Santa Clara Superior Court May 15, 2015 Department 19 Socrates

Santa Clara Superior Court
May 15, 2015
Department 19
Socrates Peter Manoukian, Judge
Law and Motion Tentative Ruling
Case No.: 113CV244689
Case Name: Pott, et al. v. John B., et al.
On 15 May 2014, the motion of plaintiffs Sheila Pott and Lawrence Pott (collectively
“Plaintiffs”) for a protective order prohibiting public disclosure of their and their
deceased daughter’s private health information was argued and submitted. Defendants
Doe 7 and Doe 8 (collectively “Does 7 & 8”) filed a formal opposition to the motion.
On the same day, the motion of Does 7 & 8 for a protective order and for an order
compelling the Santa Clara County Sheriff’s Department (the “Sheriff’s Department”) to
comply with a business records subpoena was argued and submitted. Plaintiffs filed a
formal opposition to the motion. The Sheriff’s Department did not file an opposition.
All parties are reminded that all papers must comply with California Rules of Court, rule
3.1110(f).
Statement of Facts
This wrongful death action arises from the untimely death of Plaintiffs’ 15 year old
daughter, Audrie Pott. According to the allegations of the compliant, Plaintiffs’ daughter
took her life as a result of a sexual assault incident that took place during a party in
Saratoga, California on 2 September 2012. The incident involved Plaintiffs’ daughter,
John B., John R., John G., and Jane C., all of whom are minors. Based upon the incident,
Plaintiffs’ daughter attempted suicide on 10 September 2012. She was hospitalized and
died two days later.
Following Plaintiffs’ daughter’s death, the Sheriff’s Department conducted an
investigation of the incident, resulting in criminal charges against three of the
defendants. The incident has garnered a great deal of media attention, including articles
published by the New York Daily News and Rolling Stone Magazine.
On 21 June 2013, Plaintiffs instituted the present action, individually and as successors
in interest to the Estate of Audrie Pott, against John B., John R., John G., Jane C., Michael
Penuen, Sheila Penuen, and Does 1-110. The complaint raises claims for negligence,
negligent infliction of emotional distress, defamation, invasion of privacy, false
imprisonment, battery, sexual battery, intentional infliction of emotional distress, false
imprisonment and/or assault with intent to capture visual image, and conspiracy.
Discovery Dispute
I. Facts Giving Rise to Plaintiffs’ Motion
On 28 January 2014, Does 7 & 8, who are the parents of Defendant John G., served
business records subpoenas on the REDACTED and REDACTED, requesting psychiatric,
mental health, drug, and/or alcohol treatment, counseling and rehabilitation records
and notes pertaining to the care, treatment and examination of Plaintiff Sheila Pott.
On 30 January 2014, Defendant John B. served the REDACTED and REDACTED with
business records subpoenas requesting the same documents as Does 7 & 8.
The REDACTED records have been produced and, according to Plaintiffs, contain highly
sensitive health information pertaining to the therapy Sheila Pott received after her
daughter’s death.
Based upon Plaintiffs’ agreement to withdraw the claim for emotional distress brought
by Sheila Pott as a result of witnessing her daughter’s death, Plaintiffs’ counsel
requested that defense counsel return the records obtained from REDACTED The Bill
Wilson Center and that the subpoena served on REDACTED be withdrawn. Defense
counsel refused the request.
On 21 March 2014, Plaintiffs’ counsel sent an email to defense counsel, indicating that,
based upon the law supplied by defense counsel, Plaintiffs would not be moving to
quash the subpoena served on Joy Sweet. Plaintiffs’ counsel did request, however, that
defense counsel stipulate to a protective order. (Decl. of Lauren Cerri in Support of Pl.s’
Mot. for Protective Order, Ex. F.)
On 31 March 2014, Plaintiffs’ counsel circulated a draft protective order. (Id.) Defense
counsel did not agree to the stipulated protective order.
Concerning the records of the decedent, on 22 January 2014, Does 7 & 8 served
REDACTED with a business records subpoena, seeking any and all psychiatric, drug,
and/or alcohol treatment, counseling and rehabilitation records pertaining to the care,
treatment and examination of Plaintiffs’ daughter.
On 19 March 2014, Does 7 & 8 noticed REDACTED deposition, which included a request
for documents.
On 11 April 2014, REDACTED deposition took place. At the deposition, REDACTED gave
testimony and produced her records pertaining to the decedent’s treatment.
Also on 11 April 2014, Plaintiffs’ counsel emailed all defense counsel, requesting that
counsel for all parties execute a stipulated protective order concerning the decedent’s
private health information, including all documents and testimony related to her
treatment with REDACTED. Plaintiffs’ counsel also circulated a draft protective order.
On 25 April 2014, having received no response concerning defense counsel’s willingness
to execute the stipulated protective order, Plaintiffs filed the motion presently before
the Court, asking the Court to approve the protective order drafted by Plaintiffs and
attached to the motion. The motion and supporting materials were filed under seal.
On 2 May 2014, Does 7 & 8 filed their opposition to Plaintiffs’ motion and, on 9 May
2014, Plaintiffs filed their reply. Like Plaintiffs’ motion, the opposition and reply briefs
were filed under seal.
II. Facts Giving Rise to the Motion Filed by Does 7 & 8
On 9 November 2013, Does 7 & 8 served the Sheriff’s Department with a business
records subpoena. The subpoena seeks “[a]ny and all documents, 911 recordings or
other media that relate, pertain or refer to the incident involving, the death of Audrie
Pott.” (Decl. of Alison Crane in Support of Def.s’ Mot. for Protective Order (“Decl. of
Crane”), Ex. 1.)
On 5 February 2014, in response to the subpoena, the Sheriff’s Department produced,
among other things, a copy of a 354-page incident report. Each page of the report
contains a large confidentiality stamp, rendering the portions covered by the stamp
illegible. The report is also redacted and does not contain the identity and contact
information of minor witnesses identified in the report.
Counsel for Does 7 & 8 contacted the Sheriff’s Department after it produced the report
and was informed that the Sheriff’s Department would not produce an unredacted copy
of the report in the absence of a court ordered protective order. (Decl. of Crane, ¶ 9.)
On 25 April 2014, based upon the representations made by the Sheriff’s Department,
Does 7 & 8 filed the second motion currently before the Court, asking the Court to
approve the protective order drafted by counsel for Does 7 & 8, which is attached to
their motion, and seeking an order compelling the Sheriff’s Department to comply with
the subpoena.
On 5 May 2014, Plaintiffs filed an opposition to Does 7 & 8’s motion. The Sheriff’s
Department has not filed an opposition to the motion. However, on 9 May 2014,
counsel for Santa Clara County filed a declaration regarding the motion filed by Does 7 &
8.
Discussion
I. Parties’ Motions for Protective Orders
Both of the motions presently before the Court seek the entry of a protective order.
Plaintiffs seek the entry of a protective order limiting the public disclosure of their and
their deceased daughter’s private health information. Does 7 & 8 seek a protective
order concerning the investigative file and other information held by the Sheriff’s
Department that was compiled as part of the criminal investigation related to Plaintiffs’
daughter’s death. In support of their respective motions, each of the moving parties has
supplied the Court with the version of a protective order that they believe the Court
should adopt.
Neither party contests that the information sought to be protected by the other party
falls within the zone of privacy protected by Article I, section 1 of the California
Constitution. Similarly, the parties seem to agree that, although the information is
private, it is also discoverable and should be disclosed subject to the terms of a
protective order. Put another way, both of the moving parties agree that the Court
should enter a protective order in this case. The parties disagree, however, as to the
scope and terms of the protective order to be entered by the Court.
As discussed more fully below, the Court finds that a global protective order governing
all confidential information disclosed during the discovery process in this case—as
opposed to multiple protective orders governing specific categories of information,
which is what Plaintiffs propose—will best serve all of the privacy interests at stake in
this litigation (of which there are many) and be the easiest to apply by the parties and
the Court. In light of this finding, the Court will address the parties’ proposed protective
orders together below.
A. Legal Standard
Any party or other affected person may move for a protective order in response to a
deposition subpoena or a request for production of documents. (See Code Civ. Proc.
[“CCP”], § 2025.420, subd. (a) (governing deposition subpoenas) and § 2031.060, subd.
(a) (governing inspection demands).) Code of Civil Procedure sections 2025.420 and
2031.060 both provide that, Moreover, “for good cause shown,” the court may make
any order that justice requires to protect any party or other person from unwarranted
annoyance, embarrassment, or oppression, or undue burden and expense. (CCP, §§
2025.420, subd. (b), 2031.060, subd. (b).) “In addition, the court may make any other
order as may be appropriate to protect the person from unreasonable or oppressive
demands, including unreasonable violations of the right of privacy of the person.” (CCP,
§ 1987.1, subd. (b) (applicable to subpoenas).)
The issuance and formulation of protective orders are to a large extent discretionary.
(Raymond Handling Concepts Corp. v. Sup. Ct. (1995) 39 Cal.App.4th 584, 587-588.)
However, in exercising this discretion, the court must balance the interests of the public,
the plaintiff and the defendant by requiring the party seeking to restrict dissemination
of discovered information to demonstrate “good cause” for the restriction.
(Westinghouse Electric Corp. v. Newman & Holtzinger (1995) 39 Cal.App.4th 1194, 12081209; see also CCP, §§ 2025.420, subd. (b), 2031.060, subd. (b).)
B. Good Cause
Neither party contests that good cause exists for the entry of a protective order.
Nevertheless, the Code requires a demonstration of good cause. (CCP, §§ 2025.420,
subd. (b), 2031.060, subd. (b).) For the reasons set forth below, the Court finds that
good cause exists for a protective order concerning both categories of information the
parties seek to protect.
Concerning Plaintiffs’ motion, they point out that various defendants in this case have
served discovery requests seeking mental health, counseling and rehabilitation records
pertaining to the care, treatment and examination of Sheila Pott and her deceased
daughter. Plaintiffs also point out that this case has garnered a large amount of media
attention , which they anticipate will continue throughout the course of the litigation,
and they express the concern “that they will be unable to protect their family’s intimate
protected health information from being broadcasted” by the media. (Pl.s’ Mot. for
Protective Order, p. 3.)
Plaintiffs assert that their medical records, including the medical records of their
deceased daughter, fall squarely within the zone of privacy protected by the California
Constitution and that good cause therefore exists for the entry of a protective order
limiting the dissemination of these records. The Court agrees.
The right of privacy contained in Article I, section 1 of the California Constitution
protects an individual’s “reasonable expectation of privacy against a serious invasion.”
(Pioneer Electronics, Inc. v. Sup. Ct. (2007) 40 Cal.4th 360, 370.) It is well-settled that “a
patient has a privacy interest in a doctor’s medical records pertaining to the patient’s
physical or mental condition.” (Lantz v. Sup. Ct. (1994) 28 Cal.App.4th 1839, 1853;
Binder v. Sup. Ct. (1987) 196 Cal.App.3d 893, 901 [“medical records are the type of
information which is protected by the right of privacy”].) In light of the well-settled
privacy interest a patient maintains in his or her medical records, the Court finds that
Plaintiffs have demonstrated good cause for the entry of a protective order concerning
this information.
As to the motion filed by Does 7 & 8, it is undisputed that the Sheriff’s Department
conducted an investigation concerning Plaintiffs’ daughter’s death. The investigation
included interviews of numerous minors who attended the party held on 2 September
2012. These interviews were recorded with both audio and visual equipment. Does 7 &
8 are also informed and believe that, as part of the investigation, the Sheriff’s
Department issued subpoenas to social media companies seeking downloads of social
media pages for some of the witnesses, including Plaintiffs’ daughter, and that the
Sheriff’s Department downloaded the contents of some of the minor witnesses’ cell
phones.
Does 7 & 8 seek the disclosure of the above records and information and concede—if
only to appease the Sheriff’s Department—that the disclosure of the materials should
be made subject to a protective order. As discussed more fully below in connection with
the portion of Does 7 & 8’s motion seeking an order compelling these materials, the
disclosure of such materials raises a host of privacy issues. At this juncture, for the
purposes of the good cause analysis, it is sufficient to say that law enforcement
investigative files have been held to be confidential for purposes of discovery. (See
County of Orange v. Sup. Ct. (2000) 79 Cal.App.4th 759, 765.) In light of the confidential
nature of investigative files, and any expectation of privacy that the minor witnesses
may have in the contents of their cell phones or social media accounts, the Court finds
that Does 7 & 8 have established good cause for the entry of a protective order
concerning this information.
C. Terms of the Proposed Protective Orders
As indicated above, both of the moving parties have submitted proposed protective
orders that they believe the Court should enter.
Concerning Plaintiffs’ proposed order, Does 7 & 8 argue that Plaintiffs’ definition of
“protected information” is unclear and that the proposed order fails to sufficiently
inform the parties and counsel how the “protected information” may be used in this
litigation. (Def.s’ Sealed Opp. to Pl.’s Mot. for Protective Order, p. 3.) Does 7 & 8 also
address several specific provisions of Plaintiffs’ proposed protective order to which they
object.
Plaintiffs do not take issue with any particular provision contained in Does 7 & 8’s
proposed protective order. Instead, they suggest that it would be inappropriate to enter
only one protective order in this case and that, because Does 7 & 8’s proposed order
attempts to encompass all confidential information that may be disclosed during
discovery, the proposed order is overly broad.
Having reviewed both parties’ proposed orders, four matters concerning the protective
order seem to be in dispute. These matters include (1) the scope of the matters subject
to protection, (2) the manner in which materials are designated as protected, (3) the
persons to whom the protected information may be disclosed, and (4) the use of the
information or materials designated as protected in this case beyond the discovery
phase, i.e., whether and how the information can be used at trial. Each of these issues is
addressed below.
1. Scope of the Protective Order
The fundamental disagreement between the parties relates to the scope of the
protective order.
Although Plaintiffs do not oppose the entry of multiple protective orders concerning
other subject matters, they ask the Court to enter a protective order expressly limited to
and governing the disclosure of their and their deceased daughter’s private health
information. Specifically, paragraph I of Plaintiffs’ proposed order states that “[t]he
purpose of this Stipulated Protective Order is to provide a means of limiting disclosure
of PROTECTED HEALTH INFORMATION.” (Decl. of Cerri, Ex. K.) In paragraph II, the
proposed order defines “protected health information” as “any and all health care
information including, but not limited to, any and all medical, psychological, psychiatric,
counseling, or therapy information documents, notes, billings, or records relating to
decedent Audrie Pott.” (Id.) The proposed order then contains two additional
paragraphs defining “protected health information” that do not add much to the first
definition.
Does 7 & 8 argue that it makes sense to have one global protective order governing all
of the protected information in this case. Outlining the problems with multiple
protective orders, Does 7 & 8 state the following:
In the event both protective orders are issued, the parties and counsel will be placed in
a situation where different rules apply to different pieces of information and evidence.
This will place an unnecessary burden on all parties and counsel and increase the
likelihood of inadvertent violation of one of the orders. Rather, a single Protective Order
will allow the parties to utilize a single set of rules when considering how to handle
confidential information. (Does 7 & 8’s Opp. to Pl.s’ Mot. for Protective Order, p. 7.)
For the reasons articulated by Does 7 & 8, the Court agrees that a single protective
order should be issued governing all confidential information and documents in this
matter. This is also consistent with the model Stipulated Protective Order approved by
the United States District Court for the Northern District of California and the model
protective order suggested for use in complex cases by the Alameda County Superior
Court.
Does 7 & 8’s proposed order does not expressly define the scope of their order. The
scope of the protective order shall be defined at the beginning of the protective order as
follows:
SCOPE OF PROTECTIVE ORDER
Disclosure and discovery activity in this action are likely to involve production of
confidential or private information for which special protection from public disclosure
and from use for any purpose other than prosecuting this litigation may be warranted.
The protection of this Protective Order may be invoked with respect to any documents,
testimony, information, and things (collectively “materials”) produced or created in this
action that contain Confidential Information. As used herein, the term “Confidential
Information” includes testimony and records, including but not limited to discovery
responses, whether hardcopy or electronic, that contain confidential or private
information protected by California’s constitution and common law right to privacy. As
set forth below, materials containing Confidential Information may be designated as
“Confidential.” Such designation may be made by any Party or non-party producing
materials in this action, or may be made by a Party who determines, in good faith, that
materials produced by a non-party contain “Confidential” information even though no
so designated by the producing party.
This Order does not confer blanket protections on all disclosures or responses to
discovery and the protection it affords from public disclosure and use extends only to
the limited information or items that are entitled to confidential treatment under the
applicable legal principles.
Moreover, as further set forth below, this Stipulated Protective Order does not entitle
the Parties to file confidential information under seal; California Rules of Court, rules
2.550, 2.551 and 8.46 set forth the procedures that must be followed and the standards
that will be applied when a party seeks permission from the Court to file material under
seal.
2. Designation of Materials as Confidential
Under paragraph III(1) and (2) of Plaintiffs’ proposed order, any material defined as
“protected health information” is automatically subject to protection. Given the Court’s
ruling that one protective order should be entered governing all confidential and private
information in this case, the provisions contained in Plaintiffs’ proposed order granting
automatic protection to certain materials are inappropriate. Instead, the parties and
non-parties alike shall be given the ability to designate materials as confidential, as well
as the ability to challenge such designations.
Paragraphs 1-3 and 8-10 of Does 7 & 8’s proposed order adequately reflect the ability to
designate and challenge confidential designations and will be adopted by the Court with
one exception. Paragraph 3 of Does 7 & 8’s proposed order states the following:
All Confidential Information produced or exchanged in the course of this case (not
including information that is publicly available) shall be used by the party or parties to
whom the information is produced solely for the purpose of this case.
The language contained in the parenthetical is problematic. There appears to be a
dispute as to what information concerning this case is and is not already available to the
public. If Does 7 & 8, or any other party or affected non-party believes that information
that has been designated as confidential is already available to the public and therefore
not confidential, the party or non-party may challenge the designation pursuant to the
terms of the protective order. The parenthetical language is therefore inappropriate and
will be stricken. Paragraph 3 shall be replaced with the following language:
Materials designated “Confidential,” as well as summaries, excerpts and extracts
thereof, shall not be disclosed to or made accessible to any person except as specifically
permitted by this Protective Order. Materials designated “Confidential” shall be used
solely in the preparation for the trial in this case, the trial itself, or for purposes of
settlement and shall not be used at any time for any other purpose.
3. Persons to Whom Confidential Information may be Disclosed
Paragraph III(3) of Plaintiffs’ proposed order limits disclosure of protected information
to (1) counsel, (2) employees of counsel necessary to assist counsel of record in the
preparation of and trial of this action, (3) any experts, co-counsel or consultants acting
for counsel of record, and (4) the Court. (Decl. of Cerri, Ex. K.)
Does 7 & 8 argue that paragraph III(3) precludes counsel from utilizing deposition
testimony deemed confidential for use in questioning other witnesses and that the
omission of witnesses from the disclosure provision is inappropriate. The Court agrees.
Paragraphs 4 and 5 of Does 7 & 8’s proposed order govern the disclosure of confidential
information. The wording of paragraph 4(a)-(f) is somewhat confusing and will be reworded as set forth below. Paragraph 5(a) and (b) are also problematic. The paragraph
and its subparts indicate that a witness presented with confidential information will be
advised that the information is confidential and asked if he or she is willing to agree to
the terms of the protective order. The paragraph then states that “If he/she declines to
agree to the Order’s terms, the Confidential Information may be shared with the
prospective witness and he/she is free to disclose that information unless it is otherwise
ordered sealed.” (Does 7 & 8’ Proposed Protective Order, p. 3.) This language
undermines the entire purpose of the protective order and will be stricken.
Paragraphs 4 and 5 of Does 7 & 8’s proposed order shall be stricken and replaced with
the following language:
4. DISCLOSURE OF MATERIALS DESIGNATED AS CONFIDENTIAL
(a) Materials designated as “Confidential” may be disclosed only to:
(i) The court, its clerks and research attorneys;
(ii)Attorneys actively involved in the representation of a Party, their secretaries,
paralegals, legal assistants, and other staff actively involved in assisting in the litigation;
(iii) Any expert or consultant who is retained by any of the parties or their counsel of
record to assist counsel in the litigation, and any employee of such an expert assisting in
the litigation;
(iv) Any person called to testify as a witness either at a deposition or court proceeding in
the litigation, but only to the extent necessary for the purpose of assisting in the
preparation or examination of the witness, and also only if such persons are informed of
the terms of this Protective Order, provided with a copy of the Protective Order and
agree, on the record, that they are bound by the terms of the Protective Order and are
required not to disclose information contained in the materials designated as
“Confidential”;
(v) Deposition and court reporters and their support personnel, for purposes of
preparing transcripts;
(vi) Employees of outside copying services and other vendors retained by counsel to
assist in the copying, imaging, handling or computerization of documents, but only to
the extent necessary to provide such services in connection with the litigation and only
after being informed of the provisions of this Protective Order and agreeing to abide by
its terms;
(vii) Mediators or other Alternative Dispute Resolution neutrals (including their
employees, agents and contractors) to whom disclosure is reasonably necessary to their
involvement in the litigation; and
(viii) Any person who created a document or was the recipient thereof.
4. Notification of Disclosure
Paragraph III(4) of Plaintiffs’ proposed order contains the following language: “With
respect to persons [to whom confidential information is disclosed] counsel for each
party shall in addition maintain a log of the names and addresses of all persons to whom
the [confidential information] are provided. Upon request, counsel shall provide within
five (5) business days a copy of such log, together with copies of the written agreements
executed by persons [not to disclose the information].” (Decl. of Cerri, Ex. K.)
Does 7 & 8 argue that, insofar as Paragraph III(4) requires counsel to disclose their
experts, the provision violates the work product doctrine. Does 7 & 8 are correct that
work product protection covers the identities of witnesses interviewed and experts
obtained by counsel under certain circumstances. (See Coito v. Sup. Ct. (2012) 54 Cal.4th
480.) Protection of work product, however, is not absolute and is determined on a caseby-case basis. (Id., at p. 488, citing City of Long Beach v. Sup. Ct. (1976) 64 Cal.App.3d
65, 71.)
In light of the work product doctrine, paragraph 4 of the Protective Order, which is set
forth in the previous section, will include a second subdivision. Subdivision (b) of
paragraph 4 shall read as follows:
(b) Each person to whom “Confidential materials are disclosed (other than persons
described in paragraphs 4(a)(i), (v), and (vii)) shall execute a non-disclosure agreement
(to be drafted and approved by counsel for all parties) prior to their receipt of the
Confidential materials, and shall agree to be bound by this Protective Order and to be
subject to the jurisdiction of this court for the purposes of enforcement. Counsel
disclosing “Confidential” materials to persons required to execute non-disclosure
agreements shall retain all such executed agreements. Copies of the executed
agreements shall be preserved by counsel and shall be provided to the opposing party if
the court so orders upon a showing of good cause.
5. Use in Court Proceedings
Plaintiffs’ proposed order requires “[a]ll documents that are filed with the Court,
including those admitted at trial, that contain any portion of contents of Plaintiffs’ or
Plaintiffs’ decedent’s PROTECTED HEALTH INFORMATION . . .” to be filed under seal.
(Decl. of Cerri, Ex. K, ¶ III(7).) Plaintiffs also indicate that they want the trial proceedings
to be closed to the public whenever this information is discussed in court.
Does 7 & 8 argue that these provisions do not comply with the California Rules of Court
governing the sealing of court documents and the law governing the public’s right of
access to court proceedings. The Court agrees.
California Rules of Court, rules 2.550, 2.551 and 8.46 set forth the procedures that must
be followed and the standards that will be applied when a party seeks permission from
the Court to file material under seal. Moreover, court proceedings are presumptively
open to the public and our state Supreme Court has held that “in general, the First
Amendment provides a right of access to ordinary civil trials and proceedings.” (See NBC
Subsidiary (KNBC-TV), Inc. v. Sup. Ct. (1999) 20 Cal.4th 1178, 1212.) To overcome this
presumption, a very specific showing must be made. (Id., at pp. 1217-1218.)
Based upon the rules governing the filing of materials under seal and the law governing
public access to court proceedings, the Court agrees with Does 7 & 8 that the questions
of whether certain records should be sealed or whether the public should be denied
access to certain proceedings are premature at this point in the litigation. Paragraphs 13
and 14 of Does 7 & 8’s proposed order adequately reflect the procedures to be used and
shall be adopted in the Court’s protective order.
D. Conclusion
Based upon the above discussion, the Court finds that both parties have demonstrated
good cause for the entry of a protective order. However, the Court further finds that
only one protective order should be entered governing all confidential information
disclosed during discovery in this matter. Subject to the modifications discussed above,
Does 7 & 8’s proposed protective order will adequately protect the privacy interests at
stake in this litigation, including the privacy interests asserted by Plaintiffs. Accordingly,
both parties’ motions for a protective order are GRANTED IN PART and Does 7 & 8’s
proposed protective order, as modified herein, shall be the order of the Court.
II. Does 7 & 8’s Motion to Compel
On 9 November 2013, Does 7 and 8 served the Sheriff’s Department with a business
records subpoena, seeking “[a]ny and all documents, 911 recordings or other media that
relate, pertain or refer to the incident involving, the death of Audrie Pott.” (Decl. of
Alison Crane in Support of Def.s’ Mot. for Protective Order (“Decl. of Crane”), Ex. 1.)
In response to the subpoena, the Sheriff’s Department produced, among other things, a
copy of a 354-page incident report. Each page of the report contains a large
confidentiality stamp, rendering the portions covered by the stamp illegible. The report
is also redacted and does not contain the identity and contact information of minor
witnesses identified in the report. Counsel for Does 7 & 8 indicates that the Sheriff’s
Department produced additional materials, but it is unclear from the parties’ papers
what those materials include.
In addition to the entry of a protective order, Does 7 & 8 ask the Court to compel the
Sheriff’s Department to produce an unredacted copy of the incident report as well as all
other information and documents responsive to the subpoena. Plaintiffs have indicated
that they do not oppose the disclosure of these materials. The Sheriff’s Department has
not filed any papers with the Court taking a position on whether the materials may be
produced.
Code of Civil Procedure section 1987.1 provides that, if a subpoena requires the
production of documents, “the court, upon motion reasonably made by any [party or
witness upon whom the subpoena is served] . . . may make an order quashing the
subpoena entirely, modifying it, or directing compliance with it upon those terms or
conditions as the court shall declare, including protective orders.” (CCP, § 1987.1, subd.
(a).) In addition, “the court may make any other order as may be appropriate to protect
against unreasonable or oppressive demands, including unreasonable violations of the
right to privacy.” (Id.)
For the reasons set forth below, given the facially apparent privacy interests at stake,
and because the Court has not heard from the Sheriff’s Department on this matter, the
Court will deny the motion without prejudice.
It is undisputed that the Sheriff’s Department conducted an investigation concerning
Plaintiffs’ daughter’s death, which included interviews of numerous minors who
attended the party held on 2 September 2012. As indicated earlier in this order, these
interviews were recorded with both audio and visual equipment. Does 7 & 8 are also
informed and believe that, as part of the investigation, the Sheriff’s Department issued
subpoenas to social media companies seeking downloads of social media pages for
some of the witnesses, including Plaintiffs’ daughter, and that the Sheriff’s Department
downloaded the contents of some of the minor witnesses’ cell phones.
The concern that the Court has with Does 7 & 8’s motion is that they are not simply
seeking the identities of witnesses through an unredacted version of the incident report.
They seek compliance with the deposition subpoena in its entirety, which encompasses
the contents of numerous minors’ cell phones and social media accounts. Does 7 & 8
have argued that the information is relevant to the subject matter of this case, but they
have not addressed the multitude of privacy issues raised by their request.
Code of Civil Procedure section 1985.3 sets forth special procedures applicable to
business records subpoenas for personal records. Under the provision, before a party
may seek the production of personal records, the party must first give notice to the
person whose records are being sought. (CCP, § 1985.3, subd. (b).) The purpose of this
notice requirement is to protect people from “unreasonable violations” of their “right of
privacy.” (See Puerto v. Sup. Ct. (2008) 158 Cal.App.4th 1242, 1251 [describing the
“obvious privacy interest” in the analogous context of employment files under section
1985.6].) Moreover, the disclosure of the materials sought by Does 7 & 8 may implicate
the Information Practices Act of 1977 (Civil Code, § 1798 et seq.).
Does 7 & 8 have not explained to the Court whether the special notice requirements of
Code of Civil Procedure section 1985.3 or the provisions of the Information Practices Act
of 1977 apply to their subpoena. Indeed, the motion does not address the privacy
concerns at all other than to say that there is need for a protective order. The subpoena
deals with minors, criminal investigative files, and electronic data from minors’ cell
phones and social media accounts. The subpoena raises a host of privacy issues that
have yet to be flushed out—or explained at all—including whether the minors whose
information is being sought need to be informed that their information is being
disclosed.
Until Does 7 & 8 have provided the Court with the legal authorities applicable to the
disclosure of this material, the Court will not grant the relief they seek. Accordingly,
Does 7 & 8’s motion to compel the Sheriff’s Department to comply with the business
records subpoena shall be CONTINUED pending further briefing on these issues.
Conclusion and Order
Plaintiffs’ motion for a protective order is GRANTED IN PART and DENIED IN PART. The
motion is granted insofar as it requests the entry of a protective order but denied as to
the terms requested to be included in the order.
Does 7 & 8’s motion for a protective order and to compel the Sheriff’s Department to
produce unreduced materials pursuant to a business records subpoena is GRANTED IN
PART and CONTINUED IN PART.
The motion is granted with respect to the entry of a protective order and the proposed
protective order submitted by Does 7 & 8, as modified herein, shall be the order of the
Court.
The motion is continued pending further briefing as to the request to compel the
Sheriff’s Department to comply with Does 7 & 8’s business records subpoena. Does 7 &
8 shall file supplemental briefing as to the applicable legal authorities implicated in the
disclosure of the materials sought through their business records subpoena within 14
calendar days of the filing of this Order. Additionally, Does 7 & 8 shall cause this Order
to be served on the Sheriff’s Department, and the Sheriff’s Department may file briefing
on the issues raised by the Court, if it so chooses, within 14 calendar days of the filing of
this Order.
The request of Plaintiffs to close the courtroom/deny access to the public during the
hearing on the hearing for the protective order and seal the court reporter’s transcript is
DENIED.