Case Number: 18STCV05947 Hearing Date: October 29, 2019 Dept: 4A

Motion to Quash Subpoena for Records

Having considered the moving, opposition, and reply papers, the Court rules as follows.

BACKGROUND

On November 20, 2018, plaintiff Lisa Rollins filed a complaint against Ebrahim Showkati-Tabrizi, Kevin Mojaradi and Does 1-50 seeking damages for injuries allegedly sustained in a motor vehicle collision on November 28, 2016. According to Plaintiff’s verified discovery answers, she is seeking damages for injuries only to her neck, back, head, shoulders, left arm and for dizziness, nausea, vomiting and anxiety.

On or about July 8, 2019, Defendants issued a deposition subpoena to Broadspire Services, Inc., seeking the following documents: “All documents and records pertaining to the insurance and claim file of Lisa Rollins, including, but not limited to, all payments, policy information, listing of providers, correspondence, all log notes, declaration of coverage, medical records, property damages, repair estimates and repairs, color photographs pertaining to Lisa Rollins, DOB: February 5, 1970, with SS# XXX-XX-9856, from any and all dates. Entire claim file including medical records and medical bills regarding Claim no. 188528020001 Date of loss 6/11/17.” She

PARTIES’ REQUEST

Plaintiff asks the Court to quash Defendants’ subpoena for records served on Broadspire Services, Inc. Broadspire Services, Inc. appears to be in possession of an insurance claim file for Plaintiff’s claim made in connection with a slip and fall she suffered subsequent to the subject vehicle collision. Plaintiff also requests that monetary sanctions be imposed against Defendants and their counsel in the amount of $2,860.

LEGAL STANDARD

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 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 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 Civ. Proc., §2020.410, subd. (a).)

Insurance Code section 791.13 provides, in part, that an insurance institution shall not disclose any personal or privileged information about an individual collected or received in connection with an insurance transaction unless the disclosure is with the written authorization of the individual or in response to a facially valid administrative or judicial order, including a search warrant or subpoena. (Ins. Code, § 791.13, subds. (a), (h); see also Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 321-322 [discovery of insurance claim files may be conditioned on obtaining the written consent of the persons to whom the files relate].)

“[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 [a] 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 (citation and footnote omitted).) However, “privacy interests may have to give way to [an] opponent’s right to a fair trial. Thus courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.)

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, subd. (a).)

A motion to quash a subpoena must be accompanied with a meet and confer declaration showing a good faith and reasonable attempt at an informal resolution took place. (Code Civ. Proc. §§ 2016.040, 2025.410, subd. (c).)

DISCUSSION

On July 8, 2019, Defendants issued a subpoena for production of business records to the custodian of records for Broadspire Services, Inc. (Mot., Akhavan Decl., Exh. 1.) Broadspire Services, Inc. appears to have an insurance claim file for Plaintiff’s claim made in connection with a slip and fall he suffered subsequent to the subject vehicle collision. The subpoena requests the following records be produced:

“Any and all documents and records pertaining to the insurance and claim file of Lisa Rollins, including, but not limited to, all payments, policy information, listing of providers, correspondence, all log notes, declaration of coverage, medical records, property damages, repair estimates and repairs, color photographs pertaining to Lisa Rollins, DOB: February 5, 1970, with SS# XXX-XX-9856, from any and all dates. Entire claim file including medical records and medical bills regarding Claim no 188528020001 Date of loss 6/11/17.”

As Defendants concede, their subpoena requests Plaintiff’s entire insurance file with respect to Plaintiff’s slip and fall. (Opp. 2:5-7.) Plaintiff has not consented to disclosing the entire claim file. (Mot., Akhavan Decl., Exh. 2.) Without Plaintiff’s consent, Defendants are without authority to obtain all the documents requested in the subpoena. (Ins. Code, § 791.13.)

The Court notes that the parties appear to agree that Defendants is entitled to subpoena Plaintiff’s medical records in the insurance file to the extent that they address injuries and medical conditions that overlap with those for which Plaintiff seeks damages in this action. Plaintiff has waived her privacy rights with respect to the kinds of physical and other injuries for which she seeks damages in this action and, thus, cannot object to medical records reflecting treatment for related maladies or injuries sustained after the subject automobile collision. Indeed, Defendants’ justification for seeking documents from Broadspire Services, Inc., is the need to “investigate how [Plaintiff’s 2017 slip and fall] accident may affect plaintiff’s claimed residual complaints she attributes to the motor vehicle accident.” (Opp. 3:20-27.)

Defendants have failed to demonstrate good cause to secure any insurance documents other than medical records showing treatment for the same kinds of physical and other injuries Plaintiff raises in this lawsuit. The Court finds that there is no good cause to disclose any personal or privileged information about Plaintiff collected or received in connection with the insurance transaction contained in the insurance claim file, except for medical records that reflect treatment provided for medical conditions concerning Plaintiff’s neck, back, head, shoulders, and/or left arm and for dizziness, nausea, vomiting and/or anxiety.

Accordingly, Plaintiff’s motion to quash the subpoena is GRANTED IN PART. The Court issues a protective order barring the disclosure of any records by Broadspire Services, Inc. other than medical records reflecting treatment provided for medical conditions concerning Plaintiff’s neck, back, head, shoulders, and/or left arm and for dizziness, nausea, vomiting and/or anxiety.

Plaintiff requests sanctions against Defendants and their counsel in the amount of $2,860. The Court finds that Defendants had no substantial justification for requesting such a broad subpoena. Defendants do not sufficiently defend the breadth of the subpoena. Thus, in the Court’s discretion, it will award a reasonable sanction against Defendants and their counsel.

The Court finds that the sanctions award sought is unreasonable and awards a total of $960 in sanctions against Defendants and their counsel of record, jointly and severally. The award includes two hours for preparing the motion and one hour to attend the hearing, at $300 per hour, plus one $60 filing fee.

The Court orders Defendants and their counsel of record to pay $960 to Plaintiff, within 30 days of issuance of this order.

Plaintiff is ordered to provide notice of this order.