Case Number: BC694819 Hearing Date: May 31, 2018 Dept: 7

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO QUASH SUBPOENA FOR RECORDS AND REQUEST FOR SANCTIONS; MOTION GRANTED

On February 21, 2018, Plaintiff Osama Shofani (“Plaintiff”) filed this action against Defendants Rasy Sourn dba LB Clothing, Inc. (“Defendant”) for motor vehicle and general negligence relating to a March 6, 2016 automobile accident. On March 22, 2018, Defendant issued twenty-two (22) deposition subpoenas for Plaintiff’s medical, billing, and insurance records seeking the entirety of records. Plaintiff moves to quash the subpoenas on: (1) Marina Del Rey Hospital, (2) Marina Del Rey Hospital (Business Office), and (3) Marina Del Rey Hospital (Radiology Department), as being impermissibly unlimited and overbroad.

A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (Code of Civ. Proc., § 2020.020.) The court, upon motion or the court’s own motion, “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other orders 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 of Civ. Proc., § 1987.1, subd. (a).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .” (Code of Civ. Proc., §2020.410, subd. (a).)

On September 15, 2017, Plaintiff identified his neck and back as the areas of his body that were injured as a result of this accident. (Declaration of Megan R. Lazar, ¶ 4.) When a plaintiff puts her health and physical condition at issue, the privacy and privileges that normally attach to such sensitive information are “substantially lowered by the very nature of the action.” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43.) The Court must “balance the public need against the weight of the privacy right” and only serious invasions of privacy will bar discovery. (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 966.) There is not an egregious invasion of privacy every time there is a request for private information and courts must “place the burden on the party asserting a privacy interest to establish its extent and seriousness of the prospective invasion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

However, the subject subpoenas seek “any and all medical documents” and all electronic communications from and to the patient “from any and all dates,” “any and all paper and digital records of payment and/or discount . . . from any and all dates,” and “any and all x-ray films . . . from any and all dates.” (Exhs. 2-4.) The parties met and conferred, with Plaintiff’s counsel objecting to the unlimited scope of the subpoenas. Plaintiff’s counsel suggested a modification that only those records and billing pertaining to Plaintiff’s neck and back be produced. (Lazar Decl., ¶ 6; Exhs. 5, 6.) Despite additional meet and confer efforts, the parties could not reach an agreement. (Lazar Decl., ¶¶ 7-9.)

Defendant filed no opposition to this Motion and has not shown good cause to discover all the records sought without limitation. The Court agrees that the unlimited scope of the subpoenas is impermissibly overbroad. Rather than quash the subpoenas, the Court will modify their scope to include, as Plaintiff suggested:

“Only those records pertaining to Plaintiff’s neck and back, including but not limited to medical history, care, treatment, diagnosis, prognosis, evaluations, examinations, physiotherapy and all other diagnostic tests and procedures, including, but not limited to, the date of each visit, exams or treatment, all charges/billings made therefore, all payments received from any source for services provided and the current amount due for treatment rendered to those body parts only. This subpoena requires the production of any and all x-rays, MRI films, tomograms, CT scans, photographs, etc., which may have been taken during the course of treatment to the Plaintiff’s neck and back only.”

As for monetary sanctions, the court 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 or that one or more of the requirements of the subpoena was oppressive. (Code of Civ. Proc., § 1987.2, subd. (a).) Monetary sanctions are GRANTED and imposed against Defendant and counsel of record, jointly and severally, in the amount of $560.00 for two hours preparing this unopposed motion and attending the hearing, at Plaintiff’s counsel’s rate of $250.00 per hour and $60.00 filing fee. Monetary sanctions are ordered to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.