Case Number: EC057245 Hearing Date: June 06, 2014 Dept: B

Motion to Quash Subpoena

The complaints in EC057245 and EC059174 arise from the death of Amy Breliant as a result of a drug overdose. The Plaintiff, Gianna Breliant, was the mother of Amy Breliant.

In the complaint in EC057245, the Plaintiff alleges that the Defendants, Stephen Marmer, Eric Lifshitz, and Gary Chase, caused the wrongful death of Amy Breliant because they provided medical treatment to Amy Breliant that was below the standard of care. The Defendants were provided medical and psychiatric treatment to Amy Breliant for a substance abuse condition. The Plaintiff claims that as a result of the Defendants’ failure to provide proper medical treatment, she died.

In the complaint in EC059174, the Plaintiff alleges that the Defendants, Warren Boyd, Commerce Resources International, Carrie Fisher, Seacliff Recovery Center and Darryl Fujihara, engaged in a fraud and dependent adult abuse, breached agreements, and engaged in unfair business practices in their joint venture to provide assistance to Amy Breliant for her substance abuse condition. This complaint has been dismissed.

This hearing concerns the Plaintiff’s motion to quash a subpoena to obtain records from her therapist, Bethany Marshall. CCP section 1987.1 permits the Court to make order quashing a subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the Court shall declare, including protective orders.

The Plaintiff provides evidence in her declaration accompanying her motion that she began seeking treatment from a therapist, Bethany Marshall, approximately six months after the death of her daughter. Under Evidence Code section 1014, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist. For reasons of policy the psychotherapist-patient privilege has been broadly construed in favor of the patient. People v. Stritzinger (1983) 34 Cal. 3d 505, 511. Confidential communications between psychotherapist and patient are protected in order to encourage those who may pose a threat to themselves or to others, because of some mental or emotional disturbance, to seek professional assistance. Id. Further, the psychotherapist-patient privilege has been recognized as an aspect of the patient’s constitutional right to privacy. Id.

Where discovery involves matters encompassed by the right to privacy, Courts recognize that judicial discovery orders inevitably involve state-compelled disclosure subject to constitutional constraints. Mendez v. Superior Court (1988) 206 Cal. App. 3d 557, 566-567. The constitutional right of privacy provided by Article 1, section 1 of the California Constitution and implied by provisions of the United States Constitution is not absolute and it may be abridged when there is a compelling and opposing state interest. Id.

The need to obtain information in discovery is such a state interest. However, discovery into information protected by the right of privacy cannot be justified solely on the ground that it may lead to relevant information. Id. Instead, the proponent of discovery into constitutionally protected material has the burden of making a threshold showing that the evidence sought is “directly relevant” to the claim or defense. Britt v. Superior Court (1978) 20 Cal.3d. 844, 859-862. Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; instead, the Court must carefully balance the compelling public need for discovery against the fundamental right of privacy. Mendez, 206 Cal. App. 3d 557, 566-567.

The Defendant, Gary Chase, served a subpoena for all records, i.e., billing, medical, and mental health records, on the Plaintiff’s therapist, Bethany Marshall. As the proponent of this discovery, the Defendant has the burden of demonstrating that all of the medical and mental health records regarding the Plaintiff are directly relevant to the claims in this case. The Defendant fails to meet this burden and offers no grounds to find that all of the Plaintiff’s medical and mental health records are directly relevant to any issue in this case.

The Defendant argues that the Plaintiff acknowledged the substance of her discussion with her therapist and that her therapist gave her advice about the litigation.. This is an argument based on waiver. Under Evidence Code section 912, the psychotherapist-patient privilege in Evidence Code section 1014 is waived with respect to a communication if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.

The psychotherapist-patient privilege may be waived when the patient voluntarily discloses otherwise confidential information or tenders her mental state as an issue. In re M.L. (2012) 210 Cal. App. 4th 1457, 1468-1469. However, the waiver of an important right must be a voluntary and knowing act done with sufficient awareness of the relevant circumstances and likely consequences. Id. Even where a patient has waived her privilege, such waiver must be narrowly construed and limited to matters as to which, based upon the patient’s disclosures, it can reasonably be said the patient no longer retains a privacy interest. Id.

Finally, even if there is a waiver, any disclosure of confidential or private information must be supported by a showing of compelling need and accomplished in a manner which protects, insofar as is practical, the patient’s privacy. Id. Therefore, even where such evidence is disclosed pursuant to an ostensible waiver, the trial court should exercise its discretion in excluding any such evidence at trial unless its probative value is substantially outweighed by the harm that may be caused by public disclosure. Id.

The Defendant’s argument is based on the Plaintiff’s deposition testimony, at which she testified that she sought treatment from Bethany Marshall. The Plaintiff testified that she spoke to her therapist about:

1) her daughter’s death;
2) her daughter’s addiction;
3) the story of her daughter and how she died; and
4) the story of Boyd.
(856:8 to 16).

There are no grounds to find that this was a waiver of the privilege because the Plaintiff did not provide specific facts that disclose a significant part of the communication. Instead, the Plaintiff merely identified the general topics for which she sought psychiatric treatment from Bethany Marshall. Any waiver would be narrowly construed and limited to the fact that the Plaintiff sought psychiatric treatment for the death of her daughter, her daughter’s addictions, the manner of her daughter’s death, and her daughter’s relationship with Warren Boyd. There is no waiver of the specific communications and no grounds to find that the waiver permits the Defendant to obtain and search through all of the Plaintiff’s mental health records.

In addition, the Defendant argues that these records may be probative on the issue of the Plaintiff’s credibility. However, as noted above, discovery into information protected by the psycho-therapist privilege or the right to privacy cannot be justified solely on the ground that it may lead to the discovery of relevant information. Accordingly, the Defendant is not permitted to search through the Plaintiff’s mental health records to seek information that could be used to impeach her at trial.

Accordingly, the Court grants the Plaintiff’s motion and quashes the Defendant’s subpoena for records. The Plaintiff did not request an award of monetary sanctions.