Preview
1 ROBINS CLOUD LLP
Bill Robins III (SBN 296101)
2 Manuel D. Balam (SBN 236699)
808 Wilshire Blvd., Suite 450
3 Santa Monica, California 90401
2/24/2020
4 (310) 929-4200 Telephone
(310) 566-5900 Facsimile
5 robins@robinscloud.com
mbalam@robinscloud.com
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7 Attorneys for Plaintiff
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF BUTTE
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12 CARYL LYNN WESTON, ) CASE NO: 19CV00855
) Assigned to: Judge Robert A. Glusman
13 Plaintiff, )
vs. ) PLAINTIFF’S NOTICE AND MOTION
14 ) TO QUASH SUBPOENAS FOR
)
15 STATE OF CALIFORNIA DEPARTMENT MEDICAL AND INSURANCE
)
OF TRANSPORTATION; MARK ALLEN ) RECORDS; MEMORANDUM OF
16 LAWSON, an individual; and DOES 1-50, POINTS AND AUTHORITIES
)
17 )
Defendants. ) Hearing: April 1, 2020
18 ) Time: 9:00 am
) Dept: TBA
19 )
) Complaint: March 18, 2019
20 ) Trial: August 3, 2020
21 )
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TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
23 PLEASE TAKE NOTICE THAT, on April 1, 2020, at 9:00 am in Department TBA of the above
24 Court, located at 1775 Concord Ave, Chico, CA 95928, Plaintiff CARYL LYNN WESTON (“Plaintiff”)
25 will and hereby does move for an (i) order quashing the following medical provider and insurance
26 provider subpoenas by Defendants STATE OF CALIFORNIA DEPARTMENT OF
27 TRANSPORTATION and MARK ALLEN (“Defendants”), with “issued” dates of January 23, 2020
28 (“Subpoenas”) or, (ii) alternatively, should the Court not quash entirely, a protective order modifying the
subpoenas or directing compliance with them upon those terms or conditions as the Court shall declare,
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PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE
RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES
1 as long as these terms or conditions do not invade Plaintiff’s constitutional, statutory, or common law
2 rights:
3 1) “Butte County Emergency Medical Services, LLC, Billing Records Department”
4 2) “Butte County Emergency Medical Services, LLC, Medical Records Department”
3) “California Occupational Medical Professionals, Inc., Billing Records Dept.”
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4) “California Occupational Medical Professionals, Inc., Medical Records Dept.”
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5) “Enloe Medical Center, Medical Records Department”
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6) “Enloe Rehabilitation Center, Billing Records Dept.”
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7) “…medical and billing records for Newton Medical Group, A Professional Corp.”
9 8) “…medical and billing records for Red Bluff Physical Therapy”
10 9) “Stonewood Insurance Services, Inc.”
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Except as modified above, the above subpoenas are all directed to each entity’s “Custodian of
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Record or another person qualified to certify records for…” [collectively, “Subpoenas”].
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Pursuant to CCP §§1985.3(g) and 1987.1 and applicable case law, this motion is made on, but not
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limited to, the following grounds, which are summarized here and explained in more detail in the
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accompanying Memorandum of Points and Authorities:
16 1) The Subpoenas do not reasonably particularize the documents, in violation of CCP
17 §2020.410. Calcor Space Facility, Inc. v. Sup. Court (1997) 53 Cal.App.4th 216, 222‐224.
18 They can be quashed on this ground alone.
19 2) The Subpoenas invade and violate privacy rights, including particularly important medical
20 and insurance privacy rights.
21 3) The Subpoenas are overbroad, burdensome, and oppressive and seek irrelevant information,
particularly because of the demand for “any and all” and “all” documents and
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communications with no limits on breadth, scope, or issues.
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4) Additionally, as to the Stonewood Insurance Services, Inc. subpoena, it seeks information
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protected by attorney-client privilege, work product, and the collateral source rule.
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This motion is based upon this Notice, the attached Memorandum of Points and Authorities, the
26 Declaration of Manuel D. Balam and any matters of which the Court may take judicial notice, the
27 records, pleadings and files of the Court in this matter, and any other matters submitted to the Court at
28 oral argument.
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PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE
RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES
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2 Dated: February 24, 2020 ROBINS CLOUD LLP
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4 By:_________________________
Manuel D. Balam
5 Attorneys for Plaintiff
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PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE
RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES
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MEMORANDUM OF POINTS AND AUTHORITIES
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I. INTRODUCTION AND SUMMARY OF ARGUMENT
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On April 2, 2018, Plaintiff CARYL LYNN WESTON (“Plaintiff”) was involved in an
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automobile collision with a truck driven by an employee of Defendant STATE OF CALIFORNIA
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DEPARTMENT OF TRANSPORTATION (“DOT” or “Caltrans”). Defendant MARK LAWSON
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(“Lawson” or “Employee”) was the driver of the DOT truck. Plaintiff contends that Employee made an
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abrupt left maneuver in front of Plaintiff that caused the collision. Plaintiff and Employee disagree as to
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who was at fault. Plaintiff contends she suffered serious injuries to, the following areas or injuries: 1) a
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left leg/shattered femur; 2) the hip, namely her left side; 3) right wrist/thumb/hand fracture; 4) fractures
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in the back at L2, L4 and resulting pain; 5) general physical pain and suffering, mental suffering, and
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emotional distress; and, 6) recent growths on wrist area of hands, which are being investigated.
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In response to these contentions, Defendants issued several broad subpoenas dated January 23,
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2020, consisting of 8 to Plaintiff’s medical providers and 1 to Plaintiff’s insurance entity as follows:
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15 1) “Butte County Emergency Medical Services, LLC, Billing Records Department”
16 2) “Butte County Emergency Medical Services, LLC, Medical Records Department”
17 3) “California Occupational Medical Professionals, Inc., Billing Records Dept.”
18 4) “California Occupational Medical Professionals, Inc., Medical Records Dept.”
5) “Enloe Medical Center, Medical Records Department”
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6) “Enloe Rehabilitation Center, Billing Records Dept.”
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7) “…medical and billing records for Newton Medical Group, A Professional Corp.”
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8) “…medical and billing records for Red Bluff Physical Therapy”
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9) “Stonewood Insurance Services, Inc.”
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Above Subpoenas 1 through 8 are directed to medical providers and referred to collectively as
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“Medical Subpoenas.” The Stonewood Insurance Services, Inc. subpoena is directed to Plaintiff’s
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insurer/insurance agent and referred to as “Insurer Subpoena.” All subpoenas are collectively referred to
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as “Subpoenas.” The Subpoenas are improper and subject to an order quashing them for several reasons.
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The Subpoenas do not reasonably particularize the documents, in violation of CCP §2020.410.
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Calcor Space Facility, Inc. v. Sup. Court (1997) 53 Cal.App.4th 216, 222‐224. They can be quashed on
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PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE
RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES
1
this ground alone. The Subpoenas invade and violate privacy rights, including particularly important
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medical and insurance privacy rights. The Subpoenas are overbroad, burdensome, and oppressive and
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seek irrelevant information, particularly because of the demand for “any and all” and “all” documents
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and communications with no limits on breadth, scope, or issues. Additionally, as to the Stonewood
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Insurance Services, Inc. subpoena, it seeks information protected by attorney-client privilege, work
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product, and the collateral source rule.
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For the reasons summarized above and explained in detail below, pursuant to CCP §§1985.3(g)
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and 1987.1 and applicable case law, Plaintiff therefore requests an order quashing all Subpoenas.
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Alternatively, should not quash entirely, Plaintiff requests a protective order modifying the Subpoenas
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or directing compliance with them upon those terms or conditions as the Court shall declare, as long as
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these terms or conditions do not invade Plaintiffs’ constitutional, statutory, or common law rights.
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II. FACTUAL AND PROCEDURAL BACKGROUND
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A. Incident and Contentions
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On April 2, 2018, Plaintiff CARYL LYNN WESTON (“Plaintiff”) was involved in an
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automobile collision with a truck driven by an employee of Defendant STATE OF CALIFORNIA
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DEPARTMENT OF TRANSPORTATION (“DOT” or “Caltrans”). Defendant MARK LAWSON
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(“Lawson” or “Employee”) was the driver of the DOT truck. Plaintiff contends that Employee made an
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abrupt left maneuver in front of Plaintiff that caused the collision. Plaintiff and Employee disagree as to
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who was at fault. Plaintiff contends she suffered serious injuries to, the following areas or injuries: 1) a
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left leg/shattered femur; 2) the hip, namely her left side; 3) right wrist/thumb/hand fracture; 4) fractures
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in the back at L2, L4 and resulting pain; 5) general physical pain and suffering, mental suffering, and
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emotional distress; and, 6) recent growths on wrist area of hands, which are being investigated.
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(Declaration of Manuel D. Balam, ¶2).
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B. Defendants’ Subpoenas
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In response to these contentions, Defendants issued several broad subpoenas dated January 23,
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2020, consisting of 8 to Plaintiff’s medical providers and 1 to Plaintiff’s insurance entity as follows:
27 1) “Butte County Emergency Medical Services, LLC, Billing Records Department”
28 2) “Butte County Emergency Medical Services, LLC, Medical Records Department”
3) “California Occupational Medical Professionals, Inc., Billing Records Dept.”
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PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE
RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES
1 4) “California Occupational Medical Professionals, Inc., Medical Records Dept.”
2 5) “Enloe Medical Center, Medical Records Department”
3 6) “Enloe Rehabilitation Center, Billing Records Dept.”
4 7) “…medical and billing records for Newton Medical Group, A Professional Corp.”
8) “…medical and billing records for Red Bluff Physical Therapy”
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9) “Stonewood Insurance Services, Inc.”
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7 Above Subpoenas 1 through 8 are directed to medical providers and referred to collectively as
8 “Medical Subpoenas.” The Stonewood Insurance Services, Inc. subpoena is directed to Plaintiff’s
9 insurer/insurance agent and referred to as “Insurer Subpoena.” All subpoenas are collectively referred to
10 as “Subpoenas.” The Subpoenas are improper and subject to an order quashing them for several reasons.
11 (Declaration of Manuel D. Balam, ¶3).
12 The Subpoenas literally seek every single document in each custodian’s files of all types for any
13 and all matters for all time, without any limitations or qualifications.
14 The Medical Subpoenas all contain identical language or nearly identical language with respect
15 to the medical treatment records and billing records sought (Declaration of Manuel D. Balam, ¶4):
16 As to medical treatment records:
“Any and all DOCUMENTS in your possession, custody, or control,
17 pertaining to Caryl Lynn Weston aka Lyndi Weston (DOB: July 9,
1959) from April 2, 2010 through and including the date of production,
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including but not limited to any and all medical records, pharmacy
19 records, prescription records, dates on which prescriptions were filled,
treatment records, medical summaries, charts, chart notes, psychiatric
20 records, psychological records, counseling records, imaging tests ordered,
21 imaging test results, impressions or findings of imaging test results,
photographs, laboratory reports/results, toxicology reports/results, drug
22 screening tests/results, histories provided by patient, diagnosis, medical
testing, recommended treatments, prognosis, radiological testing/results,
23 x-rays, CT scans, MRIs, discharge records, and correspondence. DO NOT
24 include any gynecological records.”
As to billing records:
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26 “Any and all patient financial DOCUMENTS in your possession, custody,
or control, pertaining to Caryl Lynn Weston aka Lyndi Weston (DOB:
27 July 9, 1959) from April 2, 2010 through and including the date of
28 production, including but not limited to claims, coverages, invoices,
billings, payments applied to account from any source including write-
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PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE
RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES
1 offs, adjustments, explanations of benefits (EOBs), ARI statements, write-
downs, contractual allowances, written history of payments made by the
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patient, insurance companies, Medicare, Medi-Cal, workers'
3 compensation, monetary disbursements, billed rates, paid rates, and
correspondence.”
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They also ask the deponent to “Please redact all social security numbers.” (Declaration of
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Manuel D. Balam, ¶5):
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The “Stonewood Insurance Services, Inc.” subpoena has similar but notably different categories,
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which also include medical treatment and billing records (Declaration of Manuel D. Balam, ¶6):
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“RECORDS CATEGORY NUMBER 1
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10 Produce all WRITINGS, as defined in California Evidence Code section
250, including but not limited to electronically stored information, which
11 show insurance coverage to your alleged insured Caryl Lynn Weston aka
Lyndi Weston (DOB: July 9, 1959) for April 2, 2018, including but not
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limited to insurance policies, declaration pages, certificates of insurance,
13 correspondence, and other documents regarding such coverage and/or
potential coverage.”
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15 “RECORDS CATEGORY NUMBER 2
16 Produce all WRITINGS, as defined in California Evidence Code section
250, including but not limited to electronically stored information, that
17 pertain to a motor vehicle collision involving your alleged insured Caryl
18 Lynn Weston aka Lyndi Weston (DOB: July 9, 1959), policy number
GSP90028333-04, for a motor vehicle collision which occurred on Apri1
19 2, 2018, in the unincorporated area of Chico, Butte County, California,
including but not limited to claims made against the policy, settlements,
20 proposed settlements, settlement offers, estimates, repair records,
21 photographs, reports, police reports, fire reports, explanation of benefits
(EOBs), medical bills, medical records, medical summaries, charts, chart
22 notes, psychological records, counseling records, prescription records,
images, photographs, x-rays, laboratory reports/results, toxicology
23 reports/results, ambulance records, claims, coverages, invoices, billings
24 and payments applied to account from any source including write-offs,
adjustments, ARI statements, write-downs, contractual allowances, written
25 history of payments made by patient, insurance companies, Medicare,
Medi-Cal, worker's compensation, write-offs and adjustments, monetary
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disbursements, billed rates, paid rates, correspondence, and all other
27 documents and WRITINGS related to the policy that are in your
possession.”
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PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE
RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES
1 “RECORDS CATEGORY NUMBER 3
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Produce all WRITINGS, as defined in California Evidence Code section
3 250, including but not limited to electronically stored information, that
pertain to your policy number GSP90028333-04, issued to your alleged
4 insured Caryl Lynn Weston aka Lyndi Weston (DOB: July 9, 1959) from
April 2, 2018 through and including the date of production, including but
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not limited to insurance policies, declaration pages, certificates of
6 insurance, correspondence, and other documents regarding such policy.”
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Because of the sweeping and all-encompassing nature of the Insurer Subpoena, it
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is treated herein the same as the Medical Subpoenas, although the additional aspects
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triggered by the Insurance Subpoena are addressed in an additional section. (Declaration
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of Manuel D. Balam ¶7).
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E. Meet and confer process
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Defendants’ handling attorney, Darren Nakashima (“Nakashima”) served notices of
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unavailability (in part due to paternity leave issues) to inform and warn Plaintiff’s counsel about
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undertaking discovery and motion during his absences of November 4, 2019-November 29, 2019 and
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December 23, 2019-January 3, 2020. (Declaration of Manuel D. Balam ¶8).
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Originally, Defendants’ counsel issued nearly identical subpoenas with an issue date of October
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28, 2019. (Declaration of Manuel D. Balam ¶9).
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On November 15, 2019, Plaintiff’s counsel sent by FAX and EMAIL a letter addressed to
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Defendants’ counsel. The letter generally identified some of the objections and contained a simple
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request and proposal that the parties agree to move the compliance deadline pending the handling
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attorney’s (Nakashima) return to allow a meet and confer with him, or to confer with anyone else with a
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lengthier meet and confer letter. (Declaration of Manuel D. Balam ¶10).
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On November 19, 2019, Defendants’ counsel, Douglas Johnson, wrote back stating that he was
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available to address the issues and requested a “lengthier” letter. However, Defendants’ counsel did not
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agree to move the compliance deadline at that time. Plaintiff’s counsel responded right away at 1:20 pm
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with a lengthier meet and confer letter. (Declaration of Manuel D. Balam ¶11).
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On November 21, 2019, Defendants’ counsel sent a response letter to the objections, disagreed
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with Plaintiff’s counsel, and refused to move the compliance deadline: “We are prepared to oppose any
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PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE
RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES
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Motion to Quash you choose to file and will request attorney’s fees and sanctions for having to do so.”
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(Declaration of Manuel D. Balam ¶12).
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Refusing to give up the meet and confer effort notwithstanding Defendants’ counsel’s
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unreasonableness and unwillingness to consider alternatives, Plaintiff’s counsel immediately sent a
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response email with a copy of a publication article further explaining the basis for the objections and
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issue and how “first look” agreements work as a resolution option. Plaintiff’s counsel proposed once
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again further meet and confer resolution options. (Declaration of Manuel D. Balam ¶13).
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On November 22, 2019, Plaintiff’s counsel followed up again to inform of an additional
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procedural defect regarding the failure to direct the Subpoenas to the “custodian” and once again
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inviting dialogue. (Declaration of Manuel D. Balam ¶14).
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On November 22, 2019, the original subpoenas were withdrawn. Plaintiff’s counsel did not fully
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understand the specific reasons. (Declaration of Manuel D. Balam ¶15).
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After the primary handling attorney (Nakashima) returned from leave, the new, at issue
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Subpoenas were issued by Subpoenas dated January 23, 2020. (Declaration of Manuel D. Balam ¶16).
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As before, during a call on other discovery issues, Plaintiff’s counsel initial mentioned to
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Nakashima that the parties would need to revisit the subpoena issues. (Declaration of Manuel D. Balam
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¶17).
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By email dated February 14, 2020, Plaintiff’s counsel sent a meet and confer email substantially
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similar to the above described process with the re-asserted objections. Plaintiff’s counsel attached the
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prior email threads and correspondence. (Declaration of Manuel D. Balam ¶18).
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On February 19, 2020, not having received any response, Plaintiff’s counsel followed up with
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Defendants’ counsel. No response was received that day or that week. (Declaration of Manuel D.
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Balam ¶19).
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On February 21, 2020, not having received any response, Plaintiff’s counsel reached out to all
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deponents, informed them of the pending issues, and then notified Defendants’ counsel of the status.
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Plaintiff’s counsel asked for a follow up. (Declaration of Manuel D. Balam ¶20).
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At 4:51 pm on February 21, 2020, Defendants’ counsel finally responded with an email stating
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why the prior subpoenas were withdrawn and stating that the prior November 21, 2019 meet and confer
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PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE
RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES
1
letter from Defendants’ counsel still stood and had not changed. Defendants’ counsel did not agree to
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move the compliance deadline and did not agree to any “first look” arrangement. Thus, these
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proceedings ensued. (Declaration of Manuel D. Balam ¶21).
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Notwithstanding Defendants’ counsel’s refusal to work together towards some mutually
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agreeable process to protect and address the issues involved, and given the sensitive and important
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nature of the rights at issue, Plaintiff is willing to forego any sanctions requests at this time if
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Defendants and their counsel withdraw the Subpoenas or agree to modify them before the hearing on
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this motion. Should Defendants and their counsel persist, Plaintiff reserves the right to file a
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supplemental declaration explaining expenses and time incurred or a separate motion for fees and costs.
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However, Plaintiff emphasizes that this issue should have been and should be resolved informally
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without burdening the Court and, therefore, apologizes to the Court. (Declaration of Manuel D. Balam
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¶22)
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III. ARGUMENT
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A. Standards for Motion to Quash
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The Court is authorized to quash and/or modify subpoenas and/or to issue a protective order to
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protect a consumer from unreasonable violations of his or her right to privacy. Specifically, California
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Code of Civil Procedure section 1987.1 subdivisions (a) and (b) provide that a party may bring a motion
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to quash and/or modify a subpoena. In turn, the Court may make an order quashing the subpoena
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entirely, modifying it, or directing compliance with it upon such terms or conditions as the Court shall
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declare, including protective orders. (CCP §1987.1).
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In addition, the court may make any other order as may be appropriate to protect a consumer
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from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of a
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person. (CCP §1987.1; see also CCP §2025.420). Thus, here, the Court can issue the requested order(s).
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B. The Subpoenas are procedurally defective and can be quashed.
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The Subpoenas do not designate the documents, tangible things, land or other property, or other
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document to be inspected or produced, either by specifically describing each individual item or by
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reasonably particularizing each category of item; therefore, they are also overbroad, oppressive, and
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PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE
RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES
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burdensome. CCP §2020.410; Calcor Space Facility, Inc. v. Sup. Court (1997) 53 Cal.App.4th 216,
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222‐224 (“Calcor”). They can be quashed on this ground alone.
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Essentially, the categories of documents described in the Subpoenas here are so broad that they
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in effect ask for everything in each deponent-custodian’s possession relating to Plaintiff, with no limits
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or qualifications. Such a subpoena is unduly burdensome and unenforceable. Calcor Space Facility,
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Inc. v. Sup.Ct. at 224.
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Indeed, recognizing the potential for abuse of nonparty deponents, the Calcor Court explained
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the following and read into the subpoena statute the same burden imposed on the requesting party with
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respect to document requests:
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“Although the scope of civil discovery is broad, it is not limitless. Section 2017, subdivision (a)
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provides matters are subject to discovery ‘if the matter either is itself admissible in evidence or appears
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reasonably calculated to lead to the discovery of admissible evidence.’ The burden rests upon the party
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seeking the discovery to provide evidence from which the court may determine these conditions are met.
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Section 2031, subdivision (l), which applies to document production requests served on a party, requires
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a party seeking to compel such production to ‘set forth specific facts showing good cause justifying the
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discovery sought by the inspection demand....’ Section 2020, the statute at issue contains no such
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specific requirement. However, since both sections are part of a single statutory scheme, and since it is
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unlikely the Legislature intended to place greater burdens on a nonparty than on a party to the litigation,
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we read a similar requirement into the latter section.”
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Defendants’ Subpoenas are a prototypical example of the concerns expressed by the Legislature
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and Courts with respect to document subpoenas. They are not supposed to be used in a limitless,
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abusive, oppressive, and/or harassing manner. The Courts do not enforce such subpoenas. Yet, that is
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precisely what Defendants have done and attempt to do here. The Subpoenas are fundamentally
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procedurally flawed. Accordingly, Plaintiff requests an order quashing each of the Subpoenas.
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C. The Subpoenas invade constitutional and statutory privacy rights.
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Given the broad, limitless use of the phrasing “any and all” and “all” (as quoted above), Plaintiff
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objects that the Subpoenas necessarily seek information/documents (hard and electronic) that would
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violate the right to privacy of Plaintiff and other third persons or entities, which is protected under the
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PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE
RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES
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United States Constitution, California Constitution, Article I, Section 1, Government Code §7460 et.
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seq., Evid. Code §1060, C.C.P §§1985.3 and 1985.6, Health Insurance Portability and Accountability
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Act of 1996 (42 U.S.C. § 1320d et seq.) (HIPAA), the Insurance Code §§791, et seq., or any other
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constitutional, statutory, evidentiary, or common law privilege or protection, or which otherwise reflects
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or discloses other private, confidential, proprietary or financial information of Plaintiffs and any third
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persons or entities. Britt v. Sup. Court (1978) 20 Cal.3d 844; In re Lifschutz (1970) 2 Cal.3d 415;
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Roberts v. Sup. Court (1973) 9 Cal.3d 330; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40
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Cal.4th 360; Belaire‐West Landscape, Inc. v. Sup. Court (2007) 149 Cal.App.4th 554; San Diego
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Trolley, Inc. v. Sup. Court (2001) 87 Cal.Appl.4th 1083; Life Technologies Corp. v. Sup. Court (2011)
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197 Cal.App.4th 640; Alch v. Sup. Court (Time Warner Entertainment Company) (2008) 165
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Cal.App.4th 1412; Boler v. Sup. Court (Everett) (1987) 201 Cal.App.3d 467; Gordon v. Sup. Court
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(1997) 55 Cal.App.4th 1546.
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There is also a taxpayer privilege. Webb v. Standard Oil Co. (1957) 49 Cal.2d 509, 513‐514.
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And, of course, social security numbers are specifically protected. CRC Rule §1.20(b)(2)(A).
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Whenever matters protected by privacy are sought, the burden is on the subpoenaing party to
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demonstrate a particularized need for the confidential information sought. The broad relevancy to the
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subject matter is not enough. Britt v. Superior Court (1978) 20 Cal.3d 844, 859‐862 and Harris v.
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Superior Court (1992) 3 Cal.App.4th 661, 665. The more sensitive the information, the greater the need
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for discovery must be shown. Hoffman Corp v. Superior Court (1985) 172 Cal.App.3d 357, 362 and
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Tien v. Superior Court (2006) 139 Cal.App.4th 528, 540.
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Accordingly, Plaintiff requests an order quashing each Subpoena in its entirety.
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D. Medical records are particularly intimate and personal, warranting privacy
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protection, and a personal injury lawsuit does not waive the right to privacy.
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Throughout this litigation and even as to these Subpoenas, Defendants seem to contend that
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Plaintiff has waived privacy rights by filing this personal injury lawsuit. As the Supreme Court has
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explained in many cases, that contention is patently wrong and false.
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A person’s medical history and records are protected by the constitutional right to privacy.
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(John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198). A person’s medical history is an area of
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PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE
RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES
1
“privacy infinitely more intimate, more personal in quality and nature than many areas already
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judicially recognized and protected.” (People v. Martinez (2001) 88 Cal.App.4th 465, 475 [quoting
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Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 678]).
4
Accordingly, when a party seeks discovery of medical records, that party has the burden of
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establishing that the private information is directly relevant to the plaintiff’s claim and essential to the
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fair resolution of the lawsuit. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014, 1017). A
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plaintiff cannot be compelled to disclose medical records that do not relate to the injuries at issue in the
8
case, even though they may, in some sense, be relevant to the substantive issues of litigation. (Britt v.
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Superior Court (1978) 20 Cal. 3d 844, 864). The California Constitution and the California Supreme
10
Court safeguard Plaintiff’s right to protect unrelated sensitive medical information. The only aspect of
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Plaintiff’s medical condition that Plaintiff has placed at issue is the past and present condition related to
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the injury sued upon. Britt v. Superior Court ((1978) 20 Cal.3d 844, 862-864 (“Britt”).
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The California Supreme Court made it clear in Britt that the mere filing of a personal injury
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lawsuit does not waive a plaintiff’s constitutional privacy rights and that a plaintiff is “entitled to retain
15
the confidentiality of all unrelated medical treatment [the plaintiff] may have undergone in the past.”
16
Id.; see also Vinson v. Superior Court (1987) 43 Cal.3d 833, 842; Davis v. Superior (1992) 7
17
Cal.App.4th 1008.
18
The case law makes it clear that filing a personal injury lawsuit does not open up a plaintiff's
19
lifetime medical history and that an implicit waiver of a party's constitutional privacy rights concerning
20
the specific ailments complained of encompasses only discovery directly relevant to the plaintiff's
21
claim. A plaintiff can still assert the right of privacy to prevent disclosure of confidential medical
22
information not directly relevant to the lawsuit.
23
The party seeking discovery must show a particularized need for the confidential information
24
sought. The broad “relevancy to the subject matter” standard is not enough here. The court must be
25
convinced that the information is directly relevant to a cause of action or defense, i.e., that it is essential
26
to determining the truth of the matters in dispute. Britt at 859-862; Harris v. Sup.Ct. (1992) 3
27
Cal.App.4th 661, 665 (disapproved on other grounds in Williams v. Sup.Ct. (2017) 3 Cal.5th 531, 557,
28
220 CR3d 472, 494 & fn. 8).
13
PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE
RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES
1
Here, Plaintiff contends she suffered serious injuries to the following areas: 1) a left
2
leg/shattered femur; 2) the hip, namely her left side; 3) right wrist/thumb/hand fracture; 4) fractures in
3
the back at L2, L4 and resulting pain; 5) general physical pain and suffering, mental suffering, and
4
emotional distress; and, 6) recent growths on wrist area of hands, which are being investigated.
5
(Declaration of Manuel D. Balam, ¶2).
6
As these are the injuries which Plaintiff has placed at issue in this case, Defendants are entitled
7
to obtain medical and billing records concerning these injuries/conditions. However, Defendants refuse
8
to modify the subpoena and limit the documents sought to those relating to the above-listed areas or
9
injuries/conditions. This is despite the fact that Defendants are not entitled to review Plaintiff’s entire
10
medical history in the hope that it may disclose some condition bearing on her present claim. Roberts
11
v. Superior Court (1973) 9 Cal.3d 330, 339.
12
As any record concerning medical conditions and/or treatment received by Plaintiff which is
13
unrelated to the injuries at issue in this case is protected by Plaintiff’s constitutional right to privacy,
14
Defendants must modify the Subpoenas by limiting the records sought to those that are related to the
15
injuries at issue in this case.
16
It is expected that Defendants may argue that Defendants are unable to determine whether a
17
medical record is relevant until Defendants review the medical record itself. Howe
Preview
1 ROBINS CLOUD LLP Bill Robins III (SBN 296101) 2 Manuel D. Balam (SBN 236699) 808 Wilshire Blvd., Suite 450 3 Santa Monica, California 90401 2/24/2020 4 (310) 929-4200 Telephone (310) 566-5900 Facsimile 5 robins@robinscloud.com mbalam@robinscloud.com 6 7 Attorneys for Plaintiff 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF BUTTE 11 12 CARYL LYNN WESTON, ) CASE NO: 19CV00855 ) Assigned to: Judge Robert A. Glusman 13 Plaintiff, ) vs. ) PLAINTIFF’S NOTICE AND MOTION 14 ) TO QUASH SUBPOENAS FOR ) 15 STATE OF CALIFORNIA DEPARTMENT MEDICAL AND INSURANCE ) OF TRANSPORTATION; MARK ALLEN ) RECORDS; MEMORANDUM OF 16 LAWSON, an individual; and DOES 1-50, POINTS AND AUTHORITIES ) 17 ) Defendants. ) Hearing: April 1, 2020 18 ) Time: 9:00 am ) Dept: TBA 19 ) ) Complaint: March 18, 2019 20 ) Trial: August 3, 2020 21 ) 22 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: 23 PLEASE TAKE NOTICE THAT, on April 1, 2020, at 9:00 am in Department TBA of the above 24 Court, located at 1775 Concord Ave, Chico, CA 95928, Plaintiff CARYL LYNN WESTON (“Plaintiff”) 25 will and hereby does move for an (i) order quashing the following medical provider and insurance 26 provider subpoenas by Defendants STATE OF CALIFORNIA DEPARTMENT OF 27 TRANSPORTATION and MARK ALLEN (“Defendants”), with “issued” dates of January 23, 2020 28 (“Subpoenas”) or, (ii) alternatively, should the Court not quash entirely, a protective order modifying the subpoenas or directing compliance with them upon those terms or conditions as the Court shall declare, 1 PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES 1 as long as these terms or conditions do not invade Plaintiff’s constitutional, statutory, or common law 2 rights: 3 1) “Butte County Emergency Medical Services, LLC, Billing Records Department” 4 2) “Butte County Emergency Medical Services, LLC, Medical Records Department” 3) “California Occupational Medical Professionals, Inc., Billing Records Dept.” 5 4) “California Occupational Medical Professionals, Inc., Medical Records Dept.” 6 5) “Enloe Medical Center, Medical Records Department” 7 6) “Enloe Rehabilitation Center, Billing Records Dept.” 8 7) “…medical and billing records for Newton Medical Group, A Professional Corp.” 9 8) “…medical and billing records for Red Bluff Physical Therapy” 10 9) “Stonewood Insurance Services, Inc.” 11 Except as modified above, the above subpoenas are all directed to each entity’s “Custodian of 12 Record or another person qualified to certify records for…” [collectively, “Subpoenas”]. 13 Pursuant to CCP §§1985.3(g) and 1987.1 and applicable case law, this motion is made on, but not 14 limited to, the following grounds, which are summarized here and explained in more detail in the 15 accompanying Memorandum of Points and Authorities: 16 1) The Subpoenas do not reasonably particularize the documents, in violation of CCP 17 §2020.410. Calcor Space Facility, Inc. v. Sup. Court (1997) 53 Cal.App.4th 216, 222‐224. 18 They can be quashed on this ground alone. 19 2) The Subpoenas invade and violate privacy rights, including particularly important medical 20 and insurance privacy rights. 21 3) The Subpoenas are overbroad, burdensome, and oppressive and seek irrelevant information, particularly because of the demand for “any and all” and “all” documents and 22 communications with no limits on breadth, scope, or issues. 23 4) Additionally, as to the Stonewood Insurance Services, Inc. subpoena, it seeks information 24 protected by attorney-client privilege, work product, and the collateral source rule. 25 This motion is based upon this Notice, the attached Memorandum of Points and Authorities, the 26 Declaration of Manuel D. Balam and any matters of which the Court may take judicial notice, the 27 records, pleadings and files of the Court in this matter, and any other matters submitted to the Court at 28 oral argument. 2 PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES 1 2 Dated: February 24, 2020 ROBINS CLOUD LLP 3 4 By:_________________________ Manuel D. Balam 5 Attorneys for Plaintiff 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION AND SUMMARY OF ARGUMENT 3 On April 2, 2018, Plaintiff CARYL LYNN WESTON (“Plaintiff”) was involved in an 4 automobile collision with a truck driven by an employee of Defendant STATE OF CALIFORNIA 5 DEPARTMENT OF TRANSPORTATION (“DOT” or “Caltrans”). Defendant MARK LAWSON 6 (“Lawson” or “Employee”) was the driver of the DOT truck. Plaintiff contends that Employee made an 7 abrupt left maneuver in front of Plaintiff that caused the collision. Plaintiff and Employee disagree as to 8 who was at fault. Plaintiff contends she suffered serious injuries to, the following areas or injuries: 1) a 9 left leg/shattered femur; 2) the hip, namely her left side; 3) right wrist/thumb/hand fracture; 4) fractures 10 in the back at L2, L4 and resulting pain; 5) general physical pain and suffering, mental suffering, and 11 emotional distress; and, 6) recent growths on wrist area of hands, which are being investigated. 12 In response to these contentions, Defendants issued several broad subpoenas dated January 23, 13 2020, consisting of 8 to Plaintiff’s medical providers and 1 to Plaintiff’s insurance entity as follows: 14 15 1) “Butte County Emergency Medical Services, LLC, Billing Records Department” 16 2) “Butte County Emergency Medical Services, LLC, Medical Records Department” 17 3) “California Occupational Medical Professionals, Inc., Billing Records Dept.” 18 4) “California Occupational Medical Professionals, Inc., Medical Records Dept.” 5) “Enloe Medical Center, Medical Records Department” 19 6) “Enloe Rehabilitation Center, Billing Records Dept.” 20 7) “…medical and billing records for Newton Medical Group, A Professional Corp.” 21 8) “…medical and billing records for Red Bluff Physical Therapy” 22 9) “Stonewood Insurance Services, Inc.” 23 Above Subpoenas 1 through 8 are directed to medical providers and referred to collectively as 24 “Medical Subpoenas.” The Stonewood Insurance Services, Inc. subpoena is directed to Plaintiff’s 25 insurer/insurance agent and referred to as “Insurer Subpoena.” All subpoenas are collectively referred to 26 as “Subpoenas.” The Subpoenas are improper and subject to an order quashing them for several reasons. 27 The Subpoenas do not reasonably particularize the documents, in violation of CCP §2020.410. 28 Calcor Space Facility, Inc. v. Sup. Court (1997) 53 Cal.App.4th 216, 222‐224. They can be quashed on 4 PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES 1 this ground alone. The Subpoenas invade and violate privacy rights, including particularly important 2 medical and insurance privacy rights. The Subpoenas are overbroad, burdensome, and oppressive and 3 seek irrelevant information, particularly because of the demand for “any and all” and “all” documents 4 and communications with no limits on breadth, scope, or issues. Additionally, as to the Stonewood 5 Insurance Services, Inc. subpoena, it seeks information protected by attorney-client privilege, work 6 product, and the collateral source rule. 7 For the reasons summarized above and explained in detail below, pursuant to CCP §§1985.3(g) 8 and 1987.1 and applicable case law, Plaintiff therefore requests an order quashing all Subpoenas. 9 Alternatively, should not quash entirely, Plaintiff requests a protective order modifying the Subpoenas 10 or directing compliance with them upon those terms or conditions as the Court shall declare, as long as 11 these terms or conditions do not invade Plaintiffs’ constitutional, statutory, or common law rights. 12 II. FACTUAL AND PROCEDURAL BACKGROUND 13 A. Incident and Contentions 14 On April 2, 2018, Plaintiff CARYL LYNN WESTON (“Plaintiff”) was involved in an 15 automobile collision with a truck driven by an employee of Defendant STATE OF CALIFORNIA 16 DEPARTMENT OF TRANSPORTATION (“DOT” or “Caltrans”). Defendant MARK LAWSON 17 (“Lawson” or “Employee”) was the driver of the DOT truck. Plaintiff contends that Employee made an 18 abrupt left maneuver in front of Plaintiff that caused the collision. Plaintiff and Employee disagree as to 19 who was at fault. Plaintiff contends she suffered serious injuries to, the following areas or injuries: 1) a 20 left leg/shattered femur; 2) the hip, namely her left side; 3) right wrist/thumb/hand fracture; 4) fractures 21 in the back at L2, L4 and resulting pain; 5) general physical pain and suffering, mental suffering, and 22 emotional distress; and, 6) recent growths on wrist area of hands, which are being investigated. 23 (Declaration of Manuel D. Balam, ¶2). 24 B. Defendants’ Subpoenas 25 In response to these contentions, Defendants issued several broad subpoenas dated January 23, 26 2020, consisting of 8 to Plaintiff’s medical providers and 1 to Plaintiff’s insurance entity as follows: 27 1) “Butte County Emergency Medical Services, LLC, Billing Records Department” 28 2) “Butte County Emergency Medical Services, LLC, Medical Records Department” 3) “California Occupational Medical Professionals, Inc., Billing Records Dept.” 5 PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES 1 4) “California Occupational Medical Professionals, Inc., Medical Records Dept.” 2 5) “Enloe Medical Center, Medical Records Department” 3 6) “Enloe Rehabilitation Center, Billing Records Dept.” 4 7) “…medical and billing records for Newton Medical Group, A Professional Corp.” 8) “…medical and billing records for Red Bluff Physical Therapy” 5 9) “Stonewood Insurance Services, Inc.” 6 7 Above Subpoenas 1 through 8 are directed to medical providers and referred to collectively as 8 “Medical Subpoenas.” The Stonewood Insurance Services, Inc. subpoena is directed to Plaintiff’s 9 insurer/insurance agent and referred to as “Insurer Subpoena.” All subpoenas are collectively referred to 10 as “Subpoenas.” The Subpoenas are improper and subject to an order quashing them for several reasons. 11 (Declaration of Manuel D. Balam, ¶3). 12 The Subpoenas literally seek every single document in each custodian’s files of all types for any 13 and all matters for all time, without any limitations or qualifications. 14 The Medical Subpoenas all contain identical language or nearly identical language with respect 15 to the medical treatment records and billing records sought (Declaration of Manuel D. Balam, ¶4): 16 As to medical treatment records: “Any and all DOCUMENTS in your possession, custody, or control, 17 pertaining to Caryl Lynn Weston aka Lyndi Weston (DOB: July 9, 1959) from April 2, 2010 through and including the date of production, 18 including but not limited to any and all medical records, pharmacy 19 records, prescription records, dates on which prescriptions were filled, treatment records, medical summaries, charts, chart notes, psychiatric 20 records, psychological records, counseling records, imaging tests ordered, 21 imaging test results, impressions or findings of imaging test results, photographs, laboratory reports/results, toxicology reports/results, drug 22 screening tests/results, histories provided by patient, diagnosis, medical testing, recommended treatments, prognosis, radiological testing/results, 23 x-rays, CT scans, MRIs, discharge records, and correspondence. DO NOT 24 include any gynecological records.” As to billing records: 25 26 “Any and all patient financial DOCUMENTS in your possession, custody, or control, pertaining to Caryl Lynn Weston aka Lyndi Weston (DOB: 27 July 9, 1959) from April 2, 2010 through and including the date of 28 production, including but not limited to claims, coverages, invoices, billings, payments applied to account from any source including write- 6 PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES 1 offs, adjustments, explanations of benefits (EOBs), ARI statements, write- downs, contractual allowances, written history of payments made by the 2 patient, insurance companies, Medicare, Medi-Cal, workers' 3 compensation, monetary disbursements, billed rates, paid rates, and correspondence.” 4 They also ask the deponent to “Please redact all social security numbers.” (Declaration of 5 Manuel D. Balam, ¶5): 6 The “Stonewood Insurance Services, Inc.” subpoena has similar but notably different categories, 7 which also include medical treatment and billing records (Declaration of Manuel D. Balam, ¶6): 8 “RECORDS CATEGORY NUMBER 1 9 10 Produce all WRITINGS, as defined in California Evidence Code section 250, including but not limited to electronically stored information, which 11 show insurance coverage to your alleged insured Caryl Lynn Weston aka Lyndi Weston (DOB: July 9, 1959) for April 2, 2018, including but not 12 limited to insurance policies, declaration pages, certificates of insurance, 13 correspondence, and other documents regarding such coverage and/or potential coverage.” 14 15 “RECORDS CATEGORY NUMBER 2 16 Produce all WRITINGS, as defined in California Evidence Code section 250, including but not limited to electronically stored information, that 17 pertain to a motor vehicle collision involving your alleged insured Caryl 18 Lynn Weston aka Lyndi Weston (DOB: July 9, 1959), policy number GSP90028333-04, for a motor vehicle collision which occurred on Apri1 19 2, 2018, in the unincorporated area of Chico, Butte County, California, including but not limited to claims made against the policy, settlements, 20 proposed settlements, settlement offers, estimates, repair records, 21 photographs, reports, police reports, fire reports, explanation of benefits (EOBs), medical bills, medical records, medical summaries, charts, chart 22 notes, psychological records, counseling records, prescription records, images, photographs, x-rays, laboratory reports/results, toxicology 23 reports/results, ambulance records, claims, coverages, invoices, billings 24 and payments applied to account from any source including write-offs, adjustments, ARI statements, write-downs, contractual allowances, written 25 history of payments made by patient, insurance companies, Medicare, Medi-Cal, worker's compensation, write-offs and adjustments, monetary 26 disbursements, billed rates, paid rates, correspondence, and all other 27 documents and WRITINGS related to the policy that are in your possession.” 28 7 PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES 1 “RECORDS CATEGORY NUMBER 3 2 Produce all WRITINGS, as defined in California Evidence Code section 3 250, including but not limited to electronically stored information, that pertain to your policy number GSP90028333-04, issued to your alleged 4 insured Caryl Lynn Weston aka Lyndi Weston (DOB: July 9, 1959) from April 2, 2018 through and including the date of production, including but 5 not limited to insurance policies, declaration pages, certificates of 6 insurance, correspondence, and other documents regarding such policy.” 7 Because of the sweeping and all-encompassing nature of the Insurer Subpoena, it 8 is treated herein the same as the Medical Subpoenas, although the additional aspects 9 triggered by the Insurance Subpoena are addressed in an additional section. (Declaration 10 of Manuel D. Balam ¶7). 11 E. Meet and confer process 12 Defendants’ handling attorney, Darren Nakashima (“Nakashima”) served notices of 13 unavailability (in part due to paternity leave issues) to inform and warn Plaintiff’s counsel about 14 undertaking discovery and motion during his absences of November 4, 2019-November 29, 2019 and 15 December 23, 2019-January 3, 2020. (Declaration of Manuel D. Balam ¶8). 16 Originally, Defendants’ counsel issued nearly identical subpoenas with an issue date of October 17 28, 2019. (Declaration of Manuel D. Balam ¶9). 18 On November 15, 2019, Plaintiff’s counsel sent by FAX and EMAIL a letter addressed to 19 Defendants’ counsel. The letter generally identified some of the objections and contained a simple 20 request and proposal that the parties agree to move the compliance deadline pending the handling 21 attorney’s (Nakashima) return to allow a meet and confer with him, or to confer with anyone else with a 22 lengthier meet and confer letter. (Declaration of Manuel D. Balam ¶10). 23 On November 19, 2019, Defendants’ counsel, Douglas Johnson, wrote back stating that he was 24 available to address the issues and requested a “lengthier” letter. However, Defendants’ counsel did not 25 agree to move the compliance deadline at that time. Plaintiff’s counsel responded right away at 1:20 pm 26 with a lengthier meet and confer letter. (Declaration of Manuel D. Balam ¶11). 27 On November 21, 2019, Defendants’ counsel sent a response letter to the objections, disagreed 28 with Plaintiff’s counsel, and refused to move the compliance deadline: “We are prepared to oppose any 8 PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES 1 Motion to Quash you choose to file and will request attorney’s fees and sanctions for having to do so.” 2 (Declaration of Manuel D. Balam ¶12). 3 Refusing to give up the meet and confer effort notwithstanding Defendants’ counsel’s 4 unreasonableness and unwillingness to consider alternatives, Plaintiff’s counsel immediately sent a 5 response email with a copy of a publication article further explaining the basis for the objections and 6 issue and how “first look” agreements work as a resolution option. Plaintiff’s counsel proposed once 7 again further meet and confer resolution options. (Declaration of Manuel D. Balam ¶13). 8 On November 22, 2019, Plaintiff’s counsel followed up again to inform of an additional 9 procedural defect regarding the failure to direct the Subpoenas to the “custodian” and once again 10 inviting dialogue. (Declaration of Manuel D. Balam ¶14). 11 On November 22, 2019, the original subpoenas were withdrawn. Plaintiff’s counsel did not fully 12 understand the specific reasons. (Declaration of Manuel D. Balam ¶15). 13 After the primary handling attorney (Nakashima) returned from leave, the new, at issue 14 Subpoenas were issued by Subpoenas dated January 23, 2020. (Declaration of Manuel D. Balam ¶16). 15 As before, during a call on other discovery issues, Plaintiff’s counsel initial mentioned to 16 Nakashima that the parties would need to revisit the subpoena issues. (Declaration of Manuel D. Balam 17 ¶17). 18 By email dated February 14, 2020, Plaintiff’s counsel sent a meet and confer email substantially 19 similar to the above described process with the re-asserted objections. Plaintiff’s counsel attached the 20 prior email threads and correspondence. (Declaration of Manuel D. Balam ¶18). 21 On February 19, 2020, not having received any response, Plaintiff’s counsel followed up with 22 Defendants’ counsel. No response was received that day or that week. (Declaration of Manuel D. 23 Balam ¶19). 24 On February 21, 2020, not having received any response, Plaintiff’s counsel reached out to all 25 deponents, informed them of the pending issues, and then notified Defendants’ counsel of the status. 26 Plaintiff’s counsel asked for a follow up. (Declaration of Manuel D. Balam ¶20). 27 At 4:51 pm on February 21, 2020, Defendants’ counsel finally responded with an email stating 28 why the prior subpoenas were withdrawn and stating that the prior November 21, 2019 meet and confer 9 PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES 1 letter from Defendants’ counsel still stood and had not changed. Defendants’ counsel did not agree to 2 move the compliance deadline and did not agree to any “first look” arrangement. Thus, these 3 proceedings ensued. (Declaration of Manuel D. Balam ¶21). 4 Notwithstanding Defendants’ counsel’s refusal to work together towards some mutually 5 agreeable process to protect and address the issues involved, and given the sensitive and important 6 nature of the rights at issue, Plaintiff is willing to forego any sanctions requests at this time if 7 Defendants and their counsel withdraw the Subpoenas or agree to modify them before the hearing on 8 this motion. Should Defendants and their counsel persist, Plaintiff reserves the right to file a 9 supplemental declaration explaining expenses and time incurred or a separate motion for fees and costs. 10 However, Plaintiff emphasizes that this issue should have been and should be resolved informally 11 without burdening the Court and, therefore, apologizes to the Court. (Declaration of Manuel D. Balam 12 ¶22) 13 III. ARGUMENT 14 A. Standards for Motion to Quash 15 The Court is authorized to quash and/or modify subpoenas and/or to issue a protective order to 16 protect a consumer from unreasonable violations of his or her right to privacy. Specifically, California 17 Code of Civil Procedure section 1987.1 subdivisions (a) and (b) provide that a party may bring a motion 18 to quash and/or modify a subpoena. In turn, the Court may make an order quashing the subpoena 19 entirely, modifying it, or directing compliance with it upon such terms or conditions as the Court shall 20 declare, including protective orders. (CCP §1987.1). 21 In addition, the court may make any other order as may be appropriate to protect a consumer 22 from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of a 23 person. (CCP §1987.1; see also CCP §2025.420). Thus, here, the Court can issue the requested order(s). 24 B. The Subpoenas are procedurally defective and can be quashed. 25 The Subpoenas do not designate the documents, tangible things, land or other property, or other 26 document to be inspected or produced, either by specifically describing each individual item or by 27 reasonably particularizing each category of item; therefore, they are also overbroad, oppressive, and 28 10 PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES 1 burdensome. CCP §2020.410; Calcor Space Facility, Inc. v. Sup. Court (1997) 53 Cal.App.4th 216, 2 222‐224 (“Calcor”). They can be quashed on this ground alone. 3 Essentially, the categories of documents described in the Subpoenas here are so broad that they 4 in effect ask for everything in each deponent-custodian’s possession relating to Plaintiff, with no limits 5 or qualifications. Such a subpoena is unduly burdensome and unenforceable. Calcor Space Facility, 6 Inc. v. Sup.Ct. at 224. 7 Indeed, recognizing the potential for abuse of nonparty deponents, the Calcor Court explained 8 the following and read into the subpoena statute the same burden imposed on the requesting party with 9 respect to document requests: 10 “Although the scope of civil discovery is broad, it is not limitless. Section 2017, subdivision (a) 11 provides matters are subject to discovery ‘if the matter either is itself admissible in evidence or appears 12 reasonably calculated to lead to the discovery of admissible evidence.’ The burden rests upon the party 13 seeking the discovery to provide evidence from which the court may determine these conditions are met. 14 Section 2031, subdivision (l), which applies to document production requests served on a party, requires 15 a party seeking to compel such production to ‘set forth specific facts showing good cause justifying the 16 discovery sought by the inspection demand....’ Section 2020, the statute at issue contains no such 17 specific requirement. However, since both sections are part of a single statutory scheme, and since it is 18 unlikely the Legislature intended to place greater burdens on a nonparty than on a party to the litigation, 19 we read a similar requirement into the latter section.” 20 Defendants’ Subpoenas are a prototypical example of the concerns expressed by the Legislature 21 and Courts with respect to document subpoenas. They are not supposed to be used in a limitless, 22 abusive, oppressive, and/or harassing manner. The Courts do not enforce such subpoenas. Yet, that is 23 precisely what Defendants have done and attempt to do here. The Subpoenas are fundamentally 24 procedurally flawed. Accordingly, Plaintiff requests an order quashing each of the Subpoenas. 25 C. The Subpoenas invade constitutional and statutory privacy rights. 26 Given the broad, limitless use of the phrasing “any and all” and “all” (as quoted above), Plaintiff 27 objects that the Subpoenas necessarily seek information/documents (hard and electronic) that would 28 violate the right to privacy of Plaintiff and other third persons or entities, which is protected under the 11 PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES 1 United States Constitution, California Constitution, Article I, Section 1, Government Code §7460 et. 2 seq., Evid. Code §1060, C.C.P §§1985.3 and 1985.6, Health Insurance Portability and Accountability 3 Act of 1996 (42 U.S.C. § 1320d et seq.) (HIPAA), the Insurance Code §§791, et seq., or any other 4 constitutional, statutory, evidentiary, or common law privilege or protection, or which otherwise reflects 5 or discloses other private, confidential, proprietary or financial information of Plaintiffs and any third 6 persons or entities. Britt v. Sup. Court (1978) 20 Cal.3d 844; In re Lifschutz (1970) 2 Cal.3d 415; 7 Roberts v. Sup. Court (1973) 9 Cal.3d 330; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 8 Cal.4th 360; Belaire‐West Landscape, Inc. v. Sup. Court (2007) 149 Cal.App.4th 554; San Diego 9 Trolley, Inc. v. Sup. Court (2001) 87 Cal.Appl.4th 1083; Life Technologies Corp. v. Sup. Court (2011) 10 197 Cal.App.4th 640; Alch v. Sup. Court (Time Warner Entertainment Company) (2008) 165 11 Cal.App.4th 1412; Boler v. Sup. Court (Everett) (1987) 201 Cal.App.3d 467; Gordon v. Sup. Court 12 (1997) 55 Cal.App.4th 1546. 13 There is also a taxpayer privilege. Webb v. Standard Oil Co. (1957) 49 Cal.2d 509, 513‐514. 14 And, of course, social security numbers are specifically protected. CRC Rule §1.20(b)(2)(A). 15 Whenever matters protected by privacy are sought, the burden is on the subpoenaing party to 16 demonstrate a particularized need for the confidential information sought. The broad relevancy to the 17 subject matter is not enough. Britt v. Superior Court (1978) 20 Cal.3d 844, 859‐862 and Harris v. 18 Superior Court (1992) 3 Cal.App.4th 661, 665. The more sensitive the information, the greater the need 19 for discovery must be shown. Hoffman Corp v. Superior Court (1985) 172 Cal.App.3d 357, 362 and 20 Tien v. Superior Court (2006) 139 Cal.App.4th 528, 540. 21 Accordingly, Plaintiff requests an order quashing each Subpoena in its entirety. 22 D. Medical records are particularly intimate and personal, warranting privacy 23 protection, and a personal injury lawsuit does not waive the right to privacy. 24 Throughout this litigation and even as to these Subpoenas, Defendants seem to contend that 25 Plaintiff has waived privacy rights by filing this personal injury lawsuit. As the Supreme Court has 26 explained in many cases, that contention is patently wrong and false. 27 A person’s medical history and records are protected by the constitutional right to privacy. 28 (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198). A person’s medical history is an area of 12 PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES 1 “privacy infinitely more intimate, more personal in quality and nature than many areas already 2 judicially recognized and protected.” (People v. Martinez (2001) 88 Cal.App.4th 465, 475 [quoting 3 Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 678]). 4 Accordingly, when a party seeks discovery of medical records, that party has the burden of 5 establishing that the private information is directly relevant to the plaintiff’s claim and essential to the 6 fair resolution of the lawsuit. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014, 1017). A 7 plaintiff cannot be compelled to disclose medical records that do not relate to the injuries at issue in the 8 case, even though they may, in some sense, be relevant to the substantive issues of litigation. (Britt v. 9 Superior Court (1978) 20 Cal. 3d 844, 864). The California Constitution and the California Supreme 10 Court safeguard Plaintiff’s right to protect unrelated sensitive medical information. The only aspect of 11 Plaintiff’s medical condition that Plaintiff has placed at issue is the past and present condition related to 12 the injury sued upon. Britt v. Superior Court ((1978) 20 Cal.3d 844, 862-864 (“Britt”). 13 The California Supreme Court made it clear in Britt that the mere filing of a personal injury 14 lawsuit does not waive a plaintiff’s constitutional privacy rights and that a plaintiff is “entitled to retain 15 the confidentiality of all unrelated medical treatment [the plaintiff] may have undergone in the past.” 16 Id.; see also Vinson v. Superior Court (1987) 43 Cal.3d 833, 842; Davis v. Superior (1992) 7 17 Cal.App.4th 1008. 18 The case law makes it clear that filing a personal injury lawsuit does not open up a plaintiff's 19 lifetime medical history and that an implicit waiver of a party's constitutional privacy rights concerning 20 the specific ailments complained of encompasses only discovery directly relevant to the plaintiff's 21 claim. A plaintiff can still assert the right of privacy to prevent disclosure of confidential medical 22 information not directly relevant to the lawsuit. 23 The party seeking discovery must show a particularized need for the confidential information 24 sought. The broad “relevancy to the subject matter” standard is not enough here. The court must be 25 convinced that the information is directly relevant to a cause of action or defense, i.e., that it is essential 26 to determining the truth of the matters in dispute. Britt at 859-862; Harris v. Sup.Ct. (1992) 3 27 Cal.App.4th 661, 665 (disapproved on other grounds in Williams v. Sup.Ct. (2017) 3 Cal.5th 531, 557, 28 220 CR3d 472, 494 & fn. 8). 13 PLAINTIFF’S NOTICE AND MOTION TO QUASH SUBPOENAS FOR MEDICAL AND INSURANCE RECORDS; MEMORANDUM OF POINTS AND AUTHORITIES 1 Here, Plaintiff contends she suffered serious injuries to the following areas: 1) a left 2 leg/shattered femur; 2) the hip, namely her left side; 3) right wrist/thumb/hand fracture; 4) fractures in 3 the back at L2, L4 and resulting pain; 5) general physical pain and suffering, mental suffering, and 4 emotional distress; and, 6) recent growths on wrist area of hands, which are being investigated. 5 (Declaration of Manuel D. Balam, ¶2). 6 As these are the injuries which Plaintiff has placed at issue in this case, Defendants are entitled 7 to obtain medical and billing records concerning these injuries/conditions. However, Defendants refuse 8 to modify the subpoena and limit the documents sought to those relating to the above-listed areas or 9 injuries/conditions. This is despite the fact that Defendants are not entitled to review Plaintiff’s entire 10 medical history in the hope that it may disclose some condition bearing on her present claim. Roberts 11 v. Superior Court (1973) 9 Cal.3d 330, 339. 12 As any record concerning medical conditions and/or treatment received by Plaintiff which is 13 unrelated to the injuries at issue in this case is protected by Plaintiff’s constitutional right to privacy, 14 Defendants must modify the Subpoenas by limiting the records sought to those that are related to the 15 injuries at issue in this case. 16 It is expected that Defendants may argue that Defendants are unable to determine whether a 17 medical record is relevant until Defendants review the medical record itself. Howe