Judge Steven A. Ellis, Case Number: 20STCV24917, Date: 2023-06-20 Tentative Ruling

Judge: Steven A. Ellis, Case: 20STCV24917, Date: 2023-06-20 Tentative Ruling

Case Number: :20STCV24917 Hearing Date: June 20, 2023 Dept: 29

TENTATIVE

Defendants’ motion to compel compliance with subpoena for production of records is DENIED.

Legal Standard

When a subpoena has been issued requiring the attendance of a witness or the production of documents, electronically stored information, or other things before a court or at the taking of a deposition, the court, upon motion “reasonably made” by the party, the witness, or any consumer whose personal records are sought, or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court may specify. (See Code Civ. Proc. § 1987.1; Southern Pac. Co. v. Superior Court (1940) 15 Cal.2d 206.)

The court can compel a witness’ compliance with a subpoena on such terms and conditions as appropriate to protect parties or witnesses from “unreasonable or oppressive demands” including unreasonable violations of the right of privacy of the person. (Code Civ. Proc., § 1987.1, subd. (a).)

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Generally, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. § 2017.010; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.)

Discussion

Defendants move to compel compliance with their subpoena for Plaintiff’s medical, billing, pharmacy and radiological records. Defendants argue that Plaintiff is alleging future medical treatment for her neck, back, and brain injury, including MRI and neuro-psychological testing. In October 2022, Defendants issued deposition subpoenas for production of medical, billing, pharmacy, and radiological records to Kaiser Permanente. On November 7, 2022, Plaintiff served objections to the Kaiser subpoenas. (Exh. 2.) Defendants agreed to limit the scope as to time, from December 10, 2019 to the present. Plaintiff requested that she be given an opportunity for a first look at the Kaiser records for redactions. Defendants did not agree and then reissued modified subpoenas. (Exhs. 4, 5, 6, 7.) Kaiser Permanente did not comply, and then Defendants filed this motion.

Defendants’ motion is denied.

First, California Rules of Court, rule 3.1346 requires a motion to compel compliance with a deposition subpoena to be personally served on the non-party whose compliance is sought. According to the proof of service attached to the motion, Defendant has served Kaiser by mail. This does not comply with rule 3.1346.

Second, and independently, there is no proof of service showing that Kaiser was personally served with the subpoenas at issue. The proofs of service attached to the subpoenas issued to Kaiser are blank. (Exh. 4, 5, 6, 7.)

The Court also notes that even if there were no issues with service, Plaintiff has raised privacy objections to the subpoenas. The right of privacy of individuals is protected by the California Constitution. (Cal. Const., Art. I, § 1.) In Williams v. Superior Court (2017) 3 Cal.5th 531, the California Supreme Court set forth the framework for evaluating privacy objections in discovery and held that, generally, “[t]he 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. 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, supra, 3 Cal.5th at p. 533, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) The Court need not undertake this careful balancing of competing considerations here, however, as there has not been proper service of the subpoenas or the motion to compel.

Conclusion

Accordingly, Defendants’ motion to compel compliance with subpoena for production of records is DENIED.

Moving party is ordered to give notice.

Note: once the Court has posted/issued a tentative ruling, the Court has the inherent authority to deny a party’s request to withdraw the motion and to adopt the tentative ruling as the order of the Court.