Even when a litigant can’t assert a statutory privilege, private matters may nonetheless be protected from discovery under the constitutional right of privacy. Balancing the privacy interest at stake against the need for discovery has always been a difficult task. But a recent California Supreme Court case, Williams v Superior Court (2017) 3 C5th 531, has clarified the proper analysis to use.
To determine whether the need for discovery outweighs the privacy interest at stake, the court will apply a 3-part test (Williams v Superior Court (2017) 3 C5th 531; Hill v National Collegiate Athletic Ass’n (1994) 7 C4th 1). If the party bearing the burden at each particular step fails to meet its burden, the inquiry ends and the court will rule in favor of the other side.
Step 1. The party seeking discovery must establish that the information sought is directly relevant to the issues litigated.
Step 2. The party resisting discovery must: (1) identify a legally protected privacy interest; (2) establish a reasonable expectation of privacy on that interest; and (3) explain the extent and gravity of the invasion of privacy.
Step 3. The burden shifts back to the party seeking discovery to establish that the need for the particular information outweighs the specific privacy concerns. The requisite showing of need turns on the nature of the privacy interest and the gravity of its invasion.
If the party resisting discovery establishes an obvious invasion of a fundamental interest, the party seeking discovery must show a compelling interest to overcome the privacy interest. But if the asserted interest is less central or subject to a bona fide dispute, then less rigorous, general balancing tests are appropriate. Williams v Superior Court (2017) 3 C5th 531.
For comprehensive guidance on evaluating, asserting, and overcoming privileges and other protections, check out CEB’s California Civil Discovery Practice, chap 3. For a practical, step-by-step overview of discovery procedures, turn to our Obtaining Discovery: Initiating and Responding to Discovery Procedures action guide.
Other CEBblog™ posts you may find helpful:
- Shoot Back with 10 Discovery Objections
- Before Requesting Discovery, Have a Plan to Enforce It
- How to Get Clients Involved in Discovery
© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.