United States District Court, S.D. California
ORDER DETERMINING JOINT DISCOVERY MOTION NO. 1 AND GRANTING PLAINTIFF'S MOTION TO COMPEL
NITA L. STORMES, Magistrate Judge.
Plaintiff Mohammed Mohideen filed this employment action against defendants Calnet, Inc. and its founder and Chief Executive Officer, Kaleem Shah (collectively, Calnet). Calnet provides contract services for intelligence, languages, IT consulting, global aviation, and security to government and commercial clients. First Amended Complaint (FAC) ¶ 7. Mohideen alleges federal and state claims for retaliation and wrongful termination based on reporting workplace harassment, retaliatory employment practices and fraudulent government billing. Calnet counterclaims for computer fraud and abuse.
Mohideen served requests for production (RFPs) on Calnet. Responses to several of the RFPs are at issue. The two main contentions are whether Calnet may withhold discovery of business records on the basis of third-party privacy, and whether Calnet withheld responsive documents after saying that they would produce all responsive, non-privileged documents.
For the following reasons, the court determines the joint discovery motion and GRANTS Mohideen's motion to compel.
A. Relevance of the Documents Sought.
The purpose of discovery is to "remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute." U.S. ex rel. O'Connell v. Chapman University, 245 F.R.D. 646, 648 (C.D. Cal. 2007) (internal quotation omitted). Federal Rule of Civil Procedure 26(b)(1) offers guidance as to the scope of discovery permitted in an action:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
"Relevance for purposes of discovery is defined very broadly." Garneau v. City of Seattle, 147 F.3d 802, 812 (9th Cir. 1998). "The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1). Thereafter, the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections." Bryant v. Ochoa, No. 07cv200 JM (PCL), 2009 WL 1390794 at * 1 (S.D. Cal. May 14, 2009) (internal citation omitted). Those opposing discovery are "required to carry a heavy burden of showing" why discovery should be denied. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).
Mohideen offers that the documents sought here-which include employee complaints, sexual harassment reports, internal emails, employee disciplinary documents, Department of Defense investigations, and employee contracts-are relevant to his claims of retaliation and wrongful termination. The court agrees, as all appear reasonably calculated to lead to the discovery of admissible evidence. To try to meet its "heavy burden" and show why this discovery should be denied, Calnet argues that the documents are not relevant because, for example, with respect to Mohideen's FEHA claim, Calnet is "willing to stipulate that the question is not whether Plaintiff's alleged objections were unjustified. Rather, Defendants argue that any such objections played no role in any decision made by Defendants regarding Plaintiff's employment." Jt. Mtn., p.7.
If the court adopted Calnet's argument here, it would completely disregard Mohideen's allegations that Calnet engaged in wrongful employment practices. Calnet's offered "stipulation" essentially declares that they did not engage in retaliation or wrongful termination and terminated Mohideen for lawful reasons. In other words, they ask-without allowing any discovery on the issue-for an order declaring there was no retaliation or wrongful termination, which would terminate the claims in this case. Even if Calnet terminated Mohideen lawfully, Mohideen-based on his allegations-can still investigate whether Calnet's termination decision was a pretense to cover up retaliatory motives. The court finds that all the documents sought here are relevant to the claims and defenses in this case and are reasonably calculated to lead to the discovery of admissible evidence.
B. Objections Based on Individual Privacy Rights.
Calnet objects to RFP Nos. 11-12, 15-16, 19-23, 32-34 and 37 that seek various communications and business records, including employee complaints, sexual harassment reports, internal emails, employee disciplinary documents, Department of Defense investigations, and employee contracts. They argue that the documents are not discoverable because they are subject to third party personal privacy protections under the federal and state constitutions. They argue that Mohideen seeks "extraordinary relief" in trying to overcome the privacy protections afforded to this information. Mohideen agrees there are privacy interests but argues the court must balance his interests as a litigant with those of the third parties, considering the nature of the case, claims at issue and relative burdens imposed on each party.
In general, federal law regarding privilege applies to federal question cases. Fed.R.Evid. 501; see Admiral Ins. Co. v. U.S. Dist. Court, 881 F.2d 1486, 1492 (9th Cir. 1989). In a diversity case, the federal court will apply the applicable state law to substantive issues of privilege. Fed.R.Evid. 501, Star Editorial, Inc. V. U.S. Dist. Ct. for the Central Dist. of Cal., 7 F.3d 856, 859 (9th Cir. 1993). Where there are mixed federal and state law claims, as is the case here, the law of the forum state can inform the federal court of the applicable privileges. See Pagano v. Oroville Hosp., 145 F.R.D. 683, 698-699 (E.D. Cal. 1993); see also Lewis v. U.S., 517 F.2d 236, 237 (9th Cir. 1975) (holding that absent a controlling statute a federal court may consider state privilege law in a federal question case).
The California Constitution includes a right to privacy. This right must be balanced with the historic state interest in "facilitating the ascertainment of truth in connection with legal proceedings." Britt v. Superior Court (San Diego Unified Port District), 20 Cal.3d 844, 857 (1978) (internal quotations omitted). The privacy right is not absolute; it may be invaded depending on the circumstances. Oakes v. Halversen Marine, Ltd., 179 F.R.D. 281, 284. If invasion of the privacy right is called for, the scope of the disclosure should be "narrowly circumscribed" and "is permitted only to the extent necessary to a fair resolution of the lawsuit." Ragge v. MCA/Universal Studios, 165 F.R.D. 601, 605 (C.D. Cal. 1995) ...