Judge: Michael E. Whitaker, Case: 20STCV30889, Date: 2023-04-11 Tentative Ruling

Case Number: 20STCV30889    Hearing Date: April 11, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Plaintiff Yojan Perez Lopez (“Plaintiff”) filed a complaint against Defendants Arturo Solis and Adrian Solis dba ASG Scaffolding (collectively, “Defendants”) for injuries resulting from Plaintiff’s fall, while working on a construction project, from scaffolding installed by Defendants.  (See Complaint, ¶ 9.) 

            Plaintiff moves to quash the subpoenas issued by Defendants to the following entities:

(1) National Providers Solution, (2) Travelers Property Casualty Company of America, (3) Law Offices of Keith Nguyen, (4) Law Offices of Cipolla Calaba, and (5) Jerry’s Famous Deli, Inc.  Defendants oppose the motion. Plaintiff replies.

ANALYSIS

1.      DISCOVERY – GENERAL PRINCIPLES

            “The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise.  In other words, the discovery process is designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”  (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)  

Current discovery standards hold that, “any 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.”  (Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, 1039 (hereafter Board of Nursing).)  “To meet this [test], a party seeking to compel [the] production of records . . . must articulate specific facts justifying the discovery sought; it may not rely on mere generalities.”  (Ibid.; see Johnson v. Superior Court (1968) 258 Cal.App.2d 829, 837 [finding that a subpoena was “insufficient” to compel production because it was “based wholly on the [party’s] alleged information and belief without any statement of supporting facts”].)  However, “[e]ven if information is otherwise discoverable, it may be protected by a constitutional or statutory privilege[,] [including] the right to privacy . . . .”  (Board of Nursing, supra, 59 Cal.App.5th at p. 1039.) 

a.      RIGHT TO PRIVACY

            “The state Constitution expressly grants Californians a right to privacy.  Protection of informational privacy is the provision's central concern.  .  .  .  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.^[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.  A court must then balance these competing considerations.”  (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (hereafter Williams) [cleaned up].)

            “Legally recognized privacy interests [include] interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’) .  .  .  .”  (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.)  “A particular class of information is [sensitive or confidential] when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.”  (Ibid.) 

                                                              i.            Health Care Records

It is “well-settled” that “patients have a right to privacy with respect to information contained in . . . [their] medical records.”  (Grafilo v. Wolfsohn (2019) 33 Cal.App.5th 1024, 1034.)  Indeed, a patient’s right to privacy “is protected by case law as well as state and federal statutes and regulations.”  (County of Los Angeles v. Superior Court (2021) 65 Cal.App.5th 621, 641 (hereafter County of Los Angeles).)  Additionally, “[t]he privacy interest in psychiatric records is particularly strong, and in some respects, entitled to more robust protection than other types of medical records.”  (Grafilo v. Soorani (2019) 41 Cal.App.5th 497, 507.) 

            “As one court explained in discussing the examination of medical records vis-à-vis the right to privacy:  the information that may be recorded in a doctor’s files is broad-ranging.  The chronology of ailments and treatment is potentially sensitive.  Patients may disclose highly personal details of lifestyle and information concerning sources of stress and anxiety.  These are matters of great sensitivity going to the core of the concerns for the privacy of information about an individual.”  (County of Los Angeles, 65 Cal.App.5th at pp. 641–642 [cleaned up].) 

            In Britt v. Superior Court (1978) 20 Cal.3d 844, 859, it was recognized that “the filing of a lawsuit may implicitly bring about a partial waiver of one’s constitutional right of . . . privacy.”  However, the California Supreme Court held that “the scope of such ‘waiver’ must be narrowly rather than expansively construed.”   (Ibid.)  In other words, “while [a plaintiff] may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.”  (Ibid.)  Therefore, it follows that a patient cannot reasonably expect certain matters to remain private if they are related to the specific issues that the patient has himself brought before a court.  On the other hand, it is objectively reasonable to expect health care records that are unrelated to a current legal dispute to remain private.

                                                            ii.            Employment Records

A party has a right of privacy in his or her employment records. (See Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1426.)  “The public interest in preserving confidential, personnel information generally outweighs a private litigant’s interest in obtaining that information.  A showing of relevancy may be enough to cause the court to balance the compelling public need for discovery against the fundamental right of privacy.”  (Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652)  “[O]bvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.”  (Williams, supra, 3 Cal.5th at p. 557.)  “Even when the balance does weigh in favor of disclosure, the scope of disclosure must be narrowly circumscribed.” (Life Technologies, supra, 197 Cal.App.4th at pp. 652-653 [emphasis original].) 

b.      ATTORNEY CLIENT PRIVILEGE

            Per Evidence Code section 954, “[t]he client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:  (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.”  (Evid. Code, § 954.) 

c.       ATTORNEY WORK PRODUCT DOCTRINE

            The attorney work product doctrine is codified under Code of Civil Procedure section 2018.010, et seq. 

It is the policy of the state to do both of the following:

(a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.

(b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts.

(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.

(See Code Civ. Proc., §§ 2018.020, 2018.030.)  “Absolute protection is afforded to writings that reflect ‘an attorney's impressions, conclusions, opinions, or legal research or theories.’ All other work product receives qualified protection; such material ‘is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.’ ”  (Coito v. Superior Court (2012) 54 Cal.4th 480, 485, citations omitted.)

2.      MOTION TO QUASH - SUBPONENAS

If a subpoena requires the production of documents, the court may quash the subpoena entirely or modify it.  (Code Civ. Proc., § 1987.1, subd. (a); City of Los Angeles v. Superior Court (2003) 111 Cal.App.4th 883, 888 [“In general, the procedural remedy against a defective subpoena duces tecum that calls for privileged matter is a motion to quash, vacate, recall, or modify the subpoena”].)  Here, Plaintiff moves to quash the subject subpoenas which seek the following:

1.      “Any and all employment records, including but not limited to earnings, profits, commissions, bonuses, business income, salary, payroll, attendance, health records, workers' compensation claims, medical information, employment applications, job performance evaluations, date of hire, date and reason for termination, personnel records, and records related to employment or employee benefits, including any and all W2's and/or 1099's regarding YOJAN PEREZ LOPEZ AKA Rolando Perez Lopez, born on November 18, 1976, with SS# UNK, from any and all dates.”  (Subpoena to Jerry’s Famous Deli, Inc.)

2.      “Any and all documents and records pertaining to the insurance and claim file of YOJAN PEREZ LOPEZ AKA Rolando Perez Lopez, including, but not limited to, all payments, policy information, listing of providers, correspondence, all log notes, declaration of coverage, EOB's (explanation of benefits), Health Insurance Claim Forms and Claims Details, medical records, color photographs pertaining to YOJAN PEREZ LOPEZ AKA Rolando Perez Lopez, born on November 18, 1976, with SS# UNK, from any and all dates.”  (Subpoena to National Providers Solution)

3.      “Any and a// documents and records pertaining to the insurance and claim file of YOJAN PEREZ LOPEZ AKA Rolando Perez Lopez, including, but not limited to, a// payments, policy information, listing of providers, correspondence, all log notes, declaration of coverage, EOB's (explanation of benefits), Health Insurance Claim Forms and Claims Details, medical records, color photographs pertaining to YOJAN PEREZ LOPEZ AKA Rojando Perez Lopez, born on November 18, 1976, with SS# UNK, from any and a// dates.”  (Subpoena Travelers Property Casualty Company of America)

4.      “Any and all non-privileged Information In your files regarding YOJAN PEREZ LOPEZ AKA Rolando Perez Lopez, DOB: November 18, 1976, SS# UNK, from any and all dates.”  (Subpoena to Law Office of Keith Nguyen)

5.      “Any and all non-privileged information in your files regarding YOJAN PEREZ LOPEZ AKA Rolando Perez Lopez, DOB: November 18, 1976, SS# UNK, from any and all dates.”  (Subpoena to  Law Offices of Cipolla Calaba)

(See Plaintiff’s Separate Statement; see also Declaration of Brianna Franco, ¶ 3; Exhibit 1.)

            First, Plaintiff argues that the subpoenas are not limited in time and scope, and therefore Plaintiff’s right to privacy is violated as to his employment, health care and legal records. Second, with respect to the subpoenas issued to the law offices, Plaintiff contends that the subpoenas may result in the production of records subject to the attorney-client privilege or the attorney work product doctrine because the subpoenas are not narrowly tailored in time and scope.  In addition, Plaintiff contends that the subpoenas are not restricted to body parts he claims were injured in the action, and thus the subpoenas seek records that will not lead to the discovery of admissible evidence.

            In opposition, Defendants argue the subject subpoenas justified because they “relate to Plaintiff’s alleged medical injuries and his misrepresentation that he has no pre-existing injuries that involve the same body parts for which injuries are claimed in the subject action.”  (See Separate Statement in Opposition.)  Notwithstanding, Defendants contend that the subpoenas may be revised, making Plaintiff’s objections moot.  (See Separate Statement in Opposition.)  For example, Defendants suggest amending the subpoena to Jerry’s Famous Deli, Inc. as follows:

“All records that document wages earned and medical information, workers' compensation claims, disability claims, and/or personal injury claims that allege any of the following injuries: back, neck, knee, thorax, face, scalp, left shoulder, left index finger, headaches, memory loss, foot pain, and/or brain injuries regarding YOJAN PEREZ LOPEZ AKA Rolando Perez Lopez, born on November 18, 1976, with SS# UNK, from any and all dates.” Attorney client communications and attorney work product are not sought.”

The Court finds Defendants’ suggested revisions to the subject subpoenas to be tacit admissions the subpoenas as crafted are objectionable.  Notwithstanding, the Court finds that the suggested revisions to the subject subpoenas are still problematic because they are not limited in time.  As such, Defendants seek records that may extend to the birth of Plaintiff which is almost 50 years ago.  Defendants quest to obtain Plaintiff’s records which span decades is not warranted under the circumstances even with the Court liberally construing the objectives of the Discovery Act. 

CONCLUSION AND ORDER

The Court agrees with Plaintiff that the subpoenas are too expansive in terms of time and scope, and as crafted, the Court finds that the subpoenas violate Plaintiff’s right to privacy, the attorney client privilege and the attorney work product doctrine.  In particular, the Court finds that the scope of the subpoenas is not in line with Plaintiff’s claimed injuries in the action.  Therefore, the Court grants Plaintiff’s motion to quash the subject subpoenas outright. 

Plaintiff shall give notice of the Court’s ruling and file a proof of service of such.