Case Name: Ruminski, et al. v. Gonzalez
Case No.: 17-CV-305670

This is a personal injury action. According to the complaint, on December 14, 2015, defendant Neva Gonzalez (“Defendant”) was driving a motor vehicle and collided with bicyclist Rosamaria Ruminski (the “Decedent”), who died from injuries sustained due to the collision. Plaintiffs Ralph Ruminski, Melissa Ruminski, and Amy Ruminski (collectively “Plaintiffs”), family members of the Decedent, assert causes of action against Defendant for motor vehicle negligence and general negligence.

The instant matter involves a discovery dispute. Plaintiffs served a deposition subpoena for the production of records on Defendant’s health care provider, Trinity Health and Wellness Center (the “Subpoena”). (Bauer Decl., Exh. A.) The Subpoena seeks all documents relating to Defendant’s medical care from December 14, 2010 to the present, including but not limited to: inpatient and outpatient charts and records, x-rays, case history, lab reports, any and all diagnoses, complaints of physical pain, and billing statements. Defendant’s counsel sent a meet and confer letter to Plaintiffs’ attorney stating the Subpoena sought irrelevant information and violated his client’s privacy rights. (Id. at Exh. B.) Plaintiffs’ attorney disagreed, and the parties could not informally resolve the dispute. Consequently, Defendant presently moves to quash and/or modify the Subpoena or, alternatively, for a protective order requiring the deponents to first produce the records to her counsel to allow for the redaction of information the Court deems inappropriate for discovery. Defendant also seeks an award of attorney’s fees and costs.

This motion is made pursuant to Code of Civil Procedure section 1987.1, which authorizes a party or witness to bring a motion to “quash a subpoena entirely, modify it, or direct compliance with it upon such terms or conditions as the court shall declare.” In ruling on such a motion, a court may make any appropriate order to protect the parties, the witness, or the consumer from unreasonable or oppressive demands, including unreasonable violations of the right to privacy. (Code Civ. Proc., § 1987.1, subd. (a).)

I. Merits of the Motion

Defendant objects to the Subpoena on the grounds of relevance, overbreadth, and privacy.

As to the relevance and overbreadth objections, it appears they are not intended to be distinct objections. For example, Defendant states the Subpoena “is not reasonably calculated to lead to discoverable evidence because it sweeps too broadly.” (Mem. Ps. & As., p. 9: lis. 16-17.) The Court will therefore treat it as a singular objection. For context, it is undisputed that, on the day of the fatal collision, Defendant admitted to police officers to taking hydrocodone the previous night. Defendant subsequently testified she has had a hydrocodone prescription for the last three years to help her manage chronic back pain. Defendant contends Plaintiffs request all medical records because they seek to gather information relating to her tolerance for hydrocodone and whether her physician warned her about using it prior to driving. Defendant argues the Subpoena is overbroad because it is not limited to information relating to her back pain and hydrocodone use.

In opposition, Plaintiffs do not specifically address the relevance/overbreadth objection. Plaintiffs only discuss relevance/overbreadth in connection with their privacy objection. Presumably, their arguments as to relevance/overbreadth in the privacy context are intended to also apply here as relevance is implicated as to both objections. In an attempt to narrow the scope of the Subpoena, Plaintiffs state they further met and conferred with Defendant and now agree to only seek documents relating to Defendant’s back pain and/or use of hydrocodone. They additionally no longer seek any itemized billing statements, even those relating to back pain and/or the use of hydrocodone. In reply, Defendant states she has not received a written communication from Plaintiffs promising to narrow the scope of the Subpoena or a new, more narrowly-tailored Subpoena. She therefore questions whether Plaintiffs actually intend to limit its scope. As Plaintiffs state in their opposition they no longer seek certain documents, the Court will treat the Subpoena as limited to seeking medical records reflecting Defendant’s back pain and use of hydrocodone, and consequently evaluate the relevance/overbreadth objection in view of this narrowed scope.

Information is relevant to the subject matter if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating settlement. (Gonzalez v. Sup. Ct. (1995) 33 Cal.App.4th 1539, 1546.) Courts liberally construe the relevance standard, and any doubts as to whether a request seeks information within the scope of discovery are generally resolved in favor of allowing discovery. (Colonial Life & Accident Ins. Co. v. Sup. Ct. (1982) 31 Cal.3d 785, 790.) Plaintiffs persuasively argue documents reflecting Defendants’ use of hydrocodone and her physician’s warnings about how to administer the drug will reveal whether she may have been impaired while driving and whether the purported impairment may have caused the accident. Thus, the relevance/overbreadth objection is overruled.

Turning to the privacy objection, the right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Sup. Ct. (2007) 40 Cal.4th 360, 370.) A party seeking to prevent discovery on the basis of the right of privacy must demonstrate that a legally protected privacy interest exists, there is a reasonable expectation of privacy under the particular circumstances, and the disclosure of the information would constitute a serious invasion of that interest. (Alch v. Sup. Ct. (2008) 165 Cal.App.4th 1412, 1423 (“Alch”).) Where a serious invasion of the right to privacy is shown, the proponent of the discovery must demonstrate that the information sought is directly relevant to an issue in the litigation. (Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 850.) Once direct relevance has been shown, the proponent of discovery must demonstrate that the information sought is not available through less intrusive means. (Allen v. Sup. Ct. (1984) 151 Cal.App.3d 447, 449.) In order to fairly balance the competing interests, courts must weigh the party’s privacy interest against the requesting party’s need for the information, the state’s interest, if any, and any other relevant interests presented. (Alch, supra, 165 Cal.App.4th at pp. 1432-1434.)

Defendant contends the disclosure of her medical records would result in a serious invasion of her protected privacy interests. This argument is well-taken. It is well-established that the right to privacy extends to a person’s medical records. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 41.) Plaintiffs do not dispute that Defendant’s medical records are private; instead, they assert her expectation of privacy is “substantially lowered” because her medical condition is “at issue” in the case. Plaintiffs cite two cases in support, John B. v. Sup. Ct. (2006) 38 Cal.4th 1177 and Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30. Both cases are inapposite because the plaintiffs in those cases disclosed they had a medical condition in the pleading and both actions were partly predicated on the existence of those conditions. Because the plaintiffs had already disclosed the existence of their medical conditions in the pleadings, they had a lower privacy interest. In contrast, Defendant did not initiate an action disclosing her medical condition. Thus, Plaintiffs fail to establish Defendant has a lower expectation of privacy in her medical records. As a serious invasion of a privacy right is implicated here, Plaintiffs must demonstrate the documents sought are directly relevant to the subject matter of this case.
Direct relevance means the evidence is “essential to the fair resolution of the lawsuit.” (Britt v. Sup. Ct., supra, 20 Cal.3d at p. 850.) In this regard, “[i]t is not enough that the information might lead to relevant evidence,” which could be sufficient to establish general relevance for discovery purposes absent a privacy objection. (Binder v. Sup. Ct. (1987) 196 Cal.App.3d 893, 901.) “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.” (Davis v. Sup. Ct. (1992) 7 Cal.App.4th 1008, 1017.)

Plaintiffs contend the information sought is directly relevant to Defendant’s liability for the death of the Decedent because the information sought may reflect she was driving while impaired. Plaintiffs assert Defendant claims she was not affected by her use of hydrocodone at the time of the accident and the Decedent was at fault for the collision. Plaintiffs insist Defendant testified that no doctor has given her any instructions not to drive after taking hydrocodone and she has not experienced drowsiness due to using the drug. Plaintiffs seek information from Defendant’s physician to evaluate this testimony. Defendant does not actually argue the documents sought concerning her back pain and hydrocodone use are not directly relevant to the litigation. Instead, she focuses her argument on the breadth of the Subpoena and how the documents unrelated to back pain and hydrocodone use, which are no longer sought, are not relevant.

The Court finds the information sought is directly relevant to the litigation. One of Plaintiffs’ theories of negligence is predicated on the possibility Defendant was impairment at the time of the accident. Documents reflecting Defendant’s back pain and hydrocodone use are essential to helping them prove she may have been impaired. For example, a history of complaints about the side effects of hydrocodone would reveal she may have been suffering from them at the time of the accident.

As the discovery sought is directly relevant to a subject matter in this action, Plaintiffs must establish there are no less intrusive means to obtain the information sought to justify precluding discovery. (See Allen v. Sup. Ct., supra, 151 Cal.App.3d at p. 449.) To that point, Plaintiffs assert they have already deposed Defendant and her testimony was inconsistent because she testified the night before the accident she took hydrocodone because she “wasn’t going to be doing anything else,” but then stated she could take it and “do whatever [she] need[s] to do” like going to work and shopping. (Opp., p. 6: lis. 20-22.) Plaintiffs claim they must “discover the truth” behind this inconsistency. The Court is not convinced this testimony is inconsistent. A preference for taking medication without subsequent plans does not necessarily mean Defendant is unable to capably perform certain tasks. In addition, Plaintiffs do not explain why they are unable to “discover the truth” by propounding written discovery or deposing Defendant’s physician, both of which are reasonable alternatives and would protect her privacy interests. (See Harding Lawson Associates v. Sup. Ct. (1992) 10 Cal.App.4th 7, 10 [overruling an order requiring the production of documents because the party seeking private information did not show information could not be obtained by deposition or other less intrusive means]; see also El Dorado Savings & Loan Assn. v. Sup. Ct. (1987) 190 Cal.App.3d 342, 346 [noting courts should take into consideration whether it is possible to obtain the discovery sought by deposition instead of production of documents when privacy is implicated]; Allen v. Sup. Ct., supra, 151 Cal.App.3d at p. 449 [same].) Therefore, Plaintiffs fail to establish there are no less intrusive means to obtain the discovery sought.

In light of the above, the privacy objection is sustained. Accordingly, Defendant’s motion to quash the Subpoena in its entirety is GRANTED. As the motion to quash is granted, it is unnecessary for the Court to address Defendant’s alternative requests to modify the Subpoena or for a protective order.

II. Request for Attorney’s Fees and Costs

Defendant requests an award of attorney’s fees and costs pursuant to Code of Civil Procedure section 1987.2, which provides that a court making an order on a motion under section 1987.1 “may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification.” Plaintiffs were not substantially justified in opposing this motion as the entirety of the Subpoena was quashed. As such, Defendant is entitled to recover reasonable attorney’s fees and costs.

Defendant requests an award of $1,145.00, representing five hours of work on the moving papers at a rate of $155.00 per hour, a $60.00 filing fee, and two hours of anticipated work preparing a reply and appearing at the hearing at the rate of $155.00. (Bauer Decl., ¶ 6.) The Court does not award sanctions for estimated expenses or expenses not yet incurred. (Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551, 1564.) The Court therefore reduces the amount of sanctions to $835.00, representing the five hours spent on the motion and the filing fee and excluding the two hours of anticipated work. Accordingly, the request for sanctions is GRANTED IN PART in the amount of $835.00. Plaintiffs shall pay $835.00 to Defendant’s counsel within 20 calendar days of the filing of this Order.