Douglas Robbins, a twenty year trial attorney and fellow Discovery Referee, published his “California Discovery Manual for 2026,” which is one of the “go to” discovery treatises you should have on your desk.  I found his privacy analysis regarding the discovery of financial records extremely helpful. Here it is.

PRIVACY ANALYSIS

14.1. Constitutional Right of Privacy for Individuals

The California Constitution states:

“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal. Const. art. I, §1 (emphasis added).

14.2. Financial Privacy Four-Part Test

In analyzing the right of privacy under the California Constitution, “First, the claimant must possess a legally protected privacy interest.” Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal. 4th 360, 370 (2007) (internal quotation marks omitted); see Hill v. Nat’l Collegiate Athletic Assn., 7 Cal. 4th 1, 35 (1994) (“The first essential element of a state constitutional cause of action for invasion of privacy is the identification of a specific, legally protected privacy interest.”); see also Alch v. Superior Court, 165 Cal. App. 4th 1412, 1423 (2008) (“As subsequent cases have confirmed, discovery orders implicating privacy rights are evaluated under the framework established in Hill, and reiterated in Pioneer . . . .”). “Second, the claimant must have a reasonable expectation of privacy under the particular circumstances, including the customs, practices, and physical settings surrounding particular activities.” In re Ins. Installment Fee Cases, 211 Cal. App. 4th 1395, 1420 (2012); see Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal. 4th at 370; Hill, 7 Cal. 4th at 36-37. Third, “invasion of privacy complained of must be serious in nature, scope, and actual or potential impact to constitute an egregious breach of social norms, for trivial invasions afford no cause of action.” Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal. 4th at 371 (internal quotation marks omitted). Finally, if a right of financial privacy is found, the Court must conduct a balancing test: If there is a reasonable expectation of privacy and the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing or countervailing interests, which include the interest of the requesting party, fairness to the litigants in conducting the litigation, and the consequences of granting or restricting access to the information. Puerto v. Superior Court, 158 Cal. App. 4th 1242, 1251 (2008); see Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal. 4th at 371 (holding that “privacy interest[s] . . . must be measured against other competing or countervailing interests in a “balancing test’”); see also Williams v. Superior Court, 3 Cal. 5th 531, 557 (2017) (approving the balancing test and “disapprov[ing]” any rule that “require[s] a party seeking discovery of private information to always establish a compelling interest or compelling need . . . in every case”).

14.3. Corporations Have No Constitutional Right to Privacy

“[C]orporations have no California right to privacy that is protected by the California Constitution or statutory law.” Cmty. Action Agency of Butte Cnty. v. Superior Ct. of Butte Cnty., 79 Cal. App. 5th 221, 238 n.10 (2022); see Nativi v. Deutsche Bank Nat’l Trust Co., 223 Cal. App. 4th 261, 314n.16 (2014) (“Several appellate courts have concluded that this constitutional provision does not apply to corporations.”).

14.4. Corporations Do Enjoy a (Lesser) Common Law Right to Financial Privacy

While “corporations do not have a right of privacy protected by the California Constitution” they “do have a . . . lesser right [to privacy] than that held by human beings,” one that is “not a constitutional right” and thus “not . . . a fundamental right.” SCC Acquisitions, Inc. v. Superior Court, 243 Cal. App. 4th 741, 755–56 (2015). “Because the corporate privacy right is not constitutionally protected,” determining whether a discovery request “infringe[s] that right is resolved by a balancing test. The discovery’s relevance to the subject matter of the pending dispute and whether the discovery ‘appears reasonably calculated to lead to the discovery of admissible evidence’ is balanced against the corporate right of privacy.” Id. (quoting Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court, 137 Cal. App. 4th 579, 595 (2006)). “Doubts about relevance generally are resolved in favor of permitting discovery.” SCC Acquisitions, 243 Cal. App. 4th at 756; see Hecht, 137 Cal. App. 4th at 595; see also Jiae Lee v. Dong Yeoun Lee, No. CV 19-8814 JAK (PVCX), 2020 WL 7890868, at *6 (C.D. Cal. Oct. 1, 2020).

PRACTICE NOTE RE FINANCIAL PRIVACY

Not all parties’ rights to financial privacy are the same. In general terms, natural persons, not party to the action, have the strongest claims to financial privacy. Natural persons who are party to the action have a mid-level claim to the right. And corporate entities and non-natural persons have the weakest claim. Some factors can weaken the right. Putting a claim or defense at issue in litigation that implicates the sought-after information will usually weaken the right to financial privacy. Whereas financial facts that have nothing to do with the litigated issues are more strongly protected. Other factors can bolster the right. When a non-financial privacy right overlaps with financial privacy, then it bolsters and amplifies the later right. For example, if medical privacy or sex privacy were to be implicated by certain financial transactions, then those financial transactions enjoy additional fortification from disclosure.

One of the often used garbage objections in response to written discovery, especially in document demands, is the phrase “vague, ambiguous unwarranted annoyance, embarrassment, and oppression and undue burden and expense.”  Which is a paraphrase of Code of Civil Procedure §2023.010(c). These objections are often strung together in a single sentence with other garbage objections without explanation. 

Courts uniformly condemn this practice because discovery objections must be specific and factually supported, not rote incantations. See Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513

The court’s philosophy is that boilerplate objections undermine the cooperative purpose of discovery. The Civil Discovery Act is designed to encourage transparency and the exchange of information necessary so all sides can evaluate their case and prepare for trial. (C.C.P. § 2017.010.) Blanket objections, especially when used reflexively or without factual justification, obstruct that purpose and often signal bad faith.  See C.C.P. §2023.010.

Disputes regarding objections to written discovery, especially documents, are where the most battles arise. Over the last 30+ years of ruling on these motions, I have found that both sides contribute to the stalemate of resolving the issues when it comes to these objections.  And, its not merely academic.  Think about when you receive responses with all sorts of objections.  Is there additional information that is not being provided because of the objection or assertion of privilege, or is it merely boilerplate followed by the best information the opponent has?  The decision to spend the time and money to make a motion depends on which it is.

Propounding Party’s Mistakes 

The interrogatory, document request or request for admission needs to have specificity for the responding party to reasonably respond.  Common mistakes, especially with document requests, are these:

Responding Party’s Errors

  • Failing to comply with responding party’s obligations in responding to written discovery.
  • Responding with all objections without providing specific facts why the objection is valid. Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513.
  • Failing to realize “fishing expeditions” are permissible.  Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 CA4th 566 
  • Failing to provide a definition of any disputed or ambiguous term in the response to respond to the interrogatory or request, such as stating: Plaintiff/Defendant construes “_____” to mean “_____.”
  • Failing to meet and confer with the propounding party regarding concerns with the written discovery before the response is due 
  • Failing to meet and confer and determine if there is less intrusive discovery methods to obtain the information.
  • Failing to meet and confer and determine whether stipulations can be agreed upon in order to limit the scope of discovery.

Motions for Protective Orders 

The responding party may bring a motion for protective order to narrow the broad scope of the discovery. Such orders may be granted if the court finds

  • The stakes in the case (because a given cost of production may be reasonable in a large case but not a smaller one);
  • The availability of less burdensome, alternative sources of the proposed discovery
  • Materiality of the information sought (i.e., how peripheral or collateral it is to a claim or defense of the case);
  • Utility of the information (i.e., how useful it will be to prove a material issue in the case.)
  • The Discovery sought is unreasonably cumulative or duplicative
  • The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought.

In my experience, most protective orders are only granted in part on burdensome grounds unless the discovery propounded is being used as a weapon or seeks privileged information.  When the area of discovery that the propounding party is seeking is permissible, I rewrite the interrogatory or request.  Instead of incurring the expense of bringing and responding to motions, the parties should meet and confer to cure the flaws of the discovery requested.   

How often do you see this objection? Irrelevancy is one of the garbage objections that parties throw out in response to discovery.  Do you wonder if opposing counsel actually understands what is relevant in discovery?  Did you ever question if opposing counsel ever read the statute let alone the case law? So, what can you discover…

Continue Reading Objection, Irrelevant!  

Over the years, I have heard numerous motions for issue, evidence and  terminating sanctions. I found that it is difficult to rule on motions for issue and evidence sanctions if the Separate Statement is not complete. If the Separate Statement does not fully explain what you are asking for and specifically describe the numerous discovery requests and the deficiencies in the responses you received regarding the specific issue or evidence your requesting an order on, the record will not allow me to recommend sanctions beyond monetary sanctions. 

Continue Reading Prepare a Winning Separate Statement for your Motion for Issue and Evidence Sanctions 

Having reviewed thousands of Motions to Compel Further Responses over the years, I rely heavily on the separate statement filed with these motions.  Unfortunately, I find that many of the separate statements are deficient and not in compliance with Rule 3.1345 of the California Rules of Court.  This inevitably hurts the moving party as I search for the information that should have been in the Separate Statement. However, beware, Courts routinely deny these motions when the separate statement fails to be in compliance with CRC, Rule 3.1345.

Continue Reading Does Your Separate Statement Contain All the Required Information for a Motion to Compel Further Responses?
Production of documents request

Most discovery disputes involve requests for production of documents.  This is because there are specific requirements for a party to properly respond to the request which has been the subject of many of my blogs, including a responding party’s obligation to state whether the documents you are seeking ever existed and where they are now as well as which request the documents being produced are responsive. However, there is nothing more combative in discovery than parties arguing over objections to a document request and the adequacy of the privilege log–assuming one was even provided. 

Continue Reading Ask The Court to Perform an In-Camera Review of the Documents Being Withheld On the Claim of Privilege

California law expressly provides for discovery of information about the evidence and contents of any insurance agreement under which a carrier may be liable to satisfy all or part of a potential judgement or to indemnify or reimburse payments made to satisfy the judgment.  C.C.P. §2017.210.  The statute also provides for discovery of whether coverage of the claim involved in the action is disputed, “but not as to the nature and substance of that dispute.”  C.C.P. §2017.210.

Continue Reading Is Insurance Information Discoverable?

In the case of City of L.A. v. PricewaterhouseCoopers, LLC (2024) 17 C5th 46 the California Supreme Court unanimously held that the Discovery Act gives courts independent authority to impose sanctions for discovery abuses and patterns of discovery abuse provisions. This was a complete reversal of the Court of Appeal’s decision which had limited the ability to obtain sanctions to the specific discovery device decision. In their decision, the Supreme Court stated that

“Under the general sanctions provisions of the Civil Discovery Act, Code of Civil Procedure sections 2023.010 and 2023.030, the trial court had the authority to impose monetary sanctions for the City’s pattern of discovery abuse. The court was not limited to imposing sanctions for each individual violation of the rules governing depositions or other methods of discovery.” at pages 50-51. 

Continue Reading The Court has Inherent Power to Impose Discovery Sanctions

We all have been doing Zoom depositions for the last four years.  As we have limped along, we have developed implied rules and protocols for having these depositions, but there are no written rules or guidance on how these depositions should be conducted.   

Justice James Lambden (Ret.) who often is appointed as a Discovery Referee, has the answer.  When he is the Discovery Referee, he serves on all parties his “REMOTE (HYBRID) DEPOSITION PROTOCOL” prior to depositions being conducted.  When Justice Lambden attends the deposition, he confirms on the record that all parties have read and understands the protocol.  He has found that his protocol aids him and the parties in conducting a clean Zoom deposition.  

Continue Reading ZOOM DEPOSITIONS—What is the Protocol

I recently received an inquiry regarding Code of Civil Procedure section 2023.050, which now states that the court SHALL impose sanctions of $1000 payable to the requesting party regarding requests for production of documents in deposition notices or document demands.  These were the facts:   

Plaintiff brought a Motion to Compel Further Responses to Requests for Production of Documents.  Defendant opposed the motion and won.  The Judge then sanctioned the Defendant $1000.00 stating that he had no choice but to sanction the defendant pursuant to CCP 2023.050 as Plaintiff asked for sanctions and Defendant didn’t.  The Judge also told defense counsel that if Defendant had asked for sanctions, he would have awarded Defendant the $1000.00.  Defense counsel was bewildered with the imposition of sanctions and asked me if the Judge was correct. 

No, the Judge was not correct.  Code of Civil Procedure §2023.050 states:

Continue Reading Should I have been Sanctioned?