Board of Trustees v. Superior Court

• Court: California Court of Appeals
• Writing for the Court: ELKINGTON; RACANELLI, P. J., and NEWSOM
• Citation: Board of Trustees v. Superior Court, 174 Cal.Rptr. 160, 119 Cal.App.3d 516 (Cal. App. 1981)
• Decision Date: 28 May 1981
• Parties: BOARD OF TRUSTEES OF LELAND STANFORD JUNIOR UNIVERSITY et al., Petitioners, v. The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; Eugene DONG, Jr., Real Party in Interest. Civ. 49998.

Page 160

174 Cal.Rptr. 160

119 Cal.App.3d 516

BOARD OF TRUSTEES OF LELAND STANFORD JUNIOR UNIVERSITY et al., Petitioners, v. The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent Eugene DONG, Jr., Real Party in Interest.

Civ. 49998.

Court of Appeal, First District, Division 1, California.

May 28, 1981.

Rehearing Denied June 24, 1981.

Hearing Denied August 19, 1981.

McCutchen, Doyle, Brown & Enersen, David M. Heilbron, Stephen A. Zovickian, San Francisco, for petitioners.

Donald L. Reidhaar and Gary Morrison, Berkeley, for amicus curiae The Regents of the University of California on behalf of petitioners.

Niesar, Moody, Hill, Massey & Kregstein, Richard P. Hill, San Francisco, for real party in interest.

Van Bourg, Allen, Weinberg & Roger, Robert J. Bezemek, San Francisco, for amici curiae University Council, AFT, AFL-CIO, and California Federation of Teachers, AFT, AFL-CIO.

ELKINGTON, Associate Justice.

The Board of Trustees of Leland Stanford Junior University (University), James B. D. Mark, M.D., chairman of the department of surgery of the University's medical school, and John J. Schwartz, counsel for medical affairs and assistant vice president of the University, have petitioned this court for an extraordinary writ of mandate. They seek thereby annulment of an order of the superior court requiring allowance of discovery of certain communications, in an action commenced against them, and others, by one Eugene Dong, Jr., M.D., who is the named real party in interest of the petition.

Another defendant of the superior court action is Clayton Rich, M.D., dean of the University's school of medicine and vice president for medical affairs. He was not served with summons in the action and, not being subject to the superior court's order, has not joined as a petitioner of the proceedings before us.

Having issued an alternative writ of mandate, our task is the reconciliation of the "strong public policy" in favor of discovery (see Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 377, 15 Cal.Rptr. 90, 364, P.2d 266), with the state's constitutionally confirmed "inalienable right " to pursue and obtain "privacy" (Cal. Const., art. I, § 1).

The record before us including Dr. Dong's complaint discloses, or at lest alleges, the following factual context.

Dr. Dong and Zoltan J. Lucas, M.D., were faculty members of the University's school of medicine independently engaged, in part, in medical research funded by the federal Department of Health, Education and Welfare.

In 1973, "after a careful study," Dr. Dong made complaint to the chairman of the school of medicine against Dr. Lucas, charging research misconduct and seriously impugning his personal and professional integrity. Successive faculty committees were appointed to investigate that, and other, complaints against Dr. Lucas. In June 1975, Dr. Dong submitted an additional report, critical of Dr. Lucas, to one of the committees. Dr. Lucas responded with a letter to the committee charging, among other things, that Dr. Dong "committed the same misdeed (of which) he accused me, ..." He "suggested" also that Dr. Dong's motives were "personal aggrandizement" and jealousy, and that certain of his research publications constituted "public as well as scientific fraud."

The Department of Health, Education and Welfare became interested in the dispute insofar as it concerned its funded research. In a conversation with persons of that agency, the above-noted John J. Schwartz "spoke the following words of and concerning the plaintiff: that in his (Mr. Schwartz') opinion Dr. Dong has a 'vendetta' going against Dr. Lucas."

On or about June 6, 1978, Dr. Lucas sent a letter to the above-noted Dr. Rich, dean of the school of medicine, accusing Dr. Dong of an "avid hunger for publicity," "consumer fraud," "serious violations of scientific ethics" and of having "precious little data to back (his) grossly exaggerated claims."

Following five years of complaints and recriminations, the University and its respective committees took no action on Dr. Lucas' accusations against Dr. Dong. But as a result of investigation of the accusations of Dr. Dong and others, Dr. Lucas was subjected to disciplinary proceedings which led to suspension from his employment, without pay, for three months.

Dr. Dong thereafter commenced the above-noted superior court action against the instant petitioners, i. e., the University, John J. Schwartz and Dr. Mark, and against Dr. Rich and Dr. Lucas. The action sought damages for "libel, conspiracy to defame, conspiracy to place plaintiff in false light, conspiracy to intentionally inflict emotional distress, negligent infliction of emotional distress, breach of covenant of good faith in employment contract." In this court Dr. Dong more tersely explains that the gravamen of his complaint is that he has been "defamed."

The basis of Dr. Dong's action against the University is the doctrine of respondeat superior, and particularly its vicarious responsibility under that principle for the malicious acts and publications of Dr. Lucas in the course of his employment. It is alleged that the remaining petitioners and Dr. Rich, the University's officials, (1) had republished Dr. Lucas' countercomplaints to "numerous academic and administrative personnel in the Stanford scientific community" and to the Department of Health, Education and Welfare, and (2) had "willfully concealed from plaintiff (Dr. Dong) the true evaluations of at least one committee of academic peers appointed to evaluate charges of scientific misconduct against the defendant Lucas, and during the period of such concealment, misrepresented the true nature of said evaluations, plaintiff's role in said evaluations, and plaintiff's attitude concerning the preservation of the integrity of the Stanford academic community, to the courts, the public, and officials of the United States government, ..."

(We are not called upon to, and do not, determine whether such a "republication" of charges by one university faculty member against another to interested and involved university officials and government agencies, can form the basis of a "defamation action." Nor do we determine whether Dr. Dong's complaint states a cause of action for defamation, or otherwise.)

In Dr. Dong's superior court action he made demand, under Code of Civil Procedure section 2031, upon the University for inspection and copying of what may reasonably be narrowed to the following:

1. The personnel, tenure, and promotion files of Dr. Lucas;

2. All documents and communications, including grants, contracts, and awards made to or by the University, and others, including the Department of Health, Education and Welfare and the United States Senate and officials thereof, in respect of Dr. Lucas and medical research performed by him at the University;

3. All documents and communications considered by, and conclusions of, the above mentioned committees in respect of their investigation of Dr. Dong;

4. The personnel, tenure, and promotion files of Dr. Dong.

(Many other of Dr. Dong's discovery requests were either acceded to by the University or were withdrawn by him.)

Following a hearing, the superior court ordered that the University comply with each of the above four requests, "save and except" letters of recommendation or reference to the University concerning Dr. Dong or Dr. Lucas, "written when said persons were being considered for employment at (the University)."

The filing of the instant petition for a writ of mandate followed.

Effective November 5, 1974, the people of California added to the state's Constitution its present article I, section 1, which states: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." (Emphasis added.)

Article I, section 1's, "inalienable right" of privacy is a "fundamental interest" of our society, essential to those rights " ' "guaranteed by the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution. " ' " (City of Santa Barbara v. Adamson, 27 Cal.3d 123, 130, 164 Cal.Rptr. 539, 610 P.2d 436; White v. Davis, 13 Cal.3d 757, 774-775, 120 Cal.Rptr. 94, 533 P.2d 222.) But another state interest lies in " 'facilitating the ascertainment of truth in connection with legal proceedings' ...." (Britt v. Superior Court, 20 Cal.3d 844, 857, 143 Cal.Rptr. 695, 574 P.2d 766; In re Lifschutz, 2 Cal.3d 415, 432, 85 Cal.Rptr. 829, 467 P.2d 557; Morales v. Superior Court, 99 Cal.App.3d 283, 290, 160 Cal.Rptr. 194.) The constitutional right of privacy is "not absolute"; it may be abridged when, but only when, there is a "compelling" and opposing state interest. (City of Santa Barbara v. Adamson, supra, p. 131, 164 Cal.Rptr. 539, 610 P.2d 436; Britt v. Superior Court, supra, pp. 855-856, 143 Cal.Rptr. 695, 574 P.2d 766; Loder v. Municipal Court, 17 Cal.3d 859, 864, 132 Cal.Rptr. 464, 553 P.2d 624.)

In an effort to reconcile these sometimes competing public values, it has been adjudged that inquiry into one's private affairs will not be constitutionally justified simply because inadmissible, and irrelevant, matter sought to be discovered might lead to other, and relevant, evidence. (See Greyhound Corp. v. Superior Court, supra, 56 Cal.2d 355, 390-393, 15 Cal.Rptr. 90, 364 P.2d 266.) " 'When compelled disclosure intrudes on constitutionally protected areas, it cannot be justified solely on the ground that it may lead to relevant information.' " (Morales v. Superior Court, supra, 99 Cal.App.3d 283, 289, 160 Cal.Rptr. 94; Fults v. Superior Court, 88 Cal.App.3d 899, 904, 152 Cal.Rptr. 210; see also Shelton v. Tucker, 364 U.S. 479, 483-485, 81 S.Ct. 247, 249-50, 5 L.Ed.2d 231; Valley Bank of Nevada v. Superior Court, 15 Cal.3d 652, 655-657, 125 Cal.Rptr. 553, 542 P.2d 977.)

And even when discovery of...