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Michele Ballard Miller (SBN 104198)
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Mary L. Guilfoyle (SBN 143308)
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Gregory F. Fortescue (SBN 249133)
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MILLER LAW GROUP : fy NOV 1 6 2011
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Attorneys for Defendants
KAISER FOUNDATION HOSPITALS,
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KAISER PERMANENTE, INC.; RON UNOPPOSED MOTION TO COMPEL
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NAVARRA, and DOES 1-10, inclusive, PRODUCTION OF DOCUMENTS
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DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL. PRODUCTION OF DOCUMENTS PURSUANT TO
SUBPOENAS - Case No. RG10495979
Date: December 13, 2011
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Time: 3:00 pm
Dept: 512
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Judge: John M. True, III
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Reservation No.: R-1233492
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Complaint filed: January 27, 2010
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DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO
SUBPOENAS - Case No. RG10495979
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=| TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE
NOTICE that on December 13, 2011 at 3:00 p.m. in the courtroom of the Honorable John M.
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True Il!, Department 512, located at Hayward Hall of Justice, 24405 Amador Street, Hayward,
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California, Defendants KAISER FOUNDATION HOSPITALS, KAISER FOUNDATION
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HEALTH PLAN, INC., and RON NAVARRA ("Defendants") will and hereby do move the Court
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to compel production of documents pursuant to subpoenas.
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This Motion is made pursuant to Code of Civil Procedure sections 1985.3,
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4987.1, 2017.010, 2020.010-030, 2020.220(c), 2020.410, 2020.440, and 2025.480 on the
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grounds that Kaiser Permanente, Custodian of Records, Kaiser Permanente and Foundation
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Hospital (Walnut Creek), Kaiser Martinez — Psychiatry or Mental Health, and Kaiser
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Permanente and Foundation Hospital (Martinez) (collectively, the “Subpoenaed Parties”) have
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refused to comply with subpoenas issued to them by producing the documents identified
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issues raised by Plaintiff ROBIN BONGON’S (‘Plaintiff’) causes of action, supporting
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allegations, and damages claims. Specifically, Defendants subpoenaed and seek to compel
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production of records from:
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DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO
SUBPOENAS - Case No. RG10495979
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Dated: November 15, 2011 MILLER LAW GROUP
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Gregory F. Fortescue
Attorney for Defendants
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DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO
SUBPOENAS - Case No: RG10495979:
= Michele Ballard Miller (SBN 104198)
mbm@millerlawgroup.com
Mary L. Guilfoyle (SBN 143308)
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Gregory F. Fortescue (SBN 249133)
gff@millerlawgroup.com
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MILLER LAW GROUP
A Professional Corporation
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111 Sutter Street, Suite 700
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San Francisco, CA 94104
Tel. (415) 464-4300
Fax (415) 464-4336
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Attorneys for Defendants
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KAISER PERMANENTE, INC.; RON AND AUTHORITIES IN SUPPORT OF ITS
NAVARRA, and DOES 1-10, inclusive, UNOPPOSED MOTION TO COMPEL
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PURSUANT TO SUBPOENAS TO:
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION TO COMPEL
PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS - Case No. RG10495979
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Date: December 13, 2011
Time: 3:00 pm
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_|DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION TO COMPEL
PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS- Case No. RG10495979
I. INTRODUCTION
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DN
After over six months of attempting informally to obtain voluntary release of
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relevant medical records from Plaintiff Robin Bongon (‘Plaintiff’), Defendants Kaiser
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Foundation Hospitals, Kaiser Foundation Health Plan, Inc., and Ron Navarra (“Defendants”)
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issued seven Deposition Subpoenas for Business Records (collectively, the “Subpoenas’”) to
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Kaiser Permanente, Custodian of Records, Kaiser Permanente and Foundation Hospital
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(Walnut Creek), Kaiser Martinez — Psychiatry or Mental Health, and Kaiser Permanente and
Foundation Hospital (Martinez) (collectively, the “Subpoenaed Parties”)' for certain medical
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records of Plaintiff that are directly relevant to Plaintiffs causes of action and claims in this
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case. However, the Subpoenaed Parties refused to comply with the Subpoenas because,
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October 5, 2011, Plaintiffs counsel served them with written objections (“Plaintiffs
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Objections”) in which they represented that the Subpoenas were subject to pending motion(s)
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to quash, when in fact they were and are not.2 Asa party to this litigation, Plaintiff was not
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permitted to simply serve written objections in order to stay the effect of the Subpoenas.
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Instead, pursuant to Code of Civil Procedure section 1985.3(g), she was required to file
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motion(s) to quash — a fact of which Plaintiff's counsel was clearly aware given their false and
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misleading representation in Plaintiff's Objections that motion(s) to quash was(were) on file.
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Based on Plaintiff's false representation, the Subpoenaed Parties have refused
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to comply with the Subpoenas absent either appropriate authorization from Plaintiff or a court
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order compelling the release. However, the Subpoenaed Parties have attested that they will
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‘ Defendants contacted the Medical Secretaries’ offices in Oakland and Walnut Creek to
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determine to whom subpoenas for Plaintiffs relevant records should be directed. Defendants
issued subpoenas in accordance with their instructions, and those subpoenas are the ones
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currently before the Court. (Declaration of Mary Anne Quintos-Reyes {[f]2-3.)
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* For the Subpoena seeking records related to treatment received from Jennifer Brown,
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Plaintiff's Objections were also untimely as well. The date for compliance on that Subpoena
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was October 4, 2011, the day after Plaintiffs Objections were served.
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES INSUPPORT OF UNOPPOSED MOTION TO COMPEL
PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS - Case No. RG10495979
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not file a written opposition to this Motion to Compel. Thus, this Motion is essentially
unopposed.
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Defendants complied with all statutory notice requirements for issuing subpoenas
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for a consumer's personal records. Because the records sought are necessary for Defendants
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to complete their discovery and to prepare their motion for summary judgment, and because
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the Subpoenas are narrowly tailored in time and scope to seek only records directly relevant to
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the causes of action and injuries Plaintiff has alleged in her Complaint, in her supplemental
discovery responses, or at her deposition, the Subpoenaed Parties should be ordered to
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comply with the Subpoenas issued to them.
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li. FACTUAL BACKGROUND
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Plaintiff Robin Bongon (“Plaintiff”) alleges that (1) Defendants’ harassment
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starting in January 2008 (when Defendant Navarra became her supervisor) caused her to
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become disabled by severe emotional distress; (2) that the harassment and emotional
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distress are ongoing; (3) that her emotional distress required her to seek medical care and
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take time off from work; (4) that her emotional distress required reasonable accommodations
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which wefe denied to her; and (5) that her emotional stress caused her to have a miscarriage
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in or around September 2009. (Declaration of Gregory F. Fortescue (“Fortescue Decl.”) JJ 3-
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4, Exhs. 2, 4 (See Plaintiffs Supplemental Responses to Defendants’ First Set of Form
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Interrogatories-Employment Law, Nos. 202.1(c), 203.1, 204.1, 204.2; 212.3 and excerpts
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from Plaintiff's deposition testimony).) Defendants deny allof these allegations.
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A. Plaintiff Identified Medical Providers She Saw In Connection With Her Alleged
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Disability And Damages.
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On March. 7, 2011, Plaintiff served Plaintiffs Supplemental Responses to
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Defendants’ First Set of Form Interrogatories — Employment Law (“Supplemental
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION TO COMPEL
PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS -Case No. RG10495979
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Interrogatory Responses to Employment”) and Supplemental Responses to Defendants’
Document Request Numbers 26 and 28 (“Supplemental Document Requests Responses’).°
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(Fortescue Decl. {| 3 Exhs. 2-3.) These Supplemental Responses list medical providers with
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whom Plaintiff consulted, and/or who examined and/or treated her for injuries she attributes to
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Defendants’ actions, including: (1) Dr. Tan (Kaiser Martinez); (2) Jennifer Brown, Kaiser EAP
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(Kaiser Oakland); (3) Dr. Michael Wright (Kaiser Martinez); and (4) Dr. Patricia Gandek
(Kaiser Martinez). (Fortescue Decl. J 3, Exhs. 2-3 (See Supplemental Interrogatory
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Response 212.4 and Supplemental Response to Document Request Number 26).)
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During her deposition on March 10, 2011, Plaintiff named additional healthcare
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providers from whom she sought treatment for injuries she attributes to Defendants’ actions.
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Specifically, she named Michael Alan Levy, MD, and Kaiser Permanente Walnut Creek
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Medical Center, Departments of Emergency and Women’s Health. (Fortescue Decl. J]4, Exh.
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4 (See Plaintiff's Deposition 414:16-416:19, 418:10-419:3.).)
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B. Defendants Unsuccessfully Tried To Get Plaintiff's Authorization To Release Her
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Medical Records.
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On March 10, 2011, Defendants first provided and requested that Plaintiff sign
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(or suggest changes to) Authorizations for Use and/or Disclosure of Member/Patient Health
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Information held by healthcare providers Plaintiff had identified in discovery. (Fortescue Decl.
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q 4, Exh. 4 (See Plaintiffs Deposition 434:22-435:4, 435:22-25.).) Defendants proceeded to |’
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meet and confer with Plaintiff over the course of the next six months, seeking her voluntary
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cooperation with the releases, but ultimately Defendants had no choice but to serve the
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Defendants sought and obtained an order from the Court directing Plaintiff to identify her
providers so that Defendants could subpoena their records. (Fortescue Decl. ]__, Exh. _.)
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Plaintiff previously had refused to supplement her responses to provide the names of medical
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providers she saw for injures she attributes to Defendants’ actions.
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES INSUPPORT OF UNOPPOSED MOTION TO COMPEL
PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS - Case No. RG10495979
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Subpoenas without signed releases.* (Fortescue Decl. I] 5-22, Exhs. 6-21.)
C. Defendants Properly Issued Subpoenas For Records, But The Subpoenaed
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Parties Have Refused To Comply With Defendants’ Subpoenas.
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On September 14, 2011, Defendants issued seven Subpoenas for Plaintiff's
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medical records with a production date of October 4, 2011. (Fortescue Decl. {| 22, Exhs. 22-
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28.) Defendants had the Subpoenas and the required Notices to Consumer personally
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served on Plaintiff's counsel on the same day the Subpoenas were issued. (Fortescue Decl.
q 22, Exh. 22-28.) On September 19, 2011, Defendants had the Subpoena for Plaintiff's
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records related to treatment from Jennifer A. Brown, Employee Assistance Program (“EAP”)
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Coordinator, personally served on Kaiser Permanenie, Custodian of Records. (Fortescue
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Decl. {] 23, Exh. 29.)
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The remaining six Subpoenas could not be served on September 19, 2011 as
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planned because the office of the custodian of records was closed for construction.
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(Fortescue Decl. J 24.) Therefore, on September 19, 2011, Defendants re-issued these six
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Subpoenas — two Subpoenas to Kaiser Permanente and Foundation Hospital (Walnut Creek),
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three Subpoenas to Kaiser Martinez — Psychiatry or Mental Health, and one Subpoena to
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Kaiser Permanente and Foundation Hospital, (Martinez) — all with a production date of
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October 13, 2011. (Fortescue Decl. {] 24, Exhs. 30-35.) Defendants had all six Subpoenas
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and the required Notices to Consumer personally served on Plaintiffs counsel the day they
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were issued. (Fortescue Decl. J 24, Exhs. 30-35.) On September 26, 2011, Defendants had
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these six subpoenas personally served on the Subpoenaed Parties to which they were
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“ During informal discussions in July 2011, Plaintiffs counsel had objected to the release
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language that requested records regarding “any other ailment, disorder, condition or
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symptom,” so Defendants’ counsel changed the releases to narrow their scope. (Fortescue
Decl. J] 13, 18, Exhs. 13, 18.) Plaintiff's counsel also objected to the time frames for the
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subpoenas, so Defendants narrowed the time where appropriate based on Plaintiff's
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allegations. (Fortescue Decl. JJ 13 (fn. 1), 24, Exhs. 13, 33, 34.)
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION TO COMPEL
PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS - Case No. RG10495979
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wep directed. (Fortescue Decl. J 26, Exhs. 37-42.)
On September 20, 2011, Defendants received a communication from the
Medical Secretaries’ office for Kaiser Permanente Medical Center in Oakland regarding the
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Subpoena that Defendants issued on September 14, 2011. This communication stated that
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the Oakland Medical Secretaries’ office required an authorization from Plaintiff in compliance
with federal and state regulations prior to production of her EAP records. (Fortescue Decl. J
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25, Exh. 36.) The Oakland Medical Secretaries’ office did not comply with the Subpoena on
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October 4, 2011 as required. (Fortescue Decl. { 27.)
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On October 5, 2011, Defendants received written objections from Plaintiffs
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counsel to all seven Subpoenas (“Plaintiff's Objections”). (Fortescue Decl. | 27, Exhs. 43-
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49.) Each set of Plaintiffs Objections stated that the records being sought by all seven
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Subpoenas were subject to motion(s) to quash. (Fortescue Decl. § 27, Exhs. 43-49.)
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Defendants were never served with notice of such a motion, and no such motion appears on
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the Register of Actions on the Court’s website, DomainWeb. (Fortescue Decl. {| 27, Exh. 50.)
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On October 13, 2011, Defendants. received six communications entitled “Custodian
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Certification of Records” stating that no records would be provided pursuant to the
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Subpoenas issued on September 19, 2011. (Fortescue Decl. § __, Exh. _.) These
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Certifications stated that “[d]ue to Plaintiffs Letter of Objections, Walnut Creek Kaiser did not
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allow records to be copied.” (Fortescue Decl. f 28, Exhs. 51-56.) Both the Medical
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Secretaries’ office in Walnut Creek and Oakland have confirmed that they will not produce the
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records being sought due to Plaintiff's Objections which indicated that the seven Subpoenas
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were all subject to pending motion(s) to quash. (Declaration of Roxanne Shack (“Shack
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Decl.”) 9][4-5; Declaration of Lionel Bazemore (“Bazemore Decl.”) J[5-6.)
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION TO COMPEL
PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS- Case No. RG10495979
WD—_
lll. LEGAL ANALYSIS
A. Defendants Are Entitled To Move To Compel Subpoenaed Parties’ Compliance
With Subpoenas, As The Records Sought Are Reasonably Calculated To Lead To
The Discovery Of Admissible Evidence About Plaintiff's Claims And Alleged
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Damages.
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Where a_ non-party refuses to comply with a deposition subpoena, the
subpoenaing party may seek a court order compelling the non-party to comply with the
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subpoena. Cal. Code Civ. Proc. § 2025.480.° Additionally, courts should construe the Civil
Discovery Act so as to uphold its broad discovery rights, permitting discovery on any topic not
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privileged that is reasonably calculated to lead to the discovery of admissible evidence, with
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doubts generally resolved in favor of permitting discovery. § 2017.010; Gonzalez v. Superior
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Court (1995) 33 Cal. App. 4th 1539, 1546 (“For discovery purposes, information is relevant if
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it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating
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settlement. These rules are applied liberally in favor of discovery”); Colonial Life & Acc. Ins.
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Co. v. Sup. Ct. (Perry) (1982) 31 Cal.3d 785, 790. Further, information sought need not be
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admissible to-be discoverable, though if admissible, it is necessarily discoverable. §
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2017.010; Davies v. Sup. Ct. (State of California) (1984) 36 Cal.3d 291, 301; Volkswagen of
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America, Inc. v. Sup. Ct. (Rusk) (2006) 139 Cal.App.4th 1481, 1490-91. Defendants seek
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records only from healthcare providers Plaintiff identified as having treated her for emotional
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distress and/or related injuries she attributes to Defendants’ conduct. The records sought
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therefore are not only calculated to lead to the discovery of admissible evidence regarding
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Plaintiffs claims and damages, but they are directly relevant to Plaintiffs alleged
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eo. Pe Co ae Michele Ballard Miller (SBN 104198) — mbm@millerlawgroup.com . Mary L. Guilfoyle (SBN 143308) DN mig@millerlawgroup.com ne aoe ALAMEDA COUNTY WO Gregory F. Fortescue (SBN 249133) gff@millerlawgroup.com BR MILLER LAW GROUP : fy NOV 1 6 2011 A Professional Corporation fe 4c OF THE SUPER R COURT GH 111 Sutter . Street, Suite 700 ant B wmnN ahh San Francisco, CA 94104 i : NO Tel. (415) 464-4300 Fax (415) 464-4336 , A Attorneys for Defendants KAISER FOUNDATION HOSPITALS, OO KAISER FOUNDATION HEALTH PLAN, INC., and RON NAVARRA ro = ee * SUPERIOR COURT OF THE STATE OF CALIFORNIA OND i IN AND FOR THE COUNTY OF ALAMEDA ee fF CORPORATION CALIFORNIA GRouP rr ROBIN BONGON, , - Case No.: RG10495979 a LAW oOo FRANCISCO, ASSIGNED FOR ALL PURPOSES TO PROFESSIONAL a Plaintiff, JUDGE John M. True, III MILLER ™] ~ DEPARTMENT 512 SAN A FS © _DEFENDANTS KAISER FOUNDATION HOSPITALS, KAISER FOUNDATION || O KAISER FOUNDATION HOSPITALS, INC.; HEALTH PLAN, INC., AND RON DOD KAISER FOUNDATION HEALTH PLAN, INC.;} NAVARRA’S NOTICE OF MOTION AND NY KAISER PERMANENTE, INC.; RON UNOPPOSED MOTION TO COMPEL |= NYP NAVARRA, and DOES 1-10, inclusive, PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS TO: NYY NO 1. KAISER PERMANENTE, CUSTODIAN Defendants. - OF RECORDS; | wD NB 2, KAISER PERMANENTE AND FOUNDATION HOSPITAL (WALNUT KR NYO CREEK) 3. KAISER MARTINEZ - PSYCHIATRY OR oO NYO MENTAL HEALTH; OO NYO 4, KAISER PERMANENTE AND FOUNDATION HOSPITAL (MARTINEZ) MO N oO DO DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL. PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS - Case No. RG10495979 Date: December 13, 2011 —_ Time: 3:00 pm Dept: 512 NY Judge: John M. True, III WwW Reservation No.: R-1233492 KR Complaint filed: January 27, 2010 on Trial: June 25, 2012 OO on Oo = O =| | NO = WO as FP CORPORATION CALIFORNIA Group oO a Law FRANCISCO, DO PROFESSIONAL Aa MILLER Ba N SAN A WA oa Ba OODO YD FX NO DY NM WO PD KR NM DMO oO OO NM PD oN RM DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS - Case No. RG10495979 @ | @ =| TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 13, 2011 at 3:00 p.m. in the courtroom of the Honorable John M. DH True Il!, Department 512, located at Hayward Hall of Justice, 24405 Amador Street, Hayward, WO California, Defendants KAISER FOUNDATION HOSPITALS, KAISER FOUNDATION F&F HEALTH PLAN, INC., and RON NAVARRA ("Defendants") will and hereby do move the Court a to compel production of documents pursuant to subpoenas. Oo n This Motion is made pursuant to Code of Civil Procedure sections 1985.3, a 4987.1, 2017.010, 2020.010-030, 2020.220(c), 2020.410, 2020.440, and 2025.480 on the oO grounds that Kaiser Permanente, Custodian of Records, Kaiser Permanente and Foundation O&O Hospital (Walnut Creek), Kaiser Martinez — Psychiatry or Mental Health, and Kaiser + Permanente and Foundation Hospital (Martinez) (collectively, the “Subpoenaed Parties”) have Fe NY refused to comply with subpoenas issued to them by producing the documents identified WwW therein. BF CORPORATION CALIFORNIA GROUP oa LAW The documents sought by Defendants’ subpoenas are directly relevant to core oOo FRANCISCO, PROFESSIONAL MILLER issues raised by Plaintiff ROBIN BONGON’S (‘Plaintiff’) causes of action, supporting ~l | SAN allegations, and damages claims. Specifically, Defendants subpoenaed and seek to compel A [ee] =| production of records from: i O Shack and its exhibits, and the Declaration of Mary Anne Quintos-Reyes; all papers and DOD NO pleadings on file or deemed to be on file herein, and such argument as may be presented at NY |= the hearing. | NY DB /// WOW NY /// NY BR /// DMO Oo /// NY OO /// NO N i | NO oo 2 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS - Case No. RG10495979 = Dated: November 15, 2011 MILLER LAW GROUP A Professional Corporation DN. WOW by CO fC Dy BF Gregory F. Fortescue Attorney for Defendants oo KAISER FOUNDATION HOSPITALS, Oo KAISER FOUNDATION HEALTH PLAN, INC., and RON NAVARRA — nN 4849-9258-1388, v. 1 oa oOo — O — | NYO — WO od FR — CORPORATION CALIFORNIA Group oO — Law ODO FRANCISCO, PROFESSIONAL — MILLER = DN SAN A = CO ~~ |@D ie) N | NO Ne) DO FR No oF De) OM NO “N NO No ao 3 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS - Case No: RG10495979: = Michele Ballard Miller (SBN 104198) mbm@millerlawgroup.com Mary L. Guilfoyle (SBN 143308) WD _ mig@millerlawgroup.com Gregory F. Fortescue (SBN 249133) gff@millerlawgroup.com BR MILLER LAW GROUP A Professional Corporation oO 111 Sutter Street, Suite 700 OO San Francisco, CA 94104 Tel. (415) 464-4300 Fax (415) 464-4336 ON Attorneys for Defendants KAISER FOUNDATION HOSPITALS, — o KAISER FOUNDATION HEALTH PLAN, INC., and RON NAVARRA CO kk A= SUPERIOR COURT OF THE STATE OF CALIFORNIA DY ka IN AND FOR THE COUNTY OF ALAMEDA WO sa BR CORPORATION CALIFORNIA GRoupP a ROBIN BONGON, Case No.: RG10495979 7 Law of FRANCISCO, ASSIGNED FOR ALL PURPOSES TO PROFESSIONAL © Plaintiff, JUDGE John M. True, Ill 0 MILLER = N DEPARTMENT 512 SAN A (oe) DEFENDANTS KAISER FOUNDATION = HOSPITALS, KAISER FOUNDATION co = KAISER FOUNDATION HOSPITALS, INC.: HEALTH PLAN, INC., AND RON’ KAISER FOUNDATION HEALTH PLAN, INC.;| NAVARRA’S MEMORANDUM OF POINTS oO Nn KAISER PERMANENTE, INC.; RON AND AUTHORITIES IN SUPPORT OF ITS NAVARRA, and DOES 1-10, inclusive, UNOPPOSED MOTION TO COMPEL NO = PRODUCTION OF DOCUMENTS NO NO PURSUANT TO SUBPOENAS TO: Defendants. 1. KAISER PERMANENTE, CUSTODIAN NO wo oO OF RECORDS; 2. KAISER PERMANENTE AND No & FOUNDATION HOSPITAL (WALNUT CREEK) he) oi 3. KAISER MARTINEZ — PSYCHIATRY OR NO Oo MENTAL HEALTH; 4. KAISER PERMANENTE AND “I No FOUNDATION HOSPITAL (MARTINEZ) NO Oo DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS - Case No. RG10495979 a Date: December 13, 2011 Time: 3:00 pm Dept: 512 ND Judge: John M. True, I!I WO Reservation No.: R-1233492 FB Complaint filed: January 27, 2010 on Trial: June 25, 2012 oO on Oo tk O i = ke NYO ka Ww fF CORPORATION CALIFORNIA a GROUP eS a LAW oOo FRANCISCO, PROFESSIONAL = MILLER | N SAN A DO BS CO HS CO NB +} NB NY DO WwW NVM kh DB oan NO mO oO MO on NO _|DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS- Case No. RG10495979 I. INTRODUCTION =| DN After over six months of attempting informally to obtain voluntary release of WO relevant medical records from Plaintiff Robin Bongon (‘Plaintiff’), Defendants Kaiser fF Foundation Hospitals, Kaiser Foundation Health Plan, Inc., and Ron Navarra (“Defendants”) a issued seven Deposition Subpoenas for Business Records (collectively, the “Subpoenas’”) to Oo Kaiser Permanente, Custodian of Records, Kaiser Permanente and Foundation Hospital wan (Walnut Creek), Kaiser Martinez — Psychiatry or Mental Health, and Kaiser Permanente and Foundation Hospital (Martinez) (collectively, the “Subpoenaed Parties”)' for certain medical Oo records of Plaintiff that are directly relevant to Plaintiffs causes of action and claims in this OO case. However, the Subpoenaed Parties refused to comply with the Subpoenas because, =* October 5, 2011, Plaintiffs counsel served them with written objections (“Plaintiffs NYO ee Objections”) in which they represented that the Subpoenas were subject to pending motion(s) WOW to quash, when in fact they were and are not.2 Asa party to this litigation, Plaintiff was not KR CORPORATION CALIFORNIA Group permitted to simply serve written objections in order to stay the effect of the Subpoenas. a LAw Instead, pursuant to Code of Civil Procedure section 1985.3(g), she was required to file FRANCISCO, oOo PROFESSIONAL MILLER motion(s) to quash — a fact of which Plaintiff's counsel was clearly aware given their false and OUOonlLlURmDlUaNUmUCUNODUCUCUCUECUCUOUlUCOCLCUMDUCNSN | SAN misleading representation in Plaintiff's Objections that motion(s) to quash was(were) on file. A | S| Based on Plaintiff's false representation, the Subpoenaed Parties have refused NO to comply with the Subpoenas absent either appropriate authorization from Plaintiff or a court NHB order compelling the release. However, the Subpoenaed Parties have attested that they will NDB ND ‘ Defendants contacted the Medical Secretaries’ offices in Oakland and Walnut Creek to YDB determine to whom subpoenas for Plaintiffs relevant records should be directed. Defendants issued subpoenas in accordance with their instructions, and those subpoenas are the ones NY currently before the Court. (Declaration of Mary Anne Quintos-Reyes {[f]2-3.) ce DN * For the Subpoena seeking records related to treatment received from Jennifer Brown, PO Plaintiff's Objections were also untimely as well. The date for compliance on that Subpoena on was October 4, 2011, the day after Plaintiffs Objections were served. Oo 1 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES INSUPPORT OF UNOPPOSED MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS - Case No. RG10495979 = not file a written opposition to this Motion to Compel. Thus, this Motion is essentially unopposed. DN WOW Defendants complied with all statutory notice requirements for issuing subpoenas FB for a consumer's personal records. Because the records sought are necessary for Defendants on to complete their discovery and to prepare their motion for summary judgment, and because Oo the Subpoenas are narrowly tailored in time and scope to seek only records directly relevant to ant the causes of action and injuries Plaintiff has alleged in her Complaint, in her supplemental discovery responses, or at her deposition, the Subpoenaed Parties should be ordered to Oo comply with the Subpoenas issued to them. + OO Se = a li. FACTUAL BACKGROUND ND Sr OW Se Plaintiff Robin Bongon (“Plaintiff”) alleges that (1) Defendants’ harassment B CORPORATION oe CALIFORNIA GRouP starting in January 2008 (when Defendant Navarra became her supervisor) caused her to Oa Sr Law become disabled by severe emotional distress; (2) that the harassment and emotional FRANCISCO, PROFESSIONAL MILLER distress are ongoing; (3) that her emotional distress required her to seek medical care and SN a SAN A take time off from work; (4) that her emotional distress required reasonable accommodations o = which wefe denied to her; and (5) that her emotional stress caused her to have a miscarriage (co) —_ in or around September 2009. (Declaration of Gregory F. Fortescue (“Fortescue Decl.”) JJ 3- NO Oo 4, Exhs. 2, 4 (See Plaintiffs Supplemental Responses to Defendants’ First Set of Form wh nN Interrogatories-Employment Law, Nos. 202.1(c), 203.1, 204.1, 204.2; 212.3 and excerpts ie} NO from Plaintiff's deposition testimony).) Defendants deny allof these allegations. [o) NO fs No A. Plaintiff Identified Medical Providers She Saw In Connection With Her Alleged NO on Disability And Damages. NO Oo On March. 7, 2011, Plaintiff served Plaintiffs Supplemental Responses to NI NO Defendants’ First Set of Form Interrogatories — Employment Law (“Supplemental (oe) No 2 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS -Case No. RG10495979 = Interrogatory Responses to Employment”) and Supplemental Responses to Defendants’ Document Request Numbers 26 and 28 (“Supplemental Document Requests Responses’).° NY (Fortescue Decl. {| 3 Exhs. 2-3.) These Supplemental Responses list medical providers with &O whom Plaintiff consulted, and/or who examined and/or treated her for injuries she attributes to & Defendants’ actions, including: (1) Dr. Tan (Kaiser Martinez); (2) Jennifer Brown, Kaiser EAP Oo (Kaiser Oakland); (3) Dr. Michael Wright (Kaiser Martinez); and (4) Dr. Patricia Gandek (Kaiser Martinez). (Fortescue Decl. J 3, Exhs. 2-3 (See Supplemental Interrogatory NN Response 212.4 and Supplemental Response to Document Request Number 26).) Oo Oo oOo During her deposition on March 10, 2011, Plaintiff named additional healthcare ew providers from whom she sought treatment for injuries she attributes to Defendants’ actions. S| — Specifically, she named Michael Alan Levy, MD, and Kaiser Permanente Walnut Creek DN | Medical Center, Departments of Emergency and Women’s Health. (Fortescue Decl. J]4, Exh. SS W 4 (See Plaintiff's Deposition 414:16-416:19, 418:10-419:3.).) FBR Ss CORPORATION CALIFORNIA GROUP NO SS Law B. Defendants Unsuccessfully Tried To Get Plaintiff's Authorization To Release Her ODO FRANCISCO, PROFESSIONAL S Medical Records. MILLER SB NN SAN A On March 10, 2011, Defendants first provided and requested that Plaintiff sign DOA | (or suggest changes to) Authorizations for Use and/or Disclosure of Member/Patient Health Oo | Information held by healthcare providers Plaintiff had identified in discovery. (Fortescue Decl. 0D NY q 4, Exh. 4 (See Plaintiffs Deposition 434:22-435:4, 435:22-25.).) Defendants proceeded to |’ NYP | meet and confer with Plaintiff over the course of the next six months, seeking her voluntary HO PPO cooperation with the releases, but ultimately Defendants had no choice but to serve the WH ND fk YM ao NM ° Plaintiff supplemented her responses to Defendants’ discovery requests only after OO PYM Defendants sought and obtained an order from the Court directing Plaintiff to identify her providers so that Defendants could subpoena their records. (Fortescue Decl. ]__, Exh. _.) nN hw Plaintiff previously had refused to supplement her responses to provide the names of medical oOo providers she saw for injures she attributes to Defendants’ actions. NM 3 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES INSUPPORT OF UNOPPOSED MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS - Case No. RG10495979 = NY Subpoenas without signed releases.* (Fortescue Decl. I] 5-22, Exhs. 6-21.) C. Defendants Properly Issued Subpoenas For Records, But The Subpoenaed WO Parties Have Refused To Comply With Defendants’ Subpoenas. fF On September 14, 2011, Defendants issued seven Subpoenas for Plaintiff's om medical records with a production date of October 4, 2011. (Fortescue Decl. {| 22, Exhs. 22- oOo 28.) Defendants had the Subpoenas and the required Notices to Consumer personally on served on Plaintiff's counsel on the same day the Subpoenas were issued. (Fortescue Decl. q 22, Exh. 22-28.) On September 19, 2011, Defendants had the Subpoena for Plaintiff's Oo records related to treatment from Jennifer A. Brown, Employee Assistance Program (“EAP”) =| CO Coordinator, personally served on Kaiser Permanenie, Custodian of Records. (Fortescue |- Ss Decl. {] 23, Exh. 29.) NY oe Sse WO The remaining six Subpoenas could not be served on September 19, 2011 as Hh eo CORPORATION CALIFORNIA GRoup planned because the office of the custodian of records was closed for construction. Oa = Law (Fortescue Decl. J 24.) Therefore, on September 19, 2011, Defendants re-issued these six ODO FRANCISCO, PROFESSIONAL So MILLER Subpoenas — two Subpoenas to Kaiser Permanente and Foundation Hospital (Walnut Creek), |= nN SAN three Subpoenas to Kaiser Martinez — Psychiatry or Mental Health, and one Subpoena to A DA wow Kaiser Permanente and Foundation Hospital, (Martinez) — all with a production date of B32 oO October 13, 2011. (Fortescue Decl. {] 24, Exhs. 30-35.) Defendants had all six Subpoenas DODO NDB and the required Notices to Consumer personally served on Plaintiffs counsel the day they NDMP | were issued. (Fortescue Decl. J 24, Exhs. 30-35.) On September 26, 2011, Defendants had NM NY these six subpoenas personally served on the Subpoenaed Parties to which they were WwW DN Bh RP on “ During informal discussions in July 2011, Plaintiffs counsel had objected to the release PO language that requested records regarding “any other ailment, disorder, condition or oOo KR symptom,” so Defendants’ counsel changed the releases to narrow their scope. (Fortescue Decl. J] 13, 18, Exhs. 13, 18.) Plaintiff's counsel also objected to the time frames for the PO subpoenas, so Defendants narrowed the time where appropriate based on Plaintiff's on allegations. (Fortescue Decl. JJ 13 (fn. 1), 24, Exhs. 13, 33, 34.) NM 4 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS - Case No. RG10495979 3 wep directed. (Fortescue Decl. J 26, Exhs. 37-42.) On September 20, 2011, Defendants received a communication from the Medical Secretaries’ office for Kaiser Permanente Medical Center in Oakland regarding the kh Subpoena that Defendants issued on September 14, 2011. This communication stated that OO the Oakland Medical Secretaries’ office required an authorization from Plaintiff in compliance with federal and state regulations prior to production of her EAP records. (Fortescue Decl. J N 25, Exh. 36.) The Oakland Medical Secretaries’ office did not comply with the Subpoena on oO October 4, 2011 as required. (Fortescue Decl. { 27.) So On October 5, 2011, Defendants received written objections from Plaintiffs = counsel to all seven Subpoenas (“Plaintiff's Objections”). (Fortescue Decl. | 27, Exhs. 43- Ss RUD 49.) Each set of Plaintiffs Objections stated that the records being sought by all seven 2 Subpoenas were subject to motion(s) to quash. (Fortescue Decl. § 27, Exhs. 43-49.) Oe CORPORATION CALIFORNIA CC Group oO Defendants were never served with notice of such a motion, and no such motion appears on ODOT Law the Register of Actions on the Court’s website, DomainWeb. (Fortescue Decl. {| 27, Exh. 50.) FRANCISCO, PROFESSIONAL | UlCUODUlCCOCODOUCUNLC MILLER On October 13, 2011, Defendants. received six communications entitled “Custodian 2 SAN A Certification of Records” stating that no records would be provided pursuant to the |= Subpoenas issued on September 19, 2011. (Fortescue Decl. § __, Exh. _.) These |= Certifications stated that “[d]ue to Plaintiffs Letter of Objections, Walnut Creek Kaiser did not LH allow records to be copied.” (Fortescue Decl. f 28, Exhs. 51-56.) Both the Medical NM lUmDNUCUCOHM Secretaries’ office in Walnut Creek and Oakland have confirmed that they will not produce the PD records being sought due to Plaintiff's Objections which indicated that the seven Subpoenas PP Ul were all subject to pending motion(s) to quash. (Declaration of Roxanne Shack (“Shack KD UB Decl.”) 9][4-5; Declaration of Lionel Bazemore (“Bazemore Decl.”) J[5-6.) PP On oOo PD PO on Nh 5 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENAS- Case No. RG10495979 WD—_ lll. LEGAL ANALYSIS A. Defendants Are Entitled To Move To Compel Subpoenaed Parties’ Compliance With Subpoenas, As The Records Sought Are Reasonably Calculated To Lead To The Discovery Of Admissible Evidence About Plaintiff's Claims And Alleged KR Damages. OO Where a_ non-party refuses to comply with a deposition subpoena, the subpoenaing party may seek a court order compelling the non-party to comply with the ON subpoena. Cal. Code Civ. Proc. § 2025.480.° Additionally, courts should construe the Civil Discovery Act so as to uphold its broad discovery rights, permitting discovery on any topic not oO privileged that is reasonably calculated to lead to the discovery of admissible evidence, with ox doubts generally resolved in favor of permitting discovery. § 2017.010; Gonzalez v. Superior “a = Court (1995) 33 Cal. App. 4th 1539, 1546 (“For discovery purposes, information is relevant if i.e] = it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating ow = settlement. These rules are applied liberally in favor of discovery”); Colonial Life & Acc. Ins. oo & CORPORATION CALIFORNIA GRouP Co. v. Sup. Ct. (Perry) (1982) 31 Cal.3d 785, 790. Further, information sought need not be =a o Law admissible to-be discoverable, though if admissible, it is necessarily discoverable. § FRANCISCO, A PROFESSIONAL oO) — MILLER 2017.010; Davies v. Sup. Ct. (State of California) (1984) 36 Cal.3d 291, 301; Volkswagen of “I SAN America, Inc. v. Sup. Ct. (Rusk) (2006) 139 Cal.App.4th 1481, 1490-91. Defendants seek ~+ © records only from healthcare providers Plaintiff identified as having treated her for emotional om Cc distress and/or related injuries she attributes to Defendants’ conduct. The records sought Oo therefore are not only calculated to lead to the discovery of admissible evidence regarding NO = Plaintiffs claims and damages, but they are directly relevant to Plaintiffs alleged