Judge Christopher K. Lui, Case Number: 23STCV16549, Date: 2024-06-18 Tentative Ruling

The following tentative ruling is issued pursuant to Rule of Court 3.1308 at 1:28 p.m. on June 17, 2024.

Notice of intent to appear is REQUIRED pursuant to California Rule of Court 3.1308(a)(1). The Court does not desire oral argument on the motion addressed herein.

As required by Rule 3.1308(a)(1), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 by 4:00 p.m. on June 17, 2024.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, oral argument may not be permitted.

Plaintiff alleges that she was subjected to racial harassment and discrimination at work.

Plaintiff moves to quash the deposition subpoena for production of business records issued by Defendants to the custodian of records for David Robert Vargas, M.D., Heather Cobbs and/or I Heart Therapy Inc., Kaiser Permanente, SCPMG and KFH, c/o Central Release of Information Unit, and Sarah A. Gbadebo, LMFT regarding Plaintiff’s medical records.

Plaintiff Jessica Sheffield’s motion to quash deposition subpoena of medical records is DENIED.

Defendants’ counter-request for sanctions against Plaintiff and her counsel of record is DENIED. The Court does not find that the motion was made in bad faith or without substantial justification. (Civ. Proc. Code, § 1987.2(a).)

Plaintiff moves to quash the business records subpoena served upon third-parties Dr. Plaintiff moves to quash the deposition subpoena for production of business records issued by Defendants to the custodian of records for David Robert Vargas, M.D., Heather Cobbs and/or I Heart Therapy Inc., Kaiser Permanente, SCPMG and KFH, c/o Central Release of Information Unit, and Sarah A. Gbadebo, LMFT regarding Plaintiff’s medical records.

(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

There is no meet and confer requirement set forth in Civ. Proc. Code, § 1987.1.

Case law has imposed the “good cause” requirement for subpoena document requests propounded upon non-parties, that is, the propounding party must articulate specific facts relating to each category of materials sought to justify production:

In the course of the litigation, Thiem served a subpoena under section 2020 on Calcor's custodian of records demanding Calcor, a nonparty and Thiem's competitor, to, in effect, produce all materials in its possession relating to gun mounts, going back nearly 10 years. The subpoena fails to identify any specific document but merely describes broad categories of documents and other materials.

Although the scope of civil discovery is broad, it is not limitless. . . . [Former] Section 2031, subdivision (l), which applies to document production requests served on a party, requires a [*224] party seeking to compel such production to "set forth specific facts showing good cause justifying the discovery sought by the inspection demand . . . ." (Italics in original.) Section 2020, the statute at issue, contains no such specific requirement. However, since both sections are part of a single statutory scheme, and since it is unlikely the Legislature intended to place greater burdens on a nonparty than on a party to the litigation, we read a similar requirement into the latter section.

Even were we to ignore that the statements purporting to justify an order compelling Calcor to produce its documents and other materials are unverified, they still fail. There is an absence of specific facts relating to each category of materials sought to be produced; the justifications offered for the production are mere generalities. The very vice of the subpoena's promiscuity is well illustrated by Thiem's inability to provide focused, fact-specific justifications for its demands. The noted generality of the subpoena's definitions, instructions and categories which merely add up to a demand Calcor produce everything in its possession having anything to do with gun mounts, precludes Thiem from demonstrating any particular item or category in fact constitutes or contains matter which "is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." (§ 2017, subd. (a).) The purported justification for imposing this great burden on Calcor necessarily suffers from the same generality as the subpoena itself.

Although appellate courts have frequently stated "fishing expeditions" are permissible in discovery, there is a limit. As noted in Gonzalez v. Superior Court (1995) 33 Cal. App. 4th 1539 [39 Cal. Rptr. 2d 896], "These rules are applied liberally in favor of discovery ( Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal. 3d 785, 790), and (contrary to popular belief), fishing expeditions are permissible in some cases." (Id. at p. 1546.) However, early in the development of our discovery law our Supreme Court recognized the limits on such "fishing expeditions." In [*225] Greyhound Corp. v. Superior Court (1961) 56 Cal. 2d 355 [15 Cal. Rptr. 90, 364 P.2d 266], the seminal case in California civil discovery, the court gave examples of improper "fishing" which clearly apply here: "The method of 'fishing' may be, in a particular case, entirely improper (i.e., insufficient identification of the requested information to acquaint the other party with the nature of information desired, attempt to place the burden and cost of supplying information equally available to both solely upon the adversary, placing more burden upon the adversary than the value of the information warrants, etc.). Such improper methods of 'fishing' may be (and should be) controlled by the trial court under the powers granted to it by the statute." (Id. at pp. 384-385.) The concerns for avoiding undue burdens on the "adversary" in the litigation expressed in Greyhound apply with even more weight to a nonparty.

Had the Greyhound court been able to anticipate the tremendous burdens promiscuous discovery has placed on litigants and nonparties alike, it might well have taken a stronger stand against such "fishing." Greyhound's optimism in noting the then new discovery system would be "simple, convenient and inexpensive," would "expedite litigation," and "expedite and facilitate both preparation and trial," has certainly proven to have been considerably off the mark. (56 Cal. 2d at p. 376.)

The issues in this litigation may essentially be reduced [***18] to the question whether Thiem's work met Delco's specifications. This may be determined without any reference to the contract between Delco and Calcor or the specifications which are part of that contract. Another issue which may exist is whether Delco may recover the excess of the cost of the gun mounts procured from Calcor as damages for "cover" under California Uniform Commercial Code section 2712. (See Gerwin v. Southeastern Cal. Assn. of Seventh Day Adventists (1971) 14 Cal. App. 3d 209, 217-218 [92 Cal. Rptr. 111].) If so, differences in specifications issued to Thiem and to Calcor may be relevant. However, discovery by Thiem from Delco should normally provide it with this evidence. As between parties to litigation and nonparties, the burden of discovery should be placed on the latter only if the former do not possess the material sought to be discovered. An exception to this may exist where a showing is made the material obtained from the party is unreliable and may be subject to impeachment by material in possession of the nonparty. Thiem has not even attempted to demonstrate why it cannot obtain the needed materials from Delco or why such materials might be unreliable.

(Calcor Space Facility, supra, 53 Cal.App.4th at 224-25 [bold emphasis and underlining added].)

Plaintiff’s separate statement sets forth the objectionable requests in the respective subpoenas:

Any and all DOCUMENTS or ESI in YOUR possession regarding any and all treatment and/or care provided to PLAINTIFF from January 1, 2017 to present, consisting of:

2. DOCUMENTS relating to PLAINTIFF’s need for accommodation, work restrictions and/or any medical leaves;

3. DOCUMENTS relating to PLAINTIFF’s emotional status/condition, including but not limited to, suicidal thoughts/actions, depression, anxiety, and loss of self-worth;

7. DOCUMENTS related to communication records between the patient and this facility related to items 1 through 5 above;

9. DOCUMENTS related to communication records between this facility and VCA Animal Hospitals.

10. All billing records, payment records, insurance records, Medicaid or Medicare

records, and all records related to information submitted to insurance, Medicaid or

Thus, Plaintiff respectfully requests that the subpoena is limited to the following emotional distress she suffered as a result of Defendants’ conduct as alleged in the instant matter, beginning in about 2020, as follows:

Stress; anxiety; depression; nervousness; worry; shame; loss of reputation; humiliation; fear; concern for her safety; embarrassment; apprehension; feelings of isolation; sadness; loss of feeling of safety in the workplace; loss of faith that Defendant would do the right thing; and uncomfortable in the workplace.

Any and all DOCUMENTS or ESI in YOUR possession regarding any and all treatment and/or care provided to PLAINTIFF from January 1, 2017 to present, consisting of:

2. DOCUMENTS relating to PLAINTIFF’s need for accommodation, work restrictions and/or any medical leaves;

3. DOCUMENTS relating to PLAINTIFF’s emotional status/condition, including but not limited to, suicidal thoughts/actions, depression, anxiety, and loss of self-worth;

7. DOCUMENTS related to communication records between the patient and this facility related to items 1 through 5 above;

9. DOCUMENTS related to communication records between this facility and VCA Animal Hospitals.

10. All billing records, payment records, insurance records, Medicaid or Medicare

records, and all records related to information submitted to insurance, Medicaid or

Plaintiff’s request: Plaintiff respectfully requests that the subpoena is limited to the following emotional distress she suffered as a result of Defendants’ conduct as alleged in the instant matter, beginning in or about 2020, as follows:

1. All WRITINGS and ESI that comprise, evidence, constitute or otherwise refer or relate to medical records, or to “medical information,” as this term is defined by section 56.05(j) of the California Civil Code in the DEPONENT’s possession or custody or under the DEPONENT’s control, that relate to PLAINTIFF’s medical, physical, mental, emotional, psychological or psychiatric history, condition or treatment, or any consultation by PLAINTIFF with DEPONENT, or any examination, testing, diagnosis, prognosis, care, treatment, or counseling performed or conducted by DEPONENT on PLAINTIFF for any medical, physical, mental, emotional, psychiatric or psychological condition. This includes notes, charts, discharge, treatment, or operative reports or abstracts, photographs, and the like, prescribed medications, drug or alcohol treatment or counseling, medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date; and billings or invoices for services rendered to PLAINTIFF, or similar information or documentation pertaining to services rendered to PLAINTIFF, and copies of any such records, charts, x-rays, and each and every document included in any such medical charts, and any other related information or documentation from January 2017 to the present.

2. To the extent that these are not included in the foregoing, all WRITINGS and ESI that comprise, evidence, constitute or otherwise refer or relate to any “psychotherapy notes,” defined as notes recorded by a “psychotherapist,” as that term is defined by California Evidence Code section 1010, or other mental health care provider or professional documenting or analyzing the contents of any conversation during a private counseling session with PLAINTIFF or a group, joint, or family counseling session involving PLAINTIFF and that are separated from the rest of PLAINTIFF’S medical record, but excludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date. The records and information to be produced include any other “medical information,” as this term is defined by section 56.05(j) of the California Civil Code, in the possession or custody or under the control of DEPONENT, which relates to psychotherapy notes pertaining to PLAINTIFF from January 2017 to the present.

3. All WRITINGS and ESI that comprise, evidence, constitute or otherwise refer or relate to “billing records,” billing documents, or invoices in the DEPONENT’s possession, custody, or control, that relate to PLAINTIFF for services rendered by DEPONENT to PLAINTIFF for any medical, physical, mental, emotional, psychiatric, or psychological condition from January 2017 to the present.

4. Any e-mail, letters, correspondence or other written or recorded communications between DEPONENT, on the one hand, and PLAINTIFF or her attorneys, agents, representatives or other persons acting or purporting to act on her behalf, on the other hand, that pertain to items described herein.

5. Any e-mail, letters, correspondence or other written or recorded communications between DEPONENT, on the one hand, and any insurer or carrier, or any “contractor” or “health care service plan” as those terms are defined in California Civil Code section 56.05, paragraphs (d) and (g), on the other hand, which pertain to PLAINTIFF or to items described in herein.

6. All DOCUMENTS and ESI described herein shall include, without limitation, any and all DOCUMENTS, WRITINGS, medical records prepared, maintained, transcribed, dictated, signed, and approved in connection with the consultation, evaluation, examination, diagnosis, prognosis, and treatment of PLAINTIFF by the following healthcare providers:

Plaintiff’s request: Accordingly, Plaintiff respectfully requests that the subpoena is limited to the following emotional distress she suffered as a result of Defendant’s conduct as alleged in the instant matter, beginning in or about 2020, as follows:

Plaintiff asserts her right of privacy in medical records as to each subpoena request.

Privacy is an inalienable right under the California Constitution. (Citation omitted.) It is well established that the right to privacy extends to medical records (citation omitted), which may contain “matters of great sensitivity going to the core of the concerns for the privacy of information about an individual.” (citation omitted.) The privacy interest in psychiatric records is particularly strong and, in some respects, entitled to more robust protection than other types of medical records. (Citations omitted.)

In general, although a plaintiff waives privacy as to information which relates to any physical or mental condition put in issue by bringing the lawsuit, the plaintiff retains a privacy interest in unrelated past medical or psychotherapeutic treatment; a disclosure of the entire lifetime of medical history is unwarranted. (Britt v. Superior Court (1978) 20 Cal.3d 844, 865.)

In ruling upon a privacy objection in the contact of discovery, the party asserting a privacy right must establish a legally protected privacy interest. (Williams, supra, 3 Cal.5th at 552.) The party asserting a privacy right must also establish an objectively reasonable expectation of privacy in the given circumstances. (Id.) Further, the party asserting a privacy right must establish a threatened intrusion that is serious. (Id.) The Court need not proceed to the fourth step of balancing competing interests if all three of the above are not satisfied. (Id. at 555.) If the Court reaches the fourth step, the Court must balance these competing considerations: The party seeking information may raise whatever legitimate and important countervailing interests disclosure serves. (Id. at 552.) The party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Id.) Courts may not require the party seeking discovery to demonstrate a “compelling state interest” or “compelling need[1]” simply because discovery of any facially private information is sought. (Id. at 556-57.)

Here, Plaintiff has demonstrated that she has an objectively reasonable expectation of privacy in her medical records. However, Plaintiff has waived her right to privacy to the extent she has placed emotional distress at issue in the operative complaint, which is a factor in assessing the seriousness of intrusion (see discussion below).

The factor regarding legitimate and competing countervailing interests served by disclosure goes to Defendant’s need to show good cause for production of the documents requested, Defendants state in the opposing separate statement:

Plaintiff stated she has been seeking treatment for these issues from Sarah A. Gbadebo, LMFT Psychiatry; David Robert Vargas MD; and Heather Cobbs. (Bacio Decl. at ¶ 7, Exh. D.)Plaintiff further indicated that she has been advised that she will need long term therapy. (Id at No.212.7.) When asked to identify each physical, mental, or emotional injury that she attributes to the Adverse Employment Action and the area of the body affected, Plaintiff again reiterated, “Stress; anxiety; depression; nervousness; worry; shame; loss of reputation; humiliation; fear; concern for her safety; embarrassment; apprehension; feelings of isolation; sadness; loss of feeling of safety in the workplace; loss of faith that Defendant would do the right thing; and uncomfortable in the workplace, among other injuries.” (Id. at No. 212.2.)

For instance, Plaintiff has placed her ability to work at-issue by alleging anxiety over her career. This subpoena seeks records regarding Plaintiff’s ability to work not only with Defendants, but prior employers from 2 years and 9 months prior to her employment with Defendants. This includes limited information regarding ability to work; need for accommodation; work restrictions; and medical leave. Each of these factors impact Plaintiff’s emotional distress, which Defendants are

Plaintiff further places significant aspects of her emotional distress at issue. She alleges significant emotional distress, including physical and emotional manifestations of vomiting migraines, crying spells, and gastrointestinal issues, among other symptoms, and has suffered and will suffer physical, mental, and emotional injuries, pain, distress, suffering, anguish, fright nervousness, grief, anxiety, worry, shame, mortification, injured feelings, shock, humiliation and

indignity, as well as other unpleasant physical, mental, and emotional reactions, damages to reputation, and other non-economic damages. Defendants’ subpoena seeks information related to her emotional condition, inability to sleep, and/or any physical ailments giving rise to her emotional distress. Again, Defendants are entitled to explore Plaintiff’s allegations in defense of her claims of distress, including pre-existing and concurrent stressors.

33. Defendants’ harassment of and retaliation against Plaintiff have caused her to dread going into work; caused her undue distress over her safety at work; isolated her in the workplace; undermined her ability to perform her job duties; and created anxiety over her career in light of Defendants’ creation of false documentation concerning Plaintiff’s performance.

34. Further, Defendants’ harassment of and retaliation against Plaintiff have also caused significant adverse impacts on Plaintiff’s health, including by causing Plaintiff to experience vomiting, migraines, crying spells, and gastrointestinal issues, among other symptoms.

35. As a result of these actions against Plaintiff, her ability to advance and/or promote has been and will continue to be negatively impacted.

44. As a legal result of the conduct of Defendants, and each of them, Plaintiff has suffered and will suffer physical, mental, and emotional injuries, pain, distress, suffering, anguish, fright, nervousness, grief, anxiety, worry, shame, mortification, injured feelings, shock, humiliation and indignity, as well as other unpleasant physical, mental, and emotional reactions, damages to reputation, and other non-economic damages, in a sum to be ascertained according to proof. Said damages are of the type that any person would suffer as a result of the illegal and wrongful conduct of Defendants. Plaintiff does not claim that she has suffered any psychiatric illness as a result of the conduct of Defendants.

45. As a further legal result of the conduct of Defendants, and each of them, Plaintiff was required and/or in the future may be required to engage the services of health care providers, and incurred expenses for health care, services, supplies, medicines, health care appliances, modalities, and/or other related expenses in a sum to be ascertained according to proof.

1. On each cause of action, for physical, mental, and emotional injuries, pain, distress, suffering, anguish, fright, nervousness, grief, anxiety, worry, shame, mortification, injured feelings, shock, humiliation and indignity, as well as other unpleasant physical, mental, and emotional reactions, damages to reputation, and other non-economic damages, in a sum to be ascertained according to proof;

Notably, Plaintiff admits in her reply that Plaintiff’s records also contain private information concerning third parties and when Plaintiff was a minor child. (Bond Decl., ¶ 11.) Because Defendants’ requests are limited to January 2017 (about 2 ½ years before Plaintiff begin working for Defendants in September 2022[2]) to the present, to the extent responsive information within this reasonable limitation includes information pertaining to Plaintiff when she was a minor child, this suggests she had pre-existing factors that may have contributed to her emotional distress during her employment. Further, Plaintiff does not identify these third parties, nor why their information should be kept private.

Given the broad scope of Plaintiff’s allegations, discussed above, Defendants are entitled to discover the information sought, except to the extent Plaintiff’s medical records pertain to conditions obviously unrelated to the allegations of her 1AC, for instance, physical injuries/ailments not possibly caused by Defendants.

While Plaintiff claims she does not have suicidal thoughts, then there would be no records of such to produce, and the issue is moot as to such information.

Plaintiff requests that the Court conduct an in camera inspection to determine if the records should be produced without redaction. The Court does not see the need for this procedure if, as Plaintiff claims, she did not seek treatment for emotional distress she suffered during her employment with Defendant until 2023. If no records of such treatment exists, what is there to redact? Further, while Plaintiff claims she is not alleging a disability-related claim, she does allege that her ability to perform her job duties has been undermined (1AC, ¶¶ 33) and she has experienced vomiting, migraines, crying spells and gastrointestinal issue (1AC, ¶ 34). To the extent these episodes occurred at work and Plaintiff requested accommodation to enable her to perform her duties, such information is relevant. Again, if Plaintiff never requested such accommodations, there there is no responsive information, and the issue is moot in this regard.

In short, Plaintiff has not demonstrated a justification for the requested motion to quash. The motion to quash deposition subpoena of medical records is DENIED.

[1] In this regard, Plaintiff’s repeated argument that Defendants must show a compelling need for the discovery is based on authority which has been overruled.

[2] 1AC, ¶ 10.