Judge Jill Feeney, Case 21STCV06594 2022-08-08 Tentative Ruling

This action arises out of a vehicle accident which occurred on April 17, 2019. Emily Kwong (“Plaintiff”) was driving on Huntington Drive in Monrovia, California when she was rear-ended by a vehicle which was, in turn, rear-ended by a vehicle driven by Richard Garcia. During the relevant time period, Richard Garcia was operating his vehicle in the course and scope of his employment with CompuCom Systems, Inc.

Compucom propounded a Medical Records Subpoena to Xiushi Suzy Liu, M.D. seeking all medical records from April 2009 to present. Plaintiff argues that this request is overbroad in scope with no limitation to medical issues, symptoms, or body parts. According to Plaintiff’s Counsel, Compucom requests her medical records because her symptoms for Traumatic Brain Injury (“TBI”) are known symptoms of Supraventricular Tachycardia (“SVT”). Compucom is requesting all medical records from Plaintiff’s cardiologist since 2009 to confirm whether Plaintiff suffered TBI as a result of her accident or if her symptoms were attributable to SVT. Plaintiff argues the symptoms of SVT are not among the symptoms of TBI. Additionally, Plaintiff argues her history with SVT is not at issue in this case.

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, 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.”¿

California Code of Civil Procedure section 1987.2, subdivision (a) states, in relevant part, “. . . in making an order pursuant to motion made . . . 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 . . . .”¿

[E]ven when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a careful balancing of the compelling public need for discovery against the fundamental right of privacy. . . . [I]f an intrusion on the right of privacy is deemed necessary under the circumstances of a particular case, any such intrusion should be the minimum intrusion necessary to achieve its objective . . . [meaning] the least intrusive means to satisfy the interest. Mere convenience of means or cost will not satisfy that test for that would make expediency and not the compelling interest the overriding value. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1854-1855 [internal quotes and citations omitted].)

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.)

California Code of Civil Procedure section 1987.2 provides that “the court may in its discretion award the amount of reasonable expenses incurred in making or opposing [a motion to quash], 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. section 1987.2(a).) Additionally, sanctions may be imposed for misuse of discovery process. (Code Civ. Pro. section 2023.030, subd. (a). ) A misuse of discovery includes “persisting, over objection and without substantial justification, in an attempt to obtain information that are outside the scope of permissible discovery.” (Code Civ. Pro. section 2023, subd. (a).)

“Any & all documents, memoranda or writings reflecting or relating to any medical care & treatment and/or consultation including, but not limited to, emergency records, reports, office notes, progress notes, charts, files, nurse's notes & x-ray reports on EMILY KWONG, aka Emily Waichi Kwong, DOB 09/20/1979, from April 2009 to present. TO INCLUDE BILLING/PAYMENT RECORDS & X-RAY /MRI FILMS**COST & BREAKDOWN NEEDED PRIOR TO DUPLICATION**.”

Plaintiff contends that Compucom’s subpoena is overly broad because it is an unlimited intrusion into Plaintiff’s medical records that violates her constitutional right to privacy. Compucom’s concerns are over whether the symptoms of TBI overlap with SVT. (Song Decl., ¶¶5-9.) Plaintiff argues that the subpoena should be modified to only include records of the symptoms of SVT.

Plaintiff has a legally protected privacy interest in her medical records. (See, e.g., Heda v. Superior Court (1990) 225 Cal. App. 3d 525, 528.) However, “all medical…records relating to the claimed injuries are…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.)

Thus, the Court find an order completely quashing Compucom’s subpoena would be overly broad. However, medical and other records that are unrelated to the subject accident and injuries at issue are not automatically discoverable. To be discoverable, the resultant invasion of privacy would have to be “justified because it substantively furthers one or more countervailing interests.” (Hill v. National Collegiate Athletic Assn., 26 Cal.Rptr.2d at p. 865.) Compucom has not submitted an opposition justifying that invasion of privacy.

Here, Compucom’s subpoena requesting access to all of Plaintiff’s medical records from 2009 onward from her cardiologist is overbroad because it would include medical information not relevant to SVT, TBI, or any other injuries involved in the suit. Plaintiff has a privacy interest in these records. Thus, Compucom’s subpoena is modified to only include records pertaining to SVT symptoms. Additionally, the time period is limited to the previous ten years.

Plaintiff also requests monetary sanctions in the amount of $1,134.15 pursuant to Code Civ. Pro. sections 2023.030 and 19872.2. Monetary sanctions are not warranted under Code Civ. Pro section 1987.2 because Compucom has not opposed this motion, let alone in bad faith or without substantial justification.

Plaintiff’s claim for sanctions under Code Civ Pro. section 2023.030 is granted because Compucom did not act with substantial justification after Plaintiff objected to the scope of the subpoena. According to Plaintiff’s Counsel, Counsel objected to the overbroad demands in the subpoena and did not hear back. (Park Decl., ¶¶ 4-5.) After following up, Compucom’s Counsel responded stating he believed the TBI symptoms were symptoms of SVT. (Id., ¶6.) After Plaintiff’s Counsel followed up again to propose meeting and conferring, Compucom’s Counsel stopped responding. (Id., ¶¶ 8-9.) Overcoming one’s privacy interests in medical records requires a strong countervailing interest that the evidence indicates Compucom’s Counsel did not express. The evidence also demonstrates that Compucom’s Counsel did not respond to Plaintiff’s reasonable concerns over privacy. This is the second time the Court has had to intervene on an overbroad subpoena issued by Compucom. Thus, sanctions are granted.

Plaintiff requests monetary sanctions totaling $1,134.15 for filing fees and 5.5 hours of attorney time consisting of Subpoena review, written meet and confer correspondences, preparing the motion, reviewing opposition, and preparation of reply. This motion was unopposed. Thus, the Court awards sanctions in the amount of $841.65, which includes filing fees and 4 hours of attorney time.