Privacy Privilege in Discovery

Article I, section 1 of the California Constitution “creates a zone of privacy which protects against unwarranted compelled disclosure of certain private information.”  Planned Parenthood Golden Gate v. Superior Court  (2000) 83 Cal.App.4th 347, 357.  Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370–371.  In determining whether information falls within the zone of privacy, the party claiming the privacy privilege must have a reasonable expectation of privacy under the circumstances, including the customs, practices, and physical settings surrounding the circumstances.  Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1, 35–37.

Generally, in situations where private information is not at stake, discovery in litigation is broad:

[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.

California Code of Civil Procedure section 2017.010.  

However, the typical scope of discovery is severely limited when a party requests information that is protected by the constitutional right of privacy.  Fishing expeditions through private materials are not allowed.  Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1387:

While the filing of the lawsuit by petitioner may be something like issuing a fishing license for discovery, as with a fishing license, the rules of discovery do not allow unrestricted access to all species of information. Discovery of constitutionally protected information is on a par with discovery of privileged information and is more narrowly proscribed than traditional discovery.

Granted, the constitutional privacy privilege is not absolute for parties engaged in litigation, but a plaintiff’s protected documents do not become open season just because he files a lawsuit.  Lantz v. Sup. Ct. (1994) 28 Cal.App.4th 1839, 1853–1854.  In overcoming the privacy privilege, the party seeking discovery bears a burden that is “particularly heavy.”  Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 855.  “[T]he party seeking discovery must demonstrate a compelling need for discovery, and that compelling need must be so strong as to outweigh the privacy right when these two competing interests are carefully balanced.”  Lantz, supra (emphasis supplied).  See also Palay v. Sup. Ct. (1993) 18 Cal.App.4th 919, 933; Harris v. Sup. Ct. (1992) 3 Cal.App.4th 661, 665.

In addition to demonstrating a compelling need, a party seeking discovery of private information must bears the burden of “making a threshold showing that the evidence sought is ‘directly relevant’ to the claim or defense.”  Harris, supra (citing Britt, supra 20 Cal.3d at 864).  Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017 (“The burden is on the party seeking the constitutionally protected information to establish direct relevance.”). The private information must be directly relevant.

A demonstration of direct relevance starts with the proposition that mere speculation is insufficient.  “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.”  Davis, supra, 7 Cal.App.4th at 1017.  Mendez v. Superior Court, (1988) 206 Cal.App.3d 557, 571 (“It would be anomalous for a trial court to accept conjecture as a basis for discovery when there is no submitted support for the underlying assumption.”).

If an intrusion on the right of privacy is deemed necessary in a particular case, “any such intrusion should be the minimum intrusion necessary to achieve its objective.”  Lantz, supra (citing Mendez, supra,206 Cal.App.3d at 566–567, and Wood v. Superior Court (1985) 166 Cal.App.3d 1138).  Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 680 (The party seeking discovery of private information must use the “least intrusive means.”).  Blinder v. Superior Court (1987) 196 Cal.App.3d 893, 900 (“[T]he scope of such disclosure will be narrowly circumscribed; such an invasion of the right of privacy ‘must be drawn with narrow specificity.’”).

Even if the custom and practice regarding personal email accounts did not establish privacy, there are numerous laws that recognize the private nature of a person’s email account—the Electronic Communication Privacy Act (United States Code, title18, section 1511), and the Stored Communications Act (18 U.S.C. § 2701), for example. 

The same goes for credit card statements. As the California Supreme Court held in People v. Blair (1979) 25 Cal.3d 640, 651–652:

As with bank statements, a person who uses a credit card may reveal his habits, his opinions, his tastes, and political views, as well as his movements and financial affairs.  No less than a bank statement, the charges made on a credit card may provide “a virtual current biography” of an individual.  [Citation.]

A credit card holder would reasonably expect that the information about him disclosed by those charges will be kept confidential unless disclosure is compelled by legal process.  The pervasive use of credit cards for an ever-expanding variety of purposes business, social, personal, familial and the intimate nature of the information revealed by the charges amply justify this conclusion.