John Z. v. Superior Court

Opinion

WHITE, P. J.

The Contra Costa Superior Court has ordered disclosure of the identity of a “whistle-blower,” identified here only as “informant,” who advised Pacific Gas and Electric Company (PG&E) of alleged fraud by people paid by PG&E for services (contractors). The question before us is whether the contractors who are seeking disclosure made a sufficient showing of need to overcome informant’s showing of danger from disclosure. We conclude that the court abused its discretion in ordering disclosure.

PG&E’s power plants on the Sacramento and San Joaquin Rivers discharge particulate matter which can stain boat and vehicle finishes. Because of this, PG&E contracted with various local businesses to clean boats and vehicles and to make covers for them. According to PG&E, it learned from informant that some of the contractors were being paid for services not

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rendered. Informant had no direct proof, but PG&E conducted an investigation which confirmed informant’s tip. PG&E’s evidence is wholly independent of the evidence provided by informant.

PG&E filed an action against contractors seeking damages for alleged fraud. During deposition of PG&E employee Douglas G. Keeler, contractors learned about informant’s role and questioned Keeler about it. As he had promised informant, Keeler refused to disclose informant’s identity.

Glen A. Swafford of Swafford Storage, one of the contractors, moved to compel Keeler to identify informant. PG&E and informant resisted the motion. At the court’s direction, informant filed a sealed declaration describing the threat to his/her life. After hearing, despite PG&E assurance that informant would not be called as a witness at trial, the court ordered disclosure. This petition followed. We have stayed the disclosure order pending our determination of the petition, and we have maintained under seal those documents which might tend to reveal informant’s identity.

The court has broad authority to protect a “party, deponent, or other natural person” from “unwarranted annoyance, embarrassment, or oppression.” A court’s protective order “may include, but is not limited to” directing that a deposition may not be taken or a matter may not be inquired into (Code Civ. Proc., § 2025, subd. (i)). This authority necessarily includes the authority to protect the identity of an informant whose safety would be jeopardized by disclosure. But the informant’s interests must be balanced against the litigant’s need for the information. Thus, the question before us is whether the court abused its discretion when it impliedly found that Swafford’s showing of need to know informant’s identity outweighed informant’s showing of danger from disclosure.