Patrick Lent vs. West Coast Arborists, Inc.

Reply to Motion

Cal. Super. - 4th Dist.November 16, 2016

o o e e N N A N n h B h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AEGIS LAW FIRM, PC SAMUEL A. WONG,State Bar No. 217104 KEVIN H. SUN, State Bar No. 276539 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 swong(@aegislawfirm.com ksun@aegislawfirm.com Attorneys for Plaintiff PATRICK LENT SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE PATRICK LENT, an individual, Plaintiff, Vs. WEST COAST ARBORISTS, INC., a California corporation; and DOES 1 through 20 inclusive, Defendants. CASE NO.: 30-2016-00887633 Assignedfor All Purposes To: Judge: Hon. Peter Wilson (Dept. C-15) PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO QUASH DEFENDANT’S SUBPOENAS FOR EMPLOYMENT RECORDS AND MEDICAL RECORDS Date: September 14, 2017 Time: 2:00 p.m. Dept.: C15 Reservation No.: 72622791 Action Filed: November 16, 2016 Trial Date: March 5, 2018 -1- REPLY ISO MOTION TO QUASH SUBPOENAS N o 0 N I O N B R W N = N O N N D N O N N N = e m m d e m p m e m p m e m j e E 8 3 B S R U B Y R E B E I S I X R I = 2 3 8 0 2 3 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Defendant WEST COAST ARBORISTS, INC.’s (“Defendant”) incorrectly argues that Plaintiff PATRICK LENT (“Plaintiff”) failed to properly serve his Motion to Quash (“Motion”) becauseit was served electronically. However, the Motion was served properly under California Rules ofCourt and Orange County Superior Court local rules. Even assuming that there are defects in service of the Motion, Defendant has waived such defects since it argues against the merits of the Motion in its opposition. Further, Defendant’s counsel’s claims that he failed to receive Plaintiff’s counsel’s emails is simply preposterous since most ofthe communications in this action have been via email. As to the merits of Plaintiff’s Motion, Defendant fails to show how the documents sought in its extremely broad subpoenas are directly relevant to Plaintiffs claims or Defendant’s defense of such claims. Defendant simply states that because the five (5) Deposition Subpoenas for Production ofBusiness Records (“Subpoenas”) issued on or about June 20, 2017 (which demanded medical and billing records from Plaintiff’s health care providers (1) Chaparral Medical Group and (2) Sunrise Healthcare Centers (collectively “Medical Subpoenas™); or employment records from Plaintiff's employers (3) Citrus Motors, (4) Firestone Complete Auto Care, and (5) Raceway Ford (collectively “Employment Subpoenas™)) are relevant to Plaintiff’s claims and discovery is broad, Defendant should have unfettered access to all of Plaintiff's medical and employment records. Defendant is simply on an impermissible fishing expedition into Plaintiffs private information, which is not like ordinary discovery. Defendant has refused to limit the temporal scope and subject matter scope ofthe Subpoenas to the issues directly relevantto this action. Thus, this Court should grant Plaintiff's Motion and quash Defendant’s Subpoenas. II. PLAINTIFF'S MOTION WAS PROPERLY SERVED California Rules of Court, Rule 2.251(c) requires that where a party is required to file documents electronically in an action that party must also accept service electronically. 2- REPLY ISO MOTION TO QUASH SUBPOENAS A W N N O 0 1 O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Orange County Superior Court, Local Rule 352 requires that “documents filed by represented parties in all limited, unlimited, and complex actions must be filed electronically unless the Court excuses the parties from doing so.” (emphasis added). Further, Defendant has waived its objections to the defects of Plaintiff's Motion byfiling its opposition to the Motion and arguing the merits of Plaintiff’s Motion. (See Tate v. Superior Court, 45 Cal. App. 3d 925 (1975).) Here, this Court has not excused the parties from electronically filing documents in this action. Since the parties were required to electronically file the documents in this action,the parties were therefore required to accept service electronically. Defendant’s argument that service was impropertherefore fails. In addition, Defendant’s counsel’s argument that he should somehow be excused for failing to notice a properly served Motion should not be considered. Plaintiff is not in any way responsible for Defendant’s counsels’ office’s failure to properly check and log its emails and mails. III. DEFENDANT’S SUBPOENAS ARE EXTREMELY OVERBROAD AND SEEK EVIDENCE NOT DIRECTLY RELEVANT TO THIS ACTION As previously stated, a subpoena invading a party’s privacy rights must seek information and documents directly relevant to the case, not merely reasonably calculated to lead to the discovery of admissible evidence for ordinary discovery. (See Britt v. Superior Court, 20 Cal. 3d 844 (1978).) Defendant’s fishing expedition discovery tactic is not permitted when the constitutional right to privacyis at issue. (See Davis v. Superior Court, 7 Cal. App. 4th 1008, 1019 (1992); Mendez v. Superior Court, 206 Cal. App. 3d 557, 570 - 571 (1988) (mere conjecture about what might be found is an insufficient basis for discovery ofmatters protected by the constitutional right to privacy).) Further, California courts generally have concluded that the public interest in preserving this confidential information outweighs in importance the interest of a private litigant in seeking the information. (Bd. OfTrustees, supra, 119 Cal. App. 3d at 528-530.) Where a party seeks to discover documents subject to the constitutional right of privacy, that party bears the burden of establishing a compelling need for the discovery. (Harding Lawson Associates v. Superior Court, 10 Cal. App. 4th 7, 10 (1992).) To meet this significant burden, the party seeking -3- REPLY ISO MOTION TO QUASH SUBPOENAS A o W oN D O 0 N N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discovery mustfirst establish that each of the records soughtisdirectly relevant to the action and essential to its fair resolution. (Britt, supra, 20 Cal. 3d at 858.) Further, even if direct relevance and essentiality are found, the party seeking the discovery must also show that the information cannot reasonably be obtained through depositions or from non-confidential sources. (Harding Lawson, supra, 10 Cal. App. 4th at 10.) Finally, to the extent a Court allows discovery into information protected by the right to privacy, the order must “be the minimum intrusion necessary to achieve its objective.” (Lantz, supra, 28 Cal. App. 4th at 1855.) Further, any use of Plaintiff's performance at his prior employer to show that he engaged in similar conduct would be inadmissible character evidence and therefore not discoverable. (Hinson v. Clairemont Community Hospital, 218 Cal. App. 3d 1110, 1120 (1990).) A. The Medical Subpoenas Seek Information And Documents Not Directly Relevant To This Action And Violate Plaintiff’s Constitutional Right To Privacy And Other Rights Here, the Medical Subpoenas seek unrestricted access to all of Plaintiff’s private medical information and are clearly invasive of Plaintiff's privacy rights. While there is no dispute that Plaintiff has placed his disability at issue in this case, Plaintiff has not place all of his medical history at issue by simply bringing this action. Further, Defendant does not explain how byalleging emotional distress,it opens up Plaintiffs medical history. Defendant has simply failed to proffer any justification as to why it seeks unfettered access to any and all documents from each of Plaintiff’s medical providers. Simply speculating that the documents sought are relevant to Plaintiff’s claims is insufficient to allow discovery into Plaintiff's entire medical history. Further, Plaintiff has not waived his entire medical history simply by asserting garden variety emotional distress. (See In re Lifschutz, 2 Cal. 3d 415, 435 (1970); Britt v. Superior Court, 20 Cal. 3d 844, 849, 862-864 (1978); Jones v. Superior Court, 119 Cal. App. 3d 534, 548-551 (1981); Palay v. Superior Court, 18 Cal. App. 4th 919, 934 (1993).) Even assuming arguendo, that Defendant can show direct relevance, the balance between the right to privacy and need for discovery weighs in favor of Plaintiffs privacy rights as there is no “compelling public interest” with regards to the vast majority of documents sought by 4- REPLY ISO MOTION TO QUASH SUBPOENAS N O 0 N N n n R h W N N N N N N N N N N = e m e m e m e m p e e a m e © N N n h s D = , C W N N B R E W R , Defendant. Further, any waiver by Plaintiffas to his medical privacy should be narrowly construed and does not open the flood-gates into Plaintiff's private medical history unrelated to this action. Asstated above, Defendants justification for seeking the broad scope ofdocuments in the Medical Subpoenas is weak, at best. Indeed, disclosure of this information and documentation would severely harm Plaintiff’s right to privacy based simply on Defendant’s mere speculation of possible relevance. Even if the Court does not quash the Medical Subpoenas, the Court should limit the Medical Subpoenas’ temporal and subject matter scope to ensure that Plaintiff’s rights are not violated. B. Defendant’s Position Is Propped Up By Misstated Federal And State Cases Defendant had to find support for its untenable position by citing to federal law district court cases, which are persuasive at best. However, none of the cases cited by Defendant are as Defendant portrays them to be. In Fritsch v. City ofChula Vista, 187 F.R.D. 614 (1999), the court found that “California has adopted a constitutional right to privacy, and has recognized that medical records and the details of one’s medical history are protected under this provision.” (Id. at 633.) In Williams v. Baron, 2007 U.S. Dist. LEXIS 12342, the court granted discovery regarding the plaintiff's medical records by finding that “[i]n the instant case, plaintiff presses claim of deliberate indifference to plaintiff's serious medical needs, alleging various failings on the part of defendantsto provide adequate medical care. Accordingly, plaintiffhas placed his medical records at issue, thereby waiving his privacy interest in the records.” (Id. at *2). In John B. v. Superior Court, 38 Cal. 4th 1177, the court stated that “we note at the outset that this is not a case in which a plaintiff seeks discovery to obtain information from a defendant whose HIV status is unknown. Both parties have admitted that they are HIV positive, informally and in court filings. [Plaintiff] thus has a diminished privacy interest in his HIV status.” (Id. at 1199.) Defendant also incorrectly infers that Plaintiff is arguing that medical and employment records enjoy absolute protection. Plaintiff's Motion is filled with arguments that Plaintiffs right to privacy is not absolute and must be balanced with Defendant’s need for discovery. Furthermore, -5- REPLY ISO MOTION TO QUASH SUBPOENAS N o N O 0 N Y A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendantcites Williams v. Superior Court, 3 Cal. 5th 531 (2017) as if it does away with the compelling need test. However, Williams does not completely overrule White, only to the extent that a compelling need must be shown forall parties seeking private information. (/d. at 557 (“To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn., they are disapproved.” (citation omitted)). Furthermore, the Williams court found that medical history was more sensitive, than home contact information of employees, which is “generally considered private.” (Id. at 554). However, none ofthe cases Defendant cites provide the authority to support its claims that Defendant should be allowed unfettered access to medical records not related to Plaintiff's disability. C. The Employment Subpoenas Seek Information And Documents Not Directly Relevant To This Action And Violate Plaintiff’s Constitutional Right To Privacy Again, there is no doubt that Plaintiffs employment records are protected by the Constitutional right to privacy. Defendant’s Employment Subpoenas requested every shred of paper in Plaintiff’s personnelfile, payroll, and tax files from his previous employers. The scope of these employment subpoenas is impermissibly broad, and facially intended to implicate far more than just documents that are directly relevant to the issues presented by this case and essential to its fair resolution. Defendant does not explain why it is seeking documents from Plaintiff’s previous employers, why it should be allowed into all of Plaintiff's employment records or why any records beyond Plaintiff's pay are necessary. Further, Defendant has not made any showing that the information being sought cannot be obtained byless intrusive means (e.g. via deposition). D. The Subpoenas Should Be Quashed Because They Are Overbroad Again, Defendant’s argument that discovery is broad and therefore Defendant should be able to obtain Plaintiff’s private information regardless ofwhether they are directly relevant to the action is wrong. Because the information sought from Defendants is constitutionally protected by a right to privacy, the party seeking discovery of such items is not permitted to engage in the type -6- REPLY ISO MOTION TO QUASH SUBPOENAS N O 0 N N R A W N B R D N D N N N N R = m m e k a e a m d e m e m e a p m 2 J I B B R B U R N E R R B S 2 3 2 3 2 3 8 2 8 of “fishing expedition” that is permissible with respect to general discovery. (Tylo v. Superior Court, 55 Cal. App. 4th 1379 (1997).) Asseen above, general discovery standards do not apply to Plaintiff’s private medical and employment records. Rather there is a The Subpoenas are overbroad in scope and are not narrowly tailored as to the documents sought by the Subpoenas. The Subpoenas and Defendant’s opposition reveal that Defendant is “fishing” for some documentation to negate Plaintiff's disability and alleged emotional distress. However, Defendant’s claim that the information is relevant to this action is not enough to overcome Plaintiff’s right to privacy. E. Defendant Is Not Entitled To Attorneys’ Fees In its opposition to Plaintiff's Motion, Defendant actually does not cite any authority as to why it is entitled to attorneys’ fees. While Defendant’s caption refers to Code of Civil Procedure sections, no actual code sectionis cited or argued. Further, as seen above,Plaintiffhad more than substantialjustification in filing its Motion and thus, requests the Court to deny Defendant’s request for attorneys’ fees in its entirety. V. CONCLUSION Mere speculation that something ofinterest may surface from an overbroad and unlimited subpoena request, is unconstitutional and not permitted under both California and Federal law. The Subpoenas are too broad with respectto time and subject matter and cannot satisfy the burdens necessary to discover information protected by privilege and Plaintiff's privacy rights. Additionally, Defendant’s subpoenas would not pass any balancing test because the Subpoenas seek essentially every piece ofmedical information and employment records related to Plaintiff’s medical condition that goes beyond whatis required for Defendantsto assess Plaintiff's alleged disability and emotional distress. For the foregoing reasons, Plaintiff respectfully requests that the Court grant his Motion to Quash in its entirety. Plaintiff further requests that this Court deny Defendant’s request for attorneys’ fees. 1" nn / -7- REPLY ISO MOTION TO QUASH SUBPOENAS O L N Y n n B R W N = R O N O N N N N N N N N H m e m e m e m e m e m e b p e d c c N N b h B A W OR , O E N N R W R D Alternatively, if the Court is inclined to allow the Medical subpoenas to move forward, Plaintiff asks that the Court to: (1) limit the scope ofthe Subpoenas that balances Plaintiff right to privacy and Defendant’s need for discovery, (2) conduct an in-camera review of the documents responsive to the Subpoenas and order what should be produced, (3) allow Plaintiff to perform a first-look for redaction of irrelevant information, and (4) orderthe parties to enter into a protective order for the produced records. Dated: September 7, 2017 AEGIS LAWFIRM, PC By \ Samuel A. Wong Kevin H. Sun Attorneys for Plaintiff PATRICK LENT -8- REPLY ISO MOTION TO QUASH SUBPOENAS N O 0 N N W N N O N O N N N N N N N m m e m e m e m e m p m me d e e e d f e o o 3 A N n n B A W N = D O O e N R R L = D CERTIFICATE OF SERVICE I, the undersigned, am employed in the County of Orange, State of California. T am over the age of 18 and not a party to the within action; am employed with Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On September 7, 2017, I served the foregoing document entitled: e PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO QUASH DEFENDANT'S SUBPOENAS FOR EMPLOYMENT RECORDS AND MEDICAL RECORDS on all the appearing and/orinterested parties in this action by placing [| the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Lyne A. Richardson Robert A. Orozco FORD & HARRISON LLP 350 South Grand Ave., Suite 2300 Los Angeles, CA 90071 Attorneyfor Defendants: West Coast Arborists, Inc x (BY MAIL) I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that on motion ofthe party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing this affidavit. (Cal Code Civ. Proc. § 1013(a); Fed. R. Civ. Proc. 5(a); Fed. R. Civ. Proc. 5(c).) [] (BY OVERNIGHT MAIL) I am personally and readily familiar with the business practice of Aegis Law Firm PC for collection and processing correspondence for overnight delivery, and I caused such document(s) described herein to be deposited for delivery to a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. § 1013(c); Fed. R. Civ. Proc. 5(c).) X (BY ELECTRONIC TRANSMISSION) I caused said document(s) to be served via electronic transmission via Case Anywhere on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2)(E); Fed. R. Civ. Proc. 5(b)(3).) 1] (BY PERSONAL SERVICE) 1 delivered the foregoing document by hand delivery to the addressed named above. (Cal Code Civ. Proc. § 1011; Fed. R. Civ. Proc. 5(b)(2)(A).) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on September 7, 2017,at Irvine, “ilGE ~Ali Carlsen CERTIFICATE OF SERVICE