RAGGE v. MCA/UNIVERSAL STUDIOS, et al., (C.D.Cal. 1995)

MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF PERSONNEL FILES

ROSALYN M. CHAPMAN, U.S. Magistrate Judge.

On February 22, 1995, plaintiff filed a Notice of Motion and Motion to Compel Discovery; Joint Stipulation of Issues to be Determined on Motion to Compel Discovery; Declaration of Carol Klauschie, and supporting Exhibits 1 and 2; and Declaration of Carol A. Klauschie re Compliance of Opposing Counsel. On March 8, 1995, defendants MCA Concerts, Inc. (sued as MCA/Universal Studios) and John Portelli filed a Supplemental Memorandum of Law; and Declaration of Adam Levin. On the same date, plaintiff filed a Supplemental Memorandum in Support of Motion to Compel.

Referred to in the Memorandum Decision as Defendant MCA.

Plaintiff's Motion to Compel seeks discovery of documents requested in plaintiff's First Request for Production of Documents to defendant MCA, Requests numbers 16 through 21. Specifically, plaintiff requests the personnel files of each of the individual named defendants: Request No. 16 — Peter Muendel; Request No. 17 — Rick R. Storer; Request No. 18 — Christopher Fahlman; Request No. 19 — Tony Caputo; Request No. 20 — Marc Bension; and Request No. 21 — John Portelli. During the parties' meet and confer sessions, plaintiff narrowed the scope of discovery to those documents in the personnel files pertaining to promotions or demotions, disciplinary proceedings, work performance reviews or evaluations, employee and/or customer complaints, and "other records which bear on character and/or each defendant's credibility."

Plaintiff also seeks resumes and applications for employment. Joint Stipulation, page 15, lines 23-24.

Defendant MCA has refused to turn over the requested personnel files based on irrelevancy, the employees' right to privacy, and on the ground that the relevant documents have previously been produced in response to other discovery requests.

Counsel for the parties met and conferred in person on October 18, 1994, and December 2, 1994, pursuant to Local Rule 7.15.1, but were unable to resolve their dispute.

This case was assigned to Magistrate Judge Rosalyn M. Chapman on March 13, 1995, for discovery purposes. Plaintiff's motion was initially noticed for March 14, 1995, and subsequently renoticed, at the Court's request, for March 29, 1995.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Claire E. Ragge alleges four causes of action for sexual harassment and discrimination in the workplace and unlawful retaliation by defendants in violation of Title VII, 42 U.S.C. § 2000e, et seq., and California Government Code §§ 12940(h)(1) (sexual harassment), (i) (failure to prevent discrimination and harassment), and (f) (unlawful retaliation) and four common law tort causes of action arising out of defendants' treatment of her and conduct.

Plaintiff originally filed her lawsuit in the Los Angeles Superior Court, on March 24, 1994. Defendants MCA, Bension, Portelli, Muendel, and Caputo answered the complaint in the Superior Court. Shortly thereafter, the case was removed to federal court on the grounds of federal question jurisdiction. After removal, defendant Storer answered the complaint. Defendant Christopher Fahlman has not yet been served with a summons and complaint. Plaintiff settled the action against defendant Bension, and he has been dismissed as a defendant.

DISCUSSION

Federal Rules of Civil Procedure 26(b)(1) provides for discovery in civil actions, as follows:

"Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things in the identify and location of persons having knowledge of any discoverable matters. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

Rule 26 further permits the discovery of information which "may simply relate to the credibility of a witness or other evidence in the case." Schwarzer, Tashima Wagstaff, California Practice Guide: Federal Civil Procedure Before Trial, § 11.21 (1994 revised). (emphasis in original)

Generally speaking, the purpose of discovery is to remove surprise from trial preparation so the parties obtain evidence necessary to evaluate and resolve their dispute. Toward this end, Rule 26(b) is liberally interpreted to permit wide-ranging discovery of all information reasonably calculated to lead to discovery of admissible evidence; but the discoverable information need not be admissible at the trial. As commented upon by one court:

"A request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of this action. Discovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought can have no possible bearing upon the subject matter of this action." Jones vs. Commander, Kansas Army Ammunitions Plant, 147 F.R.D. 248, 250 (D. Kan. 1993)

Defendant MCA's assertion that the documents are irrelevant is without merit. Clearly there may be information in the named defendants' personnel files which is relevant to the subject matter of the pending action, whether a claim or defense, or to the credibility of a witness, as required by Rule 26(b). The documents pertaining to promotions or demotions, disciplinary proceedings, work performance reviews and evaluations, and complaints, are relevant, among other things, to the employer's knowledge of a hostile work environment. Such documents also pertain to the credibility of witnesses, including the named defendants, and provide a means to compare statements made during depositions to documents maintained by the employer.

Resumes and employment applications in the personnel files of named defendants are relevant to employer's knowledge of a harasser's prior history of harassment and, thus, relate to the claim against defendant MCA, as it pertains to defendants Muendel and Storer, the alleged harassers.

Defendant MCA also claims that the documents are protected by the defendants' right to privacy. In particular, defendant MCA argues that the personnel files include sensitive and confidential information, such as medical treatment records, payroll information, sick leave requests, loan/credit information, and other personal data. This claim is disingenuous in light of plaintiff's offer to narrow the scope of the requests to the specific documents listed above.

In California, the right to privacy is set forth in Article I, Section I of the California Constitution. It is not an absolute right, but a right subject to invasion depending upon the circumstances:

"[A] "reasonable' expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.... ['The protection afforded to the plaintiff's interest and his privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens.'] .)... [W]hen determining the existence (or not) of a constitutionally protected claim we must weigh the severity of each potential invasion of privacy...." Heller v. Norcal Mutual Ins. Co., 8 Cal.App.4th 30, 43-44 (1994)

Defendants have not cited any case law prohibiting the discovery of information in an employee's personnel file on the grounds it is privileged or protected by the right to privacy. By its nature, the requested information does not pertain to sexual, health or financial matters, areas generally considered to be private or confidential. The disclosure of these employment records is not unusual or unexpected.

Rule 26(b) excludes privileged matters from discovery. Although the right to privacy is not a recognized privilege, many courts have considered it in discovery disputes. Schwarzer, Tashima Wagstaff,California Practice Guide: Federal Civil Procedure Before Trial, § 11:76 (1994 revised).

See Jones vs. Commander, Kansas Army and Munitions Plant, 147 F.R.D. 248, in which the court held that performance evaluation reports of the alleged harasser in a sexual harassment case, during the time he supervised the employee and during other periods of employment, are discoverable. Cf. Bihun v. ATT Information Systems, Inc., 13 Cal.App.4th 976 (1993).

Even if the requested documents in defendants' personnel files are protected by defendants' privacy right, that right may, nevertheless, be invaded for litigation purposes. The court, in Cook vs. Yellow Freight System, Inc., 132 F.R.D. 548, 551 (E.D. Cal. 1990), commented on the appropriateness of balancing the right to privacy with litigation goals:

"While this court is of the view that such a balancing is appropriate, this court is also mindful of the fact that, by its very nature, litigation has a tendency to make public the sort of information that individuals otherwise would prefer to keep private. Public disclosure, in the end, is not only natural and generally unavoidable but also necessary and healthy to a process so dependant on accuracy and truth. Nonetheless, the initiation of a law suit, does not, by itself, grant plaintiffs the right to rummage unnecessarily and unchecked through the private affairs of anyone they choose. A balance must be struck."

The court also noted that even when a balance is struck, the ""scope of disclosure will be narrowly circumscribed; such an invasion of the right to privacy must be drawn with narrow specificity and is permitted only to the extent necessary for a fair resolution of the lawsuit.'" Cook vs. Yellow Freight System, Inc., 132 F.R.D. at 552, citing with approval Moskovitz vs. Superior Court, 137 Cal.App.3d 313, 316 (1982).

The importance of the information to plaintiff's claims outweighs any privacy interest defendants may have. Plaintiff's narrowing of the documents in the personnel files satisfactorily decreases the severity of the invasion of defendants' right to privacy. By narrowing her request to specific documents in the defendants' personnel files, rather than the complete personnel files, a balance has, in fact, been achieved between plaintiff's need to discover the information and the privacy rights of the defendants.

If, upon examination of the personnel files, information of a sensitive or personal nature is discovered, the parties may utilize the January 3, 1995 protective order, and label those documents confidential.

Lastly, defendants' assertion that they have previously produced the requested documents is not supported by factual references or a declaration and, accordingly, is deemed to be without merit.

ORDER

Plaintiff's Motion to Compel Production of job performance evaluations and reviews, promotion or demotion records, disciplinary actions, and complaints by other employees or customers in the personnel files of defendants Muendel (No. 16), Storer (No. 17), Fahlman (No. 18), Caputo (No. 19), Bension (No. 20), and Portelli (No. 21) is GRANTED. Defendant MCA shall produce the documents for inspection and copying by plaintiff within ten (10) days.

Although defendant Fahlman has not yet been served, he is listed as a witness for plaintiff in Joint Report of Early Meeting, and the documents are relevant to his, and other witnesses', credibility.

Although Bension is no longer a party to this case, he is also listed as a witness for plaintiff in Joint Report of Early Meeting, and the documents are relevant to his, and other witnesses', credibility.

Plaintiff's Motion to Compel Production of resumes and job applications in the personnel files of named defendants is GRANTED as to defendants Muendel (No. 16) and Storer (No. 17). Defendant MCA shall produce the documents for inspection and copying by plaintiff within ten (10) days.

Plaintiff's Motion to Compel Production of "other records which bear on character and/or each defendant's credibility" is overly broad, vague and burdensome, and is DENIED.

MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS MAINTAINED BY PRIMO CUSTODIO RELATED TO HORACE SAUCEDO'S COMPLAINT AGAINST DEFENDANT MUEDEL

On March 7, 1995, plaintiff filed a Notice of Motion and Motion to Compel Discovery; Joint Stipulation of Issues to be Determined on Motion to Compel Discovery; and Declaration of Carol Klauschie, with supporting exhibits. Specifically, plaintiff moves to compel production of documents sought in Request No. 51 of her Third Request to defendant MCA Concerts, Inc. (named as MCA/Universal Studios). On March 15, 1995, plaintiff filed a Supplemental Memorandum in Support of Motion to Compel. On March 15, 1995, defendant MCA filed a Supplemental Memorandum of Law; and Declaration in Opposition to Plaintiff's Motion to Compel, with supporting exhibits.

Referred to in the Memorandum Decision as Defendant MCA.

Plaintiff contends that the documents are relevant for many reasons, discussed below. Defendant MCA has refused to produce these documents on the grounds of relevancy and privacy. In response, plaintiff further contends that defendant MCA waived any relevancy or privacy objection by permitting Custodio to testify at his deposition about Saucedo's complaint, and that Defendant Muendel's privacy rights are protected by the stipulation re confidentiality executed by all parties and filed with the Court.

Counsel for the parties met and conferred in person on February 24, 1995, pursuant to Local Rule 7.15.1, but were unable to resolve their dispute.

This case was assigned to Magistrate Judge Rosalyn M. Chapman on March 13, 1995, for discovery purposes. Plaintiff's Motion was initially noticed for March 21, 1995, and subsequently renoticed, at the Court's request, for March 29, 1995.

FACTUAL AND PROCEDURAL BACKGROUND

DISCUSSION

Federal Rules of Civil Procedure 26(b)(1) provides for discovery in civil actions, as follows:

"Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things in the identify and location of persons having knowledge of any discoverable matters. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

"A request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of this action. Discovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought can have no possible bearing upon the subject matter of this action." Jones vs. Commander, Kansas Army Ammunitions Plant, 147 F.R.D. 248, 250 (D. Kan. 1993)

In Request No. 51, plaintiff seeks all documents contained in Primo Custodio's file regarding Hector Saucedo's complaint against defendant Muendel and defendant MCA's investigation of the complaint. At the time, Primo Custodio was defendant MCA's Director of Employee Relations. Custodio testified at his deposition that Hector Saucedo, while an employee of defendant MCA's, complained to him about a heated discussion he had with defendant Muendel, which involved the use of a racial epithet by defendant Muendel and about possible grabbing by defendant Muendel. Custodio further testified that he could not remember any other details about Saucedo's complaint, but that defendant MCA maintained a file on Saucedo's complaint, the contents of which would refresh his recollection.

Plaintiff argues the file on Saucedo's complaint is relevant because it tends to support plaintiff's claims that defendant Muendel was unnecessarily and unjustifiably abusive toward her and fostered a hostile work environment, and it relates to defendant Muendel's character and credibility. Additionally, plaintiff argues the file is relevant to defendant MCA's knowledge, or lack of knowledge, of the hostile work environment. Lastly, plaintiff contends the documents are relevant to defendant MCA's defense that plaintiff's discharge was justified, in part, for engaging in verbal altercations with other employees.

Defendant MCA asserts that the Saucedo file is irrelevant, contains confidential personnel data regarding a former employee who is not a party to these proceedings and which is protected by the employee's right of privacy, and the request is calculated to embarrass and humiliate defendant Muendel.

Let us initially examine the complaint to determine whether the requested documents are relevant to the subject matter of the pending action. Throughout the complaint, plaintiff alleges conduct by defendant Muendel involving threats of physical injury to her and demonstrations of temper. (Complaint, ¶¶ 15, 33, 34, 39, 49, and 50) Plaintiff also alleges she was informed by defendant MCA that she was being disciplined for inappropriate conduct. (Complaint, ¶¶ 61 73)

The allegation is that Defendant Muendel threatened to kill plaintiff.

The allegation is that Defendant Muendel became "livid" when he realized plaintiff had spoken to Defendant Bension.

The allegation is that Defendant Muendel went into a "vitriolic ... attack" about plaintiff speaking to defendant Bension.

The allegation is that Defendant Muendel "exploded in anger."

The allegation is that Defendant Muendel warned and "threatened" a co-worker about associating with plaintiff.

The allegation is that Defendant Muendel threatened plaintiff with physical violence, and threatened to kill plaintiff.

Defendant MCA's assertion that the documents are irrelevant is without merit. Clearly there may be information in Saucedo's complaint file which is relevant to the subject matter of the pending action, whether a claim or defense, or to the credibility of a witness, as required by Rule 26 (b). The requested documents may support plaintiff's claim of a hostile work environment. Certainly plaintiff's perspective may have been affected by her knowledge of defendant Muendel's conduct with other employees in the work place, and his reputation for threatening physical injury and bad temperament. Additionally, the documents are relevant to defendant Muendel's credibility. Lastly, Saucedo's complaint file is relevant to defendant MCA's defense that plaintiff was disciplined for inappropriate conduct.

"[I]n evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim." Ellison vs. Brady, 924 F.2d 872, 878 (9th Cir. 1991).

Defendant MCA's reliance on McLain vs. Mack Trucks, Inc., 85 F.R.D. 53 (E.D.Pa. 1979) is misplaced. That case is inapposite. Although Saucedo's complaint against defendant Muendel did not allege sexual harassment, and may have alleged racial discrimination, some of the underlying allegations of his complaint, as testified to by Custodio, are similar to the allegations in our complaint; specifically, they relate to defendant Muendel's threats of physical injury to an employee and demonstrations of temper. Saucedo's complaint cannot be characterized solely as a racial discrimination complaint, making it irrelevant to the pending action.

Defendant MCA also objects to producing the documents related to Saucedo's complaint on privacy grounds. In California, the right to privacy is set forth in Article I, Section I of the California Constitution. The right to privacy is not an absolute right, but a right subject to invasion depending upon the circumstances:

"[A] "reasonable' expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.... ["The protection afforded to the plaintiff's interest and his privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens.'] .) ... [W]hen determining the existence (or not) of a constitutionally protected claim we must weigh the severity of each potential invasion of privacy... ." Heller v. Norcal Mutual Ins. Co., 8 Cal.App.4th 30, 43-44 (1994).

Defendants have not cited any case law prohibiting the discovery of an employee's complaint against another employee on the grounds it is privileged or protected by the right to privacy. By its nature, the information does not pertain to sexual, health or financial matters, areas generally considered to be private or confidential.

Even if Saucedo's complaint file is protected by his or defendant Muendel's right to privacy, that right may, nevertheless, be invaded for litigation purposes. The court, in Cook vs. Yellow Freight System, Inc., 132 F.R.D. 548, 551 (E.D. Cal. 1990), commented on the appropriateness of balancing the right to privacy with litigation goals:

"While this court is of the view that such a balancing is appropriate, this court is also mindful of the fact that, by its very nature, litigation has a tendency to make public the sort of information that individuals otherwise would prefer to keep private. Public disclosure, in the end, is not only natural and generally unavoidable but also necessary and healthy to a process so dependant on accuracy and truth. Nonetheless, the initiation of a law suit, does not, by itself, grant plaintiffs the right to rummage unnecessarily and unchecked through the private affairs of anyone they choose. A balance must be struck."

The court also noted that even when a balance is struck, the ""scope of disclosure will be narrowly circumscribed; such an invasion of the right to privacy must be drawn with narrow specificity and is permitted only to the extent necessary for a fair resolution of the lawsuit.'" Cook vs. Yellow Freight System, Inc., 132 F.R.D. at 552, citing with approvalMoskovitz vs. Superior Court, 137 Cal.App.3d 313, 316 (1982).

The importance of the documents to plaintiff's case outweighs any privacy expectations defendant Muendel might have. Moreover, Muendel cannot have a reasonable expectation of privacy for complaints made to his employer about his conduct after litigation relevant to such complaints is brought. Similarly, Saucedo cannot have a reasonable expectation of confidentiality or privacy regarding his complaint against defendant Muendel, especially after leaving his job with defendant MCA.

Code of Civil Procedure Section 1985.3 sets forth the types of records that Californians may reasonably expect to be kept confidential, and establishes procedures to give notice to a consumer if those records are subpoenaed for trial. An examination of C.C.P. Section 1985.3 shows that it applies only to records maintained by health care practitioners, lending institutions, and the like; it is not applicable to employment or personnel records.

If, upon examination of Saucedo's complaint file, information pertaining to Saucedo of a sensitive or personal nature is discovered, the parties may move the Court for a protective order, or utilize the January 3, 1995 protective order.

ORDER

Plaintiff's Motion to Compel defendant MCA to produce documents pertaining to Hector Saucedo's complaint against defendant Muendel, maintained in the custody of Primo Custodio, specifically Request No. 51 in plaintiff's Third Request to Produce, is GRANTED. Defendant MCA shall produce the documents for inspection and copying by plaintiff within 10 (ten) days.

MEMORANDUM DECISION AND ORDER RE: DEFENDANTS MCA'S AND PORTELLI'S MOTION TO COMPEL MENTAL EXAMINATION OF PLAINTIFF

ROSALYN M. CHAPMAN, U.S. Magistrate Judge

On March 7, 1995, defendants MCA Concerts, Inc. (sued as MCA/Universal Studios) and Portelli filed a Notice of Motion and Motion to Compel Mental Examination of Plaintiff; and Joint Stipulation of Issues to be Determined by Defendants' Motion. On March 14, 1995, plaintiff filed an Opposition to Defendants' Motion to Compel Mental Examination of Plaintiff. On March 15, 1995, defendants MCA and Portelli filed a Supplemental Memorandum of Law in Support of Motion for an Order to Compel Mental Examination of Plaintiff.

Referred to in the Memorandum Decision as Defendant MCA.

Defendants contend that the mental examination of plaintiff is proper under Fed.R.Civ.P. 35 because plaintiff has placed her mental state in controversy by claiming damages for pain and suffering and for emotional distress. Plaintiff does not contend that the mental examination is improper, but proposes that two conditions be attached to the mental examination: (1) that the examiner disclose in advance to plaintiff's counsel the specific tests to be conducted at the examination; and (2) that a third party observer be present at the examination. Defendants oppose the conditions, asserting that they could interfere with, or have a negative effect on, the mental examination and might skew the outcome.

Counsel for the parties met and conferred in person regarding the proposed mental examination on February 24, 1995, pursuant to Local Rule 7.15.1, but were unable to resolve their dispute.

This case was assigned to Magistrate Judge Rosalyn M. Chapman on March 13, 1995, for discovery purposes. Defendants' motion was initially noticed for March 21, 1995, and subsequently renoticed, at the Court's request, for March 29, 1995.

FACTUAL AND PROCEDURAL BACKGROUND

DISCUSSION

Federal Rules of Civil Procedures 26(a)(5) provides that parties may obtain discovery by "physical and mental examinations." Rule 35 sets forth the requirements for obtaining discovery by a physical or mental examination, as follows:

(a) When the mental or physical condition (including the blood group) of a party or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner.... The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made."

One of the purposes of Rule 35 is to "level the playing field" between parties in cases in which a party's physical or mental condition is in issue. "[G]ranting a request for a psychiatric examination pursuant to Rule 35 is to preserve the equal footing of the parties to evaluate the plaintiff's mental state...." Tomlin vs. Holecek, 150 F.R.D. 628, 633 (D. Minn. 1993). A plaintiff has ample opportunity for psychiatric or mental examination by his/her own practitioner or forensic expert. "Only if no additional relevant information could be gained by an examination of [plaintiff] should the motion for a psychiatric examination be denied." Duncan vs. Upjohn Co., 155 F.R.D. 23, 25 CD. Conn. 1994).

Under Rule 35 the party moving for a physical or mental examination must meet two requirements: first, the physical or mental condition of the party must be "in controversy"; and second, "good cause" for the examination must be established. Schlagenhauf vs. Holder, 379 U.S. 104, 117-20 (1964). Each motion to compel a mental examination must be decided on a case by case basis, under all the relevant circumstances. Id.

In our case, plaintiff's mental condition has been placed "in controversy" by the complaint. Plaintiff alleges in the first cause of action for sexual harassment, that she "has suffered, and continues to suffer, humiliation, embarrassment, and mental and emotional distress and discomfort...." (Complaint, ¶ 80). In the fifth cause of action for intentional infliction of emotional distress, plaintiff alleges that defendants "knew or should have known that their conduct would result in plaintiff's severe emotional distress, and said conduct was perpetrated ... and with the intent to inflict, or with reckless disregard of the probability of inflicting humiliation, mental anguish, and severe emotional distress upon plaintiff." (Complaint, ¶ 99). In the sixth cause of action for negligent supervision, plaintiff alleges that defendants "knew, or reasonably should have known that their conduct would and did proximately result in physical injury and emotional distress to plaintiff ... [including] sleeplessness, anxiety, tension, depression, and humiliation" (Complaint ¶ 102), and remaining defendants ratified the negligent conduct "with the knowledge that plaintiff's emotional and physical distress were thereby increase (sic)." Complaint, ¶ 106). Lastly, plaintiff prays for compensatory damages for mental and emotional distress. (Complaint, Prayer ¶ 1). Thus, it is clear, that plaintiff's mental state is "in controversy."

All subsequent causes of action in the complaint incorporate this allegation by reference.

All subsequent causes of action in the complaint incorporate these allegations by reference.

Now we must determine whether there is "good cause" for the mental examination. "'Good cause' for a mental examination requires a showing that the examination could adduce specific facts relevant to the cause of action and necessary to the defendant's case." Lindemann Kadue, Sexual Harassment In Employment Law, BNA (1993 ed.), at page 560. "Good cause" is established by a showing that the defendant has no other method to discover relevant information; there is simply no less intrusive means.Id.

Sometimes the two requirements of Rule 35 are merged, as noted by the court in Duncan vs. Upjohn Co., 155 F.R.D. at 25:

"Courts have read Schlagenhauf as merging the "in controversy' and "good cause' requirements of Rule 35 when a plaintiff claims an ongoing mental injury.... By claiming ongoing psychiatric harm caused by the ... defendant, therefore, the plaintiff has placed his mental state in controversy, which in turn constitutes good cause for ordering a psychiatric examination under Schlagenhauf." (citation omitted)

Thus, plaintiff's allegation in ¶ 80 of the Complaint, that her emotional distress is ongoing, is sufficient to establish good cause to compel a mental examination of her.

In fact, plaintiff does not dispute that a mental examination under Rule 35 is appropriate. Rather, she seeks to attach two conditions to the examination. First, that the examiner disclose in advance to plaintiff's counsel the specific tests to be conducted at the examination; and second, that a third party observer be present at the examination.

Because the mental examination provides one of the few opportunities for a defendant to have access to a plaintiff, and the only opportunity for a defendant to have a plaintiff examined by defendant's expert, some preference should be given to allowing the examiner to exercise discretion in the manner and means by which the examination is conducted, provided it is not an improper examination. Although the Court is not required to accept defendants' proposed examiner as the examining psychologist, only if plaintiff raises a valid objection will the Court appoint a different examiner. Duncan vs. Upjohn Co., 155 F.R.D. at 26. Plaintiff's allegations that Dr. Paul Lees-Haley is an advocate, hostile to plaintiff and her counsel, are purportedly based on a letter Dr. Lees-Haley wrote objecting to conditions being attached to his examination of plaintiff. The letter does not show, and evidence has not been proffered by plaintiff to show, that Dr. Lees-Haley, a clinical psychologist licensed in California, will not conduct an unbiased, proper examination.

If the examination is improper, it may be excluded at trial. Wright, Miller, Marcus, Federal Practice Procedure, § 2236 (2d ed. 1994).

Plaintiff has not objected to the psychologist selected by defendants but, nevertheless, seeks to place conditions on his examination based on his alleged hostility to plaintiff and her counsel.

The declaration of Dr. Lees-Haley sets forth the nature of the examination to be conducted, including the types of psychological tests he may choose to administer. There is nothing unusual or improper proposed. It would serve no purpose to require Dr. Lees-Haley to select, and disclose, the specific tests to be administered in advance of the examination. A detailed report of the mental examination, including the tests administered, will be provided to plaintiff under Rule 35(b).

Third party observers may, regardless of their good intentions, contaminate a mental examination. Tomlin vs. Holecek, 150 F.R.D. at 628;Galieti vs. State Farm Mutual Automobile Ins. Co., 154 F.R.D. 262, 264 CD. Colo. 1994). Moreover, Dr. Lees-Haley does not propose to use unorthodox or potentially harmful techniques in his examination of plaintiff, requiring a third party to be present. Duncan vs. Upjohn Co., 155 F.R.D. at 27. The potential for a third party observer to interfere with, or even contaminate, a mental examination is recognized in California Code of Civil Procedure Section 2032(g)(1), which provides that an observer may be present at a physical examination but does not provide for an observer at a mental examination. Accordingly, plaintiff's request for a third party observer during her mental examination is without merit.

Defendants' Motion to Compel a Mental Examination of Plaintiff does not fully comply with the provisions of Rule 35. It does not specify the time or date for the mental examination. Nevertheless, as the court found in the Galieti case, with trial forthcoming it is too late to require defendants to refile their motion specifying date and time.

Perhaps these requirements were discussed by the parties during their attempt to enter into a stipulation regarding the mental examination, but they are not set forth in the Motion to Compel or Joint Stipulation.

WHEREAS, good cause appearing,

IT IS HEREBY ORDERED:

Defendants MCA's and Portelli's Motion to Compel the Mental Examination of Plaintiff Claire E. Ragge, pursuant to Fed.R.Civ.Proc. 35, is GRANTED. The mental examination shall take place within the next sixty (60) days, and shall commence at 9:00 a.m. and continue to no later than 5:00 p.m., with a one hour lunch break mid-day, as determined by Dr. Paul Lees-Haley.

MEMORANDUM DECISION AND ORDER RE: DEFENDANTS MCA'S AND PORTELLI'S MOTION TO COMPEL PRODUCTION OF SCREENPLAYS

ROSALYN M. CHAPMAN, U.S. Magistrate Judge

On March 14, 1995, defendants MCA Concerts, Inc. (sued as MCA/Universal Studios) and John Portelli filed a Notice of Motion and Motion to Compel Production of Documents; Joint Stipulation of Issues to be Determined; and Declaration of Mark A. Wasserman, and exhibits in support.

Referred to in the Memorandum Decision as defendant MCA.

Defendants seek discovery of documents asked for in Request No. 46 of their First Request for Identification and Production of Documents. Request No. 46 asks for "[a]ll DOCUMENTS which contain, evidence or refer to PLAINTIFF'S screenplay or teleplay writing at any time from January 1, 1980 to the present." Defendants contend that the documents are relevant for several reasons, discussed below.

Plaintiff objects to the request on the grounds that the screenplays are protected by copyright laws, disclosure of trade secrets, work product, attorney-client privilege, and plaintiff's and third parties' rights to privacy. Additionally, plaintiff contends the documents are irrelevant, overbroad, harassing and oppressive.

Counsel for parties met and conferred on February 24, 1995, pursuant to Local Rule 7.15.1, but were unable to resolve their dispute.

FACTUAL AND PROCEDURAL BACKGROUND

DISCUSSION

Federal Rules of Civil Procedure 26(b)(1) provides for discovery in civil actions, as follows:

"Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things in the identify and location of persons having knowledge of any discoverable matters. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

"A request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of this action. Discovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought can have no possible bearing upon the subject matter of this action."

Jones vs. Commander, Kansas Army Ammunitions Plant, 147 F.R.D. 248, 250 CD. Kan. 1993).

Defendants assert the documents are relevant for the following reasons: First, in paragraph 11 of the complaint, plaintiff refers to herself as a screenplay writer and, in a press release after the complaint was filed, plaintiff also referred to herself as a screenwriter. Second, at various times plaintiff has shown the contents of these screenplays to certain defendants and employees on the witness lists of the parties, demonstrating the nature of plaintiff's relationship with these persons. Third, the screenplays are remunerative work which would tend to establish the degree to which plaintiff suffered emotional distress and impairment of earning capacity in the past, and continues to suffer emotional distress and impairment of earning capacity.

Of the reasons proffered by defendants for the production of plaintiff's screenplays, only the third reason demonstrates the relevance of the documents to the pending action, as required by Rule 26(b). The existence of the screenplays, and their content, relate to plaintiff's claim that she suffered emotional distress and loss of earnings in the past, which continues to the present. (Complaint ¶¶ 80 102) Even if not remunerative work, the ability of plaintiff to write screenplays while employed by defendant MCA, and after, is relevant to show the effect, if any, of the alleged sexual harassment and hostile work environment on her. Certainly, expert analyses of the content of the screenplays may assist in defending claims in the pending action. The documents may also relate to plaintiff's credibility. Lastly, they may lead to the discovery of other admissible evidence.

The allegations in ¶ 11 of the complaint merely provide background or foundation to the charges against defendants; they are not the gravamen of the charges. Similarly, the issuance of a press release by plaintiff is not germane to the pending action. Plaintiff's relationship with individual defendants and employees on witness lists can be established by other, less intrusive means.

Plaintiff asserts that Request No. 46 is overly broad in seeking production of screenplays or teleplay writing from January 1, 1980, to the present. She argues that screenplays written after she left defendant MCA's employment are not relevant. Plaintiff's assertion is without merit because plaintiff alleges that the mental and emotional distress suffered during her employment has continued beyond the termination of the employment, and continues to this day. (Complaint, ¶ 80) On the other hand, plaintiff alleges that the sexual harassment commenced, at the earliest, in the summer of 1982 and not from the date she was hired in 1980. Thus, screenplays or teleplays written prior to the summer of 1982 are not relevant to plaintiff's claims of mental and emotional distress.

It would be useful for the parties to stipulate to the exact date on which plaintiff began working as a bartender or under the supervision of defendant Muendel.

In California, the right to privacy is set forth in Article I, Section 1 of the California Constitution. It is not an absolute right, but a right subject to invasion depending upon the circumstances:

"[A] "reasonable' expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.... ["The protection afforded to the plaintiff's interest and his privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens.'].).. [W]hen determining the existence (or not) of a constitutionally protected claim we must weigh the severity of each potential invasion of privacy.... " Heller v. Norcal Mutual Ins. Co., 8 Cal.App.4th 30, 43-44 (1994).

Plaintiff has not cited any case law prohibiting the discovery of intellectual properties, such as screenplays, produced by an alleged victim of sexual harassment during the period of the harassment. The requested screenplays are not subject to traditional privacy considerations; and as the plaintiff in an employment discrimination case, plaintiff cannot reasonably expect the screenplays and their content to be confidential.

Even if the requested documents are protected by plaintiff's privacy right, that right may, nevertheless, be invaded for litigation purposes. The court, in Cook vs. Yellow Freight System, Inc., 132 F.R.D. 548, 551 CE.D. Cal. 1990), commented on the appropriateness of balancing the right to privacy with litigation goals:

"While this court is of the view that such a balancing is appropriate, this court is also mindful of the fact that, by its very nature, litigation has a tendency to make public the sort of information that individuals otherwise would prefer to keep private. Public disclosure, in the end, is not only natural and generally unavoidable but also necessary and healthy to a process 50 dependant on accuracy and truth. Nonetheless, the initiation of a law suit, does not, by itself, grant plaintiffs the right to rummage unnecessarily and unchecked through the private affairs of anyone they choose. A balance must be struck."

The court also noted that even when a balance is struck, the ""scope of disclosure will be narrowly circumscribed; such an invasion of the right to privacy must be drawn with narrow specificity and is permitted only to the extent necessary for a fair resolution of the lawsuit.'" Cook vs. Yellow Freight System, Inc., 132 F.R.D. at 552, citing with approvalMoskovitz vs. Superior Court, 137 Cal.App.3d 313, 316 (1982).

Plaintiff's claim of privacy cannot withstand examination. In seeking special and general damages for mental and emotional distress (Complaint, Prayer ¶ 1), and in alleging that the mental and emotional distress has continued beyond her termination from defendant MCA, plaintiff has placed the screenplays and their content in issue.

Plaintiff argues, but does not present evidence supporting, claims of privilege under copyright laws and trade secrets. If plaintiff in good faith considers the screenplays to be confidential, she may designate them as such, and protect them under the January 3, 1995, protective order.

ORDER

Defendants' MCA and Portelli's Motion to Compel Production of Documents requested in No. 46 of their First Request for Identification and Production of Documents is GRANTED. Plaintiff, within ten (10) days, shall make available to defendants MCA and Portelli for inspection and copying the screenplays and teleplays she wrote from June 1982 to the present.

DATE: March 29, 1995

ROSALYN M. CHAPMAN U.S. Magistrate Judge

CLAIRE RAGGE, Plaintiff, v. MCA/UNIVERSAL STUDIOS, a corporation; MARC BENSION; TONY CAPUTO; CHRISTOPHER FAULMAN; PETER MUENDEL; JOHN PORTELLI; RICK R. STORER; and DOES 1 through 100, inclusi

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