Empey v. Allied Property & Casualty Insurance Company

Filing 57

ORDER re 51 Letter filed by Allied Property & Casualty Insurance Company. Signed by Magistrate Judge Donna M. Ryu on 12/9/2011. (dmrlc2, COURT STAFF) (Filed on 12/9/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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CHAD EMPEY,

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Plaintiff(s),
v.

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ORDER RE PARTIES’ JOINT
DISCOVERY LETTER OF NOVEMBER
24, 2011 [DOCKET NO. 51]

ALLIED PROPERTY,

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No. C-11-00733-SC (DMR)

Defendant(s).
___________________________________/

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On December 8, 2011, the court held a hearing on the parties’ joint discovery letter of

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November 24, 2011 [Docket No. 51]. During the course of oral argument, the parties informed the

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court that they had resolved several of the disputes set forth in their joint letter. This order

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summarizes the court’s rulings made during the hearing on the remaining issues..

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A. Plaintiff’s 30(b)(6) Deposition Topic #1

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The court grants Plaintiff’s motion to compel Defendant to produce a Rule 30(b)(6)

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deponent(s) to testify regarding Defendant’s search for and production of documents responsive to

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Plaintiff’s First Set of Requests for Production or Inspection.

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B. Plaintiff’s 30(b)(6) Deposition Topic #5

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Defendant has agreed to respond to an interrogatory asking how Defendant designates and

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re-certifies an entity as a “Preferred Vendor.” Plaintiff shall serve the interrogatory promptly.

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Defendant shall respond within 10 days.

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C. Plaintiff’s 30(b)(6) Deposition Topic #6

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Plaintiff’s topic, as drafted, is grossly overbroad. The attenuated relevance of the

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information sought is outweighed by the burden of a response. Plaintiff’s motion to compel Rule

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30(b)(6) testimony on this topic is denied.

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D. Defendant’s Subpoena to Bank of America for Plaintiff’s Banking Records and

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Federal and State Tax Returns

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When a Federal court exercises diversity subject matter jurisdiction over a civil matter, such

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as the one at bar, “state law governs privilege regarding a claim or defense for which state law

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supplies the rule of decision.” Fed. R. Evid. 501. The California Supreme Court has held that
statute “implicitly creates a privilege against the disclosure of income tax returns.” Fortunato v.

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For the Northern District of California

United States District Court

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Superior Court of L.A. Cty., 114 Cal. App. 4th 475, 479 (2003) (citing Cal. Rev. & Tax. Code

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§ 19282) (citations omitted). The privilege does not attach, however, where a party has intentionally

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waived it, where “the gravamen of the lawsuit is inconsistent with claiming the privilege, or where a

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public policy greater than the purpose of the privilege is involved.” Id. (citations omitted). None of

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these exceptions apply to the present case.

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With respect to bank information, the California Supreme Court has noted that “[t]here is

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revealed no bank-customer privilege . . . . Indeed, the general rule appears to be that there exists no

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common law privilege with respect to bank customer information.” Valley Bank of Nev. v. Superior

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Court of San Joaquin Cty., 15 Cal. 3d 652, 656 (1975) (internal citations omitted). Relevant bank

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customer information therefore “should not be wholly privileged and insulated from scrutiny by civil

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litigants.” Id. at 657. Article I section 1 of the California Constitution, however, does mandate a

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higher level of concern for individuals’ privacy interests, and to safeguard these interests, courts

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should employ “the same discretion which they generally exercise in passing upon other claims of

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confidentiality.” Id. at 678 (citations omitted). Though the California constitution’s privacy right

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does not constitute a recognized privilege, Federal courts sitting in diversity often consider it in

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discovery disputes. Ragge v. MCA/Universal Studios, 165 F.R.D. 601, 604 n.3 (C.D. Cal. 1995).

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The court finds that Defendant has failed to sufficiently articulate and support the need for
plaintiff’s bank records.

The court therefore quashes the subpoena. If Bank of America has

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produced any documents in response to the subpoena, Defendant shall promptly return them to Bank

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of America without review.

nna M.
udge Do
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DONNA M. RYU
ER
United States Magistrate Judge
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For the Northern District of California

United States District Court

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R NIA

Ryu

FO

Dated: December 9, 2011

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RDERE
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UNIT
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IT IS SO ORDERED.

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