Beware – The Appealability of a Discovery Order

Svetlana (Lana) U. Sheshina, Esq.
Schwartz Semerdjian Ballard & Cauley LLP
Published:  06.01.2012

Although every attorney knows that Judges dread dealing with discovery disputes, attorneys are required by the statutes to engage in good faith meet and confer process to resolve discovery issues and most attorneys at least try to resolve issues amicably without involving the judicial assistance.  Some disputes present issues that require an order from the Court to protect the client and sometimes the firm representing the client that attempts to withhold relevant information that may significantly violate privacy of others.  So what happens when the court orders you to produce something you believe will violate privacy of your client or a third party? And more importantly what should you do to protect those interests?

In the case of Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, Plaintiff, a minor alleging sexual molestation and abuse by her swimming coach, sued Defendant’s employer, U.S. Swimming, Inc., alleging negligence in hiring, training, control, supervision and retention of defendant coach.  During the discovery, Plaintiff sought documents regarding other complaints of molestation of underage female swimmers.  Since the Plaintiff’s case against defendant U.S. Swimming was dependent on Defendant’s knowledge of coach abuse of plaintiff and others such evidence was of utmost relevance.  The Defendant failed to produce the requested documents.  A motion to compel with request for sanctions followed.  The Defendant filed a motion for protective order. The trial court granted the motion to compel denying request for sanctions and granted in part the Defendant’s motion for a protective order.  The court ordered U.S. Swimming to produce the documents but allowed it to redact “any identifying information regarding the accused coaches and complainants” from any documents produced.  

In response, U.S. Swimming produced heavily redacted documents, in what appeared to be no logical order, and each and every specific necessary for assembling the documents in a logical manner (either by incident, complaint number, date, region, team, etc.) has been redacted.  The following information was also redacted on the documents produced:  (1) date of the complaint, (2) nature of the complaint, (3) the swim club and/or regional swim committee involved, (4) witnesses to the incident, and (5) what was done in response to the complaint, if anything.   Other documents were produced blank, labeled – legal and internal correspondence.  Even documents such as newspaper articles, Yahoo search results, information copied from an Internet news site, and a complaint filed in Texas were all redacted for any information that would allow plaintiff to gain information as to what happened, when, with whom and what was done.

Plaintiff filed a motion for compliance with the discovery order.  U.S. Swimming argued that disallowing the redaction of the information it redacted would allow someone to figure out the identity of the coach or complainant and would defeat the purpose of the protective order. After conducting a hearing on the motion for compliance, the court granted Plaintiff’s motion ordering U.S. Swimming to reproduce to Plaintiff all documents previously produced with redactions limited to the name, address, telephone number and other specific identifying number of the person making the complaint (and his or her parents) and the person (i.e. coach) subject to the complaint.  The court also ordered that any documents that have already been made public had to be produced unredacted. Additionally, the court issued sanctions in the amount of $5,250.00.

Defendant U.S. Swimming appealed.

Can I Appeal A Discovery Order? – No.  But You Can Appeal A Sanction Order of $5,000.00 or More.

“A trial court’s order is appealable when it is made so by statute.”  Id. at 1432.  (Citing Gritset v. Fair Political Practices Com’n (2001) 25 Cal.4th 688, 696.) Under California Code of Civil Procedure section 904.1, an appeal may be taken from an interlocutory judgment or an order directing a payment of monetary sanctions by a party or attorney for a party if the amount exceeds five thousand dollars ($5,000).  Code Civ. Proc. § 904.1 (a)(11) and (12).   There is no statutory provision for appeal of a discovery order, however a party may seek extraordinary writ relief to prevent discovery if information protected by the right of privacy.  (See Valley Bank of Nevada v. Superior Court (1975) 12 Cal.3d 652)

Furthermore, it is a duty of a court to dismiss an appeal of an order that is not appealable.  Thus, in this case the Court of Appeal limited itself to the review of only the award of sanctions portion of the trial court’s order.

U.S. Swimming argued that the Court could review the correctness of the entire order, since the propriety of the sanction order is inextricably intertwined with the other issues decided by the trial court, relying on Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262.  Where the defendant appealed a discovery and sanctions order and presented no other reason for appealing the sanction order than the invalidity of the discovery order.  The Mileikowsky court determined that the court did not abuse its discretion in ordering sanctions.

Thus, the Appellate Court stated that the issue in the present matter is limited to whether the trial court abused its discretion in determining that U.S. Swimming acted without “substantial justification” and imposing a monetary sanction without conducting an in camera inspection.  The Court proceeded to state that this issue is not intertwined with the issue whether the trial court’s order compelling compliance was proper in light of third party privacy rights.

Review of the Sanction Order.

‘“Misuses of the discovery process include but are not limited to” “[d]isobeying a court order to provide discovery’” and “opposing, unsuccessfully and without substantial justification, a motion to compel … discovery.”’ Doe v. U.S. Swimming, Inc. at 1434.  

Under the provisions of Code of Civil Procedure governing discovery, the court shall impose a sanction unless it finds that the one subject to the sanction acted with substantial justification or that the other circumstances make the imposition of the sanction unjust.  Id.  (Code Civ. Proc. § 2023.030 (a).)  Section 2025.480 subdivision (g), expressly authorizes sanctions if a party fails to comply with order to produce documents.  

The burden is on the party subject to the sanction to show that it acted with substantial justification.  Thus, U.S. Swimming had the burden.  

The review of discovery sanction award is under deferential abuse of discretion standard and is subject to reversal only for manifest abuse exceeding bounds of reason. Id. at 1435.  

U.S. Swimming argued that it complied with the court’s order and had the court conducted an in camera viewing of the documents it would have seen that they were produced as kept in usual course of business and the redactions were of information from which the coaches and complainants could be identified.  Therefore, U.S. Swimming argued that it was substantially justified in opposing the motion to compel compliance with the trial court’s order.

U.S. Swimming argued that the trial court abused its discretion in refusing an in camera viewing.  The Court stated that the party seeking an in camera inspection of document to protect privacy has the burden to show good cause for such inspection.  The Court held that the trial court did not abuse its discretion to hold an in camera inspection because U.S. Swimming failed to reasonably apply the protective order safeguarding privacy interests.

The Court proceeded to state that the declarations of U.S. Swimming’s attorney indicate that U.S. Swimming’s interpretation of the protective order was unreasonable.  The term “complainants” was overbroad in that it included whistle blowers who reported alleged coach misconduct and who were not alleged victims or family members.  Furthermore, it misinterpreted phrase “any identifying information” to include locations, member identification numbers, swim clubs, local swimming committees, email addresses of reporting parties, and email addresses to show the complaint was reported (other than people whose responsibility it is to field such complaints).  U.S. Swimming failed to prove that all of this redacted information was necessary to protect the privacy rights of coaches and complainants.

The Court stated that if U.S. Swimming wanted to protect interests of other parties or ability to deduce the identity of the coach or complainant it should have sought a broader protective order to include such parties and limiting the use and dissemination of the disclosed information.

Stating this, the Court affirmed the sanction award.

Lesson to Learn.

If you believe that the information sought from your client violates your client’s or third party right of privacy make sure that your protective order is broad enough to cover all persons whose privacy you seek to protect and if that is not sufficient immediately seek extraordinary writ relief to prevent discovery of such information.  (See Valley Bank of Nevada v. Superior Court (1975) 12 Cal.3d 652) Because once there is discovery order ordering production of documents the only route is to produce them since no appeal of such order is available.