Judge: Lisa R. Jaskol, Case: 21STCV27987, Date: 2024-01-19 Tentative Ruling
Case Number: 21STCV27987 Hearing Date: February 2, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On July 29, 2021, Plaintiff Cynthia Hopes (“Hopes”) filed this action against Defendants Costco Wholesale Corporation (“Costco”), Sergio (Last Name Unknown), and Does 1-50 for negligence. On October 21, 2021, Plaintiff filed a first amended complaint against Defendants Costco, Sergio (Last Name Unknown), and Does 1-50 for negligence and premises liability. On October 26, 2021, the Court struck the first amended complaint, overruled Costco’s demurrer, and ordered Costco to answer. On November 24, 2021, Costco filed an answer.
On January 9, 2024, Plaintiff filed a motion to quash Costco’s deposition subpoena and document request served on Michael L. Hecht, M.D., to be heard on February 2, 2024. On January 22, 2024, Costco filed an opposition. On January 26, 2024, Plaintiff filed a reply.
Trial is currently scheduled for July 23, 2024.
PARTIES’ REQUESTS
Plaintiff requests that the Court quash Costco’s deposition subpoena and document request served on Michael L. Hecht. M.D.
Costco requests that the Court deny the motion.
LEGAL STANDARD
Code of Civil Procedure section 1987.1 provides:
"(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, 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.
"(b) The following persons may make a motion pursuant to subdivision (a): (1) A party. (2) A witness. (3) A consumer described in Section 1985.3. (4) An employee described in Section 1985.6. (5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights."
(Code Civ. Proc., § 1987.1.)
As a general rule, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.)
When a party seeks discovery which impacts a person’s constitutional right to privacy, limited protections come into play. (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999.) The protections cover a person’s personal and financial matters. (Ibid.) The court must balance competing rights — the litigant’s right to discover relevant facts and the individual’s right to maintain reasonable privacy — in determining whether the information is discoverable. (Ibid.) For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)
DISCUSSION
A. Complaint
The complaint alleges that on November 19, 2020, as Plaintiff walked through one of Costco’s stores, she tripped on an empty pallet and fell, suffering injuries.
B. Subpoena
Costco issued a deposition subpoena and document request to Michael L. Hecht. M.D. (“Dr. Hecht”) for a deposition scheduled to take place on January 19, 2024.
The subpoena directs Dr. Hecht, Plaintiff’s eye doctor, to produce the following:
“1. Any and all inpatient and outpatient records, reports, memoranda and/or writings reviewed by deponent within the meaning of Evidence Code §250, including, but not limited to, the following:
“(a) Any and all doctor's reports and notes and progress notes relating to medical histories, chief complaints, findings, diagnosis, treatment plan, and regiment (including medications prescribed) progress of treatment, prognosis, reports of diagnostic procedures and tests, discharge summaries and objective findings from each and every examination, treatment and/or evaluation of Plaintiff, GAIL JOHNSON MCINTYRE [sic];
“(b) Any and all x-ray reports, laboratory notes and reports, and operation records relating to each and every examination, treatment and/or evaluation of the Plaintiff;
“2. Any and all medical texts and articles on which Deponent relied upon in forming his opinions with respect to Plaintiff’s condition;
3. Deponent's curriculum vitae;
4. Any and all inpatient and outpatient x-rays and laboratory tests, electronic recordings, and photographic reproductions (whether positive, negative, slides, or otherwise) relating to each and every examination, treatment, and/or evaluation of Plaintiff;
5. Any and all medical records, x-rays, pictures, logs, diaries, statements, deposition transcripts, reports, memoranda, notes or correspondence provided to Deponent for review in order to give testimony;
6. Any and all letters, correspondence, reports, instructions, memoranda or other documents received from and/or sent to any one from the law firm representing the interests of the Plaintiff herein, including, but not limited to, such documents sent to the Deponents by anyone acting for or on behalf of such law firm or person;
7. Any file, reports, memoranda, correspondence or other documents generated by Deponent which pertains to the above-entitled action;
8. If any of the above items, as described in Nos. 1 through 7 are unavailable at the time and place of deposition, the Deponent is requested to identify where such items are located, who has possession of them and how they may be obtained through the formal processes of the Court.”
C. Analysis
Plaintiff challenges the subpoena to her eye doctor on several grounds: (1) failure to comply with the notice requirements of Code of Civil Procedure section 1985.3, (2) inadequate description of the documents sought (based on the erroneous reference to Gail Johnson McIntyre in part 1(a)), (3) violation of Plaintiff’s privacy rights and overbreadth, (4) burden under Code of Civil Procedure section 2017.020, subdivision (a), and (5) relevance (based on the assertion that information about Plaintiff’s eyes is irrelevant because Plaintiff is not seeking damages for eye injuries).
Costco argues that Plaintiff did not provide proper notice of the motion, although Costco does not assert that the lack of proper notice affected Costco’s ability to respond to the motion. In addition, Costco argues the deposition subpoena is proper because Plaintiff’s vision issues are relevant to comparative negligence. Plaintiff had cataract surgery before the accident, she visited Dr. Hecht’s office the day of the accident, and she had been advised to wear UV light blocking glasses.
According to Costco, it previously subpoenaed Dr. Hecht’s records and served a notice to consumer on Plaintiff. After reviewing those records, Costco served the deposition subpoena on Dr. Hecht and sent Plaintiff a notice of deposition and a copy of the deposition subpoena on December 21, 2023 for the oral deposition of Dr. Hecht.
Costco acknowledges the typographical error in part 1(a) of the deposition subpoena (giving the wrong name for Plaintiff) but argues the error “does not pertain to the entire request for production” and “does not pertain to the actual deposition subpoena or the remainder of the request for production.”
The parties have not explained whether the deposition took place on January 19, 2024 or whether the motion is moot. Because the parties submitted briefing after January 19, the Court will assume the deposition was rescheduled and the motion is not moot.
The
Court finds that Costco properly issued the deposition subpoena and it seeks relevant information. In addition, having weighed Plaintiff’s privacy rights against Costco’s need for discovery, the Court concludes the deposition subpoena does not violate Plaintiff’s privacy rights. Therefore, the deposition may proceed. It appears that Costco has already received
the records it requested. Therefore, the
request to quash Costco’s request for production of documents appears to be moot. However, if Costco is requesting additional records, the Court limits the scope of the document request to two years before Plaintiff's accident to and including the date of the accident.
CONCLUSION
The
Court DENIES Plaintiff Cynthia Hopes’s motion to quash the deposition subpoena
served on Michael L. Hecht, M.D., except insofar as Defendant Costco Wholesale Corporation seeks production of additional documents.
If Defendant Costco Wholesale Corporation seeks production of additional documents, the Court GRANTS the motion in part and limits the scope of the deposition subpoena for production of documents to the following time period: two years before Plaintiff's accident to and including the date of the accident.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.