Preview
1 Robert L. Reisinger, Esq., Bar No. 156474
2 Christiana S. Carter, Esq., Bar No. 317521
Theresa T. Nguyen, Esq., Bar No. 342896
3 FORD, WALKER, HAGGERTY & BEHAR
One World Trade Center
4 Twenty-Seventh Floor
Long Beach, California 90831-2700
5
(562) 983-2500
6 rlr_service@fwhb.com
Attorneys for Defendants,
7 BRYAN PAUL CHARETTE and ALLISON CHARETTE
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SANTA BARBARA
10
11 ADELITA MARTINEZ, DEBORAH ) Case No. 20CV01703
12 MARTINEZ, GUILLERMINA SAHAGUN )
MAYRA SANDOVAL, and ALDRED ) Hon. Timothy J. Staffel
13 MARTINEZ, ) DEPT. 3
)
14 Plaintiffs, ) SEPARATE STATEMENT IN SUPPORT OF
15 ) OPPOSITION TO DEFENDANT YARDI
vs. ) SYSTEMS, INC.’S MOTION TO COMPEL
16 ) PRODUCTION OF DOCUMENTS FROM
BRYAN PAUL CHARETTE, an individual; ) DEFENDANT BRYAN PAUL CHARETTE
17 YARDI SYSTEMS, INC., a Corporation; )
ALLISION CHARETTE, an individual; and ) [Filed concurrently with Opposition]
18
DOES 1 through 50, Inclusive, )
19 ) DATE: October 18, 2023
Defendants. ) TIME: 1:30 p.m.
20 ) DEPT: 3
)
21
)
22 ) Complaint Filed: April 16, 2020
) Trial Date: May 13, 2024
23 )
24 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
25 PLEASE TAKE NOTICE that Defendants BRYAN PAUL CHARETTE (“Defendant”) and
26 ALLISON CHARETTE (collectively, “Defendants”) submit the separate statement in support of their
27 opposition to Defendant YARDI SYSTEMS, INC.’s (“YARDI”) motion to compel the production of
28 documents from Defendant BRYAN PAUL CHARETTE (“Motion”).
1
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 SEPARATE STATEMENT
2 REQUEST FOR PRODUCTION NO. 54:
3 All DOCUMENTS reflecting YOUR completion of any substance-abuse rehabilitation program
4 YOU attended between the time of time INCIDENT and today.
5 INITIAL RESPONSE TO REQUEST FOR PRODUCTION NO. 54:
6 Responding party objects to this Request to the extent that it seeks information that is not
7 relevant to the subject matter of this litigation, and it is not reasonably calculated to lead to the discovery
8 of admissible evidence. Responding party further objects to this Request to the extent it seeks private
9 information, the disclosure of which would constitute an unwarranted invasion of the affected
10 individuals’ constitutional, statutory and/or common law rights to personal privacy and confidentiality.
11 Responding party further objects to this Request on the grounds that it would result in “unwarranted
12 annoyance, embarrassment, or oppression, or undue burden and expense,” and thus constitute a misuse
13 of the discovery process. See Code of Civil Procedure § 2023.10(c); see also §2030.090(b); see also
14 West Pico Furniture Co. of Los Angeles v. Sup. Ct. (Pacific Finance Loans) (1961) 56 Cal.2d 407.
15 PLAINTIFFS’ REASONS TO COMPEL FURTHER RESPONSE TO REQUEST NO. 54:
16 Information is considered relevant if it might reasonably assist a party in evaluating the case,
17 preparing for trial, or facilitating settlement thereof. Stewart v. Colonial Western Agency, 87 Cal. App.
18 4th 1006, 1013 (2001); Lipton v. Superior Court, 48 Cal. App. 4th 1599, 1611 (1996); Gonzalez v.
19 Superior Court, 33 Cal. App. 4th 1539, 1546 (1995). It is also well-settled that doubts as to the
20 relevance of discovery sought should generally be resolved in favor of permitting discovery. Williams v.
21 Superior Court (Marshalls of CA, LLC), 3 Cal. 5th 531, 542 (2017). Yardi is seeking information from
22 Charette that is related to his history of substance abuse and potential consumption of substances that
23 were not provided to him at the company picnic or by anyone with a connection to Yardi. This
24 information will certainly assist Yardi and the Court in evaluating whether Charette was acting within
25 the scope of employment at the time of the accident.
26 Furthermore, Charette’s privacy regarding these matters must be weighed against Yardi’s interest
27 in fully investigating and defending the case that has been brought against it. Indeed, courts must
28 balance the right of civil litigants to discover relevant facts against the privacy interests of persons
2
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 subject to discovery. Vinson v. Superior Ct., 43 Cal. 3d 833, 835 (1987). “If an obvious invasion of
2 interest fundamental to personal autonomy is involved, then the compelling interest test applies. If the
3 invasion is less central, or is in bona fide dispute, then a general balancing test applies.” Dept. of Fair
4 Employment & Housing v. Superior Court, 99 Cal. App. 4th 896, 903 (2002). If Yardi is unable to fully
5 evaluate the claims in this case, it would be prejudiced at trial as a result. See Greyhound Corp. v.
6 Superior Court, 56 Cal. 2d 355, 377 (1961) (“a lawsuit should be an intensive search for the truth, not a
7 game to be determined in outcome by considerations of tactic and surprise”).
8 Given the nature of this case, Charette simply does not have a reasonable expectation that
9 information related to his substance abuse history remains private. Charette pleaded guilty to a felony
10 DUI for the fatal accident that is the subject of this lawsuit—a fact that directly places Charette’s alcohol
11 consumption at issue in this case. Furthermore, Charette testified under oath during his deposition that
12 he has attended at least three separate substance abuse programs since the accident—including at least
13 one court-ordered program. Records related to these programs may indicate whether Charette was being
14 truthful regarding when and where he consumed alcohol on the day of the incident. Charette placed
15 these matters into dispute when he decided to drive under the influence of alcohol on the day of the
16 incident. As such, Yardi will be extremely prejudiced if it is not given the full opportunity to defend
17 claims against it by examining Charette’s history of alcohol abuse.
18 DEFENDANTS’ REASONS WHY NO FURTHER RESPONSE IS REQUIRED:
19 A party does not waive the right to privacy by participating in a lawsuit. (Cal. Const. Art. I § 1;
20 Britt v. Superior Court (1978) 20 Cal.3d 844, 857.) Privacy is within the “penumbras” of the Bill of
21 Rights. (Griswold v. Connecticut (1965) 381 U.S. 479.) The Legislature even broadened the protections
22 against disclosure with the passage of the Right to Financial Privacy Act (Gov. Code § 7460), the
23 Insurance Information and Right to Privacy Act (Ins. Code § 791), the Health Insurance Portability and
24 Accountability Act of 1966 (“HIPAA”) (42 U.S.C. § 1320d), and California’s Confidentiality of
25 Medical Information Act (“CMIA”) (Cal. Civ. Code § 56.10.)
26 In Britt v. Superior Court (1978) 20 Cal.3d 844, the California Supreme Court found that a
27 privacy right was guaranteed in both the California Constitution and the United States Constitution. The
28 Court also stated that such privacy rights were not waived by simply participating in litigation. (Id. at
3
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 857.) The party must first establish that the records sought are directly relevant to the action and
2 essential to its fair resolution. (Id. at 1854; Tylo v. Super. Ct. (1997) 55 Cal.App.4th 1397, 1387.) The
3 propounding party must demonstrate that the information sought is “essential” to the case. (Britt, supra,
4 at 859.) Here, YARDI claims the documents requested are to determine whether Defendant was in the
5 scope of his employment at the time of the incident. (Mtn., 3:20-23.) However, YARDI failed to show
6 that documents from Defendant’s substance-abuse rehabilitation program, credit card transactions on the
7 day of the incident, and medical marijuana license are directly relevant to YARDI’s determination of
8 scope of employment.
9 Even if direct relevance and essentiality are found, disclosure is not automatic. The Court must
10 still carefully balance the competing interests and narrowly tailor any production so that no more than
11 what is absolutely necessary is produced. (Davis v. Super. Ct. (1992) 7 Cal.App.4th 108, 1014.) In City
12 of Carmel by the Sea v. Young (1970) 2 Cal.3d 259, the California Supreme Court recognized the
13 validity of the “right to privacy” and barred compelled disclosure. Any intervention of the state
14 constitutional right to privacy must be justified by a compelling interest. (White v. Davis (1975) 13
15 Cal.3d 757, 775; Lantz v. Super. Ct. (1994) 28 Cal.App.4th 1839, 1853.)
16 When the information being sought involves an invasion of autonomy privacy the compelling
17 interest test applies. (Hill v. NCAA (1994) 7 Cal.4th 1, 34; Dept. of Fair Employment & Housing v.
18 Super. Ct. (2002) 99 Cal.App.4th 896, 903.) Autonomy privacy is a privacy interest “in making intimate
19 personal decisions or conducting personal activities without observation, intrusion, or interference.”
20 (Hill, supra, 7 Cal.4th at 35.) The party seeking discovery must show a compelling interest if the
21 discovery involves an obvious invasion into autonomy privacy. (Williams v. Super. Ct. (Marshalls of
22 CA, LLC) (2017) 3 Cal.5th 531, 556-557.)
23 Here, YARDI requests Defendant’s private and intimate medical and financial records. There is
24 no compelling interest justifying the production of Defendant’s private records. When a party fails to
25 show that that a competing or countervailing privacy or non-privacy interest outweighs the specifically
26 identified privacy interest of the person whose records are being sought, then there is a violation of the
27 state constitutional right of privacy. (Hill v. NCAA (1994) 7 Cal.4th 1, 40.) YARDI cannot provide any
28 justification to demonstrate the need for disclosure outweighs Defendant’s privacy rights.
4
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 The patient has a privilege to refuse to disclose and to prevent another from disclosing a
2 confidential communication between patient and physician if the privilege is claimed by: (a) The holder
3 of the privilege; and (b) A person who is authorized to claim the privilege by the holder of the privilege.
4 (Evid. Code § 994.)
5 It is well-established that a “person’s medical profile is an area of privacy infinitely more
6 intimate, more personal in quality and nature than many areas already judicially recognized and
7 protected.” (Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669.) “The
8 patient-physician privilege creates a zone of privacy whose purposes are (1) ‘to preclude humiliation of
9 the patient that might follow disclosure of his ailments’ and (2) to encourage the patient’s full disclosure
10 to the physician of all information necessary for effective diagnosis and treatment of the patient.”
11 (Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1139-1140.)
12 In Jones v. Super. Ct. of Alameda County (1981) 119 Cal.App.3d 534, 548-549, the Court held
13 “[t]here can be little doubt that medical history is entitled to a measure of protection under both federal
14 and state constitutions…The individual’s right to privacy encompasses not only the state of his mind,
15 but also his viscera, detailed complaints of physical ills and their emotional overtones. The state of a
16 person’s [medical history] is as much entitled to privacy from unauthorized public or bureaucratic
17 snooping as is that person’s bank account…”
18 YARDI’s seeks all documents of Defendant’s substance-abuse rehabilitation program, credit
19 card transactions reflecting purchase of marijuana or any marijuana related accouterments on the day of
20 the incident, and all documents related to Defendant’s medical marijuana license. The requested
21 documents invade Defendant’s right of privacy as they seek both the disclosure of confidential
22 physician-patient information and medical treatment. Such requests seeks disclosure of private
23 information as well as privileged conditions, diagnosis and physician patient information. None of
24 which are directly relevant to the case, nor is there a compelling need.
25 However, even if information that is not protected by statutory privilege “may nonetheless be
26 shielded from discovery, despite relevance, where its disclosure would invade an individual’s right of
27 privacy: ‘The right of privacy is an ‘inalienable right’ secured by article I, section 1 of the California
28 Constitution. It protects against the unwarranted, compelled disclosure of various private or sensitive
5
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 information regarding one’s personal life, including his or her financial affairs, political affiliations,
2 medical history, sexual relationships, and confidential personnel information.” (Tien v. Super. Ct. (2006)
3 139 Cal.App.4th 528, 539.)
4 The Healthcare Insurance Portability Act of 1996 (“HIPAA”) “prohibits the unauthorized
5 disclosure or sharing of a person’s medical information and imposes civil and criminal penalties on
6 those who do.” (County of San Diego v. Mason (2012) 209 Cal.App.4th 376, 382.) When it enacted
7 HIPAA, “Congress expressed its concern for protecting the integrity and confidentiality of personal
8 medical records, and for preventing the unauthorized use or disclosure of such records. (42 U.S.C. §
9 1320d-2(d)(2).)” (Bugarin v. Chartone, Inc. (2006) 135 Cal.App.4th 1558, 1561-1562.)
10 Similarly, California’s Confidentiality of Medical Information Act (“CIMA”) “is intended to
11 protect the confidentiality of individually identifiable medical information obtained from a patient by a
12 health care provider, while at the same time setting forth limited circumstances in which the release of
13 such information to specified entities or individuals is permissible.” (Loder v. City of Glendale (1997)
14 14 Cal.4th 846, 859.)
15 The documents requested are a clear violation of the provisions of HIPAA and CMIA concerning
16 patient confidentiality. HIPAA and CMIA mandate the non-disclosure of Defendant’s records.
17 “Discovery may relate to the claim or defense of the party seeking discovery, or of any other
18 party to the action.” (Code Civ. Proc. § 2017.010.) Records of Defendant’s completion of substance-
19 abuse rehabilitation program, credit card and/or debit card statements reflecting purchase of marijuana,
20 and documents related to Defendant’s California medical marijuana license do not relate to any of
21 YARDI’s claims or defenses. There is no indication that these records would reveal any information that
22 may lead to the discovery of admissible evidence.
23 Disclosure of the discovery request should not be permitted because these records are neither
24 relevant to this action nor likely to lead to the discovery of relevant evidence. Disclosure of information
25 is not warranted when it is not relevant to any issue in the case. (See Shaffer v. Super. Ct. (1995) 33
26 Cal.App.4th 993, 100-1003.) The right to discovery is not unfettered and is not limitless. (Calcor, supra,
27 53 Cal.App.4th 216 at 221.) The propounding party carries the burden to establish that the discovery is
28 reasonably calculated to lead to admissible evidence. (Id.)
6
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 Here, YARDI has not done so. Defendant testified that he did not consume marijuana on the day
2 of the incident. (Mtn.; Ex. D.) Defendant’s completion of substance abuse program, credit card
3 transactions on the day of the incident, and medical marijuana documents will not show that Defendant
4 used marijuana on the date of the incident. Since questions over diagnosis, treatment, conditions and
5 symptoms are the type of information, which is protected by the right of privacy, it is not enough that
6 the information may lead to relevant evidence. (Board of Trustees v. Super. Ct. (1981) 119 Cal.App.3d
7 516, 525.) Defendant’s medical history and treatment are not directly relevant to YARDI’s
8 determination of scope of employment.
9 Additionally, the Court in Mannino v. Super. Ct. (1983) 142 Cal.App.3d 776, 778, recognized
10 that “the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a
11 meritorious cause or defense when the party with the greater resources chooses to employ it in an
12 unethical manner…” (Id. at 778.) “[J]udges must become more aggressive in curbing these abuses.
13 Courts must insist discovery devices be used as tools to facilitate litigation rather than as weapons to
14 wage litigation.” (Calcor Space Facility v. Super. Ct. (1997) 53 Cal.App.4th 216, 221.)
15 Courts have a substantial interest in preventing discovery abuse when an opponent seeking
16 access is motivated by ill will and would likely be tempted to cause its opponent undue embarrassment.
17 (Coalition Against Police Abuse v. Super. Ct. (1985) 170 Cal.App.3d 888, 901.) Here, YARDI claims
18 the requested records may indicate whether Charette was being truthful. (Mtn., 7:7-9 and 8:13-14.)
19 However, the requested records are a clear abuse to humiliate Defendant.
20 A party seeking production of documents must first establish good cause for said production.
21 (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.) YARDI has not met the initial burden of
22 demonstrating good cause to compel the production of the documents requested. There is no showing as
23 to why YARDI needs Defendant to produce documents of his substance-abuse rehabilitation program,
24 credit card and/or debit card statements reflecting purchase of marijuana, and documents related to his
25 California medical marijuana license.
26 “In law and motion practice, factual evidence is supplied to the court by way of declarations.”
27 (Calcor, supra, 53 Cal.App.4th 216 at 223.) YARDI has not submitted any evidence setting forth
28 specific facts showing good cause for the discovery sought. Instead, YARDI simply states it seeks the
7
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 information “in evaluating whether Charette was acting within the scope of employment at the time of
2 the accident.” (Mtn., 6:2-3.) “There is an absence of specific facts relating to each category of materials
3 sought to be produced; the justifications offered for the production are mere generalities.” (Calcor,
4 supra, 53 Cal.App.4th 216 at 224.)
5 Since there is no good cause and none is argued in YARDI’s motion, the motion should be
6 denied.
7 REQUEST FOR PRODUCTION NO. 55:
8 All DOCUMENTS, including credit card and/or debit card statements, from the day of the
9 INCIDENT reflecting YOUR purchase of marijuana or any marijuana-related accouterments from any
10 establishment that sells such products.
11 INITIAL RESPONSE TO REQUEST FOR PRODUCTION NO. 55:
12 Responding party objects to this Request to the extent that it seeks information that is not
13 relevant to the subject matter of this litigation, and it is not reasonably calculated to lead to the discovery
14 of admissible evidence. Responding party further objects to this Request to the extent it seeks private
15 information, the disclosure of which would constitute an unwarranted invasion of the affected
16 individuals’ constitutional, statutory and/or common law rights to personal privacy and confidentiality.
17 Responding party further objects to this Request on the grounds that it would result in “unwarranted
18 annoyance, embarrassment, or oppression, or undue burden and expense,” and thus constitute a misuse
19 of the discovery process. See Code of Civil Procedure § 2023.10(c); see also §2030.090(b); see also
20 West Pico Furniture Co. of Los Angeles v. Sup. Ct. (Pacific Finance Loans) (1961) 56 Cal.2d 407.
21 PLAINTIFFS’ REASONS TO COMPEL FURTHER RESPONSE TO REQUEST NO. 55:
22 Information is considered relevant if it might reasonably assist a party in evaluating the case,
23 preparing for trial, or facilitating settlement thereof. Stewart v. Colonial Western Agency, 87 Cal. App.
24 4th 1006, 1013 (2001); Lipton v. Superior Court, 48 Cal. App. 4th 1599, 1611 (1996); Gonzalez v.
25 Superior Court, 33 Cal. App. 4th 1539, 1546 (1995). It is also well-settled that doubts as to the
26 relevance of discovery sought should generally be resolved in favor of permitting discovery. Williams v.
27 Superior Court (Marshalls of CA, LLC), 3 Cal. 5th 531, 542 (2017). Yardi is seeking information from
28 Charette that is related to his history of substance abuse and potential consumption of substances that
8
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 were not provided to him at the company picnic or by anyone with a connection to Yardi. This
2 information will certainly assist Yardi and the Court in evaluating whether Charette was acting within
3 the scope of employment at the time of the accident.
4 Furthermore, Charette’s privacy regarding these matters must be weighed against Yardi’s interest
5 in fully investigating and defending the case that has been brought against it. Indeed, courts must
6 balance the right of civil litigants to discover relevant facts against the privacy interests of persons
7 subject to discovery. Vinson v. Superior Ct., 43 Cal. 3d 833, 835 (1987). “If an obvious invasion of
8 interest fundamental to personal autonomy is involved, then the compelling interest test applies. If the
9 invasion is less central, or is in bona fide dispute, then a general balancing test applies.” Dept. of Fair
10 Employment & Housing v. Superior Court, 99 Cal. App. 4th 896, 903 (2002). If Yardi is unable to fully
11 evaluate the claims in this case, it would be prejudiced at trial as a result. See Greyhound Corp. v.
12 Superior Court, 56 Cal. 2d 355, 377 (1961) (“a lawsuit should be an intensive search for the truth, not a
13 game to be determined in outcome by considerations of tactic and surprise”).
14 Given the nature of this case, Charette simply does not have a reasonable expectation that
15 information related to his substance abuse history remains private. Charette pleaded guilty to a felony
16 DUI for the fatal accident that is the subject of this lawsuit—a fact that directly places Charette’s alcohol
17 consumption at issue in this case. Furthermore, Charette testified under oath during his deposition that
18 he has attended at least three separate substance abuse programs since the accident—including at least
19 one court-ordered program. Records related to these programs may indicate whether Charette was being
20 truthful regarding when and where he consumed alcohol on the day of the incident. Charette placed
21 these matters into dispute when he decided to drive under the influence of alcohol on the day of the
22 incident. As such, Yardi will be extremely prejudiced if it is not given the full opportunity to defend
23 claims against it by examining Charette’s history of alcohol abuse.
24 DEFENDANTS’ REASONS WHY NO FURTHER RESPONSE IS REQUIRED:
25 A party does not waive the right to privacy by participating in a lawsuit. (Cal. Const. Art.
26 I § 1; Britt v. Superior Court (1978) 20 Cal.3d 844, 857.) Privacy is within the “penumbras” of the Bill
27 of Rights. (Griswold v. Connecticut (1965) 381 U.S. 479.) The Legislature even broadened the
28 protections against disclosure with the passage of the Right to Financial Privacy Act (Gov. Code §
9
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 7460), the Insurance Information and Right to Privacy Act (Ins. Code § 791), the Health Insurance
2 Portability and Accountability Act of 1966 (“HIPAA”) (42 U.S.C. § 1320d), and California’s
3 Confidentiality of Medical Information Act (“CMIA”) (Cal. Civ. Code § 56.10.)
4 In Britt v. Superior Court (1978) 20 Cal.3d 844, the California Supreme Court found that a
5 privacy right was guaranteed in both the California Constitution and the United States Constitution. The
6 Court also stated that such privacy rights were not waived by simply participating in litigation. (Id. at
7 857.) The party must first establish that the records sought are directly relevant to the action and
8 essential to its fair resolution. (Id. at 1854; Tylo v. Super. Ct. (1997) 55 Cal.App.4th 1397, 1387.) The
9 propounding party must demonstrate that the information sought is “essential” to the case. (Britt, supra,
10 at 859.) Here, YARDI claims the documents requested are to determine whether Defendant was in the
11 scope of his employment at the time of the incident. (Mtn., 3:20-23.) However, YARDI failed to show
12 that documents from Defendant’s substance-abuse rehabilitation program, credit card transactions on the
13 day of the incident, and medical marijuana license are directly relevant to YARDI’s determination of
14 scope of employment.
15 Even if direct relevance and essentiality are found, disclosure is not automatic. The Court must
16 still carefully balance the competing interests and narrowly tailor any production so that no more than
17 what is absolutely necessary is produced. (Davis v. Super. Ct. (1992) 7 Cal.App.4th 108, 1014.) In City
18 of Carmel by the Sea v. Young (1970) 2 Cal.3d 259, the California Supreme Court recognized the
19 validity of the “right to privacy” and barred compelled disclosure. Any intervention of the state
20 constitutional right to privacy must be justified by a compelling interest. (White v. Davis (1975) 13
21 Cal.3d 757, 775; Lantz v. Super. Ct. (1994) 28 Cal.App.4th 1839, 1853.)
22 When the information being sought involves an invasion of autonomy privacy the compelling
23 interest test applies. (Hill v. NCAA (1994) 7 Cal.4th 1, 34; Dept. of Fair Employment & Housing v.
24 Super. Ct. (2002) 99 Cal.App.4th 896, 903.) Autonomy privacy is a privacy interest “in making intimate
25 personal decisions or conducting personal activities without observation, intrusion, or interference.”
26 (Hill, supra, 7 Cal.4th at 35.) The party seeking discovery must show a compelling interest if the
27 discovery involves an obvious invasion into autonomy privacy. (Williams v. Super. Ct. (Marshalls of
28 CA, LLC) (2017) 3 Cal.5th 531, 556-557.)
10
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 Here, YARDI requests Defendant’s private and intimate medical and financial records. There is
2 no compelling interest justifying the production of Defendant’s private records. When a party fails to
3 show that that a competing or countervailing privacy or non-privacy interest outweighs the specifically
4 identified privacy interest of the person whose records are being sought, then there is a violation of the
5 state constitutional right of privacy. (Hill v. NCAA (1994) 7 Cal.4th 1, 40.) YARDI cannot provide any
6 justification to demonstrate the need for disclosure outweighs Defendant’s privacy rights.
7 The patient has a privilege to refuse to disclose and to prevent another from disclosing a
8 confidential communication between patient and physician if the privilege is claimed by: (a) The holder
9 of the privilege; and (b) A person who is authorized to claim the privilege by the holder of the privilege.
10 (Evid. Code § 994.)
11 It is well-established that a “person’s medical profile is an area of privacy infinitely more
12 intimate, more personal in quality and nature than many areas already judicially recognized and
13 protected.” (Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669.) “The
14 patient-physician privilege creates a zone of privacy whose purposes are (1) ‘to preclude humiliation of
15 the patient that might follow disclosure of his ailments’ and (2) to encourage the patient’s full disclosure
16 to the physician of all information necessary for effective diagnosis and treatment of the patient.”
17 (Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1139-1140.)
18 In Jones v. Super. Ct. of Alameda County (1981) 119 Cal.App.3d 534, 548-549, the Court held
19 “[t]here can be little doubt that medical history is entitled to a measure of protection under both federal
20 and state constitutions…The individual’s right to privacy encompasses not only the state of his mind,
21 but also his viscera, detailed complaints of physical ills and their emotional overtones. The state of a
22 person’s [medical history] is as much entitled to privacy from unauthorized public or bureaucratic
23 snooping as is that person’s bank account…”
24 YARDI’s seeks all documents of Defendant’s substance-abuse rehabilitation program, credit
25 card transactions reflecting purchase of marijuana or any marijuana related accouterments on the day of
26 the incident, and all documents related to Defendant’s medical marijuana license. The requested
27 documents invade Defendant’s right of privacy as they seek both the disclosure of confidential
28 physician-patient information and medical treatment. Such requests seeks disclosure of private
11
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 information as well as privileged conditions, diagnosis and physician patient information. None of
2 which are directly relevant to the case, nor is there a compelling need.
3 However, even if information that is not protected by statutory privilege “may nonetheless be
4 shielded from discovery, despite relevance, where its disclosure would invade an individual’s right of
5 privacy: ‘The right of privacy is an ‘inalienable right’ secured by article I, section 1 of the California
6 Constitution. It protects against the unwarranted, compelled disclosure of various private or sensitive
7 information regarding one’s personal life, including his or her financial affairs, political affiliations,
8 medical history, sexual relationships, and confidential personnel information.” (Tien v. Super. Ct. (2006)
9 139 Cal.App.4th 528, 539.)
10 The Healthcare Insurance Portability Act of 1996 (“HIPAA”) “prohibits the unauthorized
11 disclosure or sharing of a person’s medical information and imposes civil and criminal penalties on
12 those who do.” (County of San Diego v. Mason (2012) 209 Cal.App.4th 376, 382.) When it enacted
13 HIPAA, “Congress expressed its concern for protecting the integrity and confidentiality of personal
14 medical records, and for preventing the unauthorized use or disclosure of such records. (42 U.S.C. §
15 1320d-2(d)(2).)” (Bugarin v. Chartone, Inc. (2006) 135 Cal.App.4th 1558, 1561-1562.)
16 Similarly, California’s Confidentiality of Medical Information Act (“CIMA”) “is intended to
17 protect the confidentiality of individually identifiable medical information obtained from a patient by a
18 health care provider, while at the same time setting forth limited circumstances in which the release of
19 such information to specified entities or individuals is permissible.” (Loder v. City of Glendale (1997)
20 14 Cal.4th 846, 859.)
21 The documents requested are a clear violation of the provisions of HIPAA and CMIA concerning
22 patient confidentiality. HIPAA and CMIA mandate the non-disclosure of Defendant’s records.
23 “Discovery may relate to the claim or defense of the party seeking discovery, or of any other
24 party to the action.” (Code Civ. Proc. § 2017.010.) Records of Defendant’s completion of substance-
25 abuse rehabilitation program, credit card and/or debit card statements reflecting purchase of marijuana,
26 and documents related to Defendant’s California medical marijuana license do not relate to any of
27 YARDI’s claims or defenses. There is no indication that these records would reveal any information that
28 may lead to the discovery of admissible evidence.
12
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 Disclosure of the discovery request should not be permitted because these records are neither
2 relevant to this action nor likely to lead to the discovery of relevant evidence. Disclosure of information
3 is not warranted when it is not relevant to any issue in the case. (See Shaffer v. Super. Ct. (1995) 33
4 Cal.App.4th 993, 100-1003.) The right to discovery is not unfettered and is not limitless. (Calcor, supra,
5 53 Cal.App.4th 216 at 221.) The propounding party carries the burden to establish that the discovery is
6 reasonably calculated to lead to admissible evidence. (Id.)
7 Here, YARDI has not done so. Defendant testified that he did not consume marijuana on the day
8 of the incident. (Mtn.; Ex. D.) Defendant’s completion of substance abuse program, credit card
9 transactions on the day of the incident, and medical marijuana documents will not show that Defendant
10 used marijuana on the date of the incident. Since questions over diagnosis, treatment, conditions and
11 symptoms are the type of information, which is protected by the right of privacy, it is not enough that
12 the information may lead to relevant evidence. (Board of Trustees v. Super. Ct. (1981) 119 Cal.App.3d
13 516, 525.) Defendant’s medical history and treatment are not directly relevant to YARDI’s
14 determination of scope of employment.
15 Additionally, the Court in Mannino v. Super. Ct. (1983) 142 Cal.App.3d 776, 778, recognized
16 that “the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a
17 meritorious cause or defense when the party with the greater resources chooses to employ it in an
18 unethical manner…” (Id. at 778.) “[J]udges must become more aggressive in curbing these abuses.
19 Courts must insist discovery devices be used as tools to facilitate litigation rather than as weapons to
20 wage litigation.” (Calcor Space Facility v. Super. Ct. (1997) 53 Cal.App.4th 216, 221.)
21 Courts have a substantial interest in preventing discovery abuse when an opponent seeking
22 access is motivated by ill will and would likely be tempted to cause its opponent undue embarrassment.
23 (Coalition Against Police Abuse v. Super. Ct. (1985) 170 Cal.App.3d 888, 901.) Here, YARDI claims
24 the requested records may indicate whether Charette was being truthful. (Mtn., 7:7-9 and 8:13-14.)
25 However, the requested records are a clear abuse to humiliate Defendant.
26 A party seeking production of documents must first establish good cause for said production.
27 (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.) YARDI has not met the initial burden of
28 demonstrating good cause to compel the production of the documents requested. There is no showing as
13
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 to why YARDI needs Defendant to produce documents of his substance-abuse rehabilitation program,
2 credit card and/or debit card statements reflecting purchase of marijuana, and documents related to his
3 California medical marijuana license.
4 “In law and motion practice, factual evidence is supplied to the court by way of declarations.”
5 (Calcor, supra, 53 Cal.App.4th 216 at 223.) YARDI has not submitted any evidence setting forth
6 specific facts showing good cause for the discovery sought. Instead, YARDI simply states it seeks the
7 information “in evaluating whether Charette was acting within the scope of employment at the time of
8 the accident.” (Mtn., 6:2-3.) “There is an absence of specific facts relating to each category of materials
9 sought to be produced; the justifications offered for the production are mere generalities.” (Calcor,
10 supra, 53 Cal.App.4th 216 at 224.)
11 Since there is no good cause and none is argued in YARDI’s motion, the motion should be
12 denied.
13 REQUEST FOR PRODUCTION NO. 56:
14 All DOCUMENTS related to YOUR obtaining and/or maintaining a California medical
15 marijuana license from 2016 until today.
16 INITIAL RESPONSE TO REQUEST FOR PRODUCTION NO. 56:
17 Responding party objects to this Request to the extent that it seeks information that is not
18 relevant to the subject matter of this litigation, and it is not reasonably calculated to lead to the discovery
19 of admissible evidence. Responding party further objects to this Request to the extent it seeks private
20 information, the disclosure of which would constitute an unwarranted invasion of the affected
21 individuals’ constitutional, statutory and/or common law rights to personal privacy and confidentiality.
22 Responding party further objects to this Request on the grounds that it would result in “unwarranted
23 annoyance, embarrassment, or oppression, or undue burden and expense,” and thus constitute a misuse
24 of the discovery process. See Code of Civil Procedure § 2023.10(c); see also §2030.090(b); see also
25 West Pico Furniture Co. of Los Angeles v. Sup. Ct. (Pacific Finance Loans) (1961) 56 Cal.2d 407
26 PLAINTIFFS’ REASONS TO COMPEL FURTHER RESPONSE TO REQUEST NO. 56:
27 Information is considered relevant if it might reasonably assist a party in evaluating the case,
28 preparing for trial, or facilitating settlement thereof. Stewart v. Colonial Western Agency, 87 Cal. App.
14
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 4th 1006, 1013 (2001); Lipton v. Superior Court, 48 Cal. App. 4th 1599, 1611 (1996); Gonzalez v.
2 Superior Court, 33 Cal. App. 4th 1539, 1546 (1995). It is also well-settled that doubts as to the
3 relevance of discovery sought should generally be resolved in favor of permitting discovery. Williams v.
4 Superior Court (Marshalls of CA, LLC), 3 Cal. 5th 531, 542 (2017). Yardi is seeking information from
5 Charette that is related to his history of substance abuse and potential consumption of substances that
6 were not provided to him at the company picnic or by anyone with a connection to Yardi. This
7 information will certainly assist Yardi and the Court in evaluating whether Charette was acting within
8 the scope of employment at the time of the accident.
9 Furthermore, Charette’s privacy regarding these matters must be weighed against Yardi’s interest
10 in fully investigating and defending the case that has been brought against it. Indeed, courts must
11 balance the right of civil litigants to discover relevant facts against the privacy interests of persons
12 subject to discovery. Vinson v. Superior Ct., 43 Cal. 3d 833, 835 (1987). “If an obvious invasion of
13 interest fundamental to personal autonomy is involved, then the compelling interest test applies. If the
14 invasion is less central, or is in bona fide dispute, then a general balancing test applies.” Dept. of Fair
15 Employment & Housing v. Superior Court, 99 Cal. App. 4th 896, 903 (2002). If Yardi is unable to fully
16 evaluate the claims in this case, it would be prejudiced at trial as a result. See Greyhound Corp. v.
17 Superior Court, 56 Cal. 2d 355, 377 (1961) (“a lawsuit should be an intensive search for the truth, not a
18 game to be determined in outcome by considerations of tactic and surprise”).
19 Given the nature of this case, Charette simply does not have a reasonable expectation that
20 information related to his substance abuse history remains private. Charette pleaded guilty to a felony
21 DUI for the fatal accident that is the subject of this lawsuit—a fact that directly places Charette’s alcohol
22 consumption at issue in this case. Furthermore, Charette testified under oath during his deposition that
23 he has attended at least three separate substance abuse programs since the accident—including at least
24 one court-ordered program. Records related to these programs may indicate whether Charette was being
25 truthful regarding when and where he consumed alcohol on the day of the incident. Charette placed
26 these matters into dispute when he decided to drive under the influence of alcohol on the day of the
27 incident. As such, Yardi will be extremely prejudiced if it is not given the full opportunity to defend
28 claims against it by examining Charette’s history of alcohol abuse.
15
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1
2 DEFENDANTS’ REASONS WHY NO FURTHER RESPONSE IS REQUIRED:
3 A party does not waive the right to privacy by participating in a lawsuit. (Cal. Const. Art. I § 1;
4 Britt v. Superior Court (1978) 20 Cal.3d 844, 857.) Privacy is within the “penumbras” of the Bill of
5 Rights. (Griswold v. Connecticut (1965) 381 U.S. 479.) The Legislature even broadened the protections
6 against disclosure with the passage of the Right to Financial Privacy Act (Gov. Code § 7460), the
7 Insurance Information and Right to Privacy Act (Ins. Code § 791), the Health Insurance Portability and
8 Accountability Act of 1966 (“HIPAA”) (42 U.S.C. § 1320d), and California’s Confidentiality of
9 Medical Information Act (“CMIA”) (Cal. Civ. Code § 56.10.)
10 In Britt v. Superior Court (1978) 20 Cal.3d 844, the California Supreme Court found that a
11 privacy right was guaranteed in both the California Constitution and the United States Constitution. The
12 Court also stated that such privacy rights were not waived by simply participating in litigation. (Id. at
13 857.) The party must first establish that the records sought are directly relevant to the action and
14 essential to its fair resolution. (Id. at 1854; Tylo v. Super. Ct. (1997) 55 Cal.App.4th 1397, 1387.) The
15 propounding party must demonstrate that the information sought is “essential” to the case. (Britt, supra,
16 at 859.) Here, YARDI claims the documents requested are to determine whether Defendant was in the
17 scope of his employment at the time of the incident. (Mtn., 3:20-23.) However, YARDI failed to show
18 that documents from Defendant’s substance-abuse rehabilitation program, credit card transactions on the
19 day of the incident, and medical marijuana license are directly relevant to YARDI’s determination of
20 scope of employment.
21 Even if direct relevance and essentiality are found, disclosure is not automatic. The Court must
22 still carefully balance the competing interests and narrowly tailor any production so that no more than
23 what is absolutely necessary is produced. (Davis v. Super. Ct. (1992) 7 Cal.App.4th 108, 1014.) In City
24 of Carmel by the Sea v. Young (1970) 2 Cal.3d 259, the California Supreme Court recognized the
25 validity of the “right to privacy” and barred compelled disclosure. Any intervention of the state
26 constitutional right to privacy must be justified by a compelling interest. (White v. Davis (1975) 13
27 Cal.3d 757, 775; Lantz v. Super. Ct. (1994) 28 Cal.App.4th 1839, 1853.)
28 ///
16
SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION
TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE
1 When the information being sought involves an invasion of autonomy privacy the compelling
2 interest test applies. (Hill v. NCAA (1994) 7 Cal.4th 1, 34; Dept. of Fair Employment & Housing v.
3 Super. Ct. (2002) 99 Cal.App.4th 896, 903.) Autonomy privacy is a privacy interest “in making intimate
4 personal decisions or conducting personal activities without observation, intrusion, or interference.”
5 (Hill, supra, 7 Cal.4th at 35.) The party seeking discovery must show a compelling interest if the
6 discovery involves an obvious invasion into autonomy privacy. (Williams v. Super. Ct. (Marshalls of
7 CA, LLC) (2017) 3 Cal.5th 531, 556-557.)
8 Here, YARDI requests Defendant’s private and intimate medical and financial records. There is
9 no compelling interest justifying the production of Defendant’s private records. When a party fails to
10 show that that a competing or countervailing privacy or non-privacy interest outweighs the specifically
11 identified privacy interest of the person whose records are being sought, then there is a violation of the
12 state constitutional right of privacy. (Hill v. NCAA (1994) 7 Cal.4th 1, 40.) YARDI cannot provide any
13 justification to demonstrate the need for disclosure outweighs Defendant’s privacy rights.
14 The patient has a privilege to refuse to disclose and to prevent another from disclosing a
15 confidential communication between patient and physician if the privilege is claimed by: (a) The holder
16 of the privilege; and (b) A person who is authorized to claim the privilege by the holder of the privilege.
17 (Evid. Code § 994.)
18 It is well-established that a “person’s medical profile is an area of privacy infinitely more
19 intimate, more personal in quality and nature than many areas already judicially recognized and
20 protected.” (Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669.) “The
21 patient-physician privilege creates a zone of privacy whose purposes are (1) ‘to preclude humiliation of
22 the patient that might follow disclosure of his ailments’ and (2) to encourage the patient’s full disclosure
23 to the physician of all information necessary for effective diagnosis and treatment of the patient.”
24 (Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1139-1140.)
25 In Jones v. Super. Ct. of Alameda County (1981) 119 Cal.App.3d 534, 548-549, the Court held
26 “[t]here can be little doubt that medical history is entitled to a measure of protection under both federal
27 and state constitutions…The individual
Preview
1 Robert L. Reisinger, Esq., Bar No. 156474 2 Christiana S. Carter, Esq., Bar No. 317521 Theresa T. Nguyen, Esq., Bar No. 342896 3 FORD, WALKER, HAGGERTY & BEHAR One World Trade Center 4 Twenty-Seventh Floor Long Beach, California 90831-2700 5 (562) 983-2500 6 rlr_service@fwhb.com Attorneys for Defendants, 7 BRYAN PAUL CHARETTE and ALLISON CHARETTE 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SANTA BARBARA 10 11 ADELITA MARTINEZ, DEBORAH ) Case No. 20CV01703 12 MARTINEZ, GUILLERMINA SAHAGUN ) MAYRA SANDOVAL, and ALDRED ) Hon. Timothy J. Staffel 13 MARTINEZ, ) DEPT. 3 ) 14 Plaintiffs, ) SEPARATE STATEMENT IN SUPPORT OF 15 ) OPPOSITION TO DEFENDANT YARDI vs. ) SYSTEMS, INC.’S MOTION TO COMPEL 16 ) PRODUCTION OF DOCUMENTS FROM BRYAN PAUL CHARETTE, an individual; ) DEFENDANT BRYAN PAUL CHARETTE 17 YARDI SYSTEMS, INC., a Corporation; ) ALLISION CHARETTE, an individual; and ) [Filed concurrently with Opposition] 18 DOES 1 through 50, Inclusive, ) 19 ) DATE: October 18, 2023 Defendants. ) TIME: 1:30 p.m. 20 ) DEPT: 3 ) 21 ) 22 ) Complaint Filed: April 16, 2020 ) Trial Date: May 13, 2024 23 ) 24 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: 25 PLEASE TAKE NOTICE that Defendants BRYAN PAUL CHARETTE (“Defendant”) and 26 ALLISON CHARETTE (collectively, “Defendants”) submit the separate statement in support of their 27 opposition to Defendant YARDI SYSTEMS, INC.’s (“YARDI”) motion to compel the production of 28 documents from Defendant BRYAN PAUL CHARETTE (“Motion”). 1 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 SEPARATE STATEMENT 2 REQUEST FOR PRODUCTION NO. 54: 3 All DOCUMENTS reflecting YOUR completion of any substance-abuse rehabilitation program 4 YOU attended between the time of time INCIDENT and today. 5 INITIAL RESPONSE TO REQUEST FOR PRODUCTION NO. 54: 6 Responding party objects to this Request to the extent that it seeks information that is not 7 relevant to the subject matter of this litigation, and it is not reasonably calculated to lead to the discovery 8 of admissible evidence. Responding party further objects to this Request to the extent it seeks private 9 information, the disclosure of which would constitute an unwarranted invasion of the affected 10 individuals’ constitutional, statutory and/or common law rights to personal privacy and confidentiality. 11 Responding party further objects to this Request on the grounds that it would result in “unwarranted 12 annoyance, embarrassment, or oppression, or undue burden and expense,” and thus constitute a misuse 13 of the discovery process. See Code of Civil Procedure § 2023.10(c); see also §2030.090(b); see also 14 West Pico Furniture Co. of Los Angeles v. Sup. Ct. (Pacific Finance Loans) (1961) 56 Cal.2d 407. 15 PLAINTIFFS’ REASONS TO COMPEL FURTHER RESPONSE TO REQUEST NO. 54: 16 Information is considered relevant if it might reasonably assist a party in evaluating the case, 17 preparing for trial, or facilitating settlement thereof. Stewart v. Colonial Western Agency, 87 Cal. App. 18 4th 1006, 1013 (2001); Lipton v. Superior Court, 48 Cal. App. 4th 1599, 1611 (1996); Gonzalez v. 19 Superior Court, 33 Cal. App. 4th 1539, 1546 (1995). It is also well-settled that doubts as to the 20 relevance of discovery sought should generally be resolved in favor of permitting discovery. Williams v. 21 Superior Court (Marshalls of CA, LLC), 3 Cal. 5th 531, 542 (2017). Yardi is seeking information from 22 Charette that is related to his history of substance abuse and potential consumption of substances that 23 were not provided to him at the company picnic or by anyone with a connection to Yardi. This 24 information will certainly assist Yardi and the Court in evaluating whether Charette was acting within 25 the scope of employment at the time of the accident. 26 Furthermore, Charette’s privacy regarding these matters must be weighed against Yardi’s interest 27 in fully investigating and defending the case that has been brought against it. Indeed, courts must 28 balance the right of civil litigants to discover relevant facts against the privacy interests of persons 2 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 subject to discovery. Vinson v. Superior Ct., 43 Cal. 3d 833, 835 (1987). “If an obvious invasion of 2 interest fundamental to personal autonomy is involved, then the compelling interest test applies. If the 3 invasion is less central, or is in bona fide dispute, then a general balancing test applies.” Dept. of Fair 4 Employment & Housing v. Superior Court, 99 Cal. App. 4th 896, 903 (2002). If Yardi is unable to fully 5 evaluate the claims in this case, it would be prejudiced at trial as a result. See Greyhound Corp. v. 6 Superior Court, 56 Cal. 2d 355, 377 (1961) (“a lawsuit should be an intensive search for the truth, not a 7 game to be determined in outcome by considerations of tactic and surprise”). 8 Given the nature of this case, Charette simply does not have a reasonable expectation that 9 information related to his substance abuse history remains private. Charette pleaded guilty to a felony 10 DUI for the fatal accident that is the subject of this lawsuit—a fact that directly places Charette’s alcohol 11 consumption at issue in this case. Furthermore, Charette testified under oath during his deposition that 12 he has attended at least three separate substance abuse programs since the accident—including at least 13 one court-ordered program. Records related to these programs may indicate whether Charette was being 14 truthful regarding when and where he consumed alcohol on the day of the incident. Charette placed 15 these matters into dispute when he decided to drive under the influence of alcohol on the day of the 16 incident. As such, Yardi will be extremely prejudiced if it is not given the full opportunity to defend 17 claims against it by examining Charette’s history of alcohol abuse. 18 DEFENDANTS’ REASONS WHY NO FURTHER RESPONSE IS REQUIRED: 19 A party does not waive the right to privacy by participating in a lawsuit. (Cal. Const. Art. I § 1; 20 Britt v. Superior Court (1978) 20 Cal.3d 844, 857.) Privacy is within the “penumbras” of the Bill of 21 Rights. (Griswold v. Connecticut (1965) 381 U.S. 479.) The Legislature even broadened the protections 22 against disclosure with the passage of the Right to Financial Privacy Act (Gov. Code § 7460), the 23 Insurance Information and Right to Privacy Act (Ins. Code § 791), the Health Insurance Portability and 24 Accountability Act of 1966 (“HIPAA”) (42 U.S.C. § 1320d), and California’s Confidentiality of 25 Medical Information Act (“CMIA”) (Cal. Civ. Code § 56.10.) 26 In Britt v. Superior Court (1978) 20 Cal.3d 844, the California Supreme Court found that a 27 privacy right was guaranteed in both the California Constitution and the United States Constitution. The 28 Court also stated that such privacy rights were not waived by simply participating in litigation. (Id. at 3 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 857.) The party must first establish that the records sought are directly relevant to the action and 2 essential to its fair resolution. (Id. at 1854; Tylo v. Super. Ct. (1997) 55 Cal.App.4th 1397, 1387.) The 3 propounding party must demonstrate that the information sought is “essential” to the case. (Britt, supra, 4 at 859.) Here, YARDI claims the documents requested are to determine whether Defendant was in the 5 scope of his employment at the time of the incident. (Mtn., 3:20-23.) However, YARDI failed to show 6 that documents from Defendant’s substance-abuse rehabilitation program, credit card transactions on the 7 day of the incident, and medical marijuana license are directly relevant to YARDI’s determination of 8 scope of employment. 9 Even if direct relevance and essentiality are found, disclosure is not automatic. The Court must 10 still carefully balance the competing interests and narrowly tailor any production so that no more than 11 what is absolutely necessary is produced. (Davis v. Super. Ct. (1992) 7 Cal.App.4th 108, 1014.) In City 12 of Carmel by the Sea v. Young (1970) 2 Cal.3d 259, the California Supreme Court recognized the 13 validity of the “right to privacy” and barred compelled disclosure. Any intervention of the state 14 constitutional right to privacy must be justified by a compelling interest. (White v. Davis (1975) 13 15 Cal.3d 757, 775; Lantz v. Super. Ct. (1994) 28 Cal.App.4th 1839, 1853.) 16 When the information being sought involves an invasion of autonomy privacy the compelling 17 interest test applies. (Hill v. NCAA (1994) 7 Cal.4th 1, 34; Dept. of Fair Employment & Housing v. 18 Super. Ct. (2002) 99 Cal.App.4th 896, 903.) Autonomy privacy is a privacy interest “in making intimate 19 personal decisions or conducting personal activities without observation, intrusion, or interference.” 20 (Hill, supra, 7 Cal.4th at 35.) The party seeking discovery must show a compelling interest if the 21 discovery involves an obvious invasion into autonomy privacy. (Williams v. Super. Ct. (Marshalls of 22 CA, LLC) (2017) 3 Cal.5th 531, 556-557.) 23 Here, YARDI requests Defendant’s private and intimate medical and financial records. There is 24 no compelling interest justifying the production of Defendant’s private records. When a party fails to 25 show that that a competing or countervailing privacy or non-privacy interest outweighs the specifically 26 identified privacy interest of the person whose records are being sought, then there is a violation of the 27 state constitutional right of privacy. (Hill v. NCAA (1994) 7 Cal.4th 1, 40.) YARDI cannot provide any 28 justification to demonstrate the need for disclosure outweighs Defendant’s privacy rights. 4 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 The patient has a privilege to refuse to disclose and to prevent another from disclosing a 2 confidential communication between patient and physician if the privilege is claimed by: (a) The holder 3 of the privilege; and (b) A person who is authorized to claim the privilege by the holder of the privilege. 4 (Evid. Code § 994.) 5 It is well-established that a “person’s medical profile is an area of privacy infinitely more 6 intimate, more personal in quality and nature than many areas already judicially recognized and 7 protected.” (Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669.) “The 8 patient-physician privilege creates a zone of privacy whose purposes are (1) ‘to preclude humiliation of 9 the patient that might follow disclosure of his ailments’ and (2) to encourage the patient’s full disclosure 10 to the physician of all information necessary for effective diagnosis and treatment of the patient.” 11 (Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1139-1140.) 12 In Jones v. Super. Ct. of Alameda County (1981) 119 Cal.App.3d 534, 548-549, the Court held 13 “[t]here can be little doubt that medical history is entitled to a measure of protection under both federal 14 and state constitutions…The individual’s right to privacy encompasses not only the state of his mind, 15 but also his viscera, detailed complaints of physical ills and their emotional overtones. The state of a 16 person’s [medical history] is as much entitled to privacy from unauthorized public or bureaucratic 17 snooping as is that person’s bank account…” 18 YARDI’s seeks all documents of Defendant’s substance-abuse rehabilitation program, credit 19 card transactions reflecting purchase of marijuana or any marijuana related accouterments on the day of 20 the incident, and all documents related to Defendant’s medical marijuana license. The requested 21 documents invade Defendant’s right of privacy as they seek both the disclosure of confidential 22 physician-patient information and medical treatment. Such requests seeks disclosure of private 23 information as well as privileged conditions, diagnosis and physician patient information. None of 24 which are directly relevant to the case, nor is there a compelling need. 25 However, even if information that is not protected by statutory privilege “may nonetheless be 26 shielded from discovery, despite relevance, where its disclosure would invade an individual’s right of 27 privacy: ‘The right of privacy is an ‘inalienable right’ secured by article I, section 1 of the California 28 Constitution. It protects against the unwarranted, compelled disclosure of various private or sensitive 5 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 information regarding one’s personal life, including his or her financial affairs, political affiliations, 2 medical history, sexual relationships, and confidential personnel information.” (Tien v. Super. Ct. (2006) 3 139 Cal.App.4th 528, 539.) 4 The Healthcare Insurance Portability Act of 1996 (“HIPAA”) “prohibits the unauthorized 5 disclosure or sharing of a person’s medical information and imposes civil and criminal penalties on 6 those who do.” (County of San Diego v. Mason (2012) 209 Cal.App.4th 376, 382.) When it enacted 7 HIPAA, “Congress expressed its concern for protecting the integrity and confidentiality of personal 8 medical records, and for preventing the unauthorized use or disclosure of such records. (42 U.S.C. § 9 1320d-2(d)(2).)” (Bugarin v. Chartone, Inc. (2006) 135 Cal.App.4th 1558, 1561-1562.) 10 Similarly, California’s Confidentiality of Medical Information Act (“CIMA”) “is intended to 11 protect the confidentiality of individually identifiable medical information obtained from a patient by a 12 health care provider, while at the same time setting forth limited circumstances in which the release of 13 such information to specified entities or individuals is permissible.” (Loder v. City of Glendale (1997) 14 14 Cal.4th 846, 859.) 15 The documents requested are a clear violation of the provisions of HIPAA and CMIA concerning 16 patient confidentiality. HIPAA and CMIA mandate the non-disclosure of Defendant’s records. 17 “Discovery may relate to the claim or defense of the party seeking discovery, or of any other 18 party to the action.” (Code Civ. Proc. § 2017.010.) Records of Defendant’s completion of substance- 19 abuse rehabilitation program, credit card and/or debit card statements reflecting purchase of marijuana, 20 and documents related to Defendant’s California medical marijuana license do not relate to any of 21 YARDI’s claims or defenses. There is no indication that these records would reveal any information that 22 may lead to the discovery of admissible evidence. 23 Disclosure of the discovery request should not be permitted because these records are neither 24 relevant to this action nor likely to lead to the discovery of relevant evidence. Disclosure of information 25 is not warranted when it is not relevant to any issue in the case. (See Shaffer v. Super. Ct. (1995) 33 26 Cal.App.4th 993, 100-1003.) The right to discovery is not unfettered and is not limitless. (Calcor, supra, 27 53 Cal.App.4th 216 at 221.) The propounding party carries the burden to establish that the discovery is 28 reasonably calculated to lead to admissible evidence. (Id.) 6 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 Here, YARDI has not done so. Defendant testified that he did not consume marijuana on the day 2 of the incident. (Mtn.; Ex. D.) Defendant’s completion of substance abuse program, credit card 3 transactions on the day of the incident, and medical marijuana documents will not show that Defendant 4 used marijuana on the date of the incident. Since questions over diagnosis, treatment, conditions and 5 symptoms are the type of information, which is protected by the right of privacy, it is not enough that 6 the information may lead to relevant evidence. (Board of Trustees v. Super. Ct. (1981) 119 Cal.App.3d 7 516, 525.) Defendant’s medical history and treatment are not directly relevant to YARDI’s 8 determination of scope of employment. 9 Additionally, the Court in Mannino v. Super. Ct. (1983) 142 Cal.App.3d 776, 778, recognized 10 that “the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a 11 meritorious cause or defense when the party with the greater resources chooses to employ it in an 12 unethical manner…” (Id. at 778.) “[J]udges must become more aggressive in curbing these abuses. 13 Courts must insist discovery devices be used as tools to facilitate litigation rather than as weapons to 14 wage litigation.” (Calcor Space Facility v. Super. Ct. (1997) 53 Cal.App.4th 216, 221.) 15 Courts have a substantial interest in preventing discovery abuse when an opponent seeking 16 access is motivated by ill will and would likely be tempted to cause its opponent undue embarrassment. 17 (Coalition Against Police Abuse v. Super. Ct. (1985) 170 Cal.App.3d 888, 901.) Here, YARDI claims 18 the requested records may indicate whether Charette was being truthful. (Mtn., 7:7-9 and 8:13-14.) 19 However, the requested records are a clear abuse to humiliate Defendant. 20 A party seeking production of documents must first establish good cause for said production. 21 (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.) YARDI has not met the initial burden of 22 demonstrating good cause to compel the production of the documents requested. There is no showing as 23 to why YARDI needs Defendant to produce documents of his substance-abuse rehabilitation program, 24 credit card and/or debit card statements reflecting purchase of marijuana, and documents related to his 25 California medical marijuana license. 26 “In law and motion practice, factual evidence is supplied to the court by way of declarations.” 27 (Calcor, supra, 53 Cal.App.4th 216 at 223.) YARDI has not submitted any evidence setting forth 28 specific facts showing good cause for the discovery sought. Instead, YARDI simply states it seeks the 7 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 information “in evaluating whether Charette was acting within the scope of employment at the time of 2 the accident.” (Mtn., 6:2-3.) “There is an absence of specific facts relating to each category of materials 3 sought to be produced; the justifications offered for the production are mere generalities.” (Calcor, 4 supra, 53 Cal.App.4th 216 at 224.) 5 Since there is no good cause and none is argued in YARDI’s motion, the motion should be 6 denied. 7 REQUEST FOR PRODUCTION NO. 55: 8 All DOCUMENTS, including credit card and/or debit card statements, from the day of the 9 INCIDENT reflecting YOUR purchase of marijuana or any marijuana-related accouterments from any 10 establishment that sells such products. 11 INITIAL RESPONSE TO REQUEST FOR PRODUCTION NO. 55: 12 Responding party objects to this Request to the extent that it seeks information that is not 13 relevant to the subject matter of this litigation, and it is not reasonably calculated to lead to the discovery 14 of admissible evidence. Responding party further objects to this Request to the extent it seeks private 15 information, the disclosure of which would constitute an unwarranted invasion of the affected 16 individuals’ constitutional, statutory and/or common law rights to personal privacy and confidentiality. 17 Responding party further objects to this Request on the grounds that it would result in “unwarranted 18 annoyance, embarrassment, or oppression, or undue burden and expense,” and thus constitute a misuse 19 of the discovery process. See Code of Civil Procedure § 2023.10(c); see also §2030.090(b); see also 20 West Pico Furniture Co. of Los Angeles v. Sup. Ct. (Pacific Finance Loans) (1961) 56 Cal.2d 407. 21 PLAINTIFFS’ REASONS TO COMPEL FURTHER RESPONSE TO REQUEST NO. 55: 22 Information is considered relevant if it might reasonably assist a party in evaluating the case, 23 preparing for trial, or facilitating settlement thereof. Stewart v. Colonial Western Agency, 87 Cal. App. 24 4th 1006, 1013 (2001); Lipton v. Superior Court, 48 Cal. App. 4th 1599, 1611 (1996); Gonzalez v. 25 Superior Court, 33 Cal. App. 4th 1539, 1546 (1995). It is also well-settled that doubts as to the 26 relevance of discovery sought should generally be resolved in favor of permitting discovery. Williams v. 27 Superior Court (Marshalls of CA, LLC), 3 Cal. 5th 531, 542 (2017). Yardi is seeking information from 28 Charette that is related to his history of substance abuse and potential consumption of substances that 8 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 were not provided to him at the company picnic or by anyone with a connection to Yardi. This 2 information will certainly assist Yardi and the Court in evaluating whether Charette was acting within 3 the scope of employment at the time of the accident. 4 Furthermore, Charette’s privacy regarding these matters must be weighed against Yardi’s interest 5 in fully investigating and defending the case that has been brought against it. Indeed, courts must 6 balance the right of civil litigants to discover relevant facts against the privacy interests of persons 7 subject to discovery. Vinson v. Superior Ct., 43 Cal. 3d 833, 835 (1987). “If an obvious invasion of 8 interest fundamental to personal autonomy is involved, then the compelling interest test applies. If the 9 invasion is less central, or is in bona fide dispute, then a general balancing test applies.” Dept. of Fair 10 Employment & Housing v. Superior Court, 99 Cal. App. 4th 896, 903 (2002). If Yardi is unable to fully 11 evaluate the claims in this case, it would be prejudiced at trial as a result. See Greyhound Corp. v. 12 Superior Court, 56 Cal. 2d 355, 377 (1961) (“a lawsuit should be an intensive search for the truth, not a 13 game to be determined in outcome by considerations of tactic and surprise”). 14 Given the nature of this case, Charette simply does not have a reasonable expectation that 15 information related to his substance abuse history remains private. Charette pleaded guilty to a felony 16 DUI for the fatal accident that is the subject of this lawsuit—a fact that directly places Charette’s alcohol 17 consumption at issue in this case. Furthermore, Charette testified under oath during his deposition that 18 he has attended at least three separate substance abuse programs since the accident—including at least 19 one court-ordered program. Records related to these programs may indicate whether Charette was being 20 truthful regarding when and where he consumed alcohol on the day of the incident. Charette placed 21 these matters into dispute when he decided to drive under the influence of alcohol on the day of the 22 incident. As such, Yardi will be extremely prejudiced if it is not given the full opportunity to defend 23 claims against it by examining Charette’s history of alcohol abuse. 24 DEFENDANTS’ REASONS WHY NO FURTHER RESPONSE IS REQUIRED: 25 A party does not waive the right to privacy by participating in a lawsuit. (Cal. Const. Art. 26 I § 1; Britt v. Superior Court (1978) 20 Cal.3d 844, 857.) Privacy is within the “penumbras” of the Bill 27 of Rights. (Griswold v. Connecticut (1965) 381 U.S. 479.) The Legislature even broadened the 28 protections against disclosure with the passage of the Right to Financial Privacy Act (Gov. Code § 9 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 7460), the Insurance Information and Right to Privacy Act (Ins. Code § 791), the Health Insurance 2 Portability and Accountability Act of 1966 (“HIPAA”) (42 U.S.C. § 1320d), and California’s 3 Confidentiality of Medical Information Act (“CMIA”) (Cal. Civ. Code § 56.10.) 4 In Britt v. Superior Court (1978) 20 Cal.3d 844, the California Supreme Court found that a 5 privacy right was guaranteed in both the California Constitution and the United States Constitution. The 6 Court also stated that such privacy rights were not waived by simply participating in litigation. (Id. at 7 857.) The party must first establish that the records sought are directly relevant to the action and 8 essential to its fair resolution. (Id. at 1854; Tylo v. Super. Ct. (1997) 55 Cal.App.4th 1397, 1387.) The 9 propounding party must demonstrate that the information sought is “essential” to the case. (Britt, supra, 10 at 859.) Here, YARDI claims the documents requested are to determine whether Defendant was in the 11 scope of his employment at the time of the incident. (Mtn., 3:20-23.) However, YARDI failed to show 12 that documents from Defendant’s substance-abuse rehabilitation program, credit card transactions on the 13 day of the incident, and medical marijuana license are directly relevant to YARDI’s determination of 14 scope of employment. 15 Even if direct relevance and essentiality are found, disclosure is not automatic. The Court must 16 still carefully balance the competing interests and narrowly tailor any production so that no more than 17 what is absolutely necessary is produced. (Davis v. Super. Ct. (1992) 7 Cal.App.4th 108, 1014.) In City 18 of Carmel by the Sea v. Young (1970) 2 Cal.3d 259, the California Supreme Court recognized the 19 validity of the “right to privacy” and barred compelled disclosure. Any intervention of the state 20 constitutional right to privacy must be justified by a compelling interest. (White v. Davis (1975) 13 21 Cal.3d 757, 775; Lantz v. Super. Ct. (1994) 28 Cal.App.4th 1839, 1853.) 22 When the information being sought involves an invasion of autonomy privacy the compelling 23 interest test applies. (Hill v. NCAA (1994) 7 Cal.4th 1, 34; Dept. of Fair Employment & Housing v. 24 Super. Ct. (2002) 99 Cal.App.4th 896, 903.) Autonomy privacy is a privacy interest “in making intimate 25 personal decisions or conducting personal activities without observation, intrusion, or interference.” 26 (Hill, supra, 7 Cal.4th at 35.) The party seeking discovery must show a compelling interest if the 27 discovery involves an obvious invasion into autonomy privacy. (Williams v. Super. Ct. (Marshalls of 28 CA, LLC) (2017) 3 Cal.5th 531, 556-557.) 10 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 Here, YARDI requests Defendant’s private and intimate medical and financial records. There is 2 no compelling interest justifying the production of Defendant’s private records. When a party fails to 3 show that that a competing or countervailing privacy or non-privacy interest outweighs the specifically 4 identified privacy interest of the person whose records are being sought, then there is a violation of the 5 state constitutional right of privacy. (Hill v. NCAA (1994) 7 Cal.4th 1, 40.) YARDI cannot provide any 6 justification to demonstrate the need for disclosure outweighs Defendant’s privacy rights. 7 The patient has a privilege to refuse to disclose and to prevent another from disclosing a 8 confidential communication between patient and physician if the privilege is claimed by: (a) The holder 9 of the privilege; and (b) A person who is authorized to claim the privilege by the holder of the privilege. 10 (Evid. Code § 994.) 11 It is well-established that a “person’s medical profile is an area of privacy infinitely more 12 intimate, more personal in quality and nature than many areas already judicially recognized and 13 protected.” (Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669.) “The 14 patient-physician privilege creates a zone of privacy whose purposes are (1) ‘to preclude humiliation of 15 the patient that might follow disclosure of his ailments’ and (2) to encourage the patient’s full disclosure 16 to the physician of all information necessary for effective diagnosis and treatment of the patient.” 17 (Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1139-1140.) 18 In Jones v. Super. Ct. of Alameda County (1981) 119 Cal.App.3d 534, 548-549, the Court held 19 “[t]here can be little doubt that medical history is entitled to a measure of protection under both federal 20 and state constitutions…The individual’s right to privacy encompasses not only the state of his mind, 21 but also his viscera, detailed complaints of physical ills and their emotional overtones. The state of a 22 person’s [medical history] is as much entitled to privacy from unauthorized public or bureaucratic 23 snooping as is that person’s bank account…” 24 YARDI’s seeks all documents of Defendant’s substance-abuse rehabilitation program, credit 25 card transactions reflecting purchase of marijuana or any marijuana related accouterments on the day of 26 the incident, and all documents related to Defendant’s medical marijuana license. The requested 27 documents invade Defendant’s right of privacy as they seek both the disclosure of confidential 28 physician-patient information and medical treatment. Such requests seeks disclosure of private 11 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 information as well as privileged conditions, diagnosis and physician patient information. None of 2 which are directly relevant to the case, nor is there a compelling need. 3 However, even if information that is not protected by statutory privilege “may nonetheless be 4 shielded from discovery, despite relevance, where its disclosure would invade an individual’s right of 5 privacy: ‘The right of privacy is an ‘inalienable right’ secured by article I, section 1 of the California 6 Constitution. It protects against the unwarranted, compelled disclosure of various private or sensitive 7 information regarding one’s personal life, including his or her financial affairs, political affiliations, 8 medical history, sexual relationships, and confidential personnel information.” (Tien v. Super. Ct. (2006) 9 139 Cal.App.4th 528, 539.) 10 The Healthcare Insurance Portability Act of 1996 (“HIPAA”) “prohibits the unauthorized 11 disclosure or sharing of a person’s medical information and imposes civil and criminal penalties on 12 those who do.” (County of San Diego v. Mason (2012) 209 Cal.App.4th 376, 382.) When it enacted 13 HIPAA, “Congress expressed its concern for protecting the integrity and confidentiality of personal 14 medical records, and for preventing the unauthorized use or disclosure of such records. (42 U.S.C. § 15 1320d-2(d)(2).)” (Bugarin v. Chartone, Inc. (2006) 135 Cal.App.4th 1558, 1561-1562.) 16 Similarly, California’s Confidentiality of Medical Information Act (“CIMA”) “is intended to 17 protect the confidentiality of individually identifiable medical information obtained from a patient by a 18 health care provider, while at the same time setting forth limited circumstances in which the release of 19 such information to specified entities or individuals is permissible.” (Loder v. City of Glendale (1997) 20 14 Cal.4th 846, 859.) 21 The documents requested are a clear violation of the provisions of HIPAA and CMIA concerning 22 patient confidentiality. HIPAA and CMIA mandate the non-disclosure of Defendant’s records. 23 “Discovery may relate to the claim or defense of the party seeking discovery, or of any other 24 party to the action.” (Code Civ. Proc. § 2017.010.) Records of Defendant’s completion of substance- 25 abuse rehabilitation program, credit card and/or debit card statements reflecting purchase of marijuana, 26 and documents related to Defendant’s California medical marijuana license do not relate to any of 27 YARDI’s claims or defenses. There is no indication that these records would reveal any information that 28 may lead to the discovery of admissible evidence. 12 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 Disclosure of the discovery request should not be permitted because these records are neither 2 relevant to this action nor likely to lead to the discovery of relevant evidence. Disclosure of information 3 is not warranted when it is not relevant to any issue in the case. (See Shaffer v. Super. Ct. (1995) 33 4 Cal.App.4th 993, 100-1003.) The right to discovery is not unfettered and is not limitless. (Calcor, supra, 5 53 Cal.App.4th 216 at 221.) The propounding party carries the burden to establish that the discovery is 6 reasonably calculated to lead to admissible evidence. (Id.) 7 Here, YARDI has not done so. Defendant testified that he did not consume marijuana on the day 8 of the incident. (Mtn.; Ex. D.) Defendant’s completion of substance abuse program, credit card 9 transactions on the day of the incident, and medical marijuana documents will not show that Defendant 10 used marijuana on the date of the incident. Since questions over diagnosis, treatment, conditions and 11 symptoms are the type of information, which is protected by the right of privacy, it is not enough that 12 the information may lead to relevant evidence. (Board of Trustees v. Super. Ct. (1981) 119 Cal.App.3d 13 516, 525.) Defendant’s medical history and treatment are not directly relevant to YARDI’s 14 determination of scope of employment. 15 Additionally, the Court in Mannino v. Super. Ct. (1983) 142 Cal.App.3d 776, 778, recognized 16 that “the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a 17 meritorious cause or defense when the party with the greater resources chooses to employ it in an 18 unethical manner…” (Id. at 778.) “[J]udges must become more aggressive in curbing these abuses. 19 Courts must insist discovery devices be used as tools to facilitate litigation rather than as weapons to 20 wage litigation.” (Calcor Space Facility v. Super. Ct. (1997) 53 Cal.App.4th 216, 221.) 21 Courts have a substantial interest in preventing discovery abuse when an opponent seeking 22 access is motivated by ill will and would likely be tempted to cause its opponent undue embarrassment. 23 (Coalition Against Police Abuse v. Super. Ct. (1985) 170 Cal.App.3d 888, 901.) Here, YARDI claims 24 the requested records may indicate whether Charette was being truthful. (Mtn., 7:7-9 and 8:13-14.) 25 However, the requested records are a clear abuse to humiliate Defendant. 26 A party seeking production of documents must first establish good cause for said production. 27 (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.) YARDI has not met the initial burden of 28 demonstrating good cause to compel the production of the documents requested. There is no showing as 13 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 to why YARDI needs Defendant to produce documents of his substance-abuse rehabilitation program, 2 credit card and/or debit card statements reflecting purchase of marijuana, and documents related to his 3 California medical marijuana license. 4 “In law and motion practice, factual evidence is supplied to the court by way of declarations.” 5 (Calcor, supra, 53 Cal.App.4th 216 at 223.) YARDI has not submitted any evidence setting forth 6 specific facts showing good cause for the discovery sought. Instead, YARDI simply states it seeks the 7 information “in evaluating whether Charette was acting within the scope of employment at the time of 8 the accident.” (Mtn., 6:2-3.) “There is an absence of specific facts relating to each category of materials 9 sought to be produced; the justifications offered for the production are mere generalities.” (Calcor, 10 supra, 53 Cal.App.4th 216 at 224.) 11 Since there is no good cause and none is argued in YARDI’s motion, the motion should be 12 denied. 13 REQUEST FOR PRODUCTION NO. 56: 14 All DOCUMENTS related to YOUR obtaining and/or maintaining a California medical 15 marijuana license from 2016 until today. 16 INITIAL RESPONSE TO REQUEST FOR PRODUCTION NO. 56: 17 Responding party objects to this Request to the extent that it seeks information that is not 18 relevant to the subject matter of this litigation, and it is not reasonably calculated to lead to the discovery 19 of admissible evidence. Responding party further objects to this Request to the extent it seeks private 20 information, the disclosure of which would constitute an unwarranted invasion of the affected 21 individuals’ constitutional, statutory and/or common law rights to personal privacy and confidentiality. 22 Responding party further objects to this Request on the grounds that it would result in “unwarranted 23 annoyance, embarrassment, or oppression, or undue burden and expense,” and thus constitute a misuse 24 of the discovery process. See Code of Civil Procedure § 2023.10(c); see also §2030.090(b); see also 25 West Pico Furniture Co. of Los Angeles v. Sup. Ct. (Pacific Finance Loans) (1961) 56 Cal.2d 407 26 PLAINTIFFS’ REASONS TO COMPEL FURTHER RESPONSE TO REQUEST NO. 56: 27 Information is considered relevant if it might reasonably assist a party in evaluating the case, 28 preparing for trial, or facilitating settlement thereof. Stewart v. Colonial Western Agency, 87 Cal. App. 14 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 4th 1006, 1013 (2001); Lipton v. Superior Court, 48 Cal. App. 4th 1599, 1611 (1996); Gonzalez v. 2 Superior Court, 33 Cal. App. 4th 1539, 1546 (1995). It is also well-settled that doubts as to the 3 relevance of discovery sought should generally be resolved in favor of permitting discovery. Williams v. 4 Superior Court (Marshalls of CA, LLC), 3 Cal. 5th 531, 542 (2017). Yardi is seeking information from 5 Charette that is related to his history of substance abuse and potential consumption of substances that 6 were not provided to him at the company picnic or by anyone with a connection to Yardi. This 7 information will certainly assist Yardi and the Court in evaluating whether Charette was acting within 8 the scope of employment at the time of the accident. 9 Furthermore, Charette’s privacy regarding these matters must be weighed against Yardi’s interest 10 in fully investigating and defending the case that has been brought against it. Indeed, courts must 11 balance the right of civil litigants to discover relevant facts against the privacy interests of persons 12 subject to discovery. Vinson v. Superior Ct., 43 Cal. 3d 833, 835 (1987). “If an obvious invasion of 13 interest fundamental to personal autonomy is involved, then the compelling interest test applies. If the 14 invasion is less central, or is in bona fide dispute, then a general balancing test applies.” Dept. of Fair 15 Employment & Housing v. Superior Court, 99 Cal. App. 4th 896, 903 (2002). If Yardi is unable to fully 16 evaluate the claims in this case, it would be prejudiced at trial as a result. See Greyhound Corp. v. 17 Superior Court, 56 Cal. 2d 355, 377 (1961) (“a lawsuit should be an intensive search for the truth, not a 18 game to be determined in outcome by considerations of tactic and surprise”). 19 Given the nature of this case, Charette simply does not have a reasonable expectation that 20 information related to his substance abuse history remains private. Charette pleaded guilty to a felony 21 DUI for the fatal accident that is the subject of this lawsuit—a fact that directly places Charette’s alcohol 22 consumption at issue in this case. Furthermore, Charette testified under oath during his deposition that 23 he has attended at least three separate substance abuse programs since the accident—including at least 24 one court-ordered program. Records related to these programs may indicate whether Charette was being 25 truthful regarding when and where he consumed alcohol on the day of the incident. Charette placed 26 these matters into dispute when he decided to drive under the influence of alcohol on the day of the 27 incident. As such, Yardi will be extremely prejudiced if it is not given the full opportunity to defend 28 claims against it by examining Charette’s history of alcohol abuse. 15 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 2 DEFENDANTS’ REASONS WHY NO FURTHER RESPONSE IS REQUIRED: 3 A party does not waive the right to privacy by participating in a lawsuit. (Cal. Const. Art. I § 1; 4 Britt v. Superior Court (1978) 20 Cal.3d 844, 857.) Privacy is within the “penumbras” of the Bill of 5 Rights. (Griswold v. Connecticut (1965) 381 U.S. 479.) The Legislature even broadened the protections 6 against disclosure with the passage of the Right to Financial Privacy Act (Gov. Code § 7460), the 7 Insurance Information and Right to Privacy Act (Ins. Code § 791), the Health Insurance Portability and 8 Accountability Act of 1966 (“HIPAA”) (42 U.S.C. § 1320d), and California’s Confidentiality of 9 Medical Information Act (“CMIA”) (Cal. Civ. Code § 56.10.) 10 In Britt v. Superior Court (1978) 20 Cal.3d 844, the California Supreme Court found that a 11 privacy right was guaranteed in both the California Constitution and the United States Constitution. The 12 Court also stated that such privacy rights were not waived by simply participating in litigation. (Id. at 13 857.) The party must first establish that the records sought are directly relevant to the action and 14 essential to its fair resolution. (Id. at 1854; Tylo v. Super. Ct. (1997) 55 Cal.App.4th 1397, 1387.) The 15 propounding party must demonstrate that the information sought is “essential” to the case. (Britt, supra, 16 at 859.) Here, YARDI claims the documents requested are to determine whether Defendant was in the 17 scope of his employment at the time of the incident. (Mtn., 3:20-23.) However, YARDI failed to show 18 that documents from Defendant’s substance-abuse rehabilitation program, credit card transactions on the 19 day of the incident, and medical marijuana license are directly relevant to YARDI’s determination of 20 scope of employment. 21 Even if direct relevance and essentiality are found, disclosure is not automatic. The Court must 22 still carefully balance the competing interests and narrowly tailor any production so that no more than 23 what is absolutely necessary is produced. (Davis v. Super. Ct. (1992) 7 Cal.App.4th 108, 1014.) In City 24 of Carmel by the Sea v. Young (1970) 2 Cal.3d 259, the California Supreme Court recognized the 25 validity of the “right to privacy” and barred compelled disclosure. Any intervention of the state 26 constitutional right to privacy must be justified by a compelling interest. (White v. Davis (1975) 13 27 Cal.3d 757, 775; Lantz v. Super. Ct. (1994) 28 Cal.App.4th 1839, 1853.) 28 /// 16 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION DEFENDANT YARDI SYSTEMS, INC’S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS FROM DEFENDANT BRYAN PAUL CHARETTE 1 When the information being sought involves an invasion of autonomy privacy the compelling 2 interest test applies. (Hill v. NCAA (1994) 7 Cal.4th 1, 34; Dept. of Fair Employment & Housing v. 3 Super. Ct. (2002) 99 Cal.App.4th 896, 903.) Autonomy privacy is a privacy interest “in making intimate 4 personal decisions or conducting personal activities without observation, intrusion, or interference.” 5 (Hill, supra, 7 Cal.4th at 35.) The party seeking discovery must show a compelling interest if the 6 discovery involves an obvious invasion into autonomy privacy. (Williams v. Super. Ct. (Marshalls of 7 CA, LLC) (2017) 3 Cal.5th 531, 556-557.) 8 Here, YARDI requests Defendant’s private and intimate medical and financial records. There is 9 no compelling interest justifying the production of Defendant’s private records. When a party fails to 10 show that that a competing or countervailing privacy or non-privacy interest outweighs the specifically 11 identified privacy interest of the person whose records are being sought, then there is a violation of the 12 state constitutional right of privacy. (Hill v. NCAA (1994) 7 Cal.4th 1, 40.) YARDI cannot provide any 13 justification to demonstrate the need for disclosure outweighs Defendant’s privacy rights. 14 The patient has a privilege to refuse to disclose and to prevent another from disclosing a 15 confidential communication between patient and physician if the privilege is claimed by: (a) The holder 16 of the privilege; and (b) A person who is authorized to claim the privilege by the holder of the privilege. 17 (Evid. Code § 994.) 18 It is well-established that a “person’s medical profile is an area of privacy infinitely more 19 intimate, more personal in quality and nature than many areas already judicially recognized and 20 protected.” (Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669.) “The 21 patient-physician privilege creates a zone of privacy whose purposes are (1) ‘to preclude humiliation of 22 the patient that might follow disclosure of his ailments’ and (2) to encourage the patient’s full disclosure 23 to the physician of all information necessary for effective diagnosis and treatment of the patient.” 24 (Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1139-1140.) 25 In Jones v. Super. Ct. of Alameda County (1981) 119 Cal.App.3d 534, 548-549, the Court held 26 “[t]here can be little doubt that medical history is entitled to a measure of protection under both federal 27 and state constitutions…The individual