Judge Jill Feeney, Case 21STCV14145 2023-03-14 Tentative Ruling

Defendant argues that the subpoena issued to Kaiser was limited in scope and as to the body parts Plaintiff claims she injured as a result of the subject collision. However, Kaiser responded to the subpoena stating that it could not respond to the subpoena with the body part limitation. After Plaintiff refused to allow Kaiser to produce medical records with a time limitation, Defendant decided not to pursue the subpoena further and closed out the order. Defendant argues that there is no longer a subpoena to quash. Defendant also argues that Plaintiff’s motion to quash is untimely.

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).)

Code Civ. Proc., section 1985.3 provides that a party whose records are being sought by a subpoena duces tecum must serve notice of the motion to quash at least five days before the production date. However, the court retains jurisdiction to hear a motion to quash even if it is brought after the production date. (Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1312.)

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.”

Plaintiff’s counsel testifies that Defendants served a subpoena for production of medical and employment records on Kaiser on October 7, 2022. (Artinian Decl., ¶4.) On November 28, 2022, Defendant’s counsel informed Plaintiff’s counsel that Defendant could not limit the subpoena to the body parts at issue. (Id., ¶5.) Plaintiff’s counsel proposed a first look to resolve the issue of the body parts limitation. (Id., ¶6.) The parties met and conferred on the issue through December 6, 2022 and could not reach a resolution. (Id., ¶10.)

Defendant’s counsel testifies that after the parties could not resolve the issue of the body parts limitation, Defendant’s counsel chose not to pursue the subpoena further and the subpoena order was closed. (Saravia Decl., ¶8.) Plaintiff filed the instant motion to quash one month after the parties’ last communications on the issue. (Id., ¶9.)

Although Plaintiff makes this motion well after the date of production, the Court retains jurisdiction to hear this motion. The evidence shows that the original subpoena issued on Kaiser was properly limited to the body parts at issue and properly limited in time. Because Defendant is no longer pursuing the subpoena, this motion is denied as moot.

However, the Court notes that this dispute could have been easily resolved by allowing a first look as Plaintiff proposed. Kaiser is a medical provider that lacks the ability to produce documents by body part and the Court cannot compel it to do so. Rather, it would have been more practical to allow Plaintiff’s counsel to redact irrelevant information from the documents produced. Additionally, there is no evidence that Defendant’s counsel ever informed Plaintiff’s counsel that she was no longer pursuing the subpoena. Therefore, the Court finds that Plaintiff was substantially justified in making this motion.