Preview
1JOSHUA S. FALAKASSA (SBN: 295045)
FALAKASSA LAW, P.C.
FILED/ENDORSED
2 1901 Avenue of the Stars Suite # 450
3 Los Angeles, Califomia 90067 AUG 0 5 2022
Tel.: (818) 456-6168; Fax: (888) 505-0868
4 Email: josh(^falakassalaw.com By: E. Macdonald
( Deputy Cie('<
5 ARASH S. KHOSROWSHAHI (SBN: 293246)
6 LIBERTY MAN LAW, P.C.
lOlOFStreet, Ste. 300
7 Sacramento, Califomia 95814
Tel.: (916) 573-0469; Fax: (866) 700-0787
8 Email: ash@libertymanlaw.com
9
Attomeys for Plaintiff,
10 SAJIDAZAMAN
11 SUPERIOR COURT OF CALIFORNIA
12
COUNTY OF SACRAMENTO
13
14 SAJIDA ZAMAN, CASE NO.: 34-2019-00252121
RESERVATION ID: 2665224
15 Plaintiff, MEMORANDUM OF POINTS AND
vs. AUTHORITIES IN SUPPORT OF
16 MOTION TO QUASH OR MODIFY THE
LIQUI-BOX CORPORATION, and DOES 1 SCOPE OF SUBPOENA TO
17 TRAVELERS PROPERTY CASUALTY
through 20, inclusive. COMPANY OF AMERICA AND
18 MONETARY SANCTIONS
Defendants.
19
Date: October 20, 2022 BY FAX
20 Time: 1:30pm
Dept.: 53
21 Trial Date: September 12, 2022
22 I. INTRODUCTION
23 Defendant Liqui-Box Corporation ("Defendant") served a deposition subpoena to
24 Travelers Property Casualty Company of America ("Travelers"), the workers compensation
25 insurance provider who covered Plaintiff Sajida Zaman ("Plaintiff) for her work-related injuries
26 However, the subpoena is overbroad, requesting the entirety of Plaintiffs medical records,
27 including records outside of the scope of the instant wTongful termination suit.
28
MEMORANDUM OF POINTS AND AUTHORITIES
1 of7
1 Plaintiff attempted to meet and confer with Defendant to limit the scope of the subpoena,
2 but Defendant would not make a firm commitment bn the limitations of scope before the fast
3 approaching motion to quash deadline. Plaintiff was forced to file this motion as a result.
4 Plaintiff therefore respectfully requests this Court grant her motion and order monetary
5 sanctions be paid by Defendant.
6 II. STATEMENT OF FACTS
7 A. Plaintiff Sustained Work-Related Injuries and Disabilities to her Knee While
8 on the Job but was Terminated for Allegedly Not Reporting Immediately.
9 Plaintiff alleges in her First Amended Complaint for Damages and Injunctive Reliei
10 ("FAC") filed on January 24, 2020, that she was originally hired as a "Packer" at Defendant's
11 liquid bad manufacturing center in Sacramento in December 2003, and was eventually promoted
12 to "Inspector-Packer" (FAC, ^ 6.) Plaintiffs job duties included packing and inspecting bags^ and
13 other labor-intensive tasks, requiring her to stand for long periods of time and lift/haul heavy loads
14 over 16 years of employment. (Id.)
15 On or about December 3, 2018, Plaintiff suffered pain to her left knee while working for
16 Defendants, and over time her knee stifftiess turned into consistent and considerable pain. (Id., 1
17 7.) Plaintiff first became aware her pain was a work-related knee injury on or about January 3,
18 2019, which was when she reported it to Defendant to seek treatment and begin her worker's
19 compensation claim. (Id.) Defendant's human resources department sent Plaintiff for medical
20 examination to the workers compensation medical provider and monitored the examination
21 without Plaintiffs consent. (Id., ^ 8.)
22 Thereafter, Plaintiff was instructed by Defendant to go home until further notice but was
23 then summoned back for a work meeting on January 10, 2019. (Id., ^ 9.) At the meeting Plaintiffs
24 16 years of employment was terminated because she allegedly "neglected to report [her] injury
25 timely" in violation of Defendant's Critical Safety Behaviors ("CSB") policy, which states in
26 relevant part, "Immediately report all incidents to your supervisor, management team member no
27 matter how minor or without exception," and that "[a]ny violation of these Critical Safety
28 Behaviors will result in immediate termination of employment." (Id.)
MEMORANDUM OF POINTS AND AUTHORITIES
2 of?
1 Based on these allegations, Plaintiff alleges she was terminated because of her work-related
2 injuries and disabilities, with the CSB policy used as pretext. (Id., \ 10.) Plaintiff brings causes ol
3 action for (1) Wrongful Termination in Violation of Public Policy; (2) Retaliation in Violation ol
4 Public Policy; (3) Disability Discrimination in Violation of FEHA; (4) Failure to Engage in the
.5 Interactive Process in Violation of FEHA; (5) Failure to Provide a Reasonable Accommodation in
6 Violation of FEHA; (6) Intentional Infliction of Emotional Distress; and (7) Unfair Competition
7 Law. (M, 111119-64.)
8 B. Defendant Served an Overbroad Subpoena Asking for the Entirety of
9 Plaintiffs Medical Records.
10 On or about July 21, 2022, counsel for Defendant served a subpoena to Travelers,
11 requesting Plaintiffs medical records in relation to her workers compensation file as follows:
12 "All records, notes, logs, medical records, and all documentation from Workers
13 Compensation Appeals Board for claim FKQ0487 and every such record, including those
14 existing in electronic or magnetic form, in the possession, custody or control of the said
15 witness, and every such record to which the witness may have access.
16 The date rage of records needed is Any and all records."
17 (Declaration of Arash Khosrowshahi in Support ["Khos. Decl."], \ 3; attached as Exhibit A is a
18 tme and correct copy of the Deposition Subpoena for Production of Business Records & Notice to
19 Consumer or Employee and Objection; see Attachment 3 therein [emphasis added].)
20 C. Plaintiff Met and Conferred and Offered as a Compromise to Limit the Scope
'21 of the Records, But Defendant Never Agreed Before the Motion Filing
22 Deadline.
23 Upon receipt of the subpoena, counsel for Plaintiff sent a detailed meet and confer lettei
24 on or about July 29, 2022 arguing in sum that the requested records were overbroad and violated
25 Plaintiffs right to privacy in her medical records. (Khos. Decl., \ 4; attached as Exhibit B is a tme
26 and correct copy of the July 29, 2022 meet and confer letter.) Plaintiff offered to limit the scope
27 of the subpoena to encompass the disabilities related to the instant wrongful termination suit, along
28 with her related emotional distress. (Khos. Decl., \ 4; see Exhibit B.)
MEMORANDUM OF POINTS AND AUTHORITIES
3 of?
1 On July 29, 2022, counsel for Defendant requested that the records encompass Plaintiffs
2 2013 workers compensation injury, given that Plaintiff placed that injury at issue in her opposition
3 to Defendant's Motion for Summary Judgment. (Khos. Decl., ^ 5; attached as Exhibit C are emails
4 between counselfromJuly 29, 2022 to August 1, 2022.) Counsel for Defendant further claimed
5 that Defendant wanted medical records documenting any other condition that precluded Plaintiff
6 from working, but that if her workers compensation file for a related subpoena referred to unrelated
7 information, he would agree to limit the scope. (Khos. Decl., ^ 5; see Exhibit C.)
8 That same day, Plaintiffs counsel sent a follow-up email asking whether Defendant's
9 counsel proposal regarding the 2013 injury applied only to the Travelers subpoena, or other
10 medical record subpoenas served upon Plaintiff as well. (Khos. Decl., H 6; see Exhibit C.) Not
11 having heard a response, Plaintiffs counsel sent a follow-up email on August 1, 2022. (Khos
12 Decl., II 6; see Exhibit C.) But Defendant did not follow up. (Khos. Decl., H 6.)
13 With the motion to quash deadline fast approaching and without seeking afirmagreement
14 from Defendant's counsel on the scope of the subpoena. Plaintiff is forced to file this motion to
15 safeguard her rights.
16 HI. ARGUMENT
17 A. The Scope of the Subpoena is Not Directly Relevant to Plaintiffs Claims and
18 Invades Her Right to Privacy.
19 "In evaluating privacy claims, considerations which, among others, will affect the exercise
20 of the trial court's discretion include the purpose of the information sought, the effect that
21 disclosure will have on the parties and on the trial, the nature of the objections urged by the party
22 resisting disclosure, and ability of the court to make an alternative order which may grant partial
23 disclosure, disclosure in another form, or disclosure only in the event that the party seeking the
24 information undertakes certain specified burdens which appear just under the circumstances.'
25 (Alch V. Superior Court (2008) 165 Cal.App.4th 1412, 1425-26 [citations omitted].)
26 Plaintiff has a statutory physician-patient privilege to her medical records. (See Evid. Code
27 §§ 990, 1014.) She also has an "inalienable right of privacy" provided by the Califomia
1
28 Constitution, Article 1 § 1. Here, the language in the subpoena must not include any meidical
MEMORANDUM OF POINTS AND AUTHORITIES
4 of?
1 records referring to any medical conditions not claimed in the lawsuit, which in this case are
2 Plaintiffs disabilifies and emotional distress. As confumed in Hale v. Superior Court (1994) 28
3 Cal.App.4th 1421, 1424, even if part of a medical condition is at issue, it does not follow that the
4 plaintiff waived the privilege as to otherwise-protected aspects of her medical history during her
5 lifetime, or some condition that they may have sufferedfromat the time of her termination which
6 is clearly unrelated to the termination.
7 hi addition, the court inBritt v. Sup. Ct. (1978) 20 Cal.3d 844, 863-64, explained that,
8 "[P]laintiffs are not 'obligated to sacrifice all privacy to seek redress for a specific [physical],
I
9
mental or emotional injury'; while they may not withhold information which relates to any
10
physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled
11
to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have
12
undergone in the past." The burden is on the party seeking the constitutionally protected
13
information to establish direct relevance. Mere speculation that portions of the medical records
14
might be relevant to some substantive issue is not enough. (See also Davis v. Superior
15
Court (1992) 7 Cal.App.4th 1008, 1117, 1120.)
16
Further, while Code of Civil Procedure § 2017.010 allows a party to obtain discovery
17
regarding any matter not privileged so long as the requests are reasonably calculated to lead to the
18 discovery of admissible evidence, the statute does not give counsel the right to engage in improper
19 fishing expeditions. In Greyhound Corp. v. Superior Court (196\) 56 Cal.2d 355, 384-85, the
20 Supreme Court of Califomia stated: |
21 "The method of 'fishing' may be, in a particular case, entirely improper (i.e., insufficient
22 identification of the requested information to acquaint the other party with the nature ol
23 information desired, attempt to place the burden and cost of supplying information equally
24 available to both solely upon the adversary, placing more burden upon the adversary
25 than the value of the information warrants, etc.)"
26 (emphasis added.)
27 Plaintiff agrees that the subpoena should be reasonably limited to records regarding
28 Plaintiffs specific disabilities and/or related treatments, as well as records related to her emotional
MEMORANDUM OF POINTS AND AUTHORITIES
5 of?
1 distress. But to broadly request all records regardless of date in claim no. FKQ0487, including any
2 other records Travelers's witness "may" have which may or may not be directly relevant to
3 Plaintiffs disabilities and emotional disfress in this case, goes beyond what is directly relevant to
4 the case at hand. Indeed, the subpoena language is so broad that it does not limit its request to the
5 knee or hamstring disabilities Plaintiff alleges in her operative complaint, but broadly requests
6 documents in the workers compensation file that may be outside the scope of this case. In short,
7 the proposed subpoena language is not directly relevant to the case at hand and is overbroad as to
8 scope.
9 Defendant cannot use the subpoena power to unearth and uncover every bit of personal and
10 private detail of Plaintiff s medical history. As such, the scope of the proposed subpoena language
11 must be curtailed to not infringe on Plaintiffs rights to privacy.
12 B. Defendant is Subject to Monetary Sanctions for Misuse of the Discovery
13 Process by Providing Meritless Objections and Failing to Meet and Confer in
14 Good Faith. i
15 ! With respect to nonparty deposition subpoenas. Code Civ. Proc. § 1987.2(a) provides in
16 relevant part that "the court may in its discretion award the amoimt of the reasonable expenses
17 incurred in making or opposing the motion, including reasonable attomey's fees, if the court finds
18 the motion was made or opposed in bad faith or without substantial justification or that one or
19 more of the requirements of the subpoena was oppressive."
20 "Before issuing a sanction, a trial court should consider both the conduct being sanctioned
21 and its effect on the party seeking discovery and, in choosing a sanction,| should attempt to tailor
22 the sanction to the harm caused by the withheld discovery." (Do It Urself Moving & Storage, Inc
23 V. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36.) In do so, the Court should keep in
24 mind all discovery abuses, past and present. (Liberty Mut. Fire Ins. Co. v. Lcl Adm 'r^s. Inc. (2009)
25 163 Cal.App.4th 1093, 1106-07 ["the sanctioned party's history as a repeat offender is not only
26 relevant, but also significant,..."].)
27 Defendant should be sanctioned for its refusal to continue the meet and confer process to
28 simply clarify the scope of the subpoena, forcing Plaintiff to file this motion which may well have
MEMORANDUM OF POINTS AND AUTHORITIES
6 of?
1 been unnecessary. Case law makes it clear that the current scope of the subpoena invades Plaintiffs
2 right to privacy and is hence oppressive. In tandem with the sheer level of misuse of the discovery
3 process Defendant has had to engage in, which resulted in Plaintifffilingseven separate sets ol
4 discovery motions seeking sanctions.' it is clear Defendant has no interest in actually resolving
5 discovery disputes in this case, but simply wishes to waste Plaintiffs and this Court's time and
6 resources with otherwise unnecessary motion practice.
7 Given that Plaintiffs counsel has expended considerable hours in researching and drafting
8 the instant motion, as well as Plaintiff incurring costs for courtfiling,monetary sanctions should
9 be issued in the amount of $810.00 (Khos. Decl. Iffl 7-8.)
10 rv. CONCLUSION
11 Given the foregoing. Plaintiff respectfully requests this Court GRANT the instant Motion
12 and ORDER (1) Defendant's subpoena be quashed in its entirety, and (2) Defendant to pay separate
13 monetary sanctions in an amount of $810.00. In the altemative. Plaintiff requests the Court
14 ORDER (1) modification of the scope of the subpoena to only allow disclosure of Plaintiffs
15 medical records as it relates to her disabilities related to the instant vsTongfiil termination suit, as
16 well as emotional distress claims, and (2) Defendant to pay separate monetary sanctions in an
17 amount of $810.00.
18 Dated: August 5, 2022 LIBERTY MAN LAW, P.C
FALAKASSA LAW, P.C.
19
20
By:
21
Arash S. Khosrowshahi
22 Joshua S. Falakassa
Attomeys for Plaintiff Sajida Zaman
23
24
25
26
' (1) Motion to Deem Admitted Requests for Admissions, Set 1; (2) Motion to Compel Form Interrogatories—General
27 Set 2; (3) Motion to Compel Special Interrogatories, Set 3; (4) Motion to Compel Special Interrogatories, Set 4; (5)
Motion to Compel Special Interrogatories, Set 5; (6) Motion to Compel Requests for Production of Documents, Set
28 4; and (?) Motion to Compel Requests for Production of Documents, Set 5.
MEMORANDUM OF POINTS AND AUTHORITIES
?of?
Preview
1JOSHUA S. FALAKASSA (SBN: 295045) FALAKASSA LAW, P.C. FILED/ENDORSED 2 1901 Avenue of the Stars Suite # 450 3 Los Angeles, Califomia 90067 AUG 0 5 2022 Tel.: (818) 456-6168; Fax: (888) 505-0868 4 Email: josh(^falakassalaw.com By: E. Macdonald ( Deputy Cie('< 5 ARASH S. KHOSROWSHAHI (SBN: 293246) 6 LIBERTY MAN LAW, P.C. lOlOFStreet, Ste. 300 7 Sacramento, Califomia 95814 Tel.: (916) 573-0469; Fax: (866) 700-0787 8 Email: ash@libertymanlaw.com 9 Attomeys for Plaintiff, 10 SAJIDAZAMAN 11 SUPERIOR COURT OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 14 SAJIDA ZAMAN, CASE NO.: 34-2019-00252121 RESERVATION ID: 2665224 15 Plaintiff, MEMORANDUM OF POINTS AND vs. AUTHORITIES IN SUPPORT OF 16 MOTION TO QUASH OR MODIFY THE LIQUI-BOX CORPORATION, and DOES 1 SCOPE OF SUBPOENA TO 17 TRAVELERS PROPERTY CASUALTY through 20, inclusive. COMPANY OF AMERICA AND 18 MONETARY SANCTIONS Defendants. 19 Date: October 20, 2022 BY FAX 20 Time: 1:30pm Dept.: 53 21 Trial Date: September 12, 2022 22 I. INTRODUCTION 23 Defendant Liqui-Box Corporation ("Defendant") served a deposition subpoena to 24 Travelers Property Casualty Company of America ("Travelers"), the workers compensation 25 insurance provider who covered Plaintiff Sajida Zaman ("Plaintiff) for her work-related injuries 26 However, the subpoena is overbroad, requesting the entirety of Plaintiffs medical records, 27 including records outside of the scope of the instant wTongful termination suit. 28 MEMORANDUM OF POINTS AND AUTHORITIES 1 of7 1 Plaintiff attempted to meet and confer with Defendant to limit the scope of the subpoena, 2 but Defendant would not make a firm commitment bn the limitations of scope before the fast 3 approaching motion to quash deadline. Plaintiff was forced to file this motion as a result. 4 Plaintiff therefore respectfully requests this Court grant her motion and order monetary 5 sanctions be paid by Defendant. 6 II. STATEMENT OF FACTS 7 A. Plaintiff Sustained Work-Related Injuries and Disabilities to her Knee While 8 on the Job but was Terminated for Allegedly Not Reporting Immediately. 9 Plaintiff alleges in her First Amended Complaint for Damages and Injunctive Reliei 10 ("FAC") filed on January 24, 2020, that she was originally hired as a "Packer" at Defendant's 11 liquid bad manufacturing center in Sacramento in December 2003, and was eventually promoted 12 to "Inspector-Packer" (FAC, ^ 6.) Plaintiffs job duties included packing and inspecting bags^ and 13 other labor-intensive tasks, requiring her to stand for long periods of time and lift/haul heavy loads 14 over 16 years of employment. (Id.) 15 On or about December 3, 2018, Plaintiff suffered pain to her left knee while working for 16 Defendants, and over time her knee stifftiess turned into consistent and considerable pain. (Id., 1 17 7.) Plaintiff first became aware her pain was a work-related knee injury on or about January 3, 18 2019, which was when she reported it to Defendant to seek treatment and begin her worker's 19 compensation claim. (Id.) Defendant's human resources department sent Plaintiff for medical 20 examination to the workers compensation medical provider and monitored the examination 21 without Plaintiffs consent. (Id., ^ 8.) 22 Thereafter, Plaintiff was instructed by Defendant to go home until further notice but was 23 then summoned back for a work meeting on January 10, 2019. (Id., ^ 9.) At the meeting Plaintiffs 24 16 years of employment was terminated because she allegedly "neglected to report [her] injury 25 timely" in violation of Defendant's Critical Safety Behaviors ("CSB") policy, which states in 26 relevant part, "Immediately report all incidents to your supervisor, management team member no 27 matter how minor or without exception," and that "[a]ny violation of these Critical Safety 28 Behaviors will result in immediate termination of employment." (Id.) MEMORANDUM OF POINTS AND AUTHORITIES 2 of? 1 Based on these allegations, Plaintiff alleges she was terminated because of her work-related 2 injuries and disabilities, with the CSB policy used as pretext. (Id., \ 10.) Plaintiff brings causes ol 3 action for (1) Wrongful Termination in Violation of Public Policy; (2) Retaliation in Violation ol 4 Public Policy; (3) Disability Discrimination in Violation of FEHA; (4) Failure to Engage in the .5 Interactive Process in Violation of FEHA; (5) Failure to Provide a Reasonable Accommodation in 6 Violation of FEHA; (6) Intentional Infliction of Emotional Distress; and (7) Unfair Competition 7 Law. (M, 111119-64.) 8 B. Defendant Served an Overbroad Subpoena Asking for the Entirety of 9 Plaintiffs Medical Records. 10 On or about July 21, 2022, counsel for Defendant served a subpoena to Travelers, 11 requesting Plaintiffs medical records in relation to her workers compensation file as follows: 12 "All records, notes, logs, medical records, and all documentation from Workers 13 Compensation Appeals Board for claim FKQ0487 and every such record, including those 14 existing in electronic or magnetic form, in the possession, custody or control of the said 15 witness, and every such record to which the witness may have access. 16 The date rage of records needed is Any and all records." 17 (Declaration of Arash Khosrowshahi in Support ["Khos. Decl."], \ 3; attached as Exhibit A is a 18 tme and correct copy of the Deposition Subpoena for Production of Business Records & Notice to 19 Consumer or Employee and Objection; see Attachment 3 therein [emphasis added].) 20 C. Plaintiff Met and Conferred and Offered as a Compromise to Limit the Scope '21 of the Records, But Defendant Never Agreed Before the Motion Filing 22 Deadline. 23 Upon receipt of the subpoena, counsel for Plaintiff sent a detailed meet and confer lettei 24 on or about July 29, 2022 arguing in sum that the requested records were overbroad and violated 25 Plaintiffs right to privacy in her medical records. (Khos. Decl., \ 4; attached as Exhibit B is a tme 26 and correct copy of the July 29, 2022 meet and confer letter.) Plaintiff offered to limit the scope 27 of the subpoena to encompass the disabilities related to the instant wrongful termination suit, along 28 with her related emotional distress. (Khos. Decl., \ 4; see Exhibit B.) MEMORANDUM OF POINTS AND AUTHORITIES 3 of? 1 On July 29, 2022, counsel for Defendant requested that the records encompass Plaintiffs 2 2013 workers compensation injury, given that Plaintiff placed that injury at issue in her opposition 3 to Defendant's Motion for Summary Judgment. (Khos. Decl., ^ 5; attached as Exhibit C are emails 4 between counselfromJuly 29, 2022 to August 1, 2022.) Counsel for Defendant further claimed 5 that Defendant wanted medical records documenting any other condition that precluded Plaintiff 6 from working, but that if her workers compensation file for a related subpoena referred to unrelated 7 information, he would agree to limit the scope. (Khos. Decl., ^ 5; see Exhibit C.) 8 That same day, Plaintiffs counsel sent a follow-up email asking whether Defendant's 9 counsel proposal regarding the 2013 injury applied only to the Travelers subpoena, or other 10 medical record subpoenas served upon Plaintiff as well. (Khos. Decl., H 6; see Exhibit C.) Not 11 having heard a response, Plaintiffs counsel sent a follow-up email on August 1, 2022. (Khos 12 Decl., II 6; see Exhibit C.) But Defendant did not follow up. (Khos. Decl., H 6.) 13 With the motion to quash deadline fast approaching and without seeking afirmagreement 14 from Defendant's counsel on the scope of the subpoena. Plaintiff is forced to file this motion to 15 safeguard her rights. 16 HI. ARGUMENT 17 A. The Scope of the Subpoena is Not Directly Relevant to Plaintiffs Claims and 18 Invades Her Right to Privacy. 19 "In evaluating privacy claims, considerations which, among others, will affect the exercise 20 of the trial court's discretion include the purpose of the information sought, the effect that 21 disclosure will have on the parties and on the trial, the nature of the objections urged by the party 22 resisting disclosure, and ability of the court to make an alternative order which may grant partial 23 disclosure, disclosure in another form, or disclosure only in the event that the party seeking the 24 information undertakes certain specified burdens which appear just under the circumstances.' 25 (Alch V. Superior Court (2008) 165 Cal.App.4th 1412, 1425-26 [citations omitted].) 26 Plaintiff has a statutory physician-patient privilege to her medical records. (See Evid. Code 27 §§ 990, 1014.) She also has an "inalienable right of privacy" provided by the Califomia 1 28 Constitution, Article 1 § 1. Here, the language in the subpoena must not include any meidical MEMORANDUM OF POINTS AND AUTHORITIES 4 of? 1 records referring to any medical conditions not claimed in the lawsuit, which in this case are 2 Plaintiffs disabilifies and emotional distress. As confumed in Hale v. Superior Court (1994) 28 3 Cal.App.4th 1421, 1424, even if part of a medical condition is at issue, it does not follow that the 4 plaintiff waived the privilege as to otherwise-protected aspects of her medical history during her 5 lifetime, or some condition that they may have sufferedfromat the time of her termination which 6 is clearly unrelated to the termination. 7 hi addition, the court inBritt v. Sup. Ct. (1978) 20 Cal.3d 844, 863-64, explained that, 8 "[P]laintiffs are not 'obligated to sacrifice all privacy to seek redress for a specific [physical], I 9 mental or emotional injury'; while they may not withhold information which relates to any 10 physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled 11 to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have 12 undergone in the past." The burden is on the party seeking the constitutionally protected 13 information to establish direct relevance. Mere speculation that portions of the medical records 14 might be relevant to some substantive issue is not enough. (See also Davis v. Superior 15 Court (1992) 7 Cal.App.4th 1008, 1117, 1120.) 16 Further, while Code of Civil Procedure § 2017.010 allows a party to obtain discovery 17 regarding any matter not privileged so long as the requests are reasonably calculated to lead to the 18 discovery of admissible evidence, the statute does not give counsel the right to engage in improper 19 fishing expeditions. In Greyhound Corp. v. Superior Court (196\) 56 Cal.2d 355, 384-85, the 20 Supreme Court of Califomia stated: | 21 "The method of 'fishing' may be, in a particular case, entirely improper (i.e., insufficient 22 identification of the requested information to acquaint the other party with the nature ol 23 information desired, attempt to place the burden and cost of supplying information equally 24 available to both solely upon the adversary, placing more burden upon the adversary 25 than the value of the information warrants, etc.)" 26 (emphasis added.) 27 Plaintiff agrees that the subpoena should be reasonably limited to records regarding 28 Plaintiffs specific disabilities and/or related treatments, as well as records related to her emotional MEMORANDUM OF POINTS AND AUTHORITIES 5 of? 1 distress. But to broadly request all records regardless of date in claim no. FKQ0487, including any 2 other records Travelers's witness "may" have which may or may not be directly relevant to 3 Plaintiffs disabilities and emotional disfress in this case, goes beyond what is directly relevant to 4 the case at hand. Indeed, the subpoena language is so broad that it does not limit its request to the 5 knee or hamstring disabilities Plaintiff alleges in her operative complaint, but broadly requests 6 documents in the workers compensation file that may be outside the scope of this case. In short, 7 the proposed subpoena language is not directly relevant to the case at hand and is overbroad as to 8 scope. 9 Defendant cannot use the subpoena power to unearth and uncover every bit of personal and 10 private detail of Plaintiff s medical history. As such, the scope of the proposed subpoena language 11 must be curtailed to not infringe on Plaintiffs rights to privacy. 12 B. Defendant is Subject to Monetary Sanctions for Misuse of the Discovery 13 Process by Providing Meritless Objections and Failing to Meet and Confer in 14 Good Faith. i 15 ! With respect to nonparty deposition subpoenas. Code Civ. Proc. § 1987.2(a) provides in 16 relevant part that "the court may in its discretion award the amoimt of the reasonable expenses 17 incurred in making or opposing the motion, including reasonable attomey's fees, if the court finds 18 the motion was made or opposed in bad faith or without substantial justification or that one or 19 more of the requirements of the subpoena was oppressive." 20 "Before issuing a sanction, a trial court should consider both the conduct being sanctioned 21 and its effect on the party seeking discovery and, in choosing a sanction,| should attempt to tailor 22 the sanction to the harm caused by the withheld discovery." (Do It Urself Moving & Storage, Inc 23 V. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36.) In do so, the Court should keep in 24 mind all discovery abuses, past and present. (Liberty Mut. Fire Ins. Co. v. Lcl Adm 'r^s. Inc. (2009) 25 163 Cal.App.4th 1093, 1106-07 ["the sanctioned party's history as a repeat offender is not only 26 relevant, but also significant,..."].) 27 Defendant should be sanctioned for its refusal to continue the meet and confer process to 28 simply clarify the scope of the subpoena, forcing Plaintiff to file this motion which may well have MEMORANDUM OF POINTS AND AUTHORITIES 6 of? 1 been unnecessary. Case law makes it clear that the current scope of the subpoena invades Plaintiffs 2 right to privacy and is hence oppressive. In tandem with the sheer level of misuse of the discovery 3 process Defendant has had to engage in, which resulted in Plaintifffilingseven separate sets ol 4 discovery motions seeking sanctions.' it is clear Defendant has no interest in actually resolving 5 discovery disputes in this case, but simply wishes to waste Plaintiffs and this Court's time and 6 resources with otherwise unnecessary motion practice. 7 Given that Plaintiffs counsel has expended considerable hours in researching and drafting 8 the instant motion, as well as Plaintiff incurring costs for courtfiling,monetary sanctions should 9 be issued in the amount of $810.00 (Khos. Decl. Iffl 7-8.) 10 rv. CONCLUSION 11 Given the foregoing. Plaintiff respectfully requests this Court GRANT the instant Motion 12 and ORDER (1) Defendant's subpoena be quashed in its entirety, and (2) Defendant to pay separate 13 monetary sanctions in an amount of $810.00. In the altemative. Plaintiff requests the Court 14 ORDER (1) modification of the scope of the subpoena to only allow disclosure of Plaintiffs 15 medical records as it relates to her disabilities related to the instant vsTongfiil termination suit, as 16 well as emotional distress claims, and (2) Defendant to pay separate monetary sanctions in an 17 amount of $810.00. 18 Dated: August 5, 2022 LIBERTY MAN LAW, P.C FALAKASSA LAW, P.C. 19 20 By: 21 Arash S. Khosrowshahi 22 Joshua S. Falakassa Attomeys for Plaintiff Sajida Zaman 23 24 25 26 ' (1) Motion to Deem Admitted Requests for Admissions, Set 1; (2) Motion to Compel Form Interrogatories—General 27 Set 2; (3) Motion to Compel Special Interrogatories, Set 3; (4) Motion to Compel Special Interrogatories, Set 4; (5) Motion to Compel Special Interrogatories, Set 5; (6) Motion to Compel Requests for Production of Documents, Set 28 4; and (?) Motion to Compel Requests for Production of Documents, Set 5. MEMORANDUM OF POINTS AND AUTHORITIES ?of?