On October 23, 2020, Plaintiff Robert Zieg (“Plaintiff”) filed this action against Defendant Edwin Kitagawa (“Defendant”) 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 moved to quash the subpoena for records on the grounds the records are protected from disclosure under the attorney-work product privilege. 

The Court heard the instant motion on January 17, 2023.  The Court posted a tentative ruling denying Plaintiff’s motion on the grounds Plaintiff had failed to show Dr. Rudd-Barnard was a retained expert.  However, the Court continued the matter to March 2, 2023, to allow Plaintiff an opportunity to provide supplemental information such as receipts and invoices to support Plaintiff’s claim that Dr. Rudd-Barnard was a specially retained consultant and not a treating physician.   

On February 9, 2023, Plaintiff filed a supplemental brief.  Defendant filed an opposition and Plaintiff filed a reply. 

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.) 

In his supplemental brief, Plaintiff submits his own declaration and the declaration of Dr. Alexandra Rudd-Barnard to establish that Dr. Rudd-Barnard is a paid consultant retained by Plaintiff’s counsel, the Ellis Law Corporation.  Plaintiff also argues Defendant has no evidence beyond Plaintiff’s mistaken deposition testimony to show Plaintiff’s treating neurologist, Dr. Jonathan Eskanazi, referred Plaintiff to Dr. Rudd-Barnard. 

Defendant argues Plaintiff has submitted sham declarations to establish that Dr. Rubb-Barnard has been specially retained.  Defendant also notes (1) Plaintiff has failed to submit any receipts as Plaintiff had represented to the Court at the January 17, 20223 hearing, and (2) Plaintiff is bound by his deposition testimony wherein Plaintiff responded without objections that Dr. Rudd-Barnard was his treating physician (see Zieg Depo. Transcript at p. 48:10-25, Canter Decl., ¶ 4, Ex. A). 

After reviewing the supplemental briefing, the Court finds Plaintiff has submitted evidence to show Plaintiff mistakenly testified at the deposition and that Dr. Rudd-Barnard was a retained consultant.  A party must provide a credible explanation when contradicting prior sworn testimony with a declaration.  (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1088.)  Thus, subsequent declarations that contradict deposition testimony are disfavored.  Here, Plaintiff’s declaration alone would not carry the day.  However, Plaintiff also submits the Declaration of Dr. Rudd-Barnard which sets out the chronology of events as follows: she was retained on February 16, 2021 to conduct an independent analysis on the extent of Plaintiff’s injuries and was paid for those services on February 20, 2021.  (Rudd-Barnard Decl., ¶¶ 3-4.)  Dr. Rudd-Barnard further states in her declaration that she had two sessions with Plaintiff and was not treating him.  (Rudd-Barnard Decl., ¶¶ 5-7.)  In the reply, Plaintiff attaches a receipt showing a check drawn on February 18, 2021 and an internal invoice confirming payment of the retainer to Dr. Rudd-Barnard on February 20, 2021.  (Reply, Corday Decl., Ex. 1.)  In sum, this evidence supports Plaintiff’s contention that Dr. Rudd-Barnard was a retained consultant in this matter.  True, Plaintiff contradicts himself and does not explain why he testified Dr. Eskanazi referred him to Dr. Rudd-Barnard, but Dr. Rudd-Barnard, a licensed professional, does not contradict herself and is very clear she was a retained consultant.  The gray area caused by Plaintiff’s deposition testimony is sufficiently clarified by Dr. Rudd-Barnard’s declaration and the corroborating evidence.  

As such, the Court finds Plaintiff has established that Dr. Rudd-Barnard was a retained consultant.  Dr. Rudd-Barnard’s medical records, radiology, and billing records are thus protected from disclosure under the attorney-work product privilege.  (Gurule, supra, 28 Cal.4th at p. 594.)