Judge: Michael E. Whitaker, Case: 22STCV14240, Date: 2024-06-04 Tentative Ruling

Case Number: 22STCV14240    Hearing Date: June 4, 2024    Dept: 207

TENTATIVE RULING

MOTIONS

This case arises from a dispute concerning dental work Plaintiff Michelle Ortiz (“Plaintiff”) received from Defendant David Frey, DDS (“Defendant”).  The motions concern  disputes that arose during the May 3, 2024 deposition of Annie Mai (“Mai”), Defendant’s office manager.  Plaintiff and Defendant have each brought cross-motions for protective orders and sanctions and have opposed each other’s motions and replied to each other’s oppositions. 

ANALYSIS

            Protective Order

Per Code of Civil Procedure section 2025.420, subdivision (a), “before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” “The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Pro. § 2025.420, subd. (b).) Section 2025.420, subdivision (b), provides a nonexclusive list of directions that may be included in a protective order, including orders directing that the deposition may not be taken at all, that the deposition be taken at a different time, or that it be taken only on certain specified terms and conditions. (Id.) “A party seeking the protective order must show by a preponderance of the evidence that the issuance of a protective order is proper.” (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.)

            Defendant seeks a protective order precluding Mai from revealing the Health Insurance Portability and Accountability Act (“HIPAA”) protected information about Defendant’s current and past patients.  In particular, Plaintiff discovered a negative Yelp review for Defendant’s dental practice that was written by a “Frida” and indicates that “Frida” felt uncomfortable when Defendant asked her if she had a boyfriend.  During the deposition, Plaintiff sought the full identity of “Frida” and also asked Mai general questions about her understanding of the HIPAA rules and whether the medical record for “Frida” contains any information protected by HIPAA (without revealing any such confidential information.)  (See Ex. C to Richards Decl.) 

            Plaintiff contends that Defendant repeatedly asserted improper Speaking/Coaching objections during the deposition to questions about whether Dr. Frey asking female patients if they have boyfriends would violate the company’s sexual harassment policy or constitute sexual harassment under the California Dental Association’s definition and for improperly instructing Mai not to respond to any of Plaintiff’s general questions about Mai’s understanding of HIPAA’s rules or whether the file for “Frida” contains any such information.  Plaintiff seeks a protective order preventing Defendant from asserting these improper objections/instructions. 

            Foremost, the Court has read the excerpts from the Mai deposition submitted by Plaintiff and Defendant, and finds that both counsel engaged in conduct that ran afoul of the Guidelines for Civility in Litigation.  No counsel acted with the level of courtesy and professionalism that is expected during litigation especially during a deposition. 

            The Superior Court of Los Angeles County, Local Rules, rule 3.26, provides that “[t]he guidelines adopted by the Los Angeles County Bar Association are adopted as civility in litigation recommendations to members of the bar, and are contained in Appendix 3.A.”  Appendix 3.A. provides in pertinent part that during depositions “while a question is pending, counsel should not, through objections or otherwise, coach the deponent or suggest answers,” “counsel should refrain from repetitive or argumentative questions or those asked solely for purposes of harassment,” “counsel for all parties should refrain from self-serving speeches during depositions,” “counsel should bear in mind that most objections are preserved and need be interposed only when the form of a question is defective or privileged information is sought,” “counsel should not direct a deponent to refuse to answer questions unless they seek privileged information or manifestly irrelevant or calculated to harass,” and “Counsel should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer.” 

            For example, the Court agrees with Plaintiff that Defense Counsel engaged in “Speaking/Coaching” objections and Defense Counsel’s instructions to Mai not to respond to general questions about her understanding of HIPAA rules were improper.  On the other hand, the Court agrees with Defendant that Plaintiff’s counsel engaged in what amounts to harassing conduct, for example, including the protracted colloquy about documentation related to “Frida” obtaining a consultation from Defendant that were sprinkled with threats from Plaintiff’s counsel to file discovery motions. 

            Further, the Court agrees with Defendant that the identity of “Frida” as one of Defendant’s former patients is private and confidential information of a third party, and may also constitute “Individually identifiable health information” protected under HIPAA (see C.F.R. § 106.103) and is therefore inappropriate to disclose without first obtaining “Frida’s” consent.

            Discovery Referee

            In addition to the motion for a protective order and sanctions, both parties request that the Court appoint a discovery referee, but disagree about who should bear the costs of the referee. 

Per Code of Civil Procedure section 639, “[w]hen the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640: . . . [w]hen the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (Code Civ. Proc., § 639, subd. (a); see also Cal. Rules of Court, rules 3.922, et seq.)

“Notwithstanding a party's objection, subdivision (e) of section 639 authorizes the appointment of a discovery referee when the court “determines in its discretion” that such an appointment is “necessary. ” Implicit in the statutory requirement that the reference be “necessary” is the Legislature's acknowledgment of a litigant's right of access to the courts without the payment of a user's fee, and the concomitant notion that there ought to be a finding of something out of the ordinary before the services of a referee are forced upon a nonconsenting party. There was no such finding in this case, only a bare conclusion parroting the words of the statute. That is not enough, particularly where, as here, it appears that any judge could resolve this discovery “dispute” in about five minutes.” (Hood v. Superior Court (1999) 72 Cal.App.4th 446, 449 [cleaned up].)

The court of appeal has held that “[t]he court should not make blanket orders directing all discovery motions to a discovery referee except in the unusual case where a majority of factors favoring reference are present. These include: (1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming. In making its decision, the trial courts need consider the statutory scheme is designed only to permit reference over the parties' objections where that procedure is necessary, not merely convenient. Where one or more of the above factors unduly impact the court's time and/or limited resources, the court is clearly within its discretion to make an appropriate reference.” (Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105–106 [cleaned up].)

Here, the Court disagrees that a discovery referee is warranted.  The final status conference is currently scheduled for ten days from today, with the jury trial scheduled for July 1, 2024.  Therefore, the deposition of Mai appears to be the last piece of discovery at issue in this case, and this Order resolves the parties’ dispute. 

Therefore, the Court declines to order a discovery referee at this very late stage of the litigation.

            Sanctions

When a party misuses the discovery process, the court in its discretion may impose sanction.  (See generally Code Civ. Proc., §§ 2023.010, 2023.030.)  Misuses of the discovery process include, but are not limited to:

(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.

(b) Using a discovery method in a manner that does not comply with its specified procedures.

(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

(d) Failing to respond or to submit to an authorized method of discovery.

(e) Making, without substantial justification, an unmeritorious objection to discovery.

(f) Making an evasive response to discovery.

(g) Disobeying a court order to provide discovery.

(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.

(Code Civ. Proc., § 2023.010.)

            Here, the Court finds that both parties misused the discovery process by opposing each other’s motions without substantial justification.  Given the mutual misuses of the discovery process, the Court exercises its discretion and declines to award monetary sanctions.

CONCLUSION AND ORDER

            The Court grants in part and denies in part both motions for a protective order and orders Mai to appear for a second session of her deposition limited as follows:  (1) the deposition shall be limited to 4 hours, excluding breaks; (2) the deposition shall be completed on or before June 13, 2024, unless the parties stipulate otherwise; (3) Plaintiff is precluded from asking any questions about “Frida”; (4) counsel shall adhere to the Guidelines for Civility in Litigation; and (5) counsel shall meet and confer in a collaborative fashion forthwith, by telephone or virtual platform, or in person, to reset Mai’s deposition. 

            Further, the Court denies both parties’ requests to appoint a discovery referee and for monetary sanctions.  Further, the Court observes that non-expert discovery is closed as of June 3, 2024; as such, the Court denies Plaintiff’s requests that the Court order Defendant to appear for deposition and to continue the trial.

            The Clerk of the Court shall provide notice of the Court’s rulings.

DATED: June 4, 2024                                                            ___________________________

                                                                                    Michael E. Whitaker

                                                                              Judge of the Superior Court