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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Salem Samaan vs Donghao Shen

Case No: 16CV04138
Hearing Date: Fri Jan 05, 2018 9:30

Nature of Proceedings: Motion: Quash

Tentative Ruling: The court grants plaintiff Salem Samaan’s motion to quash or limit defendant Donghao Shen’s deposition subpoena for business records of Allstate Insurance Company dated November 9, 2017. The court limits the subpoena to the following: Any and all documents and records from the insurance and claim file of Salem Samaan and Claim#0368302410, date of loss: August 14, 2014, that pertain to: 1) medical records and photographs relating to cervical, thoracic and lumbar sprain/strains; myalgia; paresthesia; dizziness; nausea; continued headaches; difficulty sleeping; numbness in his arms; and weakness and pain in both hands; and 2) property damages, including repair estimates and photographs. The court denies both parties’ requests for sanctions or expenses associated with the motion.

 

 

Background: This action arises out of a motor vehicle collision on November 11, 2014, on Montecito Street in Santa Barbara. Plaintiff is Salem Samaan and defendant is Donghao Shen. MSC is scheduled for February 2 and trial for March 16, 2018.

Motion: Plaintiff moves to quash or modify the deposition subpoena for production that defendant issued to Allstate Insurance Company on November 9, 2017. The subpoena seeks: “Any and all documents and records pertaining to the insurance and claim file of SALEM SAMAAN, including, but not limited to, all payments, policy information, listing of providers, correspondence, all log notes, declaration of coverage, medical records, property damages, repair estimates and repairs, color photographs pertaining to SALEM SAMAAN, DOB: August 8, 1970, with SS# XXX-XX-8361, from any and all dates Claim#0368302410 DOL: 8/14/2014 INSURED: SAMAAN SALEM”

Plaintiff contends the subpoena is overly broad and invades his right to privacy. Defendant contends the medical information is relevant to the injuries plaintiff claims in this case, as is damage to the same car just three months earlier.

CCP § 1985.3(g) provides: “Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum.” CCP § 1987.1(a) provides that the court may, on motion, “make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.”

“It is settled that a person’s medical history … falls within the zone of informational privacy protected under [Cal. Const. art. I, § 1].” People v. Martinez, 88 Cal.App.4th 465, 474-475 (2001). “A person’s medical profile is an area of privacy infinitely more intimate, more personal in quality and nature than many areas already judicially recognized and protected.” Board of Medical Quality Assurance v. Gherardini, 93 Cal.App.3d 669, 678 (1979). “[I]nquiry into one’s private affairs will not be constitutionally justified simply because inadmissible, and irrelevant, matter sought to be discovered might lead to other, and relevant, evidence.” Board of Trustees v. Superior Court, 119 Cal.App.3d 516, 525 (1981) [italics in original]. “In those situations where it is argued that a party waives protection by filing a lawsuit, the court must construe the concept of ‘waiver’ narrowly and a compelling public interest is demonstrated only where the material sought is directly relevant to the litigation. [Citation] The party seeking the constitutionally protected information has the burden of establishing that the information sought is directly relevant to the claims.” Tylo v. Superior Court, 55 Cal.App.4th 1379, 1387 (1997). “[E]ven when a plaintiff files an action that places his or her medical records at issue, waivers of constitutional rights are narrowly construed and not lightly found.” Bearman v. Superior Court, 117 Cal.App.4th 463, 473 (2004).

Plaintiff tried to get defendant to limit the subpoena by amending it to: 1) remove the request for payments, policy information, correspondence, log notes, declaration of coverage, property damages, repair estimates and repairs; and 2) limit the request for medical records and color photographs to injuries or complaints to plaintiff’s neck/cervical, upper to middle/thoracic and lower/lumbar spine, myalgia, paresthesia, dizziness, nausea, and headaches.

In response to form interrogatory #6.2, plaintiff claimed he incurred cervical, thoracic and lumbar sprain/strains; myalgia; paresthesia; dizziness; nausea; continued headaches; difficulty sleeping; numbness in his arms; and weakness and pain in both hands as a result of the accident. Plaintiff’s proposed limitation leaves out the difficulty sleeping, numbness in his arms, and weakness and pain in both hands. (In the reply, plaintiff agrees that the subpoena can seek information regarding injuries to both hands.)

Damage to the vehicle does not fall into the category of constitutionally protected privacy. The amount Allstate actually paid does not reveal the strength of the impact or extent of damage, though damage estimates revealing the specific damage would. That information is reasonably calculated to lead to the discovery of admissible evidence. (Though plaintiff initially resisted the request for property damage information, in the reply, plaintiff agrees that defendant can have this information.)

The court does not see how policy information or Allstate’s correspondence and notes regarding the other claim is reasonably calculated to lead to the discovery of admissible evidence. Plaintiff’s insurance coverage at the time of the prior accident and Allstate’s adjustment policies and practices are not at issue in this case.

In meet and confer correspondence, defendant’s counsel stated: “The mere fact that your client made a claim is relevant to this matter. It goes to your client’s bias and proclivity to make an injury claim.” In the opposition, defendant states that the “information goes toward plaintiff’s credibility and bias.” Therefore, defendant contends, the subpoena should not be altered at all. Defendant provides no authority for this novel claim. The court is not persuaded by this conclusory argument.

The court grants plaintiff Salem Samaan’s motion to quash or limit defendant Donghao Shen’s deposition subpoena for business records of Allstate Insurance Company dated November 9, 2017. The court limits the subpoena to the following: Any and all documents and records from the insurance and claim file of Salem Samaan and Claim#0368302410, date of loss: August 14, 2014, that pertain to: 1) medical records and photographs relating to cervical, thoracic and lumbar sprain/strains; myalgia; paresthesia; dizziness; nausea; continued headaches; difficulty sleeping; numbness in his arms; and weakness and pain in both hands; and 2) property damages, including repair estimates and photographs.

Both parties request monetary sanctions. The court may, in its discretion, award the amount of the reasonable expenses incurred in making or opposing a motion to quash or modify a subpoena, including attorney fees. CCP § 1987.2(a). The ruling on this motion is a mixed bag. The subpoenas were overbroad and invasive of fundamental privacy rights. In discussions about the dispute over the subpoenas, plaintiff’s counsel’s proposals were too narrow and defendant’s counsel’s proposals were too broad. Indeed, in the reply, plaintiff walked back some of the objections to the subpoena. The court will not award expenses and costs to either party.

 
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