Adrieanna Hooks v. Target Corporation et al Case No. 5:22-cv-00052-SSS (SPx) United States District Court, C.D. California Filed December 29, 2022 Counsel Brennan S. Kahn, Michael Sherr Walker, Todd H. Harrison, Perona Langer Beck Serbin and Harrison APC, Long Beach, CA, for Plaintiffs. Whitney Nonnette Perry, Samantha C. Grant, Reed Smith LLP, Los Angeles, CA, for Defendants. Pym, Sheri, United States Magistrate Judge Proceedings: (In Chambers) Order Granting in Part Plaintiff's Motion to Quash Defendant's Subpoenas [42] I. INTRODUCTION *1 On September 13, 2022, plaintiff Adrieanna Hooks filed a motion to quash defendant Target Corporation's subpoenas for medical and employment records. Docket no. 42. Plaintiff's motion is supported by the declaration of her counsel Brennan S. Kahn (“Kahn Decl.”) and exhibits. On September 27, 2022, defendant filed an opposition to plaintiff's motion, which is supported by the declaration of its counsel Whitney Nonnette Perry (“Perry Decl.”) and exhibits. Plaintiff filed a reply to defendant's opposition on October 4, 2022. The court found a hearing on this motion would not be of assistance, and so vacated the hearing that was scheduled for October 18, 2022. The court now grants in part plaintiff's motion to quash for the reasons discussed below. II. BACKGROUND This is an employment discrimination case arising from defendant's alleged constructive termination of plaintiff. Plaintiff alleges that following a workplace injury to her back in February 2020, defendant placed her on forced medical leave. Kahn Decl. ¶ 3. This case originated in state court and was removed on January 6, 2022. Docket no. 1. On August 29, 2022, defendant issued third-party subpoenas to Kaiser Permanente (“Kaiser”), plaintiff's medical provider, and Fontana Unified School District (“FUSD”), plaintiff's concurrent employer since 2010.[1] Kahn Decl. ¶¶ 3-4; Perry Decl. ¶¶ 8-9. The noticed production date for the subpoenas was September 14, 2022. Kahn Decl. ¶ 4; Perry Decl. ¶ 10. On September 9, 2022, plaintiff sent defendant an email containing objections to the subpoenas supported by legal authority and proposed modifications. Kahn Decl. ¶ 5, Ex. E; Perry Decl. ¶ 11, Ex. I. Having received no response, on September 13, 2022, plaintiff sent defendant another email suggesting the parties meet and confer in person. Kahn Decl. ¶ 6, Ex. F; Perry Decl. ¶ 12, Ex. J. The parties were unable to schedule a time to meet and confer prior to plaintiff's deadline for filing a motion to quash, which was prior to September 14. ¶¶ 8-9; Perry Decl. ¶ 13, 15. On September 13, 2022, plaintiff moved to quash the subpoenas on privacy grounds. III. DISCUSSION Plaintiff asks the court to quash or modify defendant's subpoenas for medical and employment records, arguing the records contain irrelevant and private information. Defendant opposes, arguing first that the motion is procedurally defective for failure to comply with Local Rule 37. On the merits, defendant contends plaintiff put her medical records at issue when she alleged discrimination based on physical disability. Defendant further contends the medical records are relevant to plaintiff's disability determination, her requests for accommodations, and her emotional distress claim. Defendant argues that records from plaintiff's concurrent employer are relevant to the merits of plaintiff's claims of disability and her requests for accommodations, as well as her credibility. *2 As an initial matter, defendant's argument that plaintiff's motion fails to comply with Local Rule 37's joint stipulation requirement is misplaced. Local Rule 37 provides procedural requirements for any discovery motion relating to Federal Rules of Civil Procedure 26-37. Because the instant motion to quash is governed by Federal Rule of Civil Procedure 45, the requirements of Local Rule 37 do not apply here. Nonetheless, the court expects the parties to meet and confer prior to filing any discovery motion. But since plaintiff attempted to meet and confer within the time available, the court considers the motion. A. Legal Standard Rule 45 permits a party to serve a subpoena commanding a nonparty “to attend and give testimony or to produce and permit inspection and copying of” documents. Fed. R. Civ. P. 45(a)(1)(C). Rule 45 subpoenas must meet the same requirements applicable to any discovery sought because “[t]he scope of discovery [sought] through a subpoena under Rule 45 is the same as the scope of discovery permitted under Rule 26(b).” Intermarine, LLC v. Spliethoff Bevrachtingskantoor, B.V., 123 F. Supp. 3d 1215, 1217 (N.D. Cal. 2015) (citation omitted); ATS Prods., Inc. v. Champion Fiberglass, Inc., 309 F.R.D. 527, 530 (N.D. Cal. 2015) (citing Advisory Committee Notes to Rule 45). Federal Rule of Civil Procedure 26 limits the scope of discovery to nonprivileged matters that are relevant to any party's claim or defense and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). “Federal courts ordinarily recognize a constitutionally-based right of privacy that can be raised in response to discovery requests.” Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) (citation omitted). “In determining whether privacy is subject to invasion, the court must balance [the] asserted right to privacy against the relevance and necessity of the information sought ....” Edwards v. Cnty. of Los Angeles, 2009 WL 4707996, at *3 (C.D. Cal. Dec. 9, 2009) (citing cases). “[T]he party who moves to quash a subpoena has the burden of persuasion.” Moon v. SCP Pool Corp., 232 F.R.D. 633, 637 (C.D. Cal. 2005) (internal quotation marks and citation omitted). Courts have broad discretion in controlling discovery” and “in determining relevancy.” Laub v. Horbaczewski, 331 F.R.D. 516, 521 (C.D. Cal. 2019) (citations omitted). “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. “[T]he right to discover relevant information must be weighed against the right to privacy.” Brown v. Dash, 2021 WL 4434978, at *1 (C.D. Cal. July 27, 2021), reconsideration denied, 2021 WL 4899019 (C.D. Cal. Sept. 1, 2021). B. Kaiser Subpoena The subpoena to Kaiser essentially requests all records relating to plaintiff from January 2012 to the present, including all medical records, communications, and invoices. Kahn Decl., Ex. C. Plaintiff argues her medical records are private and protected from disclosure under California law.[2] P. Mem. at 11. Confidential communications between a patient and physician, “including information obtained by an examination of the patient,” “a diagnosis made[,] and the advice given by the physician[,]” are privileged. Cal. Evid. Code §§ 992, 994. Additionally, California's constitution protects a patient's right to privacy in her medical records. See Cal. Const. art. I, § 1; see also Davis v. Superior Ct., 7 Cal. App. 4th 1008, 1020, 9 Cal. Rptr. 2d 331 (1992) (finding trial court's denial of motion to quash the subpoena for medical records violated petitioner's constitutional right of privacy). Nevertheless, both the constitutional protection and the statutory privilege can be waived if the patient puts the information sought at issue in litigation. See Cal. Evid. Code § 996(a); Smith v. Equinox Holdings, Inc., 2015 WL 628361, at *2 (N.D. Cal. Feb. 12, 2015) (finding the right to privacy “may be abridged to accommodate a compelling public interest,” such as “the historically important state interest in facilitating the ascertainment of truth in connection with legal proceedings.”) (internal citations omitted). As noted above, the resolution of a privacy objection involves a balancing of the need for the information sought against the privacy right asserted. Soto, 162 F.R.D. at 616 (citing Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1447 (11th Cir. 1984)). *3 Here, plaintiff seeks redress for claims including discrimination based on physical disability and intentional infliction of emotional distress. Compl. ¶¶ 40, 89. The nature of plaintiff's claims put her medical and mental health records directly at issue. See Rosales v. Crawford & Co., 2021 WL 4429468, at *4 (E.D. Cal. Sept. 27, 2021) (finding medical records discoverable where plaintiff alleged emotional distress and disability discrimination under FEHA); Hukman v. Sw. Airlines Co., 2019 WL 566451, at *4 (S.D. Cal. Feb. 12, 2019) (finding plaintiff placed medical condition at issue, relevant to her ability to work and causation, where plaintiff alleged inter alia retaliation and failure to stop discrimination under FEHA). For that reason, at least some of these records are relevant to the litigation and discoverable. Plaintiff argues her right to privacy in her medical records outweighs defendant's need for them. P. Mem. at 11. Specifically, she argues that a production of records dating back to 2012 would reveal private medical conditions and therapy records that are irrelevant to the current litigation. P. Mem. at 13. The court agrees that production of documents as far back as 2012 is unnecessary to defendant's investigation of plaintiff's disability and emotional distress claims, and is likely to produce sensitive and irrelevant medical information. But the court also agrees with defendant that some records predating plaintiff's 2020 injury are relevant to evaluate her claims of disability and possible alternate causes or contributors to her injuries, both mental and physical. D. Mem. at 12-15. See Sirota v. Penske Truck Leasing Corp., 2006 WL 708910, at *3 (N.D. Cal. Mar. 17, 2006) (finding “defendant is entitled to some medical records that pre-date plaintiff's injury, as records that are contemporaneous to plaintiff's injury may be highly relevant to plaintiff's claims of physical and emotional distress” where plaintiff alleged civil rights violations under FEHA). On balance, the court finds that defendant is entitled to records relating to musculoskeletal injuries or conditions or to mental health beginning three years prior to the injury. While plaintiff's physical and mental health are directly at issue in this case, defendant does not need the entirety of plaintiff's medical file from Kaiser relating to any and all conditions since 2012 to evaluate her claims of disability and related emotional distress. For these reasons, each of the nineteen requests in the Kaiser subpoena shall be limited to request only writings and ESI from the time period of January 1, 2017 to the present that pertain to plaintiff's musculoskeletal injuries or conditions or to plaintiff's mental health. C. FUSD Subpoena The subpoena to FUSD essentially requests all records relating to plaintiff without any time limitation, including her personnel file, her job applications, records of any investigations relating to her, records of limitations on her work activities, records of her leaves of absence, and records of her wages. Kahn Decl., Ex. B. “California recognizes a limited privacy right in employment records.” Sirota v. Penske Truck Leasing Corp., 2006 WL 708910, at *2 (N.D. Cal. Mar. 17, 2006). Protection may be lessened where no third party privacy interests are at stake. Id. “When an individual's right of privacy in his ... affairs conflicts with the public need for discovery in litigation, the competing interests must be carefully balanced.” El Dorado Sav. & Loan Ass'n v. Sup. Ct., 190 Cal. App. 3d 342, 345, 235 Cal. Rptr. 303 (1987) (quoting Moskowitz v. Sup. Ct., 137 Cal. App. 3d 313, 314, 187 Cal. Rptr. 4 (1982)). Here, the privacy interests at stake are plaintiff's own. But just because plaintiff initiated this lawsuit does not mean she sacrifices all privacy rights in records from her concurrent employer; rather, her privacy must be balanced against defendant's need for the information sought. Plaintiff argues that production of the FUSD records would reveal private information including her hiring records, disciplinary history, attendance history, medical documents, and communications with her family members. P. Mem. at 14. Defendant argues the FUSD records are relevant to plaintiff's credibility, as well as her claims that she had a disability while concurrently employed by defendant, that she required accommodations, that she was constructively terminated by defendant, experienced emotional distress, and that she mitigated her damages. D. Mem. at 18-19. Defendant also argues the records are relevant to the extent they contain allegations of wrongful conduct against her concurrent employer. D. Mem. at 19. *4 The court agrees with defendant that some records from plaintiff's concurrent employer are relevant to evaluating her disability claims, her requests for accommodations, and the mitigation of her damages. But the court agrees with plaintiff that the production as currently requested is likely to produce confidential information unrelated to this litigation. For example, defendant requested records regarding “any investigations [FUSD] conducted” into plaintiff, without any time or subject matter limitations. Kahn Decl., Ex. B. As plaintiff notes, this request could include sensitive disciplinary records having nothing to do with plaintiff's disability or workplace accommodations. Further, though defendant requested all records relating to “the amount of wages [FUSD] paid to [plaintiff] at any time,” it has not shown a need for plaintiff's pay-related information beyond the period relevant to mitigation of damages. Id. Overall, defendant has shown no legitimate need for plaintiff's employment records unrelated to her injury, disability, accommodations, and damages mitigation, other than a desire to evaluate her credibility generally. Additionally, defendant has not demonstrated the relevance of records that date back to plaintiff's start with FUSD in 2010. Accordingly, the FUSD subpoena shall be limited to request only records from January 1, 2019 to the present. Request numbers 1, 4, 5, 6, 7, 8, and 10 shall be additionally limited to request only writings and ESI that relate to plaintiff's musculoskeletal injuries or conditions, her mental health or any claimed emotional distress, her disability, any requests for workplace accommodations, and any disability-related complaints. IV. ORDER For the foregoing reasons, plaintiff's motion to quash (docket no. 42) is granted in part. Defendant's subpoenas to Kaiser FUSD shall be limited as described above. If the parties believe a protective order is warranted, they shall meet and confer in an attempt to reach agreement on a stipulated protective order. For an example of a protective order, the parties may refer to the Sample Stipulated Protective Order that is attached to the Magistrate Judge's Procedures and Schedules on the court's website. Footnotes [1] Plaintiff's declaration states that defendant issued four subpoenas. Kahn Decl. ¶ 4. But it appears only two subpoenas, to Kaiser and FUSD, are at issue here. See Kahn Decl., Exs. B, C. [2] Under Erie and its progeny, federal courts sitting in diversity apply federal discovery and evidentiary rules. Federal Rule of Evidence 501 provides “in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” Accordingly, California law governs the application of plaintiff's privilege assertion.