BACKGROUND

*1 On December 18, 2017, Plaintiff Kelly Buffington (“Plaintiff”) filed a complaint in state court against Defendants Nestlé Healthcare Nutrition, Inc., Nestlé USA Inc., and Gerber Products Company (“Defendants”) alleging claims for discrimination based upon sex, pregnancy, and disability, retaliation, violations of the California Family Rights Act, wrongful termination, and failure to prevent discrimination. Dkt. 1-7 On January 19, 2018, Defendants removed the action to this Court. Dkt. 1.

On March 27, 2019, Defendants filed a Motion to Compel Plaintiff to Respond to Deposition Questions; for Additional Time to Subpoena Plaintiff's Current Employer Records; and to Compel Production of Unredacted Text Message Communications supported by a Local Rule 37 Joint Stipulation (Dkt. 64, collectively, the “Motion”) and supporting and opposing declarations and exhibits (Dkt. 64-1, 64-2, 64-3). In the Motion, Plaintiff seeks an order: (1) compelling Plaintiff to respond to certain deposition questions; (2) granting additional time to complete Plaintiff's deposition; (3) granting additional time to subpoena Plaintiff's current employer records; and (4) compelling the production of unredacted text messages. On April 4, 2019, Defendants filed a Local Rule 37-2.3 Supplemental Memorandum and supporting declaration. Dkt. 67, 67-1.

The Motion having been fully briefed, it came on regularly for hearing on April 18, 2019 at 10:00 a.m. Counsel for the parties made their appearances and were heard. The Court now rules as follows.

II.

RELEVANT LAW

Under the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26, subsection (b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.

“Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.” Fed. R. Civ. P. 30(d)(1). “The court must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” Id. The advisory committee notes to Rule 30(d) instruct that the party seeking an extension beyond the presumptive seven hours must show “good cause” for such an order. Federal Rule of Civil Procedure 30 also notes that counsel “may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” Fed. R. Civ. P. 30(c)(2).

Generally, in diversity actions, privacy claims are determined under applicable state law. Fed. R. Evid. 501 (“But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”); Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 284 (C.D. Cal. 1998). Under California law, the right to privacy protects against the unwarranted, compelled disclosure of private or sensitive information including individuals' financial affairs and employment records. See Davis v. Leal, 43 F. Supp. 2d 1102, 1110 (E.D. Cal. 1999).

*2 To evaluate privacy objections under either federal or state law, the Court must balance the party's need for the information against the individual's privacy right. Kakagawa v. Regents of Univ. of California, 2008 WL 1808902, at *2 (N.D. Cal. Apr. 22, 2008), citing Ragge v. MCA/Universal, 165 F.R.D. 601, 604 (C.D. Cal. 1995)); Bible v. Rio Props., Inc., 246 F.R.D. 614, 620 (C.D. Cal. 2007), quoting Davis, 43 F. Supp. 2d at 1110 (finding the California right to privacy “is subject to balancing the needs of the litigation with the sensitivity of the information/records sought”). In assessing privacy claims under California law, courts should evaluate whether: (1) the claimant has a “legally protected privacy interest,” such as an interest in precluding the dissemination of sensitive information or in making intimate personal decisions without outside intrusion; (2) the claimant has a “reasonable expectation of privacy” founded on broadly based community norms; (3) the invasion of privacy is “serious”; and (4) the privacy interest outweighs countervailing interests, such as discovery rights. Pioneer Electronics, Inc. v. Superior Court, 40 Cal. 4th 360, 370-73 (2007); see also Puerto v. Superior Court, 158 Cal. App. 4th 1242, 1250-51 (2008).

Privacy rights, even in medical information, are neither fundamental nor absolute. Huckman v. Southwest Airlines Co., 2019 WL 566451, at *4 (S.D. Cal. Feb. 12, 2019); Larson v. Bailiff, 2015 WL 4425660, at *5 (S.D. Cal. July 17, 2015). When a plaintiff places her medical condition at issue, her expectation of privacy regarding those conditions is diminished. Id. (citation omitted). The court must balance the right to discovery against the patient's right to maintain private medical records. Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995). Under California law, a plaintiff waives rights to preclude discover of private information only when “that information is directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” Vinson v. Superior Court, 43 Cal. 3d 833, 842 (1987)(citations omitted). When a plaintiff seeks “emotional distress damages, he ‘has placed his mental condition at issue and therefore waived ... his privacy rights with respect to his medical records. Defendant is entitled to discovery that will shed light on the nature of Plaintiff's alleged emotional distress and on the sources that proximately gave rise to it.’ ” Powell v. Wells Fargo Home Mortgage, 2018 WL 4660287, at *2 (N.D. Cal. Sept. 28, 2018) (citing Bangoura v. Andre-Boudin Bakeries, Inc., 2012 WL 5349569, *3 (N.D. Cal. Oct. 29, 2012)). Similarly, when a plaintiff initiates an employment lawsuit, his or her privacy interest in employment records is reduced. Belling v. DDP Holdings, Inc., 2013 WL 12140986, at *3 (C.D. Cal. May 30, 2013) (citing Sirota v. Penske Truck Leasing Corp., 2006 WL 708910, at *2 (N.D. Cal. Mar. 17, 2006)).

III.

DISCUSSION

A. Request to Compel Plaintiff to Respond to Deposition Questions

1. Questions Regarding Plaintiff's Current Employment

In her Complaint, Plaintiff alleges five separate times: “As a direct, foreseeable, and proximate result of [Defendants'] conduct, as alleged herein, [Plaintiff] has suffered lost income, employment, and career opportunities, and has suffered and continues to suffer other economic loss, the precise amount of which will be proven at trial.” Dkt. 1-7, Complaint, ¶¶ 33, 49, 61, 71, 87. In so doing, Plaintiff has put her post-termination employment, including salary and job duties, at issue.

On January 31, 2019, Defendants took a six hour and thirty-three-minute deposition of Plaintiff. Motion at 9, 19. During the deposition, Defendants' counsel asked several questions regarding Plaintiff's current employment. Motion at 13-14. These questions inquired as to: what Plaintiff currently does for work; how long she has been working at her current position; her current salary; and her current job duties. Id. Plaintiff's counsel objected to each of the questions on privacy and privilege grounds, and Plaintiff refused to answer each of the questions, stating, “I don't wish to reveal that” information. Id.

*3 These questions call for relevant, discovery information and should have been answered. In opposing the Motion, Plaintiff argues that she should not be compelled to respond to the deposition questions because: (1) her counsel never instructed her to not answer; (2) questions about her current employment are not relevant because she plans to waive her claim for past and future lost wages; and (3) Plaintiff has a right to privacy in her employment records and salary earned under California law. Motion at 23-27. Plaintiff's arguments are not well-taken.

First, as to this line of questioning, regardless of whether counsel actually instructed Plaintiff not to answer, as opposed to merely affirming her ability to instruct not to answer, Plaintiff did in fact refuse to answer the questions, either directly or by stating she would not answer or by stating “I don't wish to reveal that.” A motion to compel is appropriate when “a deponent fails to answer a question asked under Rule 30or 31.” Fed. R. Civ. P. 37(a)(3)(B)(i). Plaintiff failed to answer the questions regarding her current employment.

Second, Plaintiff's current employment was relevant at the time of the deposition. Plaintiff asserts in the Motion that she “plans to waive her claims for past and future lost wages,” and Plaintiff's counsel represented at the hearing, without contradiction by Defendants' counsel, that such issues have been removed from the issues to be decided at trial. However, Plaintiff repeatedly asserted she suffered “and continues to suffer” lost income, employment, and career opportunities,” and regardless of a last-minute “withdrawal” of such claims, Defendants may ask questions about the basis for these repeated assertions in the Complaint for potential impeachment purposes, as well as the basis for Plaintiff's claims of emotional distress, which apparently will not be “waived.” See Dornell v. City of San Mateo, 2013 WL 5443036, at *5 (N.D. Cal. Sept. 30, 2013) (finding plaintiff's employment records from subsequent employers were relevant to the question of the severity of plaintiff's emotional distress and claims of lost income). The questions seek discoverable information.

Third, with respect to Plaintiff's privacy/confidentiality arguments, as noted above, when a plaintiff puts otherwise private information at issue by filing a lawsuit, such privacy interests are reduced and must be weighed against a defendant's rights to discovery. Further, “a carefully drafted protective order [can] minimize the impact” of disclosure of otherwise private information in litigation. Keith H. v. Long Beach Unified School Dist., 228 F.R.D. 652, 657 (C.D. Cal. 2005) (citation and internal quotation marks omitted). Here, the parties entered into a fifteen-page stipulated protective order precisely because “[d]iscovery in this action is likely to involve production of confidential, proprietary or private information.” Dkt. 30 at 2. Such a protective order minimizes the impact of any disclosures of employment-related information, information whose protectability is already reduced by Plaintiff having put it at issue in the lawsuit. Defendants' need for the employment information outweighs Plaintiff privacy right in her basic, current employment information. Plaintiff must answer the questions asked about her post-termination employment that she refused to answer. However, as it appears that Plaintiff did answer other different questions on similar topics, this Order only applies to questions she refused to answer at her deposition, and logical follow-up questions directly tied to those answers.

*4 As set forth below, Plaintiff is ordered to appear for further deposition questioning and answer each question to which she either refused to answer or stated she did not “wish to reveal” the answer relating to her subsequent employment, as set forth in the Motion.

To the extent Defendants seek “extra time (past the current discovery cutoff date) to subpoena and obtain Plaintiff's current employer's records” (Motion at 7), that request is DENIED. This case was removed by Defendants to this Court in January 2018. Defendants did not take Plaintiff's deposition until more than a year later, on January 31, 2019. The fact discovery cut-off was March 18, 2019. Dkt. 39 at 2. This Motion was not filed until March 27, 2019 – the second to last day to file discovery motions and two full months after Plaintiff's deposition. Even with compliance with Local Rule 37, Defendants had sufficient time to bring this Motion far sooner, including within the fact discovery cutoff. Defendants waited a year to take Plaintiff's deposition and did not file Motion until almost two months after the completion of Plaintiff's deposition, ten days after the close of fact discovery. Even if this Court had the authority to alter Judge Selna's discovery cutoff, no such “extra time” to issue new third-party subpoenas is warranted here.

2. Questions Regarding Whether Plaintiff Felt She Was Treated Differently

Defendants also asked Plaintiff during her deposition whether she felt Denise Wilson treated her differently than other Gerber employees for any reason, before or after Plaintiff's maternity leave. Song Decl., ¶ 4, Exh. B. Plaintiff's counsel repeatedly objected that the questions as calling for a legal conclusion, and in each instance identified in the Motion, when such an objection was interposed, Plaintiff responded that she was not a lawyer and did not know how to answer the question, or words to that effect. Id.; Motion at 8-9.

Defendants contend that Plaintiff should be compelled to respond to these “highly relevant” questions because Plaintiff refused to answer the questions. Motion at 18-19. Plaintiff counters that: (1) Plaintiff already provided testimony earlier in the deposition as to why she felt she was treated differently; and (2) Plaintiff's counsel's objections, including under Rifkind v. Superior Court, 22 Cal. App. 4th 1257 (1994), were proper.

First, the Court finds these questions seeking answers about Plaintiff's perception of her interactions with Denise Wilson and whether she felt she was treated differently than other employees because of her maternity sought relevant, discoverable information.

Second, the Court finds that Plaintiff's counsel's objections to the questions were without merit. Asking the plaintiff in an employment discrimination lawsuit to identify whether she ever perceived that she was being treated differently than other employees does not call for a legal conclusion. It asks for the witness' perception of events. In the same vein, it does not run afoul of Rifkind, by which the California Court of Appeal found deposition questions that required a deponent-defendant to “state all facts” and identify all documents and witnesses supporting each a of the deponent-defendant's affirmative defenses was inappropriate. Id. at 1258, 1263. Here, Plaintiff was not asked to “state all facts” which supported a certain legal claim; rather, she was asked merely to describe her perceptions of her experiences.

*5 Having found the questions appropriate and the objections meritless, the inquiry does not end. The question remains: Did Plaintiff “fail to answer [the] question[s].” Fed. R. Civ. P. 37(a)(3)(B)(i). Facially, Plaintiff provided an answer, that is, “I'm not a lawyer, I don't know how to answer that.” Reduced further, the answer is, in essence, “I don't know” or “I don't understand the question.” Such answers are not the same as Plaintiff's refusals to answer regarding her currently employment, in which she either refused outright or stated, “I don't wish to reveal that information.” Truthful answers of “I don't know” or “I don't understand the question” are valid answers. Defendants' counsel had the ability to ask follow-up questions and to probe the truthfulness of the answers professing a lack of knowledge or understanding as to how to answer questions that go to the heart of some of Plaintiff's claims. The issue before the Court is whether Plaintiff “fail[ed] to answer a question asked.” Here, the Court finds that, at least with respect to the questions set forth in the Motion regarding disparate treatment, Plaintiff provided answers, albeit implausible ones, and ones which potentially may be offered as substantive evidence at trial by Defendants, or used to impeach Plaintiff at trial should she then claim a newly found ability to answer questions regarding how she was treated differently by others at Gerber. As a result, the Motion is denied as to these questions.

After taking issue with various alleged improper objections interposed by Plaintiff's counsel at Plaintiff's deposition, Defendants, in a footnote to their Supplemental Memorandum, reference in a general manner the availability of sanctions for improper objections. But Defendants did not seek sanctions in the Motion or in the Supplemental Memorandum. In general, objections during depositions are noted for the record but the deposition proceeds and testimony is taken subject to any objection. See Fed. R. Civ. P. 30(c)(2). “An objection must be stated concisely in a nonargumentative and nonsuggestive manner.” Id. (emphasis added). Constant interference during a deposition is a “ ‘blatant and egregious’ discovery violation[ ].” Claredon Nat'l Ins. Co. v. Foley & Bezek, LLP, No. 00-11641, 2001 WL 1223486, at * 1 n.2 (C.D. Cal. Jul. 26, 2001).

As Plaintiff did not seek sanctions in the Motion relating to the conduct of counsel at the deposition, the Court makes no findings on the issue. As further questioning of Plaintiff is ordered herein, the Court alerts that parties that should similar issues arise at the re-opened deposition, the Court will be inclined to have an evidentiary hearing on the matter, with remedies available under Rule 37 of the Federal Rules of Civil Procedure.

B. Request to Compel the Production of Unredacted Text Messages

The day before Plaintiff's deposition, Plaintiff produced fifty-two pages of redacted text messages (Bates Nos. KB001183-1234) bearing the legend “Confidential – Attorney-Client Communication. Motion at 20; Dkt. 64-1 at 22-35; Supplemental Memorandum at 2. Only fourteen of the fifty-two pages contained no redactions and some pages were entirely redacted. Motion at 20; Song Decl., ¶ 6.

Defendants contend that Plaintiff should be compelled to produce the entirety of the text messages, without redactions, because the messages appear to involve company documents and data that Plaintiff requested. Motion at 21-22. Defendants assert that the protective order in place obviates Plaintiff's privacy concerns and the need for redactions. Id. Additionally, Defendants seek to examine Plaintiff at a subsequent deposition concerning any information within the text messages.

Plaintiff argues that the text messages are redacted to protect Plaintiff's and third party's privacy rights, and Plaintiff asserts that the redacted information is not relevant because it contains pictures of minors, third party medical information, and information regarding personal relationships. Motion at 31-35. Plaintiff also contends that the protective order does not waive her right to object to disclosure on the grounds of privilege. Id. at 35. Lastly, Plaintiff argues that Defendants had alternative means of obtaining information regarding the redacted text messages but failed to use those means. Id. at 35-36.

As an initial matter, although the text messages bear a legend referencing the attorney-client privilege, Plaintiff clarifies that the designation related solely to “the top portion of each text chain.” Motion at 28. Defendants did not contest this representation in their Supplemental Memorandum. The Court accepts the representation and interprets it to mean that, with respect to the redacted text communications, the only bases for the redactions are privacy and confidentiality. Thus, the order below relates solely to the redactions of the contents of communications of persons identified in the text messages, and not to the “top portion of each text chain.” However, Plaintiff shall provide a privilege log containing the foundational facts necessary to assert the privilege with respect to the top portion of each text chain within three court days from the date of this Order.

*6 As to the substance of the redacted text messages, the Court first notes that Plaintiff identified and produced the redacted documents in response to a request for production served by Defendants almost a year ago. By producing the documents, Plaintiff concedes their responsiveness to the request calling for “ ‘communications between Plaintiff and any other person regarding the allegations in her complaint.’ ” Motion at 23, n.8. Further, the law recognizes that portions of a document often must be read in context, requiring consideration of the entirety of the record, not just selected portions. See, e.g., Fed. R. Evid. 106. The text messages are responsive and relevant.

Having found the records relevant, the Court finds that Plaintiff has not met her burden to substantiate her objections to redact information from those relevant documents. First, there is a protective order that governs confidential material in this case. Such a protective order addresses the privacy and confidentiality concerns raised by Plaintiff. See Textron Fin. Corp. v. Gallegos, 2016 WL 4077505, at *4 (S.D. Cal. Aug. 1, 2016) (finding privacy interests could be addressed through an appropriate protective order); Fraley v. Facebook Inc., 2012 WL 555071, at *3 (N.D. Cal. Feb. 21, 2012) (finding “the protective order already in place between the parties is available to Plaintiffs for the specific reason that certain information disclosed during the course of discovery is not appropriate for public dissemination”); Dowell v. Griffin, 275 F.R.D. 613, 617, 620 (S.D. Cal. 2011) (finding privacy concerns can ordinarily be addressed with a protective order).

Second, although Plaintiff now asserts the information redacted is “privileged” in that it is covered by her and third-party privacy rights, she apparently did not set forth a privilege log either with the documents at the time of the production or, based on the record before the Court, anytime thereafter. “The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002); Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998). Plaintiff provides only conclusory assertions regarding her purported bases for her objections. Here, Plaintiff herself submits no declaration asserting any privilege or identifying any sensitive material contained in the text messages. Her counsel asserts, in a conclusory fashion, “The redacted text messages ... contain information regarding third parties' medical conditions, private relationships, employment, and photographs of their children.” Dkt. 64-3, ¶ 2. The conclusory assertion does not meet Plaintiff's burden to justify continued redaction in light of the protections contained in the Protective Order.

Third, Plaintiff's argument that production of the unredacted text messages would provide Defendants with “unfettered access to personal text message” and would constitute “an egregious breach of today's social norms” (Motion at 26) fails for several reasons. First, the production would not provide Defendants “unfettered access”; rather, such access would be to limited persons, for limited purposes, under penalty of contempt of court. Second, Plaintiff selected the messages as being responsive to a request for production served roughly a year ago, and never in that time sought a further protective order or argued otherwise argued the current Protective Order was insufficient. Although the Protective Order does not preclude Plaintiff from objecting to discovery, as she reiterates, she agreed to produce the documents at issue “pursuant to the stipulated protective order.” Id. Third, the Protective Order to which Plaintiff stipulated expressly contemplates that some documents could only contain portions that are confidential; under the Protective Order, for such documents, the parties would have access to the full, unredacted version, but should they be filed, they were to be redacted so the public would not have access to the confidential portions. See Dkt. 30, 4:4-9. Considering the competing interests, and based upon the information before the Court, the Protective Order was designed for and adequately protects the privacy and confidentiality rights of Plaintiff and third parties.

*7 Fourth, to the extent Plaintiff argues that Defendants bore the burden of obtaining information from the third parties “involved in the text messages” (Motion at 27-28), the Court finds the argument unpersuasive. Plaintiff cites no authority to support her claim that when a party to an action has discoverable information readily available to it, the opposing party must instead serve subpoenas on third parties before seeking the information from the party who has it. Nor is the Court aware of any such authority.

Accordingly, the Court orders that Plaintiff shall produce for inspection and copying unredacted copies of the fifty-two pages of text messages, subject to the Protective Order, within three court days from the date of this Order. Plaintiff shall provide a privilege log containing the foundational facts necessary to assert the privilege with respect to the top portion of each text chain within three court days from the date of this Order.

On the issue of further deposition questioning with respect to the unredacted text messages, the Court is again concerned by the fact that Defendants were aware of the issue as of January 30, 2019 but did not file this Motion until nearly two months later, ten days after the discovery cutoff. However, counterbalancing that concern is the Court's concern with the fact that Plaintiff did not produce the obviously relevant and responsive text messages until the day before her deposition, more than eight months after the request was propounded. Balancing all the foregoing, the Court finds that Plaintiff's failure to produce unredacted text messages prior to her deposition warrants a further reopening of her deposition for the additional limited purpose to make follow-up inquiries regarding the contexts of the portions of the text messages that were previously redacted.

IV.

CONCLUSION

*8 As a result, the Motion (Dkt. 64) is GRANTED in part and DENIED in part. Specifically, it is hereby ORDERED that:

IT IS SO ORDERED.