Judge: Loren G. Freestone, Case: 37-2020-00024406-CU-PO-CTL, Date: 2024-01-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 20, 2023

12/21/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  PI/PD/WD - Other Discovery Hearing 37-2020-00024406-CU-PO-CTL FELD VS FRANK [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants Richard Hayes D.C. and Hayes Chiropractic Center's (collectively, Hayes) motion to compel Dr. Dana Chidekel to produce her complete file and provide additional related testimony at deposition is GRANTED.

Co-defendants Dr. Jamran Jahangiri and San Diego Chiropractic Neurology filed a declaration in support of this motion. (ROA #281.) However, when challenged by Plaintiff Daniel Feld, the declaration was later withdrawn. (ROA #291.) As such, it has not been considered.

Hayes moves to compel based on two requests for documents in the notice of deposition for Dr.

Chidekel. (See Code. Civ. Proc., § 2025.450, subd. (a).) The documents being withheld that are at the heart of this dispute relate to certain testing Dr. Chidekel performed on Feld after she was retained as a consulting expert, but before she was designated as a testifying expert.

Feld argues that the testing material is not responsive to any of the document requests. RFP 2 specifically seeks Dr. Chidekel's 'entire file regarding this matter.' The earlier testing that Dr. Chidekel performed on Feld clearly falls within the scope of this request.

Feld also argues that the motion is untimely because discovery has closed and Hayes never moved to reopen it. However, promptly after Dr. Chidekel's deposition and 10 days before the cutoff, Hayes appeared ex parte for an order 'advancing their motion to compel hearing to the soonest possible date.' (ROA #259.) Rather than set the motion for hearing on an extremely abbreviated schedule before the cutoff, after hearing from all parties and '[i]n light of everyone's circumstances and the court's calendar,' the court found good cause to set the motion on the current date. (ROA #271.) Feld did not object.

(See City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 513–514 [court may exercise discretion to hear a discovery motion after the cutoff]; People v. Landau (2013) 214 Cal.App.4th 1, 26–27 [same]; compare Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1572–1577, 1585–1588 [moving party made no effort to have discovery motion heard before cutoff and simply filed it over a month after the cutoff, to which the opposing party promptly objected as untimely].) Feld argues that Dr. Chidekel's testing is protected by the attorney-client privilege and work-product doctrine. Hayes argues that the objections were waived. The court agrees with Hayes-for two reasons.

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3049338  34 CASE NUMBER: CASE TITLE:  FELD VS FRANK [IMAGED]  37-2020-00024406-CU-PO-CTL First, the 'protection of information from discovery on the ground that it is privileged or that it is a protected work product . . . is waived unless a specific objection to its disclosure is timely made during the deposition.' (Code Civ. Proc., § 2025.460, subd. (a); see also id. at § 2031.240, subd. (b)(2).) Here, as Hayes points out, Feld never served any written objections to the requests for production in the deposition notice. Nor did Feld ever assert a specific objection on the record during the deposition.

Rather, once it appeared that Dr. Chidekel had additional documents that had not been produced, the parties went off the record. When they went back on the record, Hayes' attorney merely stated his understanding of Feld's position, which was that 'Dr. Chidekel's notes and testing and file related to her evaluation of Mr. Feld is not discoverable because she is not going to be offering opinions on those matters.' Feld himself never specifically objected on the record that the documents were protected by the attorney-client privilege, the work-product doctrine, or both.

Second, by 'demanding and obtaining a report of a . . . mental examination . . . the party who submitted to . . . a . . . mental examination waives in the pending action . . . any privilege, as well as any protection for work product . . . that the party . . . may have regarding reports and writings as well as the testimony of every other . . . psychologist . . . who has examined the party . . . in respect of the same . . . mental condition.' (Code Civ. Proc., § 2032.630.) Privilege is waived not only for reports, but also any 'factual input' see also Queen of Angels Hospital v. Superior Court (1976) 57 Cal.App.3d 370.) Here, the court compelled Feld to submit to an independent mental examination by Dr. Dominick Addario. (ROA #235.) Not only did Feld obtain a copy of the report from that IME that was reviewed by Dr. Chidekel, but Dr.

Chidekel specifically intends to offer her opinion that Dr. Addario's methods during the IME were flawed and that he misinterpreted the findings of the tests he gave. By obtaining a copy of Dr. Addario's report, Feld waived any attorney-client privilege or work-product protection that would have otherwise applied to Dr. Chidekel's own similar testing.

Feld argues that section 2032.630 does not result in a waiver of attorney-client privilege or work-product protection for raw test data, only the expert's reports, which Dr. Chidekel did not prepare with respect to her earlier testing. But it makes little sense to waive the protection for psychologists' reports and not also waive protection for the raw data. Reports will in most instances contain not only the raw data, but also the expert's interpreting of that data. In other words, reports reflect additional industry and effort by the psychologist and would presumably be entitled to more protection than the raw data, not less. (See Queen of Angels, supra, 57 Cal.App.3d at p. 374 [privilege is waived as to any 'factual input' obtained as part of the examination].) Feld notes that the Legislature described the 'report' that must be produced to the examinee upon demand as specifically 'including the results of all tests made,' whereas the Legislature described the waiver the examinee makes in exchange as applying to 'reports' with no additional specification.

(Compare Code Civ. Proc., § 2031.610, subd. (a)(1) with id. at § 2031.630.) But the clear intent of section 2032.630 was to place both parties on equal footing, and therefore the reports referred to in section 2031.630 are properly interpreted as being the same as those referred to in section 2031.610.

(See Queen of Angels, supra, 57 Cal.App.3d at p. 374 [when examining party turns over report, examinee must produce any 'like report']; see also People v. Tran (2015) 61 Cal.4th 1160, 1168 ['It is an established rule of statutory construction that similar statutes should be construed in light of one another and that when statutes are in pari materia similar phrases appearing in each should be given like meanings'].) Moreover, the statute also encompasses not only 'reports,' but also 'writings,' which reasonably includes the test materials that the psychologist administers. The statute also encompasses the 'testimony' of the psychologist without restriction. Again, it would make little sense to permit the psychologist to be asked about the raw data at a deposition, but to withhold the actual raw rata. (See People v. Hernandez (2021) 60 Cal.App.5th 94, 106 [courts must 'select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences'].) Calendar No.: Event ID:  TENTATIVE RULINGS

3049338  34 CASE NUMBER: CASE TITLE:  FELD VS FRANK [IMAGED]  37-2020-00024406-CU-PO-CTL Objections to the withheld portions of Dr. Chidekel's file relating to her earlier testing of Feld based on the attorney-client privilege and work-product doctrine were waived. The motion to compel is therefore granted. Dr. Chidekel shall produce the remainder of her file within 10 days. Dr. Chidekel shall be made available for a continued deposition within 20 days, unless otherwise agreed to by the parties.

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