Case Name: Rachitha Kasi, et al. v. Nicholas G. Gawaldo, et al.
Case No.: 18CV330619

Lead counsel for both parties are ordered to appear personally in Court to further discuss appropriate limitations on the subpoenas, as will be further discussed below. No CourtCall will be allowed. If either attorney is unable to appear in person at the hearing, all counsel shall appear by CourtCall to request a new hearing date. If a resolution of the issues posed by this motion is not reached, it is the Court’s intention to grant the motion to quash all subpoenas in their entirety, without prejudice to Nicholas serving new subpoenas that are appropriately narrowed as to time and scope.

I. Background

This is a personal injury action filed by plaintiffs Rachitha Kasi (“Rachitha”) and her husband Kishore Udayashankar Kasi (“Kishore”) (collectively “Plaintiffs”) against defendants Nicholas G. Gawaldo (“Nicholas”), Barbara Gawaldo, and Lawrence Gawaldo (collectively “Defendants”, or “Barbara and Lawrence”).

According to the First Amended Complaint (“FAC”), on July 7, 2016, Plaintiffs were driving on the exit ramp of the 101 Freeway when Nicholas rear-ended their vehicle. (FAC, ¶1.) Rachitha was 20 weeks pregnant at the time. (Ibid.) Plaintiffs suffered injuries as a result of the collision. (Ibid.) Moreover, Rachitha experienced contractions in the hours after the collision and required emergency surgery to avoid prematurely delivering her baby. (Id., ¶2.) As a result of their injuries, Plaintiffs suffered wage loss, hospital and medical expenses, property damage, general damages, and loss of earning capacity. (FAC, ¶¶19, 28, 38.) Plaintiffs also suffered noneconomic damages such as mental suffering, loss of consortium, physical disfigurement, grief, anxiety and emotional distress. (Ibid.) Plaintiffs allege causes of action for negligence against Defendants. (FAC, ¶¶14-39.)

In August 2018, Nicholas’s counsel served 24 deposition subpoenas for the production of business records on various third-party deponents, consisting of medical facilities, their billing and radiology departments, and Plaintiffs’ employers. Of these 24 subpoenas, Plaintiffs objected to 22.

The parties’ counsel met and conferred regarding the subpoenas. Plaintiffs’ counsel asserted the subpoenas were overbroad in time and scope and intruded upon Plaintiffs’ personal privacy.
Plaintiffs’ counsel requested the parties enter into a protective order to govern the use of confidential and protected information, and sent Nicholas’s counsel a proposed order. He also requested that Nicholas’s counsel modify, narrow, and in some cases, withdraw the subpoenas. Nicholas’s counsel did not agree to do so. He also made changes to the protective order. Plaintiff’s counsel did not agree with the changes.

Unable to resolve the dispute, Plaintiffs filed the instant motion to quash or, in the alternative, modify the subpoenas, which is accompanied by a request for judicial notice. Nicholas opposes the motion. Plaintiffs then filed a reply, which includes formal objections to evidence.

II. Preliminary Matters

A. Request for Judicial Notice

Plaintiffs request judicial notice of four documents in support of their motion.

Plaintiffs first request judicial notice of a Model Protective Order from the U.S. District Court for the Northern District of California, under Evidence Code section 452, subdivision (d), which permits judicial notice of court records. The Model Protective Order is not relevant to any material issue or argument raised by Plaintiffs with regards to the motion to quash subpoenas. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [a “precondition” to the taking of judicial notice is that the documents “must be relevant to a material issue”].) Moreover, the Court will not approve a federal court protective order, as it does not include language necessary to comply with California law.

Next, Plaintiffs request judicial notice of three news articles under Evidence Code section 452, subdivision (h), which states that a court may take judicial notice of “facts…not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” The news articles describe the ways personal and medical information have been intentionally or accidentally disclosed by litigants over the internet, and the resultant harms. Although Plaintiffs state they do not seek judicial notice of the content of these articles, they submit these articles “as cautionary examples of the manner in which the plaintiffs’ private medical data may be misused in the litigation and the nefarious effects that the unauthorized disclosure of such personal data could have on [them].” (RJN, p. 4:16-18.) That means, in effect, they are seeking judicial notice of the articles’ contents.

Courts are generally reluctant to take judicial notice of the content of news articles. (See Jordan v. Superstar Sandcars (2010) 182 Cal.App.4th 1416, 1421, fn. 2; Walgreen Co. v. City & County of San Francisco (2010) 185 Cal.App.4th 424, 443; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1141, fn. 6.) Moreover, the articles are not necessary or helpful to resolving the issues raised in the motion. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of matters not necessary, helpful or relevant].)

Accordingly, Plaintiffs’ request for judicial notice is DENIED.

B. Objections to Evidence

Plaintiffs filed objections to evidence with their reply brief. They object to Nicholas’s inclusion of two settlement letters to State Farm on the basis of Evidence Code sections 1152 and 1154, the constitutional right to privacy, and Insurance Code section 791.13. Essentially, they argue the letters are confidential settlement communications that cannot be disclosed and they disclose information that violates their right to privacy.

Discovery motions are not evidentiary proceedings in the traditional sense (e.g., discovery motions do not involve making findings about the merits of a case), and it is consequently unusual for evidentiary issues to be raised relative to such motions. There is no authority for the proposition that a court must rule on objections made in connection with a discovery motion. However, the Court finds that inclusion of the inadmissible settlement communications to be improper, and the Court intends to strike pleadings that contain these documents. See below in section relating to the motion for protective order.

III. Motion to Quash

The Court includes this discussion of the motion to quash as guidance for the parties in their meet and confer discussions, and for future guidance in this case as to the Court’s thinking on discovery issues.

Plaintiffs move to quash and/or modify the subpoenas pursuant to Code of Civil Procedure section 1987.1, which authorizes a court to quash entirely or modify subpoenas and “make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right to privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).)

Subpoena Nos. 1, 4-5, 9-10, 12, and 15 seek Rachitha’s medical records, while Subpoena No. 22 seeks Kishore’s medical records. The records sought include, but are not limited to, treatment records, cardiology reports, x-ray and CAT scan reports, lab reports, emergency records, prescriptions, nursing records, photographs, intake forms, emails to and from physicians, physician assistant records, payment information, post-it notes, attorney liens and letters of credit. Subpoenas 1, 5, and 12 also seek Rachitha’s psychiatric and mental health records.

Subpoena Nos. 2, 6, 8, 13, 16, and 18-19 all seek billing records for medical treatment Rachitha received at various medical facilities. The records sought include, but are not limited to, charges statements, explanation of benefits, lien agreements, CPT/diagnostic codes, and billing emails between physicians and the patient.

Subpoena Nos. 3, 7, 14, and 17 seek radiology images of Rachitha from various medical facilities. The images sought include x-rays, MRIs, myelograms, PETS scans, and discograms.

Subpoena Nos. 11 and 20 concern Rachitha, while Subpoena No. 21 concerns Kishore. The records sought include, but are not limited to, earnings statements, payroll records, employment applications, incident reports, W-2s, 1099s, employee progress reports, insurance records, workers’ compensation records, and medical records.

Plaintiffs argue the subpoenas are overbroad in time and scope and violate their constitutional right to privacy. Generally, the party resisting discovery bears the burden of substantiating his or her objections to a discovery request. (See, e.g., Fairmont Insurance Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

A. Overbreadth

Plaintiffs argue the subpoenas are overbroad in time and scope because they implicate matters beyond the issues in this case. In opposition, Nicholas does not specifically address this objection. Plaintiffs’ argument is well-taken.

A discovery request is overbroad if it encompasses irrelevant information but is not wholly irrelevant. (See, e.g., Williams v. Superior Court (2017) 3 Cal.5th 531, 542.) As indicated by Plaintiffs, all the subpoenas here are overbroad because they contain either no limitations related to time and scope and therefore encompass irrelevant information.

For example, Subpoena No. 1 requests all of Rachitha’s medical and mental health records from the Lucile Packard Children’s Hospital “from the first date of treatment to present” (Sep. Stmt., pp. 2:25-28; 3:7-8); this could potentially span Rachitha’s lifetime. Since the claimed injuries only occurred in 2016, this request is too broad as to time and obviously covers irrelevant information. Subpoena No. 22, which requests all of Kishore’s medical records, suffers from the same problem. Without any limitation as to time, the subpoena seeks Kishore’s entire medical history, and therefore would result in the production of irrelevant information.

The medical subpoenas are overbroad in scope as well. To illustrate, these subpoenas seek cardiology reports. (See, e.g., Sep. Stmt., pp. 6:21, 12:24.) But Plaintiffs are not claiming they suffered any heart issue from the accident. Thus, the medical subpoenas plainly encompass irrelevant information.

The billing subpoenas are also overbroad. The billing subpoenas are not limited to any specific time period and could hypothetically encompass billing records from decades ago. Moreover, the subpoenas are not limited in scope to billing records related to treatment for injuries at issue in this litigation. Instead, the subpoenas request billing records for any and all treatment Plaintiffs have had at the subpoenaed facilities. Thus, the subpoena requests would result in the production of irrelevant information.

Next, the employment subpoenas are not limited to a specific time period; they request records from the first date of employment to present. The subpoenas also encompass irrelevant information in scope. As an example, they each request any and all employment applications, incident reports, progress reports, and workers’ compensation records. These records do not relate to injuries or issues in this case. Thus, the subpoena requests would result in the production of irrelevant information.

Thus, Plaintiffs’ objection on the ground of overbreadth as to time and scope is meritorious.

B. Privacy

Plaintiffs argue the subpoenas violate their constitutional right to privacy because they seek information about their medical histories and financial records. In opposition, Nicholas contends Plaintiffs have no reasonable expectation of privacy, have waived their right to privacy, and cannot take inconsistent legal positions.

When a person objects on the ground of privacy, he or she must demonstrate disclosure of the information sought would invade a legally protected privacy interest. (See Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1423.) If the discovery sought invades a cognizable privacy interest, the proponent of the discovery must demonstrate the information sought is directly relevant to a claim or defense. (Id. at 1426-1427, 1433.) If the information sought is directly relevant, the court must balance the right to privacy against the countervailing right to discover relevant information to litigate the case in determining whether to permit discovery. (Id. at 1426-27.)

Here, Nicholas seeks all medical reports and correspondence from medical facilities, as well as Plaintiffs’ employment records, including related medical and financial documents. It is well-established that this type of information is covered by the right to privacy. (Heda v. Superior Court (1990) 225 Cal.App.3d 525, 527; Williams v. Superior Court (2017) 3 Cal.5th 531, 553.)
The burden therefore shifts to Nicholas to demonstrate that the information sought is directly relevant to a claim or defense. (See Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.) He demonstrates that some of the subpoenaed records are directly relevant but does not carry his burden as to the remaining records.

Nicholas asserts there could be material demonstrating that Plaintiffs had pre-existing conditions that contributed to the current injuries alleged. While this argument is well-taken with respect to the medical conditions at issue in this litigation, the subpoenas are overbroad. Where a party puts his or her physical or emotional condition at issue by filing a lawsuit, only information relating to the medical conditions in question is directly relevant. (Davis, supra, 7 Cal.App.4th at 1017-1018.) Plaintiffs indicate they alleged certain gynecological and other discrete injuries for Rachitha and back injuries for Kishore, along with pain and mental anguish arising out of those injuries. But the subpoenas broadly seek any and all medical and billing reports from medical facilities, and medical records in Plaintiffs’ employment files. There are no limitations in the subpoenas to the specific injuries claimed by Plaintiffs or even any temporal limitations. For example, Subpoena Nos. 1, 4-5, 9-10, 12, 15, and 22 all include a request for cardiology reports. Yet Plaintiffs have not claimed a cardiac injury or resultant heart condition. Further, none of these subpoenas are temporally limited. As such, Nicholas’s argument is insufficient to establish the direct relevance necessary to overcome Plaintiffs’ privacy objection with respect to conditions unrelated to Plaintiffs’ claimed injuries. (See Davis, supra, 7 Cal.App 4th at 1017-1018 [“Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.”].) Thus, the subpoenas infringe on Plaintiffs’ right to privacy.

As for the employment records, the subpoenas seek production of any and all documents relating to Plaintiffs’ employment. Nicholas argues that the records are relevant because Plaintiffs are both claiming substantial wage loss and loss of earning capacity. This argument is compelling with regards to the financial employment records sought. However, the employment subpoenas also request records such as employment applications, incident reports, employee progress reports, and insurance records. Nicholas does not address how these records are directly relevant to a claim or defense. (See Harris v. Superior Court, supra, 3 Cal.App.4th at 665.) Thus, Nicholas has only established direct relevance for the financial employment records.

Although Nicholas has only established direct relevance for a portion of the records sought sufficient to overcome Plaintiffs privacy objection, the Court will still address his remaining arguments because they are otherwise deficient. Nicholas argues that Plaintiffs waived their right to privacy by filing this lawsuit, disclosing records to State Farm prior to the start of this litigation, and failing to timely respond to form interrogatories seeking wage information. Nicholas additionally argues Plaintiffs are judicially estopped from asserting the right to privacy.

“Privacy rights are subject to waiver in much the same way as are privileges [citation], but waivers of constitutional rights are not lightly found. Evidence Code section 912, which governs waiver of ‘privilege,’ is instructive about waiver of privacy [ ]. It provides for waiver ‘with respect to a communication protected by…privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to such disclosure made by anyone.’” (Heda v. Superior Court, supra, 225 Cal.App.3d at 530.)

As a preliminary matter, Nicholas frames his first two contentions, that Plaintiffs waived their right to privacy by filing this lawsuit and disclosing their records to State Farm, as demonstrating that Plaintiffs do not have a reasonable expectation of privacy. But they are more accurately characterized as waiver arguments. Whether a party has a reasonable expectation to privacy is based on the norms, customs, and practices surrounding particular activities. (Hill v. National Collegiate Athletic Ass’n (1994) 7 Cal.4th 1, 36-37 (“Hill”).) Here, Nicholas’s arguments do not attack the norms and customs regarding particular activities, but whether Plaintiff has consented to disclosure by filing the lawsuit or disclosed significant portions of the communications, which are waiver arguments. (See Heda v. Superior Court, supra, 225 Cal.App.3d at 530.)

Nicholas’s first contention that Plaintiffs completely waived their right to privacy to their medical and financial information by filing this lawsuit is incorrect. When a party files a lawsuit that places his or her physical or emotional condition at issue, he or she does not automatically waive the right to privacy to all of his or her medical and financial information. (Davis v. Superior Court, supra, 7 Cal.App.4th at 1017-1018.) Instead, only physical or emotional conditions at issue in the case are not covered by the right to privacy. (Ibid.) Nicholas fails to make this distinction in its argument. Thus, Nicholas’s first contention is without merit.

Nicholas’s assertion that Plaintiffs have no reasonable expectation of privacy because they previously disclosed a substantial amount of the medical and employment records at issue to State Farm, which insured him at the time of the accident, also lacks merit. Nicholas cites Hill, supra, 7 Cal.4th 1 in support. However, Hill contains no discussion of waiver of the right to privacy because of a substantial disclosure of information. As such, Nicholas does not substantiate his argument.

Moreover, Nicholas has not demonstrated that Plaintiffs disclosed a substantial amount of their records to State Farm. The court in Heda v. Superior Court, supra, 225 Cal.App.3d 525 addressed a similar situation. There, the court stated the defendant did not waive his right to privacy to his medical records because the defendant had not disclosed a significant part of his medical file. (Heda v. Superior Court, supra, 225 Cal.App.3d at 530.) Here, Nicholas does not demonstrate that the supposed disclosure of the 892 pages of records included the records unrelated to the injuries and issues in the case, constituting a disclosure of a significant part of the requested subpoenaed records. Thus, Plaintiffs have not waived their right to privacy by disclosing the records to State Farm.

Next, Nicholas insists that Plaintiffs waived their right to privacy as to Subpoena Nos. 11 and 20-21, which request employment records, because they failed to timely respond to form interrogatories seeking that information. In support, Nicholas cites Code of Civil Procedure section 2030.290, which states in part that a party who fails to timely respond to written interrogatories waives his or her objection based on the right to privacy. However, this section only applies to form interrogatories; it is entirely inapplicable to third party subpoenas. Further, in their reply, Plaintiffs state they did serve responses to the form interrogatories. Thus, Nicholas’s argument fails.

Lastly, Nicholas contends Plaintiffs should be judicially estopped from asserting the right to privacy. Nicholas argues that since Plaintiffs have previously argued the right to privacy does not apply to documents in possession of a third party, they should be judicially estopped from raising that argument here with regards to records produced to State Farm. This argument fails because Plaintiffs’ positions are not inconsistent.

One of the key elements of the judicial estoppel doctrine is that the two positions taken by a party are totally inconsistent. (Jogani v. Jogani (2006) 141 Cal.App.4th 158, 169.)

The parties were previously before this Court on Nicholas’s motion for protective order. There, Plaintiffs had issued a subpoena for business records to a third party for public podcasts allegedly posted by Nicholas. Nicholas filed a motion for protective order, asserting the podcasts were protected by the right to privacy. Plaintiffs argued in opposition that Nicholas had no reasonable expectation of privacy because the podcasts were public. This is not inconsistent with Plaintiffs’ current position. Here, they contend their medical and employment records are private and they always intended these records to remain private. Whether something posted on a public forum is protected by the right to privacy is strikingly different from whether medical, employment, and financial records are protected. Thus, the two positions are not inconsistent.

For the reasons stated above, Plaintiffs’ objections on the grounds of privacy are overruled in part and sustained in part.

The objection is overruled as to Subpoena Nos. 1-22 to the extent they seek medical and billing records related to the medical conditions at issue. It is also overruled as to the requests for medical records related to the medical conditions at issue contained within the employment subpoenas. The objection is sustained as to Subpoena Nos. 1-22, which request medical and billing records containing information unrelated to the medical conditions at issue.

The objection is overruled as to Subpoena Nos. 11, 20, and 21 to the extent they seek employment records containing information related to wage loss and lost earning capacity issues. The objection is sustained as these subpoenas with regards to all other employment records unrelated to wage loss and lost earning capacity issues.

C. Conclusion

Given the nature of the information sought and the absence of appropriate time and subject matter limitations, the Court will not attempt to fashion an appropriate limitation or modify the subpoenas. Plaintiffs did propose that the subpoenas be temporally limited to one year prior to the collision. But this does not address the subject matter or privacy issues at hand. The Court also recognizes that in the meet and confer conversations prior to the filing of this motion, Plaintiffs’ counsel attempted to limit the scope of the subpoenas. However, Nicholas’s counsel was unwilling to propose limitations. Further, in his opposition, Nicholas did not propose any modifications for the subpoenas.

As noted above, lead counsel for both parties are ordered to appear personally in Court to further discuss appropriate limitations on the subpoenas. No CourtCall will be allowed.

IV. Request for Sanctions

Nicholas requests an award of monetary sanctions against Plaintiffs in the amount of $1,560 pursuant to Code of Civil Procedure section 1987.2, subdivision (a).
Code of Civil Procedure section 1987.2, subdivision (a) provides that a court making an order on a motion under section 1987.1 “may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”

Sanctions are DENIED, as Nicholas did not substantially prevail. Plaintiffs’ motion was not made in bad faith and was made with substantial justification.

MOTION FOR PROTECTIVE ORDER

Defendants argue that a protective order is not necessary to protect the confidentiality of information produced, because of the many protections provided by law. However, in light of the flagrant disregard by Nicholas’ counsel of those protections, by the graphic and detailed description of Rachitha’s injuries and the attachment of a clearly inadmissible settlement communication in a publicly filed document, it is apparent to the Court that a protective order is not only appropriate but is crucial in this case. Perhaps Nicholas’ counsel thinks that any request for a protective order is now moot because he has placed this information in the public record, but the Court intends to correct that. Because portions of documents cannot be removed from the record in the Court’s Odyssey system, the Court hereby STRIKES and REMOVES the entirety of the opposition filed by Nicholas from the system. Nicholas will be allowed to refile redacted versions of his opposition papers that removes all references to the Plaintiffs’ injuries, and deletes entirely both the settlement letter and any reference to settlement discussions.

Even if Plaintiffs have waived privacy as to information directly related to their claims, does not mean that they give up their right to have the information protected during the course of the litigation.
The motion for protective order is GRANTED. However, neither version of protective order is acceptable to the Court. A protective order drafted for purposes of federal litigation is missing necessary information, most specifically any reference to the California law that applies.

The Court will allow access to the insurance companies for confidential information, and if legally required, to retain that information after the conclusion of the case, but because of that, the protective order will not terminate at the conclusion of the case.

The Court will adopt the Model Confidentiality Order approved by the Complex Division of the Santa Clara County Superior Court, modified for the needs of this case. This Court will include an Appendix A that certain parties given access to will be required to sign. As Nicholas’ counsel complains that Nicholas will not be allowed by a protective order to discuss confidential information about the Plaintiffs with his friends, family, clergy or trusted advisors, Nicholas should not be allowed to do so. In light of this comment, and Nicholas’ propensity to YouTube, the Court is considering precluding all access to confidential information to Nicholas. The Court sees absolutely no legitimate reason for Nicholas to discuss this information with anyone but his attorneys, and maybe not them if it is likely he will abuse the right. Moreover, a motion to seal will be required before any confidential information is filed with the Court.

The Court will provide a copy of the Model Confidentiality Order to counsel at the hearing for their comments.

The Court will prepare the Order.

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