Trial Court Erred When It Sustained Objections Of Third Parties To Disclosure Of Subpoenaed Information Sought During Discovery In An Age Discrimination Lawsuit

In Alch v. Superior Court of the State of California for the County of Los Angeles, (— Cal.Rptr.3d —, 2008 WL 3522099, Cal.App. 2 Dist., Aug. 14, 2008), a California Court of Appeal considered “whether a trial court acted beyond its discretion when it sustained all objections of third parties to the disclosure of subpoenaed information on privacy grounds.” The Court of Appeal concluded the trial court did act beyond its discretion under the circumstances.


Television writers (“Writers”) filed class action lawsuits alleging “an industry-wide pattern and practice of age discrimination.” Writers named as defendants in the lawsuits studios, television networks, talent agencies, and production companies. During the course of discovery in the lawsuit, Writers served subpoenas on the Writers Guild of America and other entities (collectively, “Guild”) seeking data on members so that Writers could prepare statistical analysis in support of their discrimination claim. Data sought included demographic information, such as date of birth, race, and gender; employment and agency representation records, including employment contacts, employment application records, and writing qualifications; and health and disability records related to employability.

A privacy notice was prepared and sent to 47,000 Guild members that advised them of their rights to object on privacy grounds to the disclosure of their personal information to Writers. Approximately 7,700 people filed objections to the disclosure of the information requested by Writers. Writers moved to overrule the objections. Writers later conceded the court should uphold the objections relating to health and medical records.

The trial court found the privacy rights of those objecting to the disclosure of their information outweighed the public interest in pursuing the age discrimination litigation. The trial court overruled the Writer’s motion to overrule the objections and sustained the objectors’ objections to disclosure of personal information.

Writers asked the trial court to reconsider its order to the extent it protected (1) basic demographic data, (2) employment data such as employer, job title, dates of employment, and credits, (3) “‘a link for the multiple databases’ containing the demographic and employment history information,” and (4) documents which contained information that age was a consideration in hiring and those that contained lists or references to preferred writers. The trial court denied Writers’ request.


The Court of Appeal held that the trial court erred when it sustained all of the objectors’ objections to the disclosure of the subpoenaed information. The Court of Appeal stated the trial court “used a broad brush to deny the writers access to all data about the objectors out of hand, and wholly failed to consider whether a more nuanced approach to the different categories of data would satisfy the balance that must be struck between privacy interests and a litigants need for discovery.” The court found, while the lower court purported to weigh the privacy rights of the objectors against the public interest in pursuing the age discrimination litigation, it gave short shrift to the public interest. Writers “submitted evidence that no meaningful statistical study could take place if data from the objectors were omitted from it.”

The California Supreme Court “has previously concluded that third-party contact information – name, address, and phone number – may appropriately be given to civil litigants when the third parties are given an opportunity to object to the disclosure of their contact information.” Writer’s request requires the court “to determine whether it is appropriate to require the disclosure of personal information over the objections of the individuals whose information is sought.”

The court set out the framework for determining whether it is appropriate to require personal information over the objection of the person from whom the information is sought. First, a privacy claimant must have a “legally protected privacy interest,” which can be of two types, autonomy privacy or informational privacy. At issue here is informational privacy which means that the person has an interest in precluding the misuse or dissemination of sensitive or confidential information. Second, a person claiming a privacy interest “must have a reasonable expectation of privacy under the specific circumstances.” Third, in order for an invasion of privacy claim to be actionable, the invasion of privacy must be great enough “to constitute an egregious breach of the social norms underlying the privacy right.” If these three criteria are met, the privacy interest “must be measured against other competing or counterveiling interests in a “balancing test.””

If a serious invasion of privacy interest is shown by the objectors, Writers must then show that they have a compelling need for the data which they requested. They may show such a need “by showing the information is ‘directly relevant’ and ‘essential to the fair resolution’ of the lawsuit.” Writers’ interest must be strong enough to outweigh the privacy interest when the competing interests are balanced.

The Court of Appeal held the trial court erred when it refused to overrule the objections to the disclosure of the information requested by Writers on privacy grounds. The objectors established they had a legitimate privacy interest. However, Writers also demonstrated the information they requested was directly relevant to their claims of age discrimination and the information was essential to the fair resolution of their lawsuits. Statistical proof is essential in an employment discrimination disparate impact case. Writers cannot prove their claims without access to the information.

The trial court abused its discretion when it conducted the balancing test and concluded the need of the Writers’ to obtain the information was out weighed by the privacy interests of the objectors. The trial court failed to consider the effect the denial of access to the data sought by Writers’ would have on their age discrimination claims. The Court of Appeal noted that Writers are no longer seeking sensitive employment data that would have to come from personnel files such as evaluative materials. Also, although the demographic information sought by Writers “is personal information, it is hardly sensitive information.” For example, social security numbers have not been sought by Writers.

The Court of Appeal opined that the trial court apparently failed “to give any consideration to the significance of the state’s interest in preventing invidious discrimination.” Although the trial court considered identity theft when analyzing whether the objections should be overruled, it failed to consider the significance of a strong protective order that could reduce privacy concerns. Accordingly, the Court of Appeal held that Writers must be granted access to the requested information.