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