Case Number: 19STCV18964 Hearing Date: November 27, 2019 Dept: 4B

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO QUASH SUBPOENAS FOR MEDICAL, BILLING, AND RADIOLOGICAL RECORDS

On May 31, 2019, plaintiff Janelle Miosoty Rodriguez (“Plaintiff”) filed this action against defendants Ki Nam Lee and Kyoung Lee (collectively, “Defendants”) for injuries arising from a car accident. On September 4, 2019, Defendants served ten subpoenas for Plaintiff’s medical, billing, and radiological records from various medical providers and custodians. Plaintiff moves to quash the subpoenas on the grounds that they are overbroad and violate Plaintiff’s constitutional right to privacy. Defendants did not oppose.

When a plaintiff puts her health and physical condition at issue, the privacy and privileges that normally attach to such sensitive information are “substantially lowered by the very nature of the action.” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43.) The Court must “balance the public need against the weight of the privacy right” and only serious invasions of privacy will bar discovery. (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 966.) There is not an egregious invasion of privacy every time there is a request for private information and courts must “place the burden on the party asserting a privacy interest to establish its extent and seriousness of the prospective invasion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) However, “although in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient . . . privileges as to all information concerning the medical conditions which they have put in issue, past cases make clear that such waiver extends only to information relating to the medical conditions in question, and does not automatically open all of a plaintiff’s past medical history to scrutiny.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 849.)

The subpoenas seek Plaintiff’s entire medical, billing, and radiological history from January 1, 2009 to the present, including, but not limited to: charts, records, lien files, soap notes, pathology records and reports, lab reports, pharmacy and prescription records, payment history, all billing records, radiological reports, photographs, insurance documents, physical therapy records. While some of Plaintiff’s medical records and bills are likely relevant and discoverable, ten years of records is probably too broad. Defendant did not file an opposition explaining why such a broad scope from all ten custodians is necessary. Plaintiff’s motion to quash is GRANTED.

The next time the parties dispute the extent of subpoenas for medical records and bills, counsel are to meet and confer in person or on the phone. If they do not resolve the dispute, they are to participate in and Informal Discovery Conference before a hearing on any motion.

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. (Code Civ. Proc., § 1987.2, subd. (a).) Plaintiff requests sanctions of $5,310.00 for seven hours of work at the rate of $750.00 per hour. This is excessive. The motion was unopposed, consisted of largely generic case law, and appears to have been copied from another motion. (See, e.g., Motion at 8:28-9:1.) An attorney billing at the high hourly rate of $750.00 should not have drafted this very basic motion. The work should have been done by a junior associate at a much lower billing rate.

Accordingly, the Court grants sanctions in the amount of $700.00 against Defendants and defense counsel, jointly and severally, to be paid within 20 days of the date of this order.

Moving party to give notice.