity affiliated with it or subject to its management, oversight
6 or administration, (iv) any other person or entity subject to its control or which controls it, or with
7 which it is under common control.
8 2. "DEFENDANTS" shall refer to the Board of Trustees of California State
9 University and other entities and individuals, including, but not limited to, Joseph Castro; Saul
10 Jimenez-Sandoval; Lynnette Zelezny; Darryl Hamm; Xuanning Fu.
11 3. "FRESNO STATE" shall refer to California State University, Fresno and (i) all of
12 its present and former agents, representatives, accountants, investigators, consultants, employees,
5250 North Palm Ave, Suite 310
A Professional Law Corporation
Liebert Cassidy Whitmore
Fresno, California 93704
13 and attorneys; (ii) any other person or entity acting on its behalf or on whose behalf it acted, or
14 (iii) any other person or entity affiliated with it or subject to its management, oversight or
15 administration, (iv) any other person or entity subject to its control or which controls it, or with
16 which it is under common control.
17 4. "DOCUMENTS" include, but are not limited to, any writing as defined in
18 California Evidence Code section 250, including the originals, or copies when originals are not
19 available, of any writing filed for reporting or other purposes with any federal, state, or local
20 agency; notes; memoranda; letters; financial ledgers; intra-office or interoffice communications;
21 circulars; bulletins; manuals; results of investigations; progress reports; performance evaluations;
22 employment, transfer, or promotion applications; studies made by or for any business or personal
23 use; working papers; contracts; agreements; affidavits; declarations; statements; bills; books of
24 accounts; vouchers; evaluations; drawings; photographs; desk calendars; bank checks; pay stubs;
25 invoices; charge slips; receipts; expense accounts; statistical records; cost sheets; journals; diaries;
26 personal notes; time sheets or logs; computer data (whether in written, magnetic, electronic,
27 physical, or other form); computer disks; audio or video recordings; job or transaction files;
28 medical records; permits, licenses, or applications therefor; unemployment applications;
2
Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order
9785261.2 FR007-003
1 personnel evaluations; resumes; appointment books; books; records, copies, extracts, and
2 summaries of other documents; and preliminary, intermediate, and final drafts of any of the
3 above, whether used or not. With respect to electronic DOCUMENTS, produce them in native
4 format with all metadata included.
5 5. "COMMUNICATIONS" refers to every manner or means of disclosure, transfer,
6 exchange of information, whether orally or in writing, whether face-to-face, by telephone, mail,
7 fax, text, email or any other method.
8 6. "EVIDENCING," "RELATING TO," "REFLECTING," or "SUPPORTING"
9 means and includes mentioning, referring to, evidencing, including, memorializing, embodying,
10 containing, constituting, identifying, stating, commenting on, being relevant to, concerning,
11 refuting, proving, disproving, or negating.
12 DOCUMENT REQUESTS AT ISSUE
5250 North Palm Ave, Suite 310
A Professional Law Corporation
Liebert Cassidy Whitmore
Fresno, California 93704
13 REQUEST FOR PRODUCTION NO. 1:
14 All DOCUMENTS and COMMUNICATIONS, including text messages, instant
15 messages, emails, social media messages, and direct messages, in your possession RELATING
16 TO Dr. El Kharbawy.
17 WHY THIS REQUEST IS IMPROPER:
18 Several of Plaintiff’s former students participated in a workplace investigation conducted
19 by the law firm of Wilke Fleury into allegations he engaged in misconduct. Plaintiff is now
20 serving those students burdensome and oppressive records subpoenas. This Request is overly
21 broad, seeks information and documents that are neither relevant nor reasonably calculated to
22 lead to the discovery of admissible evidence in this matter, and seeks information that is private
23 (e.g., social media messages). A party seeking records from a non-party must make a showing of
24 good cause, just as if s/he were to compel production against a party. (Calcor Space Facility, Inc.
25 v. Superior Ct. (1997) 53 Cal.App.4th 216, 224 (“Calcor”).) There are no allegations in Plaintiff’s
26 lawsuit against his former students.
27 1. This Request Is Overbroad, Seek Irrelevant Information, And There Is No
28 Good Cause That Could Possibly Justify The Scope of This Request
3
Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order
9785261.2 FR007-003
1 This is a universally disfavored form of “shotgun” discovery - which is a phrase used to
2 describe discovery that is so overboard as to be oppressive. (City of Los Angeles v. Superior
3 Court (1973) 33 Cal.App.3d 778, 783 [denying discovery covering “a field of interrogation so
4 broad that they could require the production of information wholly alien to the subject matter of
5 this action”); Columbia Broad Sys. v. Superior Court (1968) 263 Cal.App.2d 12, 18 [“discovery,
6 like all matters of procedure, has ultimate and necessary boundaries”]; Romero v. Hern (1969)
7 276 Cal.App.2d 787, 794 [denying discovery “as broad as space” on the grounds it was
8 impermissibly overbroad and remote]; City of Los Angeles v. Superior Court (1961) 196
9 Cal.App.2d 743, 746-748 [denying discovery on grounds of breadth]; Calcor, 53 Cal.App.4th at
10 225 [fishing expeditions improper when they place "more burden upon the adversary than the
11 value of the information warrants”].)
12 Moreover, “[I]f the information sought to be elicited relates to matters of little or no
5250 North Palm Ave, Suite 310
A Professional Law Corporation
Liebert Cassidy Whitmore
Fresno, California 93704
13 practical benefit to the party seeking disclosure, a timely objection on the grounds that the
14 question asked is not relevant to the subject matter in the pending action and not reasonably
15 calculated to lead to admissible evidence should be sustained by a trial judge." (Covell v.
16 Superior Court (1984) 159 Cal. App. 3d 39, 42-43).
17 This request seeks any documents that could conceivably relate to Plaintiff in any possible
18 way, both before and after the students enrolled at Fresno State, and regardless of contextual or
19 temporal scope. This would, for instance, encompass academic transcripts, other student
20 academic records that even mention Plaintiff or any course he ever taught, communications
21 between a student’s employer about her school schedule, any correspondences ever sent to
22 Plaintiff (Plaintiff still has access to his CSU e-mail account), or any communications to any
23 other person – ever – that could “relate” to Plaintiff in any conceivable way (based on how
24 “RELATING TO” is defined). This is overbroad, irrelevant, and not likely to lead to the
25 discovery of admissible evidence. It was propounded to oppress students.
26 2. Plaintiff’s Subpoenas Are Incomprehensible
27 The categories of documents to be produced must be “reasonably” particularized from the
28 standpoint of the party on whom the demand is made. (Calcor, supra, 53 Cal.App.4th at 222;
4
Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order
9785261.2 FR007-003
1 Code Civ. Proc., § 2031.240(b)(1) [a party must “Identify with particularity any document,
2 tangible thing, land, or electronically stored information falling within any category of item in the
3 demand to which an objection is being made”].) A subpoena is also improper where the
4 descriptions, when combined with detailed “definitions” and “instructions” expand and
5 complicate the demand. (Calcor, supra, at 223 [detailed “definitions” and “instructions” turned
6 each of 32 document requests into a complicated “category” described in more than 6 pages; held
7 “particularly obnoxious” and “grossly excessive”].)
8 Here, Plaintiff’s subpoena contains a page and a half of definitions. For example:
9 The definition for “RELATING TO” is confusing, because this term includes
10 information that concerns, refutes, proves, disproves, or negates. An attorney
11 reading this would struggle to fathom what it means – to demand the same kind of
12 clairvoyance from Plaintiff’s former students is not realistic. For example, what
5250 North Palm Ave, Suite 310
A Professional Law Corporation
Liebert Cassidy Whitmore
Fresno, California 93704
13 document “refutes” a document “relating to Plaintiff”?
14 The definitions for “BOARD” and “FRESNO STATE” is so broad that it
15 encompasses (1) any of CSU’s professors or administrators, (2) any person
16 “affiliated” with CSU – which ostensibly include anyone who ever attended a CSU
17 campus, and (3) “any other person or entity subject to its control or which controls
18 it, or with which it is under common control” (whatever that means.)
19 Not only is Plaintiff’s request impermissibly overbroad even if one assumes he intended a
20 more inherent or natural definition of his capitalized terms, but if one actually substitutes the
21 definitions he used into his already overbroad requests, they are impossibly convoluted.
22 3. Plaintiff’s Subpoenas Invade Protected Privacy Rights
23 A party to an action may assert the privacy rights of third parties. (Weingarten v. Superior
24 Ct., (2002)102 Cal.App.4th 268, 278.) “In each case, the court must carefully balance the right
25 of privacy against the need for discovery. The showing required to overcome the protection
26 depends on the nature of the privacy right asserted; in some cases, a simple balancing test is
27 sufficient, while in others, a compelling interest must be shown.” (Cal. Prac. Guide: Civil
28 Procedure Before Trial (Rutter Group) at ¶ 8:293.) “[I]t has been adjudged that inquiry into one’s
5
Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order
9785261.2 FR007-003
1 private affairs will not be constitutionally justified simply because inadmissible, and irrelevant,
2 maters sought to be discovered might lead to other, and relevant, evidence.” (Denari v. Superior
3 Ct. (1989) 215 Cal.App.3d 1488, 1496, internal citation omitted.) “Mere speculation as to the
4 possibility that some portion of the records might be relevant to some substantive issue does not
5 suffice.” (Davis v. Superior Ct. (1992) 7 Cal.App.4th 1008, 1017.)
6 The privacy right enumerated in Article 1, Section 1, of the California Constitution
7 “is an important American heritage and essential to the fundamental rights guaranteed by
8 the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution. This right should
9 be abridged only when there is a compelling public need.” (City of Santa Barbara v. Adamson
10 (1980) 27 Cal.3d 123, 130.) Under California law, this right encompasses a right to “autonomy,”
11 which encompasses “interests in making intimate personal decisions or conducting personal
12 activities without observation, intrusion, or interference.” (Hill v. Nat'l Collegiate Athletic Assn.
5250 North Palm Ave, Suite 310
A Professional Law Corporation
Liebert Cassidy Whitmore
Fresno, California 93704
13 (1994) 7 Cal.4th 1, 35.) “Even when discovery of private information is found to be directly
14 relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then
15 be a careful balancing of the compelling public need for discovery against the fundamental right
16 of privacy.” (Davis v. Superior Ct. (1992) 7 Cal.App.4th 1008, 1014.) “[T]he scope of the
17 compelled disclosure must be narrowly circumscribed to avoid undue interference with private
18 associational rights.” (Britt v. Superior Ct. (1978) 20 Cal. 3d 844, 849.)
19 Students and parents also have protected privacy rights in their educational records, which
20 unquestionably fall within the scope of Plaintiff’s subpoenas. To this end, Congress enacted the
21 Family Educational Rights and Privacy Act (“FERPA”) to protect individual privacy rights
22 associated with student educational records by limiting the transferability of their records without
23 their consent. (BRV, Inc. v. Superior Ct. (200)6 143 Cal.App.4th 742, 751–752.) “California law
24 defines ‘pupil records’ as ‘any item of information directly related to an identifiable pupil […]
25 FERPA defines ‘education records’ in nearly identical terms.” (Ibid, citing 20 U.S.C. § 1232g,
26 subd. (a)(4)(A).) After a student has attained the age of 18, the rights accorded to the parents of
27 the student under FERPA transfer to the student. (20 U.S.C. § 1232g(d).)
28 Plaintiff’s former students have a protected right to privacy under Article 1, Section 1, of
6
Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order
9785261.2 FR007-003
1 the California Constitution and FERPA. These privacy right are triggered where, as here,
2 Plaintiff seeks any document or record that relates to him in any way, at any point in their lives
3 (including, for example, private e-mails or text messages, basic course materials, transcripts, texts
4 with family members about class, medical information conveyed to a physician, communications
5 with the subject’s attorney, or communications with the students’ employer about their class
6 schedules, protected marital communications - anything.) This constitutes a serious invasion of
7 students’ privacy rights, because no parent or student would ever expect to have their professor
8 demand every communication that could conceivably pertain to him in any possible way as part
9 of that professor’s defense to a university’s misconduct charge. “[T]he extent and gravity of
10 the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” (Am.
11 Acad. of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 438.) Moreover, mere speculation that
12 responsive information may be relevant is not sufficient.
5250 North Palm Ave, Suite 310
A Professional Law Corporation
Liebert Cassidy Whitmore
Fresno, California 93704
13 It would be very easy for Plaintiff to narrow his discovery to items that are directly
14 relevant to the subject matter of the instant action.
15 4. There Is No Protective Order In Place To Protect Students’
16 Information, or Protect Students From Intimidation
17 As noted in the accompanying memorandum of points and authorities, an independent
18 attorney investigator concluded that Plaintiff purposely intimidated his students, and most of the
19 student witnesses to the investigation were female. Given the sustained allegations of
20 intimidation against Plaintiff, taken with the fact he is currently in the process of being fired while
21 simultaneously (and secretly) serving his former students with overbroad and harassing
22 subpoenas, it is not unreasonable for the Court to take basic steps to protect these students (and
23 faculty) to the extent they must participate in this legal proceeding.
24 5. This Request Could Encompass Protected Materials
25 This request is improper to the extent it seeks privileged communications (including but
26 not limited to spousal communications or attorney-client privileged communications.)
27
28
7
Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order
9785261.2 FR007-003
1 REQUEST FOR PRODUCTION NO. 2:
2 All DOCUMENTS and COMMUNICATIONS, including text messages, instant
3 messages, emails, social media messages, and direct messages, in your possession RELATING
4 TO any complaints you had and/or formally filed against Dr. El Kharbawy.
5 WHY THIS REQUEST IS IMPROPER:
6 Several of Plaintiff’s former students participated in a workplace investigation conducted
7 by the law firm of Wilke Fleury into allegations he engaged in misconduct. Plaintiff is now
8 serving those students burdensome and oppressive records subpoenas. This Request is overly
9 broad, seeks information and documents that are neither relevant nor reasonably calculated to
10 lead to the discovery of admissible evidence in this matter, and seeks information that is private
11 (e.g., social media messages). A party seeking records from a non-party must make a showing of
12 good cause, just as if s/he were to compel production against a party. (Calcor, supra, 53
5250 North Palm Ave, Suite 310
A Professional Law Corporation
Liebert Cassidy Whitmore
Fresno, California 93704
13 Cal.App.4th 216, 224.) There are no allegations in Plaintiff’s lawsuit against his former students.
14 1. This Request Is Overbroad, Speculative, And There Is No Good Cause That
15 Could Possibly Justify The Scope Of This Request
16 This subpoena was served on two of Plaintiff’s former students, who participated in a
17 workplace investigation into allegations that Plaintiff engaged in misconduct. This request is
18 improper to the extent it seeks information that falls outside the scope of what each student told
19 the attorney investigator from Wilke Fleury. “[T]he scope of the compelled disclosure must be
20 narrowly circumscribed to avoid undue interference with private associational rights.” (Britt v.
21 Superior Ct. (1978) 20 Cal. 3d 844, 849.) “Mere speculation as to the possibility that some
22 portion of the records might be relevant to some substantive issue does not suffice.” (Davis v.
23 Superior Ct. (1992) 7 Cal.App.4th 1008, 1017.) Any information outside of that limited context is
24 speculative, intrusive, and irrelevant. “[I]f the information sought to be elicited relates to matters
25 of little or no practical benefit to the party seeking disclosure, a timely objection on the grounds
26 that the question asked is not relevant to the subject matter in the pending action and not
27 reasonably calculated to lead to admissible evidence should be sustained by a trial judge."
28 (Covell v. Superior Court (1984) 159 Cal. App. 3d 39, 42-43).
8
Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order
9785261.2 FR007-003
1 2. This Request Could Encompass Protected Materials
2 This request is improper to the extent it seeks privileged communications (including but
3 not limited to spousal communications or attorney-client privileged communications).
4 3. Plaintiff’s Subpoenas Are Incomprehensible
5 The categories of documents to be produced must be “reasonably” particularized from the
6 standpoint of the party on whom the demand is made. (Calcor, supra, 53 Cal.App.4th at 222;
7 Code Civ. Proc., § 2031.240(b)(1) [a party must “Identify with particularity any document,
8 tangible thing, land, or electronically stored information falling within any category of item in the
9 demand to which an objection is being made”].) A subpoena is also improper where the
10 descriptions, when combined with detailed “definitions” and “instructions” expand and
11 complicate the demand. (Calcor, supra, at 223. [detailed “definitions” and “instructions” turned
12 each of 32 document requests into a complicated “category” described in more than 6 pages; held
5250 North Palm Ave, Suite 310
A Professional Law Corporation
Liebert Cassidy Whitmore
Fresno, California 93704
13 “particularly obnoxious” and “grossly excessive”].)
14 Here, Plaintiff’s subpoena contains a page and a half of definitions. For example:
15 The definition for “RELATING TO” is confusing, because this term includes
16 information that concerns, refutes, proves, disproves, or negates. An attorney
17 reading this would struggle to fathom what it means – to demand the same kind of
18 clairvoyance from Plaintiff’s former students is not realistic. For example, what
19 document “refutes” a complaint about Plaintiff?
20 The definitions for “BOARD” and “FRESNO STATE” is so broad that it
21 encompasses (1) any of CSU’s professors or administrators, (2) any person
22 “affiliated” with CSU – which ostensibly include anyone who ever attended a CSU
23 campus, and (3) “any other person or entity subject to its control or which controls
24 it, or with which it is under common control” (whatever that means.)
25 Not only are Plaintiff’s request impermissibly overbroad even if we assume he intended a
26 more inherent or natural definition of his capitalized terms, but if you actually substitute the
27 definitions he used into his already overbroad requests, they are impossibly convoluted.
28 4. There Is No Protective Order In Place To Protect Students’
9
Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order
9785261.2 FR007-003
1 Information, or Protect Students From Intimidation
2 As noted in the accompanying memorandum of points and authorities, an independent
3 attorney investigator concluded that Plaintiff purposely intimidated his students, and most of the
4 student witnesses to the investigation were female. Given the sustained allegations of
5 intimidation against Plaintiff, taken with the fact he is currently in the process of being fired while
6 simultaneously (and secretly) serving his former students with overbroad and harassing
7 subpoenas, it is not unreasonable for the Court to take basic steps to protect these students (and
8 faculty) to the extent they must participate in this legal proceeding.
9 REQUEST FOR PRODUCTION NO. 3:
10 All DOCUMENTS and COMMUNICATIONS, including text messages, instant
11 messages, emails, social media messages, and direct messages, RELATING TO Dr. El Kharbawy
12 between you and California State University or anyone employed by, representing, or acting on
5250 North Palm Ave, Suite 310
A Professional Law Corporation
Liebert Cassidy Whitmore
Fresno, California 93704
13 behalf of California State University (at any time).
14 WHY THIS REQUEST IS IMPROPER
15 Several of Plaintiff’s former students participated in a workplace investigation by that was
16 conducted by the law firm of Wilke Fleury into allegations he engaged in misconduct. Plaintiff is
17 now serving those students burdensome and oppressive records subpoenas. This Request is
18 overly broad, seeks information and documents that are neither relevant nor reasonably calculated
19 to lead to the discovery of admissible evidence in this matter, and seeks information that is private
20 (e.g., social media messages). A party seeking records from a non-party must make a showing of
21 good cause, just as if s/he were to compel production against a party. (Calcor, 53 Cal.App.4th
22 216, 224.) There are no allegations in Plaintiff’s lawsuit against his former students.
23 1. This Request Is Overbroad. Seeks Irrelevant Information, And There Is No
24 Good Cause That Could Possibly Justify The Scope Of This Request
25 This is a universally disfavored form of “shotgun” discovery - which is a phrase used to
26 describe discovery that is so overboard as to be oppressive. (City of Los Angeles v. Superior
27 Court (1973) 33 Cal.App.3d 778, 783 [denying discovery covering “a field of interrogation so
28 broad that they could require the production of information wholly alien to the subject matter of
10
Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order
9785261.2 FR007-003
1 this action”); Columbia Broad Sys. v. Superior Court (1968) 263 Cal.App.2d 12, 18 [“discovery,
2 like all matters of procedure, has ultimate and necessary boundaries”]; Romero v. Hern (1969)
3 276 Cal.App.2d 787, 794 [denying discovery “as broad as space” on the grounds it was
4 impermissibly overbroad and remote]; City of Los Angeles v. Superior Court (1961) 196
5 Cal.App.2d 743, 746-748 [denying discovery on grounds of breadth]; Calcor, 53 Cal.App.4th
6 216, 225 [fishing expeditions improper when they place "more burden upon the adversary than
7 the value of the information warrants”].)
8 Moreover, “[I]f the information sought to be elicited relates to matters of little or no
9 practical benefit to the party seeking disclosure, a timely objection on the grounds that the
10 question asked is not relevant to the subject matter in the pending action and not reasonably
11 calculated to lead to admissible evidence should be sustained by a trial judge." (Covell v.
12 Superior Court (1984) 159 Cal. App. 3d 39, 42-43).
5250 North Palm Ave, Suite 310
A Professional Law Corporation
Liebert Cassidy Whitmore
Fresno, California 93704
13 This request was propounded to students who participated into a workplace investigation
14 into allegations that Plaintiff engaged in misconduct. This request is overbroad because it
15 encompasses any conceivable record that could pertain to Plaintiff, including academic files that
16 most certainly have absolutely nothing to do with this case. Moreover, this request is not
17 reasonably particularized to documents or communications bearing any relevance to Plaintiff’s
18 misconduct charge – it essentially amounts to access to students’ academic files. This request is
19 improper to the extent it seeks information that is not directly relevant to anything the students
20 may have told the attorney investigator from Wilke Fleury.
21 2. Plaintiff’s Subpoenas Are Incomprehensible
22 The categories of documents to be produced must be “reasonably” particularized from the
23 standpoint of the party on whom the demand is made. (Calcor, supra, 53 Cal.App.4th at 222;
24 Code Civ. Proc., § 2031.240(b)(1) [a party must “Identify with particularity any document,
25 tangible thing, land, or electronically stored information falling within any category of item in the
26 demand to which an objection is being made”].) A subpoena is also improper where the
27 descriptions, when combined with detailed “definitions” and “instructions” expand and
28 complicate the demand. (Calcor, supra, at 223 [detailed “definitions” and “instructions” turned
11
Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order
9785261.2 FR007-003
1 each of 32 document requests into a complicated “category” described in more than 6 pages; held
2 “particularly obnoxious” and “grossly excessive”].)
3 Here, Plaintiff’s subpoena contains a page and a half of definitions. For example:
4 The definition for “RELATING TO” is confusing, because this term includes
5 information that concerns, refutes, proves, disproves, or negates. An attorney
6 reading this would struggle to fathom what it means – to demand the same kind of
7 clairvoyance from Plaintiff’s former students is not realistic. For example, what
8 document “refutes” a document “relating to Plaintiff”?
9 The definitions for “BOARD” and “FRESNO STATE” is so broad that it
10 encompasses (1) any of CSU’s professors or administrators, (2) any person
11 “affiliated” with CSU – which ostensibly include anyone who ever attended a CSU
12 campus, and (3) “any other person or entity subject to its control or which controls
5250 North Palm Ave, Suite 310
A Professional Law Corporation
Liebert Cassidy Whitmore
Fresno, California 93704
13 it, or with which it is under common control” (whatever that means.)
14 Not only are Plaintiff’s request impermissibly overbroad even if we assume he intended a
15 more inherent or natural definition of his capitalized terms, but if you actually substitute the
16 definitions he used into his already overbroad requests, they are impossibly convoluted.
17 3. Plaintiff’s Subpoenas Invade Protected Privacy Rights
18 A party to an action may assert the privacy rights of third parties. (Weingarten v. Superior
19 Ct., (2002)102 Cal.App.4th 268, 278.) “In each case, the court must carefully balance the right
20 of privacy against the need for discovery. The showing required to overcome the protection
21 depends on the nature of the privacy right asserted; in some cases, a simple balancing test is
22 sufficient, while in others, a compelling interest must be shown.” (Cal. Prac. Guide: Civil
23 Procedure Before Trial (Rutter Group) at ¶ 8:293.) “[I]t has been adjudged that inquiry into one’s
24 private affairs will not be constitutionally justified simply because inadmissible, and irrelevant,
25 maters sought to be discovered might lead to other, and relevant, evidence.” (Denari v. Superior
26 Ct. (1989) 215 Cal.App.3d 1488, 1496, internal citation omitted.) “Mere speculation as to the
27 possibility that some portion of the records might be relevant to some substantive issue does not
28 suffice.” (Davis v. Superior Ct. (1992) 7 Cal.App.4th 1008, 1017.)
12
Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order
9785261.2 FR007-003
1 The privacy right enumerated in Article 1, Section 1, of the California Constitution
2 “is an important American heritage and essential to the fundamental rights guaranteed by
3 the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution. This right should
4 be abridged only when there is a compelling public need.” (City of Santa Barbara v. Adamson
5 (1980) 27 Cal.3d 123, 130). Under California law, this right encompasses a right to “autonomy,”
6 which encompasses “interests in making intimate personal decisions or conducting personal
7 activities without observation, intrusion, or interference.” (Hill v. Nat'l Collegiate Athletic Assn.
8 (1994) 7 Cal.4th 1, 35.) “Even when discovery of private information is found to be directly
9 relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then
10 be a careful balancing of the compelling public need for discovery against the fundamental right
11 of privacy.” (Davis v. Superior Ct. (1992) 7 Cal.App.4th 1008, 1014.) “[T]he scope of the
12 compelled disclosure must be narrowly circumscribed to avoid undue interference with private
5250 North Palm Ave, Suite 310
A Professional Law Corporation
Liebert Cassidy Whitmore
Fresno, California 93704
13 associational rights.” (Britt v. Superior Ct. (1978) 20 Cal. 3d 844, 849.)
14 Students and parents also have protected privacy rights in their educational records, which
15 unquestionably falls within the scope of Plaintiff’s subpoenas. To this end, Congress enacted the
16 Family Educational Rights and Privacy Act (“FERPA”) to protect individual privacy rights
17 associated with student educational records by limiting the transferability of their records without
18 their consent. (BRV, Inc. v. Superior Ct. (200)6 143 Cal.App.4th 742, 751–752.) “California law
19 defines ‘pupil records’ as ‘any item of information directly related to an identifiable pupil […]
20 FERPA defines ‘education records’ in nearly identical terms.” (Ibid, citing 20 U.S.C. § 1232g,
21 subd. (a)(4)(A).) After a student has attained the age of 18, the rights accorded to the parents of
22 the student under FERPA transfer to the student. (20 U.S.C. § 1232g(d).)
23 Plaintiff’s former students have a protected right to privacy under Article 1, Section 1, of
24 the California Constitution and FERPA. These privacy right are triggered where, as here, Plaintiff
25 seeks any document or record that relates to him in any way, and that was exchanged with CSU,
26 at any point in students’ lives (including, for example, e-mails or text messages, basic course
27 materials, transcripts, etc.) This constitutes a serious invasion of students’ privacy rights, because
28 no parent or student would ever expect to have their professor demand every document that could
13
Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order
9785261.2 FR007-003
1 pertain to him in some way to defend against a misconduct charge. “[T]he extent and gravity of
2 the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” (Am.
3 Acad. of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 438.) Moreover, mere speculation is not
4 sufficient.
5 4. There Is No Protective Order In Place To Protect Students’
6 Information, or Protect Students From Intimidation
7 As noted in the accompanying memorandum of points and authorities, an independent
8 attorney investigator concluded
Preview
1 Jesse J. Maddox, Bar No. 219091 E-FILED jmaddox@lcwlegal.com 9/10/2021 4:42 PM 2 Nathan T. Jackson, Bar No. 285620 Superior Court of California njackson@lcwlegal.com County of Fresno 3 LIEBERT CASSIDY WHITMORE By: L Peterson, Deputy A Professional Law Corporation 4 5250 North Palm Ave, Suite 310 Fresno, California 93704 5 Telephone: 559.256.7800 Facsimile: 559.449.4535 6 Attorneys for Defendant BOARD OF TRUSTEES OF 7 CALIFORNIA STATE UNIVERSITY 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 A. SAMEH EL KHARBAWY, Case No.: 21CECG02214 12 Plaintiff, [ASSIGNED FOR ALL PURPOSES TO 5250 North Palm Ave, Suite 310 A Professional Law Corporation KIMBERLY GAAB, DEPT. 503] Liebert Cassidy Whitmore Fresno, California 93704 13 v. Complaint Filed: October 23, 2020 14 BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY; SEPARATE STATEMENT IN SUPPORT OF 15 DARRYL L. HAMM, an individual; DEFENDANT BOARD OF TRUSTEES OF LYNNETTE ZELEZNY, an individual; CALIFORNIA STATE UNIVERSITY’S 16 JOSEPH I. CASTRO, an individual; MOTION TO QUASH OR MODIFY SAUL JIMENEZ-SANDOVAL, an RECORDS SUBPOENAS ISSUED TO THIRD 17 individual; XUANNING FU, an PARTIES ANDREA HARVERY AND EDLIN individual; AND DOES 1 through 50, CUTTS, AND FOR A PROTECTIVE ORDER 18 Defendants. Date: December 2, 2021 19 Time: 3:30 p.m. Dept.: 503 20 (*Exempt from filing fees pursuant to Gov. 21 Code, § 6103.) 22 23 TO THE COURT, PLAINTIFF AND HIS ATTORNEYS OF RECORD: 24 PLEASE TAKE NOTICE that Defendant Board of Trustees of California State University 25 (“Defendant” or “CSU”) hereby submits, pursuant to California Rules of Court, Rule 3.1345, the 26 following Separate Statement in Support of its Motion to Quash and for a Protective Order.1 27 1 CSU has prepared one separate statement for both of the subpoenas at issue, because the 28 requests within each subpoena are identical. 1 Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order 9785261.2 FR007-003 1 DEFINITIONS APPLICABLE TO ALL REQUESTS 2 1. "BOARD" shall refer to the Board of Trustees of California State University and 3 (i) all of its present and former agents, representatives, accountants, investigators, consultants, 4 employees, and attorneys; (ii) any other person or entity acting on its behalf or on whose behalf it 5 acted, or (iii) any other person or entity affiliated with it or subject to its management, oversight 6 or administration, (iv) any other person or entity subject to its control or which controls it, or with 7 which it is under common control. 8 2. "DEFENDANTS" shall refer to the Board of Trustees of California State 9 University and other entities and individuals, including, but not limited to, Joseph Castro; Saul 10 Jimenez-Sandoval; Lynnette Zelezny; Darryl Hamm; Xuanning Fu. 11 3. "FRESNO STATE" shall refer to California State University, Fresno and (i) all of 12 its present and former agents, representatives, accountants, investigators, consultants, employees, 5250 North Palm Ave, Suite 310 A Professional Law Corporation Liebert Cassidy Whitmore Fresno, California 93704 13 and attorneys; (ii) any other person or entity acting on its behalf or on whose behalf it acted, or 14 (iii) any other person or entity affiliated with it or subject to its management, oversight or 15 administration, (iv) any other person or entity subject to its control or which controls it, or with 16 which it is under common control. 17 4. "DOCUMENTS" include, but are not limited to, any writing as defined in 18 California Evidence Code section 250, including the originals, or copies when originals are not 19 available, of any writing filed for reporting or other purposes with any federal, state, or local 20 agency; notes; memoranda; letters; financial ledgers; intra-office or interoffice communications; 21 circulars; bulletins; manuals; results of investigations; progress reports; performance evaluations; 22 employment, transfer, or promotion applications; studies made by or for any business or personal 23 use; working papers; contracts; agreements; affidavits; declarations; statements; bills; books of 24 accounts; vouchers; evaluations; drawings; photographs; desk calendars; bank checks; pay stubs; 25 invoices; charge slips; receipts; expense accounts; statistical records; cost sheets; journals; diaries; 26 personal notes; time sheets or logs; computer data (whether in written, magnetic, electronic, 27 physical, or other form); computer disks; audio or video recordings; job or transaction files; 28 medical records; permits, licenses, or applications therefor; unemployment applications; 2 Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order 9785261.2 FR007-003 1 personnel evaluations; resumes; appointment books; books; records, copies, extracts, and 2 summaries of other documents; and preliminary, intermediate, and final drafts of any of the 3 above, whether used or not. With respect to electronic DOCUMENTS, produce them in native 4 format with all metadata included. 5 5. "COMMUNICATIONS" refers to every manner or means of disclosure, transfer, 6 exchange of information, whether orally or in writing, whether face-to-face, by telephone, mail, 7 fax, text, email or any other method. 8 6. "EVIDENCING," "RELATING TO," "REFLECTING," or "SUPPORTING" 9 means and includes mentioning, referring to, evidencing, including, memorializing, embodying, 10 containing, constituting, identifying, stating, commenting on, being relevant to, concerning, 11 refuting, proving, disproving, or negating. 12 DOCUMENT REQUESTS AT ISSUE 5250 North Palm Ave, Suite 310 A Professional Law Corporation Liebert Cassidy Whitmore Fresno, California 93704 13 REQUEST FOR PRODUCTION NO. 1: 14 All DOCUMENTS and COMMUNICATIONS, including text messages, instant 15 messages, emails, social media messages, and direct messages, in your possession RELATING 16 TO Dr. El Kharbawy. 17 WHY THIS REQUEST IS IMPROPER: 18 Several of Plaintiff’s former students participated in a workplace investigation conducted 19 by the law firm of Wilke Fleury into allegations he engaged in misconduct. Plaintiff is now 20 serving those students burdensome and oppressive records subpoenas. This Request is overly 21 broad, seeks information and documents that are neither relevant nor reasonably calculated to 22 lead to the discovery of admissible evidence in this matter, and seeks information that is private 23 (e.g., social media messages). A party seeking records from a non-party must make a showing of 24 good cause, just as if s/he were to compel production against a party. (Calcor Space Facility, Inc. 25 v. Superior Ct. (1997) 53 Cal.App.4th 216, 224 (“Calcor”).) There are no allegations in Plaintiff’s 26 lawsuit against his former students. 27 1. This Request Is Overbroad, Seek Irrelevant Information, And There Is No 28 Good Cause That Could Possibly Justify The Scope of This Request 3 Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order 9785261.2 FR007-003 1 This is a universally disfavored form of “shotgun” discovery - which is a phrase used to 2 describe discovery that is so overboard as to be oppressive. (City of Los Angeles v. Superior 3 Court (1973) 33 Cal.App.3d 778, 783 [denying discovery covering “a field of interrogation so 4 broad that they could require the production of information wholly alien to the subject matter of 5 this action”); Columbia Broad Sys. v. Superior Court (1968) 263 Cal.App.2d 12, 18 [“discovery, 6 like all matters of procedure, has ultimate and necessary boundaries”]; Romero v. Hern (1969) 7 276 Cal.App.2d 787, 794 [denying discovery “as broad as space” on the grounds it was 8 impermissibly overbroad and remote]; City of Los Angeles v. Superior Court (1961) 196 9 Cal.App.2d 743, 746-748 [denying discovery on grounds of breadth]; Calcor, 53 Cal.App.4th at 10 225 [fishing expeditions improper when they place "more burden upon the adversary than the 11 value of the information warrants”].) 12 Moreover, “[I]f the information sought to be elicited relates to matters of little or no 5250 North Palm Ave, Suite 310 A Professional Law Corporation Liebert Cassidy Whitmore Fresno, California 93704 13 practical benefit to the party seeking disclosure, a timely objection on the grounds that the 14 question asked is not relevant to the subject matter in the pending action and not reasonably 15 calculated to lead to admissible evidence should be sustained by a trial judge." (Covell v. 16 Superior Court (1984) 159 Cal. App. 3d 39, 42-43). 17 This request seeks any documents that could conceivably relate to Plaintiff in any possible 18 way, both before and after the students enrolled at Fresno State, and regardless of contextual or 19 temporal scope. This would, for instance, encompass academic transcripts, other student 20 academic records that even mention Plaintiff or any course he ever taught, communications 21 between a student’s employer about her school schedule, any correspondences ever sent to 22 Plaintiff (Plaintiff still has access to his CSU e-mail account), or any communications to any 23 other person – ever – that could “relate” to Plaintiff in any conceivable way (based on how 24 “RELATING TO” is defined). This is overbroad, irrelevant, and not likely to lead to the 25 discovery of admissible evidence. It was propounded to oppress students. 26 2. Plaintiff’s Subpoenas Are Incomprehensible 27 The categories of documents to be produced must be “reasonably” particularized from the 28 standpoint of the party on whom the demand is made. (Calcor, supra, 53 Cal.App.4th at 222; 4 Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order 9785261.2 FR007-003 1 Code Civ. Proc., § 2031.240(b)(1) [a party must “Identify with particularity any document, 2 tangible thing, land, or electronically stored information falling within any category of item in the 3 demand to which an objection is being made”].) A subpoena is also improper where the 4 descriptions, when combined with detailed “definitions” and “instructions” expand and 5 complicate the demand. (Calcor, supra, at 223 [detailed “definitions” and “instructions” turned 6 each of 32 document requests into a complicated “category” described in more than 6 pages; held 7 “particularly obnoxious” and “grossly excessive”].) 8 Here, Plaintiff’s subpoena contains a page and a half of definitions. For example: 9 The definition for “RELATING TO” is confusing, because this term includes 10 information that concerns, refutes, proves, disproves, or negates. An attorney 11 reading this would struggle to fathom what it means – to demand the same kind of 12 clairvoyance from Plaintiff’s former students is not realistic. For example, what 5250 North Palm Ave, Suite 310 A Professional Law Corporation Liebert Cassidy Whitmore Fresno, California 93704 13 document “refutes” a document “relating to Plaintiff”? 14 The definitions for “BOARD” and “FRESNO STATE” is so broad that it 15 encompasses (1) any of CSU’s professors or administrators, (2) any person 16 “affiliated” with CSU – which ostensibly include anyone who ever attended a CSU 17 campus, and (3) “any other person or entity subject to its control or which controls 18 it, or with which it is under common control” (whatever that means.) 19 Not only is Plaintiff’s request impermissibly overbroad even if one assumes he intended a 20 more inherent or natural definition of his capitalized terms, but if one actually substitutes the 21 definitions he used into his already overbroad requests, they are impossibly convoluted. 22 3. Plaintiff’s Subpoenas Invade Protected Privacy Rights 23 A party to an action may assert the privacy rights of third parties. (Weingarten v. Superior 24 Ct., (2002)102 Cal.App.4th 268, 278.) “In each case, the court must carefully balance the right 25 of privacy against the need for discovery. The showing required to overcome the protection 26 depends on the nature of the privacy right asserted; in some cases, a simple balancing test is 27 sufficient, while in others, a compelling interest must be shown.” (Cal. Prac. Guide: Civil 28 Procedure Before Trial (Rutter Group) at ¶ 8:293.) “[I]t has been adjudged that inquiry into one’s 5 Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order 9785261.2 FR007-003 1 private affairs will not be constitutionally justified simply because inadmissible, and irrelevant, 2 maters sought to be discovered might lead to other, and relevant, evidence.” (Denari v. Superior 3 Ct. (1989) 215 Cal.App.3d 1488, 1496, internal citation omitted.) “Mere speculation as to the 4 possibility that some portion of the records might be relevant to some substantive issue does not 5 suffice.” (Davis v. Superior Ct. (1992) 7 Cal.App.4th 1008, 1017.) 6 The privacy right enumerated in Article 1, Section 1, of the California Constitution 7 “is an important American heritage and essential to the fundamental rights guaranteed by 8 the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution. This right should 9 be abridged only when there is a compelling public need.” (City of Santa Barbara v. Adamson 10 (1980) 27 Cal.3d 123, 130.) Under California law, this right encompasses a right to “autonomy,” 11 which encompasses “interests in making intimate personal decisions or conducting personal 12 activities without observation, intrusion, or interference.” (Hill v. Nat'l Collegiate Athletic Assn. 5250 North Palm Ave, Suite 310 A Professional Law Corporation Liebert Cassidy Whitmore Fresno, California 93704 13 (1994) 7 Cal.4th 1, 35.) “Even when discovery of private information is found to be directly 14 relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then 15 be a careful balancing of the compelling public need for discovery against the fundamental right 16 of privacy.” (Davis v. Superior Ct. (1992) 7 Cal.App.4th 1008, 1014.) “[T]he scope of the 17 compelled disclosure must be narrowly circumscribed to avoid undue interference with private 18 associational rights.” (Britt v. Superior Ct. (1978) 20 Cal. 3d 844, 849.) 19 Students and parents also have protected privacy rights in their educational records, which 20 unquestionably fall within the scope of Plaintiff’s subpoenas. To this end, Congress enacted the 21 Family Educational Rights and Privacy Act (“FERPA”) to protect individual privacy rights 22 associated with student educational records by limiting the transferability of their records without 23 their consent. (BRV, Inc. v. Superior Ct. (200)6 143 Cal.App.4th 742, 751–752.) “California law 24 defines ‘pupil records’ as ‘any item of information directly related to an identifiable pupil […] 25 FERPA defines ‘education records’ in nearly identical terms.” (Ibid, citing 20 U.S.C. § 1232g, 26 subd. (a)(4)(A).) After a student has attained the age of 18, the rights accorded to the parents of 27 the student under FERPA transfer to the student. (20 U.S.C. § 1232g(d).) 28 Plaintiff’s former students have a protected right to privacy under Article 1, Section 1, of 6 Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order 9785261.2 FR007-003 1 the California Constitution and FERPA. These privacy right are triggered where, as here, 2 Plaintiff seeks any document or record that relates to him in any way, at any point in their lives 3 (including, for example, private e-mails or text messages, basic course materials, transcripts, texts 4 with family members about class, medical information conveyed to a physician, communications 5 with the subject’s attorney, or communications with the students’ employer about their class 6 schedules, protected marital communications - anything.) This constitutes a serious invasion of 7 students’ privacy rights, because no parent or student would ever expect to have their professor 8 demand every communication that could conceivably pertain to him in any possible way as part 9 of that professor’s defense to a university’s misconduct charge. “[T]he extent and gravity of 10 the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” (Am. 11 Acad. of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 438.) Moreover, mere speculation that 12 responsive information may be relevant is not sufficient. 5250 North Palm Ave, Suite 310 A Professional Law Corporation Liebert Cassidy Whitmore Fresno, California 93704 13 It would be very easy for Plaintiff to narrow his discovery to items that are directly 14 relevant to the subject matter of the instant action. 15 4. There Is No Protective Order In Place To Protect Students’ 16 Information, or Protect Students From Intimidation 17 As noted in the accompanying memorandum of points and authorities, an independent 18 attorney investigator concluded that Plaintiff purposely intimidated his students, and most of the 19 student witnesses to the investigation were female. Given the sustained allegations of 20 intimidation against Plaintiff, taken with the fact he is currently in the process of being fired while 21 simultaneously (and secretly) serving his former students with overbroad and harassing 22 subpoenas, it is not unreasonable for the Court to take basic steps to protect these students (and 23 faculty) to the extent they must participate in this legal proceeding. 24 5. This Request Could Encompass Protected Materials 25 This request is improper to the extent it seeks privileged communications (including but 26 not limited to spousal communications or attorney-client privileged communications.) 27 28 7 Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order 9785261.2 FR007-003 1 REQUEST FOR PRODUCTION NO. 2: 2 All DOCUMENTS and COMMUNICATIONS, including text messages, instant 3 messages, emails, social media messages, and direct messages, in your possession RELATING 4 TO any complaints you had and/or formally filed against Dr. El Kharbawy. 5 WHY THIS REQUEST IS IMPROPER: 6 Several of Plaintiff’s former students participated in a workplace investigation conducted 7 by the law firm of Wilke Fleury into allegations he engaged in misconduct. Plaintiff is now 8 serving those students burdensome and oppressive records subpoenas. This Request is overly 9 broad, seeks information and documents that are neither relevant nor reasonably calculated to 10 lead to the discovery of admissible evidence in this matter, and seeks information that is private 11 (e.g., social media messages). A party seeking records from a non-party must make a showing of 12 good cause, just as if s/he were to compel production against a party. (Calcor, supra, 53 5250 North Palm Ave, Suite 310 A Professional Law Corporation Liebert Cassidy Whitmore Fresno, California 93704 13 Cal.App.4th 216, 224.) There are no allegations in Plaintiff’s lawsuit against his former students. 14 1. This Request Is Overbroad, Speculative, And There Is No Good Cause That 15 Could Possibly Justify The Scope Of This Request 16 This subpoena was served on two of Plaintiff’s former students, who participated in a 17 workplace investigation into allegations that Plaintiff engaged in misconduct. This request is 18 improper to the extent it seeks information that falls outside the scope of what each student told 19 the attorney investigator from Wilke Fleury. “[T]he scope of the compelled disclosure must be 20 narrowly circumscribed to avoid undue interference with private associational rights.” (Britt v. 21 Superior Ct. (1978) 20 Cal. 3d 844, 849.) “Mere speculation as to the possibility that some 22 portion of the records might be relevant to some substantive issue does not suffice.” (Davis v. 23 Superior Ct. (1992) 7 Cal.App.4th 1008, 1017.) Any information outside of that limited context is 24 speculative, intrusive, and irrelevant. “[I]f the information sought to be elicited relates to matters 25 of little or no practical benefit to the party seeking disclosure, a timely objection on the grounds 26 that the question asked is not relevant to the subject matter in the pending action and not 27 reasonably calculated to lead to admissible evidence should be sustained by a trial judge." 28 (Covell v. Superior Court (1984) 159 Cal. App. 3d 39, 42-43). 8 Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order 9785261.2 FR007-003 1 2. This Request Could Encompass Protected Materials 2 This request is improper to the extent it seeks privileged communications (including but 3 not limited to spousal communications or attorney-client privileged communications). 4 3. Plaintiff’s Subpoenas Are Incomprehensible 5 The categories of documents to be produced must be “reasonably” particularized from the 6 standpoint of the party on whom the demand is made. (Calcor, supra, 53 Cal.App.4th at 222; 7 Code Civ. Proc., § 2031.240(b)(1) [a party must “Identify with particularity any document, 8 tangible thing, land, or electronically stored information falling within any category of item in the 9 demand to which an objection is being made”].) A subpoena is also improper where the 10 descriptions, when combined with detailed “definitions” and “instructions” expand and 11 complicate the demand. (Calcor, supra, at 223. [detailed “definitions” and “instructions” turned 12 each of 32 document requests into a complicated “category” described in more than 6 pages; held 5250 North Palm Ave, Suite 310 A Professional Law Corporation Liebert Cassidy Whitmore Fresno, California 93704 13 “particularly obnoxious” and “grossly excessive”].) 14 Here, Plaintiff’s subpoena contains a page and a half of definitions. For example: 15 The definition for “RELATING TO” is confusing, because this term includes 16 information that concerns, refutes, proves, disproves, or negates. An attorney 17 reading this would struggle to fathom what it means – to demand the same kind of 18 clairvoyance from Plaintiff’s former students is not realistic. For example, what 19 document “refutes” a complaint about Plaintiff? 20 The definitions for “BOARD” and “FRESNO STATE” is so broad that it 21 encompasses (1) any of CSU’s professors or administrators, (2) any person 22 “affiliated” with CSU – which ostensibly include anyone who ever attended a CSU 23 campus, and (3) “any other person or entity subject to its control or which controls 24 it, or with which it is under common control” (whatever that means.) 25 Not only are Plaintiff’s request impermissibly overbroad even if we assume he intended a 26 more inherent or natural definition of his capitalized terms, but if you actually substitute the 27 definitions he used into his already overbroad requests, they are impossibly convoluted. 28 4. There Is No Protective Order In Place To Protect Students’ 9 Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order 9785261.2 FR007-003 1 Information, or Protect Students From Intimidation 2 As noted in the accompanying memorandum of points and authorities, an independent 3 attorney investigator concluded that Plaintiff purposely intimidated his students, and most of the 4 student witnesses to the investigation were female. Given the sustained allegations of 5 intimidation against Plaintiff, taken with the fact he is currently in the process of being fired while 6 simultaneously (and secretly) serving his former students with overbroad and harassing 7 subpoenas, it is not unreasonable for the Court to take basic steps to protect these students (and 8 faculty) to the extent they must participate in this legal proceeding. 9 REQUEST FOR PRODUCTION NO. 3: 10 All DOCUMENTS and COMMUNICATIONS, including text messages, instant 11 messages, emails, social media messages, and direct messages, RELATING TO Dr. El Kharbawy 12 between you and California State University or anyone employed by, representing, or acting on 5250 North Palm Ave, Suite 310 A Professional Law Corporation Liebert Cassidy Whitmore Fresno, California 93704 13 behalf of California State University (at any time). 14 WHY THIS REQUEST IS IMPROPER 15 Several of Plaintiff’s former students participated in a workplace investigation by that was 16 conducted by the law firm of Wilke Fleury into allegations he engaged in misconduct. Plaintiff is 17 now serving those students burdensome and oppressive records subpoenas. This Request is 18 overly broad, seeks information and documents that are neither relevant nor reasonably calculated 19 to lead to the discovery of admissible evidence in this matter, and seeks information that is private 20 (e.g., social media messages). A party seeking records from a non-party must make a showing of 21 good cause, just as if s/he were to compel production against a party. (Calcor, 53 Cal.App.4th 22 216, 224.) There are no allegations in Plaintiff’s lawsuit against his former students. 23 1. This Request Is Overbroad. Seeks Irrelevant Information, And There Is No 24 Good Cause That Could Possibly Justify The Scope Of This Request 25 This is a universally disfavored form of “shotgun” discovery - which is a phrase used to 26 describe discovery that is so overboard as to be oppressive. (City of Los Angeles v. Superior 27 Court (1973) 33 Cal.App.3d 778, 783 [denying discovery covering “a field of interrogation so 28 broad that they could require the production of information wholly alien to the subject matter of 10 Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order 9785261.2 FR007-003 1 this action”); Columbia Broad Sys. v. Superior Court (1968) 263 Cal.App.2d 12, 18 [“discovery, 2 like all matters of procedure, has ultimate and necessary boundaries”]; Romero v. Hern (1969) 3 276 Cal.App.2d 787, 794 [denying discovery “as broad as space” on the grounds it was 4 impermissibly overbroad and remote]; City of Los Angeles v. Superior Court (1961) 196 5 Cal.App.2d 743, 746-748 [denying discovery on grounds of breadth]; Calcor, 53 Cal.App.4th 6 216, 225 [fishing expeditions improper when they place "more burden upon the adversary than 7 the value of the information warrants”].) 8 Moreover, “[I]f the information sought to be elicited relates to matters of little or no 9 practical benefit to the party seeking disclosure, a timely objection on the grounds that the 10 question asked is not relevant to the subject matter in the pending action and not reasonably 11 calculated to lead to admissible evidence should be sustained by a trial judge." (Covell v. 12 Superior Court (1984) 159 Cal. App. 3d 39, 42-43). 5250 North Palm Ave, Suite 310 A Professional Law Corporation Liebert Cassidy Whitmore Fresno, California 93704 13 This request was propounded to students who participated into a workplace investigation 14 into allegations that Plaintiff engaged in misconduct. This request is overbroad because it 15 encompasses any conceivable record that could pertain to Plaintiff, including academic files that 16 most certainly have absolutely nothing to do with this case. Moreover, this request is not 17 reasonably particularized to documents or communications bearing any relevance to Plaintiff’s 18 misconduct charge – it essentially amounts to access to students’ academic files. This request is 19 improper to the extent it seeks information that is not directly relevant to anything the students 20 may have told the attorney investigator from Wilke Fleury. 21 2. Plaintiff’s Subpoenas Are Incomprehensible 22 The categories of documents to be produced must be “reasonably” particularized from the 23 standpoint of the party on whom the demand is made. (Calcor, supra, 53 Cal.App.4th at 222; 24 Code Civ. Proc., § 2031.240(b)(1) [a party must “Identify with particularity any document, 25 tangible thing, land, or electronically stored information falling within any category of item in the 26 demand to which an objection is being made”].) A subpoena is also improper where the 27 descriptions, when combined with detailed “definitions” and “instructions” expand and 28 complicate the demand. (Calcor, supra, at 223 [detailed “definitions” and “instructions” turned 11 Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order 9785261.2 FR007-003 1 each of 32 document requests into a complicated “category” described in more than 6 pages; held 2 “particularly obnoxious” and “grossly excessive”].) 3 Here, Plaintiff’s subpoena contains a page and a half of definitions. For example: 4 The definition for “RELATING TO” is confusing, because this term includes 5 information that concerns, refutes, proves, disproves, or negates. An attorney 6 reading this would struggle to fathom what it means – to demand the same kind of 7 clairvoyance from Plaintiff’s former students is not realistic. For example, what 8 document “refutes” a document “relating to Plaintiff”? 9 The definitions for “BOARD” and “FRESNO STATE” is so broad that it 10 encompasses (1) any of CSU’s professors or administrators, (2) any person 11 “affiliated” with CSU – which ostensibly include anyone who ever attended a CSU 12 campus, and (3) “any other person or entity subject to its control or which controls 5250 North Palm Ave, Suite 310 A Professional Law Corporation Liebert Cassidy Whitmore Fresno, California 93704 13 it, or with which it is under common control” (whatever that means.) 14 Not only are Plaintiff’s request impermissibly overbroad even if we assume he intended a 15 more inherent or natural definition of his capitalized terms, but if you actually substitute the 16 definitions he used into his already overbroad requests, they are impossibly convoluted. 17 3. Plaintiff’s Subpoenas Invade Protected Privacy Rights 18 A party to an action may assert the privacy rights of third parties. (Weingarten v. Superior 19 Ct., (2002)102 Cal.App.4th 268, 278.) “In each case, the court must carefully balance the right 20 of privacy against the need for discovery. The showing required to overcome the protection 21 depends on the nature of the privacy right asserted; in some cases, a simple balancing test is 22 sufficient, while in others, a compelling interest must be shown.” (Cal. Prac. Guide: Civil 23 Procedure Before Trial (Rutter Group) at ¶ 8:293.) “[I]t has been adjudged that inquiry into one’s 24 private affairs will not be constitutionally justified simply because inadmissible, and irrelevant, 25 maters sought to be discovered might lead to other, and relevant, evidence.” (Denari v. Superior 26 Ct. (1989) 215 Cal.App.3d 1488, 1496, internal citation omitted.) “Mere speculation as to the 27 possibility that some portion of the records might be relevant to some substantive issue does not 28 suffice.” (Davis v. Superior Ct. (1992) 7 Cal.App.4th 1008, 1017.) 12 Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order 9785261.2 FR007-003 1 The privacy right enumerated in Article 1, Section 1, of the California Constitution 2 “is an important American heritage and essential to the fundamental rights guaranteed by 3 the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution. This right should 4 be abridged only when there is a compelling public need.” (City of Santa Barbara v. Adamson 5 (1980) 27 Cal.3d 123, 130). Under California law, this right encompasses a right to “autonomy,” 6 which encompasses “interests in making intimate personal decisions or conducting personal 7 activities without observation, intrusion, or interference.” (Hill v. Nat'l Collegiate Athletic Assn. 8 (1994) 7 Cal.4th 1, 35.) “Even when discovery of private information is found to be directly 9 relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then 10 be a careful balancing of the compelling public need for discovery against the fundamental right 11 of privacy.” (Davis v. Superior Ct. (1992) 7 Cal.App.4th 1008, 1014.) “[T]he scope of the 12 compelled disclosure must be narrowly circumscribed to avoid undue interference with private 5250 North Palm Ave, Suite 310 A Professional Law Corporation Liebert Cassidy Whitmore Fresno, California 93704 13 associational rights.” (Britt v. Superior Ct. (1978) 20 Cal. 3d 844, 849.) 14 Students and parents also have protected privacy rights in their educational records, which 15 unquestionably falls within the scope of Plaintiff’s subpoenas. To this end, Congress enacted the 16 Family Educational Rights and Privacy Act (“FERPA”) to protect individual privacy rights 17 associated with student educational records by limiting the transferability of their records without 18 their consent. (BRV, Inc. v. Superior Ct. (200)6 143 Cal.App.4th 742, 751–752.) “California law 19 defines ‘pupil records’ as ‘any item of information directly related to an identifiable pupil […] 20 FERPA defines ‘education records’ in nearly identical terms.” (Ibid, citing 20 U.S.C. § 1232g, 21 subd. (a)(4)(A).) After a student has attained the age of 18, the rights accorded to the parents of 22 the student under FERPA transfer to the student. (20 U.S.C. § 1232g(d).) 23 Plaintiff’s former students have a protected right to privacy under Article 1, Section 1, of 24 the California Constitution and FERPA. These privacy right are triggered where, as here, Plaintiff 25 seeks any document or record that relates to him in any way, and that was exchanged with CSU, 26 at any point in students’ lives (including, for example, e-mails or text messages, basic course 27 materials, transcripts, etc.) This constitutes a serious invasion of students’ privacy rights, because 28 no parent or student would ever expect to have their professor demand every document that could 13 Separate Statement in Support of Defendant’s Motion to Quash and for a Protective Order 9785261.2 FR007-003 1 pertain to him in some way to defend against a misconduct charge. “[T]he extent and gravity of 2 the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” (Am. 3 Acad. of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 438.) Moreover, mere speculation is not 4 sufficient. 5 4. There Is No Protective Order In Place To Protect Students’ 6 Information, or Protect Students From Intimidation 7 As noted in the accompanying memorandum of points and authorities, an independent 8 attorney investigator concluded