Judge: Melissa R. Mccormick, Case: "Williams v. Sebag, et al.", Date: 2022-11-10 Tentative Ruling

Defendants Jerry Sebag and VMR Institute’s Motion for Protective Order

Defendants Jerry Sebag and VMR Institute move for entry of a protective order (i) sealing Sebag’s medical records produced by nonparty Hoag Memorial Hospital (Hoag) in response to a subpoena served by plaintiffs Greg Williams and Jamie Williams, (ii) directing that the records not be used for any purpose, including in this lawsuit, and (iii) instructing plaintiffs’ counsel to return the records.  For the following reasons, defendants’ motion is denied.

Plaintiffs allege Sebag told plaintiff Greg Williams he had had cancer but could nevertheless perform the September 2020 surgery on Greg Williams’s eye that underlies this case.  During Sebag’s deposition, Sebag testified without objection that he had taken time off work between November 2019 and January 2020 because he was diagnosed with cancer for which he underwent surgery at Hoag, and thereafter received chemotherapy between March and August 2020.  Sebag testified he told Greg Williams “that I had cancer that was cured and that I’m fully functional.”  Sebag further testified he did not have any neuropathy in his hands or weakness in his body as a result of the cancer treatment. 

Following Sebag’s deposition, plaintiffs served Hoag with a subpoena seeking Sebag’s medical records. The subpoena includes a “notice to consumer” stating, in relevant part:  “If you object to the production of these records, YOU MUST DO ONE OF THE FOLLOWING BEFORE THE DATE SPECIFIED IN ITEM a. OR b. BELOW: . . . If you are a party to the above-entitled action, you must file a motion pursuant to Code of Civil Procedure section 1987.1 to quash or modify the subpoena and give notice of that motion to the witness and the deposition officer named in the subpoena at least five days before the date set for production of records.”  Werre Decl. Ex. A.

Sebag did not file a motion to quash or modify the subpoena.  See Civ. Proc. Code § 1985.3(g).  Instead, Sebag’s counsel sent Hoag a letter (with a copy to plaintiffs’ counsel) objecting to the subpoena and stating Hoag should not produce any responsive records without a court order.  Werre Decl. Ex. B.  Sebag’s counsel’s letter did not stay production of the subpoenaed records because Sebag is a party to the lawsuit.  See Civ. Proc. Code § 1985.3(g).  In the absence of a motion to quash or modify the subpoena, Hoag properly produced documents responsive to the subpoena.  Defendants’ contention that Hoag’s production of the records constituted a “blatant misuse of the discovery process” is not correct.

Having failed to file a motion to quash or modify the subpoena, defendants now move for entry of a protective order (i) sealing Sebag’s medical records, (ii) directing that the records not be used for any purpose, including in this lawsuit, and (iii) instructing plaintiffs’ counsel to return the records.  Defendants contend the records should not have been produced because they contain private information and information subject to the physician-patient privilege.  Defendants also contend the records should not have been produced because Sebag’s health is irrelevant to this case.

To the extent defendants did not waive these objections by failing to file a motion to quash or modify the subpoena before Hoag produced the records, the objections lack merit and/or Sebag’s privacy concerns can be addressed by entry of a protective order that, inter alia, limits the use of the records to this case.  Plaintiffs have demonstrated Sebag’s cancer diagnosis, treatment, and alleged side effects are relevant to plaintiffs’ allegation that Sebag negligently performed Greg Williams’s eye surgery and, when balanced against Sebag’s privacy interests, outweigh those interests.  See Jain Declaration & Belani Declaration; Williams v. Superior Court (2017) 3 Cal.5th 531, 554-55.  In addition, plaintiffs proposed the parties stipulate to entry of a protective order limiting the use of the records and providing other protections.  See Johnson Decl. ¶ 5 & Ex. 3. 

The court will not at this juncture order entry of plaintiffs’ protective order to enable defendants an opportunity to address the proposed protective order with plaintiffs.  The court encourages the parties, however, to attempt to reach agreement on a protective order and to submit a proposed protective order to the court for approval.  Should the parties be unable to reach agreement, any party desiring entry of a protective order may file a motion for entry of a protective order.  

Defendants’ evidentiary objections are overruled.    

Plaintiffs to give notice.