Case Name: Nazish Bukhari v. Michelle Evans, et al.

Case No.: 18CV325643

Defendant Michelle Evans’s Motion for Protective Order

Factual and Procedural Background

Defendant Michelle Evans (“Evans”) is and was a massage therapist practicing massage therapy as an agent, employee, and/or independent contractor retained by defendant Day Dream Therapy (“Day Dream”). (Complaint, ¶1.)

On or about April 6, 2017, plaintiff Nazish Bukhari (“Bukhari”) went to defendant Day Dream for a massage. (Complaint, ¶8.) In correspondence between plaintiff Bukhari and defendant Day Dream, plaintiff Bukhari expected the following treatment: “A classic full body massage that uses soothing techniques to increase circulation, reduce stress, and improve muscle relaxation. This massage is designed to relieve tension found in the deeper tissue layers through slower strokes and more direct pressure.” (Id.)

Defendant Evans provided massage treatment to plaintiff Bukhari. (Complaint, ¶9.) During the massage, defendant Evans began using aggressive techniques on the shoulders and plaintiff Bukhari politely requested defendant Evans tone down the treatment and apply less force. (Id.) Soon thereafter, defendant Evans twice performed a sudden and violent yanking, pulling, or jerking of plaintiff Bukhari’s right leg in an outward motion with significant physical force. (Complaint, ¶10.) Plaintiff Bukhari felt instant pain and discomfort. (Id.) A subsequent medical examination confirmed plaintiff Bukhari suffered a labral tear to her right hip. (Id.)

Defendant Evans advertises herself as a therapist who has “trained with a chiropractor for massage” despite no formal education or license in that medical field. (Complaint, ¶11.) Prior to 2010, defendant Evans spent fifteen years working in the field of accounting. (Id.)

On March 27, 2018, plaintiff Bukhari filed a complaint against defendants Evans and Day Dream asserting causes of action for:

(1) Professional Negligence – Medical Malpractice
(2) Negligent Hiring/ Retention [versus defendant Day Dream]
(3) Battery [versus defendant Evans]

On July 16, 2018, defendant Evans filed an answer to plaintiff Bukhari’s complaint.

On September 26, 2018, defendant Day Dream filed an answer to plaintiff Bukhari’s complaint.

Discovery Dispute

On or about October 25, 2018, plaintiff Bukhari served defendant Evans’s prior employers (Vitality Health Services, Krauss Family Chiropractic, Primrose Spa, Bamboo Hair and Body, Rosewood Cordevalle, and Watercourse Bathhouse) with Deposition Subpoenas for Production of Business Records. The subpoenas called for these employers to produce all employment records of defendant Evans except for records related to payroll.

On or about November 5, 2018, defendant Evans’s counsel sent a letter to plaintiff Bukhari’s counsel objecting to the subpoenas. Counsel exchanged letters in an effort to meet and confer with plaintiff Bukhari proposing, on November 6, 2018, to narrow the subpoenas to:

Any and all employment records of Michelle Renee Evans (DOB: 5/26/71) relating to employment applications, training, job performance evaluations, date of hire, date and reason for termination, and any writing or communication concerning any complaints alleged against her in regards to furnishing of massage treatment services, from any and all dates. Production shall exclude any salary, payroll, employee benefits, tax related information, or complaints unrelated to massage therapy treatment.

On November 13, 2018, defendant Evans’s counsel countered with a proposal to limit the subpoena to Bamboo Hair and Body and only to documents evidencing or relating to defendant Evans’s actual performance of “quasi-chiropractic or chiropractic massage.” Defendant Evans’s counsel also demanded a right to pre-inspect any documents.

IV. Defendant Evans’s motion for protective order is GRANTED, in part.

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., §2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: (1) That the deposition not be taken at all; … That the deposition be taken only on certain specified terms and conditions; … That the scope of the examination be limited to certain matters; That all or certain of the writings or tangible things designated in the deposition notice not be produced, inspected, copied, tested, or sampled.” (Code Civ. Proc., § 2025.420, subd. (b).)

Defendant Evans seeks a protective order to limit the subpoenas as specified above in his November 13, 2018 letter. Essentially, defendants assert the employment records sought by the deposition subpoenas, as presently phrased or even as limited by plaintiff Bukhari’s counsel’s letter dated November 6, 2018, violate defendant Evans’s right to privacy as well as third party patients’ right to privacy and are overbroad.

“A person’s work history (e.g., names of employers, dates of employment, job titles, full or part-time) is protected by a right of privacy.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶8:307.10, p. 8C-105 citing Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1426 – 1427 (Alch), et al.) “Confidential personnel files at a person’s place of employment are within a zone of privacy.” (Id. at ¶8:308, p. 8C-94 citing Board of Trustees of Leland Stanford Jr. University v. Superior Court (1981) 119 Cal.App.3d 516, 528 – 530 (Board of Trustees), et al.)

However, the right to privacy is not absolute. “[E]ven very personal and confidential matters may have to be disclosed if essential to a fair determination of the lawsuit.” (Id. at ¶8:326, p. 8C-116 citing Alch, supra, 165 Cal.App.4th at pp. 1431 – 1432.) Where a right to privacy exists, “The party seeking discovery must show a particularized need for the confidential information sought. The broad ‘relevancy to the subject matter’ standard is not enough here. The court must be convinced that the information is directly relevant to a cause of action or defense, i.e., that it is essential to determining the truth of the matters in dispute.” (Id. at ¶8:320, p. 8C-114 citing Britt v. Superior Court (1978) 20 Cal.3d 844, 859 – 862.) “Discovery will not be ordered if the information sought is available from other sources or through less intrusive means.” (Id. at ¶8:321, p. 8C-103 citing Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.)

If the information sought passes those two levels of scrutiny, “[t]he court must then ‘carefully balance’ the interests involved: i.e., the claimed right of privacy versus the public interest in obtaining just results in litigation.” (Id. at ¶8:323, p. 8C-115 citing Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657.) “[E]ven when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must be a ‘careful balancing’ of the ‘compelling public need’ for discovery against the ‘fundamental rights of privacy.’” (Board of Trustees, supra, 119 Cal.App.3d at p. 525.)

It is plaintiff Bukhari’s contention that defendant Evans’s past employment records are directly relevant to the issue of whether defendant Evans, as a massage therapist, had a habit or custom of pulling on her patients’ arms or legs during treatment in view of defendant Evans’s admission that she has no chiropractic training and a past profile of defendant Evans on an employer’s website which states defendant Evans “trained with a chiropractor for massage.”

Even so, plaintiff Bukhari apparently concedes the deposition subpoenas, as presently phrased, are overbroad and proposes to limit the subpoenas as identified above in the letter dated November 6, 2018.

In this court’s opinion, the proposed limitation is still overbroad. Plaintiff Bukhari has not sufficiently demonstrated or adequately explained how records relating to employment applications, job performance evaluations, date of hire, and date and reason for termination are relevant to the issue of whether defendant Evans had a habit or custom of pulling on her patients’ arms and legs during treatment. However, the court is persuaded that records relating to defendant Evans’s training and any writing or communication concerning any complaints alleged against her in regards to furnishing of massage treatment services, from any and all dates, is directly relevant to the issue(s) in this case. On balance, such limited information being sought outweighs defendant Evans’s right to privacy.

Defendant Evans’s request that the subpoena be further restricted to documents evidencing or relating to defendant Evans’s actual performance of “quasi-chiropractic or chiropractic massage” is too restrictive and may lead to confusion by the subpoenaed parties. Any irrelevant material can be addressed by objection, motions in limine, etc. Moreover, the limitation proposed by plaintiff Bukhari already excludes, “complaints unrelated to massage therapy treatment.” Additionally, defendant Evans does not make a compelling argument for limiting such information to the one employer, Bamboo Hair and Body. The fact that defendant Evans’s profile at Bamboo Hair and Body stated she had “trained with a chiropractor for massage” does not somehow restrict the relevancy of any responsive evidence to this one employer. Defendant Evans also asks the court to require any responsive documents be redacted for patient information in accordance with HIPAA regulations and asks this court to allow defense counsel to pre-inspect to ensure proper redaction. Redaction is appropriate in the first instance, but to the extent the responsive documents reveal evidence to support plaintiff Bukhari’s theory that defendant Evans had a habit or custom of pulling on patients’ arms or legs during treatment, plaintiff Bukhari may challenge the redaction to obtain the identity of those other patients. Pre-inspection by defense counsel is not warranted.

Accordingly, defendant Evans’s motion for protective order is GRANTED, in part. Plaintiff Bukhari may issue deposition subpoenas to defendant Evans’s former employers requesting:

Any and all employment records of Michelle Renee Evans (DOB: 5/26/71) relating to training and any writing or communication concerning any complaints alleged against her in regards to furnishing of massage treatment services, from any and all dates. Production shall exclude any salary, payroll, employee benefits, tax related information, or complaints unrelated to massage therapy treatment.

Any responsive documents shall redact the identifying information of any patient in accordance with HIPAA regulations. To the extent the responsive documents reveal evidence to support plaintiff Bukhari’s theory that defendant Evans had a habit or custom of pulling on patients’ arms or legs during treatment, plaintiff Bukhari may challenge the redaction to obtain the identity of those other patients by separately noticed motion. Any documents produced in response to the deposition subpoenas shall be restricted to use in this litigation only and shall not be used, disseminated, or distributed for any other purpose.