Judge: Andrew E. Cooper, Case: 21STCV46466, Date: 2024-05-06 Tentative Ruling

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Case Number: 21STCV46466    Hearing Date: May 6, 2024    Dept: F51

MOTION TO COMPEL FURTHER DISCOVERY RESPONSES

Motion filed: 3/27/24

MOVING PARTY: Plaintiffs John Doe 1, an individual; John Doe 2, an individual; John Doe 3, an individual; John Doe 4, an individual; John Doe 5, an individual; John Doe 6, an individual; John Doe 7, an individual; John Doe 8, an individual; John Doe 9, an individual; and John Doe 10, an individual (collectively, “Plaintiffs”)

RESPONDING PARTY: Defendant Facey Medical Group (“Defendant”)

NOTICE: ok

RELIEF REQUESTED: An order compelling Defendant’s further responses to Plaintiffs’ Requests for Production of Documents (“RFPs”), Set One, Request No. 11.

TENTATIVE RULING: The motion is granted. Defendant to provide further code-compliant responses to Plaintiff’s RFP No. 11, as modified herein, within 30 days.

BACKGROUND

On 12/1/23, Plaintiffs served Defendant with their Requests for Production of Documents, Set One. (Decl. of James A. Chortanian, ¶ 6.) On 1/24/24, Defendant served its responses thereto. (Ibid.)

On 3/27/24, Plaintiffs filed the instant motion to compel further responses to RFP No. 11. On 4/23/24, Defendant filed its opposition. On 4/29/24, Plaintiffs filed their reply.

ANALYSIS

California law requires a responding party to respond to each request for production of documents with either a statement of compliance, a representation that the party lacks the ability to comply, or an objection to the demand. (Code Civ. Proc. § 2031.210, subd. (a).) 

If the response includes an objection to the demand in part, it must also include a statement of compliance or noncompliance as set forth above. (Code Civ. Proc. § 2031.240, subd. (a).) Additionally, the response must (1) identify the particular document that falls within the category of the request to which the objection is being made, and (2) expressly set forth the extent of, and specific ground for, the objection. (Id., subd. (b).) A propounding party may move for an order compelling further response to a discovery request if it decides that: “(1) A statement of compliance with the demand is incomplete”; “(2) A representation of inability to comply is inadequate, incomplete, or evasive”; or “(3) An objection in the response is without merit or too general.” (Code Civ. Proc. § 2031.310, subd. (a).) 

Here, Plaintiffs seek to compel additional responses to their first set of RFPs, specifically Request No. 11, which seeks: “All DOCUMENTS, including, but not limited to, each and every electronic communication, patient portal message, correspondence, and any other communication relating to complaints received by FACEY MEDICAL GROUP pertaining to GREGORY CASTILLO, M.D. from January 1, 2009, through the present date.” (Pls.’ Sep. Stmt. 2:6–9 [emphasis added].)

A.    Meet and Confer

A motion to compel further discovery responses must be accompanied by a meet and confer declaration stating, “facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. §§ 2031.310, subd. (b)(2); 2016.040.) 

Here, Plaintiffs’ counsel declares that on 2/22/24, he sent Defendant’s counsel meet and confer correspondence regarding the issues raised in the instant motion. (Chortanian Decl. ¶ 7.) Counsel for the parties met and conferred telephonically on 2/29/24, and they agreed that Defendant would serve supplemental responses to Plaintiff’s first set of RFPs, but ultimately no supplemental responses to RFP No. 11 were provided. (Ibid.) The Court therefore finds that counsel has satisfied the preliminary meet and confer requirement under Code of Civil Procedure section 2031.310, subdivision (b)(2). 

B.     Defendant’s Objections

Here, Plaintiffs argue that Defendant’s objections to Request No. 11 are without merit. (Pls.’ Mot. 5:5–7; Code Civ. Proc. § 2031.310, subd. (a).) Defendant objected to the subject request as follows:

“Objection. This request is overly burdensome, vague, ambiguous, oppressive, overly broad as to time and scope, and premature. The request violates California Evidence Code § 1157; California Business & Professions Code §§ 805(g); 805.01(d); 805.8(c); 42 U.S.C. §§ 11101, e.t seq.; 42 U.S.C. § 17921, et. seq.; 42 U.S.C. § 290dd-2; 42 C.F.R. Part 2. The request attempts to violate the immunities and privacy rights of Defendants and/or third parties as protected by the United States Constitution, the Constitution for the State of California as well as common law privacy rights and the physician-patient privilege. The requests seek information protected by the attorney-client privilege and the attorney work product doctrine. The request is not full and complete in and of itself, since it requires reference to outside documents. The request seeks information which is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Based on the foregoing objections, defendant is unable to provide a response.” (Pls.’ Sep. Stmt. 2:10–22.)

a.                   Relevance 

Plaintiffs argue that any objections to the subject RFP on the basis that it seeks irrelevant matter are meritless because the scope of discoverability is much broader than what is relevant (Pls.’ Mot. 6:14–21.) Discovery is relevant if it is admissible as evidence, or “appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Ibid.)

Here, Plaintiffs assert that “a critical evidentiary factor at issue in establishing the allegations and causes of action asserted by Plaintiffs against Facey is the extent to which its staff and/or agents had knowledge of Dr. Castillo’s conduct and still allowed its patients to be seen by Dr. Castillo despite that knowledge.” (Pls.’ Mot. 8:17–20.) Defendant argues in opposition that “whether there were prior complaints against Dr. Castillo (which may or may not have involved claims of sexual misconduct) has no bearing on the elements of Plaintiffs’ causes of action for sexual battery in their specific medical treatments.” (Def.’s Opp. 7:2–4.)

The Court agrees with Plaintiffs that Request No. 11 seeks information discoverable as relevant to Plaintiffs’ claims, namely that Defendant had prior knowledge of Dr. Castillo’s history of sexual misconduct and failed to warn its patients thereof. (SAC ¶ 147.) Based on the foregoing, the Court finds that Defendant’s relevance objections to RFP No. 11 are without merit.

b.                  Evidence Code Section 1157

Plaintiffs further argue that Defendant’s objections to RFP No. 11 on the basis that it violates Evidence Code section 1157 is without merit. (Pls.’ Mot. 7:1–2.) Evidence Code section 1157 protects from discovery the proceedings and records of certain review committees responsible for evaluating and improving the quality of health care, such as: (1) hospital staff committees; (2) peer review bodies, as defined in Business and Professions Code 805(a)(1)(B); and (3) health care professional society committees. (Evid. Code § 1157, subd. (a).)

Here, Plaintiffs assert that “the request at issue does not call for incident reports that would be subject to any Evidence Code Section 1157 or Business & Professions Code Section 805 privilege. The request calls for a very narrow and specific topic, which includes complaints received by Facey relating to Dr. Castillo from January 1, 2009, through the present date, not any response, action, or meeting in connection therewith.” (Pls.’ Mot. 7:2–5.) “At a minimum, Plaintiffs are allowed to determine whether such a report even exists in order to take the next steps to discover whether the report is truly privileged.” (Id. at 7:7–9.)

Defendant argues in opposition that the documents sought by Plaintiff are connected to proceedings of peer review bodies and therefore protected from discovery. Defendant argues that “case law holds that records submitted to a peer review committee for review (such as patient complaints) are also protected from discovery under § 1157.” (Def.’s Opp. 4:18–19, citing Alexander v. Superior Court (1993) 5 Cal.4th 1218.) In Alexander, the California Supreme Court held that physician applications for hospital staff privileges submitted to a hospital’s medical staff committee were protected from discovery under section 1157 because “nothing in the statute supports the suggestion that materials submitted to a committee for review are not protected ‘records’ of the committee.” (5 Cal.4th at 1225.)

Here, Defendant argues that “section 1157 applies to exclude the evidence sought by Plaintiffs in this request. Any such complaints would have been gathered pursuant to a peer review of Dr. Castillo’s professional competency. Any details as to complaints, such as the type of complaint, the identity of complainants and the actions taken by Defendants would necessitate preparing a compilation of information derived from peer review records. … As in Alexander, any patient complaints submitted would have been submitted for review and action by the peer review committee and are therefore privileged from disclosure.” (Def.’s Opp. 5:25–6:5.)

On reply, Plaintiffs maintain that the section 1157 privilege is inapplicable to patient complaints received by Defendant independent of any peer review processes. (Pls.’ Reply 3:5–6.) The Court agrees and finds that even if such complaints are gathered pursuant to a peer review process of Dr. Castillo’s professional competency, there is little basis to conclude that they are created for this specific purpose. However, the Court finds that as written, RFP No. 11 seeks documents outside the scope of the complaints themselves. As Defendant observes, “by the plain language of the request, it is not only seeking any complaints themselves, but also any documents ‘relating to’ the complaints themselves, without limitation.” (Def.’s Opp. 7:21–22.) Therefore, Plaintiffs’ contention that “the request calls for a very narrow and specific topic” is contradicted by the plain language of the request. (Pls.’ Reply 3:6–7.)

Based on the foregoing, the Court finds that RFP No. 11, as written, is overbroad and seeks documents that may be protected from discovery under Evidence Code section 1157. To this extent, the Court modifies RFP 11 to seek only “electronic communications, patient portal messages, correspondence, and any other communications received by FACEY MEDICAL GROUP directly complaining of GREGORY CASTILLO, M.D.’s conduct in providing medical services.” (Code Civ. Proc. § 2017.020, subd. (a) [“The court shall limit the scope of discovery if it determines that the … intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.”]

c.                   Third Party Privacy

Defendant further objected to RFP No. 11 to the extent “the request attempts to violate the immunities and privacy rights of Defendants and/or third parties as protected by the United States Constitution, the Constitution for the State of California as well as common law privacy rights and the physician-patient privilege.” (Pl.’s Sep. Stmt. 2:14–17.) When information protected by the right to privacy under article I, section 1 of the California Constitution is sought by way of discovery, the burden falls on the party asserting a privacy interest to show that their privacy interests are so serious that they outweigh the interests of the requesting party’s prospective invasion. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

The constitutional protection of privacy in discovery matters also extends to nonparties. “In weighing the privacy interests of the third party, the trial court should consider the nature of the information sought, its inherent intrusiveness, and any specific showing of a need for privacy, including any harm that disclosure of the information might cause.” (In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1319.)

Patients have a right to privacy in their medical information under the California Constitution, although this right is not absolute. Invasion of a privacy interest is not a violation of the California constitutional right to privacy when the invasion is justified by a competing interest. (Fett v. Medical Bd. of Cal. (2016) 245 Cal.App.4th 211, 221.) Matters that would otherwise be protected by the constitutional right to privacy are discoverable only if they are directly relevant to the plaintiff's claim and essential to a fair resolution of the action. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.)

Here, Defendant argues that “there is no legitimate purpose for producing the names and contact information of the patients as is directly sought by this request. These other patients who may have complained against Dr. Castillo in the past have no say in this matter.” (Def.’s Opp. 9:7–9.) In reply, Plaintiffs argue that Defendant “is standing by an improper blanket objection on grounds that can easily be remedied to protect any privacy concerns.” (Pls.’ Reply 3:21–23.) Plaintiffs assert that, for example, the “medical privacy issues Facey refers to can be easily addressed through redaction of any patient names or any other identifying information pertaining to the patient.” (Id. at 3:17–18.)

Based on the foregoing, it appears to the Court that Plaintiffs do not seek any third-party patient names or other identifying information which would be protected by the California Constitution. Rather, Plaintiffs apparently seek the substance of any complaints made by such patients to Defendant regarding Dr. Castillo’s misconduct in providing them medical services. Accordingly, to this extent, the Court finds that Defendant’s third-party privacy objections to RFP No. 11 are without merit, particularly where Plaintiffs appear amenable to measures which would limit the disclosure of any private patient information.

CONCLUSION

The motion is granted. Defendant to provide further code-compliant responses to Plaintiff’s RFP No. 11, as modified herein, within 30 days.