Case Number: BC645932 Hearing Date: August 31, 2018 Dept: 24

Plaintiff Muhammad Jassim Osman’s unopposed Motion to Quash Defendant Skye Wireless’ Subpoena of Records from Arnold P. Nerenberg is GRANTED.

“Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum…” (Code Civ. Proc., § 1985.3(g).)

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), 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 or conditions as the court shall declare, including protective orders. In addition, the court may make any other order 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 Civ. Proc., § 1987.1(a).) “The following persons may make a motion pursuant to subdivision (a): (1) A party.” (Code Civ. Proc., § 1987.1(b).)

“[I]n making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, 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 Civ. Proc., § 1987.2(a).)

The subject subpoena seeks the following records:

All DOCUMENTS and communications that YOU sent or received from PLAINTIFF

in connection with PLAINTIFF’s treatment by YOU from December 1, 2016 to present.

2. All documents pertaining to any and all examinations, treatments, or care of PLAINTIFF by YOU from December 1, 2016 to present.

3. All DOCUMENTS pertaining to any and all DOCUMENTS signed by YOU on behalf of PLAINTIFF, including but not limited to doctor’s notes, scripts, prescriptions or otherwise from December 1, 2016 to present.

4. All DOCUMENTS pertaining to any and all communications between YOU and PLAINTIFF in connection with PLAINTIFF’s absence from work from December 1, 2016 to present.

5. All DOCUMENTS pertaining to any and all billings, including but not limited to itemized statements of charges incurred or payments made by PLAINTIFF, from December 1, 2016 to present.

Plaintiff asserts his constitutional right to privacy and the patient-psychotherapist as a bar to this discovery. Plaintiff further asserts that the subpoena is overbroad. “[P]laintiffs are ‘not obligated to sacrifice all privacy to seek redress for a specific [physical,] mental or emotional injury;’ while they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” Britt v. Superior Court (1978) 20 Cal.3d 844, 864. The subject subpoena is so broadly worded as to request all of plaintiff’s medical records irrespective of type of treatment. The burden is on the party seeking the constitutionally protected information to establish direct relevance. Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017. Skye, by failing to oppose this motion, has not met its burden.

Moving party is ordered to give notice.