Case Number: KC065457    Hearing Date: July 17, 2014    Dept: J

Re: Azike Ntephe, et al. v. Dr. Ali Mesiwala, etc., et al. (KC065457)

MOTION TO STAY DEPOSITION AND QUASH DEPOSITION SUBPOENA

Moving Paries: Defendants Ali Mesiwala, M.D. Gowriharan Thaiyananthan, M.D., The Southern California Center for Neuroscience and Spine, and The Center For Neuroscience and Spine

Respondents: Plaintiffs Azike Ntephe and Diane Fencl

POS: Moving OK; Opposing OK; Reply filed just 4 court days prior to the hearing contrary to CCP § 1005(b)

Plaintiff Azike Ntephe underwent surgery for a multiple level decompression fusion by his neurosurgeon, Defendant Ali Mesiwala on 10/16/09. Plaintiff alleges that Mesiwala installed a spinal cage, rods and screws that came from a medical device company in which Mesiwala had a financial interest without disclosure and that concealed the fact that there were problems with the procedure. Plaintiffs commenced this action on 1/18/13. The FAC, filed on 5/9/13, asserts causes of action for:

1. Fraudulent Concealment
2. Breach of Fiduciary Duty
3. Failure to Obtain Informed Consent
4. Intentional Misrepresentation
5. Medical Negligence
6. Violation of Bus & Prof C § 17200
7. Loss of Consortium

Defendants Ali Mesiwala, M.D. Gowriharan Thaiyananthan, M.D., The Southern California Center for Neuroscience and Spine, and The Center For Neuroscience and Spine (collectively “Defendants”) move the court for an order staying the deposition and quashing the Notice of Deposition and Deposition Subpoena of the Person(s) Most Knowledgeable at San Antonio Community Hospital and Request for Production of Documents at the Deposition(s) issued by Plaintiffs’ counsel.

The motion is based on CCP §§ 1985.3, 1985.6, 1987.1, 2015.410, and by reason of the following:

1. The subpoenas at issue are directed to Dr. Mesiwala’s records pertaining to his privileges at San Antonio Community Hospital (“SACH”), “conflict of interest forms” Dr. Mesiwala created for SACH, SACH’s purchase of and payments for Kronos Spinal Technology, LLC medical devices. These issues and documents pertaining thereto are irrelevant to this matter and not calculated to lead to the discovery of admissible evidence.
2. Defendant has a right to privacy in the aforementioned records which can only be preserved by granting the motion.
3. Given the irrelevance of the requested information and records and Dr. Mesiwala’s clear privacy interests, the deposition(s) and requests for production of documents are clearly burdensome and harassing.

CCP § 1987.1 provides that when a subpoena requires the attendance of a witness or the production of documents issue therein, or at the taking of a deposition, the court, upon motion reasonably made by the party, the witness, or any consumer described in Section 1985.3, 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. The motion must be accompanied by a declaration showing a “reasonable and good faith attempt at informal resolution of the dispute” between the party requesting the records and the “consumer” or “employee” whose records are involved or counsel for such person. (CCP §§ 1985.3(g), 1985.6(f)(4).)

MEET AND CONFER:

Defendants represent that defense counsel will meet and confer with Plaintiffs’ counsel in an attempt to reach an amicable resolution of this issue and if the issue can be resolved, Defendants will withdraw this motion. (Motion, Blauvelt Decl. ¶ 4.) Defendants, however, failed to meet and confer BEFORE the motion was filed.

SEPARATE STATEMENT:

A motion to quash production of documents at a deposition must be accompanied by a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should not be compelled. (See CRC 3.1345(a)(5).) The motion is not accompanied by a separate statement.

OBJECTIONS BASED ON RELEVANCY:

For discovery purposes, information should be regarded as “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013.)

Plaintiffs, in their Complaint, allege two types of claims: medical malpractice claims based on allegations of Dr. Mesiwala’s improper care AND unlawful business practice claims based on allegations that Dr. Mesiwala is involved in a physician owned distributorship (“POD”) scheme whereby he implants medical devices, such as those sold by Kronos Spinal Technology, LLC, into patients without disclosing that he has a financial interest in the medical devices prior to the surgeries. Plaintiffs represent that through the subpoena at issue, they seek information and documents directly relevant to the existence of the alleged POD scheme. Specifically, Plaintiffs represent that they seek deposition testimony and documents from SACH, a hospital where Dr. Mesiwala performs surgeries and, Plaintiffs believe, perpetrated his POD scheme.

It appears that the information sought in the subpoena is relevant to the subject matter since it will likely assist Plaintiff in evaluating the case, preparing for trial, or facilitating settlement thereof. Thus, objection based on relevancy is without merit.

OBJECTION BASED ON UNDUE BURDEN:

In determining whether the burden is unjust, a weighing process is required: It must appear that the amount of work required to answer the questions is so great, and the utility of the information sought so minimal, that it would defeat the ends of justice to require the answers. (See Columbia Broadcasting System, Inc. v. Sup.Ct. (Rolfe) (1968) 263 Cal.App.2d 12, 19.)

Defendants fail to submit any evidence of burden generated by the subpoena. Thus, the objection based on undue burden is also without merit.

OBJECTION BASED ON PRIVACY:

Even highly relevant, nonprivileged information may be shielded from discovery if its disclosure would impair a person’s “inalienable right of privacy” provided by Calif. Const. Art. 1, § 1. (Britt v. Sup.Ct. (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844, 855–856; Pioneer Electronics (USA), Inc. v. Sup.Ct. (Olmstead) (2007) 40 Cal.4th 360, 370—right of privacy “protects the individual’s reasonable expectation of privacy against a serious invasion.”) The right to privacy is also guaranteed by the U.S. Constitution. (Palay v. Sup.Ct. (County of Los Angeles) (1993) 18 Cal.App.4th 919, 931.)

However, the constitutional right of privacy is not absolute; it may be abridged when there is a compelling state interest. Inquiry into one’s private affairs will not be constitutionally justified simply because the inadmissible and irrelevant matter sought might lead to other relevant evidence. The burden is on the party seeking the constitutionally protected information to establish direct relevance. (Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.) Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a “careful balancing” of the compelling public need for discovery against the fundamental right of privacy. If an intrusion on the right of privacy is deemed necessary under the circumstances of a particular case, any such intrusion should be the “least intrusive means” to satisfy the interest. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1854-1855.)

In balancing the public need for discovery against the fundamental right of privacy, it appears that Dr. Mesiwala’s right of privacy is outweighed by the need for discovery in this matter. Moreover, counsel for the parties have previously represented to the court that they have arrived at a confidentiality agreement with regard to discovery obtained in this action. Thus, the motion to stay and quash is denied.

SANCTIONS:

The court may order the losing party to pay the prevailing party’s expenses, including reasonable attorney fees, incurred on the motion to quash, if it finds that 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.” (CCP § 1987.2(a).)

It appears to the court that the motion was not made in bad faith or without substantial justification. Thus, the court declines to award sanctions.