California Supreme Court Issues Sharp Reminder About Privacy and Discovery

On July 13, 2017, the California Supreme Court issued its opinion in the matter of Williams v. Superior Court (Marshalls of CA, LLC) (Case No. S227228).  At first glance, the opinion – which holds that an employee who brings a representative action under the Private Attorneys General Act (“PAGA”) may seek discovery of the names and contact information of other aggrieved employees without having to first show good cause – may only seem important to those in the employment law field.  And, for employment law practitioners, Williams does provide clarification as to the scope of discovery in representative PAGA matters.  It also will create consternation among employers and management side employment counsel as the decision, in granting plaintiffs in PAGA actions broad discovery rights, necessarily limits a court’s ability to prevent such plaintiffs from engaging in so-called “fishing expedition” discovery.

However, if one stops reading there, or thinks this case is only relevant to employment law practitioners, then you will miss the Court’s restatement of the proper test to apply in cases involving discovery of potentially private information, and its subsequent disapproval of privacy cases that civil practitioners have relied on for decades. 

Although the primary issue in Williams was whether a PAGA plaintiff could get discovery without first having to show good cause, the Court also considered whether a trial court should first determine whether the employees have a protectable privacy interest and, if so, balance that privacy interest against competing or countervailing interests, or assume that a protectable privacy interest already exists.

In discussing the privacy issue, the Court applied the three-part framework established in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1^[1], and concluded that the Hill factors did not bar disclosure of the information Williams sought.  The Court, however, did not stop there.  It went on to note that the appellate court did not start with Hill, but instead relied on three Court of Appeal cases: Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347; Johnson v. Superior Court (2000) 80 Cal.App.4th 1050; and Lantz v. Superior Court (1994) 28 Cal.App.4th 1839.  While these cases correctly acknowledge that a mere showing of relevance – pursuant to Code of Civil Procedure section 2017.010 – is not enough to order discovery when the request implicates the constitutional right of privacy, they also hold that whenever a party seeks discovery of facially private information, the party seeking discovery must demonstrate a “compelling state interest” or a “compelling need.”  It is here that the Supreme Court makes a shift in the law as it finds that starting the privacy inquiry with the compelling state interest or need threshold is not correct.

The “compelling interest” or “compelling need” test dates back to White v. Davis (1975) 13 Cal.3d 757, which held that the state constitutional privacy right “does not purport to prohibit all incursion into individual privacy but rather [requires] that any such intervention must be justified by a compelling interest.”  Id. at p. 775.  Almost 20 years later in Hill, the Supreme Court clarified White, noting that not “every assertion of a privacy interest … must be overcome by a ‘compelling interest.’”  Hill, 7 Cal.4th at 34-35.  Indeed, given the complex nature of the privacy right, imposing such a rigid standard creates “an impermissible inflexibility into the process of constitutional adjudication.”  Id. at 35.  Instead, the requirement to show a  “compelling interest” only applies when the information being sought would involve an invasion of “autonomy privacy.”  See id. at 34.  Autonomy privacy is a privacy interest “in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference.”  Id. at 35.^[2]  When autonomy privacy is not implicated, then the Hill framework controls.

Although Hill established the proper procedure for evaluating privacy claims in the discovery context, it did not formally disapprove of the cases that came after the decision in White.  As a result, appellate courts continued to rely on White and other pre-Hill cases – such as Lantz – and concluded that a compelling interest was still necessary to obtain discovery of any private information.  As one can imagine, other courts, as well as attorneys, then relied on and cited those other cases.  The result was that, while Hill limited the scope and effect of the “compelling interest” standard laid down in White, that standard continued to be applied as the controlling test.

In Williams, therefore, because the appellate court started its analysis with the presumption that any request for private information must be supported by a compelling need or interest, the Supreme Court took the opportunity to re-affirm what it said in Hill and, in effect, reset the privacy analysis in all future matters involving discovery requests, not just cases involving PAGA.  First, Williams acknowledged that Hill did not overrule the compelling interest/need test, but rather narrowed when it could or should apply.  Next, it held that the burden of establishing the degree and gravity of any invasion of privacy is to be put on the party asserting the privacy right, not the party seeking the information.  Once that burden is met, then a court is to balance that against any countervailing interests identified by the party seeking the information.  Only if the discovery involves an obvious invasion into autonomy privacy must the party seeking discovery show a compelling interest.  Finally, in order to clear up any future confusion, the Court expressly disapproved any prior cases that required the party seeking discovery to show a compelling interest or need while ignoring the considerations laid out in Hill.^[3]

Ultimately, each situation will depend on the type of information being sought, and the privacy right that is alleged to be invaded as a result.  In some cases, discovery will remain off-limits, while in others, information that previously may have been shielded from discovery due to an incorrect application of the “compelling interest” standard will now be fair game.  The Court, via Williams, has issued a sharp reminder of how privacy claims are to be evaluated and courts, counsel, and parties must take heed of this “change” going forward.