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BE.Rick Buell, I (SBN 63924)
we
LAW OFFICES OF E. RICK BUELL, II EPR erry
700 Larkspur Landing Circle, Suite 175 a en
DP
Larkspur CA 94939 FLAMELA COUNTY
Tel: ¢ at 5
4e4-201 1
WY
ax: 464-2012 Ta aie
email: rbuel]@buell-law.us AU 2 0 cUUS
BR
CLERKGE THE o3
Attorneys for Plaintiff PB By oartd
WD
aT F
GWEN R. SYKES mS
HA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
MI
COUNTY OF ALAMEDA
CO
BY FAX
Oo
GWEN R. SYKES Case No. RG03106646
age! Sart”
©
Plaintiff, MEMORANDUM OF POINTS AND
re
rent
vs, AUTHORITIES IN SUPPORT OF
on Se
neat! Sepa
PLAINTIFF’S MOTION TO QUASH
NM
DOUGLAS SYKES ezal. ‘SUBPOENA [UC BERKELEY—OFFICE
ear” Nagata”
ea
OF REGISTRAR]
Ww
Defendant.
Date: October 3, 2003
ane
Time: - 9:00 a.m.
eee
Dept.: 31
pelts
ng? See
Trial Date: Not assigned.
rs
ee
Ka
I. FACTUAL STATEMENT
Plaintiff has filed a Marvin action against defendant seeking damages for defendant’s
‘| breach of an oral contract to support plaintiff. In addition, the complaint seeks damages for
Ne
assault and battery as aresult of defendant having infected plaintiff with various sexually
|
transmitted diseases (“STD”).
Pb
As part of the discovery in this action, defendant has served a business records subpoena
BH
on the Custodian of Reoords, UC Berkeley—Office of Registrar seeking all “records relating to
WH
plaintiff .., School transcripts and other information regarding her attendance atthe School of
wR
Public Health in the doctoral program.” Plaintiff, in fact,did attend UC Berkeley and obtained
WN
her Ph.D, from the Schoo] of Public Health.
Be
Plaintiff objects to the production of these documents on the basis that such subpoena
bo
eo
MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF PLAINTIFF'S MOTION TO QUASH SUBPOENA
{UC BERKELEY-OFFICE OF REGISTRAR]
AUG 28 2883 49:51 4154642012 PAGE .@4
aBf20/2aa3g @9:39 4154642012 BUELL BERNER PAGE 65
ah @ e
1 invades plaintiff's right to privacy as guaranteed by Article 1, Section 1 of the Califormia
2 Constitution and 20 U.S.C.A. §1232¢.
3 I. LEGAL ARGUMENT
4 A. Motion To Quash Permitted By CCP §1987.1. CCP §1987.1 provides in relevant
5 part: .
6 When a subpoena requires the attendance of a witness or the
production of ...documents... the court, upon motion reasonably
7 made by the party, the witness ...may make an order quashing the
subpoena entirely, modifying it,or directing compliance with it
8 upon such tenns or conditions as the court shall declare.
9 Consequently, plaintiff has standing to bring thismotion.
10 B. Motion To Quash Should Be Granted Because Documents Sought Are Protected
\h By Plaintiff's Right To Privacy. Every California citizen has a constitutional right to privacy.
{2 Ca}. Const., Art. I,§1. This right toprivacy extends to academic records. See Porten v.
13 University of San Francisco (1976) 64 Cal. App.3d 825, 832and 20 U.S.C.A. §1232g. Once the
14 || right to privacy attaches to plaintiff's academic records, the court must apply a two step analysis
15 || to determine whether documents must be produced.
16 1. The First Test. When the right to privacy is involved, the party seeking
17 discovery initially must show a particular need for the confidential information sought. The
18 broad “Yelevancy to the subject matter’ standard is not enough. The court must be convinced that
19 the information is directly relevant to a cause of action or defense, i.e.,that it isessential to
20 determine the truth of the matters in dispute. Weil and Brown, Civil Procedure Before Trial,
21 8:320; Mendez v. Superior Court, (1988) 206 Cal. App.3d 557. Moreover, discovery will not be
22 ‘|| ordered if the information sought is available from other sources. Weil and Brown, 78:321
23 2. The Second Test. Once the court determines that a party seeking discovery
24 has met itsburden under the firsttest, the court must then “carefully balance” the interests
25 involved, i.e.,the claimed right of privacy versus the public interest in obtaining just results in
26 litigation. Valley Bank v. Superior Court (1975) 15 Cal.3d 652, 657. The more sensitive the
27 information, the greater the need for discovery that must be shown. Hoffinan Corp. v. Superior
28 Court (1985) 172 Cal.App.3d 357. See Weil and Brown atJ98:323 and 324.
a
MEMORANDUM OF FOINTS AND AUTHORITIES IN
AUG 24 2883 49:51 41546842812 PAGE.@5
BUELL BERNER PAGE &6
ae/28/2683 89:35 4154642812
] Defendant simply cannot satisfy his burden under either the first or second test. This
2 action involves plaintiff's complaint for breach of a Marvin agreement and assault and battery for
3 the infection of plaintiff with sexually transmitted diseases. The doctoral program academic
4 records of plaintiff atUC Berkeley are not even remotely, and certainly not directly, relevant to
5. | the issues involved in this action, i.¢.,did plaintiff and defendant enter into a Marvin agreement
6 and did defendant transmit STD to plaintiff! Nor are such documents essential to determine the
7 truth of the matters at issue in this action. Defendant fails the first test.
8 Consequently, the court need not even reach the second test of balancing plaintiff's right
9 of privacy against the public interest in obtaining just results in litigation. However, even if this
10 test were applied, itwould weigh in favor of non disclosure. Again, these are academic records
ll entitled to a great degree of protection from disclosure. Because the documents sought do not go
12 to the graverman of the complaint, they wil] not shed any light on the issues involved in the
13 litigation. Thus, there isno need for disclosure to protect the public interest in obtaining just
14 results in litigation.
15 I. CONCLUSION .
16 Plaintiff respectfully request that the court order the subpoena quashed.
17
18 DATED: August 20, 2003 LAW OFFICES OF E. RICK BUELL, II
19
21 Sh Z,tial
E. Rick Buell, 1
22 ATTORNEY FOR GWEN R. SYKES
23
24
25
26
27
‘Itshould be noted that in seeking damages for defendant’s breach of an agreement to
28 support defendant, the ability of plaintiff to generate income isnot at issue. Even ifitwere, the
only evidence defendant needs is the fact that plaintiff obtained her Ph.D. Defendant would not
need the actual academic records of plaintiff.
MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF PLAINTIFP’S MOTION TO QUASH SUBPOENA
{UC BERKELEY-OFFICE OF REGISTRAR]
-3-
4154642812 PAGE.@& |
AUG 2@ 2003 89:52
Preview
ae/20/2883 @9:39— 4154642812 BUELL BERNER PAGE O64 f ; * @ @ MEE AE 12622667" BE.Rick Buell, I (SBN 63924) we LAW OFFICES OF E. RICK BUELL, II EPR erry 700 Larkspur Landing Circle, Suite 175 a en DP Larkspur CA 94939 FLAMELA COUNTY Tel: ¢ at 5 4e4-201 1 WY ax: 464-2012 Ta aie email: rbuel]@buell-law.us AU 2 0 cUUS BR CLERKGE THE o3 Attorneys for Plaintiff PB By oartd WD aT F GWEN R. SYKES mS HA SUPERIOR COURT OF THE STATE OF CALIFORNIA MI COUNTY OF ALAMEDA CO BY FAX Oo GWEN R. SYKES Case No. RG03106646 age! Sart” © Plaintiff, MEMORANDUM OF POINTS AND re rent vs, AUTHORITIES IN SUPPORT OF on Se neat! Sepa PLAINTIFF’S MOTION TO QUASH NM DOUGLAS SYKES ezal. ‘SUBPOENA [UC BERKELEY—OFFICE ear” Nagata” ea OF REGISTRAR] Ww Defendant. Date: October 3, 2003 ane Time: - 9:00 a.m. eee Dept.: 31 pelts ng? See Trial Date: Not assigned. rs ee Ka I. FACTUAL STATEMENT Plaintiff has filed a Marvin action against defendant seeking damages for defendant’s ‘| breach of an oral contract to support plaintiff. In addition, the complaint seeks damages for Ne assault and battery as aresult of defendant having infected plaintiff with various sexually | transmitted diseases (“STD”). Pb As part of the discovery in this action, defendant has served a business records subpoena BH on the Custodian of Reoords, UC Berkeley—Office of Registrar seeking all “records relating to WH plaintiff .., School transcripts and other information regarding her attendance atthe School of wR Public Health in the doctoral program.” Plaintiff, in fact,did attend UC Berkeley and obtained WN her Ph.D, from the Schoo] of Public Health. Be Plaintiff objects to the production of these documents on the basis that such subpoena bo eo MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO QUASH SUBPOENA {UC BERKELEY-OFFICE OF REGISTRAR] AUG 28 2883 49:51 4154642012 PAGE .@4 aBf20/2aa3g @9:39 4154642012 BUELL BERNER PAGE 65 ah @ e 1 invades plaintiff's right to privacy as guaranteed by Article 1, Section 1 of the Califormia 2 Constitution and 20 U.S.C.A. §1232¢. 3 I. LEGAL ARGUMENT 4 A. Motion To Quash Permitted By CCP §1987.1. CCP §1987.1 provides in relevant 5 part: . 6 When a subpoena requires the attendance of a witness or the production of ...documents... the court, upon motion reasonably 7 made by the party, the witness ...may make an order quashing the subpoena entirely, modifying it,or directing compliance with it 8 upon such tenns or conditions as the court shall declare. 9 Consequently, plaintiff has standing to bring thismotion. 10 B. Motion To Quash Should Be Granted Because Documents Sought Are Protected \h By Plaintiff's Right To Privacy. Every California citizen has a constitutional right to privacy. {2 Ca}. Const., Art. I,§1. This right toprivacy extends to academic records. See Porten v. 13 University of San Francisco (1976) 64 Cal. App.3d 825, 832and 20 U.S.C.A. §1232g. Once the 14 || right to privacy attaches to plaintiff's academic records, the court must apply a two step analysis 15 || to determine whether documents must be produced. 16 1. The First Test. When the right to privacy is involved, the party seeking 17 discovery initially must show a particular need for the confidential information sought. The 18 broad “Yelevancy to the subject matter’ standard is not enough. The court must be convinced that 19 the information is directly relevant to a cause of action or defense, i.e.,that it isessential to 20 determine the truth of the matters in dispute. Weil and Brown, Civil Procedure Before Trial, 21 8:320; Mendez v. Superior Court, (1988) 206 Cal. App.3d 557. Moreover, discovery will not be 22 ‘|| ordered if the information sought is available from other sources. Weil and Brown, 78:321 23 2. The Second Test. Once the court determines that a party seeking discovery 24 has met itsburden under the firsttest, the court must then “carefully balance” the interests 25 involved, i.e.,the claimed right of privacy versus the public interest in obtaining just results in 26 litigation. Valley Bank v. Superior Court (1975) 15 Cal.3d 652, 657. The more sensitive the 27 information, the greater the need for discovery that must be shown. Hoffinan Corp. v. Superior 28 Court (1985) 172 Cal.App.3d 357. See Weil and Brown atJ98:323 and 324. a MEMORANDUM OF FOINTS AND AUTHORITIES IN AUG 24 2883 49:51 41546842812 PAGE.@5 BUELL BERNER PAGE &6 ae/28/2683 89:35 4154642812 ] Defendant simply cannot satisfy his burden under either the first or second test. This 2 action involves plaintiff's complaint for breach of a Marvin agreement and assault and battery for 3 the infection of plaintiff with sexually transmitted diseases. The doctoral program academic 4 records of plaintiff atUC Berkeley are not even remotely, and certainly not directly, relevant to 5. | the issues involved in this action, i.¢.,did plaintiff and defendant enter into a Marvin agreement 6 and did defendant transmit STD to plaintiff! Nor are such documents essential to determine the 7 truth of the matters at issue in this action. Defendant fails the first test. 8 Consequently, the court need not even reach the second test of balancing plaintiff's right 9 of privacy against the public interest in obtaining just results in litigation. However, even if this 10 test were applied, itwould weigh in favor of non disclosure. Again, these are academic records ll entitled to a great degree of protection from disclosure. Because the documents sought do not go 12 to the graverman of the complaint, they wil] not shed any light on the issues involved in the 13 litigation. Thus, there isno need for disclosure to protect the public interest in obtaining just 14 results in litigation. 15 I. CONCLUSION . 16 Plaintiff respectfully request that the court order the subpoena quashed. 17 18 DATED: August 20, 2003 LAW OFFICES OF E. RICK BUELL, II 19 21 Sh Z,tial E. Rick Buell, 1 22 ATTORNEY FOR GWEN R. SYKES 23 24 25 26 27 ‘Itshould be noted that in seeking damages for defendant’s breach of an agreement to 28 support defendant, the ability of plaintiff to generate income isnot at issue. Even ifitwere, the only evidence defendant needs is the fact that plaintiff obtained her Ph.D. Defendant would not need the actual academic records of plaintiff. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFP’S MOTION TO QUASH SUBPOENA {UC BERKELEY-OFFICE OF REGISTRAR] -3- 4154642812 PAGE.@& | AUG 2@ 2003 89:52