Judge: Richard S. Whitney, Case: 37-2023-00037171-CU-PA-CTL, Date: 2024-05-10 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 09, 2024

05/10/2024  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 37-2023-00037171-CU-PA-CTL BECK VS HSU [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF RICHARD TRAVIS BECK'S MOTION TO QUASH DEFENDANT'S MEDICAL SUBPOENA OR IN THE ALTERNATIVE LIMIT THE SCOPE OF THE MEDICAL SUBPOENA OR PROVIDE AN IN-CAMERA INSPECTION REVIEW OF ALL MEDICAL RECORDS is GRANTED, in part.

Plaintiff RICHARD TRAVIS BECK ('Plaintiff') seeks to quash the subpoenas issued by Defendant Mary Hsu ('Defendant') to obtain medical records from various entities. 'Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum.' (Code Civ. Proc., § 1985.3(g).) This Court has the authority to quash or modify the subpoena under CCP section 1987.1. '[T]he 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.' (Code Civ. Proc., § 1987.1(a).) Discovery requests that seek information that 'might reasonably assist [Plaintiff] in evaluating the case, preparing for trial, or facilitating settlement' may be permissible. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) '[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.' (Code Civ. Proc., § 2017.010.) ''Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' (Evid. Code, § 210.) '[D]oubts as to relevance should generally be resolved in favor of permitting discovery.' (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790 [Citation omitted].) 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.) The Court interprets this requirement as being fulfilled where it is shown specific averments or reasonable interpretations from the pleadings and/or discovery responses indicate the information sought would be relevant to the action and that such indications must go beyond mere speculation. (Id.) The California Supreme Court has described the manner to address privacy concerns in the context of discovery disputes as follows: Calendar No.: Event ID:  TENTATIVE RULINGS

3065179  66 CASE NUMBER: CASE TITLE:  BECK VS HSU [IMAGED]  37-2023-00037171-CU-PA-CTL 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.

[Citation] 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.) '[I]f intrusion is limited and confidential information is carefully shielded from disclosure except to those who have a legitimate need to know, privacy concerns are assuaged.' (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 38.) Defendant first argues the motion should be denied because Plaintiff did not file a separate statement.

California Rules of Court, Rule 3.1345 requires that a separate statement be filed with a motion to quash. The Court has discretion to deny a motion to compel based on the failure to file a required separate statement. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 892-894.) The motion may be denied for this reason alone.

Next, Defendant asserts the witnesses and deposition officers were not properly served with notice, as required. 'Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production. The failure to provide notice to the deposition officer shall not invalidate the motion to quash or modify the subpoena duces tecum but may be raised by the deposition officer as an affirmative defense in any action for liability for improper release of records.' (Code Civ. Proc., § 1985.3(g) [Emphasis added].) The Court find the subpoenas may not be denied based on the failure to properly serve the witnesses and deposition officers.

Contrary to Plaintiff's assertions, Plaintiff's discovery responses indicate Plaintiff has placed more than certain body parts (back, left hand, left leg, and neck only) at issue – Plaintiff, inter alia, claims injuries that caused 'significant memory disfunction, concentration difficulties, episodic dizziness, vertigo and imbalance, bilateral tinnitius, insomnia and sleep disturbances, light and noise sensitivity, fatigue, anxiety, depression, mood changes, concussion without the loss of consciousness, traumatic brain injury....' (Decl. MacKinnon, Exhibit A.) 'The patient-litigant exception usually arises in an action for personal injuries. A plaintiff seeking to recover damages arising out of a particular injury cannot claim the physician-patient privilege with respect to that injury because plaintiff's action tenders the issue.' (Manela v. Superior Court (2009) 177 Cal.App.4th 1139, 1149.) It appears narrowing the requests to the right 'body parts' would be a potentially perilous task for Defendant given the breadth of the injuries at issue. However, the Court understands Plaintiff's concerns.

Rather than deny the motion based on the failure to file a separate statement, the Court elects to address the merits. The Court find Defendant's offer to limit the subpoenas by excluding sensitive personal information such as sexually transmitted diseases and sexual assaults, as well as limiting the time frame to five years was reasonable. The Court elects to modify the subpoenas to reflect this limitation. The motion is granted, in part, to the extent it is limited by excluding sensitive personal information related to sexually transmitted diseases and sexual assaults. Further, the time frame is hereby limited to the five years prior to the accident. No sanctions are awarded.

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