The motion of plaintiff Katharine Brown (“Plaintiff”) to quash the deposition subpoenas for records to Dr. Heather Levy, Ph.D. (“Levy”), Dr. Thomas J. Becker, M.D. (“Becker”), and Dr. John J. Madej, M.D. (“Madej”) and for a protective order is GRANTED IN PART and DENIED IN PART.
A court may make an order quashing a subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare. (Code Civ. Proc. [“CCP”], § 1987.1, subds. (a) and (b)(1).)
Plaintiff requests an order quashing the subpoenas on the grounds that they encompass confidential communications between her and her physicians/psychotherapist, third parties’ private information, and her own private information. The parties agree that the subpoenas seek Plaintiff’s physical and mental health records, including communications that she had with her treating physicians/psychotherapist.
The discovery sought by the subpoenas is not protected from disclosure by the patient-physician/psychotherapist privileges because Plaintiff asserts a cause of action for intentional infliction of emotional distress (“IIED”) and alleges specific averments pertaining to her emotional distress claims that place her mental condition at issue. (See Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1011-1016 [“Davis”]; see also Evid. Code, §§ 996, subd. (a), and 1016, subd. (a); and Compl., at ¶¶ 5Q(b), 6-7, 14B, 20B, 24B, 28B, 30-33, and 37C.)
An individual has a right to privacy in his or her physical and mental health records, but an individual does not necessarily have a right to privacy in the physical and mental health records of another person. (See, e.g., Davis, supra, at p. 1013.) Therefore, Plaintiff’s assertion that third parties’ privacy rights somehow preclude the production of Plaintiff’s physical and mental health records lacks merit. Regardless, an order directing the subpoenaed parties to redact the third parties’ private information would assuage privacy concerns. (See Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 658.)
Plaintiff’s contention that her right to privacy protects some of the discovery sought from disclosure is availing. An individual’s private physical and mental health records are only discoverable if the party seeking discovery shows they are directly relevant to the specific emotional distress averment alleged, and the means used to obtain the discovery are the least intrusive. (Davis, supra, at p. 1013 [direct relevance to the specific averment alleged]; Britt v. Super. Ct. (1978) 20 Cal. 3d 844, 859-862 and 859 [directly relevant records are those that are essential to determine the truth of a matter in dispute]; and Allen v. Super. Ct. (1984) 151 Cal.App.3d 447, 449 [least intrusive means].) Defendants Taos Mountain, Inc. and Ric Urrutia (collectively, “Defendants”) have not demonstrated how the discovery sought by Requests for Production of Documents (“RPD”) Nos. 1-2, 5-6, and 8 in the subpoena to Levy, RPD Nos. 1, 3, 5-6, and 8 in the subpoena to Becker, and RPD Nos. 2-3, 5-6, and 8 in the subpoena to Madej is directly relevant to this case. However, they persuasively argue that the discovery sought by RPD No. 7 in all three subpoenas is directly relevant to this case. In addition, Defendants persuasively argue that the discovery sought by RPD Nos. 3-4 in the subpoena to Levy, RPD Nos. 2 and 4 in the subpoena to Becker, and RPD Nos. 1 and 4 in the subpoena to Madej necessarily encompass some directly relevant private records that pertain to specific symptoms that Plaintiff attributes to the emotional distress caused by Defendants’ conduct (i.e. embarrassment, fear, anger, depression, anxiety, fear, and humiliation, crying, sadness, low energy, low self-confidence and sense of self-worth, problems focusing, neck pain, and stomach pain.) Defendants do not show how other records responsive to RPD Nos. 3-4 in the subpoena to Levy, RPD Nos. 2 and 4 in the subpoena to Becker, and RPD Nos. 1 and 4 in the subpoena to Madej are directly relevant to this action. Given that Levy, Becker, and Madej are the only known possessors of the directly relevant records, the subpoenas are the least intrusive means to obtain the discovery sought.
In light of the foregoing, the motion to quash the subpoenas is GRANTED as to RPD Nos. 1-2, 5-6, and 8 in the subpoena to Levy, RPD Nos. 1, 3, 5-6, and 8 in the subpoena to Becker, and RPD Nos. 2-3, 5-6, and 8 in the subpoena to Madej.
The motion to quash the subpoenas is DENIED as to RPD Nos. 1, 4, and 7 in the subpoena to Madej, RPD No. 2, 4, and 7 in the subpoena to Becker, and RPD Nos. 3-4 and 7 in the subpoena to Levy. However, since some of the discovery sought by RPD Nos. 1 and 4 in the subpoena to Madej, RPD No. 2 and 4 in the subpoena to Becker, and RPD Nos. 3-4 in the subpoena to Levy is protected from disclosure by Plaintiff’s right to privacy, the Court exercises its discretion to enter an order modifying the subpoenas in order to protect Plaintiff’s right to privacy. (See CCP, § 1987.1, subd. (a).)
Accordingly, within 20 days of the date of the filing of this Order, Levy, Becker, and Madej shall produce documents responsive to RPD No. 7 in the subpoenas. In addition, Levy shall produce records responsive to RPD Nos. 3-4, Becker shall produce records responsive to RPD Nos. 2 and 4, and Madej shall produce records responsive to RPD Nos. 1 and 4 to the extent such records pertain to Plaintiff’s symptoms of embarrassment, fear, anger, depression, anxiety, fear, and humiliation, crying, sadness, low energy, low self-confidence and sense of self-worth, problems focusing, neck pain, and stomach pain. To the extent any responsive records include the private information of third parties, Levy, Becker, and Majed shall redact the third parties’ private information from the responsive records before producing them.
The motion for a protective order is DENIED. Plaintiff requests a protective order preventing Defendants “from again seeking to intrude into Plaintiffs’ [sic] and third parties [sic] protected zones of privacy.” While the Court has the authority to enter a protective order (see CCP, § 1987.1, subd. (a)), such an order is not warranted because the procedural safeguards generally applicable to the discovery of private information are sufficient to protect Plaintiff’s and third parties’ privacy rights.
Plaintiff’s request for an award of monetary sanctions is DENIED. She only requests monetary sanctions in connection with her request for a protective order, and since the Court did not grant her requested relief, an award of monetary sanctions against Defendants is not warranted. (See CCP, § 2017.020.)
Defendants’ request for an award of monetary sanctions is DENIED. Defendants request an award of monetary sanctions on the ground that Plaintiff did not adequately meet and confer, and for bringing a motion to quash without substantial justification. CCP section 1987.1 does not require a party to engage in meet and confer efforts before filing a motion to quash a subpoena or for a protective order, and as such, CCP section 2023.020 does not authorize the Court to award monetary sanctions. Although the Court did not enter an order quashing the subpoenas entirely, the Court finds Plaintiff acted with substantial justification because she successfully argued that most of the discovery sought by the subpoenas is protected from disclosure by her privacy rights. (See CCP, § 1987.2, subd. (a) [providing a court may award monetary sanctions against a party or attorney who brings an unsuccessful motion under CCP section 1987.1 without substantial justification]). Therefore, an award of monetary sanctions against Plaintiff is not warranted.