DISCOVERY CASE OUTLINE
©RICHARD E. BEST 1998-2006; all rights reserved

DISCOVERY
HOME
Case
Outlines
DISCOVERY
ACT
New
Matter
CAL. LEGAL
RESOURCES

DISCOVERY
REFEREE

FEDERAL
RESOURCES

B IO & SITE
INFO
CONTACT
E-discovery

RIGHT TO PRIVACY

CONTENTS

CASE OUTLINE

Deposition
Interrogatory
Document
Admission
Experts
Med.Exam Sanctions Meet & Confer Disc.Cutoff Referee
Basic Disc
E-discovery
Atty.- Client
Work Product
Privacy
Phys-Patient
Med.Qual.Rev
Reporter Priv
Official Info
Tax Return




CONTENTS

BACKGROUND.
SOURCES OF PRIVACY
RELATIONSHIP WITH PRIVILEGES
ISSUES & ANALYSIS
SPECIFIC ZONES OF PRIVACY

ACADEMIC EMPLOYMENT PROCESS
ANONYMOUS POLITICAL SPEECH
ARREST RECORDS
ASSOCIATIONAL PRIVACY / FIRST AMENDMENT
CLASS MEMBERS
CLIENT RECORDS HELD BY ATTORNEY
CUSTOMER LIST / BUSINESS AFFAIRS
EMPLOYMENT & PERSONNEL RECORDS
FINANCIAL AFFAIRS
MARITAL RELATIONSHIP
MEDICAL RECORDS AND COMMUNICATIONS
PSYCHIATRIC EXAMINATIONS BY DEFENDANTS
PSYCHOLOGICAL TEST RESULTS
SETTLEMENT AGREEMENTS
SEXUAL BEHAVIOR
STATUTORY PROTECTIONS
RESIDENCE: HOME ADDRESS AND TELEPHONE
TAX RETURNS
TENANT'S HOME
WITNESSES

BALANCING OF RIGHTS: PRIVACY vs.FAIR TRIAL

LIMITATIONS ON SCOPE OF DISCOVERY TO PROTECT PRIVACY

NARROW SCOPE

IN CAMERA PROCEEDINGS TO LIMIT

PROTECTIVE ORDERS TO NARROW

LIMITED PROTECTION MAY BE INSUFFICIENT

LIMITATIONS ON EVIDENCE OR CLAIM WHEN DISCOVERY PROHIBITED

BURDEN OF PROOF

STANDING / DUTY TO ASSERT RIGHT TO PRIVACY

CUSTODIAN STANDING TO ASSERT
DUTY TO ASSERT RIGHT OR TO NOTIFY THIRD PARTIES

WAIVER OF RIGHT BY FAILURE TO ASSERT
WAIVER OF RIGHT BY TENDER OF ISSUE IN LAWSUIT
WAIVER OF RIGHT BY CONSENT

CORPORATE RIGHT TO PRIVACY
LIABILITY FOR FAILURE TO ASSERT RIGHT TO PRIVACY / LITIGATION PRIVILEGE
LIABILITY FOR FOR OBTAINING PRIVATE INFORMATION

TOP

CONTENTS

CASE OUTLINE


BACKGROUND

United States Constitution

Griswold v.Connecticut (1965) 381 U.S.479 (sex)
National Association for the Advancement of Colored People v. Alabama, (1958) 357 U.S.449 ( associations)
Roe v. Wade (l973), 268 U.S.510,535
Loving v. Virginia (1967), 388 U.S. 1,12 [marriage].
Skinner v. Oklahoma (1942), 316 U.S. 535, 541-2[procreation]
Eisenstadt v. Baird (1972), 405 U.S. 438, 453-54 [sexual relations and contraception]
Prince v. Massachusetts (1944), 321 U.S. 158,166[family relationships]
Pierce v. Society of Sisters (1925), 268 U.S.510,535 [child rearing and education]

California Constitution

Article 1, Section 1; the amendment of 11/5/74 added "privacy" to the enumerated list of inalienable rights Article 1, Section 13; unreasonable search & seizure.

California privacy broader and more protective than federal privacy

Planned Parenthood Golden Gate v. Superior Court (2000), 83 Cal.App.4th 347
American Academy of Pediatrics v. Lungren (1997), 16 Cal.4th 307, 326

Purpose & Intent of Privacy enactments

Pioneer Electronics v. Superior Court (2007), 40 Cal.4th 360

"the right to be left alone . . . is a fundamental and compelling interest. . . . It prevents government and business interests from collecting and stockpiling unnecessary information about us and from misusing information gathered for one purpose in order to serve other purposes or to embarrass us." (Ballot Pamp., Proposed Stats. and Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 27;
"...the Information Practices Act of 1977 (Civ. Code, § 1798 et seq.), an act which contains legislative findings that "(a) The right to privacy is being threatened by the indiscriminate collection, maintenance, and dissemination of personal information and the lack of effective laws and legal remedies... (b) The increasing use of computers and other sophisticated information technology has greatly magnified the potential risk to individual privacy that can occur from the maintenance of personal information... (c) In order to protect the privacy of individuals, it is necessary that the maintenance and dissemination of personal information be subject to strict limits." (Civ. Code, § 1798.1.)

California case authority predating the amendment

In re Lifschutz(1970), 2 Cal.3d 415, 431. [Citing Griswold, the Court acknowledged justifiable expectations of privacy in the psychotherapist-patient relationship and noted the Court's authority to use "protective measures" "to avoid unwarranted intrusions into the confidences of the relationship."]

Doak v.Superior Court (l968), 257 Cal.App.2d 825, 832. ["To require the pretrial disclosure of a defendant's assets to the plaintiff, even as an aid to settlement and subject to a protective order against disclosure to others, would be a serious invasion of privacy."]

City of Carmel-by-the-Sea v. Young (1970), 2 Cal.3rd 259.Disclosure of financial affairs of public officers and employees declared unconstitutional

Burrows v. Superior Court (1974) 13 Cal.3d 238, 243.[Unlawful search & seizure to obtain customer information voluntarily from bank; bank customer has reasonable expectation of privacy as to matters disclosed to the bank.

TOP
CONTENTS

SOURCES OF PRIVACY Recognized or created by

U.S. & California Constitutions

See above
Rancho Publications v. Superior Court (1999), 68 Cal.App.4th 1538 [Qualified Constitutional privilege of anonymity based on free speech and privacy; identity of anonymous authors of paid "advertorial" involving core political speech protected]


Privileges:

Binder v. Superior(1987) 196 Cal.App.3rd 893 at p. 899 ["The physician-patient privilege 'creates a zone of privacy'...."]

Statutes

Davis v. Superior Court (1992), 7 Cal.App.4th 1008 at p.1019 [CCP 1985.3.]

Sasson v Katash
(1983) 146 Cal.App.3d 119 at p.124. ["...the purpose of section l985.3 is to protect a consumer's right to privacy...." "...this section does not create a special privilege as to such records, but merely creates a procedure...[to protect privacy]."

Fireman's Fund Ins. Co. v. Superior Court
(1991), 233 Cal.App.3d 1138 [sole legal basis for privacy of commercially sensitive documents was C.C.P 2031(e) provision for issuance of protective order.]

Lantz v. Superior Court(1994), 28 Cal.App.4th 1839 [Failure to comply with notice requirements of CCP 1985.3 that have their genesis in right to privacy may invalidate document production]

TOP
CONTENTS

RELATIONSHIP WITH PRIVILEGES

Privacy protection when privilege waived or inapplicable or not established
Privacy not absolute

Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652. [No bank-customer privilege, but customer protected by right to privacy.

Tien v. Superior Court (Tenet Healthcare Corp.) (2006) , 139 Cal.App.4th 528.  Privacy of putative class member contacting counsel. By agreement, a sample of putative class member employees were invited to contact plaintiff's counsel and defendant sought the names etc. of those who did and plaintiffs sought a protective order. 24 of 82 objected to disclosure, some because they feared retaliation. The appellate courts affirmed the trial court's overruling of the attorney-client privilege objection because disclosure of names of persons contacting counsel "would reveal nothing confidential." The trial court did not mention but the appellate court overruled the work product objection holding "Plaintiffs' counsel was merely the passive recipient of some telephone calls. Therefore, the trial court's discovery order does not violate the attorney work product doctrine."
The trial court was reversed on privacy grounds: "... we conclude that the privacy rights ...outweigh Tenet's need for the discovery." The court noted that the "identity of persons who consult with counsel implicates their right of privacy" and that disclosure was not justified by a "compelling" need. The court also noted "if employees feel their employer will be informed whenever they contact an attorney suing the employer, many would be deterred from exercising their right to consult counsel."
"The court must consider the purpose of the information sought, the effect that disclosure will have on the affected persons and parties, the nature of the objections urged by the party resisting disclosure and availability of alternative, less intrusive means for obtaining the requested information. [Citation.] Based on an application of these factors, the more sensitive the nature of the personal information that is sought to be discovered, the more substantial the showing of the need for the discovery that will be required before disclosure will be permitted."[citation]

Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1020. [Medical records. No declaration establishing the foundation for asserting the psychotherapist-patient privilege; however, "[s]uch specificity is not required for application of the much broader zone of privacy."]

Heda v. Superior Court
(1990), 225 Cal. App.3d 525. [Defendant's medical records protected by right to privacy even though the physician-patient privilege objection was not asserted.]
In re Lifschutz(1970) 2 Cal.3d 415, 431. [ Plaintiff-Patient had not asserted the physician-patient privilege and the patient-litigant exception applied. However, the court limited inquiry to matters directly relevant to conditions tendered. Furthermore, the court recognized that additional protective measures were available "to avoid unwarranted intrusions into the confidences of the relationship."]

Paley v. Superior Court
(1993), 18 Cal.App.4th 919, 933 ["...the right of privacy under federal and state Constitutions extends beyond the 'confidential communications' protected by statute."(Jones v. Superior Court 119 Cal.App.3d at p. 549)]

TOP
CONTENTS

ISSUES & ANALYSIS

Alch v. Superior Court (2008), 165 Cal.App.4th 1412, 1423 "discovery orders implicating privacy rights are evaluated under the framework established in Hill, and reiterated in Pioneer" Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1.  Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360

Issues must be resolved on a factual, case specific and category specific consideration

Alch v. Superior Court (2008), 165 Cal.App.4th 1412. Non-party employee privacy in wrongful discharge age discrimination case.  Trial court upholding privacy objections  rev'd.
It used a broad brush to deny the writers access to all data about the objectors out of hand, and wholly failed to consider whether a more nuanced approach to the different categories of data would satisfy the balance that must be struck between privacy interests and a litigant's need for discovery.”
In addition to failing to analyze the different categories of data requested, the court gave short shrift to 'the public interest in pursuing [the] litigation.'”

Life Technologies v. Superior Court (2011), 197 Cal.App.4th 640. Non-party employee privacy in wrongful discharge / age discrimination / RIF case. Adequate privacy protections required for special interrogatories seeking termination information of non-party employees: ID, age, reasons, severance benefits; + ID & contact info of current employees. Remand to consider: category by category determination of information privacy issues; relevancy & over-breadth, need for information and alternative sources, forms and procedures [e.g. raw statistical data, discovery methods]; post production protections of information and non-party contacts [e.g. confidentiality orders, sealing order, limit use, access & dissemination].


Is the information sought subject to the right to the right to privacy ?

Is there a recognized zone of privacy, a legally protected right?

Question of law
when well-established social norms recognize the need to maximize individual control over its dissemination and use or to prevent unjustified embarrassment or indignity.'
"A particular class of information is private when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity. Such norms create a threshold reasonable expectation of privacy in the data at issue." Hill at p.

Is there a reasonable expectation of privacy?

Mixed question of law and fact based on particular circumstances
Objective Standard.
Claimant must possess a reasonable expectation of privacy under the particular circumstances, including customs, practices, and physical settings surrounding particular activities 
Entitlement is  founded on broadly based and widely accepted community norms which may create or inhibit reasonable expectations of privacy; e.g.  opportunities to consent voluntarily to activities impacting privacy interests  affect the expectations of the participant.'

Is there a serious invasion of privacy.

"****an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy."  Hilll

"must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right."
Limitations on intrusion into privacy or on dissemination may diminish seriousness

Balancing opposing interests if the above criteria are established
Is it directly relevant to the issues ?
Is it essential for a fair resolution of the issues in the lawsuit ? [see below]
What are the competing interests and their respective strengths or importance to the parties and to society?
The Court must carefully balance the compelling public need for discovery against the fundamental right to privacy.

If discoverable, can the scope be further narrowed or the dissemination and use be restricted ?
Limitations also reduce the intrusion and mitigate against a serious invasion of privacy

Alch v. Superior Court (2008), 165 Cal.App.4th 1412
Mendez v. Superior Court supra at p.567.
Britt v. Superior Court(1978) 20 Cal.3d 844.
Vinson v. Superior Court, supra.
Planned Parenthood Golden Gate v. Superior Court (2000), 83 Cal.App.4th 347
San Diego Trolly, Inc v. Superior Court (2001), 87 Cal.App.4th 1083 [Need to show compelling need (Plt need met by limited disclosure re taking meds & disclosure to supervisor), material to disposition of litigant rights, and no other less intrusive means to obtain information]

Save Open Space Santa Monica Mountains v. Superior Court (2000), 84 Cal.App.4th 235  Protective order enhanced to require serial disclosures in camera to determine both substantial contributions and, then, property ownership; disclose only those



TOP
CONTENTS

SPECIFIC ZONES OF PRIVACY PROTECTED

ACADEMIC EMPLOYMENT PROCESS

Kahn v. Superior Court(1987), 188 Cal.App.3d 752.

ANONYMOUS POLITICAL SPEECH

Rancho Publications v. Superior Court (1999), 68 Cal.App.4th 1538 [identity of anonymous authors of paid "advertorial" involving core political speech protected]


ARREST RECORDS

Craig v. Municipal Court (1979) 100 Cal.App.3d 69. Def.charged with resisting arrest denied names of others arrested by officer.

Denari v. Superior Court (1989) 215 Cal.App.3d 1488. Plt. denied names of persons booked and in holding cell. Information sought to identify witnesses to excessive force on Plt.

ASSOCIATIONAL PRIVACY / FIRST AMENDMENT

Britt v. Superior Court (1978) 20 Cal.3d 844,852.[Peaceful and lawful political associational activity.]

Save Open Space Santa Monica Mountains v. Superior Court (2000), 84 Cal.App.4th 235 Membership and contributions to non-profit on issue of private AG fees that should not be paid if lawsuit instigated and financed for private purpose.  "“...the right of privacy and a derivative right of confidentiality, as described in Britt, supra, are generally applicable to membership in and contribution to public interest organizations....”

Planned Parenthood Golden Gate v. Superior Court (2000), 83 Cal.App.4th 347 [Names, addresses and home telephone numbers of nonparty staff and volunteers of Planned Parenthood sought by anti-abortion demonstrators; reasonable concern for safety and not likely to talk to investigators; court considered political climate & all circumstances and concluded disclosure would not promote state interest of truth seeking; court recognized disclosure of names would adversely affect freedom to associate with unpopular causes]

Church of Hakeem v. Superior Court
(1980), 110 Cal.App.3d 384. [Church membership]

Bodenheimer v. Superior Court(1980), 108 Cal.App.3d 885.[Plaintiff allowed to inquire into defendant's connection with other defendant organization.]

Olympic Club v. Superior Court(1991), 229 Cal.App.3d 358, 362. Associational privacy extends to membership applications. Prior notice to 3d parties & opportunity to object required.

United Farm Workers of America v. Superior Court (1985), 170 Cal.App.3d 391. Growers suit against union for damages from unlawful activities during strike. General membership list, names of strikers, and names of picketers is not discoverable by plaintiff. If specific wrongdoers are identified, tr.ct. can review lists in camera to determine if specific wrongdoers are union members etc.

Rancho Publications v. Superior Court (1999), 68 Cal.App.4th 1538 [identity of anonymous authors of paid "advertorial" involving core political speech protected]

CLASS MEMBERS, Potential in pre-certification phase

Pioneer Electronics v. Superior Court (2007), 40 Cal.4th 360,  2007 Cal. LEXIS 553   Before revealing identifying information regarding potential class members who have complained about a product during the pre-certification phase, the affirmative consent of such persons is not required if they are afforded reasonable notification and an opportunity to object. The Supreme Court found
"1. Reduced expectation of privacy. ... If anything, these complainants might reasonably expect, and even hope, that their names and addresses would be given to any such class action plaintiff.
2. No serious invasion of privacy.
3. Balancing opposing interests. [though 1. and 2. were dispositive] a brief examination of the respective interests involved here helps reinforce our conclusion that the trial court's order was not an abuse of discretion."
Manufacturer in a class action prior to certification of the class had produced redacted copies of complaints as to the product but deleted information that would identify complainants. Before revealing such information and permitting pre-certification communication with potential class members, the trial court required the parties "to write a 'Colonial' [Life] letter and then reveal the names of those consumers who do not object." The trial court had weighed the sensitivity of the information:" As the trial court stated, '[i]t seems to me that this information, just the names, addresses and contact information is not particularly sensitive. It's not medical information. It's not personal finances. It's merely the name, and if the people don't want to be contacted, they can say so.'"
The appellate court reversed the trial court. It required actual notice of the right to grant or withhold consent to disclosure and an affirmative act of consent to disclosure. The Supreme Court found "...the Court of Appeal's approach was too strict and failed to consider the nature of the privacy invasion involved here and apply a balancing test that weighs the various competing interests, as outlined in our case law."

The Supreme Court reviewed Hill v. National Collegiate Athletic Assn. (1994), 7 Cal.4th 1

B. The Hill Decision and Its Balancing Test
...the right of privacy protects the individual's reasonable expectation of privacy against a serious invasion . Hill observed that whether a legally recognized privacy interest exists is a question of law, and whether the circumstances give rise to a reasonable expectation of privacy and a serious invasion thereof are mixed questions of law and fact. ..."If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law." (Ibid.)
Hill sets forth in detail the analytical framework for assessing claims of invasion of privacy under the state Constitution. First, the claimant must possess a "legally protected privacy interest." ... An apt example from Hill is an interest "in precluding the dissemination or misuse of sensitive and confidential information ('informational privacy') . . . ." ... Under Hill, this class of information is deemed private "when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity." (Ibid.) Additionally, Hill recognized the interest "in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference ('autonomy privacy')." (Ibid.) As with claims of informational privacy, we must examine whether established social norms protect a person's private decisions or activities from "public or private intervention."...
Second, Hill teaches that the privacy claimant must possess a reasonable expectation of privacy under the particular circumstances, including "customs, practices, and physical settings surrounding particular activities . . . ." As Hill explains, "A 'reasonable' expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms." "[O]pportunities to consent voluntarily to activities impacting privacy interests obviously affect[] the expectations of the participant." (Ibid.)
Third, Hill explains that the invasion of privacy complained of must be "serious" in nature, scope, and actual or potential impact to constitute an "egregious" breach of social norms, for trivial invasions afford no cause of action.

Assuming that a claimant has met the foregoing Hill criteria for invasion of a privacy interest, that interest must be measured against other competing or countervailing interests in a "balancing test."[citations] "Conduct alleged to be an invasion of privacy is to be evaluated based on the extent to which it furthers legitimate and important competing interests."...Protective measures, safeguards and other alternatives may minimize the privacy intrusion. "For example, if intrusion is limited and confidential information is carefully shielded from disclosure except to those who have a legitimate need to know, privacy concerns are assuaged." (Ibid.)        [See below re appellate opinion]
Alch v. Superior Court (2008), 165 Cal.App.4th 1412 following Pioneer noted the requirement to provide notice and opportunity to object.


Belaire-West Landscape, Inc. v. Superior Court (2007), 149 Cal. App. 4th 554   Privacy of former employees contact information were adequately protected in putative class action for wage and hour violations by providing notice and the opportunity to object and opt out. The court noted privacy interests were minimal and that employees might want such information to be provided in a law suit that protected their interests. It also noted that such persons were potential witnesses. 

Best Buy Stores, L.P. v. Superior Court (Boling) (2006) , 137 Cal.App.4th 772,   40 Cal.Rptr.3d 575     Precertification discovery to locate class representatives.  A lawyer filing a class action on its behalf is allowed to conduct precertification discovery to ascertain the names of potential substitute class representatives (see also Budget Finance Plan v. Superior Court (1973), 34 Cal.App.3d 794) but the procedure and letter sent must protect their privacy. A third party sent letters to 200 potential class members informing them of the action and permitting them to respond and participate. An independent administator received responses and advised Best Buy as to those responses for purposes of complying with the discovery inquiry. The appellate court added privacy provisions: "The letter must state that recipients are free to ignore the letter and that, if they do so, the sender will not disclose {Slip Opn. Page 8} their identities to [the attorney]. The letter should not identify [the attorney] by name, should not provide that the recipient contact [the attorney] in the first instance, and should not contain any information that would facilitate such direct contact. The court should instruct the sender of the letter to disclose to [the attorney] the identity of only those persons who affirmatively request this be done in a writing signed by the person."

Experian Information Solutions, Inc. v. Superior Court
(2006), 138 Cal.App.4th 122. [see Pioneer Electronics v. Superior Court (2007), 40 Cal.4th 360,  2007 Cal. LEXIS 553 re no requirement for affirmative consent] Class member contact after class certification had been denied was restricted. Privacy of debtor identity & contact.  The identity of debtors and potential class members was provided to plaintiff pursuant to a stipulated protective order limiting the use of the information without a prior court order. The Court recognized the right to pre-certification communication with potential class members but noted a higher standard when state action such as the discovery process is involved. The right to conduct relevant discovery must be balanced against "the degree the recipients’ privacy interests are infringed and determine whether the letter sufficiently minimizes any such infringement." The trial court order approving a contact letter after class certification was denied was reversed and remanded for drafting of a new letter. The court held that "...the trial court must ...only approve a new proposed letter, if any, which satisfies the following conditions:
(1)there shall be nothing...advising the recipients of their possible legal rights...
(2)only statements...should be those necessary to request...written consents to be contacted by [plaintiff's] counsel in connection with her lawsuit
(3) the recipients’ consents...must be communicated to the third party through a written authorization signed by each...
(4) the letter must be written on the neutral third party’s letterhead, and must not identify Sorensen’s counsel or provide his contact information;
(5) the letter must contain a statement that the failure to submit a signed authorization means the recipient will not be contacted by Sorensen’s counsel; and
(6) the sentence in the current letter that “[t]he sending of this letter has been approved by Order of the Orange County Superior Court” must be deleted.


TOP
CONTENTS

CLIENT RECORDS HELD BY ATTORNEY

Names of clients  [ Cf .attorney client ]

Hooser v. Superior Court (2000), 84 Cal.App.4th 997,1007 [no compelling need for disclosure shown in debtors exam of judgement debtor-attorney]

Tien v. Superior Court (Tenet Healthcare Corp.) (2006) , 139 Cal.App.4th 528.  Privacy of putative class member contacting counsel. By agreement, a sample of putative class member employees were invited to contact plaintiff's counsel;  defendant sought the names etc. of those who did and plaintiffs sought a protective order. 24 of 82 objected to disclosure, some because they feared retaliation. The appellate courts affirmed the trial court's overruling of the attorney-client privilege objection because disclosure of names of persons contacting counsel "would reveal nothing confidential." The trial court did not mention but the appellate court overruled the work product objection holding "Plaintiffs' counsel was merely the passive recipient of some telephone calls. Therefore, the trial court's discovery order does not violate the attorney work product doctrine."
The trial court was reversed on privacy grounds: "... we conclude that the privacy rights ...outweigh Tenet's need for the discovery." The court noted that the "identity of persons who consult with counsel implicates their right of privacy" and that disclosure was not justified by a "compelling" need. The court also noted "if employees feel their employer will be informed whenever they contact an attorney suing the employer, many would be deterred from exercising their right to consult counsel."
"The court must consider the purpose of the information sought, the effect that disclosure will have on the affected persons and parties, the nature of the objections urged by the party resisting disclosure and availability of alternative, less intrusive means for obtaining the requested information. [Citation.] Based on an application of these factors, the more sensitive the nature of the personal information that is sought to be discovered, the more substantial the showing of the need for the discovery that will be required before disclosure will be permitted."[citation]

Willis v. Superior Court(1980)at p.298 [normally no expectation of privacy but may be exceptional cases]


Trust Accounts

Doyle v. State Bar(982), 32 Cal.3d 12. State bar can subpoena trust account records.

Hooser v. Superior Court (2000), 84 Cal.App.4th 997, 1008 [Bank statements re trust accounts not discoverable at debtor's exam; info re clients and their funds protected by client's right to privacy and party seeking information must show compelling need]

Fee Agreements

Bus.& Prof.Code Sec.6149 [written fee contract is confidential communication]

Fee charged

Willis v. Superior Court(1980) at p.298[expectation of privacy normally non-existent]

Client identification:  see above


TOP
CONTENTS


CUSTOMER LIST / BUSINESS AFFAIRS

Hoffmann Corporation v. Superior Court (1985),172 Cal.App.3d 357. Corporate commercial sensitivity. Customer list protected by analogy to trade secret.

Fireman's Fund Ins.Co. v. Superior Court(1991) 233 Cal.App.3d 1138. Insufficient grounds shown to justify production in insurance bad faith action of highly sensitive commercial information e.g. all documents relating to reinsurance agreements.

EMPLOYMENT/ PERSONNEL RECORDS

Alch v. Superior Court (2008), 165 Cal.App.4th 1412, 1432. Details analysis required after preliminary determination of privacy.
"The most sensitive category of data the writers now request is the work history information. Even here, however, the data sought is not of the kind involved in cases refusing to permit the disclosure of third party personnel files, and, in contrast to those cases, here the writers have shown a compelling need for the information."
"...the data sought includes the identity of the person's employer and talent agency representative, job title, period of employment, the productions on which he or she worked, his or her credits and awards, and so on. .... The writers no longer seek other sensitive information ordinarily found in personnel files, such as evaluation of the person's work ..., income information, employment contracts....

Life Technologies v. Superior Court (2011), 197 Cal.App.4th 640. Non-party employee privacy in wrongful discharge / age discrimination / RIF case. Adequate privacy protections required for special interrogatories seeking termination information of non-party employees: ID, age, reasons, severance benefits; + ID & contact info of current employees. Remand to consider: category by category determination of information privacy issues; relevancy & over-breadth, need for information and alternative sources, forms and procedures [e.g. raw statistical data, discovery methods]; post production protections of information and non-party contacts [e.g. confidentiality orders, sealing order, limit use, access & dissemination].

San Diego Trolly, Inc v. Superior Court (2001), 87 Cal.App.4th 1083 [trolly operator on meds for anxiety; personnel records and employment history were sought to show employer's knowledge but protected citing Harding Lawson; possible revisit if alternative discovery did not resolve employer knowledge issue]
Labor Code Section 1198.5 right of employee to inspect personnel files other than letters of reference.

Arcelona v. Municipal Court(1981) 113 Cal.App3d 523, 531.[employee performance evaluations]

Harding Lawson Assoc. v. Superior Court (1992) 10 Cal. App.4th 7, 10,11. Tr.Ct.ordered production of most of the documents in 56 categories. Peremptory writ issued "to vacate its order insofar as it required disclosure of confidential material in the personnel files of employees other than [plaintiff]." Information in personnel files may be protected unless the party seeking discovery "can show a compelling need for the particular documents and that the information cannot reasonably be obtained through depositions or from nonconfidential sources." See Alch v. Superior Court (2008), 165 Cal.App.4th 1412, 1432 where it the "confidential" nature of the particular documents in the personnel file

Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 526. No direct relevance nor compelling state interest requires disclosure of another's personnel, tenure and promotion files in defamation action.

El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342. Gender and age employment discrimination case; Plaintiffs sought all personnel records of only male in comparable position; Tr.Ct. ordered production of entire personnel file of that non-party. Ct.App. issued peremptory writ. Record inadequate to support discovery of entire personnel file; tr.ct. should consider less intrusive means of discovery and in camera inspections.

Saddleback Community Hospital v. Superior Court(1984), 158 Cal.app.3d 206 [production of personnel files of 37 persons re'vd for in camera hearing]

TOP
CONTENTS

FINANCIAL AFFAIRS

Valley Bank of Nevada v. Superior Court(1975) 15 Cal.3d 652. Bank customers right to privacy.

Doak v. Superior Court (1968), 257 Cal.App.2d 825 [Although discovery of financial information might aid settlement of a wrongful death action, the right to privacy protects it against discovery.]

Hecht, Solberg, Robinson, Goldberg & Bagley v. Superior Court (Panther) (2006) ,137 Cal. App. 4th 579 2006 Cal. App. LEXIS 316 Discovery of financial information from non-party relevant to issue in case.  Real estate transactions resulted in a law suit including claims against the real estate attorneys. The real estate attorneys asserted a statute of limitations defense and moved for summary judgment. The case against them was settled. Plaintiff then sued the attorneys handling the case against the real estate attorneys for malpractice, apparently based on a failure to timely sue the prior lawyers which allegedly gave rise to the statute of limitations defense and a low settlement. Plaintiff sought financial information from the non-party real estate attorneys to show that damages in the underlying action would have been collectible from them. The real estate partnership, which was not a party to the malpractice case, asserted privacy and relevancy objections. The trial court granted the discovery of financial information, limited in time and subject to a protective order [ "standard protective order which appropriately imposes confidentiality and restricts the availability of the documents produced to the use of the court, the named parties and their attorneys, and expert consultants or litigation personnel."] The appellate court affirmed finding no abuse of discretion and that the trial court had appropriately balanced the discovery of relevant information against privacy interests. It assumed without deciding that a partnership had such privacy interests.

Pioneer Electronics v. Superior Court (2007), 40 Cal.4th 360

     "Thus, although Valley Bank acknowledged the bank's obligation to notify bank customers of their option to seek legal relief before the bank released confidential customer information, we did not require the bank to obtain an affirmative consent from those customers before allowing such information to be released."

Cobb v. Superior Court (1979) 99 Cal.App.3d 543. [Financial information relevant to punitive damages.Alternatives should be considered in fashioning a protective order e.g. require prima facie showing to get discovery of net worth information for punitive damages, delay discovery until time close to trial, seal information, limit access to it, or limit the extent of discovery. Cobb and other cases were decided prior to enactment of Civil Code 3295 dealing with discovery of financial information for punitive damages while the courts were attempting to limit such discovery of relevant information.

Richards v. Superior Court (1978), 86 Cal.App.3d 265 [Defendant in a punitive damages cause of action is presumptively entitled to a protective order limiting disclosure to counsel and his representatives; burden is on the person opposing a protective order; failure to grant is abuse of discretion.]

People v. Superior Court (Kardon) (l973), 35 Cal. App.3d 710. [Delay discovery; no abuse of discovery to deny answers to interrogatories re: net worth at this time.]

Moskowitz v. Superior Court(1982), l37 Cal.App.3d 313. [Financial information relevant to issues in lawsuit was discoverable but party was presumptively entitled to a protective order to limit use & dissemination.]

Burrows v. Superior Court (1974) 13 Cal.3d 238. Bank customer's expectation of privacy in bank records.

Harris v. Superior Court (1992) 3 Cal.App.4th 661. Finances of housemate of ex-spouse not discoverable upon balancing of privacy and need.

Allen v. Superior Court (1984) 151 Cal.App.3d 447. Experts financial records to show bias. Court abused its discretion in not seeking less intrusive method of discovery.

Stony Brook I Homeowners Ass'n. v. Superior Court (Diehl) (2000), 84 Cal.App.4th 691 , 101 Cal.Rptr.2d 67 [subpoena sought litigation related billings from med expert as to Plt & Def.; mot to quash re overbroad, burdensome and invasion of privacy of expert and patients denied; med. expert ordered to produce summary of total number of patients and total billings for each side over 4 yr.period; later expert was ordered to allow access to records by temp personnel hired by Plt to abstract info; ct noted "entitled to know "what percentage of ... practice involves examining patients for the defense and how much compensation he derives from defense work." but the number of patients and amount of compensation was too intrusive into expert's privacy; the court ordered numerical estimates to be provided at the deposition of the number of exams etc. and total compensation and cut the period to 3 yrs from 4

Alch v. Superior Court (2008), 165 Cal.App.4th 1412, 1427 [reference to "patently sensitive items such as medical and financial records"]


MARITAL RELATIONSHIP

Tylo v. Superior Court(1997), 55 Cal. App.4th1379 [emotional distress claim in PI not waiver of right to marital privacy; Party seeking discovery must id specific injury & show nexus between injury resulting from claim and discovery sought]

Griswold, supra

TOP
CONTENTS

MEDICAL RECORDS AND COMMUNICATIONS (see psych below)

Health & Safety Code
Blood Testing for HIV

Bearman v. Superior Court, (2004), 117 Cal. App.4th 463  [lack of specific factual showing to justify overbroad administrative subpoena ]

San Diego Trolly, Inc v. Superior Court (2001), 87 Cal.App.4th 1083 [Employee psych records when employee admitted tretment for anxiety and taking of meds; privacy not waived by waiver of privilege;

Lantz v. Superior Court(1994), 28 Cal.App.4th 1839 [Although plaintiff in sex harassment case tendered issue of mastectomy compounding damages and even if trial court properly found some records discoverable on remand, all records may not be discoverable and the trial court should limit the intrusion to the minimal necessary to satisfy the need ]

Binder v. Superior Court(1987) 196 Cal.App.3d 893, 898. One purpose of the physician - patient privilege is to create a zone of privacy.

Heda v. Superior Court (1990) 225 Cal.App.3d 525. Medical privacy outweighs need for discovery to support 36(d) preference motion.

Davis v. Superior Court (1992), 7 Cal.App.4th 1008, 1013. "...the statutory privilege and the constitutional privacy right are both interrelated and separate."

Division of Medical Quality v.Gherardini (1979) 93 Cal.App.3d 669, 678-79.
Zone of privacy may afford protection even if the physician - patient privilege has been waived or doesn't apply."The state of a person's gastro -intestinal tract is as much entitled to privacy from unauthorized public or bureaucratic snooping as is that person's bank account, the contents of his library or his membership in the NAACP."

In re Lifschutz, supra.
Psych. records in P.I. case seeking dgs. for emotional distress.

Roe v. Superior Court (1991) 229 Cal.App.3d832,837. Communications to psychotherapist within exception of child abuse reporting act are discoverable in subsequent civil action since such evidence was essential to the action.

Scull v. Superior Court(1988), 206 Cal.App.3d 784. Sexual molestation criminal case. D.A. allowed to contact Def.'s patients. Rev'd.

Wood v. Superior Court(1985), 166 Cal.App.3d 1138.
Board investigation of doctor prescribing controlled substances. Tr.Ct. rev'd for permitting discovery of patient's records.

Kizer v. Sulnick (1988) 202 Cal.App.3d 431.
Atty. commissioned medical study of health effects on people living near toxic waste dump. Tr.Ct. denied discovery on privacy grounds. Ct.Ap. rev'd. Material was "clearly relevant" and persons were "at most" entitled to deletion of identifying information.

Palay v. Superior Court (1993), 18 Cal.App.4th 919,934 [joint privilege of mother and child during pregnancy]

Alch v. Superior Court (2008), 165 Cal.App.4th 1412, 1427 [reference to "patently sensitive items such as medical and financial records"]

TOP
CONTENTS

PSYCHIATRIC RECORDS

Susan S. v. Israels (1997), 55 Cal.App.4th 1290, 67 Cal.Rptr.2d 42  Crimnal defense lawyer subpoened mental health records which were turned over directly to the lawyer in toto and without review for relevancy and privacy. The lawyer "read, transmitted and used Susan S.'s mental health records in order to intimidate, embarrass and humiliate...." the records were transmitted to an expert witness who used them. "In this case we hold a crime victim has a cause of action for invasion of her constitutional right to privacy against a defense attorney who, without authorization, reads and disseminates the victim's confidential mental health records."
[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by the defendant constituting a serious invasion of privacy.”
"It is undisputed Susan S. had a legally protected privacy interest in her mental health records. ( Pettus v. Cole (1996) 49 Cal.App.4th 402, 440 [57 Cal.Rptr.2d 46]; Cutter v. Brownbridge (1986) 183 Cal.App.3d 836, 842 [228 Cal.Rptr. 545] and cases cited therein.)
"D. Defendants Are Not Immune From Liability Under the Litigation Privilege.
Susan S.'s cause of action for invasion of her constitutional right of privacy does not depend on the “publication” or “broadcast” of her mental health records but rests on Israels' conduct in reading those records."


PSYCHIATRIC EXAMINATIONS BY DEFENDANTS

Vinson v. Superior Court(1987), 43 Cal.3d 833. [Exam permitted in sex harassment case but scope limited. Opinion suggests such exam would not be permitted in all cases.]

Barrenda v. Superior Court(1998), 65 Cal.App.4th 794 [Tr ct granting of psych exam reversed, despite claim for past and future psychological treatment, due to lack of declaration showing good cause. Issue was whether prior sexual encounters could be subject of either depo questions or psych exam.]

See also C.C.P. 2032.320 (b) &(c) [former 2032(d), 2d paragraph.] Absent exceptional circumstances, no psych exam if the party is not calling an expert and only claims damages for normal emotional distress associated with physical injuries. The section is explicitly limited to P.I. cases.

PSYCHOLOGICAL TEST RESULTS

Arcelona v. Municipal Court supra.

RESIDENCE: HOME ADDRESS AND TELEPHONE

Planned Parenthood Golden Gate v. Superior Court (2000), 83 Cal.App.4th 347 [Names, addresses and home telephone numbers of nonparty staff and volunteers of Planned Parenthood sought by anti-abortion demonstrators; reasonable concern for safety and not likely to talk to investigators; court considered political climate & all circumstances and concluded disclosure would not promote state interest of truth seeking]

Alch v. Superior Court (2008), 165 Cal.App.4th 1412, 1433.  Demographic information, including (a) name, (b) date of birth, (c) date of death (if applicable), (d) gender, (e) race, and (f) residential ZIP code discoverable over privacy objection for critical statistical statistical information in age discrimination case.
"In short, while the demographic data is personal information, it is hardly sensitive information. …. (it is ... not medical or financial details, political affiliations, sexual relationships, or personnel information) …..” the consequences of nondisclosure are dire for the writers' case, while the consequences of disclosure for the objectors are relatively inconsequential, particularly in view of the existence of a strong protective order limiting access to the information."

Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554   Privacy of former employees contact information were adequately protected in putative class action for wage and hour violations by providing notice and the opportunity to object and opt out. The court noted privacy interests were minimal and that employees might want such information to be provided in a law suit that protected their interests. It also noted that such persons were potential witnesses.

Pioneer Electronics v. Superior Court (2007), 40 Cal.4th 360,  2007 Cal. LEXIS 553 Names and addresses of complainants of product that is subject of law suit Before revealing identifying information regarding potential class members who have complained about a product during the pre-certification phase, the affirmative consent of such persons is not required if they are afforded reasonable notification and an opportunity to object. The Supreme Court found
"1. Reduced expectation of privacy. ... If anything, these complainants might reasonably expect, and even hope, that their names and addresses would be given to any such class action plaintiff.
2. No serious invasion of privacy.

TOP
CONTENTS



SETTLEMENT AGREEMENTS

Hinshaw, Winkler Draa, Marsh & Still v. Superior Court(1996), 51 Cal.App.4th 233, 241 ["We find a private settlement agreement is entitled to at least as much privacy protection as a bank account or tax information ...."]

SEXUAL BEHAVIOR

CCP §2017 (d). Discovery of Plaintiff's sexual conduct requires showing of good cause in sexual harassment actions etc. However, the right to privacy affords greater protection to all persons and good cause has been interpreted to meet the Constitutional requirements. Mendez v.Superior Court (1988) 206 Cal.App.3d 557,568.

Knoettgen v.Superior Court (1990), 224 Cal.App.3d 11. [Sex harassment case; Writ issued to set aside order compelling questions at depo re childhood sexual harassment and attacks. "good cause" under 2017(d) is more than what exists in all such cases. Psych declaration re value of inquiry to determine alternative sources of emotional distress, extent of dgs and affect on sexual perceptions, attitudes & behavior insufficient since could be said in every sexual harassment case; discovery would not be permitted even if 2017(d) not raised since privacy implicated. "A case based on the conduct of a plaintiff's coworkers should not be turned into an investigation of plaintiff's childhood. Sexual harassment in the workplace is no triffle....When an employee seeks vindication of legal rights, the courts must not be party to the unnecessary infliction of further humiliation."]

Barrenda v. Superior Court(1998), 65 CA4th 794 [psych exam and depo questions re prior & subsequent sexual matters prohibited where past and future psych treatment claimed as damages; atty declaration insufficient to show nexus; failed to meet B of P to overcome privacy]

Boler v. Superior Court(1987) 201 Cal.App.3d 467. [Sexual harassment in workplace; sexual privacy of defendant and third parties protected; writ issued reversing tr ct for allowing depo questions re sexual activity]

Vinson. v. Superior Court(1987) 43 Cal.3d 833. [Psych exam permitted in sex harassment case but restricted as to inquiry into sexual history etc.]

Fultz v. Superior Court (1979) 88 Cal.App.3d 899. [Interrogs of alleged father re: sexual activity of mother limited.]

Morales v. Superior Court (1979) 99 Cal.App.3d 283. [Wrongful death C/A. Interrogs to H re extramarital sex relevant but had to be limited to protect right to privacy of 3rd parties' names etc.]

Mendez v. Superior Court (1988) 206 Cal.App.3d 557. [Prior sexual activities of Plt.in sexual assault & battery action not discoverable.]

Tylo v. Superior Court(1997), 55 Cal. App.4th1379 [questions re marital privacy, attempts at pregnancy prohibited unless direct relevance ]

STATUTORY PROTECTIONS e.g.CCP §1985.3

Lantz v. Superior Court(1994), 28 Cal.App.4th 1839 [Failure to comply with notice requirements that have their genesis in right to privacy may invalidate document production]

Pioneer Electronics v. Superior Court (2007), 40 Cal.4th 360.   The Court discussed the right to be left alone and referenced statutory protections and legislative pronouncements.

"In reaching its decision, the Court of Appeal relied in part on ballot arguments leading to the adoption of the privacy provision of the state Constitution in 1972. These arguments explained that the right of privacy could be defined as the "right to be left alone," and observed that "the right to be left alone . . . is a fundamental and compelling interest. . . . It prevents government and business interests from collecting and stockpiling unnecessary information about us and from misusing information gathered for one purpose in order to serve other purposes or to embarrass us." (Ballot Pamp., Proposed Stats. and Amends. to Cal. Const. with arguments   to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 27; see Hill v. Colorado (2000) 530 U.S. 703, 716, 147 L. Ed. 2d 597[privacy right to be free in one's home from unwanted communication]; see also Hill v. National Collegiate Athletic Assn. (1994) (Hill) 7 Cal.4th 1, 81 (dis. opn. of Mosk, J.).)
"The Court of Appeal also cited the Information Practices Act of 1977 (Civ. Code, § 1798 et seq.), an act which contains legislative findings that "(a) The right to privacy is being threatened by the indiscriminate collection, maintenance, and dissemination of personal information and the lack of effective laws and legal remedies[;][P] (b) The increasing use of computers and other sophisticated information technology has greatly magnified the potential risk to individual privacy that can occur from the maintenance of personal information[; and] [P] (c) In order to protect the privacy of individuals, it is necessary that the maintenance and dissemination of personal information be subject to strict limits." (Civ. Code, § 1798.1.)
"The Court of Appeal relied in part on a case upholding the right of householders not to receive advertising and solicitations by mail (Rowan v. Post Office Dept. (1970) 397 U.S. 728, 737, 25 L. Ed. 2d 736), but that case held that a householder may circumscribe the right of a mailer to communicate with him "by an affirmative act of . . . giving notice that he wishes no further mailings from that mailer." (Id. at p. 737; see Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 357-359, [disclosure of names, addresses, and telephone numbers of association members for contact purposes implicates privacy interest in sanctity of home].) In other words, in Rowan the supposed privacy infringement would continue unless the householder requested otherwise, consistent with the trial court's order in the present case, which required the consumer to notify Pioneer of his or her objection to disclosure."

...the court cited Colonial Life & Accident Ins. Co. v. Superior Court, supra, 31 Cal.3d 785, which allowed disclosure to plaintiff in a bad faith insurance action of the names and addresses of third parties filing similar claims against that insurer only if those parties specifically authorized the release of such information by signing and dating an enclosed form that so stated. The Colonial Life approach, however, was mandated by the express provisions of the Insurance Information and Privacy Protection Act  (Ins.Code, 791 et. seq.),  preventing an insurer from disclosing personal information obtained about a person during an insurance transaction without the person's written authorization (id., § 791.13).

TOP
CONTENTS


TAX RETURNS [see also tax return privilege]

Schnabel v. Superior Court (1993), 5 Cal.4th 704,723. Third party payroll tax information protected absent a showing of need. General tax return privilege applies to protect 3d party information though it did not protect a party's records

TENANT'S HOME

People v. Escudero (1979), 23 Cal.3d 800, 807.[Warrantless search based on consent of owner; general rule is that L cannot consent to police entry of premises occupied by T regardless of nature of premises. "...the is as braoad as necessary to protect the privacy interest at stake....That privacy, of course, is not absolute."]

WITNESSES

Planned Parenthood Golden Gate v. Superior Court (2000), 83 Cal.App.4th 347 [Names, addresses and home telephone numbers of nonparty staff and volunteers of Planned Parenthood sought by anti-abortion demonstrators; reasonable concern for safety and not likely to talk to investigators; court considered political climate & all circumstances and concluded disclosure would not promote state interest of truth seeking]



TOP
CONTENTS


BALANCING OF RIGHTS: PRIVACY VS. FAIR TRIAL

Balancing requires a factual analysis and compromise to accommodate the competing interests. Where privacy prevails, the Court should impose partial limitations on discovery rather than outright denial; and, where there is a compelling state interest justifying discovery, the scope of discovery should be narrowly restricted and a protective order should be issued to minimize the intrusion on privacy.

Board of Trustees v. Superior Court (1981), 119 Cal.App.3d 516, 526, 532. Reference letters produced after deleting information identifying the source.

Kahn v. Superior Court(1987), 188 Cal.App.3d 752. C/A for tortious interference with academic appointment; money damages sought. No claim of wrongful discharge or discrimination. Depo of Def. denied re review & appointment process due to expectations of privacy & academic freedom.

Planned Parenthood Golden Gate v. Superior Court (2000), 83 Cal.App.4th 347 [witnesses different from routine litigation and little probability that truth seeking or the litigation process will be assited by disclosure of staff to anti-abortionists]

Factors to Consider 

Alch v. Superior Court (2008), 165 Cal.App.4th 1412


Purpose of the information sought [Alch]

Effect that disclosure will have on the parties and on the trial, [Alch]

Nature of the objections urged by the party resisting disclosure, [Alch]

Alternative order: partial disclosure, disclosure in another form, or on condition [Alch]

Nature of the information sought, [Alch]

Inherent intrusiveness,[Alch]

Specific showing of need for privacy & any specific harm that might result [Alch]

Countervailing interests, which include [Alch]

the interest of the requesting party,

fairness to the litigants in conducting the litigation, and the

consequences of granting or restricting access to the information"]

`strength of an individual's interest in keeping personal information private depends in large part on the consequences of disclosure'"].)

Patently sensitive items such as medical and financial records [Alch]
Agglomeration of information   [Alch]

Pioneer Electronics v. Superior Court (2007), 40 Cal.4th 360.  The Supreme Court reviewed Hill v. National Collegiate Athletic Assn. (1994), 7 Cal.4th 1

B. The Hill Decision and Its Balancing Test
...the right of privacy protects the individual's reasonable expectation of privacy against a serious invasion . Hill observed that whether a legally recognized privacy interest exists is a question of law, and whether the circumstances give rise to a reasonable expectation of privacy and a serious invasion thereof are mixed questions of law and fact. ..."If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law." (Ibid.)
Hill sets forth in detail the analytical framework for assessing claims of invasion of privacy under the state Constitution. First, the claimant must possess a "legally protected privacy interest." ... An apt example from Hill is an interest "in precluding the dissemination or misuse of sensitive and confidential information ('informational privacy') . . . ." ... Under Hill, this class of information is deemed private "when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity." (Ibid.) Additionally, Hill recognized the interest "in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference ('autonomy privacy')." (Ibid.) As with claims of informational privacy, we must examine whether established social norms protect a person's private decisions or activities from "public or private intervention."...
Second, Hill teaches that the privacy claimant must possess a reasonable expectation of privacy under the particular circumstances, including "customs, practices, and physical settings surrounding particular activities . . . ." As Hill explains, "A 'reasonable' expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms." "[O]pportunities to consent voluntarily to activities impacting privacy interests obviously affect[] the expectations of the participant." (Ibid.)
Third, Hill explains that the invasion of privacy complained of must be "serious" in nature, scope, and actual or potential impact to constitute an "egregious" breach of social norms, for trivial invasions afford no cause of action.
Assuming that a claimant has met the foregoing Hill criteria for invasion of a privacy interest, that interest must be measured against other competing or countervailing interests in a "balancing test."[citations] "Conduct alleged to be an invasion of privacy is to be evaluated based on the extent to which it furthers legitimate and important competing interests."...Protective measures, safeguards and other alternatives may minimize the privacy intrusion. "For example, if intrusion is limited and confidential information is carefully shielded from disclosure except to those who have a legitimate need to know, privacy concerns are assuaged." (Ibid.)


DIRECTLY RELEVANT & ESSENTIAL
Justification for intrusion on right to privacy

Directly related to specific issue in case. Compelling state interest in ascertainment of truth in litigation may justify invasion of privacy; but even if it is directly relevant, discovery is not inevitable and balancing against privacy is required.

Britt v. Superior Court {1978) 20 Cal.3d 844
Planned Parenthood Golden Gate v. Superior Court (2000), 83 Cal.App.4th 347
Binder v. Superior Court(1987) 196 Cal.App.3d 893 at p.900.
Palay v. Superior Court(1993), 18 Cal.App.4th 919, 934 [relevant and no alternative i.e. intrusion on privacy must be necessary and unavoidable to achieve compelling state interest
Kizer v. Sulnick (1988) 202 Cal.App.3d431, 438. Clearly material and relevant
Save Open Space Santa Monica Mountains v. Superior Court (2000), 84 Cal.App.4th 235

Essential to fair resolution: least intrusive alternative or no alternatives.

Vinson v. Superior Court (1987) 43 Cal.3d 833.
Planned Parenthood Golden Gate v. Superior Court (2000), 83 Cal.App.4th 347
Palay v. Superior Court, (1993) 18 Cal.App.4th 919, 934
Wood v. Superior Court (1985) 166 Cal.App.3d 1138, 1149. Essential to a focused inquiry: unavoidable, no alternatives; convenience & economy no justification.
Save Open Space Santa Monica Mountains v. Superior Court (2000), 84 Cal.App.4th 235 Trial Court needed information to make an informed decision

Factors to be considered

Planned Parenthood Golden Gate v. Superior Court (2000), 83 Cal.App.4th 347 [court considered all circumstances including politics, legislative actions, acts by other anti-abortionists]

Nature of action and relief sought

Money damages
Vindication of public policy
Whistle blower
Discrimination: sex, age, race

Whose privacy ? (Plt.,Def., or 3rd party)
Expectations of privacy & promises of privacy
Efforts made to maintain privacy
Alternative sources of information
Degrees of relevancy: how compelling is the need to know

TOP
CONTENTS


LIMITATIONS ON SCOPE OF DISCOVERY

NARROW SCOPE OF DISCOVERY
If allowed, order should be drafted with narrow specificity in order to protect privacy.

Planned Parenthood Golden Gate v. Superior Court (2000), 83 Cal.App.4th 347 [any intrusion should be minimal necessary to achieve objective; names, addresses and home telephone numbers of nonparty staff and volunteers of Planned Parenthood sought by anti-abortion demonstrators;]

Wood v. Superior Court
(1985) 166 Cal.App.3d 1138,1149.

Palay v. Superior Court(1993), 18 Cal.App.4th 919,934 [utilize the least intrusive means to satisfy the compelling state interest] ["Discovery procedures must be utilized that identify and remove documents irrelevant and immaterial to the issue of prenatal care. The scope of methods used must be tailored to avoid disclosure of protected records."]

IN CAMERA PROCEEDINGS TO LIMIT SCOPE OF DISCOVERY

Palay v. Superior Court(1993)18 Cal.App.4th 919, 935 [Trial court procedure of in camera review of records with party asserting privacy present approved.]
Save Open Space Santa Monica Mountains v. Superior Court (2000), 84 Cal.App.4th 235

PROTECTIVE ORDERS TO NARROW SCOPE OF DISCOVERY

TBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443 [trCt re'vd for prohibiting discovery but Ct App. ordered further proceedings and consideration of protective ordereven if privacy has been waived or does not protect matter sought in toto, protective order may be required to narrow the scope to directly relevant material]

Save Open Space Santa Monica Mountains v. Superior Court (2000), 84 Cal.App.4th 235


Protective order may be inadequate protection of privacy

Planned Parenthood Golden Gate v. Superior Court (2000), 83 Cal.App.4th 347 ["And, although we do not assume the recommeded protective order will be violated, the potential consequences of such a violation pose too serious of a risk for us to ignore"; names and home addresses and phone numbers of staff and volanteers of Planned Parenthood sought by anti-abortionists]

Boler v. Superior Court (1987), 201 Cal.App.3rd 467,475. ["The discovery order is an impermissible intrusion into the sexual privacy of Boler and the unknown women, and must be set aside. The fact that the trial court ordered that the information obtained from Boler not be disclosed, and be filed under seal as confidential, does not cure the intrusion into the sexual privacy interests at stake. Such a protective order, while laudable, is only available after valid discovery has been ordered. The discovery order herein is not valid."]

Possible protections

Limitations as to

time frame of discovery
scope of subject matter
persons allowed access to material
use of material

Deletion of identifying or sensitive information
Destruction or return of documents after trial
Create paper record of distribution & bind recipients of documents to order

TOP
CONTENTS

LIMITED PROTECTION MAY BE INSUFFICIENT

Hinshaw, Winkler Draa, Marsh & Still v. Superior Court(1996), 51 Cal.App.4th 233 [redaction of names insufficient protection]

Kizer v. Selnik (1988) [deletion of names and other identifying info from report sufficient to protect privacy]

Davis v. Superior Court (1992), 7 Cal.App.4th 1008, at p.1018 [Time limitations and general confidentiality order (e.g. use only for trial prep and the trial) insufficient to protect privacy.]

Olympic Club v. Superior Court(1991), 229 Cal.App.3d 358, 361. [Order "preventing the City from divulging this information" was insufficient.]

Hoffman Corp. v.Superior Court(1985), 172 Cal.App.3rd 357. [Limiting use to litigation insufficient.]

Boler v. Superior Court (1987), 201 Cal.App.3rd 467,475. ["The discovery order is an impermissible intrusion into the sexual privacy of Boler and the unknown women, and must be set aside. The fact that the trial court ordered that the information obtained from Boler not be disclosed, and be filed under seal as confidential, does not cure the intrusion into the sexual privacy interests at stake. Such a protective order, while laudable, is only available after valid discovery has been ordered. The discovery order herein is not valid."]

Kizer v. Sulnick (1988) 202 Cal.App.3d 431,438. [ Health study sought was discoverable over claim of privacy because it was "clearly material and relevant." If individually identifiable medical records were sought, " the right to privacy would justify, at most" the deletion of identifying information.]


ORDER TERMS WHEN DISCOVERY LIMITED TO PROTECT PRIVACY
Discovery may be sought because of certain factual or legal contentions made.  The party may be willing to drop or concede issues rather than forfeit privacy and this may accomplish as much or more than the discovery would have accomplished.  The record should be clear so that the trial judges will be able to easily understand and enforce it should there be any violation of the agreement and order at trial. The following is a suggested form that has been successfully used. The order entered in any particular action should be as specific as possible as to representations, agreements and information to be excluded at trial.


PROPOSED FORM
TERMS OF ORDER
or
NOTICE TO ALL PARTIES
RE DENIAL OF DISCOVERY BASED ON PRIVACY

In opposing discovery based on a claim of right to privacy, Plaintiff has asserted that the only injuries for which compensation is sought consist of _______________________. Plaintiff is not asserting any claim for mental or emotional distress other than the "usual", "normal", or "garden variety" emotional distress associated with the alleged conduct or physical injuries for which compensation is sought. Plaintiff will not call or permit any expert witness to testify on its behalf, or permit any other evidence to be introduced on its behalf on the subject of emotional or mental injuries.

The decision to limit or prohibit [production of private and personal records or the conduct of the medical examination] is based on the the representations of counsel and the party with regard to the claims being made and the injuries for which compensation is sought. The Court and opposing counsel have relied on those representations and they are deemed to be binding on the party on whose behalf they have been made. The party seeking discovery of medical or other private information information has been denied pretrial discovery based on those representations. The party making the representations is precluded from introducing any evidence or advancing any claims inconsistent with those representations or in excess of the claims made in connection with this motion or order.

Any violation of the limitations on evidence or claims intentionally or inadvertently made may result in an appropriate order including but not limited to an order declaring a mistrial, striking evidence and admonishing the jury to disregard it, prohibiting the introduction of evidence, or instructing the jury as to limitations on the claims and damages that may be awarded. In addition, the court may impose other appropriate sanctions including contempt, evidentiary sanctions, issue sanctions or terminating sanctions.

TOP
CONTENTS

BURDEN OF PROOF

Initial showing of privacy may be inferred and a declaration may not be required

Davis v. Superior Court(1992), 7 Cal.App4th 1008,1118. Court notes that it could find no cases as to whether any showing must be made or what that showing might be; however, "...the nature of the material sought seems sufficient to invoke the privacy privilege." The court assumed some showing is required.

Harding Lawson Assoc.v. Superior Court supra. Mere fact that documents were located in a personnel file appeared sufficient to invoke the right to privacy.  Subsequent cases have interpreted case to be limited to confidential matters after court determines on a category by category analysis that there was a reasonable expectation of privacy under the facts and circumstances and that the privacy invasion is serious.

Schnabel v. Superior Court (1993), 5 Cal.4th 704,718. Court found in favor of right of spouse of shareholder to examine corporate books and records to value corporation in dissolution action. As to corporate or majority shareholder privacy rights the court noted: "There was no specific showing of the privacy interests of the majority shareholder...."

Effect of being within a zone of privacy is that the information is presumptively immune from discovery and a prima facie showing is required from the party seeking discovery to invade that zone of privacy.

Britt v. Superior Court (1978) 20 Cal.3d 844 at p.855

Grey v. Superior Court (1970) 62 Cal.App.3d 698 Something more than speculation.

Fultz v. Superior Court (1979) 88 Cal.App.3d 899 Demonstrate a compelling interest or likelihood of discovery .

Morales v.Superior Court (1979) 99 Cal.App.3d 283

Party seeking discovery must show the necessity by competent evidence.

Bearman v. Superior Court, (2004), 117 Cal. App.4th 463 Dr. approved medical marijuana & patient showed letter to park rangers. Med Bd conducting an investigation of negligence or violation of statutes by Dr. sought all patient medical records over an assertion of the Right to Privacy. Petition to enforce administrative subpoena granted by trial court and reversed by Court of Appeal.The Court of Appeal held the declaration was insufficient to show good cause to support an administrative subpoena for production of all patient records over the right to privacy objection because of a lack of competent evidence as to the need for the particular records.There must be sufficient factual particularity for the court to make an independent determination.Basic facts + conclusions are insufficient; must provide “mediating” or “root” or “evidentiary” facts that support a conclusion that the records will likely establish the ultimate fact or issue.

...we conclude the Medical Board’s evidence was insufficient to show good cause to invade Nathan’s right of privacy in his medical records. The declarations included no facts even suggesting Dr. Bearman was negligent in Nathan’s treatment, that he indiscriminately recommended marijuana, the circumstances under which marijuana may arguably be prescribed for migraines or attention deficit disorder, or that Dr. Bearman in any way violated section 11362.5. The statements regarding Dr. Bearman’s possible unethical conduct made by Ranger Just, Investigator Foster, and Dr. Noble are nothing more than speculations, unsupported suspicions, and conclusory statements drawn solely from Dr. Bearman’s letter to Nathan and the simple fact he recommended the use of marijuana. While the Medical Board may want assurance Dr. Bearman was not violating the law or providing negligent treatment, that goal, even when accompanied by suspicion, is not enough to invade a patient’s right of privacy unless there are facts from which to make an independent showing of good cause. (See Wood, supra, 166 Cal.App.3d at pp. 1149-1150; Gherardini, supra, 93 Cal.App.3d at pp. 680-681.) Those facts are simply missing in this case.” page 8 slip opinion

Wood v. Superior Court (1985) 166 Cal.App.3d 1138,1149-50. The party seeking discovery "must identify the particular records that contain pertinent information and, unless it is obvious to a layperson, show why that information must be obtained to resolve the investigation."
"The judicial function of assessing cause...cannot be abdicated by referring to the bare conclusions of [the party seeking discovery]."

Mendez v. Superior Court (1988) 206 Cal.App.3d 557, 570. Suggests expert declaration may be required rather than a request "based solely on speculative presumption "or "conjecture."

Barrenda v. Superior Court(1998), 65 Cal.App.4th 794

Planned Parenthood Golden Gate v. Superior Court (2000), 83 Cal.App.4th 347 [no need for residential information since it was unlikely persons would talk to anyone representing the anti-abortionists and defendant agreed to accept service etc.]

Establish direct relevance of the information sought to specific issue

Davis v. Superior Court(1992) 7 Cal.App.4th
1008 at p.1017

Tylo v. Superior Court(1997), 55 Cal. App.4th1379 [determine and show specific injury for which damages are sought and nexus of information to those injuries by competent declarations]

Barrenda v. Superior Court (1998), 65 Cal.App.4th 794 [follows Tylo]

Speculation is insufficient

Davis v. Superior Court, supra.at p.435.
Mendez v. Superior Court (1988) 206 Cal.App.3d 557 at p.570.

TOP
CONTENTS



STANDING / DUTY TO ASSERT RIGHT TO PRIVACY   [SEE below re litigation privilege]

CUSTODIAN HAS STANDING TO ASSERT

Pioneer Electronics v. Superior Court (2007), 40 Cal.4th 360,  2007 Cal. LEXIS 553      ID of potenetial class member sought in recertification phase of class action.  Affirmative consent is not required if notice and an opportunity to object is provided by letter.
"...Pioneer, as custodian of the relevant documents, has standing to assert the privacy interests of its customers in the identifying information they gave to Pioneer. (See  Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 658, 125 Cal. Rptr. 553 (Valley Bank). But Valley Bank also supports the trial court's order here, placing the burden of making a privacy objection on the customer."

Valley Bank of Nevada v. Superior Court (1975), 15 Cal.3d 652, at page 658. Bank sought protective order but court admonished that notice & opportunity to be heard must be afforded customers before disclosure. See also C.C.P. l985.3 re notice to "consumers". See also Olympic Club v. Superior Court, supra, re requirement of prior notice to third parties and opportunity to object.

Rancho Publication v. Superior Court (1999), 68 Cal.App.4th 1538 [newspaper standing to assert rights of anonymous publishers of political ads]

Cf. Mendez v. Superior Court (1988) 206 Cal.App.3d 557 at p. 568 noting that notice and an opportunity for 3rd parties to appear may be "meaningless" and subvert the right to privacy.

El Dorado Savings & Loan Assn. v. Superior Court, supra at p.345. Bank claimed to represent non-party employee

Willis v.Superior Court (1980) 112 Cal.App.3d 277 at p.297.

Board of Trustees v. Superior Court (1981), 119 Cal.App.3rd 516.

Craig v. Municipal Court supra.

Kaplan v. Superior Court (1971) 6 Cal.3rd 150, 155.

Lifschutz supra.

Board of Medical Quality Assurance v. Gherardini (1979), 93 Cal.App.3d 669.

Hendrickson v. California Newspapers(1975), 48 Cal.App.3d 59, 62.

Saddleback Community Hospital v. Superior Court(1984), 158 Cal.App.3d 206, 209 [Hospital can raise privacy of non-physician staff re personnel files]

Contra: County of Kern v. Superior Court (1978) 82 Cal.App.3d 396. Hospital can't assert right to privacy of doctor; only person whose privacy is invaded can assert right.

TOP
CONTENTS

DUTY TO ASSERT RIGHT AND/OR TO NOTIFY THIRD PARTIES


Valley Bank of Nevada v. Superior Court (1975), 15 Cal.3d 652 at p.658 "...we conclude that before confidential customer information may be disclosed in the course of civil discovery proceedings, the bank must take reasonable steps to notify its customer of the pendency and nature of the proceedings and to afford the customer a fair opportunity to assert his interests by objecting to disclosure, by seeking an appropriate protective order, or by instituting other legal proceedings to limit the scope or nature of the matters sought to be discovered."

Doe 2 v. Superior Court (2005), 132 Cal.App.4th 1504, 1520, 34 Cal.Rptr.3d 458 (2005). 

"In this case, it is true that the privacy rights of third parties may be implicated. Indeed, the plaintiffs do not claim otherwise, though they argue (correctly) that "[t]he constitutional right to privacy is not absolute. [Citations.] It may be outweighed by supervening concerns. [Citation.] The state has enough of an interest in discovering the truth in legal proceedings, that it may compel disclosure of confidential material." (Palay v. Superior Court (1993) 18 Cal.App.4th 919, 933, 22 Cal.Rptr.2d 839.) However, before a court can make such a determination, it must afford the parties whose privacy rights are at issue an opportunity to present their views.
Thus, if after remand the trial court rejects the church's clergy-penitent privilege assertion regarding the communications by third parties to Pastor Fernandez, these third parties must be formally notified of the proceedings and afforded a fair opportunity to assert their privacy interests by objecting to the disclosure — in whole or in part — or asserting possible alternative ways to protect their privacy rights.

Fn.7.  In [the Valley Bank case], the Supreme Court held that a plaintiff bank could be compelled to disclose in discovery confidential information provided by certain bank customers (who were not parties to the action), but that, before the information could be disclosed, the customers should be notified and given an opportunity to object to the disclosure.

Weingarten v. Superior Court (Pointe San Diego Residential Community) (2002), 102 Cal.App.4th 268, 278.   "A party to an action may assert the privacy rights of third parties. (See Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657.) In such event, the third party has a right to notice and an opportunity to be heard. (Id. at p. 658.) Thus, Robert Weingarten should have been formally notified of the proceedings and afforded a fair opportunity to assert his interests by objecting to the disclosure, proving up the identity of his separate property, or asserting possible alternative ways to protect his privacy rights."

Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516,525. "'The custodian (of private information) has the right, in fact the duty, to resist attempts at unauthorized disclosure and the person who is the subject of (it) is entitled to expect that his right will be thus asserted.' ( Citing Craig v. Municipal Court.) And, of course, the custodian of such private information may not waive the privacy rights of persons who are constitutionally guaranteed their protection." [litigation privilege may immunize against claim against custodian producing records in litigation]

Olympic Club v. Superior Court (1991) 229 Cal.App.3d 358, 361. Asserting the right and obtaining a general protective order was insufficient to protect 3rd parties and notice was required.

Binder v. Superior Court (1987) 196 Cal.App.3d 893 at p.899: "Dr.Binder, as custodian of his patients' records, has the duty to assert the privacy rights of his patients in the contents of those records. Craig v.Municipal Court (l979) 100 Cal.App.3d 69,77...."

Cutter v. Brownbridge (1986) 183 Cal.App.3d 836. Voluntary disclosure, without asserting & losing psychiatrist-patient privilege, may eliminate Section 47 (2) immunity and subject the custodian to liability. Right to privacy may prevail over need for truth in court proceedings.  [Disapproved in Jacob B. v. County of Shasta, 40 Cal.4th 948, 154 P.3d 1003, 56 Cal.Rptr.3d 477 Litigation privilege applies to and prohibits an action based on a violation of the constitutional right to privacy.]

Wood v. Superior Court (1985) 166 Cal.App.3d ll38,1149. "The first constraint appropriate to accommodate the privacy interest of the patient is that the board must take reasonable steps to notify the patient of its proposed examination."

Mendez v. Superior Court (1988) 206 Cal.App.3d 557, 568. Providing notice and an opportunity to oppose discovery to third parties may be "meaningless."

TOP
CONTENTS

WAIVER OF RIGHT BY FAILURE TO ASSERT

Privacy waiver by failure to object

R.S. Creative Inc. v. Creative Cotton Ltd. (1999), 75 Cal.App.4th 486 [privacy re materials on hard drive waived when not raised by protective order motion]


Rule may not apply to privacy

Lantz v. Superior Court(1994), 28 Cal.App.4th 1839,1857 [Waivers of constitutional rights are not lightly found. Heda v. Superior Court, 225 Cal.App.3d at 530]

Boler v. Superior Court infra, fn1 at p. 472. "The waiver rule does not appear to necessarily apply to the sexual privacy context...."

Heda v. Superior Court (1990), 225 Cal.App.3rd 525, 529. Party objected only on relevancy grounds. Defendant's med records sought for 36(d) trial preference motion. No waiver.

Mendez v. Superior Court supra at p.578. Relevancy objection noted.

Willis v. Superior Court(1980), 112 Cal.App.3d 277,296 [non-parties to litigation should have notice and opportunity to be heard; ct. can consider issue when it is raised regardless of 3rd party litigant's failure to raise the issue]

No waiver by failure of 3rd party to assert right even if party to the litigation could or had a duty to assert the right to privacy.

Binder v. Superior Court (1987)196 Cal.App.3d 893, at p.900.
Boler v. Superior Court(1987) 201 Cal.App.3d 467.
Church of Hakeem v. Superior Court, supra
Morales v. Superior Court (1979), 99 Cal.App.3d 292. In wrongful death C/A, H's privacy could be invaded regarding extramarital sex but the names etc. of 3rd parties was protected.
Britt v. Superior Court, supra at p.858.

Implicit assertion of privacy objection by asserting another objection.

Fireman's Fund Ins. Co. v. Superior Court (1991), 233 Cal.App.3d 1138, 1141 fn.1. "In proceedings below, Fireman's Fund did not mention commercial sensitivity as a grounds for protection, but this is implied in its assertion of attorney-client and work product protection."

Brown v. Superior Court(1986), 180 Cal.App.3rd 701, 709 Self-incrimination waived.

TOP

WAIVER OF RIGHT BY TENDER OF ISSUE IN LAWSUIT narrowly construed

Britt v. Superior Court (1978) 20 Cal.3d 844, 858. Any waiver is only a partial waiver which must be narrowly construed; only matters directly relevant and essential to a fair resolution of the lawsuit are discoverable; and, any compelled disclosure must be narrowly drawn to assure maximum protection of the constitutional interests.

Bearman v. Superior Court, (2004), 117 Cal. App.4th 463 [...the filing of a lawsuit may be deemed a waiver of privacy as to matters embraced by the action. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 849 (Britt); Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) But even when a plaintiff files an action that places his or her medical records at issue, waivers of constitutional rights are narrowly construed and not lightly found. (See id. at p. 842; Britt, at p. 859; San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1092; Heda v. Superior Court (1990) 225 Cal.App.3d 525, 531; see also Wood, supra, 166 Cal.App.3d at p. 1147 [a person’s right of privacy in their medical records is fundamental because “[t]hese are matters of great sensitivity going to the core of the concerns for the privacy of information about an individual”].)” page 9 slip opinion]


Lantz v. Superior Court(1994), 28 Cal.App.4th 1839, 1855 [Assuming production of med records, limit scope to minimal intrusion necessary to satisfy need for info.]

Moskowitz v. Superior Court, supra.

Tylo v. Superior Court(1997), 55 Cal. App.4th1379

WAIVER OF RIGHT BY CONSENT

Privacy waived by consent

Bearman v. Superior Court, (2004), 117 Cal. App.4th 463  [The right to privacy was not waived by voluntarily producing the Dr letter re the need for medical marijuana. We conclude the level of detail in Dr. Bearman’s letter [re the medical necessity for a marjuana prescription] was appropriate and the disclosure’s did not result in a voluntary waiver of Nathan’s right of privacy in his medical records.” page 12 slip opinion]

TBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443 [consent in employer agreement to employer ownership, use and subject matter limitations, monitoring, and discharge for violation of agreement; no reasonable expectation of privacy]


TOP
CONTENTS


CORPORATE RIGHT TO PRIVACY

Schnabel v.Superior Court (1993), 5 Cal.4th 704,718 Corporate right to privacy suggested but overruled by shareholder right to examine records and need to know for corporate evaluation in divorce

Ameri-Medical Corporation v. Workers' Comp. Appeals Board,(1997), 42 Cal.App.4th 1260
1287-88 ["Although corporations have a lesser right to privacy than human beings and are not entitled to claim a right to privacy in terms of a fundamental right, some right to privacy exists. Privacy rights accorded artificial entities are not stagnant, but depend on the circumstances."]

GT, Inc v. Superior Court
(1984), 151 Cal.App.3d 748. Disclosure of financial information of a competitor relevant to the merits of the case was limited to counsel. Protective order issued for good cause but the burden of proof was on the party seeking protection rather than the party seeking discovery within zones of privacy.

Fireman's Fund Insurance Co. v. Superior Court(1991) 233 Cal.App.3d 1138. Commercially sensitive documents protected by the protective order provisions of C.C.P §2031(e). Ct.Ap. found that the commercial sensitivity objection, though not mentioned at the trial court level, was implied by the assertion of the attorney-client and work product objections.

Hoffman Corp. v. Superior Court (1985), 172 Cal.App.3d 357. Commercial sensitivity of customer list in products liability case. General protective order insufficient. Balancing test applied: need & relevancy vs. damages to party from disclosure. Tr.Ct.rev'd. for allowing discovery.

Roberts v. Gulf Oil Corp.(1983), 147 Cal.App.3d 770, 791. "The constitutional provision simply does not apply to corporations."

Ion Equip. Corp. v. Nelson (1980), 110 Cal.App.3d 868, 878. No common law invasion of privacy tort; however, corparation may have statutory rights for eavesdropping on confidential communications.

TOP
CONTENTS

POSSIBLE LIABILITY FOR FAILING TO ASSERT RIGHT TO PRIVACY Litigation Privilege
Litigation Privilege [Civ.C. Sec. 47(b)] protects custodian producing documents or offering testimony
 

Jacob B. v. County of Shasta (2007), 40 Cal.4th 948, 154 P.3d 1003, 56 Cal.Rptr.3d 477 April 05, 2007  Litigation privilege applies to and prohibits an action based on the constitutional right to privacy. Official writing a letter to be used in litigation is protected by the litigation privilege and cannot be sued for violating the right to privacy of a non-party. The Constitutional Right to Privacy is not absolute and must be balanced against the absolute litigation privilege of Civil Code 47(b).

Foothill Federal Credit Union v. Superior Court (Cal.App. 2 Dist.,2007), 2007 WL 2757429, 2007 Cal. App. LEXIS 1596 Custodian that produces personal records in response to a subpoena that fails to comply with C.C.P. 1985.3 is protected by the Litigation Privilege [Civil Code Section 47(b)] and cannot be sued for intentional infliction of emotional distress or invasion of privacy.


Cutter v. Brownbridge(1986) 183 Cal.App.3d 836. Patient action against psychotherapist for voluntarily disclosing confidential information to patient's ex-wife for use in visitation proceedings. For judicial proceedings immunity to apply, psychotherapist must assert privilege and require court proceedings. Disapproved in Jacob B. v. County of Shasta, 40 Cal.4th 948, 154 P.3d 1003, 56 Cal.Rptr.3d 477  Litigation privilege applies to and prohibits an action based on violation of the constitutional right to privacy. 

Inabnit v. Berkson (1988) 199 Cal.App.3d 1230. Med records supoened in wrongful death C/A. In 2d action, Plt. sued Dr. for releasing records without asserting privilege. Summary judgment granted and affirmed because Plt.'s attorney had received C.C.P. 1985.3 notice and waived privilege by failing to object.

LIABILITY FOR OBTAINING PRIVATE INFORMATION

Susan S. v. Israels (1997), 55 Cal.App.4th 1290, 67 Cal.Rptr.2d 42  Crimnal defense lawyer subpoened mental health records which were turned over directly to the lawyer in toto and without review for relevancy and privacy. The lawyer "read, transmitted and used Susan S.'s mental health records in order to intimidate, embarrass and humiliate...." the records were transmitted to an expert witness who used them. "In this case we hold a crime victim has a cause of action for invasion of her constitutional right to privacy against a defense attorney who, without authorization, reads and disseminates the victim's confidential mental health records."
[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by the defendant constituting a serious invasion of privacy.”
"It is undisputed Susan S. had a legally protected privacy interest in her mental health records. ( Pettus v. Cole (1996) 49 Cal.App.4th 402, 440 [57 Cal.Rptr.2d 46]; Cutter v. Brownbridge (1986) 183 Cal.App.3d 836, 842 [228 Cal.Rptr. 545] and cases cited therein.)
"D. Defendants Are Not Immune From Liability Under the Litigation Privilege.
Susan S.'s cause of action for invasion of her constitutional right of privacy does not depend on the “publication” or “broadcast” of her mental health records but rests on Israels' conduct in reading those records."

Theofel v. Farey-Jones
(9th Cir.2004), 359 F.3d 1066  339 "samples" of e-mails subpoenaed from ISP were posted to the website and reviewed and used by the party seeking discovery without notifying oppossing counsel. Thereafter the subpoena was qushed as overbroad and sanctions awarded.  An action was brought in federal court for violations of the The Stored Communications Act for accessing the stored emails and the Computer Fraud and Abuse Act, which provides a cause of action against one who, inter alia, “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains ... information from any protected computer if the conduct involved an interstate or foreign communication.” The Stored Communications Act defines “electronic storage” as “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”