John Doe v. The Regents of the University of California

Case Number

24CV00095

Case Type

Hearing Date / Time

Mon, 09/16/2024 - 10:00

Nature of Proceedings

Motion For A Protective Order To Cure Breach Of The Discovery Act And For Sanctions

Tentative Ruling

John Doe v. The Regents of the University of California 

Case No. 24CV00095         

Hearing Date: September 16, 2024                                       

HEARING:              Motion For A Protective Order To Cure Breach Of The Discovery Act And For Sanctions

ATTORNEYS:        For Plaintiff John Doe: Lauren John Udden

                                    For Defendant The Regents of the University of California: John Gherini, UC Legal - Office of the General Counsel

                                   

TENTATIVE RULING:

The motion of defendant for a protective order is granted, in part. The parties to this action, and their counsel, are prohibited from using or disseminating in any manner the “Certified Transcript” of the deposition of Frederick Gibou, ostensibly taken in this matter by John Doe on March 14, 2024, outside of these proceedings absent further order of the Court. Except as otherwise herein granted, the motion is denied without prejudice to any future filing and service of an appropriate motion for similar or additional relief that may be filed by defendant. To the extent defendant does not file any future motion with respect to the use or dissemination of the “Certified Transcript” of the deposition of Frederick Gibou addressed herein, the Court’s order herein will expire on November 16, 2024.

Background:

On January 8, 2024, John Doe (Doe) filed a petition for a writ of mandate under Code of Civil Procedure section 1085 directed to respondent the Regents of the University of California (the Regents), compelling the Regents and Monica Dussert (Dussert) to provide Doe with certain records under Government Code section 7920.000 et seq. (the California Public Records Act or CPRA). As alleged in the petition:

Doe is a professor emeritus at the University of California. (Pet. at p. 1, l. 19.) On May 23, 2023, Doe’s former attorney emailed to Dussert, who is the Public Records Coordinator at the University of California, Santa Barbara (UCSB), a request under CPRA (the CPRA request) seeking the production of “ ‘any and all reports generated in connection with investigations into complaints by Ms. Ofelia Aguirre Paden or Dr. Lubella Lenaburg regarding the Center for Science and Engineering Partnerships or the California NanoSystems Institute.’ ” (Id. at ¶¶ 4-5.) On October 25, 2023, Dussert sent an email stating that UCSB did not have any records responsive to the CPRA request, and that personnel records were exempt from disclosure if the disclosure would constitute an invasion of privacy. (Id. at ¶ 6.) The Regents, through Dussert, have failed to comply with the CPRA request. (Id. at ¶ 9.)

On April 3, 2024, the Regents filed an answer to the petition, responding to its allegations and asserting eight affirmative defenses.

On July 8, 2024, the Regents filed a motion for a protective order preventing the use of what the Regents contends is an improper deposition of an employee of the Regents which was not properly noticed by Doe and which proceeded without the presence of the Regents’ counsel. The Regents also seeks an award of sanctions against Doe and his counsel in the amount of $4,000, representing attorney fees and costs incurred to prepare and file the motion.

In support of the present motion, the Regents submits the declaration of its counsel, John Gherini (Gherini), who declares that the petition was served on the Regents on January 16, 2024. (Gherini Decl., ¶¶ 3-4.) On February 6, 2024, the parties, through their counsel, reached an agreement that the Regents’ time to respond to the petition would be continued to determine if the case could be resolved. (Id. at ¶ 5.) Therefore, Gherini contends, Doe and his counsel were aware that the Regents was represented by counsel as of February 6, 2024. (Ibid.)

Gherini further states that on March 11, 2024, Doe filed a substitution of attorney in this action substituting attorney Lauren John Udden (Udden) as counsel of record for Doe. (Gherini Decl., ¶ 6.) On March 14, 2024, Udden took the deposition of Frederick Gibou (Gibou) in this matter, an employee of the Regents, without providing notice. (Id. at ¶ 7.) Though Gherini provides a copy of the “face page” of the transcript of the Gibou declaration, a full copy of the transcript is not included because it contains private information that, according to Gherini, should not become public. (Id. at ¶ 7 & Exh. A [face page from transcript].)

The deposition went forward without any representation of Gibou. (Gherini Decl., ¶ 8.) The Regents was not provided with notice of the substitution of Udden in this action until April 3, 2024. (Id. at ¶ 9.) When the substitution of counsel was filed, no information was provided about the Gibou deposition. (Ibid.) Unaware that the Gibou deposition had taken place, the Regents filed its answer to the petition. (Ibid.)

Gherini was made aware of the Gibou deposition on May 28, 2024, because Doe had been “distributing the deposition transcript around campus in an attempt to get the campus to take administrative action against one of the subjects of the whistleblower investigation”, the report of which Doe seeks in the petition. (Gherini Decl., ¶ 12.) The deposition has nothing to do with the CPRA request or the petition and is focused on the confidential personnel file of a member of faculty at UCSB. (Ibid.) Gherini further asserts that Doe and his counsel have confidential, private, personnel information about other faculty members that they should not have or be distributing. (Ibid.)

On May 28, 2024, Gherini sent an email to Udden informing Udden that the Regents was aware of the Gibou deposition, requesting that the transcript be withdrawn, and requesting that Doe notify each office he sent the transcript to that the deposition should be accorded no weight and be destroyed. (Gherini Decl., ¶ 13; see also Declaration of Lauren John Udden, Exh. A.) Gherini sent a proposed protective order to Udden on May 31, 2024. (Id. at ¶ 14 & Exh. B.) Udden responded to the proposed protective order on June 3, 2024, with significant untracked changes. (Id. at ¶ 15.) After stating that he would “try” to track the changes, Udden filed a notice of unavailability and told Gherini to file the present motion. (Ibid.)

Doe opposes the motion. In support of the opposition, Doe submits the Udden declaration in which Udden states that he was contacted by Gibou, who is a professor at UCSB, in March 2024. (Udden Decl., ¶ 3.) Udden asserts that Gibou “wanted to provide sworn testimony regarding certain events that were the subject of a matter pending before the UCSB Academic Senate.” (Ibid.) Udden suggested the preparation of a declaration by Gibou under penalty of perjury but Gibou insisted that sworn testimony be provided in a question-and-answer format. (Ibid.) Udden suggested the retention of a court reporter and that Udden would “procced to ask [Gibou] questions under oath like [Gibou] would in a deposition setting.” (Ibid.) Udden felt this was no different than having Gibou sign a sworn declaration. (Ibid.)

Gibou and the court reporter appeared at Udden’s office where Udden asked Gibou questions which Gibou answered. (Udden Decl., ¶ 6.) Gibou, who was not represented by counsel, declined legal counsel for the proceeding. (Id. at ¶ 4.) The court reporter insisted that a caption be provided, which Udden provided. (Id. at ¶ 5.) The testimony of Gibou was never intended to be used in this proceeding. (Ibid.)

On May 28, 2024, Udden received an email from Gherini, and communicated with Gherini on May 31, 2024. (Udden Decl., ¶ 7 & Exh. A.) On May 31, 2024, Gherini sent to Udden a proposed protective order. (Id. at ¶ 8 & Exh. B.) On June 3, 2024, Udden sent to Gherini a revised version of the proposed protective order with Udden’s revisions. (Id. at ¶ 9 & Exh. C.)

Analysis:

The notice of the present motion does not clearly state the “nature of the order being sought” by the Regents. (Cal. Rules of Court, rule 3.1110(a).) In the memorandum in support of the motion, the Regents states that “at a minimum” it seeks an order “terminating the [Gibou] deposition and invalidating the deposition transcript.” (Memo. at p. 6, ll. 4-5.) Additionally, the Regents request an order that Doe “provide notice to everyone that he sent the transcript to, that the deposition was improper and should not be relied on for any purpose” and that the deposition transcript be sealed because it “contains personal privacy protected information about an employee’s personnel file.” (Id. at p. 6, ll. 5-9.) Notwithstanding procedural issues with respect to notice of the motion, there exists incomplete and conflicting information preventing the Court from issuing the order sought by the Regents.

Any party may move for a protective order after a deposition. (Code Civ. Proc., § 2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) (Note: Undesignated code references herein shall be to the Code of Civil Procedure unless otherwise stated.)

Relevant under the circumstances present here, a protective order made under section 2025.420 may include a directive that confidential information “not be disclosed or be disclosed only to specified persons or only in a specified way”, that the “deposition be sealed and thereafter opened only on order of the court”, and that the examination be terminated and not resumed except on order of the court. (Code Civ. Proc., § 2025.420, subd. (b)(13), (15), & (16).) The statutory list of permissible directives that may be included in a protective order is “nonexclusive”, and “the issuance and formulation of protective orders are to a large extent discretionary.” (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.) The party seeking a protective order bears the burden “to show good cause for whatever order is sought.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

As a preliminary matter, Doe appears to dispute whether the questioning of Gibou on March 14, 2024, constitutes a deposition. (Opp. at p. 3, ll. 23-26.) Under usual circumstances, a deposition consists of the taking of testimony by a party or nonparty to an action, given under oath and preserved in writing. (See Code Civ. Proc., §§ 2025.620 [addressing the use of depositions at trial]; 2025.230 [setting forth requirement that deposition notice describe matters on which the “examination” is requested]; 2025.480 [party seeking discovery from a deponent may move to compel an “answer” to any “question”].) The Court further notes that exhibit A of the Gherini declaration shows that a “deposition” of Gibou was reported in a document identified by the court reporter as a “Certified Transcript”. (Gherini Decl., Exh. A.) For these reasons, the Court will refer to the examination of Gibou by Udden on March 14, 2024, as a deposition.

The Regents, through its counsel, asserts in a conclusory manner that the transcript of the Gibou deposition contains private personnel information that should not become public. However, wholly absent from the motion are any specific examples of the nature or type of private or personnel information appearing in the transcript. In addition, the Court is unable to determine whether or not the deposition relates to the present action or the issues raised in the petition, also considering that the parties offer contradictory information with respect to whether Gibou’s testimony relates to the matters raised in the petition or the CPRA request alleged therein as further discussed below. The Court further notes that nothing prevented the Regents from lodging the transcript for the Court’s review with a concurrently filed motion to seal the transcript. Though there is no information to suggest to the Court that the Regents’ conclusory description of the content of Gibou’s testimony, or the purpose for the deposition, is in any respects untruthful, the unsubstantiated and conclusory arguments offered by the Regents, which lack any factual specificity, fail to satisfy the Regents’ burden to show good cause for the order sought in the motion. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318.)

In addition, to the extent the Regents request an order “invalidating” the transcript, there exists conflicting information regarding the purpose of the purported Gibou deposition as noted above. For example, the “caption” of the “Certified Transcript” described above suggests that the deposition was taken in this action. (See Gherini Decl., Exh. A [caption].) However, the Regents puzzlingly also contend that the deposition did not address issues presented through the petition. (Memo. at p. 5, ll. 7-9.) Further, Doe asserts that the testimony given by Gibou relates to events which were the subject of a matter pending before the UCSB Academic Senate. (Opp. at p. 3, ll. 17-19.) If true, the Court questions why Doe provided the caption for this matter to the court reporter. Absent any opportunity to review the transcript of the deposition, the Court is unable to determine whether the deposition relates to this action, or to another unrelated matter. To the extent the testimony relates to an unrelated matter, the Regents have failed to offer a sufficient legal or factual basis for an order “invalidating” the transcript, or requiring Doe to provide the notice described in the memorandum. For this additional reason, the Regents have failed to meet their burden to show good cause.

The examples provided above are intended to be illustrative but not exhaustive as to the issues which prevent the Court from making the order requested by the Regents. Notwithstanding these issues, it appears that there may be some good cause for a protective order. For example, though the Court’s records reflect that the Regents had not yet made an appearance in this matter at the time Doe took the deposition of Gibou and though there is no information to suggest that Doe had actual knowledge that the Regents were represented by counsel at the time of the Gibou deposition, Doe offers no evidence or information to demonstrate compliance with the notice requirements set forth in section 2024.240, subdivision (a).

In addition, the Court has reviewed the revised version of the proposed protective order which Udden transmitted to Gherini on June 3, 2024, and which is attached to the Udden declaration as exhibit C. The revised proposed protective order offered by Udden includes the following language: that Doe took the Gibou deposition “without providing notice” to the Regents; that Gibou was an employee of the Regents; that Doe agrees that the transcript “can be stricken” and “cannot be used” by Doe in any manner; that Doe must inform the court reporting service responsible for the transcript “that the original … either be destroyed, or turned over to” counsel for the Regents; that Doe must “ immediately contact each and every person that he, or his lawyer, sent the deposition transcript to with copy to [c]ounsel for [the Regents], and inform them the deposition has been not be [sic] relied on for any purpose, and that the transcript must be destroyed”; and that Doe must represent to the Court that he or his counsel complied and contacted each person that was sent a copy of the transcript. (Udden Decl., Exh. C at PDF p. 23, ¶¶ 5 [first] & pp. 23-24, ¶¶ 1-5 [protective order].) The language included in the revised proposed protective order offered by Doe appears to indicate that Doe does not dispute that, to some extent, there may exist good cause for a protective order with respect to the Gibou deposition. Doe’s revisions to the protective order proposed by the Regents also reflect the terms of the order sought in the present motion.

Though the Regents have failed to meet their burden to show good cause and the Court is unable to determine based on the conclusory and limited information offered by the parties whether a protective order is warranted, considering the language proposed by Doe in the protective order and that there is no demonstrated public right of access to a deposition transcript generated in a private dispute (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1212-1213), the Court will at this stage of the proceedings grant the motion, in part, and order that no party to this action, or their counsel, may use or disseminate in any manner the March 14, 2024, “Certified Transcript” of the deposition of Gibou outside of these proceedings absent further order of the Court. However, because the content and purpose of the Gibou deposition is not clear to the Court, and as it appears that the parties are in the process of crafting a protective order which may resolve additional issues that the Court is unable to presently address, the Court’s order will expire to the extent the Regents do not file any further appropriate motion for similar or additional relief.

The Court’s partial denial of the present motion is without prejudice to any future appropriate motion that may be filed by the Regents to the extent the parties are unable to agree to an appropriate protective order or to the extent the Regents seek additional protective orders or injunctive relief. Any future motion that may be filed by the Regents with respect to the Gibou deposition transcript must be procedurally and substantively appropriate, and include evidentiary support for any relief requested by the Regents. In addition, to the extent the Regents lodge a copy of the deposition transcript in support of any future motion, the Court will require the Regents to file a procedurally appropriate motion for an order sealing the transcript, whether in whole or in part, to ensure an appropriate record.

Sanctions:

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.420, subd. (h).)

Although Doe offers no evidence or information to show that notice of the deposition of Gibou was given to the Regents and while service of notice of the Gibou deposition may have mitigated the issues presented in the motion, the Regents were only partially successful in making the motion. Furthermore, available information indicates that Doe attempted to resolve this matter by agreeing to a proposed protective order which, as further discussed above, appears to have addressed to some extent the issues presented in the motion. It is also unclear to the Court whether the Gibou deposition transcript relates to issues raised in the present action. For these reasons, the Court finds that, at this stage of the proceedings, an imposition of sanctions against Doe or his counsel would be unjust.