Judge: Mark A. Young, Case: 21SMCV01582, Date: 2023-08-21 Tentative Ruling

Case Number: 21SMCV01582    Hearing Date: March 15, 2024    Dept: M

CASE NAME:           Wallach, et al., v. Providence Health System – Southern California, et al.

CASE NO.:                21SMCV01582

MOTION:                  Motion to Compel Further Responses

HEARING DATE:   3/15/2023

 

Legal Standard

 

            In the absence of contrary court order, a civil litigant’s right to discovery is broad. “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010; see Davies v. Superior Court (1984) 36 Cal.3d 291, 301.)

 

            A motion to compel further responses to a demand for inspection or production of documents (RPD) may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections. (CCP§ 2031.310(c).) A motion to compel further responses to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP. § 2031.310(b)(1).) “To establish ‘good cause,’ the burden is on the moving party to show both: [¶] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [¶] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial.) [Citations.] [¶] The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” (Edmon & Karnow, California Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 8:1495.6.)

 

            Motions to compel further responses must always be accompanied by a meet-and confer-declaration (per CCP § 2016.040) demonstrating a “reasonable and good faith attempt an informal resolution of each issue presented by the motion.” (CCP §§ 2030.300(b), 2031.310(b)(2), 2033.290(b).) They must also be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (CRC, rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (CRC rule 3.1345(c).)

 

            If a timely motion to compel has been filed, the¿burden is on the responding party¿to justify any objection or failure fully to answer.¿(Coy v. Superior Court (1962) 58 Cal.2d 210, 220–221 [addressing a motion to compel further responses to interrogatories]; see also¿Fairmont Ins. Co. v. Superior Court¿(2000) 22 Cal.4th 245, 255.)

 

 

EVIDENTIARY OBJECTIONS

 

Plaintiff’s objections to Defendants’ evidence submitted in reply are OVERRULED. Defendants failed to attach exhibits A-F to the initial declaration of counsel. (See Ashtari Decl., ¶¶ 2, 7, 12-14.) Due to this oversight, Defendants’ exhibits were attached to the reply brief’s declaration of counsel.  Plaintiffs cite no prejudice from this omission, and Plaintiffs were able to adequately respond and oppose the motion on the merits.

 

Analysis

 

Defendant Providence Saint John’s Health Center moves for an order compelling Plaintiffs to provide further responses, without objections, to Requests for Production of Documents, Set Three. (CCP § 2031.310.) In particular, Defendant seeks production of Mr. Wallach’s and Elizabeth Wallach’s cell phones for inspection and forensic copying of photos, text messages, call logs, and other data and metadata from March 14, 2020, and March 15, 2020. Defendant believes that a forensic inspection is the only way to confirm that Plaintiffs have produced all documents, since there has been a significant pattern of withholding this information.

 

During discovery, Defendant sought any photographs taken during Mrs. Wallach’s two-day hospital admission. On March 2, 2023, in response to Request for Production of Documents, Set One, Plaintiffs produced 11 photos and 8 videos. (Ashtari Decl., ¶ 2; Ex. A.) Defendant notes this discovery already garnered relevant evidence, as Plaintiff’s relied on photographs to show that Mrs. Wallach’s SCD machine was off, which they allege contributed to her death. (Id., ¶¶ 3-4.) Plaintiffs’ counsel assured Defendants that those photos were all the photos they took during the hospital admission. (Id., ¶ 5.) Despite the verification and assurance, Defendant served a Request for Production of Documents, Set Two, requesting: “all photos taken on any device at Providence Saint John’s Health Center on March 14, 2020, and March 15, 2020.” (Ashtari Decl., ¶ 6.) Plaintiff responded that “[a]fter a diligent search and reasonable inquiry, Plaintiff has already produced all responsive documents in his possession. No other responsive documents exist.” (Ashtari Decl., ¶ 7; Ex. B.)

 

On August 2, 2023, Defendants propounded the request at issue in this motion, Request for Production of Documents, Set Three, which included a demand for a forensic inspection of Plaintiffs’ devices. (Ashtari Decl., ¶ 9.) Plaintiffs objected that the requests were overbroad, oppressive, violated the plaintiff’s privacy rights, violated third-party privacy rights, and was not likely to lead to the discovery of admissible evidence. (Id., Ex. C.) Despite these objections, Plaintiffs produced approximately 150 additional photos and videos from the hospital that were previously withheld, and asserted that everything had now been produced. (Id., ¶ 10.)

 

The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1.) “The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.” (Id.) 

 

Courts must carefully balance a right of privacy against the interest in having just litigation. (Pioneer Electronics (USA), Inc. v. Superior Court¿(2007) 40 Cal.4th 360, 371.) If there is a serious invasion of a constitutional right to privacy, the party seeking the evidence must establish that the information sought is not only essential and directly relevant, but also that this information could not be discovered through less intrusive means. (Williams, supra, 3 Cal.5th at 552; Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665 [information must be “directly relevant to a cause of action or defense… i.e., that it is essential to determining the truth of the matters in dispute].)

 

There is no reasonable dispute that Plaintiffs assert a recognized privacy interest in their private telephone communications with third parties. This reasonable privacy interest is bolstered by Plaintiffs’ medical privacy, since any communications or photos would likely relate to the birth of their son Time, and related medical issues. Further, the inspection request broadly requires “copying of… other data and metadata” of Plaintiffs’ cell phones. Strictly speaking, this inspection would require a complete copy of all the data on the cell phones, whether or not the data is within the scope of relevancy or discovery. Thus, Plaintiffs establish that the forensic inspection demand seriously infringes upon their legally protected privacy interests.

 

Defendants argue that such privacy concerns are outweighed by their particular need for this forensic evidence. Defendants contend that inspection of Plaintiffs’ devices would reveal directly relevant evidence of photos/videos, texts, and other communication activity during the relevant period. Defendant argues that Plaintiffs’ belated production of the 150 photos calls into question whether there are additional photos or other documentary evidence. Defendant also argue that Plaintiffs have withheld discoverable evidence because they have discovered “at least two photos” that were missing from the supplemental responses and missing text messages.

 

In response, Plaintiffs’ counsel fail to adequately explain why the 150 photos were not produced in response to RDP, Set Two. Counsel only asserts that they later realized that they sent an incomplete set of photos and videos, and thereafter provided further supplemental responses. (See Schwalbach Decl., ¶ 4.) Plaintiffs’ counsel also fails explain how the supplemental response did not include all photographs and videos when Mr. Wallach’s files were transferred electronically to the newly merged firm. This unexplained discrepancy weighs in favor of a forensic examination.

 

Defendants’ other claims of suspicious behavior by Plaintiffs are insufficient to support a forensic examination. Defendants cite a photo posted on Facebook by Mr. Wallach’s mother, Rochelle Lamm, and a second photo used by Plaintiffs in a video produced for mediation on June 6, 2023. (Ashtari Decl., ¶ 8; see Supp. Ashtari Decl., Ex. F.) However, defense counsel’s declaration does not elaborate further, or provide examples of the photos. The text post by Ms. Lamm announcing her daughter’s death generally describes how they shared the news of their baby girl’s birth with their “allegiance of friends through nonstop videoconferencing, FaceTime, WhatsApp, texts, and pics.” This statement taken at face value would not suggest that Plaintiffs have more than the 150 produced photos, or are otherwise withholding discovery.  Defendants, however, do put forth some evidence that all text messages from decedent’s phone have not been produced.

 

Moreover, as a practical matter, the Court cannot order the requested forensic examination of items other than Mrs. Wallach’s cell phone. Plaintiffs claim not to have the cameras or David Wallach’s cell phone, with all images stored in the cloud. (Schwalbach Dec., ¶ 3.) Otherwise, Plaintiffs confirmed, under oath, that they have already produced all responsive photos and text messages, including a screenshot of the Google Photos account where they stored their photos. (Id.)

 

Considering the totality of the evidence, the Court tentatively would deny the motion as to categories two through four, and grant the motion as to Mrs. Wallach’s cell phone, which is category one.