Judge: Gregory Keosian, Case: 21STCV33705, Date: 2023-02-28 Tentative Ruling

Case Number: 21STCV33705    Hearing Date: February 28, 2023    Dept: 61

Plaintiff Lindsey Sterling’s Motion for Protective Order is GRANTED in part. Defendant may seek Plaintiff’s mental health records from 2015 onward, but not Plaintiff’s other medical records.



Although Plaintiff Lindsey Sterling (Plaintiff) styles the present motion one for a protective order, the practical relief requested is more akin to that of a motion to quash a subpoena under Code of Civil Procedure § 1987.1. (Motion at p. 4.)


“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 subpoena issued by Defendant Prada USA (Defendant) to nonparty Kaiser Foundation Hospital (Kaiser), seeking “[a]ll medical and mental health records” of Plaintiff “from January 2015 to present.” (Motion Exh. 1.) Plaintiff argues that the subpoena is overbroad, in that it seeks all medical records within the period without limitation, rather than being limited to only those at issue in this case, which would narrowly concern Plaintiff’s allegations of emotional distress. (Motion at p. 3.)


Defendant in opposition argues that Plaintiff has put her mental health at issue by virtue of her claim for emotional distress and testimony that she sought medical relief from such distress with providers at Kaiser. (Opposition at pp. 6–9.) Defendant argues that the relevance of the discovery to issues in this litigation thus outweighs Plaintiff’s privacy interests. (Ibid.) Moreover, Defendant contends that it has already obtained Plaintiff’s medical records by subpoena — without any mental health records — by a prior subpoena issued to Kaiser in September 2022, to which Plaintiff did not object. (Papac Decl. ¶¶ 5–6, Exh. E.) The present subpoena, issued in November 2022, was promulgated based on Kaiser’s representations that a separate subpoena for Plaintiff’s mental health records would be necessary to obtain them. (Papac Decl. ¶¶ 6–7.)


The California Constitution protects an individual’s right to privacy. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1013.) The right to privacy extends to medical records. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198.) Communications between patients and their physicians or psychotherapists are also protected by statutory privileges. (Evid. Code §§ 994 [physician-patient], 1014 [psychotherapist-patient].)

None of these protections or privileges is absolute. Physician-patient privilege does not exist if the communication sought is “relevant to an issue concerning the condition of the patient in a proceeding to recover damages on account of the conduct of the patient if good cause for disclosure of the communication is shown.” (Evid. Code § 999.) Likewise, no privilege exists for patient-psychotherapist communications if “relevant to an issue concerning the mental or emotional condition of the patient” if such issue has been tendered by the patient. (Evid. Code § 1016, subd. (a).)

In the constitutional context, “[t]he party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.)

“[W]hile the filing of a lawsuit may implicitly bring about a partial waiver of one's constitutional right of associational privacy, the scope of such ‘waiver’ must be narrowly rather than expansively construed, so that plaintiffs will not be unduly deterred from instituting lawsuits by the fear of exposure of their private associational affiliations and activities. Therefore . . . an implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” (Vinson, supra, 43 Cal.3d at p. 842.)

Good cause supports the subpoena. Specifically, the subpoena’s request for Plaintiff’s “mental health records” dating from 2015 onward is relevant to issues related to Plaintiff’s claim for emotional distress damages. Although Plaintiff has a privacy interest in these records, this interest is mitigated by Plaintiff’s claim for distress damages, as well as her discovery responses indicating that she was seeking damages for mental ailments arising from Defendant’s alleged conduct and seeking relief from providers at Kaiser. (Opposition at pp. 3–4.) Plaintiff’s interest in the privacy of these materials is further protected by the limitation in time in the subpoena to records dating from 2015, which is when Plaintiff alleged the hostile work environment began. (Complaint ¶ 29.) Plaintiff may further guard the records at issue by securing a protective order regulating use of the records obtained.

However, the subpoena is overbroad in seeking Plaintiff’s “medical . . . records,” in addition to Plaintiff’s mental health records. Defendant acknowledges that it has already obtained Plaintiff’s medical records related to physical medical issues (Papac. Decl. ¶ 6) and there is little reason to seek duplicative production of the same documents, which are also likely to be less relevant than the documents related to Plaintiff’s mental health.

Accordingly, the motion to quash is GRANTED in part. Defendant may seek Plaintiff’s mental health records from 2015 onward, but not Plaintiff’s other medical records.