DOMINIQUE DANIELS, Plaintiff, v. ADVANCED GROUP 01-75 et al., Defendants No. SA CV 23-01940-MCS (DFM) United States District Court, C.D. California, Southern Division Filed September 26, 2024 Counsel Dominique Daniels, Los Angeles, CA, Pro Se. Alexandra Inman, Grimm Vranjes Greer Stephan and Bridgman LLP, Gregory Donald Stephan, Grimm Vranjes and Greer LLP, San Diego, CA, for Defendants. McCormick, Douglas F., United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO QUASH DEFENDANTS' SUBPOENAS I. INTRODUCTION *1 On July 17, 2024, Plaintiff Dominique Daniels moved to quash subpoenas served by Defendants Advanced Group 01-75, Advanced Real Estate Services, Inc., AG89-5, Inc., Amy Fylling, Joell Scardina, and Lori Powell's (“Defendants”) for Plaintiff's medical, billing, and diagnostic records. See Dkt. 130 (“Motion”). In her motion to quash, Plaintiff argues that Defendants' subpoenas are overbroad and seek records that are protected by her privacy rights and not relevant to the claims and defenses in this case. On July 30, 2024, Defendants opposed Plaintiff's Motion to Quash, supported by a declaration of counsel. See Dkt. 137 (“Opp'n”), 137-1 (“Inman Decl.”). For the reasons discussed below, Plaintiff's motion is GRANTED in part and DENIED in part. II. BACKGROUND In October 2023, Plaintiff filed this lawsuit against Defendants alleging a variety of disability discrimination and related claims. See Dkt. 1 (“Complaint”). Plaintiff's claims primarily arise from Defendants' alleged failure to respond to her requests for modifications to her apartment bathtub and requests for handicap accessible parking. See Complaint ¶¶ 19-21.[1] While Plaintiff does not specify the exact nature of her disability, she generally alleges that during the relevant time period, she was “a disabled or handicapped tenant at Defendants Crestwood Apartments property.” Id. ¶ 18. She further alleges she suffers from a “chronic disease and health condition” and is “substantially affected in her organs, immune, respiratory, and muscle systems.” Id. After receiving information from Plaintiff during discovery, Defendants issued third-party subpoenas to Plaintiff's medical provider, Kaiser Permanente (“Kaiser”), requesting: Any and all medical records pertaining to the care, treatment, and examination, all office, emergency room, inpatient and outpatient charts and records including sign-in sheets, and documentation which indicate dates and times of appointments, photographs (digital and/or film), and insurance documents, from DOB to Present. Any and all itemized bills including all itemizations showing complete payment history (insurance payment, patient payments; facility and/or insurance adjustments and/or write-offs including balance due if any). Payments should indicate the name/company from whom the payments were made, from September 5, 2019 to the present. Any and all x-rays, MRIs, and CT scans for any and all dates. See Opp'n at 6-7; Inman Decl. ¶¶ 4-6. During a meet and confer discussion, Defendants' counsel offered to “limit the time period for the medical history to June 6, 2005, to the Present.” Inman Decl. ¶ 7. Counsel also suggested a protective order be entered “to maintain the confidentiality of Plaintiff's medical records.” Id. Plaintiff “declined these offers,” and subsequently moved to quash the subpoenas on privacy grounds. Id.; see Motion at 3-4. *2 On August 20, 2024, the Court held a hearing to resolve the present motion and a separate motion for a protective order filed by Defendants. See Dkt. 139. At that hearing, the Court granted Defendants' motion for a protective order. See Dkt. 139, 140. Additionally, after some discussion with Plaintiff and Defendant's counsel, the Court proposed that Defendants take a short deposition of Plaintiff to identify the specific nature of her disability and thus permit Defendants to narrow their subpoena. The parties agreed and the Court continued the hearing on Plaintiff's motion to enable the deposition to take place. At the subsequent hearing on September 17, 2024, Defendants argued that Plaintiff's vague and unspecific answers during her deposition left them unable to limit the scope of their subpoenas. See Dkt. 148. However, Defendants offered to limit the time frame for the medical records sought to January 1, 2015, through October 21, 2023. Plaintiff continued to argue that the records sought were not discoverable. III. LEGAL STANDARD Federal Rule of Civil Procedure 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. Iniguez v. Wayfair, No. 21-880, 2022 WL 2168152, *1 (C.D. Cal. Jan. 11, 2022) (citing Fed. R. Civ. P. 45(a)(1)(C)). 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),” Rule 45 subpoenas must meet the same requirements applicable under Federal Rule of Civil Procedure 26. ATS Products, Inc. v. Champion Fiberglass, Inc., 309 F.R.D. 527, 530 (N.D. Cal. 2015) (citations omitted). Rule 26 allows a party to obtain discovery of “any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). Courts have broad discretion in controlling discovery and in determining relevancy. See 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. However, “the right to discover relevant information must be weighed against the right to privacy.” Brown v. Dash, No. 20-10676, 2021 WL 4434978, at *1 (C.D. Cal. July 27, 2021), reconsideration denied, 2021 WL 4899019 (C.D. Cal. Sept. 1, 2021). Thus, “[i]n 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, No. 08-7428, 2009 WL 4707996, at *3 (C.D. Cal. Dec. 9, 2009). “[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). Generally, “a party has no standing to quash a subpoena served upon a third party, except as to claims of privilege relating to the documents being sought.” Cal Sportfishing Prot. All. v. Chico Scrap Metal, Inc., 299 F.R.D. 638, 643 (E.D. Cal. 2014). IV. DISCUSSION A. Medical and Diagnostic Record Subpoenas Plaintiff argues that the production of her medical records would reveal private medical information that is irrelevant to the current litigation. See Motion at 20-23. Specifically, Plaintiff argues that certain medical records related to her “ordinary health, gynecological, internal medicine ... and mental health medical records, history, and information” are not discoverable and not placed at issue. Id. at 23. In response, Defendants argue that, given that Plaintiff “has alleged that she is a disabled person without any factual support or specific information related to her alleged disability,” they are entitled to relevant and responsive discovery that is proportional to the claims in the Complaint. See Opp'n at 8-9. 1. Physician-Patient Privilege Plaintiff argues that her “unrelated medical records are protected from discovery by the California Constitution and well-settled case law.” Motion at 20. But Plaintiff's reliance on California's physician-patient privilege is misplaced. Federal law—not state law—governs the privilege analysis for cases, such as this, where subject matter jurisdiction is based upon the existence of federal question. See Complaint ¶ 1; see also Fed. R. Evid. 501; Grasshopper House, LLC v. Accelerated Recovery Ctrs., LLC, No. 09-8128, 2010 WL 11549386, at *2 (C.D. Cal. Oct. 19, 2010) (explaining that because the court had “federal question jurisdiction over this action ... any privacy or privilege determinations [were] governed by federal [law], rather than by California law”). *3 Federal law does not recognize a physician-patient privilege as to medical records. See Garcia v. Capistrano United Sch. Dist., No. 16-2111, 2019 WL 6332242, at *3 (C.D. Cal. June 18, 2019) (“Federal law does not recognize a physician-patient privilege protecting medical records from discovery.”). However, the Ninth Circuit recognizes “a limited privacy interest in the confidentiality of one's medical records.” Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 657 (C.D. Cal. 2005). This privacy right is not absolute; rather, it is subject to a balancing of needs. See A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 191 (C.D. Cal. 2006) (citation omitted). In conducting this balancing test, courts consider the following factors: “(1) the type of information requested, (2) the potential for harm in any subsequent non-consensual disclosure, (3) the adequacy of safeguards to prevent unauthorized disclosure, (4) the degree of need for access, and (5) whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.” Seaton v. Mayberg, 610 F.3d 530, 539 (9th Cir. 2010). Here, Plaintiff alleges that Defendants unlawfully discriminated against her on the basis of an unspecified disability that “substantially affect[s]” several aspects of her physical health, including her “organs, immune, respiratory, and muscle systems.” Complaint ¶ 18. These allegations put Plaintiff's physical health records directly at issue. See Riverside All of Us or None v. City of Riverside, No. 23-1536, 2024 WL 4002677, at * 3 (C.D. Cal. July 5, 2024) (finding medical records discoverable where plaintiffs alleged defendants discriminated against them on the basis of their disability). For that reason, the Court finds that Plaintiff's medical records related to her physical health, including her internal medicine records, are relevant to the litigation and are discoverable. However, the Court agrees with Plaintiff that her gynecological records are unnecessary to Defendants' investigation of her disability and that the production of any such records is likely to reveal sensitive and irrelevant medical information. As many courts have recognized, a party's gynecological records “are not only sensitive, but of the highest sensitivity.” Prado v. Equifax Info. Serv. LLC, 331 F.R.D. 134, 137 (N.D. Cal. 2019); see also Daniels v. G4S Secure Solutions USA, Inc., No. 20-283, 2020 WL 7861983, at *2 (C.D. Cal. Nov. 20, 2020) (finding that “information about sexually transmitted infections, pregnancy, miscarriage, abortion, family planning, sexual abuse, children delivered but given up for adoption, stillbirth, and contraception” creates a “special privacy interest” in gynecological records). Thus, given Plaintiff's privacy interest in these records and the fact that she has not placed any gynecological condition at issue in this case, the Court concludes that Plaintiff's gynecological records are not discoverable. 2. Psychotherapist-Patient Privilege Plaintiff also argues that her psychological/psychiatric health records are protected by the psychotherapist-patient privilege. See Motion at 15. In response, Defendants argue that Plaintiff's allegations of emotional distress create a “legitimate interest” in these records. Opp'n at 12-13. The United States Supreme Court has explicitly recognized the existence of a psychotherapist-patient privilege, which protects all confidential communications between a person and a licensed psychiatrist, psychologist, or social worker. See Jaffee v. Redmond, 518 U.S. 1, 8-17 (1996). However, neither the Supreme Court nor the Ninth Circuit have established a standard to evaluate waiver of the psychotherapist-patient privilege. Consequently, district courts have adopted three competing approaches to determine whether a patient waived her psychotherapist-patient privilege. See Fitzgerald v. Cassil, 216 F.R.D. 632, 636-38 (N.D. Cal. 2003). First, under the “broad” approach, courts have held that a simple allegation of emotional distress in a complaint constitutes waiver. See id. at 636. Second, under the “middle ground” approach, courts have generally found waiver when the plaintiff has done more than allege garden-variety emotional distress. See id. at 637. Finally, under the “narrow” approach, courts require that a plaintiff affirmatively rely on psychotherapist-patient communications in support of her claims before the privilege is deemed waived. See id. at 639. *4 Following the reasoning of the court in M.S. v. City of Fontana, the Court finds that the middle ground approach is the appropriate standard to determine waiver of the psychotherapist-patient privilege. No. 16-2498, 2018 WL 6075323, at *3-4 (C.D. Cal. July 12, 2018) (concluding that the middle ground approach “appropriately finds waiver only when a party has put not only his or her mental state at issue, but has also effectively put the records of his or her psychotherapy treatment at issue”; explaining that the broad approach “may find waiver even if psychotherapy treatment has little bearing on the claims” and the narrow approach “affords the patient excessive latitude to rely on psychotherapy for emotional distress claims”). Under this approach, the Court must determine whether Plaintiff has alleged more than garden-variety emotional distress. See Fitzgerald, 216 F.R.D. at 637. Garden-variety emotional distress has been described as “ordinary or commonplace emotional distress” that is “simple or usual.” Id. In contrast, emotional distress that is not garden-variety “may be complex, such as that resulting in a specific psychiatric disorder.” Id. (citation omitted). Here, Plaintiff claims that Defendants' alleged discriminatory actions caused her to suffer injuries “such as fear, worry, shock, panic, inconvenience, strain, ... embarrassment, pain, [and] loss of self-dignity.” Complaint ¶¶ 42, 60, 78. Plaintiff argues that these allegations do not rise beyond garden-variety allegations. See Mot. at 22. The Court agrees. Plaintiff has not alleged a specific psychiatric disorder, and there is no indication that any such disorder has been identified or diagnosed. Moreover, Plaintiff's mental condition is not at the heart of this litigation, which primarily concerns Defendants' alleged discrimination against Plaintiff on the basis of her physical disability. While Plaintiff generally claims that Defendants' alleged discrimination caused her some level of emotional distress, she does not plead either an intentional or negligent infliction of emotional distress claim. Thus, Plaintiff has not waived the psychotherapist-patient privilege by alleging only garden-variety emotional distress. 3. Temporal Scope of Medical Record Subpoenas Finally, Defendants have offered to limit the temporal scope of the medical record subpoenas to January 1, 2015, through October 21, 2023, which would reduce the amount of potentially private information Defendants would receive. The Court does not find that discovery of Plaintiff's medical records should be limited further. Rather, the Court agrees with Defendants that, considering Plaintiff's refusal to reveal the exact nature and onset of her disability, review of her medical records dating back several years and predating the events alleged in the Complaint is necessary. See Riverside All of Us or None, 2024 WL 4002677, at *3 (finding that records predating conduct alleged in the operative complaint were relevant to evaluate the plaintiffs' claims of disability). The Court has also entered a protective order in this case, which would prevent the disclosure of Plaintiff's medical information outside of this litigation. See Dkt. 128, 140. This measure mitigates some of Plaintiff's privacy concerns. Accordingly, on balance, the Court finds that Defendants are entitled to Plaintiff's medical records, with the exception of her gynecological and psychological/psychiatric records, from January 1, 2015, through October 21, 2023. B. Medical Bills Subpoena Plaintiff also argues that information related to her medical bills and insurance information is not discoverable because Defendants “cannot show any claims by Plaintiff where she alleges that she incurred expenses for medical bills or made insurance claims as a result of the Defendants unlawful discriminatory, retaliatory, and neglectful conduct.” Motion at 26. In response, Defendants argue that Plaintiff placed her medical bills at issue when she included a claim for physical injury. See Opp'n at 16. Defendants also offer to limit the temporal scope of the subpoena concerning Plaintiff's medical bills to the date of Plaintiff's tenancy to the present. See id. *5 Here, Plaintiff alleges that, as a result of Defendants' negligence, she suffered physical injuries, including “cat attacks, puncture wounds, scratches, and bleeding to her arm.” Complaint ¶ 103. Plaintiff further seeks general and actual compensatory damages. See id. ¶ 108. Based on these allegations, any billing records related to Plaintiff's alleged physical injuries are relevant. See Freed v. Home Depot U.S.A., Inc., No. 18-359, 2019 WL 183833, at *6 (S.D. Cal. Jan. 14, 2019) (finding billing records relevant where the plaintiff alleged physical injury as a result of defendants' purported negligence). However, the Court finds it appropriate to limit the scope of the billing record subpoena to those from the date of Plaintiff's tenancy to the present, as suggested by Defendants.[2] V. CONCLUSION With respect to the subpoenaed medical and diagnostic records, the Court finds that Defendants are entitled to obtain the subpoenaed records, with the exception of Plaintiff's gynecological and psychological/psychiatric records. Accordingly, Plaintiff's Motion to Quash the subpoenas to Kaiser for medical and diagnostic records is GRANTED in part and DENIED in part. With respect to Defendants' subpoena to Kaiser for billing records, the Court finds that Defendants are entitled to obtain billing records from the date of Plaintiff's tenancy to the present. Accordingly, Plaintiff's Motion to Quash the subpoena for billing records is DENIED. All records produced pursuant to the subpoenas shall be appropriately designated pursuant to the Protective Order entered in this case in order to maintain the confidentiality of those records. Footnotes [1] Plaintiff also alleges negligence arising from events on August 23, 2023, when she was purportedly attacked by a neighbor's cat. See id. ¶¶ 31-33. [2] Plaintiff also asserts that Defendants' subpoenas were “issued in bad faith” and “meant to harass, annoy, and embarrass Plaintiff.” Motion at 24-26. However, Plaintiff does not offer any evidentiary support for her accusations. And, given Plaintiff's broad allegations as to her disability, Defendants' subpoenas requesting information about her prior diagnoses and treatment seek information relevant to this case. See Carter v. Telecare Corp., No. 18-10748, 2019 WL 6711688, at *3 (C.D. Cal. Jul. 11, 2019) (declining to quash subpoenas where the plaintiff did not provide any evidence to support her accusations of improper motive and defendants demonstrated documents sought were relevant to its defenses and proportional to the needs of the case).