Judge: Nathan Vu, Case: 2021-01183575, Date: 2022-10-17 Tentative Ruling
Please Note: The hearing on this matter has been changed to 8:30 A.M.
Motion to Compel
Defendants Christina Elaine Wing’s and Christopher Thomas Wing’s motion to compel the deposition of and production of documents from Nonparty First Priority Management Services’ person most knowledgeable is GRANTED in part and DENIED in part.
Nonparty First Priority Management Services is ORDERED to produce the person most knowledgeable as to category numbers 1, 4, and 5 for deposition at a mutually agreeable date and time, but no later than 30 days after receiving notice of this ruling.
The motion to compel is DENIED as to category numbers 2 and 3.
Nonparty First Priority Management Services is ORDERED to produce at the deposition all non-privileged documents responsive to document requests numbers 1, 4, 5, 7, 8, 13, 18, 19, and 20.
Nonparty First Priority Management Services may produce these documents subject to a protective order for the confidential treatment of discovery, provided the parties enter into and the court approves such a protective order.
Nonparty First Priority Management Services may withhold documents on the basis of privilege or other discovery protections, provided it provides a privilege log as required by the Civil Discovery Act. (See Civil Proc. Code, § 2031.240, subd. (c)(1); Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 291-292; Wellpoint Health Networks, Inc. v. Superior Ct. (1997) 59 Cal.App.4th 110, 130.)
The parties and Nonparty First Priority Management Services are ORDERED to meet and confer on a protective order for the confidential treatment of discovery no later than 10/24/2022.
The motion to compel is DENIED as to document requests numbers 2, 3, 6, 9, 10, 11, 12, 14, 15, 16, 17, 21, 22, 23, and 24.
The court DENIES all requests for sanctions in relation to this motion to compel.
Defendants Christina Elaine Wing and Christopher Thomas Wing move to compel the deposition and production of documents from Nonparty First Priority Management Services’ (First Priority) person most knowledgeable.
Compelling Nonparty Deposition
A nonparty may be required to appear to give oral testimony in a deposition and/or to produce documents by serving them with a subpoena a sufficient time in advance to allow the nonparty a reasonable opportunity to travel to the place of deposition and/or to locate and produce any designated documents. (See Civil Procedure Code, §§ 1985 & 1987, & 2020.220.)
Civil Procedure Code section 2025.480(a) provides: “If a deponent fails to answer any question or to produce any document or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”
However, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, . . . the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Civil Proc. Code, § 1987.1.)
Nonparty Privacy Rights and Discovery
Because of the potential intrusion on a nonparty’s privacy rights, a party seeking to compel production of records from a nonparty “must articulate specific facts justifying the discovery sought; it may not rely on mere generalities. (Board of Registered Nursing v. Superior Court, 59 Cal.App.5th 1011, 1039 (2021).) Courts must assess a party’s justifications with a mind towards the limited scope of discovery that is available from nonparties. (Ibid.)
Particularly for nonparty subpoenas, courts have scrutinized “[a] practice [that] has arisen to use the procedures of sections 2020 and 2031 as devices to determine whether documents exist.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224). “This places a great burden on the responding party, a burden which should generally be borne by the party seeking the discovery.” (Id. at p. 222).
“[P]articularly when dealing with an entity which is not even a party to the litigation, the court should attempt to structure discovery in a manner which is least burdensome to such an entity.” (Ibid.) “The very vice of [a] subpoena's promiscuity is well illustrated by [a party’s] inability to provide focused, fact-specific justifications for its demands.” (Id. at p. 224). Accordingly, when demanding documents from a nonparty, it is not enough to ask broad questions to determine “whether documents exist;” rather the demands must be specific and particularized and the requesting party must have a specific reason for any particular item. (Id. at pp. 222-224.)
When privacy rights are implicated, the broad sweep of discovery is significantly narrowed, such that information can be discovered on a showing of a particularized need by the party seeking discovery, and by demonstrating that the discovery sought is directly relevant to a claim or defense, and that there is no less intrusive alternative. (Britt v. Superior Court (1978 20 Cal.3d 844.) “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice” for showing direct relevance as to private information sought in discovery. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017-1020 [directing trial court to grant motion to quash as to discovery request that was not narrowly drawn to enable the court to evaluate the appropriate extent of disclosure].)
If the court determines that the records are directly relevant to the action, it must carefully balance the need for discovery against the right of privacy. (Id. at 525.) The party seeking the discovery must show that the information cannot be obtained through depositions or non-confidential sources, and if discovery is allowed it must be minimally intrusive. (Harding Lawson Assocs. v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.)
The right to privacy extends to medical and financial records. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 841; Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014; John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198).
Medical Billing Information in Personal Injury Cases
In Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, the Supreme Court held that an award of past medical expenses is limited to the lesser of (1) the amount paid or incurred or (2) the reasonable value of the services rendered. (Id. at p. 556.)
Accordingly, “[i]t follows from our holding that when a medical care provider has, by agreement with the plaintiff's private health insurer, accepted as full payment for the plaintiff's care an amount less than the provider's full bill, evidence of that amount is relevant to prove the plaintiff's damages for past medical expenses and, assuming it satisfies other rules of evidence, is admissible at trial.” (Id. at p. 567.) In that circumstance, “evidence of the full billed amount is not itself relevant on the issue of past medical expenses.” (Ibid.)
In Pebley v. Santa Clara Organics, LLC (2018) 22 Cal.App.5th 1266, the court of appeal explained that Howell v. Hamilton Meats & Provisions, Inc. applied to cases in which the plaintiff was insured and that the analysis is different where a plaintiff is uninsured or chooses to seek medical care outside of his or her insurance plan. (Id. at p. 1269.)
Pebley v. Santa Clara Organics, LLC held, “when a plaintiff is not insured, [evidence of the full amount of the] medical bills are relevant and admissible to prove both the amount incurred and the reasonable value of the medical services provided.” (Id. at p. 1275.)
Under these standards, in personal injury cases, courts have found the following documents discoverable:
Categories of Deposition Testimony
First Priority objects to each of the categories of deposition testimony set out by Defendants in the deposition subpoena on the grounds of relevance, nonparty privacy, commercially sensitive/confidential and/or proprietary business information.
Based on the legal standards set forth above, the court rules that deposition testimony categories numbers 1, 4, and 5 are discoverable and relevant, and that any privacy interests are outweighed by Defendants’ need for this information.
As the cases above establish, the total amount billed to Plaintiff does not necessarily reflect the reasonable value of medical services rendered — particularly if Plaintiff is not liable for that amount. Whether or not a negotiated rate was accepted by Plaintiff’s medical providers, whether or not any medical bills have actually been paid by Plaintiff, and the amount that Plaintiff is actually liable to First Priority may all be relevant in establishing the reasonable value of medical services. These topics, therefore, go to the issues of what was actually billed, paid, and/or actually incurred by Plaintiff.
Further, the amount that First Priority (i.e., the fee schedule) was willing to pay for the medical lien may be relevant and discoverable (even if not admissible at trial) on the reasonable value of the services and/or the amounts incurred by Plaintiff. (See Moore v. Mercer , supra, 4 Cal.App.5th at p. 443.)
Based on the legal standards set forth above, the court finds that deposition testimony categories numbers 2 and 3 are overbroad and infringe on First Priority’s private proprietary information, and Defendants’ need for this information does not outweigh First Priority’s privacy interests.
First Priority’s relationship with other medical providers and other patients has no or little bearing on the reasonable value of the medical expenses that Plaintiff incurred. Such discovery does not take into account other collateral factors that affect other third-party cases. These categories implicate First Priority’s privacy rights but are not narrowly tailored.
Requests for Production
Under Qaadir, Moore, and Howell and its progeny, document request numbers 1, 4, 5, 7, 8, 13, 18, 19, and 20 may lead to admissible evidence or the discovery of admissible evidence that is relevant to the reasonable value of or the amount incurred by Plaintiff for the medical services rendered. What was charged and billed to Plaintiff versus what was negotiated versus what a medical financial provider pays for a medical lien are relevant to these issues (even if not necessarily admissible at trial).
As these documents relate to the amounts paid by First Priority, they are relevant to the reasonable value of the medical services rendered and/or the amounts incurred by Plaintiff. Any privacy concerns thus are outweighed by Defendant’s need for this discovery. Further, First Priority’s privacy concerns can be protected by an appropriate protective order.
Under the standards enunciated above, document requests numbers 2, 3, 6, 9, 10, 11, 12, 14, 15, 16, 17, 21, 22, 23, and 24 are overbroad, unduly burdensome, not particularized to the allegations and claims in this case, and infringe on First Priority’s privacy rights.
These documents seek broad financial and other information that could implicate the privacy rights not only of First Priority but also other nonparties such as patients. Defendants do not adequately explain the need for these requests that do not particularly or narrowly request specific documents that are tied to Plaintiff’s damages or other relevant issues in this case.
“Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.” (Davis v. Superior Court , supra, 7 Cal.App.4th at pp. 1017-1020.) The court finds that these requests are not reasonably particularized or narrowed. In addition, Defendants have not met their burden of establishing specific facts to justify the discovery sought or that no less intrusive alternative exist.
Sanctions
However, if the results of the motion to compel are mixed, the trial court has the discretion to apportion sanctions or award no sanctions on any terms as may be just. (See Mattco Valley Forge v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1437.)
The court finds that both Defendants’ and First Priority’s positions had some merit and that both acted with substantial justification on this complicated issue, as shown by the court’s decision to grant some of the relief requested by both sides. The court therefore denies all requests for sanctions.
Defendants shall give notice of this ruling.