Preview
RECEIVED
J. Anthony Abbott (SBN 83975) FILED 15:15:58
5874 North Alpine Road SUPERIOR COURT
Stockton, CA 95215 Brandon E. Riley, Clerk
Telephone: (209) 482-0596
jaadiscref@outlook.com Rocio Pimentel
December 28, 2020
DISCOVERY REFEREE
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN JOAQUIN
REBECCA SANDS, Case No. STK-CV-UWT-2019-6970
10
Assigned to Hon. Roger Ross, Dept. 11B
Plaintiff,
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DISCOVERY REFEREE’S RECOMMENDED
12
VS. RULING ON DEFENDANT DIGNITY HEALTH
DBA ST. JOSEPH’S MEDICAL CENTER'S
13 MOTION TO MAINTAIN CONFIDENTIALITY
DESIGNATION UNDER STIPULATED
14 DIGNITY HEALTH, dba ST. JOSEPH’S PROTECTIVE ORDER; ORDER
MEDICAL CENTER, and DOES 1 through 10,
16 inclusive, Submission Date: November 17, 2020
Action Filed: May 31, 2019
16 Trial Date: September 13, 2021
Defendants.
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I
20
OVERVIEW
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22 By order filed November 5, 2020, the undersigned was appointed as Discovery
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Referee. Defendant Dignity Health, dba St. Joseph’s Medical Center (hereinafter defendant or
Dignity) moves to maintain its confidentiality designation regarding approximately 3300 pages
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of documents produced by Dignity and plaintiff Rebecca Sands (hereinafter plaintiff or Sands)
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26 pursuant to discovery requests. Sands opposes the motion as to all designated documents.
27 Neither side requests sanctions against the other.
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i.
FACTS
Plaintiff's operative pleading is the verified First Amended Complaint (FAC) filed July 25,
2019. The FAC alleges, in essence, that on February 20, 2018, Sands was unlawfully
terminated from her employment as a Licensed Vocational Nurse with Dignity. The FAC sets
forth nine causes of action: 1) adverse action in violation of public policy; 2) interference with
rights conferred on plaintiff by the California Family Rights Act; 3) FEHA retaliation; 4) sex and
pregnancy discrimination; 5) disability discrimination; 6) failure to engage in the interactive
process; 7) failure to accommodate; 8) failure to prevent discrimination and retaliation, and 9)
10 violation of Labor Code sections 98.6 and 1102.5.
11 Defendant's verified answer, filed October 10, 2019, denied the charging allegations of
12 the FAC and asserted 51 affirmative defenses. Dignity does not contend any of these
13 defenses bear on the resolution of this motion.
14 In January 2020, apparently in response to plaintiff's initial demand for inspection,
15 Dignity proffered and the parties ultimately entered into a stipulated protective order (SPO),
16 which the court adopted by order filed January 23, 2020. Declaration of Lauren B. Shelby
17 (Shelby Dec.), paragraph 2, Exhibit 1. The SPO provides, among other things, that documents
18 deemed confidential by a producing party be marked as such prior to production. /d., SPO
19 paragraph 4. The SPO also provides that the requesting party may serve a written objection to
20 the confidential designation, and the producing party then has 30 days to 1) agree to de-
21 designate, or 2) file a motion to retain the confidential designation. Id., SPO paragraph 5.
22 There is no time limit for making the written objection, Ibid. The moving party (i.e. the
23 designating party) has the burden to establish the applicability of its confidential designation.
24 Ibid.
25 Thereafter, in January and April, 2020, in response to a plaintiffs demand for
26 inspection, Dignity served a total of 3,120 pages of responsive documents, each page of which
27 was marked “confidential information.” Shelby Dec., paragraph 5.
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On June 30, 2020, Dignity noticed plaintiff's deposition for August 7, 2020. Declaration
of Kimberley A. Worley (Worley Dec.), paragraph 5. On July 2, 2020, plaintiff served her initial
objections to Dignity’s confidential designations, asserting that none of the produced
documents was in fact confidential. id., paragraph 6, Exhibit 2. There followed meet and
confer efforts conducted by e-mail which resulted in neither party modifying her/its position.
Id., paragraphs 7, 8, 9, Exhibits 3, 4, 5. On July 20, 2020, Dignity designated 171 pages of
plaintiff's prior document production as confidential. /d., paragraph 10, Exhibit 6. On July 21,
2020, plaintiff served her second objections to Dignity’s confidential designations regarding the
documents she had produced. Id., paragraph 11, Exhibit 7. Dignity served an Index of
10 Confidential Documents (Index) on August 18, 2020, coding for each document the reason(s) it
11 should remain confidential. /d., paragraph 18. This document is one of the papers submitted
12 in support of the motion. The parties agreed to extend time to file this motion to September 8,
13 2020. /d., paragraph 17.
14 This motion was filed September 1, 2020. Plaintiff does not contend the motion is
15 untimely or that notice was improper. On November 9, 2020, the Referee downloaded the
16 moving, opposition, and reply papers and informed the parties there was no need to submit
17 them. Pursuant to paragraph 3 of the court’s order filed November 5, 2020, and following the
18 Referee’s initial examination of the downloaded papers, the Referee conducted a conference
19 call with the parties on November 12, 2020, to discuss the scope of work. The Referee
20 determined that depending on the results of his examination of the authorities submitted by the
21 parties, an in camera review of the designated documents may be required. This resulted in
22 the electronic submission later that day of some the documents in issue. The rest of the
23 documents were submitted on November 17, 2020, which was therefore selected as the
24 submission date on the motion. See Order filed November 5, 2020, paragraph 5c. The parties
25 have agreed by exchange of electronic messages that the Proposed Recommended Ruling
26 and Recommended Ruling may be served by electronic mail only.
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The Proposed Recommended Ruling was served November 25, 2020. Neither party
has requested a hearing before the referee.
tl.
DISCUSSION
The parties agree that the statutory basis for this motion is CCP section 2031.060(b),
which provides for motions for protective orders in connection with demands for production of
documents. See Opening Memorandum, 9:19-21; Opposition Memorandum, 4:27-5:9. That
section, in pertinent part, reads as follows:
“(b) The court, for good cause shown, may make any order that justice requires
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to protect any party or other person from unwarranted annoyance,
11 embarrassment, or oppression, or undue burden and expense. This protective
order may include, but is not limited to, one or more of the following directions: .
12
13 (4) That the inspection, copying, testing, or sampling be made only on specified
terms and conditions.
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(5) That a trade secret or other confidential research, development, or
15 commercial information not be disclosed, or be disclosed only to specified
persons or only in a specified way... .”
16
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A motion for protective order may be made even after the requested documents have been
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produced. See Stadish v. Superior Court (1999) 71 Cal.App.4 1130, 1144. Here, of course, the
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protective order upon which the motion is based pre-existed Dignity’s document production, and
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the issue presented is which documents, if any, shall retain the confidential designation.
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Consistent with the SPO, the case law states the party seeking the protection of the order bears
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the burden of showing good cause therefor. /d. at 1145.
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Dignity bases its confidentiality designations on one or more of 5 factors: 1) patient privacy
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under the Health Insurance Portability and Accountability Act of 1996 (HIPAA); 2) patient safety
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work product privilege (Evidence Code section 1157; 3) plaintiffs privacy; 4) privacy of third
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parties, primarily Dignity employees; and 5) confidential commercial property. See Index, 2:1-6.
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Dignity seeks an “umbrella” order that all 3,120 pages of documents it has produced, and 171 of
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the 179 pages plaintiff has produced, shall remain confidential. The Referee has examined these
Pages in camera, although admittedly each was not read word for word. The rulings on the
umbrella request and on each of the five grounds for retaining the confidential designation are as
follows:
A DIGNITY’S REQUEST FOR AN UMBRELLA ORDER IS DENIED.
The only California case cited by Dignity in its request for an umbrella order is Nativi v.
Deutsche Bank National Trust Co. (2014) 223 Cal.App.4" 261. The opinion in that case stopped
well short of a full-throated endorsement of such orders, merely assuming that in some
circumstances they may be appropriate. /d. at 318. The court in that case found the evidentiary
10 support for the trial court's order covering all documents lacking and reversed the “sweeping
11 protective order” as an abuse of discretion. /d. at 319. The two federal cases cited by Dignity
12 involved complex litigation—not the situation here. In Re Alexander Grant & Co, Litigation (41
13 Circuit 1987) 820 F.2d 352, involved 40,000 pages of discovery documents whose disclosure was
14 sought by a non-party newspaper over an “umbrella” protective order to which the parties to the
15 case had agreed. In denying access, the court pointed out that private documents exchanged in
16 discovery are not “judicial records” to which the requesting parties were entitled to access under
17 common law or the First Amendment, and under the facts of that case the district court's order
18 was within its discretion. /d. at 355-357. In Cipolloni v. Liggett Group, Inc. (1986) two
19 consolidated tobacco products liability cases, the court stated that the district court could make an
20 order requiring a showing “document by document” by the party seeking protection or, equally
21 appropriate, issue an “umbrella” order, following which objections could be interposed by the non-
22 designating party. Jd. at 1121-1122. In the latter case, the burden would still be on the
23 designating party to justify the protective order, which is exactly the case here. /d. at 1122. The
24 court opined the “umbrella” approach has advantages in the complex case. Ibid: emphasis
25 supplied. The appellate court in no way required an umbrella order, to say nothing of approving
26 its use in a case which does not meet the complex case criteria. See Cal. Rules of Ct., Rule
27 3,400.
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Dignity argues that it has relied on the SPO, and this representation is accepted by the
Referee. It argues in turn that the SPO should not be modified. No modification is requested by
Sands. Rather, the objection she made is expressly authorized by paragraph 5 of the SPO, and
Dignity is required to do no more than the SPO requires to justify its designations.
Dignity avers that plaintiff has not shown that the presentation of her case would be
impaired by designating all produced documents confidential. She is not required to do so. Itis
Dignity’s burden to support its designations, not plaintiff's to show prejudice therefrom. Further,
the terms of the SPO place substantial, self-evident limitations on the use of confidential
information in this action. See SPO, paragraphs 6, 8, 9, 10, 12.
10 That plaintiff's law firm has filed other actions against Dignity does not make confidential
11 documents which would not be if Sands’ lawyer were filing his or her first case against Dignity.
12 Whether a document is properly designated confidential cannot depend on the identity or litigation
13 history of the requesting lawyer, or whether Dignity fears non-confidential information may be
14 used against it in future cases filed by the same firm. Dignity cites no case to the contrary.
15 Neither is Dignity entitled to special consideration of its claims of confidentiality solely because of
16 the nature of its business. See Opening Memorandum, 12:10-13:17.
17 Turning to the substance of this case, the Referee finds that an umbrella order would be
18 particularly inappropriate because, for reasons which follow, Dignity has failed to carry its burden
19 to justify its confidential designation as to any of the documents it and plaintiff have produced.
20 B NONE OF THE DOCUMENTS PRODUCED CONTAIN INFORMATION WHOSE
21 DISCLOSURE IS PROHIBITED BY HIPAA.
22 The parties agree that HIPAA prevents disclosure of Protected Health Information (PHI),
23 defined as “individually identifiable health information transmitted or maintained in any form or
24 media.” Opening Memorandum, 14:9-15, Opposition Memorandum, 11:3-10, each citing 45
25 C.F.R. section 160.103. Dignity cites specific documents by page number it alleges contain such
26 information. See, e.g., Index, pages D1-D-4, D-3048. One wonders, given HIPAA’s strictures,
27 why such pages were disclosed even with a confidential designation. The Referee has examined
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the documents produced by the parties, including those coded “A” (HIPAA patient privacy) in the
Index, and has found no such information. Where patient information appeared, appropriate
redactions were made. See, e.g., pages 197-198, 222, 224. If Dignity believed PHI was
disclosed anywhere in the document productions of the parties, the Referee invited it to request a
hearing before the Referee pursuant to paragraph 7 of the order filed November 5, 2020, and prior
to the hearing specify in writing, in confidence, each page and line number (if applicable) which it
contends contains PHI, and the specific individually identifiable health information disclosed. No
such specification has been received.
c NONE OF THE DOCUMENTS PRODUCED CONTAIN INFORMATION WHOSE
10 DISCOVERY IS PROHIBITED BY EVIDENCE CODE SECTION 1157.
11 Evidence Code section 1157 protects from discovery proceedings and records of medical
12 peer review committees and other similar bodies. The parties do not significantly disagree on the
13 scope of protection provided by this section. See Opening Memorandum, 15:11-21 and citations;
14 Opposition Memorandum, 10:11-18 and citations. Dignity cites specific documents by page
15 number it alleges contain such information. See, e.g., Index, pages D-1 to D-4. Again, the
16 question arises why such documents were produced at all. The Referee has examined the
17 documents produced by the parties, including those coded “B” (Patient Safety Work Product
18 Privilege) in the Index, and has found no such information. If Dignity believed such information
19 was disclosed anywhere in the document productions of the parties, the Referee invited it to
20 request a hearing before the Referee pursuant to paragraph 7 of the order filed November 5,
21 2020, and prior to the hearing specify in writing, in confidence, each page and line number (if
22 applicable) which it contends sets forth records or proceedings within the ambit of Evidence Code
23 section 1157, identifying with specificity the peer review body and proceeding involved, and the
24 specific protected information disclosed. No such information was received.
25 I
26 W
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D PLAINTIFF HAS WAIVED HER PRIVACY RIGHTS IN THE RECORDS
PRODUCED.
Sands has a qualified privacy interest in the confidential personnel records of her
employment with Dignity. See Weil & Brown, et. al., Cal. Pract. Guide: Civ. Pro. Before Trial (The
Rutter Group 2020) section 8:308, citing Board of Trustees v. Superior Court (1981) 119
Cal.App.3d 516, 528-530. Although Dignity may be the custodian of such records, the holder of
the privacy interest is plaintiff herself. See Lugosi v. Universal Pictures (1979) 25 Cal.3d 813,
821; see also, Labor Code section 1198.5(a), allowing the employee to inspect and receive her
personnel records. Dignity cites no authority that it may retain the confidentiality of such records
10 over the employee’s objection. By opposing Dignity’s confidential designation of her personnel
1 records Sands has waived any claim that these records should remain private.
12 Dignity’s concern that unless the records retain their confidentiality designation plaintiff will
13 use them to concoct a defamation claim appears speculative. Dignity has not, and cannot be
14 expected to, point out statements in plaintiff's personnel records which are arguably defamatory.
15 However, even assuming such statements exist, the general rule is “[a] plaintiff cannot
16 manufacture a defamation cause of action by publishing the [defamatory] statements to third
17 persons; the publication must be done by the defendant.” Live Oak Publishing Co. v. Cohagan
18 (1991) 234 Cal.App.3d 1277, 1284. The exception is when the plaintiff is under strong pressure to
19 disclose the statement to a third person, and the defendant knew or should have known plaintiff
20 was under such pressure. See CACI 1708, citing Davis v. Consolidated Freightways (1994) 29
21 Cal.App.4" 354, 373. “This exception has been limited to a narrow class of cases, usually where
22 a plaintiff is compelled to republish the statements in aid of disproving them. Thus, where a
23 derogatory statement is placed in a personnel file, the employee must explain the statement to
24 subsequent employers, who will surely learn of it if they investigate his or her past employment.”!
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26
1 This last statement appears doubtful in light of the modern practice for former employers to disclose only
27
dates of employment and positions held.
28
Live Oak Publishing Co. at 1285. If this is the case here (and no reason appears in the record to
suppose it is) Dignity should not be able to escape liability by forcing plaintiff to keep the
defamation in confidence. Conversely, if plaintiff is under pressure to disclose the alleged
defamation, say, to a future employer, and the confidential designation would allow her to resist
effectively such pressure, by opposing the confidentiality designation she will have taken herself
out of the exception.
E DIGNITY HAS NOT ESTABLISHED THAT REMOVING THE CONFIDENTIAL
DESIGNATION WILL VIOLATE THE PRIVACY RIGHTS OF THIRD PARTIES.
Dignity asserts that the records produced contain private information regarding its
10 employees other than plaintiff, which justifies its confidential designations. See Opening
11 Memorandum, 24:9-25:15. As before, if this is the case, why did Dignity disclose these records to
12 plaintiff, even with the confidential designation, thereby violating the rights of such employees?
13 The question is not answered. In any case, Dignity has not established that such privacy rights
14 exist with respect to the records in issue.
15 “The party asserting a privacy right must establish a legally protected privacy interest, an
16 objectively reasonable expectation of privacy in the given circumstances, and a threatened
7 intrusion that is serious.” Williams v. Superior Court (2017) 3 Cal.5th 531, 552, citing Hill v.
18 National Collegiate Athletic Assn., (1994) 7 Cal.4" 1, 35. Only after the party asserting the privacy
19 interest meets this burden does the court weigh the countervailing interest of the party seeking
20 discovery. See Williams at 557. “[W]hether a legally recognized privacy interest exists is a
21 question of law, and whether the circumstances give rise to a reasonable expectation of privacy
22 and a serious invasion thereof are mixed questions of law and fact.” Pioneer Electronics (USA)
23 Inc. v. Superior Court (2007) 40 Cal.4" 360, 370, citing Hill v. National Collegiate Athletic Assn.
24 (1994) 7 Cal.4" 1, 40. “[T]he invasion of privacy complained of must be ‘serious’ in nature, scope,
25 and actual or potential impact to constitute an ‘egregious' breach of social norms, for trivial
26 invasions afford no cause of action.” Pioneer at 371, citing Hill at 37.
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The Referee concludes that the appearance of names of third party employees in records
such as work schedules does not qualify as private information. The same is true where the
fellow employee simply authors and signs letters to plaintiff regarding leaves of absence or, in the
final instance, termination. See, e.g., pages 387, 1098. Similarly, employees do not normally
have a reasonable expectation of privacy in e-mail correspondence conducted on the employer's
computer network. See Holmes v. Petrovich Development Co. LLC (2011) 191 Cal.App.4* 1047,
1068.
Even assuming arguendo that third party employees have some potential rights of privacy
in plaintiffs personnel records, the evidence submitted by Dignity does not meet the foregoing
10 standards. Paragraph 16 of the Declaration of Maggie Vega states, in essence, that information
11 conveyed by one employee about another is treated as confidentially as possible. This falls far
12 short of establishing that the reporting employee has a reasonable expectation of privacy in what
13 is reported, or that any of the statements of third parties regarding plaintiff disclose private
14 information about the reporting parties themselves, disclosure of which constitutes a serious
15 intrusion. The Referee’s examination of the records discloses no such serious intrusions. See,
16 €.g., pages 68, 191, 192, 203, 208, 215, 219, 227, 248-249, 250. It is to be expected that Dignity
17 will use such statements to prove its discharge of plaintiff was justified. /bid. This being the case. s
18 there is little reason to inhibit plaintiff's use of them, for example, in the depositions of the
19 witnesses who made such statements.
20 F. DIGNITY HAS NOT SHOWN THAT ITS DOCUMENT PRODUCTION CONTAINS
21 CONFIDENTIAL COMMERCIAL INFORMATION.
22 Dignity maintains that the great preponderance of the 3120 pages of documents it has
23 produced and 171 of the 179 pages of documents produced by plaintiff contain confidential
24 commercial information, disclosure of which should be limited by the SPO. See generally,
25 Dignity’s Index. The SPO defines CONFIDENTIAL INFORMATION, as applied to
26 commercial property, as “confidential, trade secret, and/or proprietary information .. . “
27 Shelby Dec., paragraph 2, Exhibit 1, 2:17. A trade secret is statutorily defined as
28
10
“information, including a formula, pattern, compilation, program, device, method, technique,
or process, that: (1) Derives independent economic value, actual or potential, from not being
generally known to the public or to other persons who can obtain economic value from its
disclosure or use; and (2) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.” Civil Code section 3426.1(d). As aforementioned,
the referee has examined all pages produced by the parties. For the following reasons, none
of the categories of allegedly commercial information identified by Dignity in its points and
authorities are found to meet the definition of CONFIDENTIAL INFORMATION.
1. The Documents Do Not Contain Commercially Sensitive Information.
10 The referee accepts Dignity’s assertion that protective orders may issue not only to protect
1 trade secrets, but also “highly sensitive commercial information,” such as a reinsurance
12 agreement between insurance carriers. See Fireman’s Fund Ins. Co. v. Superior Court (1991)
13 233 Cal. App. 3d 1138, 1141. Initially, it must be pointed out that many of the documents labeled
14 “C” in Dignity’s Index cannot possibly meet this description and cannot have been so designated
15 in good faith. For example, pages 13 and 14 are government publications issued by the United
16 States Department of Labor. Pages 138-182 are a collective bargaining agreement which by
17 definition was created and adopted by Dignity and the contracting unions.
18 Somewhat more plausibly, Dignity argues that its policies and procedures, some of which
19 appear in the document production, meet this description. See Opening Memorandum, 16:25-
20 18:2. The referee disagrees, and finds persuasive the analysis set forth in Mitchell v. Home Depot
21 U.S.A, 2012 U.S. Dist. LEXIS 82562 (W.D. Ky. 2012). In that case Home Depot requested that
22 its standard operating procedures (SOPs) and training videos remain confidential. The materials
23 included sections on Critical Operating Safety Standards, Safe Work Practices, and Managing
24 Live Goods. /d. at *3. There, as here, Home Depot argued it had invested a great deal of time
25 and money creating the materials, access was allowed only through a secure intranet, and that
26 employees were informed that the policies and procedures were confidential. Id. at *6-7. The
27 opinion collected other similar cases, including a prior one involving Home Depot, in which the
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court concluded that a generalized claim of harm was insufficient to justify a protective order. /d.
at “11-14, citing, among others, Braack v. Home Depot U.S.A. 2007 U.S. Dist. LEXIS 52967 (.
The Mitchell court denied the protective order, stating as follows:
“... this Court can find nothing unique or distinctive about [*15] the safety
procedures or methodologies outlined in the portions of Home Depot's SOPs at
issue. Further, the Court cannot discern any competitive advantage to be
gained by Home Depot by virtue of the confidentiality of these SOPs and
employee training materials related to safely stacking and displaying
merchandise . . . That other competitors may adopt Home Depot's safety
policies without incurring the associated expenses does not constitute a ‘clearly
defined and very serious injury.” Mitchell at *14-15.
So too, in this case, there appears nothing unique or distinctive about Dignity's policies
10
and procedures contained in the productions. Some simply recite or paraphrase existing
14
employment law. See, e.g., pages 464-465, Rest and Meal Periods. There is no perceived
12
competitive advantage conferred by these documents, and it is hard to conceive that the
13
economic position of any competitor hospital would be improved by acquiring them.
14
The cases cited by Dignity are distinguishable. In Republic Servs., Inc. v. Liberty Mut. Ins.
15
Co., 2006 WL 1635655 (E.D. Ky. 2006), Liberty asserted that its claims handling and training
16
materials were of independent economic value to it, that these materials were unique creations of
17
the company, and were among its most valuable competitive assets. “In short, Liberty says that
18
these materials are af the very core of its strategies in competitively conducting its business.” /d.
19
at “10; emphasis supplied. The court agreed, and it is easy to see why. Receiving, evaluating,
20
and paying claims is at the core of any insurer's business. Not only would competitors benefit
21
from knowing Liberty's claims handling methods, but so would claimants and their lawyers. So
22
too, in Gohler v. Wood, 162 F.R.D. 691, 697 (D. Utah 1995), the contested audit practice manuals
23
went to the core of Deloitte's business, the provision of accounting services to its clients. By
24
contrast, Dignity's core business is not creating administrative or personnel policies. Rather, it is
25
treating patients, and none of the policies and procedures claimed as confidential disclose any
26
secrets Dignity uses in so doing.
27
i
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2. The Documents Are Part Of Plaintiff's Personnel Records
Dignity argues specifically that certain designated documents, including policies and
procedures and employee benefit information, are not just confidential, but constitute trade
secrets. See Opening Memorandum, 17:14-18:2. For reasons set forth above the referee
disagrees, but even if the court should conclude otherwise, the documents listed appear to be part
of plaintiff's personnel file, or were records upon which Dignity relied in relation to plaintiff's
employment. For example, the Time and Attendance Policy (183-186) appears to have been
included to support Corrective Action Forms documenting plaintiff's tardiness or absence (e.g.,
126-127). The Unprofessional/Disruptive Behavior Policy (244-246), which contains highlights
10 inferentially applicable to plaintiff, is adjacent to pages 247-262, which arguably document such
11 behavior. The Disciplinary Action Reports at 550-551 are almost certainly part of plaintiff's
12 personnel file; they bear receipt stamps of the Human Resources Department. The same is true
13 of the Job Description and Competency Evaluation at 689-712 which pertains to plaintiff and no
14 one else. There appears to have been no wholesale production of all Dignity's administrative,
18 operational, or personnel policies. Only those applicable to plaintiff's behavior, requests for leave,
16 and the like have been included. As shown above, any privacy right in these documents is held
17 by plaintiff. She could have and can now examine them without restriction. See Labor Code
18 section 1198(a). It follows they are neither trade secrets nor confidential.
19 3. Dignity Has Not Used Reasonable Efforts To Maintain Secrecy.
20 To maintain a trade secret the party claiming it must have used reasonable efforts under
21 the circumstances to maintain its secrecy. See Civil Code section 3426.1(d). While the parties
22 have cited no authority applying this requirement to confidential information which is not a trade
23 secret, the referee can think of ne reason why it should not apply. The parties do not expressly
24 contend otherwise.
25 Dignity contends it has made reasonable efforts in part because of its adoption and use of
26 a program called PolicyManager. Opening Memorandum, 19:17-20:5, citing the Declaration of
27 Laurie Schwartz (Schwartz Dec.), paragraphs 7, 9, 11, 12, 14, and Declaration of Maggie Vega
28
13
(Vega Dec.), paragraph 5. An examination of this declaration testimony reveals that it describes
general measures provided by PolicyManager to protect electronically stored information. Nothing
in these declarations identifies even one page of the produced documents whose confidentiality is
protected by PolicyManager. The relevance of this program to this motion remains a mystery.
Dignity also contends that it educates employees regarding the need to maintain
confidentiality, stating “this fundamental is expressed in dozens of Dignity Health policies and
communications.” Opening Memorandum, 20:12-13, citing Vega Dec., paragraph 5. Ms. Vega
identifies one, the acknowledgement signed by Sands attesting that she has read and will comply
with CHW's network usage policy. Vega Dec., paragraph 5, page 448 (actually 449). The
10 acknowledgement in part states that plaintiff “must actively protect these informational resources
1 from unauthorized disclosure, modification, deletion, and usage.” /bid. The network usage policy
12 itself, described as consisting of 11 pages, does not appear in the produced records. Vega Dec.,
13 paragraph 6. The acknowledgement does not describe the “informational resources’ to which it
14 refers or what makes a disclosure, modification, or usage “unauthorized.” In sum, this boilerplate
15 document does nothing to inform an employee in plaintiffs position of what she must do to keep
16 Dignity's confidential information confidential.
17 Whether the party claiming that documents contain trade secrets or confidential information
18 has made reasonable efforts under the circumstances to keep the information secret involves a
19 multi-point factual analysis which includes whether the documents were marked as confidential.
20 See CAC! 4404. Ms. Schwartz testified under penaity of perjury, through a declaration
24 presumably prepared by Dignity's attorneys, that “[iJn most circumstances, Dignity Health's
System Policies are endorsed at the bottom of each page as ‘For Internal Use Only’, ‘copyright’ or
23 words to that effect.” Schwartz Dec., paragraph 8. While there may be Dignity system policies
24 which do contain such an endorsement, as to the documents produced in this case the statement
25 is demonstrably false. The referee has found one document only, concerning FMLA leave, pages
26 425-426 and 3045 - 3046, which has a pre-termination footer containing a copyright claim and the
27 words “for internal use only.” One other document contains a footer in a tiny, imperceptible font
28
14
claiming confidentiality. See Maternity Nursing Post Partum Policy, pages 2318-2325. There may
be others, but the vast majority of the listed policies Dignity claims at 17:14-27 of its Opening
Memorandum constitute trade secrets or confidential information contain no such language. See
Tuition Assistance, 82-86; Corrective Action Forms, 126-127; Time and Attendance, 183-187;
Investigation Form, 204; Disciplinary Action Report, 205; SBAR Counseling Form, 206;
Requesting Time Off Policy, 209-211; Coordination of Patient Care, 238-241; Rules of Conduct
Policy, 242-243; Unprofessional/Disruptive Behavior, 244-246; Employee Handbook, 392-424:
Rest and Meal Policy, 464-465; Disciplinary Action Report, 550-551; Job Description and
Competency Evaluation, 689-712; Nursing Orientation Policy, 808; Attendance Policy, 826-828;
10 Disciplinary Process, 866-872; Standards of Behavior Policy, 1150-1155; Collective Bargaining
1 Agreement, 2544-2588 Even the words “copyright” and “for internal use only” do not put the
12 reader on notice that the document must be kept confidential. Novels are routinely copyrighted,
13 but are as widely distriouted and sold as possible. “For internal use only” is not synonymous with
14 “confidential,” and no reader could be expected to think so.
15 There are footers claiming confidentiality, but these are dated after plaintiff's termination.
16 See, e.g., Workplace Violence Prevention Etc., pages 490- 498, footer dated 6/4/18; pages 1257-
17 1265, footer dated 8/10/18; pages 2209-2217, footer dated 8/21/19. Disciplinary Action Report,
18 550-551, footer dated 6/4/18. Other post-termination footers do not claim confidentiality, even
19 though Dignity claims such documents are confidential. See, e.g., Rest and Meal Policy, 464-465.
20 These footers appear to have been created to mark and paginate the documents for post-
21 termination activity whose nature is not disclosed by the papers filed in support of and against the
motion. There is no evidence these footers claiming confidentiality appeared on such documents
23 during plaintiff's employment.
24 The lack of marking on each document that it is confidential is significant because of the
25 dearth of information which would allow Sands or any other employee to determine, on a page by
26 page basis, what she needed to keep secret. As shown above, the acknowledgement of receipt
27 of the usage policy is of no help in this regard. The other place guidance is found is in the portion
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of the Employee Handbook titled Confidential Information. See page 422. The pertinent language
is terse and general: “Information concerning patients, employees, and the affairs of St. Joseph's
{including personnel matters) are to be observed as confidential.” That’s it. There is nothing
which would allow an employee to conclude, for example, that the Tuition Assistance Program fell
under this rule. St. Joseph's human resources policies and administrative policies are not
described as confidential. No specific policies or procedures are so described. Even the
Handbook itself is not claimed as confidential. No reasonable employee would conclude she was
prohibited from showing it to her husband or discussing its terms with her friends. Where, as here,
an employee reading a Dignity policy cannot tell from the document itself that she must keep its
10 contents confidential, there has not been a reasonable effort to maintain secrecy.
1 In sum, the referee concludes that, assuming arguendo any of the produced documents
12 coded “C” in the Index were ever in fact confidential, Dignity has failed to show that it used
13 reasonable efforts under the circumstances to maintain such confidentiality.
14 4. Matrix Documents Do Not Disclose Confidential Information.
15 Dignity has used Matrix, an outside vendor, to process employee claims for statutory
16 leaves, and that Dignity is not free to disclose Matrix’s confidential information. Opening
17 Memorandum, 21:3-12. Whether this contention is true or not is immaterial. None of the letters
18 and forms authored or created by Matrix in response to plaintiff's multiple requests for leave
19 disclose its procedures, methods, evaluation criteria, or other proprietary information. See, e.g.,
20 pages 2378-2393, 2401-2406, 2409-2414, 2420-2438, 2442-2456. None of these documents is
21 marked confidential. /bid. No declaration is submitted from any Matrix representative claiming
22 confidentiality in any of the produced documents.
23 G CONCLUSION
24 The undersigned began this task knowing that Dignity contended virtually all produced
25 documents are confidential, that Sands responded none are, and concluded preliminarily that the
26 truth must lie somewhere in between. First impressions can be deceiving, and this one was. An
27 examination of the declarations submitted by the parties, the law cited by them and consulted by
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the referee, and the documents themselves leads to the conclusion that plaintiff is correct, and
Dignity has failed to carry its burden to show that any of the documents listed in its Index should
retain their confidential designation. The ruling is therefore that the motion is denied in its entirety.
IV.
APPORTIONMENT OF REFEREE’S FEE
The statute governing for motions for protective orders in connection with demands for
inspection makes monetary sanctions mandatory unless the court finds the court finds the one
subject to the sanction acted with substantial justification or that other circumstances make the
imposition of the sanction unjust. CCP section 2031.060(h). In this case, plaintiff would certainly
10 have been awarded sanctions had she requested them properly. She did not. No lawyer or party
11 was identified against whom sanctions were sought. See CCP section 2023.040. No declaration
12 was submitted setting forth an hourly attorney's fee rate and hours spent, upon which a monetary
13 sanction could be based.
14 Had such sanctions been requested and ordered, the ruling would likely be that the parties
15 shall pay the referee’s fee equally. However, in view of the lopsided result reached here an equal
16 division, combined with the absence of sanctions, would work an injustice. Therefore, in
17 accordance with paragraph 3 of the Order filed November 5, 2020, the ruling will be that the
18 referee's fee be paid solely by Dignity.
19 Vv.
20 RECOMMENDED RULING
21 For reasons set forth above, the proposed tecommended ruling is Dignity Health’s
22 Motion To Maintain Confidentiality Designation Under Stipulated Protective Order is DENIED.
23 Vi.
24 FURTHER RECOMMENDED RULING
25 The Discovery Referee spent 31.5 hours examining the moving, opposition, and reply
26 papers, conducting a telephone conference with the parties, analyzing the authorities cited by
27 the parties, conducting independent legal research, examining in camera the approximately
28
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3300 pages of documents produced by the parties in response to discovery requests, and
preparing this ruling. An additional .6 hours was spent preparing this Recommended Ruling.
At $350 per hour, this creates a total fee of $11,200.00, to be paid solely by defendant Dignity
Health within 14 days following mailing of notice of the order regarding the Discovery Referee’s
Recommended Ruling.
Dated: December 7, 2020
OR MA
7 J. ANTHONY ABBOTT
DISCOVERY REFEREE
10 ORDER
1 The Recommended Ruling of the Discovery Referee having been considered, and good
12 cause appearing therefor,
13 IT IS ORDERED, that defendant Dignity Health's Motion To Maintain Confidentiality
14 Designation Under Stipulated Protective Order be and is hereby DENIED.
15 IT IS FURTHER ORDERED, that the Discovery Referee’s fee of $11,200.00 be and is
16 hereby approved, to be paid solely by defendant Dignity Health within 14 days following
17 mailing of notice of the order regarding the Discovery Referee’s Recommended Ruling.
18 DATED:
19
Dec 28, 2020 08:53 AM
DD
2 JUDGE br THE SUPERIOR COURT
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Sands vs. Dignity Health
San Joaquin County Superior Court Case No.: STK-CV-UWT-2019-6970
PROOF OF SERVICE
I, the undersigned, certify and declare as follows:
lam over the age of eighteen years and not a party to this action, My business address is 5874
North Alpine Road, Stockton, California 95215 that is located in the county where the mailing and/or
delivery below took place.
On December 7, 2020, I served the following document:
DISCOVERY REFEREE’S RECOMMENDED RULING ON DEFENDANT DIGNITY HEALTH DBA
ST. JOSEPH’S MEDICAL CENTER'S MOTION TO MAINTAIN CONFIDENTIALITY
DESIGNATION UNDER STIPULATED PROTECTIVE ORDER; ORDER
addressed to:
10 Lawrance A. Bohm Kimberley A. Worley
Kelsey K. Ciarimboli ATKINSON, ANDELSON, LOYA, RUUD &
11 Daniel T, Newman ROMO
122
BOHM LAW GROUP, INC. 2151 River Plaza Drive, Suite 300
4600 Northgate Blvd., Suite 210 Sacramento, CA 95833
13 Sacramento, CA 95834 Email: Kimberley.worley@aalrr.com
Email: Ibohm@bohmlaw.com Attorneys for Defendant
14 kciarimboli@bohmla’ com
dnewman@bohmlaw.com
15 Attorneys for Plaintiff
16
17 M BY EMAIL: Based on an agreement of the parties to accept service by e-mail or electronic
transmission, I caused the documents to be sent to the person[s] at the e-mail address[es] listed above.
18 1 did not receive, within a reasonable time after the transmission, any electronic message or other
indication that the transmission was unsuccessful.
19
I certify and declare under penalty of perjury under the laws of the State of California that the
20 foregoing is true and correct.
21 Executed on December 7, 2020, at Stockton, California.
“)
2
23 J. ANTH ABBOTT
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Proof
of Service - 1
Preview
RECEIVED J. Anthony Abbott (SBN 83975) FILED 15:15:58 5874 North Alpine Road SUPERIOR COURT Stockton, CA 95215 Brandon E. Riley, Clerk Telephone: (209) 482-0596 jaadiscref@outlook.com Rocio Pimentel December 28, 2020 DISCOVERY REFEREE SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN JOAQUIN REBECCA SANDS, Case No. STK-CV-UWT-2019-6970 10 Assigned to Hon. Roger Ross, Dept. 11B Plaintiff, 11 DISCOVERY REFEREE’S RECOMMENDED 12 VS. RULING ON DEFENDANT DIGNITY HEALTH DBA ST. JOSEPH’S MEDICAL CENTER'S 13 MOTION TO MAINTAIN CONFIDENTIALITY DESIGNATION UNDER STIPULATED 14 DIGNITY HEALTH, dba ST. JOSEPH’S PROTECTIVE ORDER; ORDER MEDICAL CENTER, and DOES 1 through 10, 16 inclusive, Submission Date: November 17, 2020 Action Filed: May 31, 2019 16 Trial Date: September 13, 2021 Defendants. 17 18 19 I 20 OVERVIEW 21 22 By order filed November 5, 2020, the undersigned was appointed as Discovery 23 Referee. Defendant Dignity Health, dba St. Joseph’s Medical Center (hereinafter defendant or Dignity) moves to maintain its confidentiality designation regarding approximately 3300 pages 24 of documents produced by Dignity and plaintiff Rebecca Sands (hereinafter plaintiff or Sands) 25 26 pursuant to discovery requests. Sands opposes the motion as to all designated documents. 27 Neither side requests sanctions against the other. 28 i. FACTS Plaintiff's operative pleading is the verified First Amended Complaint (FAC) filed July 25, 2019. The FAC alleges, in essence, that on February 20, 2018, Sands was unlawfully terminated from her employment as a Licensed Vocational Nurse with Dignity. The FAC sets forth nine causes of action: 1) adverse action in violation of public policy; 2) interference with rights conferred on plaintiff by the California Family Rights Act; 3) FEHA retaliation; 4) sex and pregnancy discrimination; 5) disability discrimination; 6) failure to engage in the interactive process; 7) failure to accommodate; 8) failure to prevent discrimination and retaliation, and 9) 10 violation of Labor Code sections 98.6 and 1102.5. 11 Defendant's verified answer, filed October 10, 2019, denied the charging allegations of 12 the FAC and asserted 51 affirmative defenses. Dignity does not contend any of these 13 defenses bear on the resolution of this motion. 14 In January 2020, apparently in response to plaintiff's initial demand for inspection, 15 Dignity proffered and the parties ultimately entered into a stipulated protective order (SPO), 16 which the court adopted by order filed January 23, 2020. Declaration of Lauren B. Shelby 17 (Shelby Dec.), paragraph 2, Exhibit 1. The SPO provides, among other things, that documents 18 deemed confidential by a producing party be marked as such prior to production. /d., SPO 19 paragraph 4. The SPO also provides that the requesting party may serve a written objection to 20 the confidential designation, and the producing party then has 30 days to 1) agree to de- 21 designate, or 2) file a motion to retain the confidential designation. Id., SPO paragraph 5. 22 There is no time limit for making the written objection, Ibid. The moving party (i.e. the 23 designating party) has the burden to establish the applicability of its confidential designation. 24 Ibid. 25 Thereafter, in January and April, 2020, in response to a plaintiffs demand for 26 inspection, Dignity served a total of 3,120 pages of responsive documents, each page of which 27 was marked “confidential information.” Shelby Dec., paragraph 5. 28 On June 30, 2020, Dignity noticed plaintiff's deposition for August 7, 2020. Declaration of Kimberley A. Worley (Worley Dec.), paragraph 5. On July 2, 2020, plaintiff served her initial objections to Dignity’s confidential designations, asserting that none of the produced documents was in fact confidential. id., paragraph 6, Exhibit 2. There followed meet and confer efforts conducted by e-mail which resulted in neither party modifying her/its position. Id., paragraphs 7, 8, 9, Exhibits 3, 4, 5. On July 20, 2020, Dignity designated 171 pages of plaintiff's prior document production as confidential. /d., paragraph 10, Exhibit 6. On July 21, 2020, plaintiff served her second objections to Dignity’s confidential designations regarding the documents she had produced. Id., paragraph 11, Exhibit 7. Dignity served an Index of 10 Confidential Documents (Index) on August 18, 2020, coding for each document the reason(s) it 11 should remain confidential. /d., paragraph 18. This document is one of the papers submitted 12 in support of the motion. The parties agreed to extend time to file this motion to September 8, 13 2020. /d., paragraph 17. 14 This motion was filed September 1, 2020. Plaintiff does not contend the motion is 15 untimely or that notice was improper. On November 9, 2020, the Referee downloaded the 16 moving, opposition, and reply papers and informed the parties there was no need to submit 17 them. Pursuant to paragraph 3 of the court’s order filed November 5, 2020, and following the 18 Referee’s initial examination of the downloaded papers, the Referee conducted a conference 19 call with the parties on November 12, 2020, to discuss the scope of work. The Referee 20 determined that depending on the results of his examination of the authorities submitted by the 21 parties, an in camera review of the designated documents may be required. This resulted in 22 the electronic submission later that day of some the documents in issue. The rest of the 23 documents were submitted on November 17, 2020, which was therefore selected as the 24 submission date on the motion. See Order filed November 5, 2020, paragraph 5c. The parties 25 have agreed by exchange of electronic messages that the Proposed Recommended Ruling 26 and Recommended Ruling may be served by electronic mail only. 27 28 The Proposed Recommended Ruling was served November 25, 2020. Neither party has requested a hearing before the referee. tl. DISCUSSION The parties agree that the statutory basis for this motion is CCP section 2031.060(b), which provides for motions for protective orders in connection with demands for production of documents. See Opening Memorandum, 9:19-21; Opposition Memorandum, 4:27-5:9. That section, in pertinent part, reads as follows: “(b) The court, for good cause shown, may make any order that justice requires 10 to protect any party or other person from unwarranted annoyance, 11 embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: . 12 13 (4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions. 14 (5) That a trade secret or other confidential research, development, or 15 commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way... .” 16 17 A motion for protective order may be made even after the requested documents have been 18 produced. See Stadish v. Superior Court (1999) 71 Cal.App.4 1130, 1144. Here, of course, the 19 protective order upon which the motion is based pre-existed Dignity’s document production, and 20 the issue presented is which documents, if any, shall retain the confidential designation. 21 Consistent with the SPO, the case law states the party seeking the protection of the order bears 22 the burden of showing good cause therefor. /d. at 1145. 23 Dignity bases its confidentiality designations on one or more of 5 factors: 1) patient privacy 24 under the Health Insurance Portability and Accountability Act of 1996 (HIPAA); 2) patient safety 25 work product privilege (Evidence Code section 1157; 3) plaintiffs privacy; 4) privacy of third 26 parties, primarily Dignity employees; and 5) confidential commercial property. See Index, 2:1-6. 27 Dignity seeks an “umbrella” order that all 3,120 pages of documents it has produced, and 171 of 28 the 179 pages plaintiff has produced, shall remain confidential. The Referee has examined these Pages in camera, although admittedly each was not read word for word. The rulings on the umbrella request and on each of the five grounds for retaining the confidential designation are as follows: A DIGNITY’S REQUEST FOR AN UMBRELLA ORDER IS DENIED. The only California case cited by Dignity in its request for an umbrella order is Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4" 261. The opinion in that case stopped well short of a full-throated endorsement of such orders, merely assuming that in some circumstances they may be appropriate. /d. at 318. The court in that case found the evidentiary 10 support for the trial court's order covering all documents lacking and reversed the “sweeping 11 protective order” as an abuse of discretion. /d. at 319. The two federal cases cited by Dignity 12 involved complex litigation—not the situation here. In Re Alexander Grant & Co, Litigation (41 13 Circuit 1987) 820 F.2d 352, involved 40,000 pages of discovery documents whose disclosure was 14 sought by a non-party newspaper over an “umbrella” protective order to which the parties to the 15 case had agreed. In denying access, the court pointed out that private documents exchanged in 16 discovery are not “judicial records” to which the requesting parties were entitled to access under 17 common law or the First Amendment, and under the facts of that case the district court's order 18 was within its discretion. /d. at 355-357. In Cipolloni v. Liggett Group, Inc. (1986) two 19 consolidated tobacco products liability cases, the court stated that the district court could make an 20 order requiring a showing “document by document” by the party seeking protection or, equally 21 appropriate, issue an “umbrella” order, following which objections could be interposed by the non- 22 designating party. Jd. at 1121-1122. In the latter case, the burden would still be on the 23 designating party to justify the protective order, which is exactly the case here. /d. at 1122. The 24 court opined the “umbrella” approach has advantages in the complex case. Ibid: emphasis 25 supplied. The appellate court in no way required an umbrella order, to say nothing of approving 26 its use in a case which does not meet the complex case criteria. See Cal. Rules of Ct., Rule 27 3,400. 28 Dignity argues that it has relied on the SPO, and this representation is accepted by the Referee. It argues in turn that the SPO should not be modified. No modification is requested by Sands. Rather, the objection she made is expressly authorized by paragraph 5 of the SPO, and Dignity is required to do no more than the SPO requires to justify its designations. Dignity avers that plaintiff has not shown that the presentation of her case would be impaired by designating all produced documents confidential. She is not required to do so. Itis Dignity’s burden to support its designations, not plaintiff's to show prejudice therefrom. Further, the terms of the SPO place substantial, self-evident limitations on the use of confidential information in this action. See SPO, paragraphs 6, 8, 9, 10, 12. 10 That plaintiff's law firm has filed other actions against Dignity does not make confidential 11 documents which would not be if Sands’ lawyer were filing his or her first case against Dignity. 12 Whether a document is properly designated confidential cannot depend on the identity or litigation 13 history of the requesting lawyer, or whether Dignity fears non-confidential information may be 14 used against it in future cases filed by the same firm. Dignity cites no case to the contrary. 15 Neither is Dignity entitled to special consideration of its claims of confidentiality solely because of 16 the nature of its business. See Opening Memorandum, 12:10-13:17. 17 Turning to the substance of this case, the Referee finds that an umbrella order would be 18 particularly inappropriate because, for reasons which follow, Dignity has failed to carry its burden 19 to justify its confidential designation as to any of the documents it and plaintiff have produced. 20 B NONE OF THE DOCUMENTS PRODUCED CONTAIN INFORMATION WHOSE 21 DISCLOSURE IS PROHIBITED BY HIPAA. 22 The parties agree that HIPAA prevents disclosure of Protected Health Information (PHI), 23 defined as “individually identifiable health information transmitted or maintained in any form or 24 media.” Opening Memorandum, 14:9-15, Opposition Memorandum, 11:3-10, each citing 45 25 C.F.R. section 160.103. Dignity cites specific documents by page number it alleges contain such 26 information. See, e.g., Index, pages D1-D-4, D-3048. One wonders, given HIPAA’s strictures, 27 why such pages were disclosed even with a confidential designation. The Referee has examined 28 the documents produced by the parties, including those coded “A” (HIPAA patient privacy) in the Index, and has found no such information. Where patient information appeared, appropriate redactions were made. See, e.g., pages 197-198, 222, 224. If Dignity believed PHI was disclosed anywhere in the document productions of the parties, the Referee invited it to request a hearing before the Referee pursuant to paragraph 7 of the order filed November 5, 2020, and prior to the hearing specify in writing, in confidence, each page and line number (if applicable) which it contends contains PHI, and the specific individually identifiable health information disclosed. No such specification has been received. c NONE OF THE DOCUMENTS PRODUCED CONTAIN INFORMATION WHOSE 10 DISCOVERY IS PROHIBITED BY EVIDENCE CODE SECTION 1157. 11 Evidence Code section 1157 protects from discovery proceedings and records of medical 12 peer review committees and other similar bodies. The parties do not significantly disagree on the 13 scope of protection provided by this section. See Opening Memorandum, 15:11-21 and citations; 14 Opposition Memorandum, 10:11-18 and citations. Dignity cites specific documents by page 15 number it alleges contain such information. See, e.g., Index, pages D-1 to D-4. Again, the 16 question arises why such documents were produced at all. The Referee has examined the 17 documents produced by the parties, including those coded “B” (Patient Safety Work Product 18 Privilege) in the Index, and has found no such information. If Dignity believed such information 19 was disclosed anywhere in the document productions of the parties, the Referee invited it to 20 request a hearing before the Referee pursuant to paragraph 7 of the order filed November 5, 21 2020, and prior to the hearing specify in writing, in confidence, each page and line number (if 22 applicable) which it contends sets forth records or proceedings within the ambit of Evidence Code 23 section 1157, identifying with specificity the peer review body and proceeding involved, and the 24 specific protected information disclosed. No such information was received. 25 I 26 W 27 28 D PLAINTIFF HAS WAIVED HER PRIVACY RIGHTS IN THE RECORDS PRODUCED. Sands has a qualified privacy interest in the confidential personnel records of her employment with Dignity. See Weil & Brown, et. al., Cal. Pract. Guide: Civ. Pro. Before Trial (The Rutter Group 2020) section 8:308, citing Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528-530. Although Dignity may be the custodian of such records, the holder of the privacy interest is plaintiff herself. See Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 821; see also, Labor Code section 1198.5(a), allowing the employee to inspect and receive her personnel records. Dignity cites no authority that it may retain the confidentiality of such records 10 over the employee’s objection. By opposing Dignity’s confidential designation of her personnel 1 records Sands has waived any claim that these records should remain private. 12 Dignity’s concern that unless the records retain their confidentiality designation plaintiff will 13 use them to concoct a defamation claim appears speculative. Dignity has not, and cannot be 14 expected to, point out statements in plaintiff's personnel records which are arguably defamatory. 15 However, even assuming such statements exist, the general rule is “[a] plaintiff cannot 16 manufacture a defamation cause of action by publishing the [defamatory] statements to third 17 persons; the publication must be done by the defendant.” Live Oak Publishing Co. v. Cohagan 18 (1991) 234 Cal.App.3d 1277, 1284. The exception is when the plaintiff is under strong pressure to 19 disclose the statement to a third person, and the defendant knew or should have known plaintiff 20 was under such pressure. See CACI 1708, citing Davis v. Consolidated Freightways (1994) 29 21 Cal.App.4" 354, 373. “This exception has been limited to a narrow class of cases, usually where 22 a plaintiff is compelled to republish the statements in aid of disproving them. Thus, where a 23 derogatory statement is placed in a personnel file, the employee must explain the statement to 24 subsequent employers, who will surely learn of it if they investigate his or her past employment.”! 25 26 1 This last statement appears doubtful in light of the modern practice for former employers to disclose only 27 dates of employment and positions held. 28 Live Oak Publishing Co. at 1285. If this is the case here (and no reason appears in the record to suppose it is) Dignity should not be able to escape liability by forcing plaintiff to keep the defamation in confidence. Conversely, if plaintiff is under pressure to disclose the alleged defamation, say, to a future employer, and the confidential designation would allow her to resist effectively such pressure, by opposing the confidentiality designation she will have taken herself out of the exception. E DIGNITY HAS NOT ESTABLISHED THAT REMOVING THE CONFIDENTIAL DESIGNATION WILL VIOLATE THE PRIVACY RIGHTS OF THIRD PARTIES. Dignity asserts that the records produced contain private information regarding its 10 employees other than plaintiff, which justifies its confidential designations. See Opening 11 Memorandum, 24:9-25:15. As before, if this is the case, why did Dignity disclose these records to 12 plaintiff, even with the confidential designation, thereby violating the rights of such employees? 13 The question is not answered. In any case, Dignity has not established that such privacy rights 14 exist with respect to the records in issue. 15 “The party asserting a privacy right must establish a legally protected privacy interest, an 16 objectively reasonable expectation of privacy in the given circumstances, and a threatened 7 intrusion that is serious.” Williams v. Superior Court (2017) 3 Cal.5th 531, 552, citing Hill v. 18 National Collegiate Athletic Assn., (1994) 7 Cal.4" 1, 35. Only after the party asserting the privacy 19 interest meets this burden does the court weigh the countervailing interest of the party seeking 20 discovery. See Williams at 557. “[W]hether a legally recognized privacy interest exists is a 21 question of law, and whether the circumstances give rise to a reasonable expectation of privacy 22 and a serious invasion thereof are mixed questions of law and fact.” Pioneer Electronics (USA) 23 Inc. v. Superior Court (2007) 40 Cal.4" 360, 370, citing Hill v. National Collegiate Athletic Assn. 24 (1994) 7 Cal.4" 1, 40. “[T]he invasion of privacy complained of must be ‘serious’ in nature, scope, 25 and actual or potential impact to constitute an ‘egregious' breach of social norms, for trivial 26 invasions afford no cause of action.” Pioneer at 371, citing Hill at 37. 27 28 The Referee concludes that the appearance of names of third party employees in records such as work schedules does not qualify as private information. The same is true where the fellow employee simply authors and signs letters to plaintiff regarding leaves of absence or, in the final instance, termination. See, e.g., pages 387, 1098. Similarly, employees do not normally have a reasonable expectation of privacy in e-mail correspondence conducted on the employer's computer network. See Holmes v. Petrovich Development Co. LLC (2011) 191 Cal.App.4* 1047, 1068. Even assuming arguendo that third party employees have some potential rights of privacy in plaintiffs personnel records, the evidence submitted by Dignity does not meet the foregoing 10 standards. Paragraph 16 of the Declaration of Maggie Vega states, in essence, that information 11 conveyed by one employee about another is treated as confidentially as possible. This falls far 12 short of establishing that the reporting employee has a reasonable expectation of privacy in what 13 is reported, or that any of the statements of third parties regarding plaintiff disclose private 14 information about the reporting parties themselves, disclosure of which constitutes a serious 15 intrusion. The Referee’s examination of the records discloses no such serious intrusions. See, 16 €.g., pages 68, 191, 192, 203, 208, 215, 219, 227, 248-249, 250. It is to be expected that Dignity 17 will use such statements to prove its discharge of plaintiff was justified. /bid. This being the case. s 18 there is little reason to inhibit plaintiff's use of them, for example, in the depositions of the 19 witnesses who made such statements. 20 F. DIGNITY HAS NOT SHOWN THAT ITS DOCUMENT PRODUCTION CONTAINS 21 CONFIDENTIAL COMMERCIAL INFORMATION. 22 Dignity maintains that the great preponderance of the 3120 pages of documents it has 23 produced and 171 of the 179 pages of documents produced by plaintiff contain confidential 24 commercial information, disclosure of which should be limited by the SPO. See generally, 25 Dignity’s Index. The SPO defines CONFIDENTIAL INFORMATION, as applied to 26 commercial property, as “confidential, trade secret, and/or proprietary information .. . “ 27 Shelby Dec., paragraph 2, Exhibit 1, 2:17. A trade secret is statutorily defined as 28 10 “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Civil Code section 3426.1(d). As aforementioned, the referee has examined all pages produced by the parties. For the following reasons, none of the categories of allegedly commercial information identified by Dignity in its points and authorities are found to meet the definition of CONFIDENTIAL INFORMATION. 1. The Documents Do Not Contain Commercially Sensitive Information. 10 The referee accepts Dignity’s assertion that protective orders may issue not only to protect 1 trade secrets, but also “highly sensitive commercial information,” such as a reinsurance 12 agreement between insurance carriers. See Fireman’s Fund Ins. Co. v. Superior Court (1991) 13 233 Cal. App. 3d 1138, 1141. Initially, it must be pointed out that many of the documents labeled 14 “C” in Dignity’s Index cannot possibly meet this description and cannot have been so designated 15 in good faith. For example, pages 13 and 14 are government publications issued by the United 16 States Department of Labor. Pages 138-182 are a collective bargaining agreement which by 17 definition was created and adopted by Dignity and the contracting unions. 18 Somewhat more plausibly, Dignity argues that its policies and procedures, some of which 19 appear in the document production, meet this description. See Opening Memorandum, 16:25- 20 18:2. The referee disagrees, and finds persuasive the analysis set forth in Mitchell v. Home Depot 21 U.S.A, 2012 U.S. Dist. LEXIS 82562 (W.D. Ky. 2012). In that case Home Depot requested that 22 its standard operating procedures (SOPs) and training videos remain confidential. The materials 23 included sections on Critical Operating Safety Standards, Safe Work Practices, and Managing 24 Live Goods. /d. at *3. There, as here, Home Depot argued it had invested a great deal of time 25 and money creating the materials, access was allowed only through a secure intranet, and that 26 employees were informed that the policies and procedures were confidential. Id. at *6-7. The 27 opinion collected other similar cases, including a prior one involving Home Depot, in which the 28 41 court concluded that a generalized claim of harm was insufficient to justify a protective order. /d. at “11-14, citing, among others, Braack v. Home Depot U.S.A. 2007 U.S. Dist. LEXIS 52967 (. The Mitchell court denied the protective order, stating as follows: “... this Court can find nothing unique or distinctive about [*15] the safety procedures or methodologies outlined in the portions of Home Depot's SOPs at issue. Further, the Court cannot discern any competitive advantage to be gained by Home Depot by virtue of the confidentiality of these SOPs and employee training materials related to safely stacking and displaying merchandise . . . That other competitors may adopt Home Depot's safety policies without incurring the associated expenses does not constitute a ‘clearly defined and very serious injury.” Mitchell at *14-15. So too, in this case, there appears nothing unique or distinctive about Dignity's policies 10 and procedures contained in the productions. Some simply recite or paraphrase existing 14 employment law. See, e.g., pages 464-465, Rest and Meal Periods. There is no perceived 12 competitive advantage conferred by these documents, and it is hard to conceive that the 13 economic position of any competitor hospital would be improved by acquiring them. 14 The cases cited by Dignity are distinguishable. In Republic Servs., Inc. v. Liberty Mut. Ins. 15 Co., 2006 WL 1635655 (E.D. Ky. 2006), Liberty asserted that its claims handling and training 16 materials were of independent economic value to it, that these materials were unique creations of 17 the company, and were among its most valuable competitive assets. “In short, Liberty says that 18 these materials are af the very core of its strategies in competitively conducting its business.” /d. 19 at “10; emphasis supplied. The court agreed, and it is easy to see why. Receiving, evaluating, 20 and paying claims is at the core of any insurer's business. Not only would competitors benefit 21 from knowing Liberty's claims handling methods, but so would claimants and their lawyers. So 22 too, in Gohler v. Wood, 162 F.R.D. 691, 697 (D. Utah 1995), the contested audit practice manuals 23 went to the core of Deloitte's business, the provision of accounting services to its clients. By 24 contrast, Dignity's core business is not creating administrative or personnel policies. Rather, it is 25 treating patients, and none of the policies and procedures claimed as confidential disclose any 26 secrets Dignity uses in so doing. 27 i 28 12 2. The Documents Are Part Of Plaintiff's Personnel Records Dignity argues specifically that certain designated documents, including policies and procedures and employee benefit information, are not just confidential, but constitute trade secrets. See Opening Memorandum, 17:14-18:2. For reasons set forth above the referee disagrees, but even if the court should conclude otherwise, the documents listed appear to be part of plaintiff's personnel file, or were records upon which Dignity relied in relation to plaintiff's employment. For example, the Time and Attendance Policy (183-186) appears to have been included to support Corrective Action Forms documenting plaintiff's tardiness or absence (e.g., 126-127). The Unprofessional/Disruptive Behavior Policy (244-246), which contains highlights 10 inferentially applicable to plaintiff, is adjacent to pages 247-262, which arguably document such 11 behavior. The Disciplinary Action Reports at 550-551 are almost certainly part of plaintiff's 12 personnel file; they bear receipt stamps of the Human Resources Department. The same is true 13 of the Job Description and Competency Evaluation at 689-712 which pertains to plaintiff and no 14 one else. There appears to have been no wholesale production of all Dignity's administrative, 18 operational, or personnel policies. Only those applicable to plaintiff's behavior, requests for leave, 16 and the like have been included. As shown above, any privacy right in these documents is held 17 by plaintiff. She could have and can now examine them without restriction. See Labor Code 18 section 1198(a). It follows they are neither trade secrets nor confidential. 19 3. Dignity Has Not Used Reasonable Efforts To Maintain Secrecy. 20 To maintain a trade secret the party claiming it must have used reasonable efforts under 21 the circumstances to maintain its secrecy. See Civil Code section 3426.1(d). While the parties 22 have cited no authority applying this requirement to confidential information which is not a trade 23 secret, the referee can think of ne reason why it should not apply. The parties do not expressly 24 contend otherwise. 25 Dignity contends it has made reasonable efforts in part because of its adoption and use of 26 a program called PolicyManager. Opening Memorandum, 19:17-20:5, citing the Declaration of 27 Laurie Schwartz (Schwartz Dec.), paragraphs 7, 9, 11, 12, 14, and Declaration of Maggie Vega 28 13 (Vega Dec.), paragraph 5. An examination of this declaration testimony reveals that it describes general measures provided by PolicyManager to protect electronically stored information. Nothing in these declarations identifies even one page of the produced documents whose confidentiality is protected by PolicyManager. The relevance of this program to this motion remains a mystery. Dignity also contends that it educates employees regarding the need to maintain confidentiality, stating “this fundamental is expressed in dozens of Dignity Health policies and communications.” Opening Memorandum, 20:12-13, citing Vega Dec., paragraph 5. Ms. Vega identifies one, the acknowledgement signed by Sands attesting that she has read and will comply with CHW's network usage policy. Vega Dec., paragraph 5, page 448 (actually 449). The 10 acknowledgement in part states that plaintiff “must actively protect these informational resources 1 from unauthorized disclosure, modification, deletion, and usage.” /bid. The network usage policy 12 itself, described as consisting of 11 pages, does not appear in the produced records. Vega Dec., 13 paragraph 6. The acknowledgement does not describe the “informational resources’ to which it 14 refers or what makes a disclosure, modification, or usage “unauthorized.” In sum, this boilerplate 15 document does nothing to inform an employee in plaintiffs position of what she must do to keep 16 Dignity's confidential information confidential. 17 Whether the party claiming that documents contain trade secrets or confidential information 18 has made reasonable efforts under the circumstances to keep the information secret involves a 19 multi-point factual analysis which includes whether the documents were marked as confidential. 20 See CAC! 4404. Ms. Schwartz testified under penaity of perjury, through a declaration 24 presumably prepared by Dignity's attorneys, that “[iJn most circumstances, Dignity Health's System Policies are endorsed at the bottom of each page as ‘For Internal Use Only’, ‘copyright’ or 23 words to that effect.” Schwartz Dec., paragraph 8. While there may be Dignity system policies 24 which do contain such an endorsement, as to the documents produced in this case the statement 25 is demonstrably false. The referee has found one document only, concerning FMLA leave, pages 26 425-426 and 3045 - 3046, which has a pre-termination footer containing a copyright claim and the 27 words “for internal use only.” One other document contains a footer in a tiny, imperceptible font 28 14 claiming confidentiality. See Maternity Nursing Post Partum Policy, pages 2318-2325. There may be others, but the vast majority of the listed policies Dignity claims at 17:14-27 of its Opening Memorandum constitute trade secrets or confidential information contain no such language. See Tuition Assistance, 82-86; Corrective Action Forms, 126-127; Time and Attendance, 183-187; Investigation Form, 204; Disciplinary Action Report, 205; SBAR Counseling Form, 206; Requesting Time Off Policy, 209-211; Coordination of Patient Care, 238-241; Rules of Conduct Policy, 242-243; Unprofessional/Disruptive Behavior, 244-246; Employee Handbook, 392-424: Rest and Meal Policy, 464-465; Disciplinary Action Report, 550-551; Job Description and Competency Evaluation, 689-712; Nursing Orientation Policy, 808; Attendance Policy, 826-828; 10 Disciplinary Process, 866-872; Standards of Behavior Policy, 1150-1155; Collective Bargaining 1 Agreement, 2544-2588 Even the words “copyright” and “for internal use only” do not put the 12 reader on notice that the document must be kept confidential. Novels are routinely copyrighted, 13 but are as widely distriouted and sold as possible. “For internal use only” is not synonymous with 14 “confidential,” and no reader could be expected to think so. 15 There are footers claiming confidentiality, but these are dated after plaintiff's termination. 16 See, e.g., Workplace Violence Prevention Etc., pages 490- 498, footer dated 6/4/18; pages 1257- 17 1265, footer dated 8/10/18; pages 2209-2217, footer dated 8/21/19. Disciplinary Action Report, 18 550-551, footer dated 6/4/18. Other post-termination footers do not claim confidentiality, even 19 though Dignity claims such documents are confidential. See, e.g., Rest and Meal Policy, 464-465. 20 These footers appear to have been created to mark and paginate the documents for post- 21 termination activity whose nature is not disclosed by the papers filed in support of and against the motion. There is no evidence these footers claiming confidentiality appeared on such documents 23 during plaintiff's employment. 24 The lack of marking on each document that it is confidential is significant because of the 25 dearth of information which would allow Sands or any other employee to determine, on a page by 26 page basis, what she needed to keep secret. As shown above, the acknowledgement of receipt 27 of the usage policy is of no help in this regard. The other place guidance is found is in the portion 28 15 of the Employee Handbook titled Confidential Information. See page 422. The pertinent language is terse and general: “Information concerning patients, employees, and the affairs of St. Joseph's {including personnel matters) are to be observed as confidential.” That’s it. There is nothing which would allow an employee to conclude, for example, that the Tuition Assistance Program fell under this rule. St. Joseph's human resources policies and administrative policies are not described as confidential. No specific policies or procedures are so described. Even the Handbook itself is not claimed as confidential. No reasonable employee would conclude she was prohibited from showing it to her husband or discussing its terms with her friends. Where, as here, an employee reading a Dignity policy cannot tell from the document itself that she must keep its 10 contents confidential, there has not been a reasonable effort to maintain secrecy. 1 In sum, the referee concludes that, assuming arguendo any of the produced documents 12 coded “C” in the Index were ever in fact confidential, Dignity has failed to show that it used 13 reasonable efforts under the circumstances to maintain such confidentiality. 14 4. Matrix Documents Do Not Disclose Confidential Information. 15 Dignity has used Matrix, an outside vendor, to process employee claims for statutory 16 leaves, and that Dignity is not free to disclose Matrix’s confidential information. Opening 17 Memorandum, 21:3-12. Whether this contention is true or not is immaterial. None of the letters 18 and forms authored or created by Matrix in response to plaintiff's multiple requests for leave 19 disclose its procedures, methods, evaluation criteria, or other proprietary information. See, e.g., 20 pages 2378-2393, 2401-2406, 2409-2414, 2420-2438, 2442-2456. None of these documents is 21 marked confidential. /bid. No declaration is submitted from any Matrix representative claiming 22 confidentiality in any of the produced documents. 23 G CONCLUSION 24 The undersigned began this task knowing that Dignity contended virtually all produced 25 documents are confidential, that Sands responded none are, and concluded preliminarily that the 26 truth must lie somewhere in between. First impressions can be deceiving, and this one was. An 27 examination of the declarations submitted by the parties, the law cited by them and consulted by 28 16 the referee, and the documents themselves leads to the conclusion that plaintiff is correct, and Dignity has failed to carry its burden to show that any of the documents listed in its Index should retain their confidential designation. The ruling is therefore that the motion is denied in its entirety. IV. APPORTIONMENT OF REFEREE’S FEE The statute governing for motions for protective orders in connection with demands for inspection makes monetary sanctions mandatory unless the court finds the court finds the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. CCP section 2031.060(h). In this case, plaintiff would certainly 10 have been awarded sanctions had she requested them properly. She did not. No lawyer or party 11 was identified against whom sanctions were sought. See CCP section 2023.040. No declaration 12 was submitted setting forth an hourly attorney's fee rate and hours spent, upon which a monetary 13 sanction could be based. 14 Had such sanctions been requested and ordered, the ruling would likely be that the parties 15 shall pay the referee’s fee equally. However, in view of the lopsided result reached here an equal 16 division, combined with the absence of sanctions, would work an injustice. Therefore, in 17 accordance with paragraph 3 of the Order filed November 5, 2020, the ruling will be that the 18 referee's fee be paid solely by Dignity. 19 Vv. 20 RECOMMENDED RULING 21 For reasons set forth above, the proposed tecommended ruling is Dignity Health’s 22 Motion To Maintain Confidentiality Designation Under Stipulated Protective Order is DENIED. 23 Vi. 24 FURTHER RECOMMENDED RULING 25 The Discovery Referee spent 31.5 hours examining the moving, opposition, and reply 26 papers, conducting a telephone conference with the parties, analyzing the authorities cited by 27 the parties, conducting independent legal research, examining in camera the approximately 28 17 3300 pages of documents produced by the parties in response to discovery requests, and preparing this ruling. An additional .6 hours was spent preparing this Recommended Ruling. At $350 per hour, this creates a total fee of $11,200.00, to be paid solely by defendant Dignity Health within 14 days following mailing of notice of the order regarding the Discovery Referee’s Recommended Ruling. Dated: December 7, 2020 OR MA 7 J. ANTHONY ABBOTT DISCOVERY REFEREE 10 ORDER 1 The Recommended Ruling of the Discovery Referee having been considered, and good 12 cause appearing therefor, 13 IT IS ORDERED, that defendant Dignity Health's Motion To Maintain Confidentiality 14 Designation Under Stipulated Protective Order be and is hereby DENIED. 15 IT IS FURTHER ORDERED, that the Discovery Referee’s fee of $11,200.00 be and is 16 hereby approved, to be paid solely by defendant Dignity Health within 14 days following 17 mailing of notice of the order regarding the Discovery Referee’s Recommended Ruling. 18 DATED: 19 Dec 28, 2020 08:53 AM DD 2 JUDGE br THE SUPERIOR COURT 21 23 24 25 26 27 28 18 Sands vs. Dignity Health San Joaquin County Superior Court Case No.: STK-CV-UWT-2019-6970 PROOF OF SERVICE I, the undersigned, certify and declare as follows: lam over the age of eighteen years and not a party to this action, My business address is 5874 North Alpine Road, Stockton, California 95215 that is located in the county where the mailing and/or delivery below took place. On December 7, 2020, I served the following document: DISCOVERY REFEREE’S RECOMMENDED RULING ON DEFENDANT DIGNITY HEALTH DBA ST. JOSEPH’S MEDICAL CENTER'S MOTION TO MAINTAIN CONFIDENTIALITY DESIGNATION UNDER STIPULATED PROTECTIVE ORDER; ORDER addressed to: 10 Lawrance A. Bohm Kimberley A. Worley Kelsey K. Ciarimboli ATKINSON, ANDELSON, LOYA, RUUD & 11 Daniel T, Newman ROMO 122 BOHM LAW GROUP, INC. 2151 River Plaza Drive, Suite 300 4600 Northgate Blvd., Suite 210 Sacramento, CA 95833 13 Sacramento, CA 95834 Email: Kimberley.worley@aalrr.com Email: Ibohm@bohmlaw.com Attorneys for Defendant 14 kciarimboli@bohmla’ com dnewman@bohmlaw.com 15 Attorneys for Plaintiff 16 17 M BY EMAIL: Based on an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the person[s] at the e-mail address[es] listed above. 18 1 did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 19 I certify and declare under penalty of perjury under the laws of the State of California that the 20 foregoing is true and correct. 21 Executed on December 7, 2020, at Stockton, California. “) 2 23 J. ANTH ABBOTT 24 25 26 27 28 Proof of Service - 1