Judge: Richard S. Whitney, Case: 37-2022-00032117-CU-PA-CTL, Date: 2023-08-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 03, 2023

08/04/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Auto Discovery Hearing 37-2022-00032117-CU-PA-CTL NIELSEN VS VIGENT [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF'S MOTION TO QUASH DEFENSE SUBPEONAS OF PHARMACY RECORDS (CVS PHARMACY INCORPORATION, HUMANA PHARMACY INC.) is GRANTED, in part.

Plaintiff JO NIELSEN ('Plaintiff') seeks to quash the subpoenas served by Defendants NATALIE VIGENT and LEE ALAN VIGENT ('Defendants') to Plaintiff's pharmacies. Plaintiff objects based on privacy and overbreadth. The subpoenas at issue seek all documents relating to Plaintiff's prescriptions.

This Court has the authority to quash or modify the subpoenas under CCP section 1987.1. Where the constitutional right to privacy is involved, the court must 'balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.' (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) 'The burden is on the party seeking the constitutionally protected information to establish direct relevance.' (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.) Disclosure of a party's medical history can be compelled only with respect to those medical conditions that are in issue by the action. (Britt v. Superior Court (1978) 20 Cal. 3d 844, 864.) The party to a lawsuit is 'entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.' (Id.) Plaintiff's pharmacy records are protected by a right to privacy. However, Plaintiff waived that right to the extent such records are directly relevant to Plaintiff's claim of injuries and the need for information pertaining to same outweighs Plaintiff's privacy interest. The difficulty lies in limiting the subpoenas to information that has direct relevance to Plaintiff's claim of injuries. Based on Plaintiff's discovery responses, Plaintiff's claims of injuries include, inter alia: brain injury; sprain of ligament of cervical spine; cervical disc disorder; sprain of ligament of thoracic spine; strain of muscle and tendon of back wall of thorax; sprain of ligaments of lumbar spine; strain of muscle, fascia and tendon of lower back; adjustment disorder with anxiety; acute stress; post-traumatic stress disorder; and sleep disorder. The possible causes of these issues could be very diverse, and Plaintiff acknowledged a history of complaints to her neck and lower back. Defendants should be allowed to discover pharmacy records that relate to Plaintiff's claims, but the Court does not know what pharmacy records relate to Plaintiff's claims.

Prior to the filing of this motion, Plaintiff offered a 'first look agreement' whereby Plaintiff's counsel would receive the pharmacy records service first, then produce relevant records and provide a privilege log for records that violated the Plaintiff's right to privacy. Defendants did not agree but offered to limit the records to the last five years. Defendants believed the parties would end up litigating the issue in any event.

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2929243  69 CASE NUMBER: CASE TITLE:  NIELSEN VS VIGENT [IMAGED]  37-2022-00032117-CU-PA-CTL The Court agrees the subpoenas are too broad as they are not limited by what issues are presented in this litigation. Rather than try to guess how the subpoenas could be properly narrowed, the Court adopts Plaintiff's suggestion of a 'first look agreement.' The Court orders that Plaintiff be given the opportunity first to review the pharmacy records to prepare a privilege log as to those records Plaintiff believes are protected by Plaintiff's right to privacy and/or a privilege. If the parties disagree regarding the withheld records, the parties can seek court intervention after meeting and conferring. The motion is granted to the extent discussed above. No sanctions are awarded.

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