2012-00124775-CU-PO

Zarrinkalam vs. Terra Nova Counseling

Nature of Proceeding:   Motion to Compel Identification and Information of Witnesses

Filed By:  Foos, David P.

Plaintiff Ali Zarrinkalam’s “motion to compel identification and information of witnesses”
is granted, contingent on no appearance being made by, or opposition from, persons
identified as B.L. and T.V.

Plaintiff was enrolled in a Drinking Driver Program run by Defendant Terra Nova
Counseling (“TNC”).  He alleges he was injured by one of TNC’s employees during a
class.  He propounded interrogatories to TNC in which he sought the identity of all
witnesses to the incident.  TNC identified two witnesses by initials (B.L. and T.V.) but
refused to produce contact information for them unless ordered to do so by the court,
asserting that it had a duty to keep the identity of its clients confidential.  By this
motion, Plaintiff seeks to obtain the full names of these two witnesses, along with their
contact information.

This is actually the second time Plaintiff has filed this motion.  The first time the motion
was filed, it was denied without prejudice so that notice and an opportunity to respond
could be provided to B.L. and T.V.

As the court noted in ruling on the first motion, Plaintiff is correct that the “disclosure of
the names and addresses of potential witnesses is a routine and essential part of
pretrial discovery.”  (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250.)
Puerto recognizes, however, that such right to disclosure is not absolute particularly
where privacy rights are involved.  (Id. at 1251.)

TNC concedes that B.L. and T.V. may have relevant information and opposes the
motion only on the basis that under relevant the state and federal regulations, it cannot
disclose the requested information without a court order.  As a DUI program, TNC is
required by regulation to “ensure confidentiality of participant records and information
in accordance with Sections 2.1- 2.67(1), Title 42, Code of Federal Regulations.”  (9
Cal. Code Regs. § 9886, subd. (c).)  The federal regulations, in turn, provide penalties
for improper disclosure of participant records, including any information that would
identify the participant as an alcohol or drug abuser.  (42 CFR §§ 2.4, 2.12.)

Under federal law, however, disclosure of otherwise confidential information is
permitted by “order of a court of competent jurisdiction granted after application
showing good cause thereof.  In assessing good cause the court shall weigh the public
interest and the need for disclosure against injury to the patient, to the physician-
patient relationship, and to treatment services.”  (42 USC § 290ee-3.)  In addition, the
participant whose confidential information is sought must also be given notice of the
motion and an opportunity to respond.  (42 CCR § 2.64(b).)

In its ruling on Plaintiff’s first motion, the Court found that good cause existed for             disclosure of the requested information.  It denied the motion, however, solely because
B.L. and T.V. were not given notice their information was being sought and an
opportunity to respond.  With this second motion, that defect appears to have been
cured.  Plaintiff has submitted a declaration from TNC’s counsel establishing that B.L.
and T.V. were both served with a copy of this motion.  (Reyes Decl., ¶ 3.)  TNC’s
counsel also left telephone messages with both B.L. and T.V., stating they could
contact either the law firm or this court if they wanted to oppose the release of their
contact information.  (Id., ¶¶ 3-5.)

As of the date this tentative ruling is being posted, neither B.L. nor T.V. have filed any
opposition to the motion or otherwise contacted the court.  In order to provide them
with a full opportunity to respond, however, the Court will wait until December 27,
2013, to see if they file an opposition to the motion or contact the court.  If they do not,
the motion will be granted.