Judge: Gregory Keosian, Case: 19STCV02088, Date: 2022-08-22 Tentative Ruling

Case Number: 19STCV02088    Hearing Date: August 22, 2022    Dept: 61

Plaintiff Kelly Doe’s Motion to Quash Defendants The Accelerated Schools and Jonathan Williams’ Subpoena for Production of Kaiser Records is GRANTED. Sanctions are awarded against Defendants’ counsel in the amount of $2,000.

I.                MOTION TO QUASH DEPOSITION SUBPOENA

“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.” (Code Civ. Proc. § 1987.1, subd. (a).) A party may bring a motion under this section. (Code Civ. Proc. § 1987.1, subd. (b)(1).)

Plaintiff moves to quash a deposition subpoena for production of business records issued by Defendant on June 7, 2022, to the custodian of records for Kaiser Permanente Central ROI Unit, seeking medical records from Plaintiff’s treatment Dr. Amanda Mazza and Dr. Alma Adelina Lopez, and all of Plaintiff’s billing records from 2014 to the present. (Motion Exh. 3.) Plaintiff contends that this subpoena is materially identical to other subpoenas for Plaintiff’s medical records which this court ruled were overbroad on October 8, 2019, and February 24, 2021. Plaintiff contends that the subpoenas are untimely because they were served on June 7, 2022, with a date of production and deposition scheduled for July 8, 2022, after the 30-day discovery cutoff, based on this case’s original trial date of July 26, 2022. (Gallagher Decl. ¶ 7; see 2024.020, subd. (a) [right to complete discovery on or before 30^th day before initial date set for trial].) Plaintiff further contends that Defendants have coerced a Kaiser employee into sending them medical records, even those foreclosed by this court’s prior orders. (Gallagher Decl. ¶ 9.)

Defendant in opposition contends that the subpoena was prompted by Plaintiff’s June 6, 2022 expert witness list, designating Drs. Mazza and Adelina Lopez as non-retained expert witnesses that she intended to call at trial. (Pizarro Decl. ¶ 2.) Defendant contends that, following this court’s order of February 3, 2020, denying Plaintiff’s motion to quash a more narrowly tailored subpoena directed to specific medical issues, Kaiser Permanente indicated that it could not narrow its document production to particular injuries. (Pizarro Decl. ¶¶ 3–4, Exh. 10.)

Defendant points to another deposition subpoena, served on June 10, 2022, this one directed specifically to the personal appearance of Dr. Mazza on June 28, 2022, along with associated medical, billing, and correspondence records. (Pizarro Decl. Exh. 2.) This deposition was rescheduled on June 17, 2022, to June 24, per Dr. Mazza’s unavailability, and a new notice of deposition and subpoena were served, and email notice was given to Plaintiff. (Pizarro Decl. Exhs. 3–6.)

Defendants acknowledge receiving Plaintiff’s medical records from Kaiser on June 23, 2022, the day before the deposition of Mazza took place. The email that Defendants present indicates that the production was pursuant to the deposition subpoena directed particularly to Dr. Mazza’s personal appearance pursuant to a request by Plaintiff’s counsel. (Pizarro Decl. Exh. 7.) Defendants claims that their counsel reviewed the records, redacted irrelevant matters, identified pages to be used to cross-examine Dr. Mazza, and presented the identified pages to their expert witness. (Pizarro Decl. ¶ 8.) The deposition of Dr. Mazza occurred on June 24, 2022. (Pizarro Decl. ¶ 9.) Defendants argue that the deposition occurred consistent with the restrictions placed on similar expert depositions permitted by the court in granting Defendants’ ex parte application to compel depositions of Plaintiff’s therapists on June 29, 2022. (Pizarro Decl. ¶ 10.)

Defendant also argues that this motion is untimely, as it is set to be heard on August 22, 2022, after the original July 26 trial date, and after all applicable cutoffs, which have not been extended with the new October 4, 2022 trial date. (Opposition at p. 7.) Defendants also argue that Plaintiff’s privacy may be adequately protected by a protective order limiting the medical records that can be used to cross-examine Plaintiff’s experts to those conditions put at issue by Plaintiff. (Opposition at p. 4.)

This motion is being heard after the discovery cut-off date ordinarily applicable to such motions. A motion regarding discovery must be heard on or before the 15^th day” before the date initially set for the trial of the action, and a motion regarding expert discovery must be heard on or before the 10^th day before same. (Code Civ. Proc. §§ 2024.020; 2024.030.) However, a motion may be heard later than this date when leave is granted to hear the motion, based on the court’s analysis of the necessity and reasons for the discovery, the diligence in bringing the motion, the likelihood that hearing the motion will impede the progression of the case or cause prejudice to the other parties, and the length of time that has elapsed since the prior trial date. (Code Civ. Proc. § 2024.050, subd. (b).)

Here, there is little reason not to hear the motion. The motion seeks no new discovery. It was prompted by a recent subpoena seeking medical and billing records similar in scope to prior subpoenas seeking similar records, already found by this court to be overbroad. The motion was brought within a reasonable time of the subpoena complained of, and hearing the motion is unikely to prejudice any party to this action, or to impede any party’s preparation for trial now scheduled for October of this year. It is therefore appropriate to reopen discovery for the limited purpose of hearing the present motion.

Good cause supports Plaintiff’s motion. The subpoena at issue here is materially identical to the subpoenas that this court previously declined to enforce, which sought Plaintiff’s medical and billing records without limitation in substantive scope, save for a temporal limitation from 2014 onward. Here the subpoena is limited to treatment records for two doctors, but remains unlimited by subject, and is not even limited to those two doctors with respect to Plaintiff’s billing records. (Motion Exh. 3.) Although Defendant claims that Kaiser is unable to limit its production by subject matter or injury, Defendant has been aware of this limitation since June 2020. (Pizarro Decl. Exh. 10.) This limitation does not explain Defendant’s unilateral late-game promulgation of a subpoena that this court twice ruled overbroad in scope.

Defendant finally argues that this court may preserve Plaintiff’s privacy by implementing a protective order that allows Defendants to review Plaintiff’s medical records in full, but limits what can be used upon cross-examination. (Motion at p. 4.) Such an order would not comport with applicable authorities, which protect against disclosure of information, not merely its admission at trial (Britt v. Superior Court (1978) 20 Cal.3d 844, 864), and would vitiate applicable privileges by effecting a waiver broader than that permitted by law. (Evid. Code §§ 999 [physician-patient privilege], 1016 [psychotherapist-patient privilege].) Defendant’s proposed protective order is ill-defined and unjustified.

The motion to quash is therefore GRANTED.

II.   SANCTIONS

“[T]he court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2, subd. (a).)

Plaintiff here seeks $2,000.00 in sanctions against Defendants’ counsel, representing five hours of attorney work at $400 pe hour. (Gallagher Decl. ¶¶ 14–15.) Sanctions are awarded against Defendants’ counsel in the amount of $2,000.