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FREDRIC D. WOOCHER (SBN 96689)
STRUMWASSER & WOOCHER LLP
10940 Wilshire Boulevard, Suite 2000
SUBg‘i‘lg/giigfifiggglié’afim“
FEB 9-2009
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Los Angeles‘ California 90024 [J
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Telephone: (310) 576-1233 GARY M.BLA1F1.Execut NDX__
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Facsimile: (310) 319-0156 BY (5 ~I—5
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PHILIP A. SEYMOUR
4894 Ogram Road
(SBN 1 16606)
Santa Barbara, California 93105
NARZRALLI KSH. Dapu [ark
CA
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Telephone: (805) 692-9335
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Facsimile: (805)964-1907
Attorneys for Defendant Doreen Fan-
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ST
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA
STEVEN PAPPAS, Case No. 1304851
Contestant,
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANT DOREEN FARR'S MOTION
v. TO QUASH SUBPOENA AND OBJECTION
OF JOHN DOE AND JANE DOE TO
RELEASE OF PERSONAL RECORDS
DOREEN FARR, (Cal. Code Civ. Proc. §§ 1987.1 & 2025.410)
Defendant. Dale: J" l 1,0?
Time: 1: L0 PT“
Dept.: 5
Contest Filed: December 31, 2008
ASSIGNED TO THE HONORABLE
WILLIAM MCLAFFERTY
PRINTED 0N RECYCLED PAPER
MEMO 0F POINTS AND AUTIIORmFs IN SUPPORT 0|: DOREEN FARR‘s MOTION To QUASH
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... ............ ‘. ii
INTRODUCTION ............................................................ 1
STATEMENT OF FACTS ..................................................... I
oboxlc‘v-sn—
I. PAPPAS‘ SUBPOENA DOES NOT COMPLY WITH CODE OF CIVIL
PROCEDURE SECTION 1985.3 AND Is FATALLY DEFECTIVE .............. 5
II. THE INFORMATION SUBPOENAED IS OVERLY BROAD, NEEDLESSLY
INVASIVE OF THE PRIVACY RIGHTS OF NON-PARTIES, AND NOT
REASONABLY CALCULATED T0 LEAD TO THE DISCOVERY OF
ADMISSIBLE EVIDENCE IN SUPPORT OF PAPPAS’ ELECTION CONTEST . . . . 8
III. THE COURT MUST ORDER A HALT TO THE UNAUTHORIZED DISCLOSURE
OF INFORMATION ON OBJECTING STUDENTS AND REQUIRE PAPPAS TO
RETURN AND NOT MAKE USE OF ANY INFORMATION ALREADY
RECEIVED ........................................................... I4
CONCLUSION ............................................................. 16
mZSGEGE—S
i
MEMO 0I~' POINTS AND AUTHORITIES IN SUPPORT Ol’ DOREEN FARR'S MOTION TO QUASII
TABLE OF AUTHORITIES
Federal Cases
In re Reyes (51h Cir. 1987) 814 F.2d 168 ......................................... 11
United States Department of State v. Washington Post (1982) 456 US. 595 ............. l 1
ooouc‘v-Jtuw—
Zeng Liu v. Donna kurun International, Inc. (S.D.N.Y. 2002) 207 F.Supp.2d l9l
1
........ 11
State Cases
..... .................
I
Anderson v. County of Santa Barbara (1976) 56 Cal.App.3(l 780 15
Calcor Space Facility, Inc., v. ................ 9
Superior Court (1997) 53 Cal.App.4th 216
Craig v. Municipal Court (1979) 100 Cal.App.3d 69 ............................... 8, 9
.— O Hill v. National Collegiate Athletic Assn. (1994) 7 Ca1.4th l ......................... 10
.. —'
Mogltadam‘v. Regents oft/1e Universiol of California (2008) 169 Cal.App.4th 466 ......... 7
Morales v. Superior Court (1979) 99 Ca1.App.3d 283 ................... ............
‘
.— N 11
_. L» Ombudsman Services ofNorthern Caltfornia v. Superior Court
(2007) 154 Cal.App.4th 1233 ............................................ 12
_.
A
Pioneer Electronics (USA) Inc. v. Superior Court (2007) 40 Cal.4th 360 ................ 10
U!
Puerto v. Superior Court (2008) 158 Ca1.App.4th 1242 ....................... 10, ll, 14
,—
.— 0
7:vlo v. Superior Court (1997) 55 Cal.App.4th 1379 ................................. 8
—- \l
Federal Statutes
_- 00
20 U.S.C. § 1232g ............................................................ 3
.— O
State Statutes
NO
Cal. Code Civ. Proc.,
21
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DOREEN FARR‘S MOTlON T0 QUASH
0
§437c ............................................................ 1, 5, 6
§1985.3 .......................................................... 2,3,4
151985.3, subd. (20(1) ............................ ....................... 5
‘.
§1985.3,subd.(b)(3) ................... 7
\DOOVG‘Mwu—l
§l985.3,subd.(k) ..................... 6
{51987.1 .............................................................. 1
§ 2017, subd. (:1) ....................................................... 9
§ 2020.410, subd. (c) ....................... ............................ 15
'
§ 2020.510, subd. (0) ..... ............................................... 6
'
§ 2025.210, subd. (b) ............................................ ...... 15 ;
152025.410 ............. 1
Educ. Code, § 72644 ......................... ‘; .............................. S, 6
Elec.Code,
N—-———"-"-"-‘-“-‘-'
§l6500 .............................................................
V
15
OOOONC‘MJhY-dN-‘O
§16600 ..... ........................................................ 15
flaw-#9330.—
MNNNNNN
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iii
MEMO or POINTS AND AUTHORITIES IN SUPPORT or: DOREEN qz's MOTION To QUASH
INTRODUCTION
.
'
Defendant Santa Barbara County Supervisor Doreen Farr and UCSB students John Doe and
Jane Doe seek an order from this Court quashing the subpoena issued by Contestant Steven Pappas
to Michael Young, Vice Chancellor of Student Affairs at the University of California at Santa
Barbara (UCSB), which seeks the production of the names, residence addresses, dates of birth, and
\DOONC‘U‘It—n
citizenship of every student. both undergraduate and graduate, who enrolled at UCSB in 2008 —
more than twenty Ibousand in number. The subpoena must be quashed for at least two reasons:
First, procedurally. the subpoena fails to comply with the Consumer Records Act, Code of Civil
Procedure § 1985.3 et seq., because it was not served on any of the students (i.e., the consumers)
whose personal records are being sought. and they were not personally served with the statutorily
mandated notice that their personal records were being subpoenaed and of their rights to obj ect to
the production of their records and to consult with an attomey about their interest in protecting their
rights of privacy. Second, substantively, the subpoena is outrageously overbroad, is not reasonably
calculated to lead to the discovery of admissible evidence, and is impennissibly and unnecessarily
_..—._.._._.._...._....
ooxicxurasw-c
invasive of the privacy rights of (liousands of non-parties, seeking personal and sensitive
information that can have absolutely no bearing on the election contest at issue. Further-more,
Defendant Farr has discovered that Contestant Pappas has. arranged for UCSB to disclose
information in response to the subpoena — specifically, the identities of those very students who
have voiced their objection to the release of any of their personal information — in violation of all
established statutory procedures for pro-trial discovery or trial subpoenas. The Court must therefore
issue an order quashing the subpoena and directing Contestant Pappas to return to UCSB all
information received to date in response to the unlawful subpoena.
STATEMENT OF FACTS
On or about January I3. 2009, Contestant Steven Pappas issued a Civil Subpoena (Duccs
Tecum) for Personal Appearance and Production of Documents and Things at Trial or Hearing to
Michael Young, Vice Chancellor of Student Affairs at UCSB. A copy of the subpoena is attached
as Exhibit l tO the Declaration of Fredric Woocher (Woocher Decl.). The subpoena requests, inter
alia, the production of “[e]lectro_nic copies of reports and/or summaries containing the following
.
I
MEMO or POINTS AND AUTHORITIES m SUPPORT or narrow FARR'S MOTION To QUASII
information: the names, resident addresses, dates of birth and citizenship of all students,
undergraduate and graduate, enrolled at the University of California Santa Barbara (‘UCSB’) in
2008." (Woocher Decl., Exh. l, p. 3.) According to the University‘s website, there are currently
over 20,000 students enrolled at UCSB. In his required declaration setting forth the supposed
materiality of the subpoenaed records to the issues in this election contest, Pappas’s counsel stated
WWNO‘MbUNu—
that “the documents identify those persons enrolled at [UCSB] in 2008 by name, residence address,
date of birth, and citizenship as provided by those persons to UCSB officials. This information
when compared to the information maintained by the Santa Barbara Registrar of Voters will
establish the validity ol'the information provided to the Registrar in regards to who registered, the
registration processes utilized and registration information provided by said registrants when
registering to vote in the 2008 election which is the subject of this action." (Woocher Decl., Exh.
l, p. 2.) In other words, Contestant Pappas wants to use these 20,000-plus students’ records to go
on a classic “fishing expedition." cross-referencing the private, personal information that these
students at one point provided to the University (presumably through compulsion) against the
information that some of them, at some otherpoinl in time, may have provided to the Registrar of
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OOOOQGUIAMN—O
Voters on their affidavits of registration, in the mere hope that perhaps he will find some
inconsistency that might provide him with a basis for doubting whether some tinyfraction of these
students accurately or truthfully completed their registration forms, each of which was sworn to
under penalty of perjury.
Moreover, there is far from a useful “match” between the enrolled students at UCSB in 2008
and those persons who registered and exercised their right to vote in the November 2008 Third
22 District Supervisorial election. UCSB students — especially the thousands of graduate students like
23 Objeclor John Doe —-— can and do live in many Santa Barbara precincts other than the 18 UCSB and
24 lsla Vista precincts that Pappas has made the sole focus of this election contest. Indeed, many
25 students may maintain their permanent legal residences in their home towns, far from Santa Barbara,
26 and cast absentee ballots in the November 2008 Presidential election from those addresses.
27 Thousands of other UCSB students may never have registered to vote at all, or if they did register,
28 may not have cast ballots in the 2008 election for one reason or another. Conversely, there are
7
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DOREEN FARR‘S MOTION TO QUASH
hundreds if not thousands of persons who registered and voted in the IS contested precincts who
were not UCSB students in 2008, so the University’s records will likewise yield no useful
information whatsoever regarding the eligibility of these voters.
Pappas’ subpoena to Vice Chancellor Young ordered him to appear with the requested
coexttau-sn...
student records at the trial of this election contest, on January 30, 2009, or to submit the records to
the court in a sealed envelope together with a completed declaration of custodian of records if he
did not appear in person. (At the time the subpoena was served on Vice Chancellor Young, of
course, the trial had been scheduled to commence on January 27, 2009, and it was only later
continued to February 17.2009.) Presumably because it was a trial subpoena, Contestant Pappas
never served a copy of the subpoena on Defendant Farr. Instead, Defendant Farr’s counsel only
learned about the existence of the subpoena by reading a newspaper article that made reference to
it on January 23. 2009. (Woocher Decl., 1] 3.) Perhaps more significantly, none of the students
whose personal records and private information were being sought by Pappas‘ subpoena were served
with a copy of it, either.
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At some point between January 13 and January 28, counsel for Pappas and counsel for UCSB
—OO°°\IC\MJ>r—C
apparently reached an agreement between themselves regarding how the University was going to
respond to the subpoena. Pursuant to that agreement, and in accordance with UCSB’s obligations
under the Federal Educational Rights and Privacy Act (FERPA, 20 U.S.C. § 1232g), Vice
Chancellor Young on January 28 sent an email to UCSB students notifying the recipients that the
University had received a subpoena in connection with the instant lawsuit'requiring it to produce
the personal data specified in the subpoena (i.e., the names, addresses, dates of birth and citizenship
of all students enrolled in UCSB in 2008), and informing the students that the University intended
to forward their personal records to the requesting party unless the student served a written objection
on the University and the subpoenaing party's attorney within ten days from the date of the letter,
or no later than February 9, 2009. Vice Chancellor Young’s email also included a link to an
electronic form that a student could fill out in order to make such an objection; requiring the student
to provide his or her name, student identification number, and the reason for objecting to the release
of his or her personal information. Remarkably. the University told the students that a copy of the
3
MEMO OF POINTS AND AUTHORITIES IN SUPPORT Ol‘ DOREEN FARR'S MOTlON 1O QUASH
form, including their name :and the reason for objection, would be provided to the subpoenaing
party’s counsel. (See Woocher Decl., Exh. 4.) Thus. in a classic Catch-22, in order to prevent the
release of their name, address, date of birth, and citizenship information to Pappas’ counsel by the
University, UCSB students were required to provide Pappas’ counsel with some of the very
information that they did not want to have released.
\DooxloknvbbJN—
Although it is not known how many of the UCSB students who were enrolled in 2008 still
maintained the email addresses to which Vice ChaneellorYoung’s email was sent, or how often any
of them ever checked that email address given that most students had long-previously established
and used their own personal, non-University email addresses, almost immediately upon Vice
.— O Chancellor Young’s email letterbeing sent out, representatives of Supervisor Farr began receiving
—- '—‘
complaints from students objecting to the unwarranted release of their private. personal information
'
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N to Contestant Pappas and his counsel. Two of these students, who wish to remain anonymous for
.—
b) fear of retribution and unwanted attention — and are therefore referred to herein as John Doe and
._ ub Jane Doe ,— contacted Defendant Farr's counsel and asked to be represented in objecting to the
._
LII
subpoena and to the University's insistence upon releasing the names of the student objectors to
.—
O\ Pappas’ counsel. These students had done absolutelynothing that would justifythe invasion of their
—- \l privacy rights that would result from compliance with Contestant Pappas’ subpoena; indeed; John
-—
00 Doe does not even live in the Third Stipen’isarial District, and the validity of his two-year-old
—-
\9 registration and vote in the November 2008 election could not possibly be at issue. (See Woocher
NO Decl., 1| 4.)
N *— On January 30, 2009, Counsel for befendant Farr contacted Jeffrey Lake, counsel for
NN Contestant Pappas. and requested that he voluntarily withdraw the subpoena. (See Woocher Decl.,
NW Exh. 2.) Mr. Lake refused to do so, and subsequent attempts to resolve the parties‘ dispute over the
NA legality of Pappas' subpoena have been unsuccessful. (Woocher Deel.. 1] 6.) In fact, Defendant
N U1 Farr’s counsel has recently learned .that. rather than waiting at least until February 9, as Vice
NG Chancellor Young’s email implied would be the case, or to the February 17, 2009, commencement
N \l ofthe trial in this case, as the trial subpoena served on UCSB would require, the University has
N 00 already been providing counsel for Contestant Pappas — and only counsel for Contestant Pappas
4 .
MEMO or POINTS AND AUTIIORJ‘HES IN SUPPORT or DOREEN FARR'S Morton T0 QUASH
— with the names of those students who have objected to the release of their personal information
and the reasons for their objections. (Woocher Decl., 1] 7 & Exh. 3.) Defendant Farr therefore
brings the instant motion to quash in order to protect the privacy interests of thousands of UCSB
students who have nothing to do with this election contest and to compel Contestant Pappas‘
OOOVO‘Mh-WN...
compliance with the requirements of the Code of Civil Procedure.
I. PAPPAS’ SUBPOENA DOES NOT COMPLY WITH CODE OF CIVIL
PROCEDURE SECTION 1985.3 AND IS FATALLY DEFECTIVE
The subpoena issued by Contestant Pappas to UCSB Vice Chancellor Young’is facially
defective because it fails to comply with Code of Civil Procedure section l985.3, a provision that
is intended to effectuate important privacy rights and to provide protection for Califomia‘s
consumers against the unwarranted and uninformed disclosure of their personal records.
’Section 1985.3 protects the “personal records" of a “consumer" from disclosure through subpoena
without prior disclosure to the consumer that his or her personal information has been subpoenaed
and of the his or her right to object to its inappropriate disclosure. Pappas’ utter failure to abide by
Section 1985.3‘5 procedural provisions renders his January 13, 2009, subpoena to UCSB for these
OOmNO‘M-fiwN—O
of students' records fatally defective.
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thousands
Under the statutory scheme, “personal records" are “the original. any copy of books,
documents, other writings. or electronic data pertaining to a consumer-and which are maintained by
any ‘witness’ . . . (Code Civ. Proc., § 1985.3. subd. (a)(1).) A “witness" includes “a private or
public preschool, elementary school, secondary school, or postsecondary school as described in
Section 76244 of the Education Code."1 (lbid.) A “consumer" is “any individual . . . who has
lo ~—
NN
lEducation Code section 76244 does not “describe" or otherwise identify any type of
“private or public preschool, elementary school, secondary school, or postsccondary school."
N b)
Rather, the cited section, located within the title of the Education Code (title 3) dealing with
I») J1 “postsecondary education," merelystates that “[i]nformation concerning a student shall be furnished
in compliance with a court order or a lawfully issued subpoena,” and directs that “[t]he community
MM
college district shall make a reasonable effort to notify the student in advance of compliance with
N ex a lawfully issued subpoena and, in the case of compliance with a court order, if lawfully possible
within the requirements of the order.” (Educ. Code, § 76244.) Contestant Pappas contends that
N \I Code of Civil Procedure section [985.3 ‘5 citation to Education Code section 76244, and the latter
section’s reference to “community college district,“ means that the Consumer Records Act applies
N 00 only to subpoenas requesting the personal records of students attending preschools, elementary
5
MEMO 0F POINTS AND AUTHORITIES m SUPPORT OF DOREEN FARR‘S Mon0N T0 QUASII
transacted business with, or has used the services of, the witness or for whom the witness has acted
as agent or fiduciary." (Id. at subd. (a)(2).) The statute requires that a party who has issued a
subpoena must “serve or cause to be served on the consumer whose records are being sought a copy
of the subpoena duces tecum" (id. at subd. (b)) and a notice containing the following information:
Owflamhuww “(1) records about the consumer are being sought from the witness named on the
if
subpoena;’(2) the consumer objects to the witness furnishing the records to the
party seeking the records. the consumer must file papers with the court or serve a
wntten objection as provided in subdivision (g) prior to the date specified for
if
production on the subpoena; and (3) the party who is seeking the records will not
agree in wntmg to cancel or limit the subpoena, an attorney should be consulted
about the consumer‘s interest -in protecting his or her rights of privacy." (Id. at
subd. (e).)
The subpoenaing party must also serve the witness with proof of service of the required notice and
_ O
documents on the consumer whose records are being requested. (Id. at subd. (e).) The Civil
.—.
—
Discovery Act incorporates these same requirements, mandating that a subpoena for personal
.— N
records be accompanied by a proof of service of the required notice. (Cal. Code Civ. Proc.,
.— W
§ 2020.510. subd. (e).) “Failure to comply with [section I 985.3] shall be sufficient basis for the
—- ‘5
witness to refuse to produce the personal records sought by a subpoena duces tecum." (Cal. Code
u—
VI
Civ. Proc., § 1985.3, subd. (k).)
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6‘
._. \l
——
00
schools, secondary schools. and community colleges. but not to any other public or private colleges
oruniversities. Given the expansive languageofsection l985.3,however, and the obvious intention
.. O
of the Legislature to apply the protections of the Consumer Records Act as broadly as possible.
Pappas’ suggested construction of the statute is not persuasive. Indeed, under his interpretation, the'
N0
very section of the Education Code cross-referenced in Code of Civil Procedure section 1985.3
N~ would be superfl uous, because the Consumer Records Act explicit! y requires thesubpoenaingpany
to notify a student of the pending request for production of his or her records, making it completely
NN
unnecessary forthecomnumiw college district to attempt to do so, as Education Code section 72644
Nu
would require. Nor can Pappas provide any plausible explanation for why the Legislature would
conceivably want to limit Code of Civil Procedure section l985.3’s consumer protections only to
I4 & community college students and not to students at other postsecondary schools or institutions.
Contrary to Pappas’ limiting construction. section 1985.3‘s reference to Education Code
N VI section 72644 thus appears merely to reflect the Legislature‘s recognition of the need to harmonize
the conflicting notification requirements of the two provisions, not to limit the scope of section
N9
1985.3. Evidently. the University of California, Santa Barbara itself is of the same view that
N \l section 1985.3 applies to subpoenas requesting the records of UCSB students, because Vice
Chancellor Young’s letter explicitly referenced section 1985.3 in an effort to advise students of their
N 00 rights under California law with regard to Pappas’ subpoena.
6
MEMO or Pourrs ANb AUTHORITIES IN Surromjor Dormer: FARR'S MOTION m QUASM
There is no doubt that Pappas has not complied with the requirements of section 1985.3. The
subpoena attached as Exhibit 1 to the Wooeher Declaration contains no proof of service on the more
than 20,000 students whose personal information is being requested, and counsel for Pappas does
not dispute that he never served any of these students with the required notice informing them that
Pappas was seeking such information, that they had a right to object to its disclosure, and that they
should consult an attorney if they were eoncemed about protecting their privacy rights. Although
Pappas contends that the email sent out by Vice Chancellor Young provided the UCSB students
with the notice required by section 1985.3, that argument fails in at least two fundamental respects:
First, section 1985.3 requires that the subpoenaing party, not the witness, provide the statutory
notice, and that such notice must be provided a! leastfive days prior to service of the subpoena on
the custodian of records — not fifteen days after the subpoena was served and ten days prior to the
threatened release of the consumer’s personal records. (See Code Civ. Proc., § 1985.3,
subd. (b)(3).) Second, section 1985.3 requires that-the students be personally served or served by
mail with the required notice — not, as occurred here, by a mass entail that likely is never read or
even known about by the majority of students to whom it was allegedly sent. (Ibid.)
Finally, the student data sought-by Pappas‘ subpoena plainly qualify as “personal records"
within the ambit of section 1985.3’5 protections. Pappas seeks the disclosure of every UCSB
student’s name, residential address, birth date, and citizenship status — critical and sensitive
personal information that could easily be used to steal a student’s identity if lost or misplaced, or
to target and harass those students who are non-citizens. The court in Moglradam v. Regents ofthe
University of California (2008) 169 Cal.App.4th 466, in construing the California Information
Practices Act of 1977. explained that although a student‘s exam that contained only the student’s
name and no other identifying information would not be considered a protected record. a record
containing a student's name and other identifying infon-nation, such as a social security number or
an address, would be considered protected information. (Id. at pp. 483-484.) The student records
requested here plainly connect a student‘s identityto an address, a birth date, and a citizenship status
—- private information that is protected from disclosure without the required statutory notice under
section 1985.3. Because Pappas has not followed the notice procedures that are central to section
7
MEMO or Forum AND Aurttorzrrrus m Surronr or DOREEN FARR'S MonoN TO Qunsrr
1985.3‘s protective regime, the subpoena is fatally defective and must be quashed.
II. THE INFORMATION SUBPOENAED IS OVERLY BROAD, NEEDLESSLY
INVASIVE OF THE PRIVACY RIGHTS OF NON-PARTIES, AND NOT
REASONABLY CALCULATED T0 LEAD TO THE DISCOVERY OF
ADMISSIBLE EVIDENCE IN SUPPORT OF PAPPAS’ ELECTION
CONTEST
OOONQUIAWN—
Even if Pappas’ subpoena complied with the requirements of sections 1985.3 and 2020.510.
the Court must enter an order quashing the subpoena on the. basis of its stunning over-breadth, its
needless violation of the privacy rights of literally thousands of non-parties, and the remote
possibility that the requested information will provide any meaningful evidence in support of
Pappas' already dubious claims in this election contest. It must be emphasized that Pappas seeks
the production of the names. addresses, dates of birth, and citizenship status of every undergraduate
and graduate student enrolled at UCSB in 2008 — well over 20,000 students in all — regardless
ofwhether a given student is a registered voter or voted in the contested November 2008 election,
or whether they even live in the Third Supervisorial District at all! indeed, since there were only
—-.—-.—-_.-—-—np—a.—-—a
a total of 10,797 votes cast in the precincts contested by Pappas in this case, we know for a fact that
WxtChUrsNv—O
at least half of the private student records he is seeking — more than 10.000 in number — cannot
possibly provide him with any useful information for this election contest.
This is an unprecedented and impennissibly sweeping request that goes well beyond the
bounds of a lawful subpoena. “While the filing of a lawsuit by petitioner may be something like
l9 issuing a fishing license for discovery, as with a fishing license, the rules of discovery do not allow
unrestricted access to all species of information. Discoveryot‘ constitutionally protected information
is on a par with discoveryof privileged information and is more narrowly proscribed than traditional
discovery." (7‘o v. Superior Cottt't(l997) 55 Cal.App.4th 1379, I387.) Courts regularly use their
powers to quash discovery requests such as the instant subpoena that sweep too broadly in their
efforts to obtain private information. (See, e.g. Craig v. Municipal Cour! (I979) 100 Cal.App.3d
69. 77 [“['I‘]he showing made by the defendant falls far short of presenting a plausible justification
for production of the names and addresses of other arrestees. The possible value to the defendant
is remote and highly speculative. . . . [W]hen that remote and speculative value is balanced against
the legitimate private interest of the third party arrestees, it is clear that the superior court did not
8
MEMO OF POlNTS AND Auntotzmtzs IN SUPPORT OF DOREEN FARR‘S MOTION TO QUASII
abuse its discretion in issuing its writ of mandate.“] [emphasis in original].)
A significant limitation on the production of information that may be compelled through
discovery is that the information must be calculated to lead to admissible evidence, which Pappas’
subpoena clearly is not. Code of Civil Procedure section 2017, subdivision (3), provides that
VDOONOVIbb-tlv—
material is subject to discovery “if the matter either is itself admissible in evidence or appears
reasonably calculated to lead to the discovery of admissible evidence.“ “The burden rests upon the
party seeking the discovery to provide evidence from which the court may determine these
conditions are met." (CalcorSpaceFaciIi, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223
[emphasis in original].) When a demand for broad categories of information — such as the names,
I
addresses, birth dates, and citizenship status of more than 20,000 students — are at issue in
discovery, the proponent of the request must provide “specific facts" and not “mere generalities"
in order to justify why the information is designed to lead to admissible evidence. (1d. at p. 224.)
Pappas cannot do so here, because by definition over half of the student information he seeks is in
OWNQMAWN—‘O
no way related to the November 2008 election. Moreover, as in Craig v. Municipal Court, supra,
of the student information he seeks is both “remote" and “highly
._..._-—-—.._._.__._.—.—-
any possible value to Pappas
speculative": It is remote because the address information maintained by UCSB is li'equently
inaccurate and out-of-date due to the transiency of the student population; the data are not regularly
updated by the University, but only by the students themselves should they remember and choose
to do so. And it is highly speculative because Pappas has made absolutely no showing that there
is any reason to believe that even a single UCSB student provided false or inaccurate information
under oath on his or her affidavit of registration; quite frankly, he unduly flatters both himself and
Supervisor Farr if he thinks that there were any UCSB students, much less 806 of them, who took
the risk of lying on their affidavit of registration just so they could have the opportunity to cast an
illegal ballot in the Third Supervisorial election. In short, Pappas‘ subpoena is facially overbroad,
and it must be quashed on this basis alone, even without regard to the invasion of students’ privacy
that would result from disclosure of the sensitive information Pappas demands from UCSB.
But this latter clement must be considered. as well, because the case law makes clear that
when the information sought in discovery is private. as is the information Pappas seeks regarding
9
MEMO or Forum AND AUTHORITIES m Surrour or DOREEN FARR'S MOTION 10 Quasrr
these students, the disco
Preview
N FREDRIC D. WOOCHER (SBN 96689) STRUMWASSER & WOOCHER LLP 10940 Wilshire Boulevard, Suite 2000 SUBg‘i‘lg/giigfifiggglié’afim“ FEB 9-2009 It F 9 Los Angeles‘ California 90024 [J b)? Telephone: (310) 576-1233 GARY M.BLA1F1.Execut NDX__ r Facsimile: (310) 319-0156 BY (5 ~I—5 v — 43: U- PHILIP A. SEYMOUR 4894 Ogram Road (SBN 1 16606) Santa Barbara, California 93105 NARZRALLI KSH. Dapu [ark CA FIN _ __ Telephone: (805) 692-9335 C5 J __ \1 Facsimile: (805)964-1907 Attorneys for Defendant Doreen Fan- PTY _ ATI' _. COD— ST SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA STEVEN PAPPAS, Case No. 1304851 Contestant, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DOREEN FARR'S MOTION v. TO QUASH SUBPOENA AND OBJECTION OF JOHN DOE AND JANE DOE TO RELEASE OF PERSONAL RECORDS DOREEN FARR, (Cal. Code Civ. Proc. §§ 1987.1 & 2025.410) Defendant. Dale: J" l 1,0? Time: 1: L0 PT“ Dept.: 5 Contest Filed: December 31, 2008 ASSIGNED TO THE HONORABLE WILLIAM MCLAFFERTY PRINTED 0N RECYCLED PAPER MEMO 0F POINTS AND AUTIIORmFs IN SUPPORT 0|: DOREEN FARR‘s MOTION To QUASH TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................... ............ ‘. ii INTRODUCTION ............................................................ 1 STATEMENT OF FACTS ..................................................... I oboxlc‘v-sn— I. PAPPAS‘ SUBPOENA DOES NOT COMPLY WITH CODE OF CIVIL PROCEDURE SECTION 1985.3 AND Is FATALLY DEFECTIVE .............. 5 II. THE INFORMATION SUBPOENAED IS OVERLY BROAD, NEEDLESSLY INVASIVE OF THE PRIVACY RIGHTS OF NON-PARTIES, AND NOT REASONABLY CALCULATED T0 LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE IN SUPPORT OF PAPPAS’ ELECTION CONTEST . . . . 8 III. THE COURT MUST ORDER A HALT TO THE UNAUTHORIZED DISCLOSURE OF INFORMATION ON OBJECTING STUDENTS AND REQUIRE PAPPAS TO RETURN AND NOT MAKE USE OF ANY INFORMATION ALREADY RECEIVED ........................................................... I4 CONCLUSION ............................................................. 16 mZSGEGE—S i MEMO 0I~' POINTS AND AUTHORITIES IN SUPPORT Ol’ DOREEN FARR'S MOTION TO QUASII TABLE OF AUTHORITIES Federal Cases In re Reyes (51h Cir. 1987) 814 F.2d 168 ......................................... 11 United States Department of State v. Washington Post (1982) 456 US. 595 ............. l 1 ooouc‘v-Jtuw— Zeng Liu v. Donna kurun International, Inc. (S.D.N.Y. 2002) 207 F.Supp.2d l9l 1 ........ 11 State Cases ..... ................. I Anderson v. County of Santa Barbara (1976) 56 Cal.App.3(l 780 15 Calcor Space Facility, Inc., v. ................ 9 Superior Court (1997) 53 Cal.App.4th 216 Craig v. Municipal Court (1979) 100 Cal.App.3d 69 ............................... 8, 9 .— O Hill v. National Collegiate Athletic Assn. (1994) 7 Ca1.4th l ......................... 10 .. —' Mogltadam‘v. Regents oft/1e Universiol of California (2008) 169 Cal.App.4th 466 ......... 7 Morales v. Superior Court (1979) 99 Ca1.App.3d 283 ................... ............ ‘ .— N 11 _. L» Ombudsman Services ofNorthern Caltfornia v. Superior Court (2007) 154 Cal.App.4th 1233 ............................................ 12 _. A Pioneer Electronics (USA) Inc. v. Superior Court (2007) 40 Cal.4th 360 ................ 10 U! Puerto v. Superior Court (2008) 158 Ca1.App.4th 1242 ....................... 10, ll, 14 ,— .— 0 7:vlo v. Superior Court (1997) 55 Cal.App.4th 1379 ................................. 8 —- \l Federal Statutes _- 00 20 U.S.C. § 1232g ............................................................ 3 .— O State Statutes NO Cal. Code Civ. Proc., 21 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DOREEN FARR‘S MOTlON T0 QUASH 0 §437c ............................................................ 1, 5, 6 §1985.3 .......................................................... 2,3,4 151985.3, subd. (20(1) ............................ ....................... 5 ‘. §1985.3,subd.(b)(3) ................... 7 \DOOVG‘Mwu—l §l985.3,subd.(k) ..................... 6 {51987.1 .............................................................. 1 § 2017, subd. (:1) ....................................................... 9 § 2020.410, subd. (c) ....................... ............................ 15 ' § 2020.510, subd. (0) ..... ............................................... 6 ' § 2025.210, subd. (b) ............................................ ...... 15 ; 152025.410 ............. 1 Educ. Code, § 72644 ......................... ‘; .............................. S, 6 Elec.Code, N—-———"-"-"-‘-“-‘-' §l6500 ............................................................. V 15 OOOONC‘MJhY-dN-‘O §16600 ..... ........................................................ 15 flaw-#9330.— MNNNNNN N 00 iii MEMO or POINTS AND AUTHORITIES IN SUPPORT or: DOREEN qz's MOTION To QUASH INTRODUCTION . ' Defendant Santa Barbara County Supervisor Doreen Farr and UCSB students John Doe and Jane Doe seek an order from this Court quashing the subpoena issued by Contestant Steven Pappas to Michael Young, Vice Chancellor of Student Affairs at the University of California at Santa Barbara (UCSB), which seeks the production of the names, residence addresses, dates of birth, and \DOONC‘U‘It—n citizenship of every student. both undergraduate and graduate, who enrolled at UCSB in 2008 — more than twenty Ibousand in number. The subpoena must be quashed for at least two reasons: First, procedurally. the subpoena fails to comply with the Consumer Records Act, Code of Civil Procedure § 1985.3 et seq., because it was not served on any of the students (i.e., the consumers) whose personal records are being sought. and they were not personally served with the statutorily mandated notice that their personal records were being subpoenaed and of their rights to obj ect to the production of their records and to consult with an attomey about their interest in protecting their rights of privacy. Second, substantively, the subpoena is outrageously overbroad, is not reasonably calculated to lead to the discovery of admissible evidence, and is impennissibly and unnecessarily _..—._.._._.._...._.... ooxicxurasw-c invasive of the privacy rights of (liousands of non-parties, seeking personal and sensitive information that can have absolutely no bearing on the election contest at issue. Further-more, Defendant Farr has discovered that Contestant Pappas has. arranged for UCSB to disclose information in response to the subpoena — specifically, the identities of those very students who have voiced their objection to the release of any of their personal information — in violation of all established statutory procedures for pro-trial discovery or trial subpoenas. The Court must therefore issue an order quashing the subpoena and directing Contestant Pappas to return to UCSB all information received to date in response to the unlawful subpoena. STATEMENT OF FACTS On or about January I3. 2009, Contestant Steven Pappas issued a Civil Subpoena (Duccs Tecum) for Personal Appearance and Production of Documents and Things at Trial or Hearing to Michael Young, Vice Chancellor of Student Affairs at UCSB. A copy of the subpoena is attached as Exhibit l tO the Declaration of Fredric Woocher (Woocher Decl.). The subpoena requests, inter alia, the production of “[e]lectro_nic copies of reports and/or summaries containing the following . I MEMO or POINTS AND AUTHORITIES m SUPPORT or narrow FARR'S MOTION To QUASII information: the names, resident addresses, dates of birth and citizenship of all students, undergraduate and graduate, enrolled at the University of California Santa Barbara (‘UCSB’) in 2008." (Woocher Decl., Exh. l, p. 3.) According to the University‘s website, there are currently over 20,000 students enrolled at UCSB. In his required declaration setting forth the supposed materiality of the subpoenaed records to the issues in this election contest, Pappas’s counsel stated WWNO‘MbUNu— that “the documents identify those persons enrolled at [UCSB] in 2008 by name, residence address, date of birth, and citizenship as provided by those persons to UCSB officials. This information when compared to the information maintained by the Santa Barbara Registrar of Voters will establish the validity ol'the information provided to the Registrar in regards to who registered, the registration processes utilized and registration information provided by said registrants when registering to vote in the 2008 election which is the subject of this action." (Woocher Decl., Exh. l, p. 2.) In other words, Contestant Pappas wants to use these 20,000-plus students’ records to go on a classic “fishing expedition." cross-referencing the private, personal information that these students at one point provided to the University (presumably through compulsion) against the information that some of them, at some otherpoinl in time, may have provided to the Registrar of N-‘—-—v—‘—--—-—'——' OOOOQGUIAMN—O Voters on their affidavits of registration, in the mere hope that perhaps he will find some inconsistency that might provide him with a basis for doubting whether some tinyfraction of these students accurately or truthfully completed their registration forms, each of which was sworn to under penalty of perjury. Moreover, there is far from a useful “match” between the enrolled students at UCSB in 2008 and those persons who registered and exercised their right to vote in the November 2008 Third 22 District Supervisorial election. UCSB students — especially the thousands of graduate students like 23 Objeclor John Doe —-— can and do live in many Santa Barbara precincts other than the 18 UCSB and 24 lsla Vista precincts that Pappas has made the sole focus of this election contest. Indeed, many 25 students may maintain their permanent legal residences in their home towns, far from Santa Barbara, 26 and cast absentee ballots in the November 2008 Presidential election from those addresses. 27 Thousands of other UCSB students may never have registered to vote at all, or if they did register, 28 may not have cast ballots in the 2008 election for one reason or another. Conversely, there are 7 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF DOREEN FARR‘S MOTION TO QUASH hundreds if not thousands of persons who registered and voted in the IS contested precincts who were not UCSB students in 2008, so the University’s records will likewise yield no useful information whatsoever regarding the eligibility of these voters. Pappas’ subpoena to Vice Chancellor Young ordered him to appear with the requested coexttau-sn... student records at the trial of this election contest, on January 30, 2009, or to submit the records to the court in a sealed envelope together with a completed declaration of custodian of records if he did not appear in person. (At the time the subpoena was served on Vice Chancellor Young, of course, the trial had been scheduled to commence on January 27, 2009, and it was only later continued to February 17.2009.) Presumably because it was a trial subpoena, Contestant Pappas never served a copy of the subpoena on Defendant Farr. Instead, Defendant Farr’s counsel only learned about the existence of the subpoena by reading a newspaper article that made reference to it on January 23. 2009. (Woocher Decl., 1] 3.) Perhaps more significantly, none of the students whose personal records and private information were being sought by Pappas‘ subpoena were served with a copy of it, either. NN——-—-—-—-—--—--—- At some point between January 13 and January 28, counsel for Pappas and counsel for UCSB —OO°°\IC\MJ>r—C apparently reached an agreement between themselves regarding how the University was going to respond to the subpoena. Pursuant to that agreement, and in accordance with UCSB’s obligations under the Federal Educational Rights and Privacy Act (FERPA, 20 U.S.C. § 1232g), Vice Chancellor Young on January 28 sent an email to UCSB students notifying the recipients that the University had received a subpoena in connection with the instant lawsuit'requiring it to produce the personal data specified in the subpoena (i.e., the names, addresses, dates of birth and citizenship of all students enrolled in UCSB in 2008), and informing the students that the University intended to forward their personal records to the requesting party unless the student served a written objection on the University and the subpoenaing party's attorney within ten days from the date of the letter, or no later than February 9, 2009. Vice Chancellor Young’s email also included a link to an electronic form that a student could fill out in order to make such an objection; requiring the student to provide his or her name, student identification number, and the reason for objecting to the release of his or her personal information. Remarkably. the University told the students that a copy of the 3 MEMO OF POINTS AND AUTHORITIES IN SUPPORT Ol‘ DOREEN FARR'S MOTlON 1O QUASH form, including their name :and the reason for objection, would be provided to the subpoenaing party’s counsel. (See Woocher Decl., Exh. 4.) Thus. in a classic Catch-22, in order to prevent the release of their name, address, date of birth, and citizenship information to Pappas’ counsel by the University, UCSB students were required to provide Pappas’ counsel with some of the very information that they did not want to have released. \DooxloknvbbJN— Although it is not known how many of the UCSB students who were enrolled in 2008 still maintained the email addresses to which Vice ChaneellorYoung’s email was sent, or how often any of them ever checked that email address given that most students had long-previously established and used their own personal, non-University email addresses, almost immediately upon Vice .— O Chancellor Young’s email letterbeing sent out, representatives of Supervisor Farr began receiving —- '—‘ complaints from students objecting to the unwarranted release of their private. personal information ' _- N to Contestant Pappas and his counsel. Two of these students, who wish to remain anonymous for .— b) fear of retribution and unwanted attention — and are therefore referred to herein as John Doe and ._ ub Jane Doe ,— contacted Defendant Farr's counsel and asked to be represented in objecting to the ._ LII subpoena and to the University's insistence upon releasing the names of the student objectors to .— O\ Pappas’ counsel. These students had done absolutelynothing that would justifythe invasion of their —- \l privacy rights that would result from compliance with Contestant Pappas’ subpoena; indeed; John -— 00 Doe does not even live in the Third Stipen’isarial District, and the validity of his two-year-old —- \9 registration and vote in the November 2008 election could not possibly be at issue. (See Woocher NO Decl., 1| 4.) N *— On January 30, 2009, Counsel for befendant Farr contacted Jeffrey Lake, counsel for NN Contestant Pappas. and requested that he voluntarily withdraw the subpoena. (See Woocher Decl., NW Exh. 2.) Mr. Lake refused to do so, and subsequent attempts to resolve the parties‘ dispute over the NA legality of Pappas' subpoena have been unsuccessful. (Woocher Deel.. 1] 6.) In fact, Defendant N U1 Farr’s counsel has recently learned .that. rather than waiting at least until February 9, as Vice NG Chancellor Young’s email implied would be the case, or to the February 17, 2009, commencement N \l ofthe trial in this case, as the trial subpoena served on UCSB would require, the University has N 00 already been providing counsel for Contestant Pappas — and only counsel for Contestant Pappas 4 . MEMO or POINTS AND AUTIIORJ‘HES IN SUPPORT or DOREEN FARR'S Morton T0 QUASH — with the names of those students who have objected to the release of their personal information and the reasons for their objections. (Woocher Decl., 1] 7 & Exh. 3.) Defendant Farr therefore brings the instant motion to quash in order to protect the privacy interests of thousands of UCSB students who have nothing to do with this election contest and to compel Contestant Pappas‘ OOOVO‘Mh-WN... compliance with the requirements of the Code of Civil Procedure. I. PAPPAS’ SUBPOENA DOES NOT COMPLY WITH CODE OF CIVIL PROCEDURE SECTION 1985.3 AND IS FATALLY DEFECTIVE The subpoena issued by Contestant Pappas to UCSB Vice Chancellor Young’is facially defective because it fails to comply with Code of Civil Procedure section l985.3, a provision that is intended to effectuate important privacy rights and to provide protection for Califomia‘s consumers against the unwarranted and uninformed disclosure of their personal records. ’Section 1985.3 protects the “personal records" of a “consumer" from disclosure through subpoena without prior disclosure to the consumer that his or her personal information has been subpoenaed and of the his or her right to object to its inappropriate disclosure. Pappas’ utter failure to abide by Section 1985.3‘5 procedural provisions renders his January 13, 2009, subpoena to UCSB for these OOmNO‘M-fiwN—O of students' records fatally defective. N-—‘—"—'-‘—--—-"-‘ thousands Under the statutory scheme, “personal records" are “the original. any copy of books, documents, other writings. or electronic data pertaining to a consumer-and which are maintained by any ‘witness’ . . . (Code Civ. Proc., § 1985.3. subd. (a)(1).) A “witness" includes “a private or public preschool, elementary school, secondary school, or postsecondary school as described in Section 76244 of the Education Code."1 (lbid.) A “consumer" is “any individual . . . who has lo ~— NN lEducation Code section 76244 does not “describe" or otherwise identify any type of “private or public preschool, elementary school, secondary school, or postsccondary school." N b) Rather, the cited section, located within the title of the Education Code (title 3) dealing with I») J1 “postsecondary education," merelystates that “[i]nformation concerning a student shall be furnished in compliance with a court order or a lawfully issued subpoena,” and directs that “[t]he community MM college district shall make a reasonable effort to notify the student in advance of compliance with N ex a lawfully issued subpoena and, in the case of compliance with a court order, if lawfully possible within the requirements of the order.” (Educ. Code, § 76244.) Contestant Pappas contends that N \I Code of Civil Procedure section [985.3 ‘5 citation to Education Code section 76244, and the latter section’s reference to “community college district,“ means that the Consumer Records Act applies N 00 only to subpoenas requesting the personal records of students attending preschools, elementary 5 MEMO 0F POINTS AND AUTHORITIES m SUPPORT OF DOREEN FARR‘S Mon0N T0 QUASII transacted business with, or has used the services of, the witness or for whom the witness has acted as agent or fiduciary." (Id. at subd. (a)(2).) The statute requires that a party who has issued a subpoena must “serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum" (id. at subd. (b)) and a notice containing the following information: Owflamhuww “(1) records about the consumer are being sought from the witness named on the if subpoena;’(2) the consumer objects to the witness furnishing the records to the party seeking the records. the consumer must file papers with the court or serve a wntten objection as provided in subdivision (g) prior to the date specified for if production on the subpoena; and (3) the party who is seeking the records will not agree in wntmg to cancel or limit the subpoena, an attorney should be consulted about the consumer‘s interest -in protecting his or her rights of privacy." (Id. at subd. (e).) The subpoenaing party must also serve the witness with proof of service of the required notice and _ O documents on the consumer whose records are being requested. (Id. at subd. (e).) The Civil .—. — Discovery Act incorporates these same requirements, mandating that a subpoena for personal .— N records be accompanied by a proof of service of the required notice. (Cal. Code Civ. Proc., .— W § 2020.510. subd. (e).) “Failure to comply with [section I 985.3] shall be sufficient basis for the —- ‘5 witness to refuse to produce the personal records sought by a subpoena duces tecum." (Cal. Code u— VI Civ. Proc., § 1985.3, subd. (k).) -— 6‘ ._. \l —— 00 schools, secondary schools. and community colleges. but not to any other public or private colleges oruniversities. Given the expansive languageofsection l985.3,however, and the obvious intention .. O of the Legislature to apply the protections of the Consumer Records Act as broadly as possible. Pappas’ suggested construction of the statute is not persuasive. Indeed, under his interpretation, the' N0 very section of the Education Code cross-referenced in Code of Civil Procedure section 1985.3 N~ would be superfl uous, because the Consumer Records Act explicit! y requires thesubpoenaingpany to notify a student of the pending request for production of his or her records, making it completely NN unnecessary forthecomnumiw college district to attempt to do so, as Education Code section 72644 Nu would require. Nor can Pappas provide any plausible explanation for why the Legislature would conceivably want to limit Code of Civil Procedure section l985.3’s consumer protections only to I4 & community college students and not to students at other postsecondary schools or institutions. Contrary to Pappas’ limiting construction. section 1985.3‘s reference to Education Code N VI section 72644 thus appears merely to reflect the Legislature‘s recognition of the need to harmonize the conflicting notification requirements of the two provisions, not to limit the scope of section N9 1985.3. Evidently. the University of California, Santa Barbara itself is of the same view that N \l section 1985.3 applies to subpoenas requesting the records of UCSB students, because Vice Chancellor Young’s letter explicitly referenced section 1985.3 in an effort to advise students of their N 00 rights under California law with regard to Pappas’ subpoena. 6 MEMO or Pourrs ANb AUTHORITIES IN Surromjor Dormer: FARR'S MOTION m QUASM There is no doubt that Pappas has not complied with the requirements of section 1985.3. The subpoena attached as Exhibit 1 to the Wooeher Declaration contains no proof of service on the more than 20,000 students whose personal information is being requested, and counsel for Pappas does not dispute that he never served any of these students with the required notice informing them that Pappas was seeking such information, that they had a right to object to its disclosure, and that they should consult an attorney if they were eoncemed about protecting their privacy rights. Although Pappas contends that the email sent out by Vice Chancellor Young provided the UCSB students with the notice required by section 1985.3, that argument fails in at least two fundamental respects: First, section 1985.3 requires that the subpoenaing party, not the witness, provide the statutory notice, and that such notice must be provided a! leastfive days prior to service of the subpoena on the custodian of records — not fifteen days after the subpoena was served and ten days prior to the threatened release of the consumer’s personal records. (See Code Civ. Proc., § 1985.3, subd. (b)(3).) Second, section 1985.3 requires that-the students be personally served or served by mail with the required notice — not, as occurred here, by a mass entail that likely is never read or even known about by the majority of students to whom it was allegedly sent. (Ibid.) Finally, the student data sought-by Pappas‘ subpoena plainly qualify as “personal records" within the ambit of section 1985.3’5 protections. Pappas seeks the disclosure of every UCSB student’s name, residential address, birth date, and citizenship status — critical and sensitive personal information that could easily be used to steal a student’s identity if lost or misplaced, or to target and harass those students who are non-citizens. The court in Moglradam v. Regents ofthe University of California (2008) 169 Cal.App.4th 466, in construing the California Information Practices Act of 1977. explained that although a student‘s exam that contained only the student’s name and no other identifying information would not be considered a protected record. a record containing a student's name and other identifying infon-nation, such as a social security number or an address, would be considered protected information. (Id. at pp. 483-484.) The student records requested here plainly connect a student‘s identityto an address, a birth date, and a citizenship status —- private information that is protected from disclosure without the required statutory notice under section 1985.3. Because Pappas has not followed the notice procedures that are central to section 7 MEMO or Forum AND Aurttorzrrrus m Surronr or DOREEN FARR'S MonoN TO Qunsrr 1985.3‘s protective regime, the subpoena is fatally defective and must be quashed. II. THE INFORMATION SUBPOENAED IS OVERLY BROAD, NEEDLESSLY INVASIVE OF THE PRIVACY RIGHTS OF NON-PARTIES, AND NOT REASONABLY CALCULATED T0 LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE IN SUPPORT OF PAPPAS’ ELECTION CONTEST OOONQUIAWN— Even if Pappas’ subpoena complied with the requirements of sections 1985.3 and 2020.510. the Court must enter an order quashing the subpoena on the. basis of its stunning over-breadth, its needless violation of the privacy rights of literally thousands of non-parties, and the remote possibility that the requested information will provide any meaningful evidence in support of Pappas' already dubious claims in this election contest. It must be emphasized that Pappas seeks the production of the names. addresses, dates of birth, and citizenship status of every undergraduate and graduate student enrolled at UCSB in 2008 — well over 20,000 students in all — regardless ofwhether a given student is a registered voter or voted in the contested November 2008 election, or whether they even live in the Third Supervisorial District at all! indeed, since there were only —-.—-.—-_.-—-—np—a.—-—a a total of 10,797 votes cast in the precincts contested by Pappas in this case, we know for a fact that WxtChUrsNv—O at least half of the private student records he is seeking — more than 10.000 in number — cannot possibly provide him with any useful information for this election contest. This is an unprecedented and impennissibly sweeping request that goes well beyond the bounds of a lawful subpoena. “While the filing of a lawsuit by petitioner may be something like l9 issuing a fishing license for discovery, as with a fishing license, the rules of discovery do not allow unrestricted access to all species of information. Discoveryot‘ constitutionally protected information is on a par with discoveryof privileged information and is more narrowly proscribed than traditional discovery." (7‘o v. Superior Cottt't(l997) 55 Cal.App.4th 1379, I387.) Courts regularly use their powers to quash discovery requests such as the instant subpoena that sweep too broadly in their efforts to obtain private information. (See, e.g. Craig v. Municipal Cour! (I979) 100 Cal.App.3d 69. 77 [“['I‘]he showing made by the defendant falls far short of presenting a plausible justification for production of the names and addresses of other arrestees. The possible value to the defendant is remote and highly speculative. . . . [W]hen that remote and speculative value is balanced against the legitimate private interest of the third party arrestees, it is clear that the superior court did not 8 MEMO OF POlNTS AND Auntotzmtzs IN SUPPORT OF DOREEN FARR‘S MOTION TO QUASII abuse its discretion in issuing its writ of mandate.“] [emphasis in original].) A significant limitation on the production of information that may be compelled through discovery is that the information must be calculated to lead to admissible evidence, which Pappas’ subpoena clearly is not. Code of Civil Procedure section 2017, subdivision (3), provides that VDOONOVIbb-tlv— material is subject to discovery “if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.“ “The burden rests upon the party seeking the discovery to provide evidence from which the court may determine these conditions are met." (CalcorSpaceFaciIi, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223 [emphasis in original].) When a demand for broad categories of information — such as the names, I addresses, birth dates, and citizenship status of more than 20,000 students — are at issue in discovery, the proponent of the request must provide “specific facts" and not “mere generalities" in order to justify why the information is designed to lead to admissible evidence. (1d. at p. 224.) Pappas cannot do so here, because by definition over half of the student information he seeks is in OWNQMAWN—‘O no way related to the November 2008 election. Moreover, as in Craig v. Municipal Court, supra, of the student information he seeks is both “remote" and “highly ._..._-—-—.._._.__._.—.—- any possible value to Pappas speculative": It is remote because the address information maintained by UCSB is li'equently inaccurate and out-of-date due to the transiency of the student population; the data are not regularly updated by the University, but only by the students themselves should they remember and choose to do so. And it is highly speculative because Pappas has made absolutely no showing that there is any reason to believe that even a single UCSB student provided false or inaccurate information under oath on his or her affidavit of registration; quite frankly, he unduly flatters both himself and Supervisor Farr if he thinks that there were any UCSB students, much less 806 of them, who took the risk of lying on their affidavit of registration just so they could have the opportunity to cast an illegal ballot in the Third Supervisorial election. In short, Pappas‘ subpoena is facially overbroad, and it must be quashed on this basis alone, even without regard to the invasion of students’ privacy that would result from disclosure of the sensitive information Pappas demands from UCSB. But this latter clement must be considered. as well, because the case law makes clear that when the information sought in discovery is private. as is the information Pappas seeks regarding 9 MEMO or Forum AND AUTHORITIES m Surrour or DOREEN FARR'S MOTION 10 Quasrr these students, the disco