Judge: Teresa A. Beaudet, Case: 23STCV06517, Date: 2024-09-05 Tentative Ruling

Case Number: 23STCV06517    Hearing Date: September 5, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiffs Devin Estime, a minor, by and through his Guardian Ad Litem, Arti Bhimani; Michel Estime; and Arti Bhimani filed this action on February 22, 2022 against a number of defendants. On January 26, 2024, Plaintiff Devin Estime, a minor, by and through his Guardian Ad Litem, Arti Bhimani (“Plaintiff”) filed the operative Second Amended Complaint (“SAC”) against defendants Southern California Permanente Medical Group (“SCPMG”) and Enrique Earle Emel, M.D. (“Emel”). The SAC alleges causes of action for (1) negligence and (2) unfair business practices.

Plaintiff now moves for an order compelling Emel to serve further responses and produce all documents responsive to Plaintiff’s Requests for Production of Documents, Set Two, Nos. 20-23 and 33-35; and to serve further responses to Plaintiff’s Special Interrogatories, Set Two, Nos. 34-37. Emel opposes. 

Plaintiff also moves for an order compelling SCPMG to serve further responses and produce all documents responsive to Plaintiff’s Requests for Production of Documents, Set Three, Nos. 44-50 and 53; and to serve further responses to Plaintiff’s Special Interrogatories, Set Two, Nos. 34-40. SCPMG opposes. 

In addition, Plaintiff moves for an order compelling SCPMG comply with its response to Request for Production of Documents No. 6. SCPMG opposes.

Discussion

A.    Motion to Compel Emel’s Further Responses and Production as to Plaintiff’s Requests for Production, Set Two and Special Interrogatories, Set Two

Code of Civil Procedure section 2031.310, subdivision (a) provides that “[o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1)¿A statement¿of compliance with the demand is incomplete. (2)¿A representation of inability to comply is inadequate, incomplete, or evasive. (3)¿An objection in the response is without merit or too general.” A motion under subdivision (a) shall “set forth specific facts showing good cause justifying the discovery sought by the demand,” and “shall be accompanied by a meet and confer declaration…” ((Id., § 2031.310, subd. (b).) In addition, “the court shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” ((Id., § 2031.310, subd. (h).)  

Code of Civil Procedure section 2030.300, subdivision (a) provides that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1)¿An answer to a particular interrogatory is evasive or incomplete. (2)¿An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3)¿An objection to an interrogatory is without merit or too general.” Such a motion “shall be accompanied by a meet and confer declaration…” (Code Civ. Proc., § 2030.300, subd. (b)(1).) In addition, “[t]he court shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2030.300, subd. (d).)  

On February 23, 2024, Plaintiff served Special Interrogatories, Set Two and Requests for Production of Documents, Set Two on Emel. (Ganesan Decl., ¶ 3, Exs. A-B.) On March 11, 2024, Emel served responses to Plaintiff’s Special Interrogatories, Set Two. (Ganesan Decl., ¶ 4, Ex. C.) On March 26, 2024, Emel served responses to Plaintiff’s Requests for Production of Documents, Set Two. (Ganesan Decl., ¶ 4, Ex. D.)

In her supporting declaration, Plaintiff’s counsel states that “[o]n April 24, 2024, [Thomas Bradford, counsel for Dr. Emel] and I met and conferred about the deficiencies of the responses to the RFPs and SROGs. Mr. Bradford stood by Dr. Emel’s objections to all the RFPs and SROGs at issue. Mr. Bradford further refused to produce any of the documents requested.” (Ganesan Decl., ¶ 6.) Plaintiff’s counsel states that “[o]n May 7, 2024, the Parties participated in an IDC with the Court regarding Defendants’ insufficient responses and improper objections to Plaintiff’s discovery.” (Ganesan Decl., ¶ 7.) The Court’s May 7, 2024 minute order provides, inter alia, that “[t]he parties completed their Informal Discovery Conference requirement for the issues identified in their IDC Statements for the May 7, 2024 IDC dated April 26, 2024 (3) and May 2, 2024 for Defendants. Plaintiff may file motions to compel/compel further within 30 days of the date of this order.”

Requests for Production of Documents, Set Two, Nos. 20-23 and 33-35    

Plaintiff’s Request for Production No. 20 seeks “All DOCUMENTS that IDENTIFY the number of MINORS for whom YOU observed ‘scoliosis’ or ‘lumbar scoliosis’ in a patient as found in the ‘clinical notes’ section of the MINOR’s medical records during the RELEVANT TIME PERIOD, including the corresponding dates those observations were made.”

Plaintiff’s Request for Production No. 21 seeks “All DOCUMENTS that IDENTIFY the number of MINORS for whom YOU listed ‘scoliosis’ or ‘lumbar scoliosis’ as a diagnosis in the ‘Assessment’ section of the MINORS’ respective medical records between during the RELEVANT TIME PERIOD, including the patients’ respective MRN, and the corresponding dates those diagnoses were made.”

Plaintiff’s Request for Production No. 22 seeks “All DOCUMENTS that IDENTIFY the number of MINORS for whom YOU ordered an x-ray to confirm a diagnosis for scoliosis during the RELEVANT TIME PERIOD, including the the [sic] corresponding dates the x-rays were ordered by YOU.”

Plaintiff’s Request for Production No. 23 seeks “All DOCUMENTS that IDENTIFY the number of minors for whom YOU REFFERED to an orthopedic specialist for the treatment of scoliosis during the RELEVANT TIME PERIOD, the corresponding dates the REFERRALS were ordered by YOU.”

Emel’s responses to Requests for Production Nos. 20-23 provide, “Defendant objects to this request as vague, ambiguous, overbroad, and not reasonably calculated to lead to the discovery of admissible evidence. [Furthermore,] [i]t is burdensome and harassing. Finally, it violates both Federal and State law third-party patient privacy rights as the only documents that would contain this information are patient medical records.”

In his declaration in support of the opposition, Emel’s counsel states that “on September 15, 2023, Dr. Emel served verified amended responses to Plaintiff’s Request for Production, set one, and amended responses to numbers 14, 15, and 16, by stating that the only documents responsive to the number of minors whom he had diagnosed with scoliosis and referred to an orthopedic specialist are Plaintiff’s medical records, i.e. Plaintiff is the only minor whom he had diagnosed with scoliosis.” (Bradford Decl., ¶ 7.) Emel’s counsel also indicates that “[o]n July 26, 2024, Plaintiff took the second deposition of Ana Tordilla to testify as the PMK for inquiries dealing with number of minors whom Dr. Emel had diagnosed with scoliosis.” (Bradford Decl., ¶ 14.) Emel cites to the following testimony from Ms. Tordilla’s deposition: “Q[.] Okay. And so was her request just generally for scoliosis patients, or did she ask you specifically for Dr. Emel’s patients? A[.] At first it was general. So I did a broad search and then I think a few weeks later then she asked from that report, do you see or can you find Dr. Emel’s name on the report? And so I did a control find or control F on the spreadsheet and sure enough there was one case that popped up from that report or from that query.” (Bradford Decl., ¶ 14, Ex. K (Tordilla Depo.) at pp. 62:18-63:2.)

Emel contends that accordingly, “Dr. Emel has already provided a sufficient response as to the number of minors whom he has diagnosed with scoliosis, i.e. Devin Estime.” (Opp’n at p. 9:2-3.) Emel also asserts that “it is burdensome to request that Dr. Emel or SCPMG run another search on the same topic. Further, the request is harassing to Dr. Emel and SCPMG because Plaintiff is already in possession of the information sought, but still persists that there is more that needs to be disclosed.” (Opp’n at p. 9:15-18.)

In the reply, Plaintiff asserts that “[t]he fact that the requests at issue are similar to prior ones should not be a reason for Dr. Emel to not respond.” (Reply at p. 4:3-4.) Plaintiff asserts that “there is no authority cited by Dr. Emel that prohibits Plaintiff from serving discovery similar to previous discovery.” (Reply at pp. 2:27-3:1.) But Emel cites to Code of Civil Procedure section 2019.030, subdivision (a), which provides that “[t]he court shall restrict the frequency or extent of use of a discovery method provided in Section 2019.010 if it determines either of the following: (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive. (2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” Plaintiff does not appear to address this provision in the reply.

The Court finds that there is merit to Emel’s objections that Request for Production Nos. 20-23 are burdensome and harassing. Thus, the Court denies Plaintiff’s motion as to these requests.

Plaintiff’s Request for Production No. 33 seeks “All DOCUMENTS that RELATE to YOUR performance reviews at SCPMG from January 1, 2019 to the present, including, but not limited to, annual performance evaluations conducted by SCPMG of YOU, non-annual performance evaluations of YOU conducted by the area assistant medical director, patient reviews or assessments of YOU, and patient complaints of YOU.”

Plaintiff’s Request for Production No. 34 seeks “All DOCUMENTS that RELATE to YOUR performance ‘scorecard’ during the RELEVANT TIME PERIOD, reflecting YOUR performance metrics on areas such as ‘Access’, ‘Clinical Strategic Goals’, ‘Service’, ‘Quality’, ‘Collaboration’.” Plaintiff’s Request for Production No. 35 seeks “All DOCUMENTS that support any promotions YOU have received at SCPMG.” 

Emel’s responses to Requests for Production Nos. 33-35 provide, “Defendant objects to this request as vague, ambiguous, overbroad, and not reasonably calculated to lead to the discovery of admissible evidence. It is burdensome and harassing. Finally, it violates the Responding Party’s right to privacy.” In the opposition, Emel asserts that “Plaintiff’s requests for Dr. Emel’s performance evaluations, ‘score cards’, and documents justifying his promotions, were properly objected to on the basis of privacy. These records are kept in Dr. Emel’s personnel file and are private. Plaintiff failed to identify a compelling need for Dr. Emel’s personnel file.” (Opp’n at p. 8:22-24.)

Emel cites to Valley Bank of Nev. v. Superior Court (1975) 15 Cal.3d 652, 656, where the California Supreme Court noted that “[a] constitutional amendment adopted in 1974 elevated the right of privacy to an ‘inalienable right’ expressly protected by force of constitutional mandate. ((Cal. Const., art. I, § 1.) Although the amendment is new and its scope as yet is neither carefully defined nor analyzed by the courts, we may safely assume that the right of privacy extends to one’s confidential financial affairs as well as to the details of one’s personal life.” Emel further cites to Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1423-1424, where the Court of Appeal noted that “if the three criteria for invasion of a privacy interest exist—a legally protected privacy interest, a reasonable expectation of privacy under the particular circumstances, and a serious invasion of the interest—then the privacy interest must be measured against other competing or countervailing interests in a balancing test.” (Internal quotations omitted.)

In addition, Emel cites to Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 8:320, which provides, “[t]he party seeking discovery must show a particularized need for the confidential information sought. The broad ‘relevancy to the subject matter’ standard is not enough here. The court must be convinced that the information is directly relevant to a cause of action or defense, i.e., that it is essential to determining the truth of the matters in dispute. [Britt v. Sup.Ct. (San Diego Unified Port Dist.) (1978) 20 C3d 844, 859-862, 143 CR 695, 704-706; Harris v. Sup.Ct. (Smets) (1992) 3 CA4th 661, 665, 4 CR2d 564, 567 (citing text) (disapproved on other grounds by Williams v. Sup.Ct. (Marshalls of CA, LLC) (2017) 3 C5th 531, 557, 220 CR3d 472, 494 & fn. 8)].” (Emphasis omitted.)

In the motion, Plaintiff argues that “the documents relating to Dr. Emel’s performance evaluation and promotions that Plaintiff seeks (RFP Nos. 33-35) are specifically relevant as to whether Dr. Emel engaged in similar behavior as alleged by Plaintiff with regard to other patients, and whether SCPMG rewarded or punished him for that behavior.” (Mot. at pp. 6:27-7:3.) Plaintiff also argues that this issue is “relevant to factors the jury must consider to impose punitive damages.” (Mot. at p. 7:6.)[1] But Plaintiff’s Requests for Production Nos. 33-35 do not specifically seek information regarding whether SCPMG rewarded or punished Emel for “similar behavior as alleged by Plaintiff.” (Mot. at p. 7:2.) Rather, as discussed, these requests seek Emel’s performance reviews from January 1, 2019 to the present, Emel’s performance “scorecard,” and documents supporting any promotions Emel has received.

Based on the foregoing, the Court finds that there is merit to Emel’s objections to Request for Production Nos. 33-35 on the basis of privacy. Thus, the Court denies Plaintiff’s motion as to these requests.

Special Interrogatories, Set Two, Nos. 34–37

Plaintiff’s Special Interrogatory No. 34 provides, “Please IDENTIFY (‘IDENTIFY’ with respect to MINORS shall mean and refer to non-HIPAA sensitive information such as the MINOR’s unique medical record number (‘MRN’) and date of birth) all MINORS (the term ‘MINOR’ or ‘MINORS’ shall mean SCPMG patients between the ages of 6 to 18) (the term ‘SCPMG’ shall mean Defendant Southern California Permanente Group or anyone acting as an agent, employee, director, officer, or shareholder on its behalf or at its direction) during the RELEVANT TIME PERIOD (‘RELEVANT TIME PERIOD’ shall mean and refer to January 1, 2019 to the present) that were diagnosed with scoliosis or lumbar scoliosis by YOU (the terms ‘YOU,’ ‘YOUR,’ or ‘YOURS’ means the responding party identified above, Enrique Earle Emel, M.D., or anyone acting as an agent, employee, director, officer, or shareholder on YOUR behalf or at YOUR direction) as reflected in the ‘Assessment’ section of the patient’s medical record.”

Emel’s response to Special Interrogatory No. 34 provides, “Objection. This interrogatory calls for the IDENTITY of ALL MINORS who were ‘diagnosed with scoliosis’ or lumbar scoliosis’ as reflected in the ‘Assessment section of the patient’s medical record’ by the Responding Party so on its face it violates both Federal and State third-party patient privacy rights. Furthermore, this interrogatory is vague, ambiguous, overbroad in time, burdensome, harassing, irrelevant, and unlikely to lead to the discovery of admissible evidence. Finally, this request calls for electronically stored information contained in individual patient records that is not reasonably accessible because of undue burden and expense. Responding probably [sic] will not search the source in the absence of the court order.”

Plaintiff’s Special Interrogatory No. 35 provides, “[f]or each MINOR identified in response to Special Interrogatory No. 34, please IDENTIFY the date that YOU made the initial diagnosis of ‘scoliosis’ or ‘lumbar scoliosis’, as reflected in the ‘Assessment’ section of the MINOR’s medical record.” Plaintiff’s Special Interrogatory No. 36 provides, “[f]or each MINOR identified in response to Special Interrogatory No. 34, please IDENTIFY the date that YOU REFERRED (‘REFERRED’ shall mean and refer to an act of a doctor in which a patient is sent to another doctor or department for additional healthcare services) the MINOR for an x-ray of the spine to confirm scoliosis.” Plaintiff’s Special Interrogatory No. 37 provides, “[f]or each MINOR identified in response to Special Interrogatory No. 34, please IDENTIFY the date that YOU REFERRED the MINOR to an orthopedic specialist to treat scoliosis.”

Emel’s responses to Special Interrogatories Nos. 35-37 each provide, “[n]ot applicable in light of the objections to Special Interrogatory No. 34.”

Emel asserts that further responses should not be compelled as to Special Interrogatories Nos. 34-37 because “Dr. Emel has already…identified Plaintiff as being the only minor whom he had diagnosed with scoliosis during the relevant time period…Additionally, Ana Tordilla testified at her deposition that when she ran the data for minors whom Dr. Emel had diagnosed with scoliosis, the only name that was generated was Plaintiffs. Requiring Dr. Emel to run another search is burdensome and harassing, in light of his verified supplemental response and testimony.” (Emel’s Separate Statement at pp. 11:24-12:2; 12:26-13:4; 13:27-14:5; 14:26-15:4.) This argument is addressed above in connection with Requests Nos. 20-23.

Based on the foregoing, the Court finds that there is merit to Emel’s objections that Special Interrogatories Nos. 34-37 are burdensome and harassing. Thus, the Court denies Plaintiff’s motion as to these interrogatories.

Requests for Sanctions

            In the motion, Plaintiff asserts that “the Court should impose monetary sanctions on Dr. Emel for his unjustified refusal to produce responsive documents and information.” (Mot. at p. 8:15-16.) Emel also asserts that monetary sanctions against Plaintiff and his counsel are warranted. The Court finds that the parties acted with substantial justification in presenting their respective positions and thus declines to award monetary sanctions.

B.    Motion to Compel SCPMG’s Further Responses and Production as to Plaintiff’s Requests for Production, Set Three and Special Interrogatories, Set Two

As set forth above, Code of Civil Procedure section 2031.310, subdivision (a) provides that “[o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1)¿A statement¿of compliance with the demand is incomplete. (2)¿A representation of inability to comply is inadequate, incomplete, or evasive. (3)¿An objection in the response is without merit or too general.” A motion under subdivision (a) shall “set forth specific facts showing good cause justifying the discovery sought by the demand,” and “shall be accompanied by a meet and confer declaration…” (Code Civ. Proc., § 2031.310, subd. (b).) In addition, “the court shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.310, subd. (h).)  

Code of Civil Procedure section 2030.300, subdivision (a) provides that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1)¿An answer to a particular interrogatory is evasive or incomplete. (2)¿An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3)¿An objection to an interrogatory is without merit or too general.” Such a motion “shall be accompanied by a meet and confer declaration…” (Code Civ. Proc., § 2030.300, subd. (b)(1).) In addition, “[t]he court shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2030.300, subd. (d).)  

On February 23, 2024, Plaintiff served Special Interrogatories, Set Two and Requests for Production of Documents, Set Three on SCPMG. (Ganesan Decl., ¶ 3, Exs. A-B.) On March 11, 2024, SCPMG served responses to Plaintiff’s Special Interrogatories, Set Two. (Ganesan Decl., ¶ 4, Ex. C.) On March 26, 2024, SCPMG served responses to Plaintiff’s Requests for Production of Documents, Set Three. (Ganesan Decl., ¶ 4, Ex. D.)

In her supporting declaration, Plaintiff’s counsel states that “[o]n April 24, 2024, Mr. Bradford and I met and conferred about the deficiencies of the responses to the RFPs and SROGs. Mr. Bradford stood by SCPMG’s objections to all the RFPs and SROGs at issue, and refused to justify or even articulate the basis for those objections, instead claiming that the objections were self-explanatory. Mr. Bradford further refused to produce any of the documents requested.” (Ganesan Decl., ¶ 6.) Plaintiff’s counsel states that “[o]n May 7, 2024, the Parties participated in an IDC with the Court regarding Defendants’ insufficient responses and improper objections to Plaintiff’s discovery. As the parties could not reach agreement, the Court permitted Plaintiff to file this Motion within 30 days of the IDC.” (Ganesan Decl., ¶ 7.)

As discussed, the Court’s May 7, 2024 minute order provides, inter alia, that “[t]he parties completed their Informal Discovery Conference requirement for the issues identified in their IDC Statements for the May 7, 2024 IDC dated April 26, 2024 (3) and May 2, 2024 for Defendants. Plaintiff may file motions to compel/compel further within 30 days of the date of this order.”

Requests for Production of Documents, Set Three, Nos. 44-50 and 53

Plaintiff’s Request for Production No. 44 seeks “DOCUMENTS sufficient to IDENTIFY[2] MINORS during the RELEVANT TIME PERIOD[3] for whom ‘scoliosis’ or ‘lumbar scoliosis’ was listed as a diagnosis in the ‘Assessment’ section of the MINORS’ respective medical records.”

Plaintiff’s Request for Production No. 45 seeks “DOCUMENTS sufficient to IDENTIFY MINORS during the RELEVANT TIME PERIOD for whom ‘scoliosis’ or ‘lumbar scoliosis’ was listed as a diagnosis in the ‘Assessment’ section of the MINORS’ respective medical records and were REFERRED within six months of their diagnosis for an x-ray of the spine to confirm scoliosis or determine the degree of curvature of scoliosis.”

Plaintiff’s Request for Production No. 46 seeks “DOCUMENTS sufficient to IDENTIFY MINORS during the RELEVANT TIME PERIOD that received an x-ray of the spine to confirm scoliosis or determine the degree of curvature of scoliosis.”

Plaintiff’s Request for Production No. 47 seeks “DOCUMENTS sufficient to IDENTIFY MINORS during the RELEVANT TIME PERIOD for whom ‘scoliosis’ or ‘lumbar scoliosis’ was listed as a diagnosis in the ‘Assessment’ section of the MINORS’ respective medical records and were REFERRED within six months of their diagnosis to an orthopedic specialist to treat scoliosis.”

Plaintiff’s Request for Production No. 48 seeks “DOCUMENTS sufficient to IDENTIFY MINORS during the RELEVANT TIME PERIOD that were diagnosed with ‘scoliosis’ or ‘lumbar scoliosis’ and referred to an orthopedic specialist to treat scoliosis.”

Plaintiff’s Request for Production No. 49 seeks “DOCUMENTS sufficient to IDENTIFY MINORS during the RELEVANT TIME PERIOD that were diagnosed with ‘scoliosis’ or ‘lumbar scoliosis’ and then received spinal fusion surgery.”

Plaintiff’s Request for Production No. 50 seeks “DOCUMENTS sufficient to IDENTIFY MINORS during the RELEVANT TIME PERIOD that were diagnosed with ‘scoliosis’ or ‘lumbar scoliosis’ and then received vertebral body tethering surgery.”

SCPMG’s responses to Requests for Production Nos. 44-50 consist solely of objections. In the opposition, SCPMG asserts, inter alia, that “[o]ther than to say that SCPMG was previously court-ordered to produce scoliosis data as justification for these requests, Plaintiff fails to justify a compelling need for these documents. This information is irrelevant to Plaintiff’s claim for Medical Malpractice. Thus, Plaintiff seeks these records to substantiate his cause of action for Unfair Business Practice…Even if this information was readily obtainable, which it is not, it is unclear, how this data is going to prove that SCPMG incentivizes its doctors not to order imaging studies (including X-rays) and not to refer patients to specialists.” (Opp’n at p. 6:15-21.)[4]

But in the motion, Plaintiff argues that “the discovery requests at issue are squarely within the scope of permissible discovery. The scoliosis diagnosis and treatment data requested are relevant because they would make it more or less likely that Plaintiff can establish its Business & Professions Code section 17200, et seq. claim that Defendant had a policy such that its doctors would delay diagnostic testing for scoliosis and delay referrals of its patients to orthopedic specialists to treat this condition.” (Mot. at p. 5:6-10.)

SCPMG also asserts that “Plaintiff’s request for additional scoliosis data concerning non-party minors[] is burdensome and harassing.” (Opp’n at p. 7:9-10.) SCPMG cites to Code of Civil Procedure section 2019.030, subdivision (a)(2), which, as discussed, provides that “[t]he court shall restrict the frequency or extent of use of a discovery method provided in Section 2019.010 if it determines either of the following:…(2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.”

SCPMG’s counsel states that “[o]n June 10, 2024, Plaintiff took the deposition of Nitin Dhamija M.D., the PMK for items dealing with scoliosis data concerning minors. Dr. Dhamija had previously overseen collection of scoliosis data that SCPMG had already produced in response to Plaintiff’s Request for Production of Documents, Set One, numbers 19, 20, and 21, pursuant to this Court’s order, as such he was able to testify regarding the burden and the expense of running another data search to comply with Plaintiff’s current requests.” (Bradford Decl., ¶ 10.)

SCPMG notes that Dr. Dhamija testified as follows: “Q[.] Okay. So what’s the burdensome aspect of this? Like, what part of it is burdensome to do the search? A[.] We would need to create very advanced, very complex programming logic that identifies by the programming point the ability to, A, is this an assessment section, and B, is this in this assessment section or its various synonyms the code -- excuse me --a term, scoliosis, was used as a diagnosis. Essentially, you’re asking a Clarity programmer to create logic that is looking for simple terms in a very, you know, potentially very long text. That is a huge performance burden because the Clarity program has to read through 100 percent of notes word-by-word, so to speak, and identify. This type of programming does not exist. At best, one could create some generative AI programming that would require quite a bit of custom development in partnership with Epic,

which is, to my knowledge, not working on something like this for this type of an ask at all.” (Bradford Decl., ¶ 14, Ex. J (Dhamija Depo.) at pp. 139:25-140:19.) Dr. Dhamija also testified as follows: “Q[.] So, again, going back to it, it’s not impossible to do the search; is that correct?...Q[.] Impossible meaning in the real sense of the term, not just that whether it will produce accurate results. A[.] It is not impossible to create a SQL query that attempts to do such a thing, in my viewpoint. It would require a lot more time and creation than our prior exercise, and I would say we’ve spent about 150 hours just in one individual on the prior exercise. So if I were to give you a time estimate, it would exceed well over 150 hours.” (Id. at p. 152:9-21.)

            In the motion, Plaintiff asserts that “[a]s Plaintiff’s forensics expert, Lee Neubecker, asserts, the search query for the information sought would only take 3 hours to complete, and therefore cannot be burdensome.” (Mot. at p. 4:21-22.) As an initial matter, the Declaration of Lee Neubecker filed with the instant motion does not indicate that Mr. Neubecker is a forensics expert, and it does not appear to provide any information regarding Mr. Neubecker’s background. In addition, Mr. Neubecker’s declaration does not appear to concern the requests for production of documents that are the subject of Plaintiff’s instant motion. Rather, Mr. Neubecker’s declaration discusses “SCPMG’s most recent production pursuant to the Court’s January 26, 2024 Order.” (Neubecker Decl., ¶ 4.)

SCPMG also asserts that “the requests are harassing because SCPMG has already provided scoliosis data regarding minor patients, and should not be required to do this exercise again, because these requests are propounded for the sole purpose of harassing SCPMG.” (Opp’n at p. 8:6-8.) As discussed, on January 26, 2024, the Court issued a minute order providing, inter alia, that “[a]t the hearing, the Court modified its ruling regarding request number 19, 20 and 21 so as to require SCPMG to produce (1). Electronic data evidencing scoliosis diagnosis in its medical records for the period of 2019 through 2023. (2). Electronic data evidencing a lumbar x-ray that was ordered in any of there [sic] cases with a scoliosis diagnosis that occurred within 1 year of the diagnosis and (3). Electronic data evidencing a referral to an orthopedic specialist in any of the cases with a scoliosis diagnosis that occured [sic] within 1 year of the diagnosis. SCPMG will produce the data described above on or before February 9, 2024.”

SCPMG’s counsel states that “[o]n March 11, 2024, SCPMG produced the scoliosis data, wherein it identified 20,545 minors initially diagnosed with scoliosis between 2019 through 2023, and for 18,122 of these minors imaging studies were ordered, and 5,221 minors were referred to specialists,” and that “1129 pages of…scoliosis data…was produced…” (Bradford Decl., ¶ 12.)

In light of the foregoing, the Court finds that there is merit to SCPMG’s objections that Requests for Production Nos. 44 through 50 are burdensome and harassing. Thus, the Court denies Plaintiff’s motion as to these requests.

Next, Plaintiff’s Request for Production No. 53 seeks “All DOCUMENTS that RELATE to the on-line course on ‘Complete Back Care’ available to SCPMG physicians, as referenced in SCPMG’s Clinical Reference for Neck and Back Pain Treatment produced by SCPMG to PLAINTIFF February 9, 2024.” SCPMG’s response to Request for Production No. 53 provides, “[a]fter diligent search and reasonable inquiry, the Responding Party is unable to comply as the requested document no longer exists.”

The parties cite to Code of Civil Procedure section 2031.230, which provides that “[a] representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

Plaintiff asserts that SCPMG’s “response is improper because it fails to state why the responsive document no longer exists.” (Mot. at p. 7:3-4, emphasis omitted.) SCPMG asserts that it “provided a code compliant response to RFP 53 and that no further response is warranted.” (Opp’n at p. 9:7-8.)

As discussed, SCPMG’s response to Request for Production No. 53 provides, “[a]fter diligent search and reasonable inquiry, the Responding Party is unable to comply as the requested document no longer exists.” However, SCPMG does not state that “the particular item or category has never existed.” (Code Civ. Proc., § 2031.230.) SCPMG also does not specify whether “the particular item or category…has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” (Ibid.) Thus, the Court finds that Plaintiff has demonstrated good cause for a further response to Request for Production No. 53.

Special Interrogatories, Set Two, Nos. 34 through 40

Plaintiff’s Special Interrogatory No. 34 provides, “Please IDENTIFY (‘IDENTIFY’ with respect to MINORS shall mean and refer to all non-HIPAA sensitive information such as the MINOR’s unique medical record number (‘MRN’) and date of birth) all MINORS (the term ‘MINOR’ or ‘MINORS’ shall mean SCPMG patients between the ages of 6 to 18) (the terms ‘SCPMG’ ‘YOU,’ ‘YOUR,’ or ‘YOURS’ shall mean Defendant Southern California Permanente Medical Group, or anyone acting as an agent, employee, director, officer, or shareholder on YOUR behalf or at YOUR direction) during the RELEVANT TIME PERIOD (“RELEVANT TIME PERIOD’ shall mean and refer to January 1, 2019 to the present) that were diagnosed with ‘scoliosis’ or ‘lumbar scoliosis’, as reflected in the ‘Assessment’ section of the patient’s medical record.”

SCPMG’s response to Special Interrogatory No. 34 provides, “[t]his interrogatory calls for the IDENTITY of MINORS who were ‘diagnosed with scoliosis’ or lumbar scoliosis’ as reflected in the ‘Assessment section of the patient’s medical record’ so on its face it violates both Federal and State third-party patient privacy rights. Furthermore, this interrogatory is vague, ambiguous, overbroad in time, burdensome, harassing, irrelevant, and unlikely to lead to the discovery of admissible evidence. Finally, this request calls for electronically stored information contained in individual patient medical records that is not reasonably accessible because of undue burden and expense. Responding party will not search the source in the absence of a court order.”

Plaintiff’s Special Interrogatory No. 35 provides, “[f]or each MINOR identified in response to Special Interrogatory No. 34, please IDENTIFY (‘IDENTIFY,’ when referring to a person who is not a MINOR, means to state with particularity the name, address, telephone number, email address, and business affiliation) the doctor that made the diagnosis of ‘scoliosis’ or ‘lumbar scoliosis’.”

Plaintiff’s Special Interrogatory No. 36 provides, “[f]or each MINOR identified in response to Special Interrogatory No. 34, please identify the date that the initial diagnosis of ‘scoliosis’ or ‘lumbar scoliosis’ was made.”

Plaintiff’s Special Interrogatory No. 37 provides, “[f]or each MINOR identified in response to Special Interrogatory No.34, please identify the date that the MINOR was REFERRED (‘REFERRED’ shall mean and refer to an act of a doctor in which a patient is sent to another doctor or department for additional healthcare services) for an x-ray of the spine to confirm scoliosis.”

Plaintiff’s Special Interrogatory No. 38 provides, “[f]or each MINOR identified in response to Special Interrogatory No. 34, please identify the date that the MINOR was REFERRED to an orthopedic specialist to treat scoliosis.”

Plaintiff’s Special Interrogatory No. 39 provides, “[f]or each MINOR INDENTIFIED in response to Special Interrogatory No. 34, please IDENTIFY the date that the MINOR received spinal fusion surgery to treat scoliosis.”

Plaintiff’s Special Interrogatory No. 40 provides, “[f]or each MINOR INDENTIFIED in response to Special Interrogatory No. 34, please IDENTIFY the date that the MINOR received vertebral body tethering to treat scoliosis.”

SCPMG’s responses to Special Interrogatories Nos. 35-40 provide, “Not applicable in light of the objections to Special Interrogatory No. 34.”

As to the subject interrogatories, SCPMG asserts that “[b]ased on Dr. Dhamija’s testimony, SCPMG would need to create a whole new system to run this search, and it would take well over 150 hours to do so and respond. Clearly, these requests are burdensome and harassing. Moreover, the request is harassing because SCPMG has already produced scoliosis data for minors’ wherein it identified 20,545 minors initially diagnosed with scoliosis between 2019 through 2023, and for 18,122 of these minors imaging studies were ordered. and 5,221 minors were referred to a specialist.” (SCPMG’s Separate Statement at pp. 17:5-10; 18:18-23; 20:2-7; 21:15-20; 22:26-23:4; 24:10-15; 25:21-26.) This argument is addressed above in connection with Requests Nos. 44-50.

Based on the foregoing, the Court finds that there is merit to SCPMG’s objections that Special Interrogatories Nos. 34-40 are burdensome and harassing. Thus, the Court denies Plaintiff’s motion as to these interrogatories. 

Requests for Sanctions

            In the motion, Plaintiff asserts that “the Court should impose monetary sanctions on SCPMG for its unjustified refusal to produce documents.” (Mot. at p. 8:22-23.) SCPMG also asserts that monetary sanctions against Plaintiff and his counsel are warranted. The Court finds that the parties both acted with substantial justification in presenting their positions and thus declines to award monetary sanctions.

C.    Motion to Compel Compliance Regarding SCPMG’s Response to Request for Production No. 6

Pursuant to Code of Civil Procedure section 2031.320, subdivision (a), “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.”

On August 11, 2022, Plaintiff served Requests for Production of Documents, Set One on SCPMG. (Ganesan Decl., ¶ 3, Ex. A.) On October 5, 2022, SCPMG served its responses to Plaintiff’s Requests for Production of Documents, Set One. (Ganesan Decl., ¶ 5, Ex. B.) Plaintiff’s Request for Production No. 6 seeks “PLAINTIFF’S MEDICAL RECORDS in electronic form, including all metadata.”

In her supporting declaration, Plaintiff’s counsel states that “on October 5, 2022, SCPMG produced Plaintiff’s Medical Records in pdf format in response to RFP No. 6. I immediately wrote to Mr. Bradford reminding him that all metadata was requested in electronic form, and requested for the audit trail related to the Medical Records….On October 11, 2022, Mr. Bradford forwarded me an audit trail, again in pdf format….On December 1, 2022, I sent an email to Mr. Bradford explaining that the audit trail provided by him was not in a useable and readable format and that the medical records were still critical metadata.” (Ganesan Decl., ¶¶ 6-8.)

Plaintiff’s counsel states that “[o]n January 11, 2023, Mr. Bradford’s associate, Jeanie Raphelt, emailed [Plaintiff’s counsel] a read-only version of a document purporting to be an audit trail, but this time in excel format. [Plaintiff’s counsel] reminded…Ms. Raphelt that we were still awaiting the medical records with the full metadata. Ms. Raphelt wrote to [Plaintiff’s counsel] stating, ‘The medical records produced were not edited or filtered. Per Kaiser, you have been provided the metadata through the audit trail and there is no other format in which the medical records can be produced.’” (Ganesan Decl., ¶ 10.)

Plaintiff’s counsel states that “[o]n April 11, 2024, Mr. Bradford and I participated in a meet and confer call to discuss SCPMG’s non-compliance with its response to RFP No. 6. Mr. Bradford stated on the call that all metadata that could be produced, has been produced. I disputed this position, given that the audit trail was missing information.” (Ganesan Decl., ¶ 13.)

Plaintiff’s counsel further states that “[o]n May 6, 2024, SCPMG served an Amended Response to RFP No. 6, attaching the three versions of audit trails which had been previously emailed to me by Mr. Bradford and Ms. Raphelt.” (Ganesan Decl., ¶ 14.) SCPMG’s amended response to Plaintiff’s Request for Production No. 6 provides, “[t]he objections above are incorporated by reference. Subject to and without waiving aforementioned objections, Responding Party responds as follows: Responding Party will comply with this request and refer to the previously produced documents. (See Exhibits A-C) Exhibit A: PDF of the Audit Trail ranging from March 8, 2021 to October 7, 2022. Exhibit B: PDF of the Audit Trail ranging from June 20, 2019 to December 13, 2022. Exhibit C: Excel sheet of the Audit Trails ranging from June 20, 2019 to December 13, 2022.” (Ganesan Decl., ¶ 14, Ex. E.)

Plaintiff’s counsel states that “[o]n May 7, 2024, the parties participated in an IDC with the Court regarding various discovery issues, including the dispute concerning RFP No. 6. As the parties could not reach an agreement on the matters discussed that day, the Court permitted Plaintiff to file his Motions to Compel concerning those issues within 30 days.” (Ganesan Decl., ¶ 15.)

In the motion, Plaintiff asserts that “SCPMG responded to RFP No. 6 with a statement of compliance, but made an incomplete production.” (Mot. at p. 4:1-2.) Plaintiff submits the Declaration of Lee Neubecker, the “President and CEO of Enigma Forensics, Inc.” (Neubecker Decl., ¶ 3.) Mr. Neubecker states that he has “reviewed the medical records of Plaintiff Devin Estime produced by Defendant in this matter,” and asserts that “[t]he medical records of Devin Estime produced by Defendant in this matter are incomplete because they are missing: a. data from some date ranges; b. certain file types; and c. some of the associated metadata that exists in Defendant’s medical records database.” (Neubecker Decl., ¶¶ 5-6.)

Mr. Neubecker asserts that “the medical records produced by Defendant: a. included only selected date ranges such that it is uncertain that there are not other medical records within these date ranges; b. appear to have been limited to access of the chart only in some instances; c. did not include many metadata fields in Defendant’s EPIC database; d. did not include the complete audit trail records that would allow the reviewer to validate the authenticity of the records produced, e. did not include the complete electronic medical records (‘EMR’) revision history;

f. did not include object identifiers for the specific Best Practice advisory document viewed and then not acted upon; g. did not include PACS imaging orders or study reports or PACS audit trails; h. did not include In-Basket Messages or Sticky Notes; i. did not include complete documentation of notation revisions on metadata reports; and j. did not include data dictionaries for codes referenced in the audit trail records and patient chart reports.” (Neubecker Decl., ¶ 7.)

In the opposition, SCPMG asserts that it has sufficiently complied with the discovery request. In his supporting declaration, SCPMG’s counsel states that “[o]n September 21, 2023, Plaintiff filed a Motion to Compel SCPMG to provide further responses and production to RFPs, including number six (6), which concerns electronic medical records. On October 23, 2023, SCPMG filed its Opposition and in support included the Declaration of Nitin Dhamija M.D., wherein he discusses the errors and inconsistencies of Lee Nuebecker’s requests and insistence on production of additional electronic data. A true and correct copy of Nitin Dhamija, M.D.’s Declaration is attached hereto as Exhibit F.” (Bradford Decl., ¶ 9, Ex. F.)[5]

In his supporting declaration, Nitin Dhamija, M.D. states that he has “held the position of Physician Lead for Clinical Content, Decision-Support, and Data Analytics” from February 2019 to the present. (Dhamija Decl., ¶ 5.) Dr. Dhamija asserts that “[w]ith respect to Mr. Neubecker’s Declaration as to the additional ‘meta-data’ sought to be retrieved from Plaintiff’s medical records, his statements are unclear and/or inconsistent with the materials provided.” (Dhamija Decl., ¶ 13.) Dr. Dhamija states that “as to the medical records and metadata already provided, all data within the date range provided was complete. The metadata and records provided include all entries/activities within the specified timeframe. For any dates/times that purportedly do not have any information provided, that generally means that no data exists. The EMR system is designed to indicate or log data when there was activity performed on a particular date.” (Dhamija Decl., ¶ 13(a).)

Based on the foregoing, the Court finds that SCPMG has demonstrated that it has sufficiently permitted “the inspection, copying, testing, or sampling in accordance with [SCPMG’s] statement of compliance…” (Code Civ. Proc., § 2031.320, subd. (a).)[6]

Lastly, under Code of Civil Procedure section 2031.320, subdivision (b), “[e]xcept as provided in subdivision (d), the court shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” As the instant motion is denied, the Court denies Plaintiff’s request for sanctions against SCPMG. The Court also finds that Plaintiff acted with substantial justification in presenting his position. Thus, the Court denies SCPMG’s request for monetary sanctions against Plaintiff.

Conclusion

Based on the foregoing, Plaintiff’s motion for an order compelling Emel to serve further responses and produce all documents responsive to Plaintiff’s Requests for Production of Documents, Set Two, Nos. 20-23 and 33-35; and to serve further responses to Plaintiff’s Special Interrogatories, Set Two, Nos. 34-37 is denied.

Plaintiff’s motion for an order compelling SCPMG to serve further responses and produce all documents responsive to Plaintiff’s Requests for Production of Documents, Set Three, Nos. 44 through 50 and 53; and to serve further responses to Plaintiff’s Special Interrogatories, Set Two, Nos. 34 through 40 is granted in part and denied in part. The Court grants Plaintiff’s motion as to Request for Production of Documents, Set Three, No. 53. Plaintiff’s motion is otherwise denied. The Court orders SCPMG to provide a further verified response to Plaintiff’s Request for Production of Documents, Set Three, No. 53 within 30 days of the date of this Order.

The Court denies Plaintiff’s motion for an order compelling SCPMG to comply with its response to Plaintiff’s Request for Production of Documents No. 6.

Plaintiff is ordered to give notice of this ruling.

DATED:  September 5, 2024                                                

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court