JAMES W. JOHNSTON

ATTORNEY AT LAW

3877 Twelfth Street

Riverside, CA 92501

State Bar No. 125287

(909) 788-0860

 

 

Attorney for Plaintiff

 

 

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN BERNARDINO, WEST DISTRICT

 

 

DAVID SOLDAN

                      Plaintiff,

          vs.

RITE AID CORPORATION, et al.

                      Defendants

Case No: RCV 36110

 

 

MEMORANDUM OF POINTS AND AUTHORIES IN SUPPORT OF MOTION TO QUASH SUBPOENAS

 

 

INTRODUCTION

In this action, plaintiff is claiming damages for wrongful termination in retaliation for his exercising his right to take medical leave under the California Family Rights Act.  This claim arose when plaintiff was fired upon his return to work after being hospitalized and undergoing an emergency appendectomy. Other claims that plaintiff is asserting in this action include a cause of action based on defendant’s failure to pay plaintiff overtime pay, and a claim for unpaid bonuses.

 

STATEMENT OF THE CASE

This action alleges causes of action for Unpaid Overtime; Violation of the California Family Rights Act, Tortious Discharge in Violation of Public Policy, and a Statutory Claim for Unpaid Bonuses. On May 22, 2000, defendant had plaintiff personally served with copies of business records deposition subpoenas directed to OFFICE MAX [plaintiff’s current employer], and WAL-MART [plaintiff’s prior employer.] Each deposition subpoena is egregiously overbroad, and seeks:

“Any and all records, including but not limited to records regarding employment, whether academic or otherwise, complaints, grievances, payroll, and/or payment, unemployment, workers compensation, pre-employment records, employment applications, correspondence, resumes, reference letters, interviews, statements, notes from any time until the present regarding David Soldan.”

After receiving copies of defendant’s subpoenas, plaintiff prepared and filed this motion to quash.

 

SUMMARY OF LEGAL ARGUMENTS

 

         1.           PERFORMANCE RECORDS ARE INADMISSIBLE:  Even under the broad scope of discovery authorized by Code of Civil Procedure §2017(a), which is arguably not even applicable here since the records being sought are protected by a right of privacy, there still is some limitation on what can be discovered, i.e. either the items must themselves be relevant, or there must be a reasonable likelihood that they would lead to the discovery of admissible evidence. Personnel records pertaining to plaintiff’s work performance with Office Max [his current employer] or Wal-Mart [his prior employer] would not be relevant since they would constitute inadmissible character evidence under Evidence Code §1101(a). (See Hinson v. Clairemont Community Hospital (1990) 218 Cal.App.3d 1110.)  Furthermore, these performance records also would not be reasonably likely lead to the discovery of admissible evidence, since any follow-up information obtained pertaining to plaintiff’s work performance with his prior or current employer similarly would be inadmissible at trial under Evidence Code §1101(a).

         2.           RIGHT TO PRIVACY: Personnel files at a person's place of work are within a constitutionally protected zone of privacy. Board of Trustees v. Superior Court (1981) 119 Cal.App. 3d 516.   Likewise, medical records, which are encompassed by defendant’s overbroad subpoenas (e.g. worker’s compensation records) also are protected by a right of privacy. Britt v.Superior Court (1978) 20 Cal.3d 844; Hallendorf v. Superior Court (1978) 85 Cal.App.3d 553.

         3.           NEED TO BE DIRECTLY RELEVANT: The standard applicable to general discovery, i.e. that items need only be reasonably calculated to lead to the discovery of admissible evidence, is inapplicable to discovery of items protected by a right to privacy in which the threshold requirement is that such items must be directly relevant. Britt v .Superior Court, supra 20 Cal.3d 844; Tylo v. Superior Court (1997) 55 Cal.App.4th 1379.

 

LEGAL AUTHORITY

California Code of Civil Procedure, §1987.1 provides in pertinent part:

"When a subpoena requires the attendance of a witness or the production of books, documents or other things... at the taking of a deposition, the court, upon motion reasonably made by the party....may make an order quashing the subpoena entirely, modifying it, or directing the compliance with it upon such terms or conditions as the court shall declare.”

 

I

PERSONNEL RECORDS PERTAINING TO PLAINTIFF’S WORK PERFORM­ANCE WITH OTHER EMPLOYERS WOULD BE INADMISSIBLE AT TRIAL UNDER EVIDENCE CODE §1101(a)

 

As noted in the foregoing, even under the broad scope of general discovery under Code of Civil Procedure §2017(a), records pertaining to plaintiff’s work performance with his current and prior employers would be inadmissible at trial under Evidence Code §1101(a). Hinson v. Clairemont Community Hospital, supra, 218 Cal.App.3d 1110.  That is the case because such documents would constitute improper character evidence under Evidence Code §1101(a).  Similarly, these work performance records would not be reasonably likely lead to the discovery of admissible evidence, since the only additional information such documents would likely lead to would be further evidence pertaining to the plaintiff’s work performance which would similarly be inadmissible under Evidence Code §1101(a).  Consequently, these items could hardly fall into the category of items that are “reasonably” calculated to lead to the discovery of “admissible” evidence, as is required even by California’s broad discovery statute.  In that regard, even under the broad standard of discovery applicable to items not protected by a right of privacy, there still is some limitation on what can be discovered, i.e. either the items must themselves be relevant, or there must be a reasonable likelihood that they would lead to the discovery of admissible evidence. Code of Civil Procedure §2017(a). Records pertaining to plaintiff’s work performance with his current employer would not fall into either of those categories.

 

II.

THE PERSONNEL RECORDS SOUGHT BY DEFENDANT’S SUBPOENAS ARE PROTECTED BY A RIGHT OF PRIVACY AND ARE OVERBROAD

 

Defendant’s subpoenas seek documents that are constitutionally protected from disclosure.  As noted in Board of Trustees v. Superior Court, supra, 119 Cal.App. 3d 516, confidential personnel files at a person's place of work are within a constitutionally protected zone of privacy. Accordingly, any such documents sought, must be directly relevant to the case, not merely reasonably calculated to lead to the discovery of admissible evidence. (Id. page 524-525); (also see Britt v.Superior Court (1978) 20 Cal.3d 844.)  Furthermore, included in these all-encompassing subpoenas are requests for records, such as worker’s compensation records, that would constitute medical records, that similarly are protected by a right to privacy. 

Even when such information is directly relevant, it is not automatically discoverable, instead there must be a `"careful balancing" of "compelling public need" for discovery against the "fundamental right of privacy."' (Id. p. 525.) Moreover, the subpoena in this case would apply to tax documents that may also be privileged from disclosure.  Webb v. Standard Oil Company (1957) 49 Cal.2d 509.

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III.

THE ONLY ITEMS DEFENDANTS’ ARE ENTITLED TO SUBPOENA ARE RECORDS DOCUMENTING PLAINTIFF’S START DATE WITH HIS CURRENT EMPLOYER, AND HIS HOURS AND COMPENSATION RATE

         

As discussed in the foregoing, many of the items sought by defendants’ subpoenas would not even meet the broad relevancy standards for information not protected by a right to privacy, which requires only that the information sought be either relevant or reasonably calculated to lead to the discovery of admissible evidence.  However, plaintiff concedes that defendants are entitled to documents confirming plaintiff’s hire date, hours worked and compensation paid to him by his current employer, because that information is directly relevant to the length and extent of plaintiff’s wage loss claim in this action.  Accordingly, plaintiff has no objection to subpoenas limited to those items.  However, none of the other items sought by the subject subpoenas are directly relevant to this action, and many of them, including the request for records documenting work performance, do not even meet the lesser standard of being relevant or reasonably calculated to lead to the discovery of admissible evidence. 

THE SUBPOENAS ARE OVERBROAD

The subject subpoenas seek what amounts to plaintiff’s entire personnel file including not only payroll records, but a multitude of other items which essentially include any conceivable type of record that might be in the possession of an employer.   As such, the subpoenas are constitutionally overbroad, and plaintiff requests that defendant’s subpoenas be quashed for this additional reason.

 

CONCLUSION

For all of the reasons as set forth above, plaintiff requests this court to make an order quashing in their entirety the subpoenas issued and served on Office Max and Wal-Mart that are the subject of this motion.

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Dated: May 22, 2000

                                                                                              ____________________________

                                                                                              JAMES W. JOHNSTON

                                                                                              Attorney for Plaintiff,

                                                                                              DAVID SOLDAN


 

JAMES W. JOHNSTON

ATTORNEY AT LAW

3877 Twelfth Street

Riverside, CA 92501

State Bar No. 125287

(909) 788-0860

 

 

Attorney for Plaintiff

 

 

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN BERNARDINO, WEST DISTRICT

 

 

DAVID SOLDAN

                      Plaintiff,

          vs.

RITE AID CORPORATION, et al.

                      Defendants

Case No: RCV 36110

 

 

DECLARATION OF COUNSEL

 

I, James W. Johnston, declare that:

1.  I am an attorney at law duly licensed to practice before all courts of the State of California, and am attorney of record for plaintiff DAVID SOLDAN;

2.  All of the Exhibits attached to this motion are true and correct copies of documents in my file in this matter.

I declare under penalty of perjury that the foregoing is true and correct, except for those matters stated on information and belief, and as to those statements, I believe them to be true.  I further declare that this declaration was executed at Riverside, California, on this 23rd day of May, 2000.

                                                                                             ____________________________

                                                                                              JAMES W. JOHNSTON

                                                                                              Attorney at Law        


PROOF OF SERVICE

 

 

STATE OF CALIFORNIA, COUNTY OF RIVERSIDE:

          I am employed in the County of Riverside, State of California.  I am over the age of 18 and not a party to the within action; my business address is 3877 Twelfth Street, Riverside, California.

On this date, I served the foregoing documents described as:

 

NOTICE OF MOTION AND MOTION TO QUASH SUBPOENAS

by placing a true copy thereof enclosed in a sealed envelope addressed as follows:

 

Russel D. Hiles, Esq., Angela D. Robledo, Esq.

STONE & HILES

9440 Santa Monica Boulevard
Beverly Hills, CA 90210-4693

 

[xx] (BY MAIL) as follows: I am readily familiar with the office's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Riverside, California, in the ordinary course of business.

[  ] (BY PERSONAL SERVICE) I caused the above described document[s] to be delivered by hand to the offices of the addressee.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on May 24, 2000, at Riverside, California.

 

 

 

_______________________________                          

                                                                                                            DONNA WEBER