2012-00120206-CU-PO

Pierce vs. Carmichael Care, Inc.

Nature of Proceeding: Motion to Clawback Unredacted Versions of Documents

Filed By: Eberwine, Patricia A.

Defendant John Sorensen’s Motion to Clawback Unredacted Versions of Documents is granted. This ruling is conditioned upon defendant providing plaintiffs with a redacted version wherein only the names of the residents are redacted.

Defendant John Sorensen seeks an order that all parties and their counsel immediately destroy or return the unredacted census reports (1700 pages) of the patient population of Defendant Carmichael Care, Inc., dba Rosewood Terrace Care and Rehabilitation (“Rosewood”) which were inadvertently produced by Sorensen on January 15, 2018 without redacting third-party patient names. (Eberwine Decl. ¶ 2) The records were produced pursuant to the Court’s January 5, 2018 order that Sorenson produce the records before his deposition. The underlying document request, No. 29, requested “Any and all writings (including emails and other electronic documents and excluding attorney-client communications) referring to or relating to the census of the Rosewood facility (resident names and identifying information other than Plaintiffs may be redacted) for the time period of 2007 to 2011.” (emphasis added) Thus, the Court order compelling a further response and production did not require that the patients’ names be disclosed.

The unredacted census reports have been lodged conditionally under seal as Exhibit

A. They list the third-party patient name, date of treatment, the patient’s treating physician and payor information for every patient at Rosewood. Sorensen contends he has previously produced redacted versions of the census reports with the names redacted, from which plaintiff can obtain all requested information regarding the number of patients treated at Rosewood on a given day, as well as the payor for the

patient. (Eberwine Decl. ¶ 3) If defendant has already provided copies of all of the census records with only the resident names redacted, they have already met the condition for the granting of this motion.

Defendant relies on CCP 2031.285 and CCP 128 as authority for this motion. CCP 2031.285 applies only to production of electronically stored information that is subject to a claim of privilege or of protection as work product. The patients’ names do not constitute privileged or work product information. However, CCP 128, setting forth the enumerated statutory powers of the incidental powers and duties of the court, provides, among other things, that the Court shall have the power to compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein. CCP 128(a)4).

The production of individually identifiable third-party medical information is severely circumscribed by state and federal law. (Cal. Civ. Code, § 56.10 [prohibiting disclosure of individually-identifiable patient medical information except under limited circumstances including a court order]; 45 C.F.R. § 164.502 [HIPAA prohibitions of the same].) Sorensen seeks immediate relief to ensure compliance with state and federal requirements. In opposition plaintiff argues that the information in the census reports does not include any medical information. Plaintiff contends that the census reports do not include any medical history, resident mental or physical condition, or any treatment that the residents received or will receive. (Declaration of Daniel Jay ¶ 5) However, since plaintiff’s document request contemplated protecting the identities of the residents by stating that the names of the residents could be redacted, and because the court order did not order that their names be released, there will be no violation of 45 CFR 164.502 or Civil Code section 56.10.

Sorenson states that the parties have met and conferred after the January 25, ex parte appointment and discussed a potential compromise in which the patient names are partially redacted so that the first initial and last initial of each patient remain visible, however this compromise would require weeks to complete the partial redaction of 170,000 lines of text. (Eberwine Decl ¶ 5) However, the Court is requiring that only the patient names be redacted, as ordered on January 5, 2018.

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