Lawzilla Additional Information: The court’s final order was to deny sanctions.

Case Number: BC716308 Hearing Date: October 07, 2019 Dept: 2

Pliler v. McMeikan, et al.

Plaintiff’s Motion to Quash Defendant’s Subpoenas for Plaintiff’s Records; Request for Sanctions, is GRANTED.

Plaintiff seeks to quash subpoenas directed to various physicians and medical providers of Plaintiff.

As an initial matter, the Court addresses Defendants’ contention that the motion is defective because a separate statement was not timely served. This argument fails because a separate statement is not required when no response has been provided to the discovery. Cal Rules of Court, Rule 3.1345. Additionally, as Plaintiff observes, a party may be deemed to have waived any irregularity in the notice by appearing at the hearing, opposing the motion, not asking for a continuance and not demonstrating any prejudice resulting from the shortened notice. Carlton v. Quint (2000) 77 Cal. App. 4th 690. Here, even if a separate statement had been required, Defendants have opposed the motion and have not asked for a continuance or shown any prejudice from the late-filed separate statement.

The Court thus addresses the merits of the motion. In this action, Plaintiff alleges that he suffered injuries to his left shoulder, left elbow, left hand, neck, and back of the head from the motor vehicle accident at issue. Defendants have served subpoenas on the following physicians and medical providers who have provided medical care to Plaintiff:

1. Soroya Bacchus, M.D.

2. Graham Mouw, M.D.

3. Valley Spine Center

4. Elliot M. Hirsch, M.D.

5. Eric Gofnung, D.C.

6. Thomas E. Dosumu-Johnson, M.D.

The subpoenas are exceedingly broad; they seek “any and all documents” for the past 10 years pertaining to any care, treatment or examination received by Plaintiff.

In the motion, Plaintiff’s counsel avers that he attempted to meet and confer with Defendants regarding the scope of the subpoenas, but Defendants unequivocally refused to consider any modification or narrowing of the subpoenas. For example, Defendants refused to consider modifications that would limit the records to the body parts at issue or to conditions that are relevant to an assessment of the injuries alleged here. In the opposition, Defendants argue that no further limitation (other than the 10-year date limitation) “could reasonably be made due to the wide range of injuries alleged, which encompass nearly all of Plaintiff’s body.”

Plaintiff has established the subpoenas are overbroad and violate his right to privacy. Persons generally have a right to privacy in their medical records that is protected by the California Constitution and, to the extent communications between physician and patient are sought, the physician-patient privilege. By filing a personal injury action, plaintiffs place in issue their past and present physical and/or mental conditions related to the injury sued upon. All medical and/or psychological records relating to the claimed injuries are thus discoverable. Britt v. Sup. Ct. (San Diego Unified Port Dist.) (1978 20 Cal. 3d 844, 862-64. But a defendant is entitled only to those records that are directly relevant to the alleged injuries in the case; information about medical conditions that are entirely different from the injury at issue are beyond the scope of discovery. Britt v. Sup. Ct. (San Diego Unified Port Dist.) (1978 20 Cal. 3d 844, 862-64; see also Harris v. Superior Court (1992) 3 Cal. App. 4th 661, 665; Davis v. Superior Court (1992) 7 Cal. App. 4th 1008, 1014.

Defendants have made no attempt to limit the scope of the subpoenas to those injuries or conditions that are directly relevant to the claimed injuries here. Even if some of the records appear relevant, the scope of permissible discovery must be narrowly circumscribed. Harding Lawson Associates v. Superior Court (1992) 10 Cal. App. 4th 7, 10.

The Court thus GRANTS the motion to quash the subpoenas. The Court quashes the subpoenas rather than modifying them because Defendants refused to engage in Plaintiff’s good faith efforts to meet and confer regarding the scope of the subpoenas, and Defendants have not proposed any limitations on the scope in connection with the opposition papers. In the absence of any efforts by Defendants to tailor the subpoenas only to those records that are directly relevant, the Court declines to determine, sua sponte, the scope of permissible modifications.

The Court’s ruling is without prejudice to Defendants’ serving new subpoenas to the same recipients that are narrowly tailored to body parts or conditions that are directly relevant to Plaintiff’s alleged injuries at issue in this case. The parties are ordered to meet and confer regarding the scope of any such subpoenas.

Finally, even though some of the records sought are relevant, the Court concludes that there is no substantial justification for Defendants’ position that they are entitled to all medical records without limitation for the past 10 years. The Court also finds that the subpoenas are oppressive to the extent they seek the production of medical records that are not directly relevant to the alleged injuries. The Court thus imposes sanctions in the amount of $1,200 against Defendants Lauren McMeikan, Bruce McMeikan, and Donna McMeikan and their counsel of record Amit Palta Esq. Cal Code Civil Procedure section 1987.2.

Moving party to give notice.