2015-00185641-CU-PO

Rebecca Hammons vs. Sunrise of Carmichael

Nature of Proceeding: Motion to Compel Deposition and Production of Documents (Employee

Filed By: York, Wendy C.

Plaintiffs Rebecca Hammons, et al.’s Motions to Compel Depositions and Production of Documents for Deposition of Defendants Sunrise Senior Living Management, Inc.’s (“SSLMI”) PMK re: Resident Satisfaction Surveys and Reports and Employee Satisfaction Surveys and Reports and Production of Documents is ruled on as follows.

In the Second Amended Complaint, plaintiffs allege causes of action for negligence, dependent adult abuse/neglect, intentional misrepresentation, negligent misrepresentation, unfair business practices, financial elder abuse, and wrongful death.

Plaintiffs seek to compel the depositions of SSLMI’s PMKs re: its assisted living facility’s employee satisfaction surveys and reports and resident satisfaction surveys and reports in addition to production of documents at the depositions. While Plaintiffs noticed two separate motions, and two separate statements, they filed a consolidated memorandum of points and authorities as the issues for the two depositions are essentially identical. The Court will address both motions in a single ruling. The Court will not deny the motion, as requested by SSLMI, because Plaintiffs filed a consolidate memorandum of points and authorities.

PMK Depositions

The motions to compel the depositions of SSLMI’s PMKs re: employee satisfaction surveys and reports and resident satisfaction surveys and reports is granted.

Both depositions set forth five subject matter categories for the PMK: (1) Identification of the third party entity that SSLMI contracted with to conduct employee/resident satisfaction surveys and generate reports for the years 2010-2014; (2) Identification of the SSLMI employees responsible for conducting employee/resident satisfaction surveys and reports for the years 2010-2014; (3) Identification of SSLMI employees responsible for receiving reports and/or making presentations of the employee/resident satisfaction surveys and reports for the years 2010-2014; (4) Identification of the

SSLMI employee who receives survey reports and/or makes reports relating to the employee/resident satisfaction surveys for the years 2010-2014; and (5) Identification of the SSLMI employee who receives comment alerts as a result of SSLMI’s employee/resident satisfaction reports for the years 2010-2014.

SSLMI’s opposition memorandum fails to specifically discuss its objections raised to the PMK categories, though they are briefly discussed in its responsive separate statements. None of the objections is a basis for refusing to produce PMKs for these deposition categories set forth in the two PMK notices.

The Court rejects the claim that Plaintiffs failed to meet and confer. SSLMI complains that Plaintiffs did not meet and confer regarding the objections raised to the PMK deposition notices. However, it appears that SSLMI, while asserting the objections, initially indicated that it would provide alternate dates for the depositions. (York Decl. ¶ 3 Exh. B.) Plaintiffs’ counsel thereafter attempted for some time to obtain alternate dates for the depositions and no response was received specific to these depositions. (Id. ¶¶ 4-6.) On December 5, 2017, counsel for the parties spoke and SSLMI’s counsel indicated that they were having difficulty securing dates. (Id. ¶ 7.) Plaintiffs’ counsel sent an email that same day indicating that a motion to compel deadline with respect to the depositions was approaching. On December 6, 2017, SSLMI’s counsel indicated for the first time that PMK deponents would not be produced. Plaintiffs’ counsel telephoned SSLMI’s counsel on December 13, 2017 requesting a return phone call to meet and confer regarding the depositions but no response was received. (Id. ¶ 10.) The motions were filed on December 15, 2017. The meet and confer efforts were sufficient.

SSLMI’s objection that the PMK categories were not described with reasonable particularity is overruled. The PMK categories are sufficiently particular so that SSLMI can designate an appropriate PMK.

SSLMI’s objection that the PMK categories are compound is overruled. To the extent that SSLMI is concerned that more than a category might require designation of more than one person, it is free to designate more than one person.

SSLMI’s objection that the PMK categories are overbroad in scope is overruled. Information from the year 2014 may lead to admissible evidence even though Ms. Williams passed away in 2013. It is not necessarily true that any ratification of wrongful conduct must have occurred before Ms. Williams passed away, as defendant appears to contend.

The Court would note that the fact that the PMK categories asked for identification of employees does not implicate any privacy rights.

As a result, SSLMI shall identify the PMKs on each of the five categories set forth in the deposition notices. The parties shall thereafter meet and confer on the dates of the deposition(s) to take place within 45 days of the date of this hearing.

Document Requests

The Court now turns to the documents requests in the PMK notices. As with the subject matter categories for the PMK, each PMK notice contained essentially the same document requests. The PMK notices requested: (1) resident/employee surveys

and/or survey reports for the facility for the years 2010-2014 (with redaction of third party resident names to preserve privacy rights); (2) email alerts to/from the third party that conducts SSLMI’s resident/employee satisfaction reports for the facility for the years 2010-2014 (with redaction of third party resident names to preserve privacy rights); and (3) emails to/from Orville Bell and members of SSLMI’s regional consult team regarding resident/employee surveys and/or survey reports for the years 2010-2014 (with redaction of third party resident names to preserve rights to privacy).

In opposition, SSLMI argues that the document requests seek third party privacy information which it argues Plaintiffs recognize, given that the requests specifically call for redaction of third party resident names to preserve privacy rights.

The zones of privacy created by the California Constitution have long been held to encompass a person’s medical history. Jeffrey H. v. Imas, Tadlock & Keeney (2000) 85 Cal. App. 4th 345, 353-354. The California Constitution “protects the individual’s reasonable expectation of privacy against a serious invasion.” (Puerto v. Superior Court (2006) 158 Cal.App.4th 1242, 1250.) “There is no question that medical records are highly sensitive materials that fall within the scope of the [constitutional] right to privacy.” (Manela v. Superior Court (2009) 177 Cal.App.4th 1139, 1150.) The right to privacy provided for in Cal. Const., art. I, § 1 may be invoked by a litigant as justification for refusal to answer questions or respond to requests for information that unreasonably intrude on that right. A party asserting a privacy claim has the burden of establishing each element, specifically: 1. A legally protected privacy interest; 2. A reasonable expectation of privacy; and 3. A serious invasion of the privacy interest. (See, e.g. Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1)

SSLMI argues that Plaintiffs have failed to show that the requested information is directly relevant to their claims and have failed to provide notice to residents that their private information was requested. Here, the Court finds that SSLMI has failed to establish a basis for the privacy objection. Indeed, in its opposition, it simply argues that it is likely that private medical information is implicated by the requests and that “[s]urveys seeking resident satisfaction about their residency may reference private medical information or medical conditions protected from disclosure, in addition to the fact that the resident and their family members who may have filled out the survey are protected by privacy rights from having their names generally disclosed.” (Opp. 9:9-12 [emphasis added].) SSLMI has made no showing that the requested documents do in fact contain any private medical information instead simply stating that it might. This is insufficient to sustain a privacy objection and thus SSLMI’s citation to case law indicating that a trial court inappropriately required disclosure of confidential information without a showing of direct relevance is inapplicable.

So too is the citation to CCP § 1985.3 addressing production of personal records. Indeed, that section does not apply when, as is the case here, there is no request for “the records of any particular consumer or consumers and which requires a custodian of records to delete all information which would in any way identify any consumer whose records are to be produced.” (CCP § 1985.3(i).) Here the requests did not request information pertaining to a particular consumer and specifically called for redaction of patient names which would identify any consumer. Plaintiffs were not required to comply with CCP § 1985.3.

There is no showing that any private medical information is requested or any personal information at all for that matter. Indeed, SSLMI provides no information whatsoever

regarding the content of the surveys, what questions are asked, etc. Further, to the extent that any patient name is in fact disclosed on any survey/report, the request specifically calls for redaction of that name. Thus, to the extent that there is any intrusion of a privacy right regarding disclosure of a name, there is no serious invasion of such right given that redaction is called for. Indeed, a “patients’ privacy rights are not infringed if neither disclosure of the patients’ identities nor disclosure or identifying medical information was requested.” (Snibbe v. Superior Court (2014) 224 Cal.App.4th 184, 192.) No balancing test is required given there is no serious invasion of any privacy right.

In short, SSLMI has entirely failed to demonstrate that any privacy rights preclude production or that any advance notice to third parties was required.

SSLMI next argues that the employee and resident surveys are inadmissible “lay opinion.” This is no basis for precluding discovery. Whether or not the information will be admissible at trial has no bearing on whether the information is discoverable. In the discovery context, information is relevant “if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. [citations omitted] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612.) For discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Furthermore, the “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally. Any doubt is generally resolved in favor of permitting discovery. (Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.) Moreover, the test for admissibility is whether the request seeks information that might reasonably lead to other evidence that would be admissible at trial, (Davies v. Sup. Ct. (State of California ) (1984) 36 Cal.3d 291, 201,) “When disputed facts provide a basis for the exercise of discretion, those facts should be liberally construed in favor of discovery.” (Zellerino v. Brown (1991) 235 Cal.App.3d 1097,1108-09.) Here, information in the requested surveys could show that residents/employees complained about the conditions at the facility and that SSLMI was aware of such complaints and took no action in response. The information could lead to admissible evidence related to Plaintiffs’ claim for heightened remedies under the Elder Abuse Act.

As with the PMK categories, the requests are not overbroad in scope simply because they also seek information for a period of time after Ms. Williams’ residency.

While SSLMI interposed a quality assurance privilege in its response it indicates in its opposition that it is not asserting a quality assurance objection pursuant to Evidence Code § 1157 and instead argues that the requested documents constitute inadmissible evidence of subsequent remedial measures (which it calls a form of quality assurance) under Evidence Code § 1151. Again, as discussed above, admissibility of the evidence at trial is not the standard for discovery and this objection is also overruled. Indeed, the issue here is not whether the reports should or would be admissible at trial, but whether the factual information contained in the report could lead to the discovery of relevant and admissible evidence. Furthermore, as to such “surveys”, Evidence Code section 1151 plainly refers to “remedial or precautionary measures,” not to mere reports or investigations conducted after an accident or other event resulting in injury. By its terms, it would appear to include only subsequent actions taken to repair or

correct a problem identified by an investigation–not the factual inquiries undertaken to determine whether such repair or correction was necessary. Evidence Code section 1151 also refers to measures “which, if taken previously, would have tended to make the event less likely to occur.” Of course, reports or investigations relating to an incident could not have been made prior thereto. (See, e.g. Fox v. Kramer, (2000) 22 Cal. 4th 531, 544.)

SSLMI next argues that the requested surveys constitute confidential and proprietary information. It submits a brief declaration from its Vice President of Strategic Initiatives who managed the process of collecting resident and employee satisfaction surveys from 2010 through 2014. (Cohn Decl. ¶ 2.) She declares that SSLMI considers the surveys and the results therefrom to be confidential and proprietary that is not published to the public or disclosed to individuals outside the company and that disclosure would harm the business and give competitors an unfair advantage. (Id. ¶¶ 7-8.) While the declaration is somewhat conclusory, the Court will simply order that the documents shall be produced subject to a protective order restricting the use of such information to the instant lawsuit. The parties shall meet and confer on such an order.

SSLMI’s request for a protective order precluding the depositions made at the conclusion of its opposition is denied. As discussed above, there is good cause for the depositions.

Finally, SSLMI argues that Plaintiffs be required to bear any expenses related to the document production because the documents are contained on computer backup tapes. This request is denied. CCP § 2031.280(e) provides that “[i]f necessary, the responding party at the reasonable expense of the demanding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form.” The “general rule in both state and federal court is that the responding party bears the expense typically involved in response to discovery requests, such as the expense of producing documents.” (Toshiba v. Superior Court (2004) 124 Cal.App.4th 762, 769.) Toshiba recognized that CCP § 2031.280(e) creates an exception to the general rule and that “if translation is necessary, the responding party must do it at the demanding party’s reasonable expense.” (Id. at 769.) Under the statute, the responding party need not demonstrate undue expense or burden but must show that translation is necessary. ( Id.) In Toshiba, a party sought information contained on computer backup tapes. There were more than 800 backup tapes and an electronic discovery specialist indicated that the tapes had to be manipulated in various ways to search for data contained on the tapes and that complete processing of the tapes would include analyzing the date, identifying and restoring files, and producing the data would cost almost $2 million while a smaller sampling would cost approximately $211,250. The trial court granted a motion to compel without requiring the requesting party to bear any of the cost. The appellate court granted the responding party’s petition for writ of mandate and found that the trial court erred in failing to consider the automatic cost shifting provision of former § 2031(g)(1) [from which CCP § 2031.280 is derived]. The appellate court remanded the matter to the trial court so the trial court could determine whether translation of the data was “necessary” such that the demanding party would be required to bear the cost. The court emphasized that it was not stating that a demanding party must always pay the costs for retrieving useable data from backup tapes but only where it is “necessary” and that such a question is properly submitted to the trial court’s discretion. (Id. at 773.)

Here, SSLMI has made no showing whatsoever that translation of any electronic data is “necessary.” Indeed, there are no declarations from any electronic specialist or any evidence to support such a finding. SSLMI has failed to demonstrate that Plaintiffs shall bear any costs pursuant to CCP § 2031.280(c), specifically, the unidentified costs of a medical records professional.

To the extent that SSLMI argues that the requests impose an undue burden that objection is overruled. Indeed, undue burden objections must be accompanied by a specific factual showing setting forth the amount of work necessary to respond to the subject discovery. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418.) SSLMI makes no such showing.

SSLMI’s “vague, ambiguous and compound” objections are overruled. These are essentially boilerplate objections and no real effort was made to justify the objections.

To the extent that SSLMI interposed objections to the document requests based on privilege, e.g., attorney-client, work-product, it failed in any way to establish the basis for these privileges. SSLMI was required to provide sufficient factual information for other parties to evaluate the merits of that claim, including if necessary, a privilege log. (CCP §2031.240(c)(1).) At the time of production at the depositions, SSLMI may provide a privilege log to the extent that it withholds any documents based on the attorney-client privilege or work-product doctrine.

To the extent that there were any additional objections not specifically addressed by SSLMI in its opposition papers and not discussed above they too are also overruled.

The Court need not rule on SSLMI’s evidentiary objections to Plaintiffs’ reply declaration in this discovery motion.

Both parties’ requests for sanctions are denied. The Court finds that sanctions against either party would be inappropriate under the circumstances.

As a result, the motions to compel PMK Depositions re: Resident Satisfaction Surveys and Reports and Employee Satisfaction Surveys and Reports and Production of Documents are granted. As set forth above, SSLMI shall identify the PMKs on each of the five categories set forth in the deposition notices. The parties shall thereafter meet and confer on the dates of the deposition(s) to take place within 45 days of the date of this hearing. SSLMI shall produce the documents at the depositions. As discussed above, the documents shall be produced pursuant to a protective order which the parties shall meet and confer upon.