Judge Gregory Keosian, Case Number: 22STCV20594, Date: 2023-11-16 Tentative Ruling

Judge: Gregory Keosian, Case: 22STCV20594, Date: 2023-11-16 Tentative Ruling

Case Number: 22STCV20594 Hearing Date: November 16, 2023 Dept: 61

Plaintiff Michael Richardson’s Motion to Quash Subpoena for Medical Records to Kaiser Permanente is GRANTED in part. The records to be produced are limited to those created in 2017 or after. The records shall first be produced to Plaintiff, for Plaintiff’s review and redaction of records according to direct relevance to the subject matter of this case. Plaintiff shall then produce the redacted records to Defendants with a log identifying what has been removed or redacted. Relevant documents are those that refer to Plaintiff’s obesity, diabetes, hypertension, neuropathy, psychological and emotional distress, humiliation, pain and anguish, headaches, back pain, stomachaches, neck pain, shoulder pain, restless sleep, bowel irregularity, significant weight gain, increase in appetite, fatigue, loss of energy, high blood pressure, diminished interest or pleasure in everyday activities, loss of ability to tend to family needs, lack of interest in sexual activities, feelings of loss and low self-worth, depressed mood, feelings of worthlessness and guilt, diminished ability to concentrate or think, persistent sadness, anxiety, and stress.

No sanctions are awarded.

Plaintiff to give notice.

I. MOTION TO QUASH 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).)

Plaintiff Michael Richardson (Plaintiff) seeks to quash a subpoena issued by Defendants The Regents of the University of California, Jose Torres, Andy Gonzalez, and Ernesto Virgen (Defendants) seeking Plaintiff’s medical records and medical bills from non-party Kaiser Permanente.

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 if such issue has been tendered by . . . the patient.” (Evid. Code § 996, subd. (a).) In the constitutional privacy 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.)

Plaintiff acknowledges that Defendants may seek discovery concerning conditions which Plaintiff has put at issue in this litigation, including his alleged disabilities (obesity, diabetes, hypertension, and neuropathy), and emotional distress suffered as a result of Defendants’ alleged misconduct. (Motion at p. 1.) However, the subpoena issued by Defendant includes no limitations to these subject areas, but seeks all medical records and bills “from 2010 through the present.” (Motion at p. 7–9.)

A review of the parties’ moving papers and meet and confer correspondence demonstrates that there is little actual disagreement about the substantive scope of discovery subject to this subpoena. This is because, as Plaintiff acknowledges, Plaintiff offered and Defendants agreed to condition the subpoena on a “first-look” agreement, whereby the documents sought in the subpoena would first be produced to Plaintiff, for Plaintiff’s redaction of all materials beyond the scope of the present action. (Motion at p. 5; Opposition at pp. 16–17.) The present motion was filed after the parties disagreed concerning the proper time-frame for the subpoena, with Defendants still seeking all records from 2010 onward, and Plaintiff seeking a limitation from 2017 onward. (Motion at p. 5; Torres Decl. ¶ 8.)

Plaintiff has shown good cause for the type of “first-look) order he sought from Defendants, namely, that the subpoena would have no substantive limitation, but would seek only records created in 2017 or later. These records would be first produced, not to Defendants, but to Plaintiff, for Plaintiff’s redaction for relevance. These redacted records would then be produced to Defendants, with a log identifying what has been removed or redacted. Defendants previously agreed to such an arrangement, but with an expansive temporal scope of document production beginning in 2010. But Defendants have not shown good cause as to why medical records from as far back as 2010 ought to be produced. The TAC alleges that Plaintiff’s employment with Defendant began in October 2020. (TAC ¶ 10.)

The documents ultimately produced to Defendants would be cabined to Plaintiff’s alleged disabilities — obesity, diabetes, hypertension, neuropathy — and injuries resulting from Defendants’ alleged misconduct, namely psychological and emotional distress, humiliation, pain and anguish (TAC ¶¶ 16, 92), headaches, back pain, stomachaches, neck pain, shoulder pain, restless sleep, bowel irregularity, significant weight gain, increase in appetite, fatigue, loss of energy, high blood pressure (Torres Decl. Exh. A, Interrogatory No. 212.2), diminished interest or pleasure in everyday activities, loss of ability to tend to family needs, lack of interest in sexual activities, feelings of loss and low self-worth, depressed mood, feelings of worthlessness and guilt, diminished ability to concentrate or think, persistent sadness, anxiety (Torres Decl. Exh. A, Interrogatory No. 212.2) and stress. (Torres Decl. Exh. A, Interrogatory No. 212.7.)

The motion to quash is therefore GRANTED in part, in accordance with the above.

“Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the 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 seeks sanctions in the amount of $4,461.65 against Defendants and their counsel, representing eight hours of attorney work at $550 per hour plus a filing fee of $61.65. (Unanyan Decl. ¶ 9.) Defendants seek $4,343.00 in sanctions for opposing the motion, representing ten hours of attorney work at $302 per hour, plus 3.5 hours of attorney work at $378 per hour. (Torres Decl. ¶ 9.) No sanctions are awarded.