I. What Constitutes Allowable Discovery to Prove a LC §132a Claim?
To sustain her burden of proving her case for discrimination under LC §132a, Ms. Borrayo’s attorney designed a very comprehensive discovery plan. On June 1, 2011, Applicant issued a Notice of Deposition for the Person Most Knowledgeable (PMK) at Tobar Industries, along with a Request for Production of Documents. Defendant claimed that the documents were privileged, so the judge conducted an in camera review and then ordered that the Defendant should release the documents pursuant to Applicant’s Motion to Produce.
Defendant filed a Petition for Removal arguing that the documents in question were privileged and were protected by a constitutional right to privacy. The WCAB balanced the interests of both parties and determined that many of the documents requested by Applicant would be ordered produced, but that many of the documents requested would be exempt from that order.
The Workers’ Compensation Appeals Board (WCAB) also affirmed the judge’s Protective Order, so that the documents that were ordered produced would not be available to anyone outside the scope of this litigation.
The WCAB in Borrayo stated, “In general, discovery is permissible if the requested information is “not privileged,” “is relevant to the subject matter involved in the pending action,” and “appears reasonably calculated to lead to the discovery of admissible evidence. (See CCP §§ 2017.010 & 2017.020(a) and Willis v. Superior Court, (1980) 112 Cal.App.3d 277, 289.)
In this case, Ms. Borrayo was told that her termination was necessary due to the company’s financial constraints. Defendant explained they needed to cut costs in order to stay competitive as a result of a global economic downturn. Defendant asserted that Ms. Borrayo’s lay off was not in retaliation for her filing of a workers’ compensation claim.
In order to sustain her burden of proof on the 132a claim, especially with regard to the issue of “disparate treatment,” Ms. Borrayo requested the financial records of Defendant to verify whether an economic business necessity existed to justify her termination. Defendant objected to the release of their balance sheets and profit and loss statements. They claimed these documents contained privileged information, including “trade secrets.”