Judge Jill Feeney, Case 20STCV41134 2022-09-29 Tentative Ruling

Plaintiff alleges that after the Court quashed and modified Defendant’s previous subpoenas for academic and employment records in March 20022, Defendant served new depositions to Plaintiff’s former colleges and universities for the entirety of her mental and/or counseling records from 2016 to 2018. Plaintiff alleges these new subpoenas violate her constitutional right to privacy and are not discoverable because Plaintiff completed schooling before the subject incident in November 2018 and has not claimed any decline in academic performance.

Plaintiff also claims she attempted to meet and confer on these issues. According to Plaintiff, Plaintiff’s counsel sent a letter to Defendant’s counsel inviting him to meet and confer to limit the overbroad subpoenas or agree to allow Plaintiff to view the documents produced. Defendant’s counsel did not respond to the request until June 22, 2022, one day before the deadline for Plaintiff to file a motion to quash. Defendant’s counsel refused to agree to a first look and refused to limit the subpoena to non-academic matter. Plaintiff’s counsel again asked if Defendant’s counsel would be willing to allow Plaintiff a first look at the documents, limit the subpoenas, or participate in another informal discovery conference. Defendant’s counsel did not respond.

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 CCP section 2023.030, courts “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” Misuses of the discovery process are expounded upon in CCP section 2023.020.

Under CCP section 2023.040, “[a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

Plaintiff requests a court order quashing Defendant’s subpoena of Plaintiffs’ academic records from CalState San Marcos and CalState Los Angeles. Plaintiff alleges that the subpoenas are overbroad because they cover documents that are not discoverable, including Plaintiff’s counseling records for academic purposes.

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.)

In March 2022, the Court quashed Defendant’s subpoena for academic records from CalState San Marcos and CalState Los Angeles. Defendant had not provided sufficient justification for the time periods requested dating back to 2013 and 2015 respectively. In these new subpoenas, Defendant requests “Mental health treatment and/or counseling records, pertaining to Mariana De Leon…from 2016 to 2018.” (Motion, Exhibit 4, 5.)

As before, Plaintiff has put her mental health at issue in this litigation. Though Plaintiff’s privacy interests in her medical records are reduced by Plaintiff putting her respective medical conditions at issue in this action, medical records based on unclaimed injuries are not discoverable without a greater showing being made. (See Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43.) A mental health injury/issue suffered prior to and independent of the subject accident would be an unclaimed injury. Medical records on such injuries are discoverable if “the invasion of privacy is justified because it substantively furthers one or more countervailing interests.” (Hill v. National Collegiate Athletic Assn., 26 Cal.Rptr.2d at p. 865.) For instance, such a countervailing interest may potentially come in the form of showing that the condition is relevant to the issue of proximate causation. (Haning, et al., Cal. Prac. Guide Pers. Inj. (Rutter Group 2021) § 6:36.1-2. (citing Ev.C. § 999 and Slagle v. Sup.Ct. (Maryon) (1989) 211 CA3d 1309, 1314-1315, 260 CR 122, 125).)

Defendant previously attempted to justify his request for records from well before 2018 by citing to a temporary restraining order from 2018. The Court previously determined that even if that record was authenticated, Defendant failed to justify the need for records from as far back as 2013 and 2015. Here, Defendant did not file an opposition to this motion and has not justified the need for records as far back as 2016. Defendant also fails to establish that Plaintiff’s medical records from before the accident at issue substantially further one or more countervailing interests.

Defendant’s subpoena is also overbroad because it could cover records pertaining to Plaintiff’s academic performance. The Court previously ruled that Defendant’s requests should be limited to medical, mental health type records. Defendant’s new subpoena requests “counseling records” which may include counseling for academic purposes. The Court previously quashed Defendant’s subpoena for academic records on the grounds that Plaintiff did not place her academic performance at issue. Defendant’s new subpoena is likewise quashed because it covers documents related to Plaintiff’s academic performance.

The Court finds that Defendant has misused the discovery process by repeatedly issuing subpoenas for records unrelated to the present litigation without substantial justification. This is the second time the Court has had to intervene to quash Defendant’s subpoena. Defendant failed to make reasonable efforts to communicate with Plaintiff regarding the new subpoena, responding to Plaintiff’s meet and confer request just one day before Plaintiff’s deadline to file a motion to quash. Accordingly, the Court grants Plaintiff’s request for sanctions in the amount of $1,161.65 for two hours of attorney time and filing fees.