The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge
ORDER GRANTING THIRD PARTY MOTION TO QUASH
Court of California-County of San Diego,
Presently before the Court is a Third Party Motion to Quash Subpoenas, or in the alternative to Issue a Protective Order, filed by Agda Shelley, a non-party, against Michael Coulter, Plaintiff. [Doc. No.54.] Mr. Coulter has subpoenaed the medical records of Ms. Shelley's deceased husband, Daniel Shelley, from two hospitals. Ms. Shelley has also requested reasonable attorney's fees. Pursuant to an Order issued by this Court on January 4, 2011, Mr. Coulter was given an opportunity to file a Response to the motion and the request for attorney's fees. [Doc. No. 56.] Mr. Coulter has filed a Response, albeit four days late. [Doc. No. 60.] In the interests of justice, the Court has considered Mr. Coulter's Response but emphasizes that Court deadlines must be observed and that any future non-compliance may result in penalties. Having read the papers, and for the reasons stated below, the Court GRANTS the motion to quash along with attorney's
This case arose from a lawsuit filed by Mr. Coulter in the San Diego County Superior Court against the Estate of Daniel T. Shelley, for money allegedly owed to Mr. Coulter from a partnership with Daniel Shelley, his half-brother. [Doc. No. 23.]; (First Amended Complaint ("FAC")). Defendant, Gregory Murrell, whose motion to dismiss was granted and with whom Coulter has now settled, was the Estate's attorney.
Mr. Coulter and his son David signed a dismissal of the state lawsuit against Ms. Shelley and the Estate based on an agreement that the Estate would transfer $30,000 to David. Subsequently, Mr. Coulter sued Ms. Shelley and Mr. Murrell alleging misrepresentations were made to him regarding the dismissal. The action was dismissed pursuant to Civil Code section 425.16 ("Anti-SLAPP").
In the FAC Mr. Coulter has filed in this Court, he claims Michael Roddy, the Clerk of the Superior Court, conspired with Mr. Murrell to prevent the litigation of his state lawsuit against the Estate, thereby violating his due process rights. Mr. Coulter claims Mr. Roddy's office intentionally sent him an outdated dismissal form, that consequently the form was not filed, and ultimately he was prevented from moving to vacate the dismissal and proceed with the case. Mr. Coulter further claims Mr. Murrell knew the form was outdated and that it would not be accepted for filing. (FAC at ¶¶ 3 & 4.)
On July 13, 2010, Mr. Murrell's motion to dismiss was granted. [Doc. No. 34.] Mr. Coulter's appeal of the dismissal was denied based on lack of jurisdiction on September 14, 2010. [Doc. No. 43.] Subsequently, Mr. Coulter settled the case with Mr. Murrell but continues to litigate against Mr. Roddy pursuant to this Court's Scheduling Order issued on October 25, 2010. [Doc. No. 49.] On November 19, 2010, Mr. Coulter served subpoenas on the Custodian of Records at both Scripps Memorial and Scripps Mercy Hospitals seeking 32 categories of documents consisting of the medical records of Daniel Shelley in January 2006 and February 2009. [Doc. No. 54 at 4-5.] At the beginning of December Mr. Coulter again subpoenaed the same documents from the same hospitals. These subpoenas supposedly superceded and replaced the prior two served in November. [Doc. No. 54 at 6.] Ms. Shelley seeks to quash the subpoenas. [Doc. Nos. 54.]Mr. Coulter has filed a response in Opposition. [Doc. No. 60.]
Mr. Coulter argues Ms. Shelley has no standing to bring the motion to quash because she has "no valid claim relating to the property or transaction that is the subject of this action." (Doc. No. 60 at 2.) Ms. Shelley asserts a right to intervene pursuant to Rule 24(a)'s Intervention of Right.*fn1
Federal district courts have permitted third parties to intervene under Rule 24(a) by filing a motion to quash for the limited purpose of protecting a personal interest or privilege. See e.g., Torah Soft Ltd. v. Drosnin, 2001 WL 1425381 at *2 (S.D.N.Y. Nov. 14, 2001) (intervention of right by non-party requires that non-party have interest in subject matter, application must be timely, applicant's interest may be impeded by decision, and applicant's interest not adequately protected by the existing parties). Regardless of whether a third party proceeds pursuant to Rule 24, courts have taken the position that while a motion to quash a subpoena is normally to be made by the person or entity to which the subpoena is directed an exception applies "where the party seeking to challenge the subpoena has a personal right or privilege with respect to the subject matter requested in the subpoena." Smith v. Midland Brake, Inc., 162 F.R.D. 683, 685 (D.Kan.1995); see also Brown v. Braddock, 595 F.2d 961, 967 (5th Cir. 1979); U.S. v. Gordon, 247 F.R.D. 509 (E.D.N.C. 2007); Durand v. Wal-Mart Associates, Inc., 2009 WL 2181258 at * 1 (S.D. Miss. July 22, 2009). Thus, although Mr. Coulter argues it is the hospital that should be properly bringing the motion, Ms. Shelley may also bring the motion as long as she is able to meet the personal interest or privilege requirement.
Mr. Coulter argues Ms. Shelley cannot assert a physician-patient privilege over Daniel Shelley's medical records because that privilege does not attach in federal cases. It is true that in federal question civil cases, federally evolved rules on privilege are controlling, and there is no federal common law physician-patient privilege. See Fed. R. Evid. 501, Advisory Committee Notes 2010; Whalen v. Roe, 429 U.S. 589, 602 n. 28(1977) ("The physician-patient privilege is unknown to the common law."). Nor did HIPPA create such a privilege. U.S. exrel. Block v. Del Campo, 2010 WL 2698295 at *3 (N.D. Ill.July 7, ...