Judge: Daniel M. Crowley, Case: BC724203, Date: 2022-10-12 Tentative Ruling

Case Number: BC724203    Hearing Date: October 12, 2022    Dept: 28

Plaintiff Megan Reese’s Motion for Protective Order and to Quash Deposition Subpoena

Having considered the moving, opposing and replying papers, the Court rules as follows. 

BACKGROUND

On October 4, 2018, Plaintiff Megan Reese (“Plaintiff”) filed this action against Defendants California Back and Pain Specialists, a medical corporation (“CBPS”), Nova Surgical Institute, Inc. (“Nova”) and Vikram Singh, M.D. (“Singh”) for professional negligence. NSI filed its answer on November 21, 2018. 

CBPS and Singh filed their answer on August 30, 2019.  Nova was dismissed, with prejudice, on May 23, 2022, pursuant to Plaintiff’s request.

On September 13, 2022, Plaintiff filed a Motion for Protective Order and to Quash Deposition Subpoena to be heard on October 12, 2022. On September 28, 2022, Defendants filed an opposition. On October 5, 2022, Plaintiff filed a reply.

Trial is currently set for January 19, 2023.

PARTY’S REQUESTS

Plaintiff requests the Court quash the subpoena issued by Singh for Plaintiff’s records from Seber Bulger LLP and James West Law, APC (“Deponents”).

Defendants request the Court deny the motion.

LEGAL STANDARD

Code of Civil Procedure §1987.1: (a) If a subpoena requires the attendance of a witness or the production of books, documents, 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. (b) The following persons may make a motion pursuant to subdivision (a): (1) A party. (2) A witness. (3) A consumer described in Section 1985.3. (4) An employee described in Section 1985.6. (5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights.

Code of Civil Procedure § 1985.3(b) outlines that a subpoena for production of personal records must be served on the consumer whose records are sought; it must be served at least five days prior to service upon the custodian of records. This subpoena must be accompanied by a notice indicating records sought, how to object, and that an attorney should be consulted, although this may be included in the Notice of Deposition served on consumer. CCP § 1985.3(e). Section (g) further clarifies: “No witness or deposition officer shall be required to produce personal records after receipt of notice that the motion [to quash] has been brought by a consumer, or after receipt of a written objection from a nonparty consumer, except upon order of the court in which the action is pending or by agreement of the parties, witnesses, and consumers affected.”

As a general rule, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. § 2017.010; Schnabel v. Superior Court. (1993) 5 Cal.4th 704, 711.) When the information sought to be discovered impacts a person’s constitutional right to privacy, limited protections come into play for that person. (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999.) The protections cover both a person’s personal and financial matters. (Id.) The court must balance competing rights — the right of a litigant to discover relevant facts and the right of an individual to maintain reasonable privacy — in determining whether the information is discoverable. (Id.) For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

DISCUSSION

Plaintiff’s complaint is for medical malpractice that occurred on or around July 11, 2017.

On August 11, 2022, Singh served a deposition subpoena for records on Deponents, requesting “the complete file records pertaining to an auto accident claim for [Plaintiff], which occurred on November 15, 2016...” There are no limitations as to time. Deponents are Plaintiff’s former and current counsel. Plaintiff claims that the subpoena seeks records that seek out irrelevant information, information protected by the physician-patient privilege and attorney-client privilege.

Defendants allege that Plaintiff’s alleged injuries arise from the November 15, 2016, incident, which was resolved via settlement. Defendants state that Plaintiff is now attempting to preclude discovery into medical and mental health records obtain by counsel, as well as release of claims.

As to any and all medical or mental health records, Defendants can obtain those records by serving subpoenas on Plaintiff’s medical providers. Defendants reference a previous motion to quash relating to Plaintiff’s psychotherapy records, indicating that Defendants have already served subpoenas for such records. Defendants specifically state that it is “essential for Defendants to assess what medical records were obtained by [Plaintiff’s counsel] in the underlying car accident to determine to what extent Plaintiff’s current injury claims overlap with her complaints and claims arising from the car accident;” in the Court’s opinion, this comes dangerously close to seeking out information that would be protected by Attorney Work Product privilege. Defendants cannot reap the benefits of Plaintiff’s counsel hard work, especially when the requested records are available via other means, as articulated above. Finally, if Defendants worry that Plaintiff has not identified all treating providers, this is an inappropriate way to obtain the information. Defendants should serve additional discovery or make a Motion to Compel Further Discovery.

As to the other requested documents—those that are not barred by attorney-client privilege, or the attorney work product privilege--should be easily obtainable via Request for Production of Documents. For example, the request for settlement documents, if relevant, would be subject to production. Communications between Plaintiff’s attorney and third parties is irrelevant to Defendants understanding of whether “Plaintiff has already received compensation and injuries claimed in the instant matter.” Given that Defendants have not stated that Defendants have attempted to obtain this information via less intrusive means, such as request for production, the Court does not find that this information can only be obtained via this method. The Court grants the motion.

CONCLUSION

Plaintiff Megan Reese’s Motion for Protective Order and to Quash Deposition Subpoena is GRANTED. The Subpoena is deemed QUASHED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.