[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1541 OPINION

We are called upon in this case to balance competing interests. On one side of the scale is a plaintiff's right to pursue a sexual harassment lawsuit uninhibited by concerns that her former employer will retaliate against other employees who are willing to help prove her case. On the other side is the employer's right to discover the identity of a presently unnamed person who stole evidence related to the plaintiff's lawsuit from the employer's files and gave it to the plaintiff. We hold that the plaintiff, to tip the scales in her favor, must present some evidence (not mere speculation) that her fear of retaliation is justified. In this case, the plaintiff's failure to present any proof at all compels a decision in favor of the employer.¹

According to the complaint, the "harassment arose out of the display . . . in the men's locker room of the police station of photographs of a semi-nude woman. . . ." The woman in the photographs bore a "striking resemblance to" Gonzalez and an officer asked Gonzalez why photographs of her were hanging in the men's locker room. Several days later, other officers commented to Gonzalez about the pictures and about the woman's resemblance to her.

Gonzalez asked the officers to get the pictures for her. They declined but a few days later she was told the photographs had been removed. "Some time after the photographs were taken down, [Gonzalez] received an envelope containing the two pictures." Gonzalez then filed a complaint with the Department of Fair Employment and Housing and notified her employer. No response was forthcoming, she alleges — no investigation was conducted and no one was disciplined. Instead, she was questioned about the identity of the person who had given her the photographs and complaints were lodged *Page 1543 about her refusal to provide the requested information. Ultimately, she was given "an incomplete and adverse performance evaluation" because she refused to identify the person who gave her the photographs.² When Gonzalez challenged the evaluation, she was again questioned about the identity of her assistant and, again, threatened with disciplinary action if she did not reveal his identity. "Ultimately, she was compelled to leave her job on a stress disability when the department began to construct an effort to terminate and/or discipline her for failure to do her job properly."

Based on these allegations, Gonzalez sought general, special and punitive damages for sexual harassment in violation of various constitutional and statutory provisions and for the intentional infliction of emotional distress. Defendants answered the complaint and thereafter served Gonzalez with interrogatories which asked, among other things, for the identity of the assistant who handed her "`an envelope containing the two photographs' as alleged" in her complaint. Gonzalez objected and refused to answer this interrogatory on the grounds that it sought "information which is privileged under the California Constitution, Article I, sec[tion] 1 (privacy), that the disclosure of such information would be contrary to the public policy of this state in that it would lead to retaliation for the disclosure of unlawful discrimination and that the information is not likely to lead to the discovery [of] relevant evidence, is cumulative and not necessary to the resolution of this case."

Defendants moved to compel an answer, explaining that the interrogatory properly sought the identity of a person who had knowledge of the facts giving rise to Gonzalez's claims and that Gonzalez's apparent concern that the other person might "be retaliated against" was pure speculation. Gonzalez opposed the motion and asked the trial court to protect the identity of her assistant for the same reasons stated in her objection to the interrogatory. In support of her opposition, Gonzalez submitted a memorandum (which she had obtained through her own discovery efforts) from the patrol commander to the chief of police (the contents of which are undisputed). As pertinent, the memo states: *Page 1544

"On Monday, January 18, 1993, Desk Officer Kimberly Gonzalez was given a direct order by myself to answer a question relevant to an investigation concerning a theft that had occurred from a file cabinet assigned to Sergeant David Harvey. . . . At the time Gonzalez did not want to answer the question and asked for time to seek legal assistance before answering the question. I gave Gonzalez until . . . today [January 22] to respond to the question or be subject to disciplinary action for failing to obey an order.

"[Today,] Gonzalez came into my office and [said] she wanted to tape record the conversation. While she was getting a tape recorder, I also got a tape recorder and recorded the conversation. [¶] . . . I summarized what had led to this point, and again told her that I was giving her an order to answer the question, `Who took the photographs from Sergeant Dave Harvey's file cabinet and gave these photographs to you?'

"Gonzalez replied, `The answer's the same. I'm not going to tell you who gave them to me.' . . .

"I asked her if she understood that she was refusing to obey an order, and she said, `I understand perfectly.' . . .

"CONCLUSION

"The sergeants assigned to the Patrol Division share a common office, the Watch Commander's Office, with each sergeant having a file cabinet assigned for the purpose of maintaining their correspondence necessary to perform their job. In this instance, a supervisor had gone into the file cabinet of another supervisor and, in effect, stole evidence.[³] Not only did a theft occur, but the sergeant violated a basic trust that must exist among the sergeants that share the office. This is intolerable behavior. Gonzalez has direct knowledge of this act.

"San Fernando Police Department Manual of Policies and Procedures Section 10020.35, Compliance with Lawful Orders, states, [¶] The Department has [a] clearly defined hierarchy of authority. An officer must not *Page 1545 question a superior's command. Such obedience is necessary for the safe and expeditious performance of law enforcement operations. The most desirable methods of obtaining compliance are recognition, reward, and positive encouragement; however, discipline may be imposed where orders, commands or directives are disregarded.

"Because she failed to obey an order, she is in violation of San Fernando Manual of Policies and Procedures Section 2-430.25, Legitimate Reasons for Disciplinary Action, subsection b) Failure to obey any order or directive, and Section 2-430.25, subsection gg) Failure to comply with all rules and regulations, general and specific orders, policies and procedures of the Department, written or verbal orders of a superior.

"RECOMMENDATION

Gonzalez's opposition papers were not, however, supported by a declaration from her or from her assistant or anyone else (other than her attorney, whose declaration did no more than authenticate the memorandum quoted above) and there is no explanation for the basis of her concern about retaliation against her assistant if his identity is disclosed.

The trial court granted defendants' motion and ordered Gonzalez to answer the interrogatory. These writ proceedings followed.

(2a) On the record before us, the relevancy of the assistant's identity is clear. First, the "assistant" may not exist at all — Gonzalez may have invented him so she would not have to admit that she took the photographs *Page 1547 from Sergeant Harvey's file. Second, although defendants are assuming the assistant is not only an employee but, more specifically, a supervisor, we have no evidence one way or the other. If Gonzalez arranged for an outsider to have access to defendants' files, defendants are entitled to know who it was. Third, the assistant is the only person (other than Gonzalez) who can say whether it was his idea to take the photographs from Detective Harvey's file or whether Gonzalez put him up to it. At a minimum, this information is relevant to Gonzalez's credibility.⁵

Moreover, if she establishes sexual harassment, evidence of Gonzalez's misconduct (by her own theft or by encouraging her assistant's theft) would be admissible to limit the kind and quantity of damages recoverable in this action. (McKennon v.Nashville Banner Pub. Co. (1995) 513 U.S. ___ [130 L.Ed.2d 852, 115 S.Ct. 879] [although an employee's wrongdoing will not bar her action when her suit "serves important public purposes," her wrongdoing does bear on the specific remedy to be ordered and the amount of damages she may recover]; on damages in sexual harassment actions generally, see Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 215, 221 [185 Cal.Rptr. 270,649 P.2d 912]; Kelly-Zurian v. Wohl Shoe Co. (1994)22 Cal.App.4th 397, 409-410 [27 Cal.Rptr.2d 457]; Bihun v. ATTInformation Systems, Inc. (1993) 13 Cal.App.4th 976, 995-997 [16 Cal.Rptr.2d 787], disapproved on another point in Lakin v.Watkins Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d 109, 863 P.2d 179].)

(2b) The result is the same if we treat Gonzalez's assistant as a "whistleblower" — because there is no such thing as a "whistleblower's privilege." *Page 1548 When confidentiality is provided to a whistleblower, it is not on the basis of a privacy privilege but rather as a matter of public policy, usually according to standards best described as an undefined conditional privilege. (See e.g., John Z. v.Superior Court, supra, 1 Cal.App.4th 789 [relying on Code Civ. Proc., § 2025, subd. (i), which authorizes a protective order to prevent unwarranted embarrassment or oppression of a deponent];U.S. v. Garde (D.D.C. 1987) 673 F. Supp. 604, 606 [relying on the First Amendment's protection of associational rights to protect the identity of whistleblowers]; see also AlyeskaPipeline Service Co. v. U.S.E.P.A. (1988) 856 F.2d 309, 311-313 [272 App.D.C. 355] [applying a similar analysis to documents used in an investigation].)⁶ In our case, the assistant's identity is protected, if at all, as a matter of public policy.

Gonzalez's reliance on Britt v. Superior Court, supra, 20 Cal. 3d at page 859, is misplaced. In Britt, where the defendant's right to discovery of the plaintiffs' political affiliations turned on an implied waiver of the plaintiffs' "constitutional right of associational privacy," the court imposed upon the defendant the burden to show the information sought was "directly relevant" to the case. (Ibid.) In our case, we are not dealing with a constitutional right to privacy. And, of course, in Britt the question itself demonstrated the existence of the right to privacy. Stated differently, to ask for a party's political affiliation is, necessarily, to implicate that party's First Amendment associational rights.

But where, as here, the question calls for information which may or may not be privileged, the party asserting the privilege must establish its application before the interrogator is required to show more than basic discovery *Page 1549 relevance. (See Alpha Beta Co. v. Superior Court (1984)157 Cal.App.3d 818, 824-825 [203 Cal.Rptr. 752] [party claiming the attorney-client privilege must prove the attorney-client relationship existed at the time the requested information was communicated and, only after that showing is made, does the burden shift to the other party to show waiver or some other exception]; see also Brotsky v. State Bar (1962) 57 Cal.2d 287, 302-303 [19 Cal.Rptr. 153, 368 P.2d 697, 94 A.L.R.2d 1310] [when discovery is sought of confidential files, "a declaration that public interest would suffer by disclosure is of no avail when [the] prerequisite [that the particular communication was made in confidence] does not exist[, and s]ince the claim of privilege is an affirmative objection to a request for material otherwise discoverable, the burden of proving the same is on the party making that claim"].)

(2c) Gonzalez, of course, offered no evidence at all to support her claim of privilege. Instead, she simply argues that, because Defendants took disciplinary action against her, we must assume they will retaliate against her assistant because he helped her by giving her the photographs. She conveniently ignores the fact that she has presented no evidence at all to establish her assistant's status (as noted, we do not know if he is a coworker), nor does she ever say what sort of retaliation she fears. There is not even any evidence that the photographs were given to her in confidence, with the expectation that the assistant's identity would not be disclosed. (Cf. Evid. Code, § 1041, subds. (b), (c).) The most that can be said based upon evidence (rather than mere speculation) is that, at about the same time Gonzalez began making complaints about sexual harassment but before she filed suit, defendants asked her for information about a theft from a police department file. She refused to answer, discipline was recommended and she was "compelled" to quit because of stress.

It does not help Gonzalez if we assume her assistant is a former coworker still employed by defendants, because her arguments fail to distinguish between (a) defendants' recognized legitimate interests in protecting themselves from a dishonest employee and (b) the possibility of their improper retaliatory discipline or discharge of the same employee. We are not the first ones to note this distinction. As the United States Supreme Court recently explained in McKennon v. Nashville Banner Pub.Co., supra, 513 U.S. ___ [130 L.Ed.2d 852, 862, 115 S.Ct. 879, 886], ". . . we must recognize the duality between the legitimate interests of the employer and the important claims of the employee" and "take due account of the lawful prerogatives of the employer in the usual course of its business and the corresponding equities that it has arising from the employee's wrongdoing. [¶] . . . Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information. . . ." *Page 1550 (5) Indeed, even where a statute protects a whistleblower from retaliation (e.g., title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.), the employee's action in opposition to discrimination "must be lawful and reasonable. For example, employers may discipline or discharge an employee who copies the employer's confidential documents even though the copies are to be used in opposing the employer's discriminatory practices. Employees' statutory rights to oppose discrimination are not to be construed as a general license to be insubordinate." (Malin, Protecting the Whistleblower FromRetaliatory Discharge (1982) 16 U. Mich. J.L. Ref. 277, 292-295, citing Silver v. KCA, Inc. (9th Cir. 1978) 586 F.2d 138 [employer may fire an employee who forced a coworker to apologize to another employee for a racial slur]; Jefferies v. HarrisCty. Community Action Ass'n (5th Cir. 1980) 615 F.2d 1025;Green v. McDonnell Douglas Corporation (8th Cir. 1972)463 F.2d 337, vacated on other grounds, 411 U.S. 792 [36 L.Ed.2d 668, 93 S.Ct. 1817]; King v. Illinois Bell Tel. Co. (N.D.Ill. 1978) 476 F. Supp. 495; Monteiro v. Poole Silver Co. (1st Cir. 1980) 615 F.2d 4.)

Instead of addressing these issues, Gonzalez attempts to sidestep her failure of proof by contending the strong public policies opposing sexual harassment in the workplace and protecting whistleblowers, without more, support her refusal to disclose the name of her assistant. We disagree.

Without reference to any privilege or public policy, Division Three of the First District relied on the general authority of the trial court "to protect [a witness] from `unwarranted annoyance, embarrassment, or oppression.'" (John Z. v.Superior Court, supra, 1 Cal.App.4th at p. 791.)⁹ After noting that the informant had filed a sealed declaration describing the threat to his life, the court went on: "This authority necessarily includes the authority to *Page 1552 protect the identity of an informant whose safety would bejeopardized 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 [the contractor's] showing of [his] need to know [the] informant's identity outweighed [the] informant's showing of danger from disclosure. . . .

"In a sealed . . . brief, [the contractor] presents his reasons for disclosure of [the] informant's identity. Briefly, [the contractor] suggests that [the] informant may know something negative about PGE, such as that it failed to fully mitigate damage or that it expressed a desire to put one or more of the contractors out of business. . . . [The i]nformant might have evidence to support the libel allegations in [the contractor's] cross-complaint, or [the contractor's] action for breach of the covenant of good faith and fair dealing. [¶] We . . . find [the contractor's reasons] far from compelling. . . . [Thecontractor] merely seeks a short cut through normal discoveryprocedures. Had PGE investigated without a tip or had [the]informant presented his/her tip anonymously, [the contractor]would be no worse off than he is now. He has no compelling need to learn who blew the whistle.

"[The i]nformant presented a four-page declaration recitingthe threat he/she received from one of the contractors andhis/her reason for treating the threat as serious. The court's memorandum of decision gave reasons for finding that the declaration did not make the prerequisite showing of good cause for a protective order [but t]he court did not find that the threat was not made or was inherently unbelievable. Rather, the court merely discounted the seriousness of the danger. [¶] The factors mentioned by the court, which do undercut somewhat the danger, might have tipped the balance for disclosure had [the contractor] presented a compelling reason for disclosure. But with [the contractor's] meager showing, the court abused its discretion in failing to protect [the] informant from the danger inherent in disclosing his/her identity. The danger, though somewhat speculative, was based on a communicated threat which was taken seriously by its recipient. The court was in no position to totally discount it. . . ." (John Z. v. SuperiorCourt, supra, 1 Cal.App.4th at pp. 791-792, italics added.)

There are three significant differences between John Z. and our case. First, the informant in John Z. was a traditional whistleblower — he notified PGE that some of its contractors were being paid for work they had not performed. As we have explained, Gonzalez's assistant was not a whistleblower.Second, there is not a hint that the informant in John Z. was guilty of *Page 1553 any wrongdoing of any kind. In our case, it is undisputed that Gonzalez's assistant stole the photographs from Sergeant Harvey's file and there are, therefore, "compelling reasons for disclosure." Third, the informant in John Z. filed a lengthy declaration detailing the threats to his life. In our case, Gonzalez did not file a declaration from her assistant or even her own declaration. Instead, she simply speculates that her assistant, if identified, will be disciplined. For these reasons,John Z. lends no support to Gonzalez's position.

Ortega, J., concurred.

I reluctantly concur in the result. I agree generally with the substance of the lead opinion, which is that the identity of petitioner's "assistant" is discoverable and petitioner has failed to provide sufficient information to permit this court to ascertain that there is a real threat of improper retaliation to her source. While the identity of petitioner's "assistant" is not itself relevant to her charges, an opportunity to depose that individual could lead to evidence relevant to petitioner's credibility. That is enough — barely — to make it discoverable. (Code Civ. Proc., § 2017, subd. (a).)

I do feel, however, that the lead opinion makes some unwarranted conclusions, i.e., that department property was stolen from Sergeant Harvey's file and petitioner's "assistant" therefore "wrongfully appropriated evidence from his employer's files and turned it over to a coworker." (Maj. opn. ante, at p. 1553.) It is equally possible that the photographs are not evidence of *Page 1554 anything but petitioner's sexual harassment, do not belong to the department or Sergeant Harvey and were being hidden in the files to protect someone else until Sergeant Harvey or this other person had a chance to destroy them. If the "assistant" rescued these photographs from certain or likely destruction and the photographs belonged neither to the department nor to Sergeant Harvey, then their removal was not necessarily wrongful. (See maj. opn. ante, at p. 1550.)

I stress that petitioner has not presented any evidence which would establish the foregoing scenario. My concern is that the lead opinion uses terms such as "theft of the employer's property" and "wrongfully appropriated evidence" without couching them in the language of possibilities rather than absolutes.

As long as there is a reasonable possibility that a fellow departmental employee stole departmental property from a file and as long as questioning of petitioner's "assistant" might produce admissible evidence relevant to petitioner's credibility, real parties have a fairly compelling reason for seeking the disclosure of the "assistant's" identity. Accordingly, in order to prevail, petitioner needed to produce sealed evidence which would show real parties' interests to be something less than compelling and/or to establish a genuine threat of unwarranted oppression if that person's identity is revealed. (John Z. v.Superior Court (1991) 1 Cal.App.4th 789, 791-792 [2 Cal.Rptr.2d 556] .)

Petitioner has not established the existence of her "assistant," let alone that this person is an employee of the police department. Moreover, she has not presented any evidence which would support the conclusion that this person could not be punished legitimately for theft of department property and would, instead, be subjected to wrongful retaliation for aiding petitioner in establishing her harassment claim.

The internal memorandum upon which petitioner relies simply demonstrates that the department assumes it not only was a departmental employee who removed the photographs but was a supervisory employee, and that the department views this as theft of its property and an extreme breach of trust. Punishment of a theft and a breach of trust would be appropriate. The memorandum therefore does not establish either the existence of an "assistant" or that the department would engage in improper retaliation/punishment of the person who took the photographs from the file.

Petitioner might have provided sealed declarations to the trial court to establish that removal of the photographs was not a wrongful act and/or that *Page 1555 severe and improper retaliation against the "assistant" (whose identity should be revealed under seal) was substantially likely. (See, e.g., John Z. v. Superior Court, supra, 1 Cal.App.4th at pp. 791-792.) That is, she might have sought to establish that the department would not be punishing a theft from its files but would be punishing sympathetic alliance with petitioner's antiharassment cause by jeopardizing the "assistant's" safety or subjecting him/her to unwarranted oppression. (Ibid.) Regrettably, she failed to do so.

Inasmuch as petitioner failed to carry her burden of proof, I have no choice other than to concur in the result. *Page 1556