Daniel Laurin O’Keefe, et al. v. State of California, Department of Transportation
Case No: 18CV00937
Hearing Date: Mon Jul 29, 2019 9:30

Nature of Proceedings: Motion Compel Deposition Subpoena

CASE: Daniel O’Keefe, et al. v. State of California, Department of Transportation, et al., Case No. 18CV00937 (Judge Sterne)

HEARING DATE: July 29, 2019

MATTER:

Motion to Compel Third Party Witness Revel Miller, Ph.D.’s Compliance with Deposition Subpoena

ATTORNEYS:

Brock Christensen for Defendant National Railroad Passenger Corporation dba Amtrak

Michelle A. Birtja for Third Party Witness, Revel Miller, Ph.D.

TENTATIVE RULING: The motion of defendant Amtrak to compel third party witness Revel Miller, Ph.D. to comply with its deposition subpoena is granted as set forth herein.

BACKGROUND:

This is an action for dangerous condition of public property, negligence (wrongful death), and public nuisance. On March 11, 2017, the decedent, Connor Edward O’Keefe, was killed when he was struck by a train as he walked northbound on the railroad tracks near Fernald Point in Santa Barbara County. The decedent was 18 years old when he died. Plaintiffs Daniel O’Keefe and Kelly O’Keefe are the decedent’s parents. The defendants are the State of California Department of Transportation (“Caltrans”), the County of Santa Barbara (“County”), and the National Railroad Passenger Corporation dba Amtrak (“Amtrak”). Plaintiffs allege that Caltrans and County negligently and carelessly owned, controlled, operated, and managed the property near the railroad tracks where the decedent was killed by failing to provide proper warning signals, signs, and markings. Plaintiffs allege that the Amtrak train failed to warn or properly sound its horn as it approached the decedent.

In November 2018, Amtrak issued deposition subpoenas to seven medical facilities and doctors seeking the medical and mental health records of the decedent. The subpoenas were issued to Santa Barbara Cottage Hospital, Goleta Valley Cottage Hospital, Sansum Medical Clinic, The Med Centers, Dr. Michael McGuire, Dr. Louise Stewart, and Dr. Miguel Gonzales. Plaintiffs thereafter sought orders quashing the subpoenas on privacy grounds and based on the physician-patient privilege and the psychotherapist-patient privilege. On January 14, 2019, the court ruled that the decedent’s medical and mental health records were directly relevant to the defenses in the case and were discoverable, but ordered that the scope of the subpoenas be limited to the five-year period preceding the decedent’s death on March 11, 2017.

While reviewing the medical records in the case, counsel for Amtrak learned that the decedent had treated with Revel Miller, Ph.D. twice a week, starting in July 2015. On April 12, 2109, Amtrak caused a deposition subpoena for the decedent’s mental health records to be served on Dr. Miller. A copy of the subpoena, together with a notice to consumer, was served on plaintiffs. Plaintiffs did not object to the subpoena, but Dr. Miller did, asserting the decedent’s right to privacy and the psychotherapist privilege as grounds for not complying with the subpoena and advising that the records would not be produced absent a court order. On May 9, 2019, Amtrak’s counsel informed Dr. Miller’s counsel that the court had previously ruled that Amtrak was entitled to obtain the decedent’s medical and mental health records for the five-year period preceding the decedent’s death on March 11, 2017, but Dr. Miller’s counsel indicated that the records would not be released because Dr. Miller was not specifically included in the court’s January 14, 2019 order.

Amtrak now moves the court for an order compelling Dr. Miller to produce the decedent’s mental health records for the five-year period preceding the decedent’s death on March 11, 2017.

ANALYSIS:

A party to litigation may move to compel compliance with a depositions subpoena. Code of Civil Procedure Section 1987.1 subdivision (a), provides:

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, 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 . . . 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. . . .”

In addition, Code of Civil Procedure Section 2025.480, subdivision (a), provides:

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”

On April 12, 2019, Amtrak issued a deposition subpoena to Dr. Miller, a licensed psychologist, for the mental health records of the decedent. (Christensen Dec., ¶5, Ex. C.) Dr. Miller objected to the subpoena, advising that the records could not legally be produced absent a validly executed authorization or a court order due to the decedent’s privacy rights and the psychotherapist-patient privilege. (Christensen Dec., ¶6, Ex. D.) Amtrak’s counsel informed Dr. Miller’s counsel that this court had previously ruled that Amtrak was entitled to obtain the decedent’s medical and mental health records for the five-year period preceding the decedent’s death on March 11, 2017, but Dr. Miller’s counsel indicated that the records would not be released because Dr. Miller was not specifically identified by name in the court’s January 14, 2019 order. (Christensen Dec., ¶7, Ex. B.)

Article I, Section 1 of the California Constitution expressly guarantees the right to privacy and this right has been interpreted by the courts to extend to records maintained by a medical provider. See, Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 660, 689. The right to privacy is not absolute, however, and where discovery of private information is sought in litigation the court must balance the privacy interests of the person subject to discovery against the right of the litigants to discover relevant facts. Vinson v. Superior Court (1987) 43 Cal.3d 833, 842; see also, Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 316 (in discovery, the court must consider both the right of parties to maintain reasonable privacy regarding their personal affairs and the public interest in facilitating the ascertainment of truth). In cases where the discovery is “directly relevant to the plaintiff’s claims and essential to a fair resolution of the lawsuit,” the plaintiff’s right to privacy must yield and disclosure will be required. Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.

California specifically recognizes a psychotherapist-patient privilege. Under Evidence Code Section 1014, “[a] patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between [the] patient and psychotherapist.” A “confidential communication” between a patient and psychotherapist means “information, including information obtained by an examination of the patient, transmitted between a patient and [his/her] psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted.” Evid. Code §1012. There is no psychotherapist-patient privilege, however, as to any communication that is relevant “to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by [the] patient.” Evid. Code §1016.

In the instant case, this court previously ruled that the decedent’s mental health records are directly relevant to the issue of whether his own negligent or intentional act of walking on the railroad tracks in front of an approaching train was the sole cause of the fatal incident. (Christensen Dec., ¶7, Ex. B.) Dr. Miller argues that any order to produce mental health records must be in compliance with Welfare & Institutions Code Section 5328 because such records are confidential. The plain language of Section 5328, however, provides an exception to the confidentiality of medical and mental health records where production of the records is “necessary to the administration of justice.” Welf. & Inst. Code §5328, subd. (a)(6). Here, the decedent’s communications with Dr. Miller are clearly relevant to his mental and emotional conditions and are discoverable. While Dr. Miller asserts that under Section 5328 the subpoenaed records may only be disclosed “to the courts” and not to the parties, this is not a correct reading of the statute. The parties are conducting discovery, not the court. Later, at trial, the court will decide what records are and are not admissible in evidence.

Based on the foregoing, the court will grant Amtrak’s motion to compel Dr. Miller to comply with its deposition subpoena. Dr. Miller is ordered to produce all records pertaining to the care of the decedent for the five-year period preceding the decedent’s death on March 11, 2017.