2013-00141542-CU-PO

David Anthony Wood vs. Divco West Real Estate Services LLC

Nature of Proceeding: Motion to Quash Subpoena

Filed By: Saraiva, Catia G.

*** If oral argument is requested, the parties are directed to notify the clerk and
opposing counsel at the time the request is made which of the subpoenas will
be addressed at the hearing. Counsel are also reminded that local rules permit
only limited oral argument on law and motion matters. ***

*** Judge Cadei discloses that the law firm of Dreyer, Babich, Buccola, Wood &
Campora LLP represented his family in 2004-05 in connection with an automobile
accident. Additionally, prior to Judge Cadei’s appointment to the bench, he had a
professional relationship with the Dreyer, Babich law firm including the representing
the firm regarding certain financial matters in the early 1990s, referring matters to them
and undertaking cases and clients that were referred to him while he was in practice
prior to June 2002. Judge Cadei has not had any personal relationship with the
members of the firm and does not socialize with any of the attorneys from the Dreyer,
Babich firm beyond the usual meetings of professional organizations in the community.
Judge Cadei has determined that the foregoing does not disqualify him from hearing this matter but provides this information to fully inform all parties in advance of the
hearing. ***

Plaintiff’s motion to quash defendant MSCP Capital Center Investor, LLC’s various
records-only deposition subpoenas seeking plaintiff’s medical, employment and worker
compensation records is GRANTED in part and DENIED in part, as follows.

Moving counsel is admonished because the reply brief fails to comply with page
limitation found in CRC Rule 3.1113(d).

The Court notes that several of the documents filed by plaintiff in support of this motion
include his own unredacted social security number and other personal information,
which information has been viewable by the public via the CCMS system since
2/18/2014. Should plaintiff desire to protect his social security number and other
personal information, he should promptly file and serve an appropriate motion to seal
and lodge, not file, a redacted but otherwise identical version of each document
containing the unredacted social security number and other personal information now
sought to be protected.

In this action arising out of an August 2012 head injury suffered by plaintiff while in the
course and scope of his employment with the State of California, defendant issued
various records subpoenas for plaintiff’s medical records and billings, his records from
his past and current employers and his worker compensation records. Plaintiff now
moves to quash all these subpoenas on the ground they are overly broad in that the
medical subpoenas are “not sufficiently limited to records regarding the areas of [his]
that [he] claims to have been injured in this accident” and that the employment
subpoenas are “not limited in any manner” and may include “privileged financial
information, including privileged tax information.” (Not. of Mot., p.2:11-17.)

Defendant opposes, arguing that plaintiff refused multiple attempts to address the
latter’s concerns and instead insisted that the records be redacted by either plaintiff’s
counsel or the records custodians before production to defendant. The opposition also
contends that the records sought here are proper as they are reasonably calculated to
lead to admissible evidence and do not impermissibly invade any of plaintiff’s rights
particularly since plaintiff has claimed a wide array of injuries and symptoms as a
result of the subject accident and has a complex medical history which is relevant to
plaintiff’s ongoing complaints and alleged inability to resume working. It is worth noting
that plaintiff’s own responses to form interrogatories refer defendant to his medical
records, some of which have already been produced by his counsel albeit with
substantial redactions.

The Court must remind plaintiff’s counsel that given the number of motions such as
this which must be addressed on a daily basis, there are simply not enough judicial
resources available to resolve each and every discovery dispute that could have and
should have been resolved informally. This serves to highlight the critical need for
counsel’s legitimate, reasonable and good faith meet-and-confer efforts before filing
any discovery motion. Although it dealt with a motion to compel answers to deposition
questions, the decision of Townsend v. Superior Court (1998) 61 Cal.App.4th 1431 is
instructive in that it clarifies that the meet-and-confer process is not intended to be
some perfunctory formality but rather it “requires…a serious effort at negotiation and
informal resolution.” (Id., at 1438.) Most troubling here is that defendant appears to
have made numerous efforts to resolve the issues presented here but plaintiff’s counsel has unreasonably refused to consider any option other than the redaction of
records claimed to be irrelevant, private or privileged. The Court expects much more
of plaintiff’s counsel especially since she is with a well established and respected
litigation firm which must resolve such routine matters in virtually of its cases.
Nevertheless, at the expense of other matters on this crowded docket, the Court
reluctantly addresses a rather unremarkable discovery dispute that should have been
resolved without a formal motion.

Worker Compensation Records. The Court finds nothing improper with defendant’s
subpoena for all records from the worker compensation carrier in connection with
plaintiff’s claim for the August 2012 injury at issue here. By definition, the records
sought by defendant here should relate only to the August 2012 incident, those injuries
attributable to it and the treatment of same. Consequently, plaintiff’s suggestion that
this subpoena will lead to the production of records which are either irrelevant or
private is unfounded. This is particularly true since the language of the subpoena itself
expressly “exclud[es] privileged and confidential documents” which might otherwise be
produced in response. For these reasons, the motion to quash must be denied as to
the subpoena for these worker compensation records.

Medical Records and Billings. First, while defendant did specifically request
psychological, psychiatric and mental health records from the Newton Medical Group
only, the subpoena to this location is not among the subpoenas specifically challenged
by the present motion and thus, plaintiff’s vague arguments about the scope of
defendant’s (other) subpoenas being impermissibly overbroad miss the mark.
Plaintiff’s next contention that the medical subpoenas are not limited to the body parts
claimed to be injured or otherwise placed at issue in this litigation is also misguided for
several reasons including the fact that plaintiff’s own form interrogatory responses not
only provided a broad list of injuries allegedly resulting from the subject accident but
also explicitly referred defendant to “the medical records for the greatest possible
accuracy.” Under such circumstances, it would be quite difficult if not impossible for
defendant to reasonably limit the scope of these medical subpoenas to only those
body parts placed at issue by plaintiff and yet still obtain all medical records defendant
to which it is clearly entitled. Moreover, given the nature of the wide array of injuries
plaintiff has to date identified and his extensive medical history which overlaps with
and may be contributing to plaintiff’s current complaints and apparent inability to return
to work, defendant appears more than justified in pursuing the medical records pre-
dating the subject incident particularly in light of the liberal standard governing
discovery (i.e., reasonably calculated to lead to the discovery of admissible evidence).
Nevertheless, defendant has agreed to limit the subpoenas to five (5) years prior to the
2012 incident, a reasonable accommodation of plaintiff’s ostensible “privacy” concerns.
Finally, inasmuch as plaintiff’s own complaint alleges “great mental, physical, and
nervous pain and suffering” (Compl., ¶10), defendant should be permitted to records
which pre-date the subject accident as such information will be essential to fair
resolution of the pain and suffering claim. Accordingly, plaintiff’s attempt to preclude
defendant from obtaining any of these medical records and bills via the present motion
to quash is unwarranted and the motion is hereby denied as to the subpoenas for
medical records and bills.

Employment Records. Plaintiff concedes that defendant is entitled to payroll records
because he is asserting a wage loss claim as a result of the subject accident but
plaintiff argues that the subpoenas are overly broad and invade plaintiff’s privacy rights
inasmuch as the subpoenas seek “[a]ny and all documents and records, and all writings, including, but not limited to, employment, payroll and applications for
employment, work absence and incident reports, personal records, pre-employment
exam records, progress records and workers’ compensation records…” To highlight
this, plaintiff notes that he was previously employed with Aerojet for 26 years (ending
in approximately 2009) and this is no legal or factual justification for obtaining such a
wide array of documents going back to the 1980s. Plaintiff also contends these
subpoenas impermissibly invade the privilege which protects tax returns and related
documents, such as W-2 forms.

The opposition appears to concede that the tax privilege applies to certain documents
but notes that defendant’s attempts to negotiate a compromise on the scope of
employment documents sought were flatly rejected, with plaintiff unreasonably
insisting only upon his counsel’s review and redaction of the records before production
to defendant. Regardless, the opposition now asserts that plaintiff’s claims for both the
loss of earnings and the loss of earning capacity clearly validates the request for not
only payroll records from before the August 2012 accident but also other employment
documents such as plaintiff’s resume, performance/merit reviews, disciplinary records,
timesheets/attendance records, records of both industrial and non-industrial injuries
affecting plaintiff’s work and/or ability to work, etc., all of which are encompassed by
the subpoenas. Finally, defendant adds that in light of plaintiff’s extensive medical
history, it will be essential to determine whether his alleged inability to return to work
since the August 2012 accident is solely because of the injuries related thereto.

Except for any privileged tax documents which may be held by the employers,
plaintiff’s motion to quash the subpoenas for employment records is denied as
defendant is legally justified in seeking far more than just the payroll records in an
attempt to evaluate plaintiff’s lost earnings/earning capacity claims (as well as
plaintiff’s claim for “great mental, physical, and nervous pain and suffering” (Compl.,
¶10)). Given that plaintiff has failed to show that defendant is categorically not entitled
to any of the requested employment records and has also failed to identify any
reasonably limitations on the subpoenas despite bearing the burden of proof as the
moving party, the Court is on the present record not inclined to preclude defendant’s
ability to obtain any employment records other than the privileged tax documents
mentioned above.

To the extent the parties encounter any more issues with respect to the scope of
subpoenas (or for that matter, other discovery methods), counsel shall meet-and-
confer in good faith consistent with the language found in Townsend v. Superior Court
and in this ruling before filing a motion to quash (or compel).

The Court declines to award plaintiff any monetary sanctions since it appears
defendant’s meet-and-confer efforts were reasonable and since its insistence on
proceeding with the subpoenas was substantially justified for the reasons cited above.

Because plaintiff’s meet-and-confer efforts before filing this motion fail to demonstrate
a good faith, meaningful attempt to resolve this dispute without the necessity of a
motion and because the bulk of the present motion to quash was not substantially
justified, defendant is awarded monetary sanctions against plaintiff and his counsel in
the amount of $1,400 representing eight (8) hours of attorney time. Sanctions to be
paid no later than 4/30/2014 and if not paid by that date, defendant may prepare for
the Court’s signature a formal order granting the sanctions, which may then be
enforced as a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)