Metropolitan News-Enterprise


Thursday, October 30, 2008


Page 1


S.C. Stays Out of Dispute Over Disclosure Order

Justices Deny Review in Writers’ Age-Bias Case Against Studios


By a MetNews Staff Writer


The California Supreme Court has declined to review a ruling of this district’s Court of Appeal requiring production of personal information sought by writers who are suing several studios and other defendants for age discrimination.

The court, which held its weekly conference in San Francisco on Tuesday, voted 4-1 to let stand the August ruling by Div. Eight in Alch v. Superior Court (Time Warner Entertainment Company), 165 Cal.App.4th 1412.

In a 2-1 decision, the lower panel overturned the order by since-retired Los Angeles Superior Court Judge Wendell Mortimer Jr. in August, saying the judge should have considered whether ordering partial disclosure would fairly balance the privacy interests of third parties about whom information was sought against the plaintiffs’ need for discovery.

Supreme Court Justices Joyce L. Kennard, Kathryn M. Werdegar, Ming Chin, and Carlos Moreno voted to deny review. Justice Marvin Baxter voted to grant review, while Chief Justice Ronald M. George and Justice Carol Corrigan were recused.

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 Mortimer sustained the objections in their entirety.

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 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.

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.

 In other conference action, the justices:

•Denied rehearing of the Aug. 18 ruling, in North Coast Women’s Care Medical Group, Inc. v. Superior Court (Benitez), 44 Cal.4th 1145, that doctors could not, for religious reasons, refuse to artificially inseminate a lesbian.

Agreed to decide whether a six-day delay beyond the statutory 60-day deadline for bringing a criminal case to trial, over the objection of one of two defendants, was supported by good cause where counsel for the non-objecting defendant was engaged in another trial. This district’s Div. Three ruled on July 30 in People v. Sutton, 165 Cal.App.4th 646, that good cause existed to continue the joint trial.


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