Case Number: 18STCV02911 Hearing Date: June 24, 2019 Dept: 4A

Motion to Quash Defendant’s Subpoena for Medical Records, Etc.

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

The instant case arises from an automobile accident that occurred on or around November 18, 2017, when Plaintiff Lavell Jones (“Plaintiff”) was allegedly struck by a commercial vehicle negligently operated by Defendant Christopher Fitzge Thompson (“Thompson”) in the course and scope of his employment with Defendants Target Corporation, Target, and Target Brands, Inc. (collectively “Target”), and Defendant Penske Corporation, sustaining injuries.

Plaintiff filed his Complaint against all defendants on October 23, 2018 alleging two causes of action sounding in (1) Motor Vehicle Negligence, Negligent Entrustment, Negligent Hiring, Negligent Undertaking, Negligent Retention, Negligent Supervision and Negligent Training; and (2) Negligence Per Se. Plaintiff served Thompson and Target defendants but has not served Penske. On December 26, 2018, Thompson and Target served their Answer on Plaintiff. Discovery ensued.

On March 8, 2019 Plaintiff filed the instant Motion to Quash Thompson and Target’s Subpoenas for Records and requested sanctions in the amount of $5,221.65. On April 4, 2019, this Court continued the hearing on Plaintiff’s motion. On May 9, 2019 Plaintiff filed a Stipulation and Order for a Stipulated Protected Order, which was rejected by the Court on May 21, 2019.

Thompson and Target filed Opposition on June 11, 2019. Plaintiff replied on June 18, 2019.

PARTY’S REQUEST

Plaintiff asks that the Court quash Thompson and Target’s Subpoenas Categories 1–4, regarding Plaintiff’s (1) employment records; (2) medical records; (3) medical billing records; and (4) medical films.

LEGAL STANDARD

Code Civ. Proc. § 1987.1 grants the trial court authority to quash a subpoena when necessary. Code Civ. Proc. § 1987.1 provides, “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.”

DISCUSSION

Privacy – Under Article I section 1 of the California Constitution, California recognizes a constitutional right to privacy. This right “protects an individual’s reasonable expectation of privacy against a serious invasion.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 171.) Under California law, even highly relevant, nonprivileged information may be shielded from discovery if its disclosure would impair a person’s inalienable right to privacy. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 855–56.) The right to privacy protects the individual’s reasonable expectation of privacy against a serious invasion. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) Where privacy interests are concerned, the Court is required to engage in a careful balancing of the right to privacy against the need for discovery. Disclosure may be ordered if a compelling public interest would be served. (Britt, supra, 20 Cal.3d at pp. 855–856.) Further, even where a litigant “can establish a compelling state interest in discovery, precision of compelled disclosure is required so that the right of privacy is not curtailed except to the extent necessitated by the legitimate governmental objective.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199–1200 (internal quotations omitted)).

“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. Superior Court (1992) 3 Cal.App.4th 661, 665.) This requires that the matter sought be shown to be “essential to determining the truth of the matters in dispute.” (Cal. Prac. Guide Civ. Proc. Before Trial Ch. 8C-5 (Rutter Group 2014) §8:320.) Discovery may be denied if there are less intrusive methods available. (See Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.)

The Supreme Court has observed that the right to privacy extends to medical records. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 41.) The constitutional right to privacy, however, is not absolute. In appropriate circumstances, the right must be balanced against important interests. (Hill, supra, 7 Cal.4th at 37.) On occasion, a party’s privacy interests may have to give way to the opponent’s right to a fair trial. (Vinson v. Superior Court (1987) 43 Cal.3d 842.) As a result, courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery. (Id.)

Defendants contend that because he is seeking damages for physical and mental injuries, Plaintiff’s right to privacy is outweighed by the need for information, rendering Plaintiff’s records discoverable. Defendants further contend that Plaintiff’s right to privacy regarding his records is outweighed by the need for discovery because Plaintiff has placed his medical condition at issue.

When a party to litigation affirmatively places his or her medical condition in controversy, that party has a “substantially lowered” expectation of privacy in medical records relating to that condition. (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43–44.) In fact, the Supreme Court has held that when a party to litigation affirmatively places his or her medical condition in controversy, that party waives the right to prevent disclosure of what would otherwise be constitutionally protected medical information. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839-44.)

In balancing the competing concerns, the Court notes that this is not a case in which a defendant seeks discovery of information from a plaintiff whose medical records bear no relationship to the incident in question. Rather, the complaint expressly requests damages for personal injury relating to the alleged negligence, which resulted in an automobile accident. Plaintiff therefore has a diminished privacy interest in any records that reflect his medical history. Therefore, after balancing the competing interests in this case, Defendants are entitled to discovery concerning Plaintiff’s medical records.

Showing of overbroadness – As noted above, the Supreme Court has observed that the filing of a lawsuit may be deemed a waiver of privacy as to matters embraced in the action. (Britt, supra, 20 Cal.3d at 849.) Nevertheless, when a plaintiff files an action that places at issue his or her medical history – as Plaintiff has done in this case – waivers of constitutional rights are narrowly construed and not lightly found. (Id. at p. 842.)

Even when discovery of private information is directly relevant to issues in the litigation, it will not be automatically allowed. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1854–1855.) If an intrusion on the right of privacy is deemed necessary under the circumstances of a particular case, any such intrusion should be the minimum intrusion necessary to achieve its objective (i.e., the least intrusive means to satisfy the interest). (Id.) In other words, the compelled disclosure must be narrowly drawn to assure maximum protection of the constitutional interests at stake. (Britt, supra, 20 Cal.3d at p. 859.)

It is therefore essential to measure the closeness of the fit between the requested discovery (i.e., the wording of the subpoenas) and the allegations of the complaint. As the Court of Appeals has observed, the mere fact that a plaintiff seeks, for example, emotional distress damages in a lawsuit does not entitle defendants to inquire into all aspects of a plaintiff’s life to determine if other factors may have contributed to any emotional distress suffered by the plaintiff. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008.)

In Davis, the petitioner and her husband filed a complaint for general damages for pain and suffering arising out of personal injuries she had incurred in an automobile accident. (Davis, supra, at pp. 1011, 1015.) The defendant, who was the driver of the vehicle, subpoenaed all of plaintiff’s treatment records from the Cedar Women’s Center. (Id. at p. 1011.) In response, plaintiff filed a motion to quash the subpoena and requested a protective order to limit discovery to directly relevant medical history of a 10-year period prior to the accident. (Id.) The trial court denied the motion to quash, limited discovery to the last 10 years and directed the records be kept confidential and used only for that case. (Id.) Plaintiff filed a petition for writ of mandate contending, among other things, the trial court’s order invaded her constitutional right of privacy. ( Id. at pp. 1011–1013.)

The Court of Appeals held that the “mere act of filing a personal injury action asking for general damages for pain and suffering does not tender the plaintiff’s mental condition so as to make discoverable postinjury psychotherapeutic records.” (Davis, supra, at p. 1011.) In reaching its holding, the Court was mindful of the broad range of material sought by the defendant that encompassed “any and all medical or hospital records relating to the care and treatment of petitioner to date.” (Id. at p. 1017.) The Court noted defendant made no attempt to limit the request to specific matters directly relevant to Davis’s pain and suffering from the physical injuries, and that the request was overbroad because it necessarily encompassed privileged material that was not relevant to the lawsuit. (Id. at pp. 1017–1018.)

Davis relied partly on the Supreme Court’s decision in Britt v. Superior Court, 20 Cal.3d 844. In Britt, the Court examined a discovery order permitting defendants to inquire without limitation into the lifetime medical history of a multitude of plaintiffs. The interrogatories demanded that plaintiffs provide a complete account of their entire medical history, encompassing all illnesses, physical injuries and mental and emotional disturbances for which plaintiffs sought treatment at any time during their lives. (Britt, supra, 20 Cal.3d at p. 850.) Plaintiffs in Britt, as in this case, objected to defendant’s request for information because it related to all past medical conditions without regard for whether such conditions had any bearing on the litigation being conducted. Defendants argued, as here, that the broad discovery order was proper because it would allow them to determine whether the claimed injuries, which plaintiffs alleged were the result of defendants’ conduct, actually arose from other medical conditions. (Id. at p. 849.)

The Court in Britt reaffirmed prior decisions placing a narrow interpretation on the scope of the exception to the physician-patient and psychotherapist-patient privileges contained in sections 996 and 1014 of the Evidence Code. Although the Court agreed that in seeking recovery for physical and mental injuries, plaintiffs had unquestionably waived their physician-patient and psychotherapist-patient privileges as to all information concerning the medical conditions which they had put in issue, the Court concluded that past cases made it clear that “such waiver extends only to information relating to the medical conditions in question, and does not automatically open all of a plaintiff’s past medical history to scrutiny.” (Britt, supra, 20 Cal.3d at p. 849.)

Applying the principles in Davis and Britt to this case, the Court finds that the subpoenas should be narrowed to medical records related to the type of injuries sustained by Plaintiff in this case and to a 10-year time period before the accident. Plaintiff contends that the accident resulted in injuries to his cervical spine, lumbar spine, and right and left shoulders, numbing in his hands, and anxiousness and stress. Matching the injuries claimed to the medical records properly sought, the Court rules that Defendants are entitled to records concerning medical treatment received by Plaintiff for his cervical and lumbar spine, shoulders and hands within ten years of the accident, and for any treatment for anxiety or stress within five years of the accident.

Next, Defendants’ subpoena for Plaintiff’s employment records, as written, requests records from Plaintiff’s employers, beginning January 01, 2014. (Motion at 2:13–3:12.) Plaintiff does not challenge the requested time frame in the instant motion. (Id. at 16:16–17.) Rather, Plaintiff requests that the employment records be limited to only payroll records on the ground that a broader production would violate his right to privacy. Based on the principles of privacy examined above, this Court disagrees. Because Plaintiff claims his earning capacity was reduced by Defendants’ vehicular negligence resulting in injury, Defendants have the right to review Plaintiff’s employment history, including performance reviews, payroll, attendance, and leave records in preparing a defense to Plaintiff’s prayer for loss of future earnings.

Sanctions – Both parties seek sanctions against the other party and their attorneys. Under Cal. Code Civ. Proc. § 1987.2, the court, in its discretion, may award reasonable expenses in making or opposing a motion to quash, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more requirements of the subpoena was oppressive. Here, both parties’ arguments appear to have been made in good faith. Accordingly, the Court will monetary sanctions to both sides.

CONCLUSION

Plaintiffs’ motion to quash is GRANTED IN PART AND DENIED IIN PART. The Court will limit the subpoenas for Categories 2–4 for medical records, bills, and films to ten years before the present incident.