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Privacy in California Litigation

Last edited 105 days ago by Ted Broomfield

[SAMPLE] Consent to Release Confidential Information Cell Phone

Sample Motion for Release of Information Other Protected by California Public Utilities Code section 2891 and 18 U.S.C. sections 2701 to 2712

SUMMARY - In Discovery Disputes over Privacy, Court Balances Need for Information versus Privacy Right

This article, aimed at attorneys, discusses the fundamentals of the California Constitutional right to privacy, including the seminal privacy case,

Hill⁠

. In discovery, where a Court is asked to determine which of the competing interests privacy or disclosure should prevail, the case law lays out a balancing test to determine if the materiality of the evidence outweighs the privacy interest as the standard for granting an order of disclosure.

PREVIEW.

Under California law, the right to privacy is express at Article 1, section 1 of the California Constitution, but not absolute. The right to privacy is intended to be self-executing

Instead, in litigation, the right to privacy is subject to a balancing test. Initially, the burden is on the party claiming the right to privacy to identify, assert and prove, on the basis of fact, the prima facie existence of the right. Then, the burden shifts to the party seeking the private information to prove that there is a legitimate interest in obtaining the private information and that that interest outweighs the right to privacy. Finally, the party seeking to assert the privacy right can then rebut.

DETAILS.

In California, Privacy is a Constitutional Right, Intended to be Self-Executing

The California Constitution gives the right of privacy to all people.

California Constitution, Article 1, Section 1⁠

⁠

“All people are by nature free and independent and have inalienable rights[, a]mong ...[wich is]...privacy.”

The right to privacy is intended to be "self-executing," meaning a party need only make a prima facie assertion, and then the burden shifts to the party seeking to overcome the privilege. [

Hill⁠

v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 18].

The right to privacy is not absolute. [

Hill⁠

v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37].

In Context of Discovery, Privacy Balanced Against Policy of Liberal Disclosure

In the context of discovery, the right to privacy is balanced against the contradictory policy of liberal disclosure. [

Greyhound Corp. v. Superior Court⁠

(1961) 56 Cal.2d 355, 377].

The rules of discovery require that the party resisting discovery prove with facts the right to non-disclosure [

Durst⁠

v. Superior Court of Los Angeles County (1963) 218 Cal.App.2d 460, 464 (as to admissions);

Coriell⁠

v. Superior Court (1974) 39 Cal.App 3d 487, 492 (as to interrogatories);

DI Chadbourne, Inc.⁠

v. Superior Court (1964) 60 Cal. 2d 723, 729 (as to privilege); and Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 253].

The Hill-Court established the following rule.

To successfully meet the burden of persuasion a party "...alleging an invasion of 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...constituting a serious invasion of privacy."

⁠

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

39-40.

The right to privacy in discovery in Federal Court has been upheld on appeal. [

Johnson by Johnson⁠

v. Thompson, 971 F.2d 1487, 1497 (10th Cir. 1992);

DeMasi v. Weiss, 669 F.2d 114⁠

, 119-120 (3rd Cir.1982)].

Burdens: Prima Facie on Resisting Party, then, to Party Seeking Private Info

Once the party raising privacy has successfully met the burden of persuasion, the party seeking to invade that privacy must prove that the specific policy of disclosure outweighs the privacy interest.

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

39-40.

“If a claimant satisfies the threshold inquiry, "[an opposing party]....may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests." [

Hill⁠

v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40].

"The [party resisting discovery through privacy privilege], in turn, may rebut a defendant's assertion of countervailing interests by showing there are feasible and effective alternatives to defendant's conduct which have a lesser impact on privacy interests." [

Hill⁠

v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 18].

Privacy in Financial Affairs of Natural Human Beings is Fundamental

The right to privacy in confidential financial affairs of a natural human being who is a party to litigation is fundamental, under California Constitution, Article 1, Section 1. [

Cobb⁠

v. Superior Court (1979) 99 Cal.App.3d 543, 550; Civil Code section

3295⁠

(c)].

Confidential affairs of third persons who are not parties to the litigation are also entitled to privacy. [

Valley Bank of Nevada⁠

v. Superior Court (1975) 15 Cal.3d 652, 658].

The right to privacy under the California Constitution is much more extensive as to natural human beings, and is limited as to other types of entities. [

Roberts⁠

v. Gulf Oil Corporation (1983) 147 Cal.App.3d 770, 791, 796-797].

Other entities have at least some right to privacy under the U.S. Constitution, at the 4th and 14th Amendments. Other entities’ rights to privacy depend on the circumstances, including, the nature and purposes of the corporate entity and the nature of the interest sought to be protected. Two critical factors in making this determination are the strength of the nexus between the entity and the human beings and the context in which the controversy arises. [

Roberts⁠

v. Gulf Oil Corporation (1983) 147 Cal.App.3d 770, 791, 795-797].

Privacy in the Context of Punitive & Exemplary Damages

Despite the fundamental nature of financial privacy, a party may be able to obtain financial discovery for purposes of proving the wealth or financial position of an opponent in order for an award of punitive or exemplary damages under Civil Code section

3294⁠

to be upheld as proportionate & appropriate for their purpose.

See my

blog on financial discovery⁠

, for more information. However, the summary is that a party seeking punitive or exemplary damages is entitled to identification of documents and witnesses to the defendant’s financial position as a matter of right during discovery. Civil Code section

3295⁠

(c).

However, recognizing the burden and tight time frames of such financial discovery after judgment, California law expressly recognizes the right to financial discovery before adjudication, upon a Court Order. Civil Code section

3295⁠

(c). The manner to obtain such a court order is upon motion. Civil Code section

3295⁠

(c). The standard for granting such a motion is “good cause.” Civil Code section

3295⁠

(c). Good cause is defined as upon motion supported by evidence that the court finds that it is "very likely," that the plaintiff will be awarded punitive damages. [

Jabro⁠

v. Superior Court (2002) 95 Cal.App.4th 754, 755].

Sexual Privacy is a Constitutional Right

The right to privacy in one’s sexual affairs is a protected by the California Constitution, as well as the United States Constitution. [

Fults⁠

v. Superior Court in and for Sonoma County (1979) 88 Cal.App.3d 899, 903-904 152 Cal. Rptr. 210; See also

Griswold⁠

v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (finding a right to sexual privacy under the United States Constitution).

The practical reality is that in certain types of civil cases, the sexual affairs are the substance of the case, and may not be absolutely private, or the privacy may be waived by the nature of the litigation.

Under California Law, Consumer and Employment Records have Special Protections

In recognition of potential privacy invasions, the California legislature has enacted special protections for certain types of records that are sought from third parties, particularly consumer records and employment records. Civil Code section

1985⁠

et seq.

See my blog on “the process by which a nonparty is required to provide discovery[,]...deposition subpoena.” Code of Civil Procedure section

2020.010⁠

et seq. Note, that deposition subpoena procedures are enacted by reference to party deposition at Code of Civil Procedure section

2025.010⁠

and then

2025.210⁠

et seq.

The basics are that at least five days before the subpoena is served on the witness who has consumer or employee records, each person whose records are sought must be served a copy of the subpoena and provided a form, called a “Notice.” Civil Code section

1985⁠

et seq. The Notice and the Subpoena must be on the mandatory California Judicial Council Forms

SUBP-025⁠

(Notice) and

SUBP-010⁠

for Deposition Subpoena of Business Records.

Note in Small Claims actions, the party is not represented by an attorney, and can only serve the subpoena after the clerk of the Court stamps the Small Claims Subpoena Form[s],

SC-107⁠

The Sacramento law Library has a

guide on Consumer and Employee Records⁠

Special Protections for Telephone and Similar Records

In general, either consent from the person’s whose records are sought or a court order must be issued in order to obtain telephone records, email, social media, and text messages. California Public Utilities Code section

2891⁠

and 18 U.S.C. sections

2701⁠

to 2712.

See the following link to a

sample authorization form⁠

Barring such express authorization, a party seeking telephone, email, text, and social media records of another person will likely have to bring a motion.

See a sample outline of a

Sample Motion⁠

for Court Order for Release of Information Other Protected by California Public Utilities Code section

2891⁠

and 18 U.S.C. sections

2701⁠

to 2712.

SUMMARY - In Discovery Disputes over Privacy, Court Balances Need for Information versus Privacy Right

PREVIEW.

DETAILS.

In California, Privacy is a Constitutional Right, Intended to be Self-Executing

In Context of Discovery, Privacy Balanced Against Policy of Liberal Disclosure