34-2012-00132503

Edna Miller vs. CDCR

Nature of Proceeding: Motion to Quash Subpoena

Filed By: Miller, Edna

Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov.

Self-represented plaintiff Edna Miller’s (“Plaintiff”) motion to quash the subpoena issued to the Department of Motor Vehicles (“DMV”) by defendant California Department of Corrections and Rehabilitation (“CDCR” or “Defendant”) is ruled upon as follows.

The operative Fourth Amended Complaint alleges a single claim for retaliation in violation of FEHA. Plaintiff generally alleges CDCR retaliated against her and refused to return her to work in retaliation for her 1999 sexual harassment and discrimination action filed against CDCR.

On August 2, 2019, CDCR issued a deposition subpoena for the production of business records to the DMV seeking:

1. Any and all documents reflecting any communication with EDNA MILLER regarding Placard Number N078073 or any subsequently issued Placard(s) from 8/6/98 to the present date, including without limitation any applications for, medical support for, or any and all other materials reflecting, relating to, or evidencing in any way the issuance of a Disabled Persons Placard to EDNA MILLER.

2. Any and all documents regarding any Disabled Persons Placard issued to EDNA MILLER from 8/6/98 to the present date, including without limitation any applications for, medical support for, or any and all other materials reflecting, relating to, or evidencing in any way the issuance of a Disabled Persons Placard to EDNA MILLER, including but not limited to Placard Number N078073 or any subsequently issued Placard(s) and/or renewals and/or denials regarding same.

3. Any and all documents of whatever description reflecting, relating to or evidencing in any way the issuance of, records relating to, or evidencing in any way a California Driver’s License issued to EDNA MILLER (see aka names listed above), including but not limited to California Driver’s License No. N8102392, including but not limited to a current DMV printout concerning each and every such license.

4. Any and all documents of whatever description, reflecting, relating to, or evidencing in any way notification to the California Department of Motor Vehicles regarding changes of address relating to EDNA MILLER (see aka names listed above) from 8/6/98 to the present date.

(Miller Decl. Exh. B.)

Pursuant to CCP § 1987.1, the “court, upon motion reasonably made, by the

party…may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such 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 parties, the witness, the consumer, or the employee from unreasonable demands, including unreasonable violations of the right of privacy of the witness, consumer, or employee.”

Plaintiff moves to quash the subpoena pursuant to her right to privacy. DMV records are documents that fall within a “zone of privacy.” See e.g. Vehicle Code Section 20008; see also Davies v. Sup. Ct. (1984) 36 Cal.3d 291, 299.

Plaintiff argues information regarding the status of her driver’s license or disabled person parking placards is irrelevant to this action. Plaintiff contends this action has nothing to do with disability discrimination or her driving record. Plaintiff also contends CDCR has already obtained this information through deposition testimony from her doctor and a subpoena for her medical records, but she presents no evidence in support of these contentions.

In opposition, CDCR argues Plaintiff has placed the information at issue by basing her claim for FEHA retaliation in part upon CDCR’s decision to medically demote her for being unable to perform the essential functions of a peace officer with or without reasonable accommodations for her disabilities. CDCR argues Plaintiff’s representation to the DMV of her need for a disabled person’s placard due to her disabilities is relevant to Plaintiff’s claims that she asked to be reinstated as a peace officer, but was wrongfully demoted and terminated instead. CDCR also argues information regarding Plaintiff’s address is relevant because Plaintiff bases her retaliation claim in part on the CDCR allegedly depriving her of due process by knowingly serving her with a notice of medical demotion and notice of separation for being absent without leave at an incorrect address. CDCR contends it served Plaintiff at the address she represented was correct and thus, information Plaintiff provided to the DMV regarding her address is relevant. CDCR makes no argument explaining how Plaintiff’s driver’s license status is at all relevant or why the request concerning Plaintiff’s change of address seeks information going back to 1998.

“In the context of discovery, evidence is ‘relevant’ if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. Inadmissibility is not the test, and it is sufficient if the information sought might reasonably lead to other, admissible evidence.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) “Any doubts regarding relevance are generally resolved in favor of allowing the discovery.” (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 98.) Moreover, under our discovery statutes the Legislature has authorized “fishing expeditions” and thus “the claim that a party is engaged upon a fishing expedition is not, and under no circumstances can be, a valid objection to an otherwise proper attempt to utilize the provisions of the discovery statutes.” ( Greyhound Corp. v. Superior Court, (1961) 56 Cal.2d 355, 385-386.) Nonetheless,

even if discovery is likened to a fishing expedition, “as with a fishing license, the rules of discovery do not allow unrestricted access to all species of information.” (Tylo v. Superior Court (1997) 55 Cal.App.4th 1379; see also, Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216.) This said, even highly relevant, non-privileged information can be deemed non-discoverable if disclosure of the information would violate a person’s constitutional “inalienable right of privacy.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856; Griswold v. Connecticut (1965) 381 U.S. 479, 484, See Cal. Const. Art. I, Section 1.) This Constitutional right to privacy protects against invasion by private citizens as well as the State. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th, 20.) If a party seeks discovery within a “zone of privacy” protected by the California or United States Constitution, the Court must vigilantly balance the right of privacy against the need for discovery. (Britt, supra, 20 Cal.3d at pp. 855-856.)

The Court may order disclosure if a compelling need requires it. Ibid. This burden is not easily overcome. The proponent of the discovery must prove the confidential information sought is directly relevant to the action and essential to its fair resolution. (Lantz v. Superior Court (1994) 28 Cal. App.4th 1839, 1853; Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014; Britt, supra, 20 Cal.3d at pp. 859-862.) The lesser showing to justify discovery under Code of Civil Procedure section 2017.010, i.e., information need only be reasonably calculated to lead to discovery of relevant or admissible evidence, does not apply in the face of a privacy objection; rather, such information must be directly relevant. (Britt, supra, 20 Cal.4th at p. 859; Tylo v. Superior Court (1997) 55 Cal.App.4tii 1379, 1387-88.) Even if the information sought is “relevant to the subject matter,” the Court shall limit the scope of discovery if it determines that the “burden, expense or intrusiveness…clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (CCP Section 2017.020(a).)

Here, Plaintiff alleges she was removed from her peace officer position as a Facility Captain in 1999 and placed on medical leave for her sarcoidosis, as aggravated by stress. (FAC ¶ 11.) At or around this same time, Plaintiff pursued a civil action against CDCR for sexual harassment and discrimination in violation of FEHA. (FAC ¶ 8-9.) Plaintiff’s 1999 sexual harassment and discrimination case continued through the court system and in 2009, Plaintiff requested that CDCR assist her in returning to work. Plaintiff alleges she provided CDCR with a doctor’s assessment that stated Plaintiff was competent to return to work with accommodations that she not be placed back inside the facility where the incident transpired. (FAC ¶ 14.) Plaintiff alleges CDCR did not agree to return her to work, but instead eventually demoted her and terminated her for being absent without leave on August 31, 2011. (FAC ¶¶ 15, 25-33.) Plaintiff then obtained right to sue letters from the EEOC and DFEH regarding CDCR’s alleged wrongful retaliation and failure to return her to work and instituted this instant action. (FAC ¶¶ 16-23.)

In response to discovery, Plaintiff stated the following facts support her claim that

CDCR violated her rights:

“[D]elay of 8 years in returning her to work after Miller turned down CDCR’s offer of $1.7 million in settlement of prior litigation between Miller and CDCR in exchange for agreeing to quit the CDCR, refusing to return her to a Facility Captain position, refused to place her in reasonable accommodation, failed to give her salary equal to Facility Captain, medically demoted against her will, violated timeliness for return to work, failed to give correct essential functions of a new position according to ADA, failed to place her in

administrative Facility Captain position, sent mail to false address, and failed to give her a Skelly hearing.” (Harlan Decl. Ex. C [Plaintiffs Response to Interrogatory No. 1, emphasis added]; see also Harlan Decl. Ex. C [Plaintiffs Responses to Interrogatory Nos. 4. 7, and 48].)

Plaintiff’s allegations and discovery responses evidence that some of the information sought is relevant. The Court is persuaded that information concerning Plaintiff’s representations to the DMV to obtain a disabled person’s placard and regarding her address could be directly relevant. Indeed, CDCR contends if Plaintiff represented to the DMV that she was unable to walk anything but short distances, and thereby obtained a disabled placard, this would be relevant to CDCR’s defense that Plaintiff could not perform the essential functions of a peace officer. Further, representations made regarding her current address would be relevant to CDCR’s defense against Plaintiff’s claim of defective notice.

In addition, to the extent the subpoena seeks “medical records” with the DMV concerning Plaintiff’s claims of a disability [and it is not at all clear that to obtain a disabled person’s placard in California, medical “records” need to be provided to the DMV. See, e.g. Cal Veh Code § 22511.55(b)(1), (2) ], the Court also finds Plaintiff has waived some of her right to privacy regarding claimed disability by tendering this action. The right to privacy in one’s medical records is not absolute and private information may be subject to discovery where the party seeking such discovery demonstrates a compelling need for the information and that the information cannot reasonably be obtained through less intrusive means of discovery such as depositions. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525-526; disapproved by Williams v. Superior Court (2017) 3 Cal.5th 531 only to the extent that the case assumed without conducting the Hill analysis that a compelling need is automatically required when a party seeks discovery of private information.) In situations such as these, where it is argued that a party waives protection by filing a lawsuit, the Court must construe the concept of waiver narrowly and the requisite “compelling public interest” is demonstrated only where the material sought is directly relevant to the litigation. Such waiver extends only to information relating to the medical conditions in question, and does not automatically open all of a patient’s past medical history to scrutiny. (Britt v. Superior Court (1978) 20 Cal.3d 844, 858-859.)

As addressed herein, plaintiff does not sacrifice all privacy rights in seeking redress for a specific medical condition. (Britt, supra, 20 Cal.3d. at 863-864 [citations omitted].) “As Lifschutz explains, plaintiffs 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. The trial court thus obviously erred in ordering plaintiffs to disclose to defendant their entire lifetime medical histories and this aspect of the challenged discovery order must also be vacated.” (Id. at 864.)

However, as currently drafted, the Court is not persuaded the subpoena is narrowly enough tailored. As noted above, CDCR makes no argument explaining how Plaintiff’s driver’s license status is at all relevant, even if time limitations were imposed. Further, the request concerning Plaintiff’s change of address seeks information going back to 1998, which CDCR has not justified as being directly relevant (much less relevant in the first instance). While CDCR has indicated it would limit this request to the period

from August 2009 (when Plaintiff first asked CDCR for assistance in returning to work) through November 2011 (shortly after CDCR advised Plaintiff via email that she had been separated), the Court will not, sua sponte, undertake the task of rewriting the subpoena for the department’s benefit.

As a result, the motion to quash is GRANTED, without prejudice to Defendant issuing appropriate subpoenas.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). Plaintiff is ordered to notify Defendant immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event Defendant appears without following the procedures set forth in Local Rule 1.06(B).

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.