Case 1:07-cv-00026-OWW-TAG Document 174 Filed 07/28/2008 Page 1 of 13

6 IN THE UNITED STATES DISTRICT COURT FOR THE

7 EASTERN DISTRICT OF CALIFORNIA

9 DAVID F. JADWIN, D.O., ) No. CV-F-07-026 OWW/TAG

)
10 ) MEMORANDUM DECISION AND
) ORDER DENYING PLAINTIFF'S
11 Plaintiff, ) REQUEST FOR RECONSIDERATION
) OF MAGISTRATE JUDGE'S RULING
12 vs. ) (Doc. 134)
)
13 )
COUNTY OF KERN, et al., )
14 )
)
15 Defendant. )
)
16 )

17 Plaintiff seeks reconsideration of the Magistrate Judge’s

18 “Order Granting in Part and Denying in Part Motion to Compel

19 Production and Further Responses”, filed on May 9, 2008 (Doc.

20 124; hereafter referred to as the May 9 Order). Plaintiff

21 contends that the May 9 Order is clearly erroneous and contrary

22 to law with respect to Request Nos. 12, 13, 14, 15, 17, 28, 29,

23 30, 32, 33, 36, 37, 38, 39, 40, 41, 45, 51, 58, 59, 60, 61, 63,

24 65, 66, 67, 70, 71, 72, 73, and 78.

25 Pursuant to Rule 72-303, a District Judge upholds a

26 Magistrate Judge’s ruling on a referred matter unless it is

1
 Case 1:07-cv-00026-OWW-TAG Document 174 Filed 07/28/2008 Page 2 of 13

1 “clearly erroneous or contrary to law.” See Rule 72(a), Federal

2 Rules of Civil Procedure; 28 U.S.C. § 636(b)(1)(A). The “clearly

3 erroneous” standard applies to a Magistrate Judge’s findings of

4 fact. Concrete Pipe & Prods. v. Constr. Laborers Pension Trust,

5 508 U.S. 602, 623 (1993). “A findings is ‘clearly erroneous’

6 when although there is evidence to support it, the reviewing

7 [body] on the entire evidence is left with the definite and firm

8 conviction that a mistake has been committed.” Id. at 622. The

9 “contrary to law” standard allows independent, plenary review of

10 purely legal determinations by the Magistrate Judge. FDIC v.

11 Fidelity & Deposit Co. of Md., 196 F.R.D. 375, 378

12 (S.D.Cal.2000); Haines v. Liggett Group, Inc., 975 F.2d 81, 91

13 (3rd Cir.1992). “An order is contrary to law when it fails to

14 apply or misapplies relevant statutes, case law, or rules of

15 procedure.” DeFazio v. Wallis, 459 F.Supp.2d 159, 163

16 (E.D.N.Y.2006).

17 The May 9 Order ruled in pertinent part:

18 E. Right of Privacy

19 Fed. R. Civ. P. 26(b) excludes privileged

matters from discovery. Federal courts
20 generally recognize a constitutionally-based
right of privacy that may be asserted
21 response [sic] to discovery requests.
Johnson ex rel. Johnson v. Thompson, 971 F.2d
22 1487, 1497 (9th Cir.1992); Megargee v.
Wittman, 2007 WL [2462097] * 2
23 (E.D.Cal.2007)(citations omitted). ‘Although
the right to privacy is not a recognized
24 privilege, many courts have considered it in
discovery disputes.’ Ragge v. MCA Universal
25 Studios, 165 F.R.D. 601, 604, n.3
(C.D.Cal.1995)(citations omitted). The right
26 of privacy is not an absolute bar to

2
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1 discovery. Instead, it is subject to a

balancing test that requires courts to
2 balance the need for privacy against the need
for disclosure in litigation. Ragge, 165
3 F.R.D. at 604 (C.D.Cal.1995). Here, nearly
all of Defendants’ discovery responses assert
4 a ‘confidential personnel privilege’ without
citing a specific source of law for the
5 privilege. At the hearing on the motion,
Defendants’ counsel relied on California
6 Evidence Code §§ 1040 and 1157 as the source
of this privilege.
7
To the extent that Defendants assert a
8 ‘confidential personnel privilege’ as a state
law privilege, it is inapplicable for the
9 same reasons that the state law peer review
privilege is inapplicable. Agster, 433 F.3d
10 at 838-839. However, given the nature of the
documents requested and the reasons given for
11 objecting to their disclosure, the Court
construes the assertion of this privilege as
12 also raising a right of privacy.
Accordingly, the Court will apply the
13 requisite balancing test in determining
whether the need for disclosure outweighs the
14 privacy issues, and will also consider
whether additional orders are necessary to
15 protect a party or person from annoyance,
embarrassment, oppression, or under [sic]
16 expense in connection with any disclosure
that may be ordered as to such documents.
17
Plaintiff argues that the Magistrate Judge erred in
18
construing the “confidential personnel privilege” set forth in
19
California Evidence Code § 1040 as supporting a federal right to
20
privacy privilege. California Evidence Code § 1040 provides in
21
relevant part:
22
(a) As used in this section, ‘official
23 information’ means information acquired in
confidence by a public employee in the course
24 of his or her duty and not open, or
officially disclosed, to the public prior to
25 the time the claim of privilege is made.

26 (b) A public entity has a privilege to refuse

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 Case 1:07-cv-00026-OWW-TAG Document 174 Filed 07/28/2008 Page 4 of 13

1 to disclose official information, and to

prevent another from disclosing official
2 information, if the privilege is claimed by a
person authorized by the public entity to do
3 so and:

4 (1) Disclosure is forbidden by an

act of the Congress of the United States or a
5 statute of this state; or

6 (2) Disclosure of the information

is against the public interest because there
7 is a necessity for preserving the
confidentiality of the information that
8 outweighs the necessity for disclosure in the
interest of justice; but no privilege may be
9 claimed under this paragraph if any person
authorized to do so has consented that the
10 information by disclosed in the proceeding.
In determining whether disclosure of the
11 information is against the public interest,
the interest of the public entity as a party
12 in the outcome of the proceeding may not be
considered.
13
Plaintiff argues that Defendant’s assertion of the “confidential
14
personnel privilege” set forth in Section 1040:
15
concerns the conditional governmental
16 privilege against disclosure of official
information by public entities and public
17 employees whenever such disclosure is against
the public interest. Put another way, it is
18 a privilege that is intended to enable the
government to protect its state secrets.
19
Plaintiff refers to Garrett v. City and County of San Francisco,
20
818 F.2d 1515, 1519 n.6 (9th Cir.1987):
21
Defendants also contend that the sought after
22 documents are protected by state-created
privileges. In a Title VII action, of
23 course, the federal common law of privilege
controls. F.R. Evid. 501. This court has
24 held that personnel files are discoverable in
federal question cases, including Title VII
25 actions, despite claims of privilege. Guerra
v. Board of Trustees, 567 F.2d 352 (9th
26 Cir.1977); Kerr v. United States District

4
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1 Court, 511 F.2d 192, 197 (9th Cir.1975),

aff’d, 426 U.S. 394 ... (1976).
2
Plaintiff further cites Yee v. Multnomah County, 1990 WL 96720
3
(D.Or.1990), where the District Court granted a motion to compel
4
production of relevant performance evaluations of other employees
5
subject to a protective order.
6
Plaintiff has not demonstrated that the May 9 Order is
7
clearly erroneous or contrary to law. Plaintiff’s discovery
8
requests were not denied; they were granted subject to protective
9
order. A district court has very broad discretion under Rule
10
26(c), Federal Rules of Civil Procedure, in fashioning discovery
11
orders. Discovery restrictions may be even broader where the
12
target is a non-party. See Dart Indus. Co. v. Westwood Chemical
13
Co., 649 F.2d 646, 649 (9th Cir.1980).
14
Plaintiff argues that the Magistrate Judge raised the
15
federal right of privacy privilege sua sponte in the May 9 Order.
16
Plaintiff contends that Defendants did not assert such a
17
privilege during the meet and confer process, in their opposition
18
to Plaintiff’s motion to compel, or at the hearing on the motion
19
to compel. Plaintiff asserts:
20
Plaintiff was not afforded any opportunity to
21 submit briefing or be heard on the federal
privacy privilege or the balancing test as to
22 all of the above Requests, with the exception
of Request No. 40. Even with respect to
23 Request No. 40, Plaintiff is still ignorant
of the privacy concerns which Defendant has
24 been construed to raise since Defendant did
not specify any privacy objections beyond a
25 boilerplate assertion of ‘confidential
personnel privilege’ in meet and confers,
26 motion briefing and at the hearing itself.

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1 It should be noted that, during the four

months preceding the Court’s issuance of the
2 Order, Defendant chose to produce most of the
documents responsive to the above Requests.
3 In so doing, Defendant engaged in little to
no redaction of personal identifying
4 information. Nevertheless, Plaintiff remains
concerned about the application of the
5 Court’s protective order to future
supplemental productions by Defendant.
6
On May 20, 2008, the following “Stipulation Re: Balancing of
7
Privacy Interests and Protective Order” was filed (Doc. 137):
8
Pursuant to the Order of the Court issued by
9 Magistrate Judge Goldner on May 9, 2008 (Doc.
124), IT IS HEREBY STIPULATED by and between
10 the parties hereto through their respective
counsel that, with regard to balancing the
11 privacy interests of the Defendants against
the Plaintiff’s need for disclosure, the
12 Plaintiff’s need for disclosure prevails as
to documents that reveal the nature of
13 interpersonal work relationships at KMC
between core physicians and others, on-the-
14 job behavior towards other members of KMC
staff by core physicians, complaints against
15 core physicians regarding their behavior at
KMC and the County’s actions in response.
16
IT IS FURTHER STIPULATED that documents
17 produced in response to this Stipulation
shall be disclosed only to Plaintiff’s legal
18 counsel and retained experts and shall be
kept separate from all other files and
19 documents in this action and clearly marked
‘Confidential Pursuant to Protective Order.’
20 Upon the conclusion of this action, all such
documents shall be returned to Defendants or
21 destroyed and Plaintiff shall not retain any
copies. Defendants shall provide Plaintiff
22 with a written receipt for the returned
documents or Plaintiff shall provide
23 Plaintiff with a written receipt for the
returned documents or Plaintiff will provide
24 Defendants with a written certification that
the documents have been destroyed,
25 respectively, and that receipt or
certification shall be conclusive proof of
26 Plaintiff’s compliance with the requirement

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1 that the documents be returned to Defendants

or destroyed.
2
The foregoing notwithstanding, the parties
3 acknowledge that Plaintiff has filed a
request for reconsideration of the above-
4 referenced Order which challenges Judge
Goldner’s directive to the parties to enter
5 into this privacy-based protective order.
Plaintiff’s agreement to this stipulation is
6 therefore conditioned on such motion.

7 Plaintiff has not demonstrated that the challenged aspects

8 of the May 9 Order are contrary to law or clearly erroneous. As

9 discussed above, the Magistrate Judge has broad discretion to

10 fashion protective orders in connection with discovery requests.

11 Plaintiff has obtained the discovery he sought subject to the

12 protective order designed to protect the privacy interests of

13 those persons whose personnel files or personal information are

14 the subject of Plaintiff’s discovery requests. If, following

15 review by Plaintiff of the documents produced in connection with

16 the May 9 Order and the May 20 Stipulation and Order, Plaintiff

17 believes that he is entitled to discovery of redacted

18 information, Plaintiff is entitled to seek that discovery from

19 Defendants and/or bring a motion to compel.

20 Plaintiff asserts that the Magistrate Judge’s protective

21 order with regard to Request Nos. 32, 33, 63 and 70 is overbroad.

22 The May 9 Order states:

23 Request Nos. 32-33

24 No. 32: Documents relating to your discipline

of any employee against whom a complaint or
25 grievance of discrimination, harassment,
defamation, retaliation, failure to
26 accommodate, and/or failure to engage in an

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1 interactive process in their employment was

made from October 24, 2000 to date.
2
No. 33: Documents relating to complaints or
3 grievances made by Defendants’ past or
present employees against Defendants for
4 defamation, retaliation, disability
discrimination, failure to accommodate,
5 and/or failure to engage in an interactive
process, including, but not limited to
6 information or internal complaints,
grievances or charges to any state or federal
7 agency, and complaints filed in any state or
federal court from October 24, 2004 to date.
8
Defendants’ Response
9
Defendant objected on the grounds that these
10 requests seek documents containing
confidential personnel information and are
11 not reasonably calculated to lead to the
discovery of admissible evidence. Defendants
12 also contend that Request No. 33 is vague as
to the phrase ‘informal or internal’, and
13 overbroad and burdensome because Defendant
County of Kern employees [sic] thousands of
14 employees.

15 Ruling:

16 At the hearing on the motion, Plaintiff’s

counsel proposed to limit this Request No.
17 33 to ‘complaints or grievances made by past
or present core physicians at Kern Medical
18 Center for defamation, retaliation,
disability discrimination, failure to
19 accommodate, and/or failure to engage in an
interactive process, including but not
20 limited to any informal or internal
complaints, grievances or charges to any
21 state or federal agency, and complaints filed
in any state or federal court from October
22 24, 2004 to date.’ The term ‘core
physicians’ means physicians at Kern Medical
23 Center who are under contract. Based on that
limitation, Defendants’ counsel agreed to
24 produce the documents as to ‘core physicians’
in response to Requests [sic] Nos. 32 and 33.
25
The motion to compel is GRANTED as to the
26 limitation to ‘core physicians’ at Kern

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1 Medical Center for Requests [sic] Nos. 32 and

33, and is DENIED as to employees other than
2 core physicians at Kern Medical Center. To
the extent that Defendants’ assertion of a
3 right of privacy is subject to a balancing
test, it weighs in favor of limited
4 disclosure and a protective order.
Defendants shall redact from the documents
5 all HIPAA information and all personal
identifying information as to core physicians
6 at Kern Medical Center other than Plaintiff.
Defendants shall produce the documents,
7 excluding those that are subject to the
attorney-client privilege. Defendants shall
8 also produce a detailed privilege log for
those documents that are withheld for the
9 attorney-client privilege. The documents
shall be produced for Plaintiff’s inspection
10 and copying, and the privilege log provided
to him, within 20 days from the date of this
11 order. Plaintiff shall decide what documents
he wants copied, and pay for his own
12 reproduction costs.

13 ...

14 Request No. 63

15 Documents relating to meeting minutes for the

following Kern Medical Center committees or
16 groups from October 24, 2000 to the present:
a) Medical Executive Committee, b) Joint
17 Conference Committee, c) Quality Management
Committee, d) Cancer Committee, e) Second
18 Level Peer Review Committee, f) Transfusion
Committee, and g) Executive Staff Meetings.
19
Defendants’ Response
20
Defendants contend that this request seeks
21 documents that contain confidential personnel
information, and information protected by
22 HIPAA and the peer review and attorney-client
privileges. Without waiving these
23 objections, Defendants agreed to produce
responsive documents subject to redaction fo
24 confidential or privileged information and
reimbursement for copying costs.
25
Ruling:
26

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1 The motion to compel is GRANTED in part and

DENIED in part as to this request. The peer
2 review and personnel privileges are
inapplicable. However, to the extent that
3 Defendants’ assertion of a right to privacy
to personnel information is subject to a
4 balancing test, it weighs in favor of limited
disclosure and a protective order. Defendant
5 shall redact from the documents all HIPAA
information and all personal identifying
6 information of employees other than Plaintiff
with respect to personnel matters.
7 Defendants shall produce the documents,
excluding those that are subject to the
8 attorney-client privilege and those that are
excluded by other provisions of this order.
9 Defendants shall also produce a detailed
privilege log for the documents that are
10 withheld for the attorney-client privilege.
The documents and the privilege log shall be
11 produced within 20 days from the date of this
order. Plaintiff shall inspect the
12 documents, decides what he wants copied, and
pay his own reproduction costs.
13
...
14
Request No. 70
15
Documents relating to peer review of Kern
16 Medical Center’s Pathology Department during
the time period from January 1, 1995 to the
17 present.

18 Defendants’ Response:

19 Defendants contend that this request seeks

documents that contain confidential personnel
20 information that is not relevant to any
issues in this case and is not reasonably
21 calculated to lead to the discovery of
admissible evidence. Defendants also object
22 to disclosure of information protected by
HIPAA and the peer review, personnel, and
23 attorney-client privileges.

24 Ruling:

25 The motion to compel is GRANTED in part and

DENIED in part as to this request. The peer
26 review and personnel privileges are

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1 inapplicable, and the relevancy objection is

overruled. Defendants’ objection based on
2 HIPAA is appropriate, as is its assertion of
the attorney-client privilege. To the extent
3 that Defendants’ assertion of a right of
privacy to personnel information is subject
4 to a balancing test, it weighs in favor of
limited disclosure and a protective order.
5 Defendants shall redact from the documents
all HIPAA information and all personal
6 identifying information for employees other
than Plaintiff. Defendants shall produce a
7 detailed privilege log for all documents that
are withheld for the attorney-client
8 privilege. The documents and the privilege
log shall be produced within 20 days from the
9 date of this order. Plaintiff shall inspect
the documents, decide what he wants copied,
10 and pay his own reproduction costs.

11 Plaintiff argues that the Magistrate Judge erred in

12 construing the assertion of a federal privacy privilege to these

13 requests because Defendants did not assert the “confidential

14 personnel privilege” set forth in California Evidence Code § 1040

15 to these discovery requests.

16 This ground for reconsideration is without merit in part.

17 Defendants’ responses to Request Nos. 32, 33 and 63 attached to

18 Plaintiff’s motion for reconsideration as Exhibit 3 specifically

19 referred to confidential personal information. Defendants’

20 response to Request No. 70 objected to production on the basis of

21 privileged peer review information and information that is

22 confidential under HIPAA.

23 Plaintiff further argues that the protective order redacting

24 all personal identifying information for all employees of Kern

25 Medical Center with regard to Request Nos. 32, 33, 63 and 70 is

26 overbroad and “will render the documents requested effectively

11
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1 useless.” Plaintiff further contends that “it is difficult to

2 discern what federal privacy interest is implicated by

3 Plaintiff’s knowing the identities of the persons who, with

4 regard to Request No. 63 for instance, transcribed meeting

5 minutes or attended certain committee meetings.”

6 Given Plaintiff’s representations that Defendants have

7 provided most of the requested information without redaction and

8 given the May 20 Stipulation and Order, the Court concludes that

9 Plaintiff has not demonstrated that the May 9 Order is clearly

10 erroneous or contrary to law. The same conclusion is reached in

11 connection with Plaintiff’s contention that Defendants agreed to

12 withdraw their objections to Requests No. 32 and 33.

13 Plaintiff seeks reconsideration of the May 9 Order to the

14 extent it addresses Request No. 40. The May 9 Order states:

15 Request No. 40

16 Documents relating to the removal of Dr.

Royce Johnson from the position of Chair or
17 Chief of Medicine at Kern Medical Center.

18 Defendants’ Response:

19 Defendants objected on the ground that the

requests seek documents containing
20 confidential personnel information that is
not relevant to any issues in the case and is
21 not reasonably calculated to lead to the
discovery of admissible evidence. Defendants
22 also object to disclosure based on HIPAA, and
the peer review and attorney-client
23 privileges.

24 Ruling:

25 At the hearing on this motion, Defendants’

counsel withdrew the objections to this
26 request and agreed to produce the documents,

12
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1 without 1) waiving the personnel privilege or

privacy claims as to other persons, and 2)
2 reserving the right to object to their
admissibility at trial. Accordingly, the
3 motion to compel is GRANTED in part and
DENIED in part as follows: Defendants shall
4 produce the documents pertaining to the
removal of Dr. Royce Johnson as the Chair or
5 Chief of Medicine at Kern Medical Center for
Plaintiff’s inspection, but it shall be
6 subject to a protective order. Defendants
shall not produce documents that are subject
7 to the attorney-client privilege and provide
a detailed privilege log. The documents
8 shall be produced for Plaintiff’s inspection
and copying, and the privilege log provided
9 to him, within 20 days from the date of this
order. Plaintiff shall inspect the
10 documents, decide what he wants copied, and
pay for his own reproduction costs.
11
Plaintiff apparently believes that the May 9 Order applies
12
the federal privacy privilege to Request No. 40. A close reading
13
of the May 9 Order establishes that Plaintiff’s reading of the
14
May 9 Order is in error; the protective order imposed by the May
15
9 Order with respect to Request No. 40 refers to documents
16
protected by the attorney-client privilege.
17
For the reasons stated:
18
1. Plaintiff’s Request for Reconsideration of Magistrate
19
Judge’s Ruling is DENIED.
20
IT IS SO ORDERED.
21
Dated: July 24, 2008 /s/ Oliver W. Wanger
22 668554 UNITED STATES DISTRICT JUDGE

23

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13