Judge Lynne M. Hobbs, Case Number: 21STCV06594, Date: 2023-09-13 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV06594, Date: 2023-09-13 Tentative Ruling

Case Number: 21STCV06594 Hearing Date: September 28, 2023 Dept: 30

EMILY KWONG vs RICHARD GARCIA, et al.

Motion for a Protective Order re Audio Recordings Raw Data

Tentative: Defendant’s Motion for a Protective Order is DENIED. Moving Party is ordered to give notice.

DISCUSSION

Defendant seeks a protective order to prevent the disclosure and distribution of any audio recordings and/or raw data of any neuropsychological examination of Plaintiff to any persons except for the licensed and retained neuropsychology experts retained by Defendant and Plaintiff so that the exchange of these sensitive materials will be only done directly between the experts.

Plaintiff asserts that pursuant to Randy's Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818 (“Randy’s Trucking”), Plaintiff’s counsel is entitled to disclosure of the raw data from Plaintiff’s mental examination and that Plaintiff is entitled to make an audio recording of the tests that are administered to Plaintiff.

Defendant suggests that allowing Plaintiff’s counsel to examine the raw data, rather than providing the information to Plaintiff’s expert is a violation the California Board of Psychology Laws and Regulations, section 1396.3, which states:

A psychologist shall not reproduce or describe in public or in publications subject to general public distribution any psychological tests or other assessment devices, the value of which depends in whole or in part on the naivete of the subject, in ways that might invalidate the techniques; and shall limit access to such tests or devices to persons with professional interests who will safeguard their use.

(Cal. Code Regs., tit. 16, § 1396.3.) Therefore, the audio recordings and raw data from Plaintiff’s neuropsychological examinations may only be mutually exchanged directly between the licensed doctors, Dr. McSwan and Dr. Saint Martin and not Plaintiff’s counsel.

In discussing section 1393.6, the Appeal court in Randy’s Trucking stated:

While this regulation requires psychologists to maintain test security, it does not address a psychologist's duty when a court order requires an attorney's access to psychological tests or devices, particularly subject to a protective order that requires the parties to safeguard the use of the tests or devices. Put another way, the regulation does not prohibit a psychologist from producing tests or devices when ordered by a court subject to a protective order.

(Randy’s Trucking, supra, 91 Cal.App.5th at 839.)

The court does not dispute the Defendant’s strong contention that the medical profession has a strong interest in protecting test security and guarding against unwarranted disclosures, but Defendant fails to show that a protective order limiting the dissemination of the audio recordings and raw data is insufficient to protect testing security. In Randy’s Trucking, the Appeal Court found the trial court’s protective order to be sufficient to protect the integrity of testing materials:

Plaintiff's counsel, defense counsel and all experts, consultants and employees of the respective firms shall maintain the security of all raw data, test materials and other medically private information obtained during the examination. However, such raw data, test materials and other medically private information may be disclosed to plaintiff's counsel, defense counsel and all experts, consultants and employees of the respective firms for use in this case. Such materials and data may also be shown to the trier of fact at the time of trial, or such other time as may be necessary for the adjudication of the above-captioned matter. These materials may be used for no other purpose, may not be disseminated to any other party and the parties shall take all reasonable steps to maintain the confidentiality of the above-identified materials.

(Randy’s Trucking, supra, 91 Cal.App.5th at 828 [internal quotations omitted].) This is the same protective order Plaintiff endorses. (Opp. at 5:17-18.)

Allowing Plaintiff’s counsel to examine the audio recording will “ensure that the examiner does not overstep the bounds set by the court for the mental examination, that the context of the responses can be judged for purposes of trial, that the examinee's interests are protected (especially since the examinee's counsel ordinarily will not be present), and that any evidence of abuse can be presented to the court.” (Golfland Entertainment Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 750.) Therefore, Plaintiff’s counsel needs access to the audio recording to protect Plaintiff’s interest.

In Randy’s Trucking, the court further noted that Plaintiff’s counsel should have access to the audio-recording and raw data because under Evid. Code § 721(a), Plaintiff has the “right to take discovery and cross-examine defendants' expert witnesses, which includes being able to examine the expert on the matter upon which the expert's opinion is based and the reasons for that opinion.” (Randy’s Trucking, supra, 91 Cal.App. at 838.) “Without the raw data and audio recording, plaintiffs cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the neuropsychologist's opinion.” (Id. at 838.)

In addition to being able to access the audio recording of the mental examination, Plaintiff also has the right to record the test-taking portion of the examination, including the test questions. (See Randy’s Trucking, supra, 91 Cal.App.5th at 835 [“the trial court nevertheless has the power to order disclosure of test materials and data to plaintiff's attorney.”].) Plaintiff’s counsel may not possess the requisite expertise to interpret the raw test data, but he is “not necessarily required to do so to use the materials for purposes of cross-examination, since disclosure of these materials may help to protect against abuse and disputes over what transpired during the examination.” (Randy’s Trucking, supra, 91 Cal.App.5th at 838.) In Randy, the Appeal Court rejected the defendants' contention that transmission of the raw data to the plaintiff’s expert witness was sufficient to protect the plaintiff’s interest because “that expert can only assist the attorney in preparing for cross-examination; to prepare and conduct an effective cross-examination, ‘the attorney must themselves possess more than a second-hand understanding of the information being scrutinized.’ (Id. at 838.)

Defendant’s assertion that allowing Plaintiff’s access to the audio recording and raw test data poses a significant risk of misuse of testing material and diminishes the efficacy of a medical evaluation remains speculative and fails to rebut Plaintiff’s showing that Plaintiff has a right to audio record the mental examination and submit the raw data to Plaintiff’s counsel for exemption. As stated by the Appeal Court in Randy’s Trucking:

There is no evidence that attorneys regularly violate protective orders, including those concerning psychological or neuropsychological testing materials. Defendants have not shown there is a substantial risk of abusive intentional dissemination or an unacceptable risk of inadvertent disclosure such that the trial court was required to find a protective order would not adequately address Dr. Victor's concerns about test security.

(Randy’s Trucking, supra, 91 Cal.App.5th at 842.) Similarly, the court is unpersuaded that allowing Plaintiff’s counsel access to the audio recording and raw testing data pursuant to a protective order limiting the dissemination of such information, is insufficient to guard against the misuse and efficacy of the test materials.