David Rodriguez v. Aaron Beck CASE NO. 113CV247583
DATE: 18 April 2014 TIME: 9:00 LINE NUMBER: 13
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 17 April 2014. Please specify the issue to be contested when calling the Court and counsel.

On 18 April 2014, the motion of plaintiff David Rodriguez to quash a deposition subpoena and for monetary sanctions was argued and submitted. Defendant Aaron Beck filed a formal opposition to the motion in which he requests monetary sanctions.

Statement of Facts

This action arises from an automobile versus pedestrian accident that occurred on 18 June 2011, when plaintiff David Rodriguez (“Plaintiff”) was struck by defendant Aaron Beck’s (“Defendant”) vehicle in a Safeway parking lot as he was walking to his vehicle. Plaintiff alleges that he suffered serious injuries to his back and legs and wage loss as a result of the accident.

Discovery Dispute

On 11 December 2013, Defendant issued deposition subpoenas to a number of businesses, including Kaiser Permanente Hospital – San Jose (“Kaiser San Jose”), seeking employment, financial, medical, and billing records pertaining to Plaintiff. (See Dumitrescu Dec., p. 16:14-16.) Thereafter, on 19 December 2013, Plaintiff’s counsel objected to the subpoenas on grounds that they violate Plaintiff’s privacy rights and are burdensome, oppressive and harassing. (Id. at 17-20.) The parties informally agreed that Defendant would limit the subpoenas seeking medical and billing records to the body parts Plaintiff put at issue in this case, namely the back and legs. (Id. at 21-23; Johnson Dec., p. 2:5.)

Defendant served first amended subpoenas through Compex which conformed to the agreed upon language. (See Dumitrescu Dec., p. 16:26-27.) Subsequently, Plaintiff received a second amended subpoena issued to Kaiser San Jose on 6 February 2014, with a production date of 6 March 2014, which contained the original language that did not limit the scope of the subpoena to the back and legs. (Id. at 27-28, 17:1-9.)

After receiving the second amended subpoena, Plaintiff’s counsel sent an objection letter to Defendant’s counsel on 19 February 2014, which was incorrectly dated 19 December 2013, asking that the subpoena be withdrawn on grounds that it violates Plaintiff’s right to privacy and is burdensome, oppressive, and harassing. (See Dumitrescu Dec., p. 17:10-13.) Defendant’s counsel received the letter and assumed that it was an old letter that someone put on her desk because of the 19 December 2013 date and the fact that she had already limited the scope of the subpoena that was addressed in the letter. (See Johnson Dec., p. 2:7-13.)

Defendant’s counsel declares that after receiving additional objection letters from Plaintiff’s counsel, she e-mailed Compex to determine if they had indeed limited the scope of the subpoenas. (See Johnson Dec., p. 2:14-15.) Defendant’s counsel learned that the first amended subpoena issued to Kaiser San Jose had been limited, but Kaiser San Jose would not comply with the subpoena as drafted with the production limited to records pertaining to the back and legs. (Id. at 2:15-17.) Then Compex, unbeknownst to Defendant’s counsel, issued a second amended subpoena to Kaiser San Jose without the body part limits. (Id. at 2:17-18.) Defendant’s counsel declares that she then made two phone calls to Plaintiff’s counsel, Steve Mazza, to discuss the subpoena, her phone calls were not returned. (Id. at 2:21-25.)

On 27 February 2014, Plaintiff’s counsel, Silviana Dumitrescu, sent a letter to Defendant’s counsel via fax asking if she would agree to limit the scope of the second amended subpoena sent to Kaiser San Jose to the body parts of the back and legs. (See Dumitrescu Dec., p. 17:14-16.) At Defendant’s counsel’s request, Ms. Dumitrescu contacted Defendant’s counsel on her cell phone to discuss the matter. (Id. at p. 17:16-17.)

During the telephone conversation, Defendant’s counsel advised Ms. Dumitrescu that she attempted to contact Mr. Mazza earlier in the week regarding the subpoena and Kaiser San Jose refused to comply with the subpoena due to the body part limitations. (See Dumitrescu Dec., p. 17:18-24.) Defendant’s counsel proposed the following solutions: (1) that the records be delivered to Plaintiff’s counsel for a “first look” and any record that was removed or redacted could be provided in a privilege log or reviewed by a discovery referee; (2) that the records could be produced with an agreed protective order; or (3) that all of the records could be sent to a neutral discovery referee who would review the records and redact information or withhold documents as appropriate. (See Johnson Dec., p. 3:3-23; Dumitrescu Dec., p. 17:25-28, 18:1-4.) Ms. Dumitrescu responded that the “first look” agreement was not feasible because it would be overly burdensome on Plaintiff’s counsel to look through all of the medical records and they did not have the requisite training to perform such a review. (See Dumitrescu Dec., p. 18:5-8; Johnson Dec., p. 3:3-15.) Ms. Dumitrescu further indicated that a protective order was insufficient because unrelated and irrelevant medical records would still be produced. (See Johnson Dec., p. 3:16-18.) Finally, Ms. Dumitrescu rejected the use of a neutral discovery referee because it would be costly and would not address Plaintiff’s privacy rights, as the referee would go through all of the medical records to determine which were directly relevant to Plaintiff’s claims. (See Dumitrescu Dec., p. 18:9-15; Johnson Dec., p. 3:19-22.) At that point, it was apparent that a solution could not be agreed upon, and Defendant’s counsel advised Ms. Dumitrescu that she would leave the subpoena in place and Plaintiff could file a motion to quash. (See Johnson Dec., p. 3:26-28, 4:1.)

On 3 March 2014, Plaintiff filed a motion to quash the subpoena issued to Kaiser San Jose and for an award of monetary sanctions. On 3 April 2014, Defendant filed opposition papers in which he requests monetary sanctions. Plaintiff filed a reply on 9 April 2014.

I. Plaintiff’s Motion to Quash Subpoenas

Plaintiff moves to quash the subpoena issued to Kaiser San Jose on grounds that it is burdensome, oppressive, harassing, overbroad, seeks irrelevant information, and violates his right to privacy.

A. Legal Standard

Code of Civil Procedure section 1987.1 states that the court may, upon motion reasonably made, 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. (Code Civ. Proc., § 1987.1.) In addition, the court may make any other order 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.)

B. Analysis

1. Meet and Confer

As a preliminary matter, Defendant contends that Plaintiff failed to engage in substantial meet and confer efforts in good faith because Plaintiff’s counsel would not agree to any of solutions proposed by Defendant’s counsel and did not appear to have authority to negotiate solutions to the discovery dispute, other than demanding the complete withdrawal of the subpoena. However, Code of Civil Procedure section 1987.1 does not require a party to engage in meet and confer efforts before filing a motion to quash a subpoena and, therefore, Defendant’s argument is without merit.

2. Objections Based on Undue Burden, Oppression, and Harassment

Plaintiff argues that the subpoena issued to Kaiser San Jose is “burdensome, oppressive and harassing in that the subpoena violate [sic] California law and the Evidence Code in that the subpoenaed documents contained within plaintiff [sic] personnel file could provide information that is privileged under Federal and State law.” (See Mem. Ps & As., p. 8:16-19.) First, the subpoena issued to Kaiser San Jose does not seek employment records, but medical and billing records, and there is no evidence that as a result of the subpoena any personnel file pertaining to Plaintiff would be produced. Second, Plaintiff’s argument is conclusory and Plaintiff fails to make a particularized showing of facts demonstrating how he would suffer hardship, undue burden, or oppression as a result of the production of the medical and billing records by Kaiser San Jose in response to the subpoena. (See West Pico Furniture Co. v. Super. Ct. (1961) 56 Cal.2d 407, 417-418.) Thus, the objections to the subpoena as burdensome, oppressive, and harassing are overruled.

3. Objections Based on Over Breadth and Relevance

Plaintiff argues that the subpoena should be quashed because it is overbroad such that it seeks irrelevant information.

Discovery is allowed for any matters that are relevant to the subject matter involved in the action, reasonably calculated to lead to the discovery of admissible evidence, and not privileged. (Code Civ. Proc., § 2017.010.) The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.) Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

In the instant case, the subpoena issued to Kaiser San Jose seeks all documents and records from 18 June 2001 to the present pertaining to the care, treatment, and examination of Plaintiff.

Plaintiff asserts that the subpoena, as drafted, will elicit medical records that are unrelated to treatment received as a result of the 18 June 2011 accident because the subpoena is not limited in scope to documents relating to the accident or his back and legs. Plaintiff agrees that Defendant is entitled to prior and current medical and billing records relating to the injuries sustained in the accident, but asserts that this does not permit disclosure of his entire medical file from Kaiser San Jose without limitations.

Defendant argues that Plaintiff’s medical and billing records from Kaiser San Jose are relevant because he has put his medical condition at issue by alleging injury to his back and legs as well as wage loss. Defendant asserts that evidence of prior injuries to the same body parts is relevant and he has reason to be that there may be evidence of the same in the records from Kaiser San Jose because Plaintiff has admitted that he sustained a prior workers’ compensation injury to his back and right calf in 2004. (See Johnson Dec., Ex. B, p. 7:9-18.) Defendant asserts that in addition to medical and billing records pertaining solely to Plaintiff’s back and legs, information regarding “any type of medical condition or complaint may be” relevant to Plaintiff’s wage loss claim and the reasons why he was on leave from work for one year. Defendant further argues that the medical records which do not address the back and legs could demonstrate a lack of treatment for those body parts which would also be relevant to the instant case.

Defendant’s argument that they are entitled to information regarding any type of medical condition because it is relevant to Plaintiff’s wage loss claim has some merit. While it may be wholly speculative to conclude that some unknown medical condition contributed to Plaintiff’s time off work, courts have held that under the Discovery Act, fishing expeditions (within reason) are permissible. (See Irvington-Moore, Inc. v. Super. Ct. (1993) 14 Cal.App.4th 733, 739, fn. 4.)

In light of the foregoing, Mr. Rodriguez’s medical and billing records which pertain to his general medical condition are relevant to his wage loss claim because they may contain evidence of other medical conditions, such as arthritis or high blood pressure, which may impact his ability to help with responsibilities.

Thus, the Court agrees that the subpoena as currently drafted is not narrowly tailored and would likely elicit irrelevant information regarding Plaintiff’s medical conditions that are unrelated to the instant case.

The record here shows that defense counsel proposed (1) that the records be delivered to Plaintiff’s counsel for a “first look” and any record that was removed or redacted could be provided in a privilege log or reviewed by a discovery referee; (2) that the records could be produced with an agreed protective order; or (3) that all of the records could be sent to a neutral discovery referee who would review the records and redact information or withhold documents as appropriate. (See Johnson Dec., p. 3:3-23; Dumitrescu Dec., p. 17:25-28, 18:1-4.) This was an entirely reasonable suggestion. Ms. Dumitrescu responded that the “first look” agreement was not feasible because it would be overly burdensome on Plaintiff’s counsel to look through all of the medical records and they did not have the requisite training to perform such a review. Again, this was an entirely reasonable response.

However, defense counsel is arranging a medical examination of Plaintiff and the examining doctor, as well as any physician retained by counsel for Plaintiff, would be in a position to determine what records are germane.

Therefore, Plaintiff’s objections as to over breadth and irrelevancy are overruled insofar as the subpoena seeks medical and billing records that pertain to Plaintiff’s treatment, care, and examination for medical conditions other than his back and legs from 18 June 2001 through the present.

3. Objection Based on Right to Privacy

Plaintiff also objects to the subpoena issued to Kaiser San Jose on the ground that it violates his right to privacy.

The burden is on Plaintiff to justify his objection based on his right to privacy. (See San Diego Professional Ass’n v. Super. Ct. (1962) 58 Cal.2d 194, 199; Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221; Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:814.) The right to privacy established by the California Constitution protects an individual’s “reasonable expectation of privacy against a serious invasion.” (See Pioneer Electronics, Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 370, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40.)

In evaluating Plaintiff’s privacy claim, the court applies the framework set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40. Plaintiff must first demonstrate that he possesses a “legally protected privacy interest” in the information sought. (See id. at p. 35.) Second, he must have a reasonable expectation of privacy under the particular circumstances. (See id. at p. 36–37.) Third, the invasion of privacy must be serious. (See id. at p. 37.) If the invasion of privacy is serious and there is a reasonable expectation of privacy, then the court must find that the information sought is directly relevant to a claim or defense and, thereafter, balance the privacy interest at stake against other competing or countervailing interests. (See Pioneer Electronics (USA), Inc. v. Super. Ct., supra, 40 Cal.4th at p. 370–371; Allen v. Super. Ct. (1984) 151 Cal.App.3d 447, 449; Britt v. Super. Ct. (1978) 20 Cal.3d 844, 859.; Johnson v. Super. Ct. (2000) 80 Cal. App. 4th 1050, 1070; Vinson v. Super. Ct. (1987) 43 Cal. 3d 833, 842.)

Plaintiff has a privacy interest in his medical records encompassed by the subpoena at issue. (See Board of Med. Quality Assurance v. Gherardini (1979) 93 C.A.3d 669, 679.) While Plaintiff “may not withhold information which relates to any physical or mental condition which [he has] put in issue by bringing [a] lawsuit, [he is] entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment [he] may have undergone in the past.” (Britt v. Super. Ct., supra, 20 Cal.3d at p. 864.) Consequently, only those records containing information “directly relevant” to a claim or defense and “essential to the fair resolution of the lawsuit” are discoverable. (See Britt v. Super. Ct., supra, 20 Cal.3d at p. 859; Harris v. Super. Ct. (1992) 3 Cal.App.4th 661, 665.)

The medical and billing records from Kaiser San Jose from 18 June 2001 pertaining to the Plaintiff’s back and legs are directly relevant because Plaintiff has alleged injury to those body parts in the instant case. Plaintiff has testified that Kaiser was his family medical provider and he was treated there for injuries sustained as a result of the accident. (See Johnson Dec., Ex. C., p. 26:2-25.) Records pertaining to the back and legs going back to 18 June 2001 are necessary to establish whether Plaintiff has any pre-existing conditions relative to those body parts. Thus, Plaintiff’s medical and billing records from Kaiser San Jose are essential to the fair resolution of the lawsuit. Plaintiff’s privacy concerns are adequately addressed by limiting the subpoena to medical and billing records pertaining to his back and legs from Kaiser San Jose from 18 June 2001 to the present.

Plaintiff’s argument concerning his right to privacy also contains a single sentence stating that his medical records “are also protected by the physician/patient privilege.” (See Mem. Ps & As., p. 10:11.) To the extent that Plaintiff meant to include an argument based upon the physician-patient privilege as a separate basis for the Court to quash the subpoena, this single conclusory sentence is insufficient to meet his burden of establishing that the privilege applies. (See Bridgestone/Firestone, Inc. v. Super. Ct. (1992) 7 Cal.App.4th 1384, 1393 [party claiming the privilege has the burden of establishing its existence].)

The Court notes Defendant’s concerns that if it finds in favor of Plaintiff and quashes or limits the subpoena, it will be necessary to reissue the subpoena to Kaiser San Jose and then move to compel it to take on the burden of redacting the records to address the back and legs since it refuses to comply with a subpoena containing limits on body parts. Defendant asserts that this avenue of recourse is unacceptable because Defendant urgently requires the medical and billing records from Kaiser San Jose. Defendant states that the parties have been ordered to mediation and yet he is unable to access Plaintiff’s prior relevant health history. Further, an independent medical exam is scheduled to take place on 2 April 2014, and the examining doctor will not have the benefit of the records from Kaiser San Jose.

Moreover, Defendant’s counsel argues that Kaiser is justified in is noncompliance with the subpoena as it would be extremely difficult for a hospital clerk to go through the records “crossing out reference to irrelevant body parts, reading almost illegible doctor writing and determining which parts of the records would relate to the spine or legs.” (See Opp’n., p. 4:19-22.) Thus, Defendant asks the Court to instead allow the subpoena to proceed as is with the use of a discovery referee and/or a protective order stating that the records will only be used in connection with this litigation and then destroyed.

Defendant’s concerns are unfounded as it will not need to reissue the subpoena to Kaiser San Jose and then move to compel compliance with the same. Defendant only needs to serve this Order on Kaiser San Jose which directs Kaiser San Jose’s compliance with the subpoena as modified. Accordingly, the Court finds that the most reasonable solution to the discovery dispute at issue is to limit the subpoena issued to Kaiser San Jose to medical and billing records pertaining to Plaintiff’s back and legs from 18 June 2001 to the present.

C. Conclusion

Accordingly, the motion to quash the subpoena issued to Kaiser San Jose is DENIED subject to the following:

The records could be produced with an agreed protective order limiting disclosure to Plaintiff, Attorneys and Retained Experts Eyes Only and for the purpose of this litigation only.

III. Requests for Monetary Sanctions

Both Plaintiff and Defendant request monetary sanctions under Code of Civil Procedure section 1987.2.

Code of Civil Procedure section 1987.2, subdivision (b) states that “in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, 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.”

A. Plaintiff’s Request

Plaintiff requests monetary sanctions against Defendant and/or Defendant’s counsel in the amount of $1,315.00. However, Plaintiff’s motion to quash was unsuccessful and, therefore, his request for sanctions is DENIED.

B. Defendant’s Request

Defendant requests monetary sanctions against Plaintiff and/or Plaintiff’s counsel in the amount of $1,000.00. Defendant argues that Plaintiff brought the instant motion in bad faith because Plaintiff’s counsel made no reasonable effort to meet and confer and was unwilling to compromise to resolve the discovery dispute. However, as previously indicated Code of Civil Procedure section 1987.1 does not require a party to engage in meet and confer efforts before filing a motion to quash a subpoena. Moreover, Plaintiff acted with substantial justification in making the motion because the subpoena as drafted is overbroad and seeks irrelevant information that is protected by his right to privacy. Thus, Defendant’s request for sanctions is DENIED.

Conclusion and Order

The motion to quash the subpoena issued to Kaiser San Jose is DENIED subject to the following: The records could be produced with an agreed protective order limiting disclosure to Plaintiff, Attorneys and Retained Experts Eyes Only and for the purpose of this litigation only.

Accordingly, within 30 days of the date of the filing of this Order Kaiser San Jose shall produce documents responsive to the subpoena as modified herein.

Plaintiff’s request for sanctions is DENIED.

Defendant’s request for sanctions is DENIED.