Judge Jill Feeney, Case 19STCV18842 2023-03-28 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Plaintiff moves for production of the “raw data” relating to the psychological examination of Plaintiff conducted by Defendant’s expert Dr. Manual Saint Martin, a psychiatrist and neurologist. Specifically, Plaintiff requests production of (1) the tests administered to Plaintiff; (2) the answers provided by Plaintiff; (3) interpretive materials for the tests; and (4) scoring sheets. Plaintiff is requesting the production of these materials to Plaintiff’s attorney.

Defendant in turn opposes the motion and, in the alternative, requests a protective order (1) allowing production of the raw data, written test questions, and answers under confidential “seal” to an expert retained by Plaintiff who is licensed in the same fields as Dr. Saint Martin, or, who is licensed to administer psychological tests, and is under the same ethical obligations; and (2) ordering that the records produced may only be used within the confines of the lawsuit and will be destroyed upon the completion of this lawsuit, with proof of destruction verified via declaration under the penalty of perjury.

At the initial hearing on this matter, the Court made it clear that it would order the production of the materials to Plaintiff’s psychological expert pursuant to a protective order and that if Plaintiff needed to reopen discovery to designate or otherwise retain such an expert, the Court would permit leave to do so. Plaintiff indicated that this was insufficient and that Plaintiff wanted the materials to be provided to Plaintiff’s attorney.

At the initial hearing on this matter, Plaintiff made the claim that Plaintiff attorney’s need for these materials was heightened by the fact that Dr. Manual Saint Martin did not audio record Plaintiff’s entire examination as required. Therefore the Court continued the hearing to allow additional briefing on this topic.

Plaintiff argues that it is mandatory that mental examinations be recorded in full under Code Civ. Proc., section 2032.530(a). However, the code section states that the “examiner and examinee shall have the right to record a mental examination by audio technology.” The statute merely allows audio recording and does not impose a mandatory duty on either party to record the examination at all.

Here, Plaintiff could have recorded the examination and did not do so. Moreover, Plaintiff does not contend that Plaintiff and Defendant had an agreement that Dr. Saint Marten would record the entire examination nor was the issue of the audio recording of the exam ever brought before the Court. Apparently, Dr. Saint Marten recorded the interview portion of the examination, but not the testing portion, as is his custom, and Defendant provided that recording directly to Plaintiff’s attorney. Therefore, the absence of a complete audio recording of the examination does not impact the analysis here.

Per Code of Civil Procedure section 2032.610, a party that submitted to a mental examination has the option to demand that the party that requested the examination produce “[a] copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.” (Code Civ. Proc., § 2032.610, subd. (a).)

In Carpenter v. Superior Court(2006) 141 Cal.App.4th 249, the court determined that a trial court has discretion to require an examiner to produce the raw data from psychological testing, but not the obligation to do so. The court ruled that a trial court should consider the ethical issues relating to the production of the raw data in determining whether to order its production. (Carpenter v. Superior Court¿(2006) 141 Cal.App.4th 249, 273.)

California Code of Regulations, Title 16, Section 1396.3 provides: “[a] psychologist shall not reproduce or describe in public or in publications subject to general public distribution any psychological tests or other assessment devices, the value of which depends in whole or in part on the naivete of the subject, in ways that might invalidate the techniques; and shall limit access to such tests or devices to persons with professional interests who will safeguard their use.” (Cal. Code Regs., Title 16, § 1396.3.) Thus, disclosure of the raw data to Plaintiff’s attorney presents an ethical and licensure issue for Dr. Saint Martin as production of the psychological testing materials would destroy the utility of the tests. (Saint Martin Declaration at Paragraph 6.)

If possible, the Court must interpret California Code of Regulations, Title 16, Section 1396.3 and Code of Civil Procedure section 2032.610 to give effect to both. (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist.¿(1989) 49 Cal.3d 408, 419-420.)

Plaintiff contends that the instant case is different than the circumstances in Carpenter and Roe because Dr. Saint Martin has been designated as a retained expert who will testify at trial. Plaintiff cites to Roe 234 Cal.App.4th at 148 and footnote 7. In short, Roe states that other rights to discovery may apply if the expert who performed a mental examination is retained as an expert to testify at trial, but does not address how any such rights would change the analysis.

It seems odd that one could make an end run around the strictures of Section 2032.610 given that many, if not all, experts who perform mental examinations testify at trial. Indeed Section 2032.610 anticipates that the examiner will testify at trial. (See Code of Civil Procedure Section 2032.610(c) which references “the taking of the examiner’s testimony”.)

Be that as it may, even assuming for argument’s sake that there are no restrictions on requesting “raw data” via deposition notice, the Court must still try to harmonize all statutes and regulations as discussed above. The best way to do that is to order the production of these materials to Plaintiff’s expert, but not to Plaintiff’s attorney. Plaintiff has not established good cause as to why Plaintiff’s attorney himself requires direct access to these materials in order to adequately cross-examine or otherwise respond to the testimony of Dr. Saint Martin.

Now turning to the issue of waiver raised by Plaintiff during the initial hearing on this matter. Dr. Saint Martin appeared for deposition on October 3, 2022 pursuant to an Amended Notice of Deposition and Request for Production of Documents that was served on September 26, 2022. (Plaintiff’s Motion, Exhibit 2.) There is no debate that an objection to the production of the “raw data” was raised during the actual deposition. The Court finds that the amended deposition notice did not make it clear that Plaintiff was requesting testing materials, answers, etc. There was no explicit request for (1) copies of the tests administered to Plaintiff; (2) the answers provided by Plaintiff; (3) interpretive materials for the tests; and (4) scoring sheets. Rather, there were broad requests for the file and all documents that establish the basis for Dr. Saint Martin’s opinions. It was not until the deposition itself that the breadth of Plaintiff’s actual requests was articulated. Therefore, under these facts, there was no waiver.