Judge Kerry Bensinger, Case 20STCV40692 2023-01-17 Tentative Ruling

On October 23, 2020, Plaintiff Robert Zieg filed this action against Defendant Edwin Kitagawa for motor vehicle and general negligence relating to a December 6, 2018, automobile collision. On November 8, 2022, Defendant served subpoenas on Dr. Alexandra Rudd Barnard, Psy.D for medical records, radiology, and billing records. Plaintiff moves to quash the subpoena for records on grounds that they are protected from disclosure under the attorney-work product privilege.

A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (Code Civ. Proc., § 2020.020.) The court, upon motion or the court’s own motion, “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 orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .” (Code Civ. Proc., §2020.410, subd. (a).)

Under Evidence Code section 952, attorney-client privilege includes confidential communication between a client and a lawyer’s agent. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:147 [“Information disclosed to an agent of the attorney for transmission to the attorney is also privileged.]) Confidential communications “[i]nclude[] expert consultant[s] employed to examine client: An expert (e.g., physician) employed by the attorney to examine the client and evaluate the client’s condition (and not to provide treatment), may be treated as the attorney’s ‘agent’ for this purpose. Thus, any disclosures made by the client to the expert are protected as communications to an ‘agent’ of the attorney.” (Id. ¶ 8:148.)

In People v. Gurule (2002) 28 Cal.4th 557, the Supreme Court held that treatment records generated by mental health professionals during their employment by counsel for defendant’s accomplice enjoyed attorney-client privilege. (People v. Gurule (2002) 28 Cal.4th 557 (Gurule).) There, the defendant’s attorney hired two doctors to examine the defendant pursuant to court appointment to determine the defendant’s competence to stand trial. (Id. at p. 589.) Thus, the court found that the “communications [the defendant] made to [the physicians] in their capacity as defense experts hired by [the defendant’s lawyer] were fully privileged by the attorney-client privilege.” (Id. at p. 594.)

Plaintiff relies on Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, which held that communications made to a potential expert in retention interview can be considered confidential and therefore subject to protection from subsequent disclosure even if expert is not thereafter retained as long as there was reasonable expectation of such. (Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, 1079 (Shadow Traffic Network) [“[R]eports prepared by an expert as a consultant are protected until the expert is designated as a witness.”].)

Defendant relies on Huntley v. Foster (Huntley) (1995) 35 Cal.App.4th 753, which held that treating physicians are not retained experts within meaning of statute such that expert witness declaration had to be provided to opposing counsel.

The subpoenas served on Dr. Rudd-Bernard seek reports, correspondence, and handwritten notes regarding Dr. Rudd-Bernard’s examination of Plaintiff. The subpoenas state the following:

ALL MEDICAL RECORDS IN YOUR POSSESSION. INCLUDE OFFICE AND HANDWRITTEN NOTES, TEST RESULTS, CORRESPONDENCE, RADIOLOGY REPORTS, PATHOLOGY REPORTS, QUESTIONNAIRES/HISTORY & RECORDS RECEIVED BY OTHER PHYSICIANS. PLEASE ALSO INCLUDE THE PATIENT'S INFORMATION SHEET. PLEASE BE SURE TO INCLUDE ALL ARCHIVED RECORDS AND ALL RECORDS LOCATED IN STORAGE FROM 12/06/2008 - PRESENT LIMITED TO BODY PARTS/INJURIES CLAIMED IN THE INCIDENT, WHICH ARE AS FOLLOWS HEAD/BRAIN, NECK, SHOULDERS, ARMS, BACK, CHEST, ABDOMEN AND LEFT KNEE.

ALL X-RAYS, CT SCANS AND CORRESPONDING REPORTS. **PLEASE INCLUDE THE FOR THE COPIES; CD OR FILMS AND THE FEE FOR EACH. PLEASE PROVIDE AN INVENTORY OF ALL FILMS, INCLUDING DATES OF STUDY PRIOR TO COPYING FROM 12/06/2008 - PRESENT LIMITED TO BODY PARTS/INJURIES CLAIMED IN THE INCIDENT, WHICH ARE AS FOLLOWS HEAD/BRAIN, NECK, SHOULDERS ARMS, BACK, CHEST, ABDOMEN AND LEFT KNEE.

TO ALL BILLING RECORDS IN YOUR POSSESSION, INCLUDING BUT NOT LIMITED ALL STATEMENTS, ITEMIZED BILLING RECORDS, BALANCE LEDGERS/PAYMENT LEDGERS/ITEMIZED BILLING LEDGERS, INSURANCE RECORDS, ACCOUNT SUMMARIES, PAYMENTS, TOT AL CHARGES, ALL AMOUNTS WRITTEN OFF BALANCE DUE AND ANY OTHER PATIENT ACCOUNT RECORDS FROM 12/06/2008 PRESENT LIMITED TO BODY PARTS/INWRIES CLAIMED IN THE INCIDENT, WHICH ARE AS FOLLOWS HEAD/BRAIN, NECK, SHOULDERS, ARMS, BACK, CHEST, ABDOMEN AND LEFT KNEE.

During meet and confer efforts, the parties could not agree on whether the subpoena requests constituted attorney-work product privilege. The Court considers both parties arguments in turn. Plaintiff argues that Dr. Rudd-Barnard is not Plaintiff’s treating physician, but his consultant. In opposition, Defendant argues that Dr. Rudd-Barnard is Plaintiff’s treating physician because Plaintiff was referred to Dr. Rudd-Barnard for neuropsychological testing by Plaintiff’s other treating physician, Dr. Eskenazi.

Contrary to Plaintiff’s assertions, the Court finds that Dr. Rudd-Barnard is not a consulting physician but a treating physician. Unlike in Gurule, where the defendant’s lawyer hired two physicians for determining the defendant’s capacity to stand trial, here, there is insufficient evidence to conclude that Plaintiff’s counsel hired Dr. Rudd-Barnard. In fact, Plaintiff’s deposition testimony indicates the contrary: “I believe [Dr. Eskenazi] referred me to another doctor. I can’t remember what – it’s like a – a neuropsychologist -- psych-something.”. (Canter Decl., Exh. A.) Plaintiff does not provide any explanation for this discrepancy. Thus, Shadow Traffic does not apply, but Huntley does. Under Huntley, Dr. Rudd-Barnard is a treating physician and not a retained expert such that his work product is not protected under attorney-client privilege.

In light of the foregoing, the Court DENIES Plaintiff’s Motion to Quash Defendant’s subpoenas to obtain Dr. Rudd-Barnard’s medical records, radiology records and billing records respecting care and treatment Dr. Rudd-Bamard rendered to Plaintiff Robert Zieg.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. 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.

Hon. Kerry Bensinger

Judge of the Superior Court