Judge Jill Feeney, Case 20STCV36767 2023-03-13 Tentative Ruling

Plaintiff moves to quash Defendant’s subpoena issued to Dr. Nojan Toomari on the grounds that it is overbroad and demands production of Plaintiff’s entire medical history. Plaintiff argues that the subpoena is an attempt to intrude upon Plaintiff’s privacy and is an illegal fishing expedition. Plaintiff also moves for a protective order to prevent Defendant from issuing subpoenas in the future.

Defendant argues that Plaintiff failed to meet and confer prior to filing the instant motion. Defendant also argues that Plaintiff waived her right to privacy concerning her physical or psychiatric condition by placing those conditions at issue. Additionally, Plaintiff’s motion for a protective order should be denied because Dr. Tommari treated Plaintiff and addressed the injuries she complains of. Defendant argues a protective order prohibiting him from obtaining any of Plaintiff’s medical records must be denied. Defendant also seeks sanctions, alleging Plaintiff’s motion is a misuse of discovery.

Plaintiff argues that she was not required to meet and confer with Defendant because Defendant cited Code Civ. Proc., section 1987.1, which pertains to subpoenas issued to parties, not non-parties. Plaintiff also argues that Dr. Toomari’s records have no bearing on the thyroid surgery Defendant performed. Defendant has not shown how Dr. Toomari’s records are relevant to the matter at hand.

Under Code of Civil Procedure section 1987.1, courts 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.” Additionally, courts “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.” (Cal. Code Civ. Proc., § 1987.1, subd. (a).)

When evaluating invasions of the right to privacy in discovery, the party asserting a privacy right must establish “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 26 Cal.Rptr.2d 834, 865.) A responding party may prevail by negating any of these three elements “or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.” (Id.) “[T]he 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, 533.) A court then balances these competing considerations. (Id.) As guidance in balancing these competing considerations, it should be noted, “[o]nly obvious invasions of interest fundamental to personal autonomy must be supported by a compelling interest.” (Id.) When lesser interests are at stake, “the strength of the countervailing interest sufficient to warrant disclosure of private information var[ies] according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Id.)

Under California Code of Civil Procedure section 1987.2, courts have the discretion to award the amount of “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.”

Under Code of Civil Procedure section 2017.020 courts “shall limit the scope of discovery if” the court “determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” A “court may make this determination pursuant to a motion for protective order by a party or other affected person.” (Id.)

The burden of proof is generally on the party seeking the protective order to show¿good cause¿for whatever order is sought.¿¿Fairmont Ins. Co. v. Superior Court¿(2000) 22 Cal.4th 245, 255.¿¿The concept of good cause requires a showing of specific facts demonstrating undue burden, etc., and justifying the relief sought.¿¿See¿Goodman v. Citizens Life & Casualty Ins. Co.¿(1967) 253 Cal.App.3d 807, 819.¿¿The facts are normally established in declarations by counsel for the party seeking the protective order.¿¿The declaration must contain competent evidence - i.e., first-hand knowledge of the facts.¿¿Hearsay allegations¿on information and belief¿and conclusory statements that particular relief is¿necessary¿are not enough.¿¿Id.

The granting or denial of relief lies within the sound discretion of the judge. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 379-81 (overruled on other grounds pertaining to attorney work product privilege).) The concept of good cause requires a showing of specific facts demonstrating undue burden, unwarranted embarrassment, oppression, or unwarranted annoyance, and justifying the relief sought. (See Goodman v. Citizens Life & Casualty Ins. Co. (1967) 253 Cal.App.3d 807, 819.) Unlike other discovery orders, a protective order may be granted simply on the court’s determination that justice so requires. (Greyhound Corp., supra, 56 Cal.2d at pp. 379-81.)

A court shall impose sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Pro. section 2030.090, subd. (d).)

There is no requirement that a party meet and confer before filing a motion to quash a subpoena served on a non-party. (See Code Civ. Proc. § 1985.3 [requiring an attempt at informal resolution only before the party propounding the subpoena moves to enforce the subpoena over objections].) Moreover, a discovery motion should not be denied automatically based upon the reason that the moving parties failed to meet and confer in good faith. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 434.)

Plaintiff has a legally protected privacy interest in her medical records. (See Porten v. University of San Francisco (1976) 64 Cal. App. 3d 825, 832; see, e.g., Heda v. Superior Court (1990) 225 Cal. App. 3d 525, 528.) However, “medical…records relating to the claimed injuries are” generally “discoverable.” (Haning, et al., Cal. Prac. Guide Pers. Inj. (Rutter Group 2021) § 6:36.1-(citing Ev.C. § 996, 1016; Britt v. Sup. Ct. (San Diego Unified Port Dist.) (1978) 20 C3d 844, 862-864, 143 CR 695, 706-708.) Any matter that is relevant to the subject matter and not privileged is discoverable if it is itself admissible or appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., section 2017.010.)

“Any and all medical records, documents, medical reports, including doctors’ entries, nurses’ chart, progress reports, physical therapy records, pathology reports, x-ray reports, lab reports, case history, emergency room records, admitting sheets, special tests, inpatient and outpatient records, and any sign-in sheets pertaining to the care and treatment, diagnosis, prognosis, condition, discharge…all billings, statements of accounts, writings, and documents reflecting…any payments made or received, any and all credits, adjustments, write-offs, reconciliations, contract price payments or reduction, payments by any health insurance entity, personal payments by or to said patient from any source regarding the account of this patient to or from any person and/or entity, including but not limited to any records/documents that may be stored digitally and/or electronically including all patient orders and patient results and specifically for any discharge orders, all detailed screen shots within any computer system, in reference to Djamileh Mahjobi.”

Defendant does have a discovery interest in Plaintiff’s medical records because Plaintiff has placed her mental and physical condition by seeking damages for physical and emotional injuries in her First Amended Complaint (“FAC”). However, the medical records Defendant seeks to produce must be related to the injuries she is claiming. Plaintiff’s FAC states that she is claiming injuries to her hormonal glands, intrusions to her chest cavity, and mental and emotional injuries. (FAC, ¶¶6, 10, 11, 19.) Defendant’s subpoena encompasses medical records for any and all records regardless of date and subject matter. This is too broad. Even if Dr. Toomari did provide treatment related to Plaintiff’s injuries arising from Defendant’s alleged malpractice, there is no justification for demanding Plaintiff’s entire medical record regardless of date.

The Court notes that there are six more motions to quash deposition subpoenas in this matter concerning substantially similar subpoenas issued to other medical providers. Because the subpoena issued to Dr. Toomari was overbroad and Defendant has already issued a significant number of other similar subpoenas, the Court finds that there is good cause to grant Plaintiff’s motion for a protective order. Defendant must limit his subpoenas to records related to Plaintiff’s claimed injuries and records from after the date Plaintiff received the surgery that is the subject of this action. The protective order parameters only apply to physicians who treated Plaintiff after the surgery.

With respect to sanctions for the motion to quash subpoena, California Code of Civil Procedure section 1987.2 provides that courts have the discretion to award the amount of “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.” Here, the Court declines to find that the motion was made or opposed without substantial justification.

With respect to the motion for a protective order, sanctions are mandatory against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Pro. section 2030.090, subd. (d).) Here, Plaintiff initially sought a protective order precluding Defendant from issuing any subpoenas for her medical records. However, Defendant does have a legitimate discovery interest in Plaintiff’s medical records related to her claimed injuries. Therefore, the Court finds that Defendant was substantially justified in opposing the motion. The Court declines to award sanctions.