Judge: Mark H. Epstein, Case: 22SMCV00598, Date: 2023-04-06 Tentative Ruling

Case Number: 22SMCV00598    Hearing Date: April 6, 2023    Dept: R

At issue is a motion to enforce certain subpoenae issued to third parties.  The subpoenae concern the medical records of Kevin Spacey.  With one exception, Spacey objects to these subpoenae on the ground that they invade the physician-patient and psychotherapist-patient privileges and also invade his right to privacy guaranteed in the California Constitution.  Spacey is not a party to the instant action; he is a third party although in many ways he is central to the case.  As stated, there appears to be one exception to Spacey’s objections and that the subpoena to a doctor, Dr. Nalin, that Spacey initially stated he had seen but, on later reflection, he has not seen and who apparently has no records.  As to that subpoena, it would appear that the issue is MOOT.  The court presumes that if that witness responds that there are no responsive documents, no privilege would be invaded and no privacy interest would be threatened and, to the extent Spacey contends such is the case, the court interprets the objection as withdrawn (but only for that reason).

As to the other witnesses, the issue is joined.  There is no real doubt but that the subpoenae seek medical records and that most, if not all, would be within the asserted privileges.  And there is no real doubt but that obtaining the documents would be a significant invasion of Spacey’s privacy rights.  In other words, Spacey’s initial burden is to show that the privilege or privacy interest exists and he has done that.  The burden now shifts to the party seeking the records.

A bit of background.  Spacey is a well-known actor who starred in and ran the series House of Cards in the US.  At the time that the sixth and final season was in production, allegations surfaced accusing Spacey of inappropriate behavior on the House of Cards set.  Those allegations were followed by other allegations.  Spacey’s initial public reaction to those allegations was criticized and ultimately plaintiff and Netflix decided to re-do the sixth season without Spacey.  There was an arbitration involving Spacey that is not directly the subject of the instant case.

The instant case involves a claim made by plaintiff to its insurers.  Plaintiff alleges that it is covered for “sickness” or “illness” concerning Spacey that preclude Spacey from fulfilling his contractual obligations to the series.  The carriers have denied coverage, asserting that the facts here do not fall within the policy’s scope.  Thus, the instant case is not about the allegations surrounding Spacey, any judgments concerning the sixth season of the series, or the like; this is a coverage case.  But, because the question whether Spacey had an “illness” or “sickness” that came within the policy’s protection, Spacey’s condition is germane (or at least potentially germane) to the case.

Plaintiff asserts two basic reasons why the subpoenea ought to be enforced.  The first is that Spacey waived the privilege when he signed an authorization for the release of medical information as part of the underwriting process.  The second is that plaintiff’s interest in these records are insufficient to warrant invasion of the statutory privileges or the privacy privilege.

These are weighty questions and the court has grappled with them.  However, the court notes that there is a demurrer set for April 26, 2023.  If that demurrer is successful, this motion becomes moot, or at least potentially so.  (One could argue that if the demurrer is sustained with leave to amend, discovery ought to go forward.  The court, however, would pause.  If the demurrer is sustained and there is significant doubt whether a successful amendment is possible, the court would be inclined to stay this discovery pending final resolution.  In the court’s mind, the information sought is highly sensitive.  While the court understands and appreciates plaintiff’s willingness to designate the materials “Attorneys’ Eyes Only,” if the case is ultimately dismissed at the pleading stage, no invasion at all is the better result at least as it applies to a third party.  The court is therefore inclined to CONTINUE the matter to a date that follows the demurrer (not the same day).  The court notes that this ought NOT be read as a hint as to how the court views the demurrer.  The demurrer remains weeks away and, frankly, the court has not looked at it closely enough even to begin to form a view.  Further, the time to oppose the demurrer has not yet arrived.