2016-00201431-CU-BC

Robert Hendricks vs. California State Employees’ Association

Nature of Proceeding: Motion to Quash Discovery Subpoena

Filed By: Whelan, Brian D.

Plaintiff Robert Hendricks’ motion to quash “discovery of subpoenas issued after close of discovery (subpoenas to Kaiser, Sierra College, Los Rios Community College, and the City of Fresno)” is granted.

Plaintiff’s request for judicial notice is granted.

The Court initially denied Plaintiff’s ex parte application for an OST regarding this motion on March 13, 2018, and indicated that the denial was without prejudice to its submission to the trial judge. The March 26, 2018 trial was ultimately continued to July 23, 2018 after the assigned trial judge was unavailable to accommodate a three week trial.

The subject subpoenas seeking Plaintiff’s medical and employment records were served on January 30, 2018. However, as seen from the Court’s December 15, 2017, order continuing trial, discovery was only permitted with respect to Defendants’ cross-complaint and discovery was closed with respect to the issue in Plaintiff’s complaint. According to Plaintiff, the subject subpoenas have nothing to do with Defendants’ cross-complaint which is premised on allegations that Plaintiff eavesdropped on a conversation.

In opposition (which appears to have been filed in connection with the March 26, 2018 trial), Defendants argue that Plaintiff has placed his medical condition and employment history at issue and that these matters came to light during his January 4, 2018, deposition. With no supporting declaration, Defendants argue that Plaintiff testified at the deposition that he sought medical assistance as a result of his termination and expanded his employment beyond what he previously revealed in discovery.

Defendants’ arguments indicate that the subject subpoenas relate to his medical and employment histories which he put at issue and thus make clear that the discovery relates to Plaintiff’s complaint, not their cross-complaint and they make no argument to the contrary. However, as seen from the Presiding Judge’s December 15, 2017, order, continuing trial to March 26, 2018, discovery on the complaint was closed and the discovery only remained open on the cross-complaint. (RJN Exh. A.) While Plaintiff’s further deposition was permitted by this Court on December 18, 2017, this Court did not grant any order allowing any additional discovery such as the instant subpoenas. Defendants argue that the deposition revealed the additional issues related to Plaintiff’s medical and employment histories. That being the case, they were required to seek an order allowing the additional discovery given that discovery on the complaint is closed. They were not permitted to simply issue additional discovery without an order. Pursuant to CCP § 2024.020, subdivision (a), a party has the “right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” Only on the motion of any party, may a trial court “reopen discovery after a new trial date has been set.” (CCP § 2024.050, subd. (a).) On this basis alone the motion is granted.

The Court must also note that the subpoenas as phrased violate Plaintiff’s right to privacy. There is no dispute that Plaintiff’s medical records are protected by the right to privacy. However, such right is not absolute and private information may be subject to discovery where the party seeking such discovery demonstrates a compelling need for the information and that the information cannot reasonably be obtained through less intrusive means of discovery such as depositions. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525-526.) It is of course also true that the physician -patient privilege is waived as to physical or mental conditions placed at issue in a personal injury action such as the instant case. (Evid. Code §§ 996, 1016.) But even in such cases a party “is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864 [citations omitted].) In addition, Plaintiff’s employment information is protected by the right to privacy. “It is clear…personnel records and employment history are within the [privacy] protection provided by the state and federal Constitutions.” (San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097.)

Defendants’ opposition argues in a conclusory manner that Plaintiff placed his medical condition at issue because he alleged he suffered injuries as a result of the termination and because he testified at his deposition that he obtained treatment as a result.

However, the subject subpoenas for medical records essentially seek all of Plaintiff’s medical history with no subject matter limitation. Plaintiff has certainly not tendered his entire medical history by filing this lawsuit. Plaintiff is “entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment [she] may have undergone in the past.” (Britt, supra, 20 Cal.3d at 864.) Moreover, the employment records subpoenas appear to seek Plaintiff’s entire personnel file and Defendants’ offer no argument at all with respect to these employment subpoenas. The subpoenas are overly broad and are quashed on this additional basis.

As a result, the motion is granted and the subpoenas issued on January 30, 2018 are quashed. Nothing in this ruling precludes Defendants from attempting to obtain an order allowing discovery to be reopened to pursue issues related to Plaintiff’s medical and employment history. Nor does this ruling preclude Defendants from issuing subpoenas for production of documents at trial.