Hardin v. Mendocino Coast District Hospital et al

Filing 119

Discovery Order re: ECF Nos. 108 , 109 , 112 . Signed by Judge Thomas S. Hixson on 4/25/2019. (cdnS, COURT STAFF) (Filed on 4/25/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ELLEN HARDIN,
Plaintiff,

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DISCOVERY ORDER

v.

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Case No. 17-cv-05554-JST (TSH)

Re: Dkt. Nos. 108, 109, 112
MENDOCINO COAST DISTRICT
HOSPITAL, et al.,

United States District Court
Northern District of California

Defendants.
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The parties have filed a series of discovery letter briefs concerning (1) whether defense

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counsel may instruct witnesses not to answer based on the Brown Act, (2) whether the Court

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should order Plaintiff Ellen Hardin to be deposed for an additional day, (3) whether the Court

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should order Hardin to answer questions about her departures from prior employers, and (4)

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whether the Court should appoint a special master pursuant to Federal Rule of Civil Procedure 53

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to act as a discovery referee for depositions in this case. ECF Nos. 108, 109, 112. This order

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resolves the first and third questions. A separate order addresses the second and fourth ones.

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A.

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Brown Act
Plaintiff’s letter brief argues that Defendants improperly refused to answer questions

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during depositions, refused to produce documents, and refused to answer interrogatories based on

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the Brown Act. ECF No. 109. Plaintiff’s letter brief attached deposition testimony but did not

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attach the written discovery at issue. Accordingly, the Court ordered “Plaintiff to submit the

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referenced requests for production and interrogatories, and Defendants’ responses, by April 17,

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2019.” ECF No. 111. Plaintiff did not do so. The Court therefore has no ability to know what

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documents or information Plaintiff requested and is unable to determine whether Defendants’

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objections were proper or improper. For example, even if the Brown Act were not a proper basis

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for an objection, a particular discovery request might have been objectionable for some other

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reason. Accordingly, the Court declines at this time to rule on the written discovery.

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The Court turns, then, to testimony. The Brown Act provides that “[a] person may not

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disclose confidential information that has been acquired by being present in a closed session

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authorized” by the Act “to a person not entitled to receive it, unless the legislative body authorizes

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disclosure of that confidential information.” Cal. Gov. Code § 54963(a). “Violation of this

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section may be addressed by the use of such remedies as are currently available by law, including,

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but not limited to” injunctive relief, disciplinary action, or referral to a grand jury. Id. § 54963(c).

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Defendants’ counsel has been instructing his witnesses not to testify about matters discussed in
closed session, citing the Brown Act. Federal Rule of Civil Procedure 30(c)(2) provides that “[a]

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United States District Court
Northern District of California

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person may instruct a deponent not to answer only when necessary to preserve a privilege, to

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enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” There is no

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Court-ordered limitation concerning testimony in closed session, and Defendants have not

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presented a motion under Rule 30(d)(3). So, the only way this instruction not to answer could be

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proper is if the Brown Act creates a “privilege.”

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In general, the federal law of privilege applies to federal claims, and the state law of

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privilege applies to state claims. Fed. R. Evid. 501. “‘In cases involving both state and federal

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claims, a literal reading of [Federal Rule of Evidence] 501 appears to require application of the

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federal common law of privileges with respect to the federal claims and the state law of privileges

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with respect to the state claims. However, when the evidence in question is relevant to both the

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state and federal claims,’” as is the situation here, “‘the approach has been rejected on the grounds

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that it would be meaningless to hold the same communication privileged for one set of claims but

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not for the other.’” Fitzgerald v. Cassil, 216 F.R.D. 632, 635 (N.D. Cal. 2003) (quoting 6–26

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Moore’s Fed. Practice—Civil § 26.47[4]). “In such cases, the federal law of privilege applies to

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both the state and federal claims.” Id.; see also Perrignon v. Bergen Brunswig Corp., 77 F.R.D.

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455, 459 (N.D. Cal. 1978) (same).

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“The Brown Act is not a privilege recognized under federal law.” North Pacifica, LLC v.

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City of Pacific, 274 F. Supp. 2d 1118, 1126 (N.D. Cal. 2003) (citing Kaufman v. Bd. of Trustees,
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168 F.R.D. 278, 280 (C.D. Cal. 1996)). Indeed, “[a]part from not being a privilege recognized

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under federal law, the Brown Act does not establish an evidentiary privilege at all; rather, it

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merely permits the withholding of certain information from the public generally. By analogy, it is,

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thus, not unlike the Freedom of Information Act,” Kaufman, 168 F.R.D. at 280. “Even more to

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the point, [Cal. Gov. Code] Section 54957 permits closed sessions to protect the employee from

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public disclosure of embarrassing information; it is not to protect the governmental entity. Since

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plaintiff is the employee, and he is the party seeking the information, there would be no purpose in

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applying the Brown Act as an evidentiary privilege, even if it were applicable.” Id. Defendants

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cite no authority to the contrary.
Accordingly, the Court OVERRULES Defendants’ objections to deposition questions

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United States District Court
Northern District of California

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based on the Brown Act and ORDERS Defendants’ counsel not to instruct witnesses not to

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answer based on the Brown Act.

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B.

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Testimony About Departures from Prior Employers
The Court’s discovery order concerning Plaintiff’s employment records from her previous

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employers was about documents, ECF No. 106, whereas this dispute is about testimony. But the

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substantive analysis is no different. “Rule 26’s proportionality requirement is inconsistent with

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venturing into Hardin’s performance at prior jobs, whose relevance is too attenuated to justify the

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broad discovery Defendants seek.” Id. at 9. Accordingly, the Court DENIES Defendants’ request

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to order Plaintiff to testify about her departures from prior employers.

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IT IS SO ORDERED.

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Dated: April 25, 2019

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THOMAS S. HIXSON
United States Magistrate Judge

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