Metropolitan News-Enterprise


Friday, August 15, 2008


Page 3


C.A. Orders Disclosure of Some Personal Data in Writers’ Age-Bias Suit


By SHERRI M. OKAMOTO, Staff Writer


A trial court’s order denying a litigant’s request for disclosure of numerous categories of personal information outright, without considering whether partial disclosure would satisfy the balance that must be struck between privacy interests and a litigant’s need for discovery, lacked legal justification, this district’s Court of Appeal held yesterday.

A divided Div. Eight panel directed the trial court to allow plaintiffs in multiple class actions to access the limited subsets of private employment and demographic information specified in the plaintiffs’ writ petition for approximately 7,7000 Writers Guild Members who had objected to the disclosure.

Hundreds of writers filed 22 separate class actions in federal court against related television networks, studios, production companies and talent agencies, alleging an industry-wide pattern of age discrimination based on employment practices that are facially neutral but have a disparate impact on older writers.

The writers served subpoenas upon numerous third parties, including various branches of the Writers Guild of America and four payroll companies. The subpoenas sought personal information about guild members, including demographic information, employment and agency representation records, earnings records, employment application records, writing qualifications, and health and disability records.

The writers claimed the requested information was necessary for statistical analyses of the

hiring and representation practices of the employers and talent agencies. 

Because the requested information implicated the nonparty individuals’ privacy rights, the parties negotiated a notice which was sent to approximately 47,000 individuals whose information was contained in the databases of the subpoenaed parties.

Approximately 7,700 recipients objected to the disclosure of some or all of the requested information, and Los Angeles Superior Court Judge Wendell Mortimer Jr., who has since retired, sustained their objections.

The writers then moved for “clarification and/or reconsideration” of Mortimer’s order to the extent the order protected basic demographic information and employment data, contending that such information was either publicly available, at a great cost in time, and not especially sensitive. Mortimer denied the motion and the writers petitioned for a writ of mandate.

Writing for the appellate court, Presiding Justice Candace Cooper explained that under Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, courts should impose partial limitations rather than an outright denial of discovery when possible when the information sought infringes on an individual’s reasonable expectation or privacy but is directly relevant to a party’s claims and essential to the fair resolution of their lawsuit.

“Statistical proof is indispensable in a disparate impact case,” she wrote. Because the writers could not prove their claim without access to the evidence from which they could perform a statistical analysis, Cooper reasoned “the conclusion is virtually inescapable that the writers have a ‘compelling need’ for the information they have sought.”

Accordingly, Cooper concluded, the trial court’s “wholesale denial” of access to the objectors’ information without regard to the strength of the privacy interest in the particular category of data sought, was an abuse of discretion.

Div. Two Justice Victoria M. Chavez, sitting by assignment, joined Cooper in her opinion but Justice Patricia A. Bigelow dissented.

Bigelow criticized the majority for focusing their review on the limited subset of information requested in the writers’ motion for reconsideration—which consisted of demographic and work history information only—as opposed to the multiple categories of information requested in the writers’ original motion to the trial court.

She further argued the trial court was not required to order disclosure of certain categories of data because the information from the 7,700 objectors was not essential to the fair resolution of the lawsuit.

Because the trial court had specifically found the number persons who did not object to the release of the information formed a sufficient pool to proceed with a statistical analysis, Bigelow contended the trial court could reasonably conclude that the objectors’ privacy rights outweighed the writers’ need for their confidential information.

The case is Alch v. Superior Court (Time Warner Entertainment Company), B203726.


Copyright 2008, Metropolitan News Company