Judge: Gregory Keosian, Case: 22STCV28877, Date: 2023-08-14 Tentative Ruling

Case Number: 22STCV28877    Hearing Date: August 14, 2023    Dept: 61

Plaintiff Seung Hyun Lee’s Motion to Quash Subpoena to Tina Alexandrian, Psy.D., and Motion for Protective Order is GRANTED. Defendant’s subpoena to Dr. Alexandrian is quashed, and Plaintiff need not respond to discovery concerning her communications with any treating psychotherapist.

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).)

A party may seek a protective order directing that certain discovery requests need not be answered, “for good cause shown.” (Code Civ. Proc. §§ 2030.090, subd. (b)(1); 2031.060, subd. (b)(1); 2033.080, subd. (b)(1).)

Plaintiff Seung Hyun Lee (Plaintiff) seeks an order quashing a subpoena issued to Tina Alexandrian, Psy.D., on June 7, 2023, as well as a protective order directed against various requests for production and admission, as well as accompanying form interrogatories, seeking either Plaintiff’s medical or psychological health records as well as admissions concerning communications made to physicians or psychotherapists concerning the underlying allegations in this case. (Holmes Decl. ¶¶ 4, 14.)[1] Plaintiff argues that the subpoena and the discovery requests seek privileged and private communications without cause. (Motion at pp. 6–10.) Plaintiff argues that the present action is a wage-and-hour action in which no damages for emotional distress are sought. (Motion at pp. 10–13.)

Defendant Burger Motorsports, Inc. (Defendant) argues that as to the subpoena, Plaintiff can claim no privilege or privacy as to communications directed to Tina Alexandrian, Psy.D., as Alexandrian only examined Plaintiff as a qualified medical evaluator in a concurrent worker’s compensation claim that Plaintiff advances for stress-related injuries she alleges arose from working for Defendant. (Opposition at pp. 9–10.) Thus Defendant argues that Alexandrian was retained specifically to report on Plantiff’s condition to third parties, such as the Worker’s Compensation Appeals Board (WCAB) and Defendant’s carrier. (Opposition at pp. 13–14.) Defendant presents a redacted version of the report prepared by Alexandrian in the worker’s compensation action, which contains representations made by Plaintiff to Alexandrian that Defendant claims are inconsistent with Plaintiff’s allegations in the present action, such as the amount of hours she was made to work. (Opposition at pp. 5–6; Harwin Decl. Exh. 1.) Thus Defendant claims the records sought are relevant to Plaintiff’s credibility. (Opposition at pp. 10–11.) Defendant also argues that Plaintiff has put her mental condition at issue by alleging in her Complaint that Defendant “psychologically and emotionally intimidated Plaintiff to forgo her rights under the California Labor Code,” and further that she “took medical leave due to psychological injuries sustained while performing duties for Defendant.” (Opposition at p. 13; Complaint ¶¶ 9, 20.)

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].)

A patient “has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist.” (Evid. Code § 1014.) A confidential communication between a Plaintiff and a psychotherapist is defined as:

information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship.

(Evid. Code, § 1012.)

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.)

Defendant here relies upon the case of Batts v. County of Santa Clara (N.D. Cal. 2010) 2010 WL 3749436, in which the court applied the “federal common law of privilege” to determine that a psychotherapist’s reports prepared and rendered in the course of a prior worker’s compensation action were not privileged, as plaintiff had no “legitimate expectation as to the confidentiality of her communications with [the examining doctor.” (Id. at p. *3.) The doctor’s examination “was ordered, at the opposing party’s request, by the Worker’s Compensation Appeals Board,” and the doctor informed the plaintiff about the “non-confidential nature of his evaluation.” (Ibid.) The court also reasoned that the plaintiff had not shown that the evaluation occurred “in the course of diagnosis or treatment,” such that the privilege would apply. (Id. at p. *4.) The plaintiff had not sought treatment from the doctor, and there was “no indication that she had a prior psychotherapist-patient relationship with him.” (Ibid.) And when the plaintiff raised objections based on privacy, the court held that her right to privacy was outweighed by the relevance of the records to the case, in which the plaintiff had “placed her mental condition squarely at issue” by claiming “severe emotional distress and psychological injury as a result of defendants’ alleged conduct.” (Id. at p. *4, *1.)

Plaintiff in reply notes the case San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4^th 1083, disapproved on other grounds Williams v. Superior Court (2017) 3 Cal.5^th 531, in which the court held that an employee witness in a personal injury action had not waived the psychotherapist-patient privilege as to medical records disclosed in a prior worker’s compensation action. “[A]ny waiver of the psychotherapist-patient privilege which has occurred in one proceeding must be carefully limited with respect to its later use in entirely unrelated proceedings.” (San Diego Trolley, supra, 87 Cal.App.4^th at p. 1093.) The court further stated that there was no evidence that any privileged communications had been “disclosed in any testimonial setting,” such as in “formal discovery, trial, or hearing.” (Id. at p. 1094.) Moreover, the court stated that it would not be reasonable “to conclude Cooper understood any confidential communications with her psychiatrist which were disclosed in the workers' compensation proceedings would be available to anyone other than those considering her claims.” (Ibid.)

Plaintiff has effected no waiver of the privilege by filing the present lawsuit. “[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.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 859.) A plaintiff may waive the privilege as to prior medical or mental health records in an action for recovery on personal injury or for emotional distress. (Id. at p. 863–864.) But this action is neither one for personal injury or for recovery of damages on emotional distress. Rather, the Complaint seeks recovery of wages, penalties, and financial losses resulting from particular Labor Code violations. (Complaint at pp. 10–11.) The allegation that Plaintiff took medical leave as a result of psychological injuries sustained while at work, which caused her thereafter not to return, does not constitute a waiver of any privilege when Plaintiff seeks no recovery in this action for the psychological injuries allegedly sustained or for the termination of employment they allegedly precipitated. Accordingly, if Defendant is to justify the discovery sought here, it must be by virtue of a waiver or disclosure that occurred in Plaintiff’s worker’s compensation proceedings.

Whatever disclosures were made in those prior proceedings, no waiver of privilege occurred with respect to medical records created, or communications made, in the course of Plaintiff’s treatment, even if Dr. Alexandrian relied upon these records in preparing her report. This was the the holding of San Diego Trolley, in which the court held against waiver as to communications with Plaintiff’s treating psychiatrist, as the plaintiff there had not indicated any understanding that disclosures within a worker’s compensation proceeding “would be available to anyone other than those considering her claims.” (San Diego Trolley, supra, 87 Cal.App.5^th at p. 1094.) This was also the import of the Batts decision, upon which Defendant relies, for although the court there ruled in favor of the disclosure of the report prepared for the review of the WCAB, the court also held that no waiver had occurred with respect to the plaintiff’s medical records on which the evaluating physician had relied. (Batts, supra, 2010 WL 3749436, at p. *5.)  For this reason, Defendant’s discovery requests, both in the subpoena and in those directly addressed to Plaintiff, intrude upon privileged material to the extent that they seek Plaintiff’s underlying medical records or communications made with providers other than Dr. Alexandrian.

Defendant’s strongest argument for disclosure of any materials is thus limited to a narrow category of documents: to communications that Plaintiff made to Dr. Alexandrian in the course of their interview, and to Dr. Alexandrian’s report, created as a result of this interview. This much is supported by the holding in Batts, for the redacted report here, like the Batts report, indicates that Plaintiff was informed of the limited confidentiality to be afforded in their interview, which would ultimately be disclosed to WCAB in Alexandrian’s report. (Batts, supra, 2010 WL 3749436, at p. *3; Harwin Decl. Exh. 1.)

But even this argument is doubtful. The court in Batts applied federal law to a case in which the plaintiff sought emotional distress damages and thereby “indisputably . . . put her mental condition at issue.” (Batts, supra, 2010 WL 3749436, at p. *1.) Such a circumstance, not at issue here, would likely require waiver of the privilege under patient-litigant exception set out in Evidence Code § 1016. Moreover, the report itself prepared by Alexandrian was denoted as being “highly confidential” in itself, with the admonition that “the contents should not be revealed to anyone except those professionals who are directly involved in the processing of the claim.” (Harwin Decl. Exh. 1.) Plaintiff thus argues that the disclosure of the report in the limited context of the worker’s compensation proceeding fell within the privilege, as “confidential” communications include those “transmitted . . . by a means which, so far as the patient is aware, discloses the information to no third persons other than . . . those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted.” (Evid. Code § 1012.) Defendant argues that examinations such as Dr. Alexandrian made in the course of the worker’s compensation proceeding are akin to those judicially ordered examinations which are exempted from the privilege under Evidence Code § 1017 — yet the argument is one by analogy, and no statute specifically exempts from the privilege the kind of report at issue here.

Ultimately, it is unnecessary for the court to determine the applicability of the privilege here, as the report of Dr. Alexandrian and the communications between her and Plaintiff are protected by Plaintiff’s constitutional right to privacy, which no countervailing interest outweighs.

In determining whether disclosure is required [against a privacy objection], the court must indulge in a ‘careful balancing’ of the right of a civil litigant to discover relevant facts, on the one hand, and the right of the third parties to maintain reasonable privacy regarding their sensitive personal affairs, on the other. The court must consider the purpose of the information sought, the effect that disclosure will have on the affected persons and parties, the nature of the objections urged by the party resisting disclosure and availability of alternative, less intrusive means for obtaining the requested information. Based on an application of these factors, the more sensitive the nature of the personal information that is sought to be discovered, the more substantial the showing of the need for the discovery that will be required before disclosure will be permitted.

(Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1004, internal citations omitted.)

Plaintiff’s right to privacy in her medical records is substantial. Although the report and interview were conducted, prepared, and disclosed to participants in a worker’s compensation proceeding, Defendant was not party to that proceeding and in the absence of discovery lacks access to the relevant documents, save, so far as is evident from the moving papers, a redacted copy of Dr. Alexandrian’s report. (Holmes Decl. Exh. D.) This case is not one in which Plaintiff’s mental state is at issue, and Defendant does not seek the documents to adduce Plaintiff’s mental state or damages, but rather to impeach Plaintiff on her claims that Defendant engaged in unlawful employment policies. Yet Defendant, as Plaintiff’s employer, does not lack means for contesting Plaintiff’s claims related to its own policies. Defendant’s need for the records is little in comparison to the significant invasion of privacy that its discovery entails.

The motions are therefore GRANTED. Defendant’s subpoena to Dr. Alexandrian is quashed, and Plaintiff need not respond to discovery concerning her communications with any treating psychotherapist.[2]