Motion_to_quash_subpoena_medical_records

Motion

Cal. Super. - 4th Dist.May 3, 2013

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Andrew H. Friedman, P.C., SBN 153166 afriedman@helmerfriedman.com HELMER FRIEDMAN, LLP 8522 National Blvd., Suite 107 Culver City, California 90232 Telephone: (310) 396-7714 Fax: (310) 396-9215 Attorneys for Plaintiff CECELIA CARTER ELECTRONICALLY FILED Superior Court of California, County of Orange 0TMS5/2016 at 11:27:00 Aw Clerk of the Superior Court By Bnma Castle, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CECELIA CARTER, Plaintiff, Vv. FEDERAL NATIONAL MORTGAGE ASSOCIATION, INC., dba Fannie Mae, Defendant. N r ’ N r ’ N r ’ N r ’ N r N r N r N r N r N a N a N a N N ’ Case No. 30-2013-00647896-CU-WT-CJC Assigned for all purposes to the Honorable Frederick P. Aguirre Department: C23 PLAINTIFF CECELIA CARTER’S NOTICE OF MOTION AND MOTION TO QUASH SUBPOENAS FOR PRODUCTION OF BUSINESS RECORDS (MEDICAL RECORDS) AND FOR ISSUANCE OF A PROTECTIVE ORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Filed concurrently with Separate Statement, [Proposed] Order, in Support Thereof] Date: September 6, 2016 Time: 8:30 a.m. Dept... C23 [Reservation Number 72409802] 0 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS (MEDICAL RECORDS) AND FOR ISSUANCE OF A PROTECTIVE ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE DEFENDANTS, THEIR ATTORNEYS OF RECORD, AND CUSTODIANS OF BUSINESS RECORDS: PLEASE TAKE NOTICE that on September 6, 2016, at 8:30 a.m., or as soon thereafter as the matter may be heard in the above entitled court located at 700 Civic Center Drive West, Santa Ana, California 92701, Department C23, before the Honorable Frederick P. Aguirre, counsel for Plaintiff Cecelia Carter will move this court to quash the subpoena served by Defendant on Dr. Guy Randazzo, for Plaintiff Cecelia Carter's private medical records, and for the issuance of a protective order of documents that Defendant seeks to compel. This Motion is made on the grounds that: 1. The records sought are protected by Ms. Carter’s constitutional right of privacy and require a careful balancing test before disclosure is permitted; 2. Defendant has failed to meet its burden of showing the direct relevancy of Ms. Carter’s medical records for conditions wholly unrelated to any allegations in Ms. Carter’s Complaint and to the issues in this case. 3. Defendant has completely disregarded Ms. Carter’s fundamental privacy interest by failing to narrowly circumscribe or identify, with specificity, the documents it seeks to obtain from Ms. Carter’s private medical files. This Motion will be based upon this Notice, the Memorandum of Points and Authorities, declarations and exhibits attached hereto, oral argument of Counsel and all the records and files in this action. DATED: July 15,2016 HELMER FRIEDMAN, LLP Andrew H. Friedman By: Andrew H. Friedman Attorneys for Plaintiff CECELIA CARTER 1 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS (MEDICAL RECORDS) AND FOR ISSUANCE OF A PROTECTIVE ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION The gravamen of Plaintiff Cecelia Carter's ("Ms. Carter") lawsuit is that Defendant Fannie Mae unlawfully retaliated against and fired Ms. Carter after she reported illegal conduct to Defendant including, among other things, that numerous employees in the Irvine, California office had allegedly solicited and/or accepted kickbacks in violation of Section 8 of the Real Estate Settlement Procedures Act of 1974 (12 U.S.C. § 2607) ("RESPA"), that Defendant had submitted inaccurate data to Congress in response to a Congressional Inquiry, and that Defendant was discriminating against her on the basis of her race. As Ms. Carter has alleged and testified, Defendant’s conduct caused her severe depression and humiliation, anxiety, insomnia and high blood pressure. Defendant recently issued a broad, sweeping subpoena to Ms. Carter’s family practice physician seeking unfettered access to, and production of her entire medical history (which is protected by her Constitutional right to privacy) for almost ten (10) years (including prior to her employment with Defendant, with which she started employment in 2008). Egregiously, this subpoena was not limited in any way and instead, sought: “Any and all documents concerning or relating to Cecelia Carter . . . that constitute, evidence, discuss, refer or in any way relate to medical care, diagnoses, treatment, and/or evaluation relating to emotional distress, pain and suffering, humiliation, high blood pressure, low blood pressure, heart problems, trouble sleeping, stress including, but not limited to the following: NOTES (HANDWRITTEN AND TRANSCRIBED); CORRESPONDENCE; INTAKE FORM(S); REPORTS OF ANY KIND; MEDICAL HISTORY; MEDICAL RECORDS; EXAMS/TESTING/EVALUATIONS OF ANY KIND AND RESULTS; CLINICAL NOTATIONS; DIAGNOSES/PROGNOSES; PRESCRIPTIONS; REFERRALS; HOSPITAL VISITS; APPOINTMENT/VISIT RECORDS; AND ANY OTHER WRITINGS CONCERNING CARE OR TREATMENT PROVIDED TO MS. CARTER.” In essence, Defendant seeks every record under the sun and in order to go on a fishing expedition through Ms. Carter’s highly private medical history. Indeed, it is hard to imagine a broader category of documents than Defendant’s request to a medical provider for all documents relating to “pain and suffering.” The fact remains: Defendant has failed to establish how any of the documents contained in 1 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS (MEDICAL RECORDS) AND FOR ISSUANCE OF A PROTECTIVE ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 these records — aside from records for medical conditions alleged in this lawsuit — are “directly relevant” to any of the issues in this case. Moreover, in disregard for basic discovery principles pertaining to Ms. Carter’s right to privacy, Defendant refused to make any effort to narrowly tailor, with specificity, the scope of the subpoena. Instead, Defendant broadly seeks unfettered access to the entirety of Ms. Carter’s medical history without regard for medical condition and allegations made in Ms. Carter’s Complaint. The subpoena should be quashed, and a protective order issued, because (1) Defendant has ignored Ms. Carter’s Constitutional right of privacy in her medical records, which requires a careful balancing of interests; (2) Defendant has failed to make a showing of direct relevancy of the entirety of Ms. Carter’s medical history to the issues in this case; and (3) Defendant has completely disregarded Ms. Carter’s fundamental privacy interest by failing to narrowly circumscribe or identify, with specificity, the documents it seeks to obtain from her private medical records. II. THE SUBPOENA ISSUED BY DEFENDANT SHOULD BE QUASHED, AND A PROTECTIVE ORDER ISSUED, BECAUSE DEFENDANT HAS FAILED TO MEET THE NECESSARY REQUIREMENTS FOR COMPELLING THE DISCLOSURE OF PRIVATE, CONSTITUTIONALLY PROTECTED INFORMATION. A. Ms. Carter’s Medical Records Are Protected By Her Constitutional Right of Privacy and Disclosure Requires a Careful Balancing of Interests. It is axiomatic that a person's medical history “falls squarely within the protected ambit, the expressed objectives of Article I, Section 1, [of the California Constitution].” Board of Medical Quality Assurance v. Gherardini, 93 Cal.App.3d 669, 680 (1979). While one's right to privacy is not absolute, “[t]he proponent of discovery of constitutionally protected material has the burden of making a threshold showing that the evidence sought is 'directly relevant’ to the claim or defense.” Harris v. Sup. Ct., 3 Cal. App.4th 661, 665 (1992), quoting Britt v. Sup. Ct., 20 Cal.3d 844, 859-62 (1978) (emphasis added). The party seeking access to constitutionally protected information has the burden of proving direct relevance. Heller v. Norcal Mut. Ins. Co., 8 Cal.4th 30, 60 (1994). As expressly held by the California Supreme Court, any waiver of privacy as to medical conditions at 2 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS (MEDICAL RECORDS) AND FOR ISSUANCE OF A PROTECTIVE ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 issue in the lawsuit “must be narrowly rather than expansively construed.” /d. at 60 (emphasis added). Moreover, even when the discovery of private information is found directly relevant to the issues of ongoing litigation, there must be a “careful balancing” of the “compelling public need” for discovery against the “fundamental right of privacy.” Binder v. Sup. Ct., 196 Cal.App.3d 893, 900 (1987). Indeed, the California Supreme Court, in Britt v. Sup. Ct., 20 Cal.3d at 864 held that “plaintiffs are not obligated to sacrifice all privacy to seek redress for a specific [physical] injury... they are entitled to retain the confidentiality of all unrelated medical treatment they may have undergone in the past.” (Emphasis added). See also Vinson v. Sup. Ct. (1987) 43 Cal.3d 833, 841-42 (“Plaintiff is not compelled, as a condition to entering the courtroom, to discard entirely her mantle of privacy.”). This proposition — that Ms. Carter does not, by filing this lawsuit, make a wholesale waiver of her rights of privacy guaranteed by the California Constitution — has been repeatedly affirmed by California courts. For instance, in Hallendorf v. Sup. Ct., 85 Cal. App.3d 553 (1978), the plaintiff sued for injuries to his shoulder and arm sustained in a car crash which rendered him unable to work. As in the present case, the defendant subpoenaed the plaintiff’s entire medical record, including records unrelated to the treatment of injuries not sustained in the subject incident. Like Defendant in this case, the defendant argued that these records were relevant to determining whether plaintift’s injuries arose from other medical conditions. However, the Court unequivocally rejected this argument and held that the limited waiver of the physician-patient privilege “extends only to the medical conditions in question and does not automatically open all of a plaintiff’s past medical history to scrutiny.” Id. at 557 In Tylo v. Sup. Ct., 55 Cal. App.4th 1379 (1997), rev./reh’g denied (1997), the Court of Appeal reaffirmed the privacy rights of plaintiffs in discrimination cases. In Tylo, the plaintiff sought damages for wrongful termination based on pregnancy discrimination and breach of contract. At the plaintiff’s deposition, defendant sought to discover whether she and her husband had experienced any marital difficulties in the period two years prior to her hire by defendant. The court upheld the plaintiff’s refusal to answer these questions, reasoning that the plaintiff had “tendered her 3 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS (MEDICAL RECORDS) AND FOR ISSUANCE OF A PROTECTIVE ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 psychological condition in this litigation only as it relates to termination of the employment contract.” Id. at 1388 (emphasis added). The Court held that before the defendants could require the plaintiff to disclose information about marital difficulties experienced before the termination itself, “they must first identify the specific emotional injuries which [plaintiff] claims resulted from the termination for the contract and then demonstrate there is a nexus between damages from termination and those which may arise out of the marital relationship.” Critically, the Court held that the mere assertion that there are “other stressors that might have caused, or contributed to, [plaintiff’s] emotional injuries,” was insufficient as a matter of law, and labeled a “true fishing expedition” by the court. Id. So too here, this Court should rebuff efforts by Defendant to pry into the entirety of Ms. Carter’s medical history for almost the past ten (10) years. Ms. Carter’s claims for retaliation and discrimination should not result in her entire medical history becoming “fair game” for Defendant to sift through, since such a precedent would discourage future victims of retaliation and discrimination from coming forward for fear of exposure of their most private medical records and further humiliation. See Knoettgen v. Sup. Ct., 224 Cal. App.3d 11, 15 (1990) (“When an employee seeks vindication of legal rights, the courts must not be party to the unnecessary infliction of further humiliation.”). B. Defendant Seeks To Compel in Broad, Sweeping Terms, Medical Records Without the Required Showing of Direct Relevance to the Issues in This Case; Defendant Has Failed To Meet Its Burden and Should Be Required To Narrow The Subpoena. As set forth above, “[t]he proponent of discovery of constitutionally protected material has the burden of making a threshold showing that the evidence sought is ‘directly relevant’ to the claim or defense.” Harris v. Sup. Ct., 3 Cal. App.4th 661, 665 (1992), quoting Britt v. Sup. Ct., 20 Cal.3d 844, 859-62 (1978) (emphasis added). In other words, the normal standard of discovery (in which a party need only establish that the material is “reasonably calculated to lead to the discovery of admissible evidence”) does not apply. Tylo, supra, 55 Cal.App.4th. at 1387 (“Discovery of 4 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS (MEDICAL RECORDS) AND FOR ISSUANCE OF A PROTECTIVE ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 constitutionally protected information is on a par with discovery of privileged information and is more narrowly prescribed than traditional discovery”). Fishing expeditions are not permitted. In this case, Defendant has failed to meet its burden of establishing how the entirety of Ms. Carter’s medical history for almost the past ten (10) years, without regard to medical condition or the allegations in this lawsuit, is directly relevant to the issues in this case. Ms. Carter has alleged and testified that due to Defendant’s illegal conduct she suffered from severe emotional distress including: 1) depression; 2) insomnia; 3) humiliation 4) high blood pressure, and 5) anxiety. However, instead of narrowly tailoring its subpoena to conform to the conditions at issue in this case, Defendant issued a subpoena in the most broad-sweeping terms rather than aimed at any specified category of documents that may have some relevance (e.g. medical records related to treatment of depression; medical records related to the treatment of anxiety, and so forth). Such broad sweeping terms are clearly aimed to intimidate, embarrass and harass Ms. Carter, rather than a legitimate attempt to seek documents that may have some relevance to the issues in this case. For instance, medical records related to “pain and suffering” could easily encompass private gynecological records, and other conditions that have nothing to do with the issues in this case. Alternatively, if the subpoena is not merely an attempt to intimidate, embarrass and harass Ms. Carter, then the all-encompassing manner in which the subpoena is drafted reflects Defendant’s misguided belief that the normal standard of discovery applies. Indeed, Defendant’s insistence upon the sweeping release of Ms. Carter’s entire medical history (and prescription records) is precisely the type of broad fishing expedition that is not permitted with respect to Constitutionally protected information. 11 11 11 11 11 11 11 5 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS (MEDICAL RECORDS) AND FOR ISSUANCE OF A PROTECTIVE ORDER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For the reasons set forth above, this Court should grant Ms. Carter’s Motion to Quash the Deposition Subpoena for Business Records issued to Dr. Guy Randazzo. DATED: July 15,2016 HELMER FRIEDMAN, LLP Andnen H. Friedman 6 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA FOR PRODUCTION OF BUSINESS Andrew H. Friedman Attorneys for Plaintiff CECELIA CARTER RECORDS (MEDICAL RECORDS) AND FOR ISSUANCE OF A PROTECTIVE ORDER