Preview
1 JOSHUA S. FALAKASSA (SBN: 295045) FlLED/ENOORSEE1
FALAKASSA LAW, P.C.
2 1901 Avenue of the Stars Suite # 450
AUG 0 5 2022
3 Los Angeles, Califomia 90067
Tel.: (818) 456-6168; Fax: (888) 505-0868 By:. E. Macdonald
4 Email: josh@falakassalaw.com Ueputy Clerk
5 ARASH S. KHOSROWSHAHI (SBN: 293246)
6 LIBERTY MAN LAW, P.C.
1010 F Street, 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: 2665216
15 Plaintiff, MEMORANDUM OF POINTS AND
16 vs. AUTHORITIES IN SUPPORT OF
MOTION TO QUASH OR MODIFY THE
17 LIQUI-BOX CORPORATION, and DOES 1 SCOPE OF SUBPOENA TO US
through 20, inclusive, HEALTHWORKS AND MONETARY
18 SANCTIONS"
Defendants. Date: October 20, 2022
19
Time: 1:30pm
20 Dept.: 53 >
Trial Date: September 12, 2022 m
21
I. INTRODUCTION
22 Defendant Liqui-Box Corporation ("Defendant") served a deposition subpoena to US
23 Healthworlcs, a medical provider who evaluated Plaintiff Sajida Zaman ("Plaintiff') for her work
24 related injuries. However, thc'subpoena is overbroad, requesting the entirety of Plaintiff s medical
25 records, including records outside of the scope of the instant wrongfiil termination suit.
26 Plaintiff attempted to meet and confer with Defendant to limit the scope of the subpoena,
27 but Defendant would not make a firm commitment on the limitations of scope before the fast-
28 approaching motion to quash deadline. Plaintiff was forced to file this motion as a result.
MEMORANDUM OF POINTS AND AUTHORITIES
1 of 8
1 Plaintiff therefore respectfully requests this Court grant her motion and order monetary
2 sanctions be paid by Defendant.
3 n. STATEMENT OF FACTS
4 A. Plaintiff Sustained Work-Related Injuries and Disabilities to her Knee While
5 on the Job but was Terminated for Allegedly Not Reporting Immediately.
6 Plaintiff alleges in her First Amended Complaint for Damages and Injunctive Reliei
7 ("FAC") filed on January 24, 2020, that she was originally hired as a "Packer" at Defendant's
8 liquid bad manufacturing center in Sacramento in December 2003, and was eventually promoted
9 to "Inspector-Packer" (FAC, ^ 6.) Plaintiff s job duties included packing and inspecting bags and
10 other labor-intensive tasks, requiring her to stand for long periods of time and lift/haul heavy loads
11 over 16 years of employment. (Id.)
12 On or about December 3, 2018, Plaintiff suffered pain to her left knee while working for
13 Defendants, and over time her knee stifftiess turned into consistent and considerable pain. (Id., 1
14 7.) Plaintiff first became aware her pain was a work-related Icnee injury on or about January 3
15 2019, which was when she reported it to Defendant to seek treatment and begin her worker's
16 compensation claim. (Id.) Defendant's human resources department sent Plaintiff for medical
17 examination to the workers compensation medical provider and monitored the examination
18 without Plaintiffs consent. (Id., H 8.)
19 Thereafter, Plaintiff was instructed by Defendant to go home imtil further notice but was
20 then summoned back for a work meeting on January 10, 2019. (Id., ^ 9.) At the meeting Plaintiffs
21 16 years of employment was terminated because she allegedly "neglected to report [her] injury
22 timely" in violation of Defendant's Critical Safety Behaviors ("CSB") policy, which states in
23 relevant part, "Immediately report all incidents to your supervisor, management team member no
24 matter how minor or without exception," and that "[a]ny violation of these Critical Safety
25 Behaviors will result in immediate termination of employment." (Id.)
26 Based on these allegations. Plaintiff alleges she was terminated because of her work-related
27 injuries and disabilities, with the CSB policy used as pretext. (Id., ^ 10.) Plaintiff brings causes of
28 action for (1) Wrongful Termination in Violation of Public Policy; (2) Retaliation in Violation of
MEMORANDUM OF POINTS AND AUTHORITIES
2 of 8
1 Public Policy; (3) Disability Discrimination in Violation of FEHA; (4) Failure to Engage in the
2 Interactive Process in Violation of FEHA; (5) Failure to Provide a Reasonable Accommodation in
3 Violation of FEHA; (6) Intentional Infliction of Emotional Distress; and (7) Unfair Competition
4 Law. (Id., t l 19-64.)
5 B. Defendant Served an Overbroad Subpoena Asking for the Entirety ol
6 Plaintiffs Medical Records.
7 On or about July 21, 2022, counsel for Defendant served a subpoena to US HealthWorks,
8 requesting the entirety of Plaintiff s medical records as follows:
9 "Complete medical records from the first date of treatment to the present, including
10 but not limited to any records/documents that may be stored digitally and/or electronically
11 TeleHealth Records and any recordings, documents, correspondence, correspondence from
12 the patient or patient's attomey, patient intake forms, copies of health insurance cards and
13 photo ID'S, medical reports, doctor's entries, nurse's notes, medication administration
14 records, office notes, progress reports, cardiology reports, radiology reports, x-ray reports
15 MRI reports, CT reports, myelogram reports, lab reports, pathology reports, monitor strips
16 physical therapy records, occupational therapy records, case history, emergency records,
17 outpatient records, diagnosis and prognosis documentation, admit and discharge records
18 notation(s) on any file folder. All emails between physicians and the patient regarding
19 physical complaints, symptoms, and treatment, including secure messages. And every such
20 record, including those existing in electronic or magnetic form, in the possession, custody
21 or control of the said witness, and every such record to which the witness may have access
22 The date rage of records needed is Any and all records."
23 (Declaration of Arash Khosrowshalii in Support ["Khos. Decl."], ^ 3; attached as Exhibit A is a
24 true and correct copy of the Deposition Subpoena for Production of Business Records & Notice to
25 Consumer or Employee and Objection; see Attachment 3 therein [emphasis added].)
26 ///
27 ///
28 ///
MEMORANDUM OF POINTS AND AUTHORITIES
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1 C. Plaintiff Met and Conferred and Offered as a Compromise to Limit the Scope
2 of the Medical Records, But Defendant Never Agreed Before the Motion Filing
3 Deadline.
4 Upon receipt of the subpoena, coimsel for Plaintiff sent a detailed meet and confer lettei
5 on or about July 28, 2022 arguing in sum that the requested records were overbroad and violated
6 Plaintiffsrightto privacy in her medical records. (Khos. Decl., ^ 4; attached as Exhibit B is a true
7 and correct copy of the July 28, 2022 meet and confer letter.) Plaintiff offered to limit the scope
8 of the subpoena to encompass the disabilities related to the instant wrongfiil termination suit, along
9 with her related emotional distress. (Khos. Decl., ^ 4; see Exhibit B.)
10 On July 29, 2022, counsel for Defendant requested that the records encompass Plaintiffs
11 2013 workers compensation injury, given that Plaintiff placed that injury at issue in her opposition
12 to Defendant's Motion for Summary Judgment. (Khos. Decl., ^ 5; attached as Exhibit C are emails
13 between counsel from July 29, 2022 to August 1, 2022.) Counsel for Defendant further claimed
14 that Defendant wanted medical records documenting any other condition that precluded Plaintiff
15 from working, but that if her workers compensation file for a related subpoena referred to unrelated
16 information, he would agree to limit the scope. (Khos. Decl., 15; see Exhibit C.)
17 That same day. Plaintiffs counsel sent a follow-up email asking whether Defendant's
18 coimsel proposal regarding the 2013 injury applied only to the related subpoena, or the medical
19 records subpoena to US HealthWorks and other medical record subpoenas as well. (Khos. Decl.
20 K 6; see Exhibit C.) Not having heard a response. Plaintiffs counsel sent a follow-up email on
21 August 1, 2022. (Khos. Decl., ^ 6; see Exhibit C.) But Defendant did not follow up. (Khos. Decl.,
22 16.)
23 With the motion to quash deadline fast approaching and without seeking afirmagreement
24 from Defendant's counsel on the scope of the subpoena. Plaintiff is forced to file this motion to
25 safeguard her rights.
26 ///
27 ///
28 ///
MEMORANDUM OF POINTS AND AUTHORITIES
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1 III. ARGUMENT
2 A. The Scope of the Subpoena is Not Directly Relevant to Plaintiffs Claims and
3 Invades Her Right to Privacy.
4 "In evaluating privacy claims, considerations which, among others, will affect the exercise
5 of the trial court's discretion include the purpose of the information sought, the effect that
6 disclosure will have on the parties and on the trial, the nature of the objections urged by the party
7 resisting disclosure, and ability of the court to make an altemative order which may grant partial
8 disclosure, disclosure in another form, or disclosure only in the event that the party seeking the
9 information undertakes certain specified burdens which appear just under the circumstances.'
10 (Alch V. Superior Court (2008) 165 Cal.App.4th 1412, 1425-26 [citations omitted].)
11 Plaintiff has a statutory physician-patient privilege to her medical records. (See Evid. Code
12 §§ 990, 1014.) She also has an "inalienable right of privacy" provided by the Califomia
13 Constitution, Article 1 § 1. Here, the language in the subpoena must not include any medica!
14 records referring to any medical conditions not claimed in the lawsuit, which in this case are
15 Plaintiffs disabilities and emotional distress. As confirmed in Hale v. Superior Court (1994) 28
16 Cal.App.4th 1421, 1424, even if part of a medical condition is at issue, it does not follow that the
17 plaintiff waived the privilege as to otherwise-protected aspects of her medical history during her
18 lifetime, or some condition that they may have suffered from at the time of her termination which
19 is clearly unrelated to the termination.
20 In addition, the court inBritt v. Sup. Ct (1978) 20 Cal.3d 844, 863-64, explained that,
21 "[P]laintiffs are not 'obligated to sacrifice all privacy to seek redress for a specific [physical],
22 mental or emotional injury'; while they may not withhold information which relates to any
23 physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled
24 to retain the confidentiality of all imrelated medical or psychotherapeutic treatment they may have
25 undergone in the past." The burden is on the party seeking the constitutionally protected
26 information to establish direct relevance. Mere speculation that portions of the medical records
27 might be relevant to some substantive issue is not enough. (See also Davis v. Superior
28 Court (1992) 7 Cal.App.4th 1008, 1117, 1120.)
MEMORANDUM OF POINTS AND AUTHORITIES
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1 Further, while Code of Civil Procedure § 2017.010 allows a party to obtain discovery
2 regarding any matter not privileged so long as the requests are reasonably calculated to lead to the
3 discovery of admissible evidence, the statute does not give coimsel the right to engage in improper
4 fishing expeditions. \n Greyhound Corp. v. Superior Court (\96l) 56 Cal.2d 355, 384-85, the
5 Supreme Court of Califomia stated:
6 "The method of 'fishing' may be, in a particular case, entirely improper (i.e., insufficient
7 identification of the requested information to acquaint the other party with the nature oi
8 information desired, attempt to place the burden and cost of supplying information equally
9 available to both solely upon the adversary, placing more burden upon the adversary
10 than the value of the information warrants, etc.)"
11 (emphasis added.)
12 Plaintiff agrees that the subpoena should be reasonably limited to records regarding
13 Plaintiffs specific disabilities and/or related treatments, as well as records related to her emotional
14 distress. But to broadly request "Any and all records" and "Complete medical records from the
15 first date of treatment to the present" goes beyond what is directly relevant to the case at hand
16 Indeed, the subpoena language is so broad that it does not limit its request to the knee or hamstring
17 disabilities Plaintiff alleges in her operative complaint, but broadly requests documents related to
18 any disability or medical condition whatsoever, and incidental documents such as what
19 communications healthcare providers have had with Plaintiff regarding her records outside the
20 scope of this case. In short, the proposed subpoena language is not directly relevant to the case at
21 hand and is overbroad as to scope.
22 Defendant caimot use the subpoena power to unearth and uncover every bit of personal and
23 private detail of Plaintiff s medical history. As such, the scope of the proposed subpoena language
24 must be curtailed to not infiinge on Plaintiffsrightsto privacy.
25 ///
26 ///
27 ///
28 ///
MEMORANDUM OF POINTS AND AUTHORITIES
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1 B. Defendant is Subject to Monetary Sanctions for Misuse of the Discovery
2 Process bv Providing Meritless Objections and Failing to Meet and Confer in
3 Good Faith.
4 With respect to nonparty deposition subpoenas. Code Civ. Proc. § 1987.2(a) provides in
5 relevant part that "the court may in its discretion award the amount of the reasonable expenses
6 incurred in making or opposing the motion, including reasonable attomey's fees, if the court finds
7 the motion was made or opposed in bad faith or without substantial justification or that one oi
8 more of the requirements of the subpoena was oppressive."
9 "Before issuing a sanction, a trial court should consider both the conduct being sanctioned
10 and its effect on the party seeking discovery and, in choosing a sanction, should attempt to tailoi
11 the sanction to the harm caused by the withheld discovery." (Do It Urself Moving & Storage, Inc
12 V. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36.) In do so, the Court should keep in
13 mind all discovery abuses, past and present. (Liberty Mut. Fire Ins. Co. v. Lcl Adm 'rs. Inc. (2009)
14 163 Cal.App.4th 1093, 1106-07 ["the sanctioned party's history as a repeat offender is not only
15 relevant, but also significant,. . ."].)
16 Defendant should be sanctioned for its refusal to continue the meet and confer process to
17 simply clarify the scope of the subpoena, forcing Plaintiff to file this motion which may well have
18 been unnecessary. Case law makes it clear that the current scope of the subpoena invades Plaintiffs
19 right to privacy and is hence oppressive. In tandem with the sheer level of misuse of the discovery
20 process Defendant has had to engage in, which resulted in Plaintifffilingseven separate sets ol
21 discovery motions seeking sanctions, it is clear Defendant has no interest in actually resolving
22 discovery disputes in this case, but simply wishes to waste Plaintiffs and this Court's time and
23 resources with otherwise unnecessary motion practice.
24
25
26
27 ' (1) Motion to Deem Admitted Requests for Admissions, Set I ; (2) Motion to Compel Form Interrogatories—General,
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 (7) Motion to Compel Requests for Production of Documents, Set 5.
MEMORANDUM OF POINTS AND AUTHORITIES
7 of 8
1 Given that Plaintiffs counsel has expended considerable hours in researching and drafting
2 the instant motion, as well as Plaintiff incurring costs for courtfiling,monetary sanctions should
3 be issued in the amount of $810.00. (Khos. Decl. m 7-8.)
4 C. CONCLUSION
5 Given the foregoing. Plaintiff respectfully requests this Court GRANT the instant Motion
6 and ORDER (1) Defendant's subpoena be quashed in its entirety, and (2) Defendant to pay separate
7 monetary sanctions in an amount of $810.00. In the altemative. Plaintiff requests the Court
8 ORDER (1) modification of the scope of the subpoena to only allow disclosure of Plaintiffs
9 medical records as it relates to her disabilities related to the instant wrongful termination suit, as
10 well as emotional distress claims, and (2) Defendant to pay separate monetary sanctions in an
11 amount of $810.00.
12 Dated: August 5, 2022 LIBERTY MAN LAW, P.C.
13 FALAKASSA LAW, P.C.
14
15 By:
Arash S. Khosrowshahi
16 Joshua S. Falakassa
Attomeys for Plaintiff Sajida Zaman
17
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MEMORANDUM OF POINTS AND AUTHORITIES
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Preview
1 JOSHUA S. FALAKASSA (SBN: 295045) FlLED/ENOORSEE1 FALAKASSA LAW, P.C. 2 1901 Avenue of the Stars Suite # 450 AUG 0 5 2022 3 Los Angeles, Califomia 90067 Tel.: (818) 456-6168; Fax: (888) 505-0868 By:. E. Macdonald 4 Email: josh@falakassalaw.com Ueputy Clerk 5 ARASH S. KHOSROWSHAHI (SBN: 293246) 6 LIBERTY MAN LAW, P.C. 1010 F Street, 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: 2665216 15 Plaintiff, MEMORANDUM OF POINTS AND 16 vs. AUTHORITIES IN SUPPORT OF MOTION TO QUASH OR MODIFY THE 17 LIQUI-BOX CORPORATION, and DOES 1 SCOPE OF SUBPOENA TO US through 20, inclusive, HEALTHWORKS AND MONETARY 18 SANCTIONS" Defendants. Date: October 20, 2022 19 Time: 1:30pm 20 Dept.: 53 > Trial Date: September 12, 2022 m 21 I. INTRODUCTION 22 Defendant Liqui-Box Corporation ("Defendant") served a deposition subpoena to US 23 Healthworlcs, a medical provider who evaluated Plaintiff Sajida Zaman ("Plaintiff') for her work 24 related injuries. However, thc'subpoena is overbroad, requesting the entirety of Plaintiff s medical 25 records, including records outside of the scope of the instant wrongfiil termination suit. 26 Plaintiff attempted to meet and confer with Defendant to limit the scope of the subpoena, 27 but Defendant would not make a firm commitment on the limitations of scope before the fast- 28 approaching motion to quash deadline. Plaintiff was forced to file this motion as a result. MEMORANDUM OF POINTS AND AUTHORITIES 1 of 8 1 Plaintiff therefore respectfully requests this Court grant her motion and order monetary 2 sanctions be paid by Defendant. 3 n. STATEMENT OF FACTS 4 A. Plaintiff Sustained Work-Related Injuries and Disabilities to her Knee While 5 on the Job but was Terminated for Allegedly Not Reporting Immediately. 6 Plaintiff alleges in her First Amended Complaint for Damages and Injunctive Reliei 7 ("FAC") filed on January 24, 2020, that she was originally hired as a "Packer" at Defendant's 8 liquid bad manufacturing center in Sacramento in December 2003, and was eventually promoted 9 to "Inspector-Packer" (FAC, ^ 6.) Plaintiff s job duties included packing and inspecting bags and 10 other labor-intensive tasks, requiring her to stand for long periods of time and lift/haul heavy loads 11 over 16 years of employment. (Id.) 12 On or about December 3, 2018, Plaintiff suffered pain to her left knee while working for 13 Defendants, and over time her knee stifftiess turned into consistent and considerable pain. (Id., 1 14 7.) Plaintiff first became aware her pain was a work-related Icnee injury on or about January 3 15 2019, which was when she reported it to Defendant to seek treatment and begin her worker's 16 compensation claim. (Id.) Defendant's human resources department sent Plaintiff for medical 17 examination to the workers compensation medical provider and monitored the examination 18 without Plaintiffs consent. (Id., H 8.) 19 Thereafter, Plaintiff was instructed by Defendant to go home imtil further notice but was 20 then summoned back for a work meeting on January 10, 2019. (Id., ^ 9.) At the meeting Plaintiffs 21 16 years of employment was terminated because she allegedly "neglected to report [her] injury 22 timely" in violation of Defendant's Critical Safety Behaviors ("CSB") policy, which states in 23 relevant part, "Immediately report all incidents to your supervisor, management team member no 24 matter how minor or without exception," and that "[a]ny violation of these Critical Safety 25 Behaviors will result in immediate termination of employment." (Id.) 26 Based on these allegations. Plaintiff alleges she was terminated because of her work-related 27 injuries and disabilities, with the CSB policy used as pretext. (Id., ^ 10.) Plaintiff brings causes of 28 action for (1) Wrongful Termination in Violation of Public Policy; (2) Retaliation in Violation of MEMORANDUM OF POINTS AND AUTHORITIES 2 of 8 1 Public Policy; (3) Disability Discrimination in Violation of FEHA; (4) Failure to Engage in the 2 Interactive Process in Violation of FEHA; (5) Failure to Provide a Reasonable Accommodation in 3 Violation of FEHA; (6) Intentional Infliction of Emotional Distress; and (7) Unfair Competition 4 Law. (Id., t l 19-64.) 5 B. Defendant Served an Overbroad Subpoena Asking for the Entirety ol 6 Plaintiffs Medical Records. 7 On or about July 21, 2022, counsel for Defendant served a subpoena to US HealthWorks, 8 requesting the entirety of Plaintiff s medical records as follows: 9 "Complete medical records from the first date of treatment to the present, including 10 but not limited to any records/documents that may be stored digitally and/or electronically 11 TeleHealth Records and any recordings, documents, correspondence, correspondence from 12 the patient or patient's attomey, patient intake forms, copies of health insurance cards and 13 photo ID'S, medical reports, doctor's entries, nurse's notes, medication administration 14 records, office notes, progress reports, cardiology reports, radiology reports, x-ray reports 15 MRI reports, CT reports, myelogram reports, lab reports, pathology reports, monitor strips 16 physical therapy records, occupational therapy records, case history, emergency records, 17 outpatient records, diagnosis and prognosis documentation, admit and discharge records 18 notation(s) on any file folder. All emails between physicians and the patient regarding 19 physical complaints, symptoms, and treatment, including secure messages. And every such 20 record, including those existing in electronic or magnetic form, in the possession, custody 21 or control of the said witness, and every such record to which the witness may have access 22 The date rage of records needed is Any and all records." 23 (Declaration of Arash Khosrowshalii in Support ["Khos. Decl."], ^ 3; attached as Exhibit A is a 24 true and correct copy of the Deposition Subpoena for Production of Business Records & Notice to 25 Consumer or Employee and Objection; see Attachment 3 therein [emphasis added].) 26 /// 27 /// 28 /// MEMORANDUM OF POINTS AND AUTHORITIES 3 of 8 1 C. Plaintiff Met and Conferred and Offered as a Compromise to Limit the Scope 2 of the Medical Records, But Defendant Never Agreed Before the Motion Filing 3 Deadline. 4 Upon receipt of the subpoena, coimsel for Plaintiff sent a detailed meet and confer lettei 5 on or about July 28, 2022 arguing in sum that the requested records were overbroad and violated 6 Plaintiffsrightto privacy in her medical records. (Khos. Decl., ^ 4; attached as Exhibit B is a true 7 and correct copy of the July 28, 2022 meet and confer letter.) Plaintiff offered to limit the scope 8 of the subpoena to encompass the disabilities related to the instant wrongfiil termination suit, along 9 with her related emotional distress. (Khos. Decl., ^ 4; see Exhibit B.) 10 On July 29, 2022, counsel for Defendant requested that the records encompass Plaintiffs 11 2013 workers compensation injury, given that Plaintiff placed that injury at issue in her opposition 12 to Defendant's Motion for Summary Judgment. (Khos. Decl., ^ 5; attached as Exhibit C are emails 13 between counsel from July 29, 2022 to August 1, 2022.) Counsel for Defendant further claimed 14 that Defendant wanted medical records documenting any other condition that precluded Plaintiff 15 from working, but that if her workers compensation file for a related subpoena referred to unrelated 16 information, he would agree to limit the scope. (Khos. Decl., 15; see Exhibit C.) 17 That same day. Plaintiffs counsel sent a follow-up email asking whether Defendant's 18 coimsel proposal regarding the 2013 injury applied only to the related subpoena, or the medical 19 records subpoena to US HealthWorks and other medical record subpoenas as well. (Khos. Decl. 20 K 6; see Exhibit C.) Not having heard a response. Plaintiffs counsel sent a follow-up email on 21 August 1, 2022. (Khos. Decl., ^ 6; see Exhibit C.) But Defendant did not follow up. (Khos. Decl., 22 16.) 23 With the motion to quash deadline fast approaching and without seeking afirmagreement 24 from Defendant's counsel on the scope of the subpoena. Plaintiff is forced to file this motion to 25 safeguard her rights. 26 /// 27 /// 28 /// MEMORANDUM OF POINTS AND AUTHORITIES 4 of 8 1 III. ARGUMENT 2 A. The Scope of the Subpoena is Not Directly Relevant to Plaintiffs Claims and 3 Invades Her Right to Privacy. 4 "In evaluating privacy claims, considerations which, among others, will affect the exercise 5 of the trial court's discretion include the purpose of the information sought, the effect that 6 disclosure will have on the parties and on the trial, the nature of the objections urged by the party 7 resisting disclosure, and ability of the court to make an altemative order which may grant partial 8 disclosure, disclosure in another form, or disclosure only in the event that the party seeking the 9 information undertakes certain specified burdens which appear just under the circumstances.' 10 (Alch V. Superior Court (2008) 165 Cal.App.4th 1412, 1425-26 [citations omitted].) 11 Plaintiff has a statutory physician-patient privilege to her medical records. (See Evid. Code 12 §§ 990, 1014.) She also has an "inalienable right of privacy" provided by the Califomia 13 Constitution, Article 1 § 1. Here, the language in the subpoena must not include any medica! 14 records referring to any medical conditions not claimed in the lawsuit, which in this case are 15 Plaintiffs disabilities and emotional distress. As confirmed in Hale v. Superior Court (1994) 28 16 Cal.App.4th 1421, 1424, even if part of a medical condition is at issue, it does not follow that the 17 plaintiff waived the privilege as to otherwise-protected aspects of her medical history during her 18 lifetime, or some condition that they may have suffered from at the time of her termination which 19 is clearly unrelated to the termination. 20 In addition, the court inBritt v. Sup. Ct (1978) 20 Cal.3d 844, 863-64, explained that, 21 "[P]laintiffs are not 'obligated to sacrifice all privacy to seek redress for a specific [physical], 22 mental or emotional injury'; while they may not withhold information which relates to any 23 physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled 24 to retain the confidentiality of all imrelated medical or psychotherapeutic treatment they may have 25 undergone in the past." The burden is on the party seeking the constitutionally protected 26 information to establish direct relevance. Mere speculation that portions of the medical records 27 might be relevant to some substantive issue is not enough. (See also Davis v. Superior 28 Court (1992) 7 Cal.App.4th 1008, 1117, 1120.) MEMORANDUM OF POINTS AND AUTHORITIES 5 of 8 1 Further, while Code of Civil Procedure § 2017.010 allows a party to obtain discovery 2 regarding any matter not privileged so long as the requests are reasonably calculated to lead to the 3 discovery of admissible evidence, the statute does not give coimsel the right to engage in improper 4 fishing expeditions. \n Greyhound Corp. v. Superior Court (\96l) 56 Cal.2d 355, 384-85, the 5 Supreme Court of Califomia stated: 6 "The method of 'fishing' may be, in a particular case, entirely improper (i.e., insufficient 7 identification of the requested information to acquaint the other party with the nature oi 8 information desired, attempt to place the burden and cost of supplying information equally 9 available to both solely upon the adversary, placing more burden upon the adversary 10 than the value of the information warrants, etc.)" 11 (emphasis added.) 12 Plaintiff agrees that the subpoena should be reasonably limited to records regarding 13 Plaintiffs specific disabilities and/or related treatments, as well as records related to her emotional 14 distress. But to broadly request "Any and all records" and "Complete medical records from the 15 first date of treatment to the present" goes beyond what is directly relevant to the case at hand 16 Indeed, the subpoena language is so broad that it does not limit its request to the knee or hamstring 17 disabilities Plaintiff alleges in her operative complaint, but broadly requests documents related to 18 any disability or medical condition whatsoever, and incidental documents such as what 19 communications healthcare providers have had with Plaintiff regarding her records outside the 20 scope of this case. In short, the proposed subpoena language is not directly relevant to the case at 21 hand and is overbroad as to scope. 22 Defendant caimot use the subpoena power to unearth and uncover every bit of personal and 23 private detail of Plaintiff s medical history. As such, the scope of the proposed subpoena language 24 must be curtailed to not infiinge on Plaintiffsrightsto privacy. 25 /// 26 /// 27 /// 28 /// MEMORANDUM OF POINTS AND AUTHORITIES 6 of 8 1 B. Defendant is Subject to Monetary Sanctions for Misuse of the Discovery 2 Process bv Providing Meritless Objections and Failing to Meet and Confer in 3 Good Faith. 4 With respect to nonparty deposition subpoenas. Code Civ. Proc. § 1987.2(a) provides in 5 relevant part that "the court may in its discretion award the amount of the reasonable expenses 6 incurred in making or opposing the motion, including reasonable attomey's fees, if the court finds 7 the motion was made or opposed in bad faith or without substantial justification or that one oi 8 more of the requirements of the subpoena was oppressive." 9 "Before issuing a sanction, a trial court should consider both the conduct being sanctioned 10 and its effect on the party seeking discovery and, in choosing a sanction, should attempt to tailoi 11 the sanction to the harm caused by the withheld discovery." (Do It Urself Moving & Storage, Inc 12 V. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36.) In do so, the Court should keep in 13 mind all discovery abuses, past and present. (Liberty Mut. Fire Ins. Co. v. Lcl Adm 'rs. Inc. (2009) 14 163 Cal.App.4th 1093, 1106-07 ["the sanctioned party's history as a repeat offender is not only 15 relevant, but also significant,. . ."].) 16 Defendant should be sanctioned for its refusal to continue the meet and confer process to 17 simply clarify the scope of the subpoena, forcing Plaintiff to file this motion which may well have 18 been unnecessary. Case law makes it clear that the current scope of the subpoena invades Plaintiffs 19 right to privacy and is hence oppressive. In tandem with the sheer level of misuse of the discovery 20 process Defendant has had to engage in, which resulted in Plaintifffilingseven separate sets ol 21 discovery motions seeking sanctions, it is clear Defendant has no interest in actually resolving 22 discovery disputes in this case, but simply wishes to waste Plaintiffs and this Court's time and 23 resources with otherwise unnecessary motion practice. 24 25 26 27 ' (1) Motion to Deem Admitted Requests for Admissions, Set I ; (2) Motion to Compel Form Interrogatories—General, 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 (7) Motion to Compel Requests for Production of Documents, Set 5. MEMORANDUM OF POINTS AND AUTHORITIES 7 of 8 1 Given that Plaintiffs counsel has expended considerable hours in researching and drafting 2 the instant motion, as well as Plaintiff incurring costs for courtfiling,monetary sanctions should 3 be issued in the amount of $810.00. (Khos. Decl. m 7-8.) 4 C. CONCLUSION 5 Given the foregoing. Plaintiff respectfully requests this Court GRANT the instant Motion 6 and ORDER (1) Defendant's subpoena be quashed in its entirety, and (2) Defendant to pay separate 7 monetary sanctions in an amount of $810.00. In the altemative. Plaintiff requests the Court 8 ORDER (1) modification of the scope of the subpoena to only allow disclosure of Plaintiffs 9 medical records as it relates to her disabilities related to the instant wrongful termination suit, as 10 well as emotional distress claims, and (2) Defendant to pay separate monetary sanctions in an 11 amount of $810.00. 12 Dated: August 5, 2022 LIBERTY MAN LAW, P.C. 13 FALAKASSA LAW, P.C. 14 15 By: Arash S. Khosrowshahi 16 Joshua S. Falakassa Attomeys for Plaintiff Sajida Zaman 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 8 of 8