Judge Christopher K. Lui, Case Number: 23STCV16678, Date: 2024-10-01 Tentative Ruling

Plaintiff’s motion to quash is GRANTED IN PART and DENIED IN PART. the Court will permit Defendant to seek production of Plaintiff’s medical records back to 1991, without restriction as to medical conditions for which Plaintiff has received treatment.

Given the partial success and partial failure, both parties’ requests for sanctions are DENIED.

Plaintiff moves to quash the deposition subpoena for production of business records issued by Defendants to custodian of records for Kaiser Permanente SCAL, and requests sanctions.

(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 request in the respective subpoena as follows:

“ALL DOCUMENTS AND/OR RECORDS THAT REFER, RELATE OR PERTAIN TO THE TREATMENT OF LOURDES LANDAZURI (SSN: [omitted]), INCLUDING BUT NOT LIMITED TO:

NOTES (HANDWRITTEN AND TRANSCRIBED), CORRESPONDENCE, INTAKE FORM(S), REPORTS OF ANY KIND, MEDICAL RECORDS (EXCLUDING GYNECOLOGICAL RECORDS), MEDICAL HISTORY, EXAMS, MENTAL HEALTH RECORDS, PSYCHOLOGICAL TESTING AND RESULTS, PSYCHOLOGICAL EVALUATIONS OF ANY KIND (E.G., PHYSICAL, MENTAL, PSYCHIATRIC, AND/OR PSYCHOLOGICAL TREATMENT) AND THEIR RESULTS, CLINICAL NOTATIONS, DIAGNOSES/ PROGNOSES, PRESCRIPTIONS, REFERRALS, HOSPITAL VISITS, APPOINTMENT AND VISIT RECORDS, ANY WRITINGS CONCERNING CARE OR TREATMENT PERTAINING TO ANY SURGERIES, AND/OR ANY OTHER WRITINGS CONCERNING CARE OR TREATMENT PROVIDED TO MS. LANDAZURI. PLEASE PROVIDE RECORDS FOR ALL PHYSICIANS OR HEALTHCARE WORKERS WHO TREATED MS. LANDAZURI.”

Plaintiff asserts her right of privacy in medical records as to the 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 the 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.)

The California Supreme Court has held that a compelling interest or compelling need is not always required in order to discover private information—the Court must consider the factors articulated in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4^th 1 to determine the seriousness of the privacy invasion and the strength of the countervailing interest required to overcome that invasion. (Williams v. Superior Court (2017) 3 Cal.5th 531.)

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. The threatened intrusion is serious to some degree, but Plaintiff has waived her right to privacy to the extent she has placed emotional distress and physical pain at issue in the operative complaint. (See 1AC, ¶¶ 26, 34, 8 [second], 15 [second], 23 [second], 31 [second], 39, 47, 54],

Plaintiff argues that the request seeks potentially 64 years’ worth of documents, with no substantive limits on the type or subject of information, even though Defendant knows exactly her injuries Plaintiff alleges were caused by the wrongful termination (emotional distress) and the nature of plaintiff’s disability (right shoulder injury).

Plaintiff also argues that the subpoena is not sufficiently particularized, which renders it invalid. (Civ. Proc. Code, 2020.410.)

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:

Ormco took the first volume of the deposition of Plaintiff on January 31, 2024. [Yu Decl., ¶ 4] Plaintiff testified that the conduct of Ormco and its employees caused her to suffer feelings of depression, feelings of anxiety, sleep issues, panic attacks, weight gain, hair loss, headaches, loss of interest in everyday activities, loss of concentration, and overthinking. [Deposition of Plaintiff (“Plf. Depo.”), 191:6-192:22, attached as Ex. C to Yu Decl.] She further testified that some or all of these symptoms or conditions began the same year that her employment commenced, i.e., 1991, and continued through the end of her employment, i.e., 2022, if not later. [Id.]

For example, Plaintiff testified that she attributes her feelings of depression to the conduct of Defendants and their employees and that she experienced feelings of depression every year between 1991 and 2024. [Plf. Depo., 101:15-25, 103:24-105:17, 107:10-21, 138:10-139:19] According to Plaintiff, her feelings of depression began in 1991 when she “started being harassed by [coworker] Alex [Jimenez].” [Plf. Depo., 138:10-23] Plaintiff also testified that she experienced panic attacks due to the alleged conduct from the mid-to-late 1990s through the present. [Plf. Depo., 168:3-170:6, 170:20-171:2, 172:15-24] And as another example, Plaintiff claims to have experienced headaches every year from the late 1990s through the end of her employment. [Plf. Depo., 184:24-185:11, 185:25-186:5]

As mentioned, Plaintiff testified that she experienced hair loss due to the alleged conduct of Defendants. [Plf. Depo., 178:7-10] Plaintiff further testified that she obtained treatment for her hair loss from Dr. Maritza Alvarado at Kaiser Permanentee. [Plf. Depo., 180:18-181:15] However, Plaintiff failed to identify Dr. Alvarado in written discovery responses prior to her deposition. Id.; see Plaintiff’s Response, First Supplemental Response, Second Supplemental Response, and Third Supplemental Response to Defendant’s Form Interrogatories – General, No. 6.4, attached as Ex. D, E, F, G, and H to Yu Decl.]

Plaintiff also testified that she experienced sleep issues due to the alleged conduct of Defendants. [Plf. Depo., 191:6-192:22] Plaintiff treated with a medical provider on ten occasions in connection with her sleep issues, and she received medication from that provider. [Plf. Depo., 164:13-166:16] Plaintiff, however, failed to identify the provider in written discovery responses prior to her deposition. [Id.; Yu Decl., Ex. D, E, F, G, and H]

Also, one month after the first volume of Plaintiff’s deposition, Defendant took the second volume, and Plaintiff backtracked on her prior testimony that she had never sued anyone other than Defendants, and disclosed for the first time that she had, in fact, filed a lawsuit against a grocery store during the year prior, i.e., 2022. [Plf Depo., 578:8-582:14] Plaintiff testified that she slipped and fell while at the grocery store and suffered injuries as a result. [Id.] She testified that she treated for the injuries. [Id.]

Given the foregoing, Defendant has demonstrated a legitimate and countervailing interest served by disclosure of a more limited time frame of Plaintiff’s medical records. Given Plaintiff’s failure to disclose certain information in discovery responses, which came to light during her deposition, Defendant is entitled to discover medical records without limitation as to medical condition, which also date back to 1991, when Plaintiff claims her feelings of depression began when she worked for Defendant.

Because claims for injuries would be time-barred before that period, Defendant need not discover Plaintiff’s medical information prior to 1991. Defendant has an interest in tracing back Plaintiff’s injuries which are not time-barred to sources other than Defendant—such as her grocery store slip and fall. If Defendant can trace Plaintiff’s injuries to Defendant’s conduct which falls outside the statute of limitations, then Defendant likely will not be able to attribute the injuries to other sources prior to 1991. On the other hand, if Defendant can attribute some or all of Plaintiff’s injuries to factors which cannot be attributed to Defendant--—such as hair loss due to hormonal imbalance—then a reasonable period to trace this would be back to 1991.

Plaintiff does not identify feasible alternative that serve the same interests or protective measures that would diminish her loss of privacy.

As such, the motion to quash is GRANTED IN PART and DENIED IN PART. the Court will permit Defendant to seek production of Plaintiff’s medical records back to 1991, without restriction as to medical conditions for which Plaintiff has received treatment.

Given the partial success and partial failure, both parties’ requests for sanctions are 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.