Judge: Martha K. Gooding, Case: 21-01230089, Date: 2023-05-15 Tentative Ruling

1) Motion to Quash Discovery Subpoena

2) Motion to Quash Discovery Subpoena

Motion to Quash Subpoenas to Tier Wellness, Southland Neurologic Associates, Optumcare Medical Group, and Terry J. Dubrow

The Motion by Plaintiff Jane HT Doe (“Plaintiff”) to quash the subpoenas issued by Defendants Dr. Frederic H. Corbin and Frederic H. Corbin, M.D., APC (collectively, “Defendants”) to Tier Wellness, Southland Neurologic Associates, Optumcare Medical Group, and Terry J. Dubrow M.D. F.A.C.S is  DENIED subject to the caveats that (1) the Court orders that the subpoena is modified – and narrowed – as set forth below; and (2) the subpoenaed documents shall not be produced until a confidentiality protective order has been entered into the case.

The subpoenas directed to these entities are identical and ask for all medical records and billing records related to Plaintiff.  In her Complaint, Plaintiff alleges Defendants’ conduct caused her to suffer from “emotional distress, anxiety, nervousness and fear.”  (Complaint ¶ 32.)  In addition, Plaintiff alleges she “has been hurt in her health, strength and activity,” and “has sustained permanent and continuing injury to her nervous system and person…” (Id. ¶ 34.)

These allegations make clear that Plaintiff has put her medical condition at issue and is seeking damages as a result. 

A plaintiff seeking recovery for physical and mental injuries has “unquestionably waived their physician-patient and psychotherapist-patient privileges as to all information concerning the medical conditions which they have put in issue.” Britt v. Superior Court (1978) 20 Cal.3d 844, 849; see also In re Lifschutz (1970) 2 Cal.3d 415,433 (“[t]he patient, in raising the issue of a specific ailment or condition in litigation, in effect dispenses with the confidentiality of that ailment and may no longer justifiably seek protection from the humiliation of its exposure.”); see also Vinson, 43 Cal.3d at 839 (“[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”).

Plaintiff argues that a protective order should be in place before the release of these records because they are confidential and private.  The Court agrees.  Accordingly, the Court orders the parties to promptly meet and confer in good faith in an attempt to agree upon a reasonable confidentiality order to protect against public disclosure of Plaintiff’s medical records and information.  If the parties are not able to agree, Defendant shall submit to the Court the LA County Superior Court form protective order for entry in this action.

In addition, Plaintiff requests that, if the subpoenas are not quashed, she be given a right to take a “first-look” at the medical records to be produced, so that she can redact information she believes is irrelevant to this litigation and then produce the redacted records to Defendants with a privilege log.  Plaintiff cites to no legal authority that supports such a procedure, and the Court is not aware of any.  The Court denies this request. Plaintiff has put her medical condition at issue in very broad terms, claiming she has been harmed in her “health, strength and activity,” and “has sustained permanent and continuing injury to her nervous system and person.”  Accordingly, records her past and present medical records – within a reasonable date range, discussed below – are relevant and discoverable.

Defendants state they are willing to narrow the subpoenas to remove overbroad language, including the requests for imaging studies and reports, which are not at issue. That is fair.  The Court also finds that it is reasonable to limit the time period of the subpoenas to request only documents from 5 years prior to the incident (5/14/21) to the present.

As a result, the Court hereby orders that the subpoenas are narrowed in accordance with Defendants’ proffer, and to apply only to records dated from 5/14/16 until the present.

Motion to Quash Subpoenas to PIH Health Hospital, Supportive Hospice Care, Veteran’s Administration Hospital – Long Beach, and Keck Medicine of USC

Plaintiff’s Motion to quash the subpoenas issued by Defendants to PIH Health Hospital, Supportive Hospice Care, Veteran’s Administration Hospital–Long Beach, and Keck Medicine of USC is DENIED, subject to the same caveats noted above, to wit: (1) the Court orders the subpoenas are modified – and narrowed – as set forth below; and (2) the subpoenaed documents shall not be produced until a confidentiality protective order has been entered into the case.

These subpoenas request Plaintiff’s employment records.

In her Complaint, Plaintiff alleges that, as a result of Defendants’ actions, her employment and professional development has been adversely affected.  She has lost wages and “suffered substantial economic injury.” (Complaint, ¶ 33.)

The briefing is nearly identical to the first motion regarding Plaintiff’s medical records.

Plaintiff again asks that, if the subpoenas are not quashed, she be given a first-look stipulation and any documents be subject to a confidentiality/protective order.  The Court’s order with respect to these two requests as to this Motion is the same as its response to the motion to quash the subpoenas for her medical records:  in brief, the Court denies Plaintiff’s request for a “first look”; orders that no documents be produced pursuant to the subpoenas until a confidentiality order is in place; and orders the parties to promptly meet and confer in good faith to attempt to agree upon the terms of a reasonable protective/confidentiality order.

Plaintiff argues she has a privacy interest in her employment records and that Defendants’ subpoenas seek highly sensitive, personal information, including records that may include private information of third parties.  However, Plaintiff’s right to privacy “is not absolute,” and “[i]n appropriate circumstances, this right must be balanced against other important interests,” such as a party’s right to a fair trial. John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199 (citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37).)

Because Plaintiff has put her employment and financial compensation at issue, the requested records are relevant and discoverable.  Plaintiff has set forth no legal authority that suggests otherwise, based on the right to privacy.

Defendants agree to amend the subpoenas to include a provision that any financial information such as bank or checking account numbers are omitted from production.  The Court finds that this is fair and so orders.  In addition, as with the medical records a limitation as to the time frame of the records produced is reasonable and appropriate. 

As a result, the Court orders that the employment record subpoenas are narrowed in accordance with Defendants’ proffer, and to apply only to records dated from 5/14/16 until the present.

Defendants are ordered to give notice of both rulings.