Judge: Anne Richardson, Case: 21STCV14726, Date: 2023-06-29 Tentative Ruling

Case Number: 21STCV14726    Hearing Date: February 20, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiff Scot Hickey sues Defendant The Rand Corporation (Rand Corp.) and Does 1-10 pursuant to an April 19, 2021 Complaint alleging claims of (1) Fair Employment and Housing Act (FEHA) Disability Discrimination, (2) FEHA Failure to Provide Reasonable Accommodation, (3) FEHA Failure to Engage in the Interactive Process, (4) California Family Rights Act (CFRA) Retaliation, (5) FEHA Retaliation, (6) FEHA Age Discrimination, (7) FEHA Failure to Prevent Retaliation, and (8) Labor Code Retaliation (Lab. Code, § 1102.5).

The claims arise from allegations that in or around 2017, Plaintiff Hickey—a Rand Corp. research programmer since 1999—experienced a severe downturn in mental health that led Plaintiff’s doctor to diagnose Plaintiff with DSM 296.53, i.e., the code for bipolar 1 disorder set by the International Classification of Diseases, Ninth Revision, Clinical Modification (ICD-9-CM). The Complaint alleges that Plaintiff took a leave of absence for three months through May 2017, after which Plaintiff returned to work and continued to receive treatment from medical providers for his ongoing mental health conditions, including anxiety and depression. Additionally, the Complaint alleges that based on his leave of absence or based on conduct attributable to his mental health disability, Plaintiff Hickey for the first time began receiving negative performance reviews or performance improvement plans, first in July 2017, and then in May 2018, and July 2019. The Complaint also alleges that Plaintiff’s compensation was reduced for “lack of work” despite Plaintiff being a salaried employee, that non-disabled employees were treated better, and that Plaintiff was terminated on November 8, 2019. The Complaint briefly alleges that younger employees were favored by Rand Corp., with Plaintiff being approximately 52 years old at the time of his termination.

Motion Before the Court

On August 7, 2023, The Rand Corp. served Plaintiff Hickey with a notice of deposition subpoena for production of business records from “William Graves.”

On August 14, 2023, The Rand Corp. served non-party “Ken Graves” with the deposition subpoena, which seeks production of (1) all medical records relating to Plaintiff Hickey from January 1, 2014 to the present and (2) all communications between Plaintiff Hickey and Kenneth Graves relating to Hickey’s medical records from January 1, 2014 to the present. The motion does not seek monetary sanctions against Kenneth Graves, MFT.

On September 14, 2023, Kenneth Graves, MFT objected to the deposition subpoena.

On November 7, 2023, The Rand Corp. served Plaintiff Hickey with an updated notice of deposition subpoena for production of business records from “Kenneth Graves.”

On November 13, 2023, The Rand Corp. served non-party Kenneth Graves, MFT with an updated deposition subpoena, this time updating the subpoena to correctly reflect Kenneth Graves, MFT’s name, title, and address.

On December 18, 2023, The Rand Corp. filed a motion to compel the deposition of Kenneth Graves, MFT, which involves the two production requests above.

On January 31, 2024, Kenneth Graves opposed The Rand Corp.’s motion.

On February 9, 2024, The Rand Corp. replied to the opposition.

The Rand Corp.’s motion is now before the Court.

Motion to Compel Deposition

Preliminary Note – Separate Statement

The Court notes that if a proposed deponent made some response to the deposition notice, then a separate statement must accompany any motion to compel deposition attendance or production. (See Cal. Rules of Court, rule 3.1345, subd. (b).)

Here, Kenneth Graves, MFT objected generally to The Rand Corp.’s deposition subpoena. (See Mot., Morosco Decl., last page of Ex. F, SUBP-025, Objection by Non-Party to Production of Records.) Thus, a separate statement was arguably necessary, although there was no substantive objection other than to check a box and state that the “client denies medical records released.”

The Rand Corp. failed to file a separate statement in connection with its motion. However, this issue was not raised in Kenneth Graves, MFT’s opposition, which addressed the issue on the merits, and the moving papers contain sufficient grounds for the Court to make a substantive determination on the relief requested.

Accordingly, the Court exercises its discretion to the extent any separate statement was needed, and permits this hearing to move forward on the merits.

Legal Standard

If, [1] after service of a deposition notice, [2] a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, [3] without having served a valid objection under Section 2025.410, [4] fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, [5] the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a) [Arabic numerals added for clarity].)

Although Code of Civil Procedure section 2025.450 does not apply to nonparties and section 2025.480 does not address attendance, courts regularly consider and grant motions to compel nonparties to attend depositions. (See, e.g., Terry v. SLICO (2009) 175 Cal.App.4th 352, 355 [court considered motion to compel nonparty to attend deposition; Sears, Roebuck, & Co. v. National Un. Fire Ins. (2005) 131 Cal.App.4th 1342, 1351 [court held that subpoenaing party can move to compel when nonparty deponent does not appear or produce documents at deposition]; Brun v. Bailey (1994) 27 Cal.App.4th 641, 645-646 [court considered motion to compel nonparty to attend deposition].)

The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (b)(1).)

The motion shall also be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2).)

Order Compelling Deposition(s): GRANTED, in part [as modified, and subject to orders below].

I. Code Civ. Proc., § 2025.450, subd. (a)

Here, The Rand Corp. has provided evidence to show:

[1]-[2] Service of the deposition subpoena on Kenneth Graves, MFT, on August 14, 2023, and then again on November 13, 2023, with the November subpoena updating the party served from “Williams Graves Therapy, by and through his Custodian of Records, 1000 Quail Street #135, Newport Beach, CA 92660-2719” to “Kenneth Graves Jr License Marriage and Family Therapist Inc c/o Kenneth Graves LMFT, by and through his Custodian of Records, 1000 Quail Street #135, Newport Beach, CA 92660-2719” (Mot., Morosco Decl., Exs. E, G); and

[4] Kenneth Graves, MFT’s failure to appear for an examination (Mot., Morosco Decl., ¶¶ 6-10).

The Court notes that while service was made on a non-party, the Court may nevertheless consider this motion. (See, e.g., Terry v. SLICO, supra, 175 Cal.App.4th at p. 355 [court considered motion to compel nonparty to attend deposition; Sears, Roebuck, & Co. v. National Un. Fire Ins., supra, 131 Cal.App.4th at p. 1351 [court held that subpoenaing party can move to compel when nonparty deponent does not appear or produce documents at deposition]; Brun v. Bailey, supra, 27 Cal.App.4th at pp. 645-646 [court considered motion to compel nonparty to attend deposition].)

Last, the Court determines whether a proper objection [3] has been stated.

The September 14, 2023 objection by Kenneth Graves indicated an objection to the August 14, 2023 subpoena on the ground that the “client [i.e., Plaintiff Hickey] denie[d] medical records [being] released” to The Rand Corp. (Mot., Morosco Decl., Ex. F, SUBP-025, Objection by Non-Party to Production of Records.)

The Court finds limited merit to this objection. As argued by the moving papers, Plaintiff Hickey has put his emotional condition at issue because Plaintiff Hickey alleges emotional distress damages as a result of the wrongdoing alleged against The Rand Corp. (See, e.g., Complaint, Prayer, ¶¶ 38, 44, 52, 59, 66, 72, 80 & Prayer, ¶ 1.) As a result, any right to privacy held by Plaintiff Hickey has been waived or overcome to the extent the deposition subpoena seeks information relevant to this action. This is because Plaintiff Hickey has put his emotional distress at issue in relation to the Complaint’s allegations, and The Rand Corp. has a compelling interest in obtaining discovery relating to Plaintiff Hickey’s emotional distress because such information is directly relevant to The Rand Corp.’s defense at trial and disclosure is essential to a fair resolution of this action. (Mathews v. Becerra (2019) 8 Cal.5th 756, 782 [autonomy privacy in seeking psychiatric treatment]; Williams v. Superior Court (2017) 3 Cal.5th 531, 556 [If the case involves an obvious invasion of a privacy interest that is fundamental to the holder’s personal autonomy, a compelling interest or need must be present to overcome the privacy interest]; John B. Superior Court (2006) 38 Cal.4th 1177, 1199 [by putting his own medical condition at issue, defendant substantially lowered expectation of privacy]; Wegner, Fairbank, Epstein & Chernow, California Practice Guide: Civil Trials & Evidence (The Rutter Group) Ch. 8-E ¶ 8:2728 [A party who claims emotional distress from sexual harassment may waive her right to privacy as to her present mental or emotional condition]; Britt v. Superior Court (1978) 20 Cal.3d 844, 859 [The personal information should be disclosed only if (1) it is directly relevant to the party’s claim or defense and (2) disclosure is essential to the fair resolution of the claim or defense].)

In opposition, Kenneth Graves, MFT limits his arguments to (1) the existence of an applicable psychotherapist-patient privilege and right to privacy in the requested medical information and (2) limiting the scope of the subpoena by allowing Kenneth Graves, MFT to make production to Plaintiff Hickey so that Plaintiff’s counsel may determine which of the produced documents pertain to Plaintiff’s claims in the instant matter. Kenneth Graves, MFT adds that because the subpoena is limited to document production, The Rand Corp. will need to request court authorization before Kenneth Graves, MFT can be compelled to attend a deposition and answer questions by The Rand Corp. at that time. (Opp’n, pp. 3-6.)

The Court deems it reasonable for a mental health professional to proffer his objection and allow a court to make the determination, rather than to agree to produce documents or provide testimony customarily covered by the doctor/patient privilege. Nonetheless, the Court has addressed the fact that any privilege or right to privacy has been overcome by the Rand Corp. insofar as The Rand. Corp. seeks production of documents relating to Plaintiff’s emotional distress in connection with this action, which is information relevant to a fair resolution of this action.

As a result, Kenneth Graves, MFT does not offer any objections pursuant to which the Court should outright deny a deposition of Kenneth Graves, MFT.

The Court, however, accepts Kenneth Graves, MFT’s argument that the deposition subpoena should be limited. The deposition subpoena currently requests:

(1) “All MEDICAL RECORDS RELATING TO SCOT HICKEY[] [where] [t]he time period covered by this category of documents is January 1, 2014 to present”; and

(2) ALL COMMUNICATIONS between YOU and SCOT HICKEY RELATING TO his MEDICAL RECORDS, including his physical, mental, medical, psychiatric, psychological and/or emotional condition[] [where] [t]he time period covered by this category of documents is January 1, 2014 to present.”

(Mot., Morosco Decl., Ex. G.)

The Court determines that these requests are overbroad because they do not limit themselves to medical records of Plaintiff Hickey’s emotional distress or other injuries arising from his employment with The Rand Corp. and the wrongdoing alleged against The Rand Corp. in the Complaint.

As such, the Court modifies the subpoena to request as follows:

(1) All MEDICAL RECORDS RELATING TO SCOT HICKEY, where the time period covered by this category of documents is January 1, 2014 to present, and where the records must relate to Plaintiff Hickey’s employment with the Rand Corp. or the wrongdoing alleged against The Rand Corp. in the Complaint in LASC No. 21STCV14726, or any conditions that Hickey attributes to his employment or the wrongdoing at The Rand Corp.; and

(2) ALL COMMUNICATIONS between YOU and SCOT HICKEY RELATING TO his MEDICAL RECORDS, including his physical, mental, medical, psychiatric, psychological and/or emotional condition, where the time period covered by this category of documents is January 1, 2014 to present, and where the records must relate to any conditions that Hickey attributes to his employment with the Rand Corp. or the wrongdoing alleged against The Rand Corp. in the Complaint in LASC No. 21STCV14726.

II. Code Civ. Proc., § 2025.450, subd. (b)(1)

Here, the Court adopts its discussion in Section I above to determine that the modified discovery’s relevance to this action shows good cause for production, thus satisfying the requirements of Code of Civil Procedure section 2024.450, subdivision (b)(1).

III. Code Civ. Proc., § 2025.450, subd. (b)(2)

Here, The Rand Corp. provides evidence to show that it followed up with Kenneth Graves, MFT, and with Plaintiff’s counsel regarding production of records by Kenneth Graves, MFT. (Mot., Morosco Decl., ¶¶ 6-10.)

IV. Deposition Conclusion and Conditions on Subpoena

Because The Rand Corp. has satisfied the statutory requirements for compelling compliance with its deposition subpoena served on Kenneth Graves, MFT, The Rand Corp.’s motion is GRANTED, in part.

The Court notes that it has modified the subpoena to only request:

(1) All MEDICAL RECORDS RELATING TO SCOT HICKEY, where the time period covered by this category of documents is January 1, 2014 to present, and where the records must relate to any conditions that Hickey attributes to his employment with the Rand Corp. or the wrongdoing alleged against The Rand Corp. in the Complaint in LASC No. 21STCV14726; and

(2) ALL COMMUNICATIONS between YOU and SCOT HICKEY RELATING TO his MEDICAL RECORDS, including his physical, mental, medical, psychiatric, psychological and/or emotional condition, where the time period covered by this category of documents is January 1, 2014 to present, and where the records must relate to any conditions that Hickey attributes to his employment with the Rand Corp. or the wrongdoing alleged against The Rand Corp. in the Complaint in LASC No. 21STCV14726.

The Court also ORDERS as follows.

Kenneth Graves, MFT will produce all possibly relevant documents to First Legal.

First Legal will bates stamp the produced documents before forwarding those documents to Plaintiff Hickey.

First Legal will thereafter provide The Rand Corp. with the bates range of the documents produced to Plaintiff Hickey.

Plaintiff Hickey’s counsel may redact the information in the produced documents that is not relevant to this action or is subject to an objection not already considered and rejected by the Court. (See above discussion.)

Plaintiff Hickey will then produce the redacted documents to The Rand Corp., along with a privilege log detailing any privileges raised by Plaintiff Hickey in objection to the production. The privilege log must conform with any protective order signed by the parties. However, to the extent that any protective order between the parties does not address the subject matter of the subpoena served on Kenneth Graves, MFT, the privilege log must conform with Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 291, fn. 6.

The Rand Corp. may then as it wishes exercise its rights to compel further production.

The Court last notes that it makes no determination on whether The Rand Corp. may depose Kenneth Graves, MFT, by asking questions of him at a deposition. That question is not before the Court because the amended deposition subpoena at issue only requests document production, making a deposition as to categories of examination irrelevant to the issues now before the Court. (See Mot., Morosco Decl., Ex. G; see also Hunt v. Superior Court (1999) 21 Cal.4th 984, 998 [“… [T]he ripeness requirement prevents courts from issuing purely advisory opinions[] or considering a hypothetical state of facts in order to give general guidance rather than to resolve a specific legal dispute”].)

Conclusion

Defendant The Rand Corporation’s Motion to Compel Compliance with Kenneth Graves, MFT Subpoena is GRANTED, in part, as modified above, and subject to the additional orders made above.