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Privacy in California Litigation

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

NOTICE OF MOTION AND MOTION

PLEASE TAKE NOTICE Opposing party or parties, their counsel, the Court, and the applicable persons from whom records are sought [type specific names]:

On _________________ [date] at __________________ [time]

at the Superior Court of California, County of __________________________________________ [County]

located at: ________________________________________________________ [Address, and Department/Room]

[”Plaintiff[s]” / ”Defendant[s], aka the “MOVING PARTY”, _______________________________________ [names]

in the matter of _______________________ [Short Title], with the case number _________________ [Number]

will seek a Court Order that orders ____________________________________ [Person & contact info]

to release the following records and/or information:

_______________________________________________________________________________ [Describe what is sought].

The MOVING PARTY seeks the records and information under the authority of the “California Discovery Act,” codified at Code of Civil Procedure section

2016.010⁠

et seq., in particular, sections applicable to third party discovery by deposition subpoena at Code of Civil Procedure section

2020.010⁠

et seq, and procedures by reference to party deposition at Code of Civil Procedure section

2025.010⁠

and then

2025.210⁠

et seq. Further authority is at California Public Utilities Code section

2891⁠

and 18 U.S.C. sections

2701⁠

to 2712.

The records and information sought by this Court Order are relevant, as defined by Evidence Code section

210⁠

and discoverable under the authority of Code of Civil Procedure section

2017.010⁠

, as interpreted by [

Greyhound Corp. v. Superior Court⁠

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

The records and information are material to the parties’ respective allegations, claims and defenses, as follows.

_________________________________________________________________________________ [Briefly Explain].

Based thereon, good cause for disclosure exists, and MOVING PARTY would be unfairly prejudiced by denial of the records.

MOVING PARTY sought the consent of person whom the records pertain, but, consent was not given.

Dated: __________________________________________________

Name of Law Firm: _____________________________________

Signed: _________________________________________________

Name of signer: ________________________________________

MEMORANDUM OF POINTS AND AUTHORITIES

I. SUMMARY

Despite the strong protections based on the underlying right to privacy that a person has in telephone, email, text, social media, and other such records and information, when a moving party proves upon evidence that there is good cause to obtain material evidence, a Court may order production of records that are otherwise not disclosable under California Public Utilities Code section

2891⁠

and 18 U.S.C. sections

2701⁠

to 2712.

This is a __________________________________ [type of case]. “Plaintiff[s]” [names] / “Defendant[s]” [names] has alleged that the opposing party is liable, inter alia, for civil wrongs sounding in ___________, ____________, and _____________ [type generalized categories of the causes pled]. The gist of the complaint is as follows.

_________________________________________________________ [type a very high level of evidentiary allegations]. Defendant[s] has [have] denied Plaintiff[s]’ allegations and pled affirmative defenses, inter alia, sounding in ________, __________, and _________

, as well as cross claimed causes sounding in _________________________________, based on ________________________________. [if applicable]

The records / information sought are: _______________________________________________________________________________ [Describe what is sought].

The records sought are relevant because Plaintiff seeks to prove ____________________________________ and the records will show whether _____________________________________ and thereby will be probative.

The records are material, because: __________________________________________ [explain].

Moreover, the MOVING PARTY will be prejudiced if the records are not produced for the following reasons.

__________________________________________________________ [explain, generally, because the facts that the records will reveal are contested, meaning one party alleges X, the other party alleges Y; the allegations are mutually exclusive, and the records will be dispositive on the matter].

II. ORDER SOUGHT

Based on the Court finding Good Cause for disclosure of the material records /information sought, the MOVING PARTY seeks the following ORDER

For good cause found, the Court ORDERS that on ________________________________ [date] that __________________ [witness] produce the following material records / information described ___________________________________________________ [describe records/information].

Other orders sought, including any redactions / exclusions sought.

III. APPLICABLE RULES

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 (”PUC”) section

2891⁠

and 18 U.S.C. sections

2701⁠

to 2712 (”U.S. Code”).

The statutory protections of the PUC and the U.S. Code are under the respective Constitutional Authorities that protect privacy.

California Constitution, Article 1, Section 1⁠

and the United States Constitution Amendment 4 and Amendment 14.

The right to privacy is not absolute. [

Hill⁠

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

[if in Federal Court, add]. 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)].

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].

IV. FACTS

“Moving Party” [”Plaintiff[s]” / ”Defendant[s]” ___________________ [names], are represented by “Moving Party Counsel” ______________________ . [Decl. P 3 & 4]. Opposing Party [Parties”], [”Plaintiff[s]” / ”Defendant[s]” ___________________ [names] are represented by “Opposing Party Counsel” ______________[name]. [Decl. P 6 & 9]. The “Operative Complaint” in this action was filed on __________________________ [date]. [Decl. P 7]. Defendant[s] appeared by [filing] the Operative Answer on _______________________ [date]. [Decl. P 8]. The gist of the Operative Complaint is __________________________________________ [describe, briefly]. [Decl. P 10]. Defendants deny certain key allegations by Plaintiff[s]. [Decl. P 11].

Through these moving papers, Moving Party seeks the following records / information of the following witness[es]: ____________________________________________________________________________ . [Decl. P 12]. Moving Party Counsel believes that the records/ information sought are relevant, because ______________________________ . [Decl. P 13]. Moving Party’s Counsel believes that the records/ information sought are material, because ______________________________ . The Opposing Party denies the facts / contentions that would be revealed by the material sought. [Decl. P 15]. Moving Party’s Counsel believes that production of the records/ information sought would be highly probative of disputed issues, as follows ____________________________________________________________________. [Decl. P 16].

Prior to filing these papers, Moving Party’s Counsel met & conferred with the Opposing Party to request consent, but consent was not provided. Attached hereto as Exhibit 1 is a true and correct copy of the written portion of that meet & confer. [Decl. P 17 & Exh. 1]. Moving Party’s Counsel properly served the moving papers on the Opposing Party according to the Proof of Service filed herewith. [Decl. P 19]. Moving Party’s Counsel believes that denial of the records / information sought would unfairly prejudice Moving Party’s case.

V. STANDARD FOR GRANTING THE ORDER

Initially, the party resisting disclosure must make a prima facie case that the information sought is private and protected. To do so, the party asserting privacy must prove (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct...constituting a serious invasion of privacy." In the case of the records sough herein, the very nature of records meets this prima facie burden establishing the possible right to protection.

However, that protection is not absolute. [

Hill⁠

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

After the party resisting disclosure establishes the prima facie existence of a potential right to non-disclosure, 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].

Under Hill, and Binder, the Court balances the invasion against the need for the disclosure.

The invasion is measured by: (1) the legally protected privacy interest; (2) the reasonable expectation of privacy in the circumstances; and (3) the conduct constituting a serious invasion of privacy. [

Hill⁠

v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40].

The need for disclosure is measured by the justifications for the [alleged] invasion. In the context of discovery, those justifications appear to be relevance and materiality. [

Hill⁠

v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 43-46]. Relevance is defined as, “... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Evidence Code section 210.

The law on materiality comes from Motion for Summary Judgment but appears to apply equally to good cause for issuance of a Court Order for Utility Discovery.

Material facts are defined by the California Rules of Court as “facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.” [California Rules of Court, rule 3.1350(a)(2)].

Riverside County explained that “[t]o be ‘material’ for...a fact must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way.” Riverside County Cmty. Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.

Synthesizing, a material fact is a plain and concise statement of fact that is relevant and in some way influences the disposition of the matter.

So, where the need of relevant evidence that is material, meaning significantly contributes to disposing of the matter at hand, outweighs the privacy interest that the resisting party has proven, the Court should order disclosure. Here, the disclosure requested is telephone, utility, email, or similar documents that are otherwise protected by PUC section

2891⁠

and 18 U.S.C. sections

2701⁠

to 2712.

VI. ARGUMENT

The records and information sought by this Court Order are relevant, as defined by Evidence Code section

210⁠

and discoverable under the authority of Code of Civil Procedure section

2017.010⁠

, as interpreted by [

Greyhound Corp. v. Superior Court⁠

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

The records and information are material to the parties’ respective allegations, claims and defenses, as follows.

_________________________________________________________________________________ [Briefly Explain].

Based thereon, good cause for disclosure exists, and MOVING PARTY would be unfairly prejudiced by denial of the records.

MOVING PARTY concedes that the PUC and the U.S. Code establish the opposition’s prima facie burden of persuasion of a possible right to privacy, and proceeds to present its argument as to why, under Hill, the MOVING PARTY’s right to the evidence outweighs the alleged right to privacy.

VI. A. Opposition has a right to allege privacy, but, in the context, that right is insufficient to outweigh the right to evidence

VI. A. 1. There is a legally protected privacy interest, but, the evidence sought is not particularly invasive

EXPLAIN

VI. A. 2. The reasonable expectation of privacy was waived under the circumstances

EXPLAIN

VI. A. 3. Under the circumstances, the alleged invasion of privacy is not particularly serious

EXPLAIN

VI. B. The records sought are so relevant, so material, do under dispute, and production so dispositive as to outweigh any alleged right to privacy

VI. B. 1. Records sought are relevant

EXPLAIN

VI. B. 2. The record sought are material

EXPLAIN

VI. B. 3. The records sought are highly in dispute

EXPLAIN

VI. B. 4. The records sought could be dispositive

EXPLAIN

VII. CONCLUSION

Based thereon, the need for evidence sought, meaning relevance, materiality, degree of dispute and probative value to resolving such dispute substantially outweigh any alleged privacy interest. The Court should grant the order that the witness produce the records.

DECLARATION IN SUPPORT

My name is ____________________________________ . [Decl. P 1]

At all times since January 1, 20XX [of year complaint filed], I have been over the age of 18 years and competent. [Decl. P 2].

The following is based on my first-hand knowledge, except that stated on information and belief or as to opinions of law, and all is true and correct to the best of that knowledge, belief or opinion. [Decl. P 3]

I am an attorney licensed by the State of California with the bar number of _______________. [Decl. P 4]

I am the “Counsel,” for the “Moving Party” [”Plaintiff[s]” / ”Defendant[s]” ___________________ [names]. [Decl. P 5]

“Opposing Party [Parties”] [is / are] [”Plaintiff[s]” / ”Defendant[s]” ___________________ [names]. [Decl. P 6]

The “Operative Complaint” in this action was filed on __________________________ [date]. [Decl. P 7]

Defendant[s] appeared by [filing] the Operative Answer on _______________________ [date]. [Decl. P 8]

Currently the “Opposing Party [Parties”] [is / are] represented by attorney ________________________ [or self represented]. [Decl. P 9]

The gist of the Operative Complaint is __________________________________________ [describe, briefly]. [Decl. P 10]

Defendants deny key allegations by Plaintiff[s]. [Decl. P 11]

I believe that the records/ information sought are relevant, because ______________________________ . [Decl. P 13]

I believe that the records/ information sought are material, because ______________________________ .

The Opposing Party denies the facts / contentions that would be revealed by the material sought. [Decl. P 15]

I believe that production of the records/ information sought would be highly probative of disputed issues, as follows ____________________________________________________________________. [Decl. P 16]

Prior to filing these papers, I met & conferred with the Opposing Party to request consent, but consent was not provided. Attached hereto as Exhibit 1 is a true and correct copy of the written portion of that meet & confer. [Decl. P 17]

Attached hereto as Exhibit 2 is a true and correct copy of Moving Party’s Proposed Order. [Decl. P 18].

I properly served the moving papers on the Opposing Party according to the Proof of Service filed herewith. [Decl. P 19]

If the records/ information sought are not produced, the Moving party’s case would be unfairly prejudiced. [Decl. P 20]

I, _________________________________, the undersigned, declare under penalty of perjury under the laws of the State of California that the preceding is true and correct to the best of my knowledge. Executed at ________________________________________ (City/County/State/Country) on _____________________ (date0

See Code of Civil procedure section

2015.5⁠

⁠

____________________________________________________________________

(Signed by: Name)

EXHIBIT LIST

Written portion of pre-motion meet & confer

Moving Party’s Proposed Order

PROPOSED ORDER

On __________________________________________ (date) the Honorable _______________________________________________________________________________________ (”Judge”) presided over the hearing for Moving Party’s (defined infra) for Order to Disclosure [Information] in the California Superior Court for the County of __________________________________ (”County”) in Department _______________________ .

“Moving Party” is “Moving Party” [”Plaintiff[s]” / ”Defendant[s]” ___________________ [names]. Moving Party was represented by “Moving Party’s Counsel” _______________________________________________ attorney[s] name[s]).

“Opposing Party [Parties”] was represented by Opposing Party’s Counsel” _______________________________________________ attorney[s] name[s]) or was not represented, did not attend, appeared in pro per.

The “Witness,” ________________________________ [name] from whom records were sought did / did not appear [by and through “Witness’ Counsel” __________________________________________________ (name of attorney)].

The Judge received and considered all moving, opposition and related papers. The Judge received and considered the record on file

The Judge found that Notice was properly given.

FOR GOOD CAUSE FOUND,

The Court finding Good Cause for disclosure of the material records /information sought, the COURT ORDERS THE FOLLOW:

Other orders sought, including any redactions / exclusions sought.

IT IS ORDERED.

Date: _________________________________________________

Signed: _______________________________________________

Superior Court Judge

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