Jane Doe vs. EF Educational Homestay Program
Nature of Proceeding:
Filed By:
Motion to Quash Deposition Subpoena
York, Wendy C.

Plaintiff’s Motion to Quash Deposition Subpoenas for Production of Business Records by Plaintiff’s Medical and Psychiatric Providers is GRANTED in part and DENIED in part. C.C.P., sec. 1987.1. The request for imposition of monetary sanctions on defendants is DENIED.

On Nov. 15, 2013, defendants served eight deposition subpoenas seeking all of the minor plaintiff’s medical and psychiatric records for the period of Jan. 1, 2003 to the present, including the following: All medical records, charts, notes, nurses notes, doctor’s notes, tests requested, test results, xrays, emails, communication records, correspondence, notes made by person(s) involved in tests, including but not limited to lab notes, billing records, payment records, insurance or medicaid records.

Meet and Confer

Plaintiff and defense counsel met and conferred extensively prior to the filing of this motion. Plaintiff asserted that the requests were overbroad. Plaintiff asserted her right to privacy as a rape victim under Evid. Code, sec. 1035.8 and 1035.2, and to her medical and mental health records under her Constitutional right of privacy.

In response, defendant offered to limit the production of medical records for the two year period from July 1, 2010 (the date of the alleged rape) to June 30, 2012, and her mental health records to the four year period from July 1, 2008 to June 30, 2012.

Plaintiff’s counsel requested a stipulation that she be allowed to have a “first look” at the medical records, after a copy service had BATES stamped them, and plaintiff’s counsel could redact sensitive or irrelevant information, send the redacted records to defense counsel and if defendant objected, the documents at issue would be subject to an in-camera review by the Court to resolve any remaining disputes.

Defendant initially rejected plaintiff’s “first look” proposal as to all the records. However, concurrently with the filing of this motion, counsel for the defense proposed, by letter of Dec. 2, 2013, that for all her medical records, all records be produced unredacted for the one year post-incident (July 1, 2010 to June 30, 2011), as her claimed physical and mental disability makes those records directly relevant to the issues in this action, and for the second year post-incident (July 1, 2011 to June 30, 2012) plaintiff’s counsel could have a “first look” and review and redact, explaining the reason for each redaction in detail, and the defense counsel would have the right to challenge any redaction in court.

Role of the Court

Our Supreme Court has held that while the filing of a lawsuit may implicitly bring about a partial waiver of one’s constitutional right of associational privacy, the scope of such “waiver” must be narrowly rather than expansively construed, so that plaintiffs will not be unduly deterred from instituting lawsuits by the fear of exposure of their private activities. The filing of a suit involving sexual privacy, whether stemming from abuse or harassment, constitutes an implicit waiver of a party’s constitutional rights encompassing only discovery directly relevant to the plaintiff’s claim and essential to the fair resolution of the lawsuit. See Vinson v. Superior Court (1987) 43 Cal. 3d 833, 842, and cases cited therein. Relevancy, in the context of privacy rights, appears to be governed by a more stringent standard of “direct relevance,” apparently to prevent a searching for only tangentially pertinent sensitive information. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 860-861 & fn. 4; Weil & Brown, Cal. Practice Guide, Civil Procedure Before Trial (1987) § 8:320, p. 8C-50.) In determining what discovery is relevant, courts look to the allegations of the complaint.

Further, the Court must conduct a careful balancing test relating to the parties interests in favor of and opposition to disclosure. Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 391-392. The balancing involves a determination that there is a compelling need for the information sought that outweighs the right to privacy. And, of course, the sexual privacy rights of plaintiffs who bring civil actions for sexual harassment, sexual assault, or sexual battery are protected by a statutory requirement that discovery of their sexual history may be had only on a showing of good cause. (Code Civ. Proc., § 2017.220; Vinson, supra, at pp. 843-844).

The allegations of the FAC include claims of “harmful and offensive contact” (para. 29), sexual assault and bodily injury (paras. 29, 43, 45). Physical and emotional injuries are clearly alleged (paras. 48, 49, 65, 77, 87, 100 ). The prayer of the FAC requests, inter alia, general and special damages, compensation for psychological trauma and emotional distress suffered by Plaintiff, payment of medical and as counseling expenses for Plaintiff, including future medical and counseling expenses as necessary.

The Separate Statements address all providers collectively. Plaintiff has failed to identify any individual medical provider who is a sexual assault counselor or any body parts or conditions that should be excluded from production as not directly relevant to the alleged assault.

In marked contrast, Defendants have significantly reduced the period for which the records are sought, from over 10 years to only two years from medical records and four years for mental health records.

To the extent of her allegations, and the facts presented, the Court finds that the plaintiff has waived her physician- patient and her psychotherapist-patient privileges by tendering her physical and mental condition as the measure of damages in this litigation. Evid. Code, sec. 996, 1016. Plaintiff cannot be allowed to make her very serious allegations without affording defendants an opportunity to put their truth to the test. See, e.g. Vinson, supra, at p. 842.

“If an alternative means of securing the compelling interest can be devised by which to avoid or minimize the conflict between the values protected by the constitution and the values found to be of compelling interest that must be done. This results in a prohibition, among other things, of overbroad means of enforcement. It requires that the state utilize the ‘least intrusive’ means to satisfy its interest.” Palay v. Superior Court (1993)18 Cal. App. 4th 919, 934.

Here, the Court finds that the plaintiff having alleged mental, physical and emotional injuries as the result of the alleged sexual battery has tendered her condition in this action.

Medical Records

The Court finds that the time period for the production of the plaintiff’s medical records shall be July 1, 2010 through June 30, 2012.

As an alternative means of securing the compelling interest in obtaining otherwise privileged information, while protecting defendant’s need to determine damages, the Court orders that for plaintiff’s medical records, all medical records be produced unredacted for the one year post-incident (July 1, 2010 to June 30, 2011), as her claimed physical disability makes those records directly relevant to the issues in this action, but for the second year post-incident (July 1, 2011 to June 30, 2012) plaintiff’s counsel shall have a “first look”.

Plaintiff’s “first look” for the medical records from July 1, 2011 to June 30, 2012) shall consist of production of the medical records to a copy service for BATES stamping, with only two copies being made. One copy shall be sealed by the copy service, and remain sealed for potential in camera review. Plaintiff’s counsel shall obtain the second copy, and may redact sensitive or irrelevant information, then serve copies of the redacted BATES stamped records to defense counsel, together with a redaction/privilege log, identifying the documents by BATES number, producing party, general description, and the privilege/basis for redaction of each document. If defendant objects to any of the redactions, a further motion may be filed with copies of both the redacted and unredacted the documents, for an in-camera review by the Court to resolve any remaining disputes.

Mental Health Records

As none of the physicians was designated as a sexual abuse counselor, whose primary purpose was advising victims of sexual assault, that privilege is inapplicable. Evid. Code sec. 1035.2, 1035.8. The records are privileged; however plaintiff has waived her psychotherapist-patient privileges by tendering her mental condition as the measure of damages in this litigation. Evid. Code, sec. 1016. Her Constitutional right to privacy requires the Court to weigh the plaintiff’s interest in her privacy against the need for discovery of an essential element of this litigation, tendered by plaintiff.

Plaintiff’s mental health is an essential element of this action, therefore the proposed four year period (two years before and two years after the July 1, 2010 incident) is a reasonable compromise for the production of unredacted mental health records. If plaintiff had no mental health issues prior to the incident, the “real world” result will be the production of only two years of mental health records post-incident. However, if prior records exist, they may be relevant to both causation and damages.

All records produced must be treated as confidential, and their use limited to this litigation. The Court further orders they may not be shared with any person not directly involved in the prosecution or defense of this action, and all copies and abstracts of the medical records must be returned to plaintiff at the conclusion of this litigation.The subpoenas may be reissued in compliance with this order, and the producing entities informed of the relevant dates and manner of production to the copy service not later than Friday, Feb. 28, 2014. Plaintiff’s redacted copies and redaction log shall be served on counsel for the defense not later than 30 days after the copy service provides plaintiff with her BATES stamped copy.

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