This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

self-study / Constitutional Law

Right to privacy and civil discovery

Downtown Superior Court

Patricia M. Lucas

Judge, Santa Clara County Superior Court.

Complex Civil

Civil and Family Law Courthouse

Gary Nadler

Judge, Sonoma County Superior Court

The objective of this article and accompanying self-assessment test is to provide bench officers and lawyers with an overview of the right to privacy in California civil discovery. By reading the article and taking the accompanying self-study test, readers will learn about the source of the right to privacy, the test for determining when discovery may be curtailed due to the right, and specific areas covered by the right.

Source of the Right

The right to privacy in California is guaranteed by the California Constitution, Art. 1, Section 1. White v. Davis, 13 Cal. 3d 757 (1975). It is also guaranteed under the 4th Amendment to the U.S. Constitution. Griswold v. Connecticut, 381 U.S. 479 (1965). The right to privacy under the state constitution "protects the individual's reasonable expectation of privacy against a serious invasion." Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal. 4th 360 (2007). "[T]he 'right of privacy [under the U.S. Constitution] in general appears to be narrower than' the right of privacy under the California Constitution." Hill v. National Collegiate Athletic Assn., 7 Cal. 4th 1 (1994).

"Because discovery orders involve state-compelled disclosure, such disclosure is treated as a product of state action. ... Consequently, whenever the compelled disclosure treads upon the constitutional right of privacy, there must be a compelling state interest." Johnson v. Superior Court, 80 Cal. App. 4th 1050 (2000). The state interest involved, which is the focus of the balancing of interests, is "facilitating the ascertainment of truth in connection with legal proceedings .... The state has an interest in 'making certain that parties ... disclose relevant information to the fullest extent allowable,' and in 'ensuring that those injured by the actionable conduct of others receive full redress of those injuries.'" Planned Parenthood Golden Gate v. Superior Court, 83 Cal. App. 4th 347 (2000).

Even when an intrusion on the right of privacy is deemed necessary under the circumstances of a particular case, any such intrusion should be the minimum intrusion necessary to achieve its objective. In other words, the least intrusive means should be utilized to satisfy the state's countervailing interest and mere convenience of means or cost will not satisfy that test for that would make expediency and not the compelling interest the overriding value. Lantz v. Superior Court, 28 Cal. App. 4th 1839 (1994).

The trial court is required to balance the right of privacy with the need for discovery. Harris v. Superior Court, 3 Cal. App. 4th 661 (1992). The party seeking the constitutionally protected information has the burden of establishing that the information sought is directly relevant to the claims. Tylo v. Superior Court, 55 Cal. App. 4th 1379 (1997). Also, a party to an action may assert the privacy rights of third parties, such as its customers. Valley Bank of Nevada v. Superior Court, 15 Cal. 3d 652 (1975).

Test for Determining Whether Private Information May Be Compelled

Generally, in determining whether there is good cause for discovery, the court will be expected to weigh a party's constitutional right to privacy against the showing of good cause. The following factors must be addressed before discovery is ordered over objection that the discovery violates the right to privacy:

* The discovery sought must be directly relevant to the subject matter, or issues, of the litigation. It is insufficient that the discovery may lead to relevant information. Binder v. Superior Court, 196 Cal. App. 3d 893 (1987).

* If the information sought to be discovered is directly relevant to the issues of the litigation, the court must balance the compelling public need for discovery against the fundamental right to privacy. One such compelling state need is facilitating the ascertainment of truth in connection with legal proceedings. Britt v. Superior Court, 20 Cal. 3d 844 (1978).

* If discovery of the private interests is to be compelled, the scope of permitted discovery must be by the least intrusive manner, with narrow specificity. Board of Medical Quality Assurance v. Gherardini, 93 Cal. App. 3d 669 (1979). If feasible, the court may first consider the evidence in an in camera inspection. El Dorado Savings & Loan Assn. v. Superior Court, 190 Cal. App. 3d 342 (1987).

The balancing test is aptly described in Hooser v. Superior Court, 84 Cal. App. 4th 997 (2000), where the court noted the analysis of four factors: (1) the purpose of the information sought; (2) the effect the disclosure will have on the affected persons and parties; (3) the nature of the objections urged by the party resisting disclosure; and (4) whether less obtrusive means exist for obtaining the requested information. As noted by Hooser, "[t]he constitutional right of privacy does not provide absolute protection against disclosure of personal information; rather it must be balanced against the countervailing public interests in disclosure." (A good discussion of the privacy balancing factors is also contained in Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554 (2007).)

In performing the balancing test, if the court determines that there is a public interest in compelling discovery, the court must institute sufficient procedural safeguards intended to limit the intrusion. For example, in Life Technologies Corp. v. Superior Court, 197 Cal. App. 4th 640 (2011), third-party private information was sought by interrogatories to the party. The court noted that had the information been sought by way of the deposition subpoena, the party seeking discovery would be required to serve a copy of the subpoena on the third party whose privacy rights were affected. This would permit that third party to file a written objection. Furthermore, the court noted that the trial court must make provision for maintaining the confidentiality of any disclosed information, by sealing it and/or limiting its use and dissemination.

Specific Areas Protected by the Right to Privacy

The right to privacy protects from liberal disclosure the following areas of discovery, among others:

Confidential customer lists. Disclosure of confidential customer lists will not be compelled absent a proper showing, as described above. Hofmann Corp. v. Superior Court, 172 Cal. App. 3d 357 (1985).

Personal financial matters. In Valley Bank of Nevada v. Superior Court, 15 Cal. 3d 652 (1975), the court stated that confidential information given to a bank by its customers is afforded a limited form of protection. Further, the court indicated that banks must take reasonable steps to notify a customer that such information is sought to be disclosed, and to do so in such time to afford the customer a fair opportunity to assert his interests. If the financial information goes to the heart of the cause of action itself, then disclosure is properly ordered. See, e.g., GT, Inc. v. Superior Court, 151 Cal. App. 3d 748 (1984).

Employee personnel files. Confidential information contained in personnel files is protected by the right to privacy. Thus, the court must first consider the availability of less intrusive means of obtaining the information, and if disclosure is ordered, only relevant information should be ordered disclosed. El Dorado Savings & Loan Assn. v. Superior Court, 190 Cal. App. 3d 342 (1987).)

Tax returns and related information. Disclosure of income tax forms and related information is generally protected from disclosure by statute and the common law. Rev. & Tax. Code Sections 19542, 19545; Sav-On Drugs, Inc. v. Superior Court, 15 Cal. 3d 1 (1975). It is not only the returns themselves that are protected from disclosure, but also information constituting an integral part of the return, such as the W-2 forms. Brown v. Superior Court, 71 Cal. App. 3d 141 (1977).

Medical records/medical condition. A person's right of privacy in their medical records is fundamental because "[t]hese are matters of great sensitivity going to the core of the concerns for the privacy of information about an individual." Heda v. Superior Court, 225 Cal. App. 3d 525 (1990).

Sexual relations. Answers to questions about a person's sexual relations, including the identities of former partners, may not be required absent a compelling state interest that is promoted by requiring a response. However, even where the compelling state interest is present, "[p]recision of [compelled disclosure]" is required so that the right of privacy is not curtailed except to the extent necessitated by the legitimate governmental objective. John B. v. Superior Court, 38 Cal. 4th 1177 (2006).

Addresses and telephone numbers. Courts have frequently recognized that individuals have a substantial interest in the privacy of their home. This arises in the context of discovery seeking addresses and telephone numbers of third parties, including employees and former employees. Planned Parenthood Golden Gate v. Superior Court, 83 Cal. App. 4th 347 (2000). The court must perform the balancing test as to any discovery seeking such information. The balancing test must be performed even if the information concerns witnesses, because they are entitled to privacy protection. Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal. 4th 360 (2007).

Internet: The right to speak anonymously. There is a right to speak anonymously arising from the right to privacy and the First Amendment guarantee of freedom of speech. The California privacy right "protects the speech and privacy rights of individuals who wish to promulgate their information and ideas in a public forum while keeping their identities secret" and "limits what courts can compel through civil discovery." Rancho Publications v. Superior Court, 68 Cal. App. 4th 1538 (1999). This protection extends to speech made via the internet. Digital Music News LLC v. Superior Court, 226 Cal. App. 4th 216 (2014).


Submit your own column for publication to Ben Armistead

Related Tests for Constitutional law

self-study/Constitutional Law

Vaccines and parental choice

By Scott J. Nord

self-study/Constitutional Law

OT20: It’s a wrap

By James Azadian, Becky James

self-study/Constitutional Law

Self-incrimination and restraining orders in California

By Dean Hansell, Bryant Y. Yang

self-study/Constitutional Law

Restraining orders and the Fifth Amendment to the Constitution

By Dean Hansell, Bryant Y. Yang

self-study/Constitutional Law

Invalid appointments and the restoration of DACA

By Suria M. Bahadue, Ethan D. Dettmer, Matthew S. Rozen

participatory/Constitutional Law

The US Supreme Court saves DACA

By Howard B. Miller, Mark D. Rosenbaum

participatory/Constitutional Law

The Constitution and robocalls

By Howard B. Miller, Stephen J. Newman