Case Number: BC665696 Hearing Date: May 02, 2018 Dept: O

BC665696

TOM ET AL. v. INSOMNIAC HOLDINGS

Defendants’ Motion to Compel Production of Cell Phone Records from AT&T is GRANTED in part and DENIED in part. Plaintiffs’ Motion to Quash Deposition Subpoena for Production of Nicholas Tom’s Phone Records is GRANTED in part and DENIED in part. AT&T is ordered to produce cell phone records for decedent’s account for the period of 1/1/15 through 6/21/15.

ANALYSIS: Parties filed cross-motions to compel and quash Defendants’ deposition subpoena on AT&T. Defendants seek decedent’s cell phone records for the five years preceding his death. Defendants argue that these records are relevant to determine whether there were any additional percipient witnesses to decedent’s death or his activities leading up to his death. Defendants also contend the records will lead to evidence of decedent’s activities prior to his death, including the extent of any prior drug use. Decedent’s prior drug use is relevant to Defendants’ assertion of comparative negligence. Defendants argue that Plaintiffs have been unable to provide any relevant information themselves about their son’s lifestyle and habits. Plaintiffs have stated in discovery that they did not know decedent’s most recent addresses.

Plaintiffs argues that the cell phone records implicate the privacy rights of decedent and third parties. Plaintiffs also argue decedent’s prior drug use is irrelevant to the action. Plaintiffs admit that decedent died of a drug overdose, as indicated in the autopsy report. Whether he previously used drugs is irrelevant to whether Defendants negligently responded to decedent’s medical emergency, resulting in decedent’s death.

Plaintiffs have offered to allow for 2-months of unredacted phone records and 4 years of phone records with all numbers but Plaintiffs redacted. Defense counsel demands 1 year of unredacted records.

“If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may 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. 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.” CCP §1987.1.

The scope of discovery is broad and encompasses matters that are “reasonably calculated to lead to discovery of admissible evidence.” See CCP §2017.010 (emphasis added). “One of the principal purposes of the Discovery Act (Code Civ.Proc. §§ 2016–2035) is to enable a party to obtain evidence in the control of his adversary in order to further the efficient, economical disposition of cases according to right and justice on the merits. Its purpose is not ‘to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits.’” Caryl Richards, Inc. v. Superior Court In and For Los Angeles County (1961) 188 Cal.App.2d 300, 303.

“The proponent of discovery of constitutionally protected material has the burden of making a threshold showing that the evidence sought is ‘directly relevant’ to the claim or defense.” Harris v. Supr. Ct. (1992) 3 Cal.App.4th 661, 665. Not “every assertion of a privacy interest under article I, section 1 must be overcome by a compelling interest…In view of the far-reaching and multifaceted character of the right to privacy, such a standard imports an impermissible inflexibility into the process of constitutional adjudication. A ‘compelling interest’ is still required to justify an obvious invasion of an interest fundamental to personal autonomy. But whenever lesser interests are at stake, the more nuanced framework discussed above applies, with the strength of the countervailing interest sufficient to warrant disclosure of private information varying according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” Williams v. Superior Court (2017) 3 Cal.5th 531, 556.

Although disclosure may invade their privacy, there is generally no protection for the identity, addresses and phone numbers of percipient witnesses. Thus, a court may not require the party seeking discovery to obtain the witnesses’ consent to disclosure: “(A) percipient witness’s willingness to participate in civil discovery has never been considered relevant—witnesses may be compelled to appear and testify whether they want to or not.” Puerto v. Sup.Ct. (Wild Oats Markets, Inc.) (2008) 158 Cal.App.4th 1242, 1251-1252.

Decedent’s cell phone records are protected by the right of privacy. Although the content of the calls is clearly not being sought, the identity of those persons Decedent associated with are within the zone of privacy. As pointed out by Plaintiffs, a telephone customer’s privacy rights over information collected by the telephone company are codified under Public Utilities §2891, et seq. Under Public Utilities Code §2891, “No telephone or telegraph corporation shall make available to any other person or corporation, without first obtaining the residential subscriber’s consent, in writing, any of the following information: (1) The subscriber’s personal calling patterns, including any listing of the telephone or other access numbers called by the subscriber, but excluding the identification to the person called of the person calling and the telephone number from which the call was placed, subject to the restrictions in Section 2893, and also excluding billing information concerning the person calling which federal law or regulation requires a telephone corporation to provide to the person called.” Pub. Util. Code, §2891(a)(1).

However, Plaintiffs fail to establish that they personally have any privacy right in the phone records, or that decedent’s right of privacy extends post-mortem. See e.g. Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 819 (“Such a right of value to create a business, product or service of value is embraced in the law of privacy and is protectable during one’s lifetime but it does not survive the death of Lugosi”). Plaintiffs’ reliance on Catsouras v. Dept. of California Highway Patrol (2010) 181 Cal.App.4th 856 is misplaced. In Catsouras, the Court of Appeals found in a case of first impression that surviving family members had personal privacy rights in accident photos of decedent. Id. at 873-874.

Likewise, Rittenhouse v. Supr. Ct. (1991) 235 Cal.App.3d 1584, 1588 in inapposite. Rittenhouse found that the physician-patient and psychotherapist-patient privilege survived decedents’ death. There is no assertion of either privilege here.

Finally, even if there were still some privacy protection over decedent’s call records, the records are directly relevant to the identification of potential percipient witnesses, not just of events leading up to decedent’s death, but decedent’s quality of life, which is material to any claim of damages as a result of his untimely death. The privacy right at issue here is also not fundamental to personal autonomy, and Defendants are not required to establish a compelling interest to justify production. The privacy interest over the phone records of a decedent are very weak, particularly given that the production would not require production of any substantive content, only phone numbers.

However, the request is overbroad in time. Defendants fail to demonstrate that records spanning five years prior to the incident will lead to the discovery of admissible information at trial.

For this reason, the motion to compel AT&T to comply with deposition subpoena is GRANTED as to 6 months of records spanning 1/2015 to 6/2015. The motion to quash the subpoena served on AT&T is GRANTED as to the phone records sought from 6/2010 through 12/2014.

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Defendants’ Motion to Compel Further Responses to Written Discovery and for Monetary Sanction is GRANTED. Defendants request for sanctions in the amount of $3290 is reduced to $2060 based on the difficulty and breadth of the legal issues presented.

ANALYSIS: Defendants move to compel further responses to four RFPs, two served on Plaintiff Gayline and two served on Terry. The set of two RFPs mirror each other and ask for all communications between (1) responding party and any other person who knew decedent one month before the incident through 10/1/17 and (2) responding party and spouse regarding the decedent one month before the incident through 10/1/17. In response to these RFPs, Plaintiffs asserted a/c privilege, marital privilege and objected on grounds of relevance.

The requests are directly relevant to Plaintiffs’ damages claims, as well as the issues of comparative negligence. Defendants are entitled to conduct discovery into decedent’s well-being and lifestyle prior to his death in order to assess Plaintiffs’ damages claims based on his premature demise. The requests will also be probative of Plaintiffs own relationship with decedent and the degree to which they were damaged by his premature death.

Plaintiffs are entitled to assert the a/c privilege and marital privilege to withhold documents from production. However, Plaintiffs must submit a privilege log to Defendants in conformity with CCP 2031.240.