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Right to Privacy

Right to Privacy

4. Privacy Rights Do Not Create a Union Privilege.

In American Airlines, Inc. v. Superior Court (DiMarco), DiMarco . . . claim[ed] American's deposition questions are improper because they invade his constitutional right of privacy and freedom of association. The court defining the right to privacy stated: We disagree.

"The right to privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion and our freedom to associate with the people we choose. . . ." (White v. Davis (1975) 13 Cal.3d 757, 774; see also City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130.) The United States Supreme Court "has recognized the vital relationship between freedom to associate and privacy in one's associations. . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." (N.A.A.C.P. v. Alabama (1958) 357 U.S. 449, 462.)

Citing Britt v. Superior Court (1978) 20 Cal.3d 844 (Britt), DiMarco particularly emphasizes that his constitutional right of associational privacy {Slip Opn. Page 16} protects him from answering American's deposition questions. In Britt, numerous owners and residents sued the San Diego International Airport for diminution of their property values, personal injuries, and emotional disturbance caused by the noise and pollution associated with the operation of the airport. The airport sought extensive discovery against each of the plaintiffs, including depositions and requests for production of documents. Specifically, the airport asked plaintiffs questions regarding (1) their membership in political organizations opposed to the airport, (2) any meetings they had attended concerning the airport and the topics discussed, (3) correspondence with such organizations, (4) the identity of others who had attended the meetings, (5) the content of discussions with others regarding the meetings and the identity of others who were part of those discussions, and (6) the amount and date of financial contributions to such organizations. (Id. at p. 849-850.)

Several of the plaintiffs moved for a protective order, arguing their political associations were constitutionally privileged. The trial court denied the motions and granted the airport's motion to compel answers to deposition questions. The California Supreme Court found the order violated the plaintiffs' rights of privacy in group associations. The court stated, "As both the United States Supreme Court and this court have observed time and again . . . First Amendment freedoms, such as the right of association, 'are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.' [Citations.] Indeed, numerous cases establish that compelled disclosure of an individual's private associational affiliations and activities, such as that at issue in this case, frequently poses one of the most serious threats to the free exercise of this constitutionally endowed right." (Britt, supra, 20 Cal.3d at p. 852.) fn. 5 {Slip Opn. Page 17}

Without diminishing the importance of a person's right of associational privacy, we conclude that right is not implicated in this case. The deposition questions posed to DiMarco did not ask him to reveal any private associational affiliations and activities. Everyone concerned already knew, of course, that DiMarco, Alamad, and other American employees were members of the Union. The questions generally related to the names of American employees DiMarco had heard using racial slurs toward Alamad and the names of those American employees whose arbitration testimony was allegedly coerced. These questions do not delve into the constitutionally protected right of associational privacy. fn. 6

DiMarco also cites Garstang v. Superior Court, supra, 39 Cal.App.4th 526 (Garstang), to support his argument that disclosing the names of American employees will invade his right of privacy, or the privacy rights of the unidentified employees. In Garstang, a university employee filed an action against the university and three co-workers for slander and intentional infliction of emotional distress. She then took the depositions of the three co-workers and questioned them concerning statements they made during a pre-litigation confidential mediation conducted by the university's ombudsman concerning plaintiff's claim. They refused to answer the questions, contending the right of privacy protected the statements made during the mediation. (Id. at pp. 529-530.) Based upon evidence that the university gave its employees written assurances of strict confidentiality in mediation hearings before the ombudsman and that the deposition questions delved {Slip Opn. Page 18} into private affairs discussed during the mediation, the appellate court held the right of privacy barred the disclosure. (Id. at pp. 534-535; but see Rinaker v. Superior Court (1998) 62 Cal.App.4th 155, 167-168 [no right of privacy in inconsistent statements made during confidential mediation].)

Unlike the plaintiff in Garstang, American does not seek disclosure of statements made during a confidential mediation, which is the subject of its own special confidentiality provisions, separate from other privileges listed in the Evidence Code. (See Evid. Code, § 1119.) fn. 7 Additionally, in Garstang, the court found that all parties to the lawsuit had impliedly agreed that the communications would be kept confidential. (Garstang, supra, 39 Cal.App.4th at p. 534.) Here, American made no promises about the confidentiality of conversations. Moreover, American seeks the names of employees who DiMarco claims to have observed making racial slurs toward Alamad during a four-year period, as well as the names of employees whose testimony was allegedly coerced. There is no evidence in this case that any of the American employees who told DiMarco they had made discriminatory comments toward Alamad or that their arbitration testimony was coerced did so based upon explicit assurances of confidentiality. Furthermore, there is no compelling reason to conclude that employees who allegedly make racial slurs about other employees on an employer's property have a privacy interest in those statements or the fact that they made them. Likewise, we see no cognizable privacy interest that attaches to statements allegedly made by employees who claim their sworn arbitration testimony was coerced. {Slip Opn. Page 19}
American Airlines, Inc. v. Superior Court (DiMarco) (2003) , Cal.App.4th
[No. B162513. Second Dist., Div. Eight. Dec. 29, 2003.]  

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