Judge: Carolyn M. Caietti, Case: 37-2023-00016848-CU-PO-CTL, Date: 2024-01-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 25, 2024

01/26/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  PI/PD/WD - Other Discovery Hearing 37-2023-00016848-CU-PO-CTL FONDEN VS PALOMAR HEALTH [IMAGED] CAUSAL DOCUMENT/DATE FILED: Notice of Motion and Supporting Declarations, 09/28/2023

Plaintiffs Arthur Fonden and Jennifer Finley's Motion to Compel Defendant Palomar Health's Further Responses to Requests for Production of Documents, Set One is GRANTED.

Background Plaintiffs' Complaint alleges Michael Fonden jumped off a bridge in Oceanside on December 22, 2021, was admitted to Palomar Medical Center and providers ordered a 24/7 sitter. Per the records, Fonden's behavior escalated when not given his medication. Ultimately, Defendants began weaning Fonden off of Klonopin on April 24, 2022, with his last benzodiazepine given on April 23, 2022. On April 24, 2022, while supervised by a sitter, Fonden was allowed on the 7th floor of Palomar Medical Center. He jumped from the 7th floor and landed on the 6th floor and then jumped again to his death. The Complaint asserts causes of action for: (1) wrongful death by medical negligence; (2) survival action pursuant to C.C.P.

section 377.34; (3) survivor action for dependent adult abuse.

Discussion The parties participated in several Informal Discovery Conferences with the Court. (ROA 51, 59, 78.) The parties agree the remaining dispute concerns Request for Production of Documents, Set One, No.

10, which asks for: 'Please produce the Audit Trail or similar [writings]; as that term is defined by Evidence Code 250, for [Michael Fonden]'s medical records chart.' Under the broad scope of discovery, the audit trail is discoverable. (C.C.P., § 2017.010; Williams v. Superior Court (2017) 3 Cal.5th 531, 541 (the right to discovery is broad and includes an entitlement to learn 'the identity and location of persons having knowledge of any discoverable matter').) 'Under the Legislature's 'very liberal and flexible standard of relevancy,' any 'doubts as to relevance should generally be resolved in favor of permitting discovery.'' (Williams, supra.) Minimally here, the audit trail will identify witnesses who interacted with the decedent, his condition and the treatment, or lack thereof, provided. The audit trail is what Plaintiffs call the treaters' 'digital fingerprint,' showing what records were opened and for how long; the importance of orders, reports and edits made to the electronic medical records, users not in the medical records, events before and after the decedent's death and any altered, deleted or added records.

In its opposition, Palomar Health focuses on its objection based on burden/oppression. A trial court 'shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of Calendar No.: Event ID:  TENTATIVE RULINGS

3029476  38 CASE NUMBER: CASE TITLE:  FONDEN VS PALOMAR HEALTH [IMAGED]  37-2023-00016848-CU-PO-CTL admissible evidence.' (C.C.P., § 2017.020(a).) An objection based on burden must be sustained by evidence showing the quantum of work required and an objection of oppression must show either an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought. (West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417.) Here, the objection is overruled. First, Palomar Health did not meet its burden to show the burden and expense suggested by Palomar Health 'clearly outweighs' the likelihood the information sought will lead to the discovery of admissible evidence because, undoubtedly, the audit trail contains information that will lead to the discovery of admissible evidence. Notwithstanding the reasons why the audit trail is discoverable as discussed above, these are federally-mandated reports, containing the decedent's electronic health information made for the decedent. (See, 45 CFR § 164.524(a)(1), 42 USC § 17935(e)(1), 45 CFR § 160.103.) Second, as discussed during the informal discovery conferences, the Declaration of Robin Ford is incomplete and raises several questions, including what FairWarning is, what is entailed when requests are made with them and what data is asking to be restored; why data must be retrieved for each individual user/staff member/physician and not by patient; how she approximated 270.11 hours to review and the basis for the cost of $84,830; and how would Defendant otherwise comply if audited by the federal government.

There is also a great disparity (and no supporting explanation) between the supplemental response's estimate of a $25,000 cost and Ford's estimate of over $84,000. (See, Reply Notice of Lodgment, at Ex. 16, cf., Ford Decl., at ¶ 8.) Further, as Plaintiffs raise in reply, there are discrepancies in the numbers.

According to Palomar Health's Supplemental Responses, 777 users accessed the decedent's records and 4,532 time events exist in the audit trail. But based on Plaintiffs' review of the audit log, there are 754 users and 4,370 time entries, raising the question of who are the additional users who accessed the decedent's medical records 162 additional times.

Palomar Health also does not sufficiently explain how it was able to provide an audit trail in another case (with the same counsel), but cannot reasonably do so here. (ROA 31 – Declaration of Broc Newman, at ¶ 14 & Ex. 11.) Taken as a whole, there is no showing of an intent by Plaintiffs to create an unreasonable burden. The ultimate effect of any burden is also not incommensurate with the result sought. As discussed above, the audit trail contains discoverable information. Any burden is not out of proportion with what the audit trail can provide.

Thus, an order compelling a further response to No. 10 is warranted with Palomar Health allowed to redact information protected by the attorney-client privilege and work product doctrine, only. (C.C.P., § 2031.310(a)(1), (3).) For these reasons, the motion is GRANTED.

Although the deposition of Diane Hansen was discussed as part of the Informal Discovery Conferences, the Court made recommendations in the context of the informal discovery conference. The Court declines Plaintiffs' reply request to rule on this discovery issue, which is not before the Court in this motion.

Concluding Orders By February 29, 2024, Defendant Palomar Health is ordered to serve a further, verified and code-compliant response to Plaintiffs' Request for Production of Documents, Set One, No. 10.

For any documents Defendant maintains are attorney-client privileged or protected by the work-product doctrine, Defendant is ordered to serve a privilege log. The Court expects the privilege log to identify with particularly each document Defendant claims is protected from disclosure by a privilege and provide sufficient factual information for Plaintiffs and the Court to evaluate whether the claim has merit.

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3029476  38 CASE NUMBER: CASE TITLE:  FONDEN VS PALOMAR HEALTH [IMAGED]  37-2023-00016848-CU-PO-CTL (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130.) Minimally, it must provide: (i) the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document; (ii) the document's date; (iii) a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies; (iv) and the precise privilege or protection asserted. (Ibid.) If the tentative ruling is confirmed without modification, the Court's minute order will be the Court's final ruling. Plaintiffs are ordered to serve written notice of the Court's final ruling on all appearing parties by January 30, 2024.

Defendants are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

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