2012-00124775-CU-PO

Ali Zarrinkalam vs. Terra Nova Counseling

Nature of Proceeding: Motion to Compel Identification and Information of Witnesses

Filed By: Foos, David P.

Plaintiff Ali Zarrinkalam’s “motion to compel identification and information of witnesses”
is denied, without prejudice.

In this action, Plaintiff alleges that he entered Defendant Terra Nova Counseling’s
(“TNC”) Drinking Driver Program and was injured by one of TNC’s employees during a
class. He propounded interrogatories to TNC, specifically, form interrogatory 12.1 in
which he sought the identity of witnesses. TNC identified two witnesses by initials
(B.L. and T.V.) but stated that it “would only produce contact information for these
persons if so ordered by the court, but this responding party has a duty to maintain the
confidentiality of the identity of those individuals who were its clients in a DUI
program.” He also propounded special interrogatory 3 in which he sought the identity
of all students attending the same class as Plaintiff on the day in question. TNC
asserted an objection based on the privacy rights of third parties.

Plaintiff is correct that the “disclosure of the names and addresses of potential
witnesses is a routine and essential part of pretrial discovery.” (Puerto v. Superior
th
Court (2008) 158 Cal.App.4 1242, 1250.) Puerto, recognizes, however, that such
right to disclosure is not absolute particularly where privacy rights are involved. (Id. at
1251.)

TNC concedes that B.L. and T.V. may have relevant information and opposes the
motion only on the basis that under relevant state and federal regulations, it cannot
voluntarily disclose the witness information to Plaintiff. CCR § 9866(c) which pertains
to Drinker Driver Programs provides that TNC as an operator, “shall ensure
confidentiality of participant records and information in accordance with Sections 2.1-
2.67(1), Title 42, Code of Federal Regulations.” Title 42 CCR § 2.3 provides penalties
for improper disclosure of participant records, including any information that would identify the patient as an alcohol or drug abuser. TNC also indicates that it contacted
B.L. and T.V. in an attempt to obtain their consent to release their contact information
but had yet to hear back as of the time the opposition was filed. (Stroube Decl. ¶ 5.)

As seen from the federal regulations, disclosure of otherwise confidential information is
permitted by an “appropriate order of a court of competent jurisdiction granted after
application showing good cause thereof. In assessing good cause the court shall
weigh the public interest and the need for disclosure against injury to the patient, to the
physician-patient relationship, and to treatment services. Upon granting of such order,
the court, in determining the extent to which any disclosure of all or any part of any
record is necessary, shall impose appropriate safeguards against authorized
disclosure.” (42 USC § 290ee-3.) In addition, certain procedural steps must be taken
under the regulations. Indeed, among other things, the patient must be given notice in
a manner that will not disclose identifying information and shall have an opportunity to
file a written response to the application “for the limited purpose or providing evidence
on the statutory and regulatory criteria for issuance of the court order.” (42 CCR §
2.64(b).)

Here, while there is no dispute that B.L. and T.V. may have knowledge of the subject
incident, the regulations discussed above prevent TNC from disclosing the identifying
information without either their consent or a court order. Further, while the Court
would agree that good cause exists for disclosure of the information, the regulations
make clear that B.L. and T.V. must have notice that their information is being
requested in connection with this action and an opportunity to respond to such request.
(E.g., 42 CCR § 2.64(b).) While TNC’s counsel contacted B.L. and T.V. in an attempt
to obtain their consent to release of the information, it does not appear they were given
notice of the instant motion and the required opportunity to respond. As a result, the
motion is denied without prejudice so that such notice and opportunity to respond to
accordance with the regulations can be accomplished.

The Court recognizes that Plaintiff will not be able to provide the notice to B.L and T.V.
given Plaintiff is unaware of their contact information. As a result, TNC must
cooperate with Plaintiff in providing notice of any subsequent motion to B.L. and T.V.

The Court notes that while Plaintiff argues that the information at issue is not private
because records of who has been assigned to DUI programs are available online or in
the Courthouse, Plaintiff presents no factual support for that proposition.

TNC’s request for judicial notice of the subject regulations is granted.

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