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Robert M. Sallustio v. Kemper Independence Insurance Company et al

July 28, 2011

ROBERT M. SALLUSTIO, PLAINTIFF AND RESPONDENT,
v.
KEMPER INDEPENDENCE INSURANCE COMPANY ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. No. 34-2007-00882286-CU-WT-GDS)

The opinion of the court was delivered by: Butz , J.

Sallustio v. Kemper Ind. Ins.

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this wrongful termination action, defendant Kemper Independence Insurance Company (and two of its executives; collectively, Kemper) appeals from an order disqualifying its attorney, Littler Mendelson (Littler). (Code Civ. Proc., § 904.1, subd. (a)(6); see Derivi Construction & Architecture, Inc. v. Wong (2004) 118 Cal.App.4th 1268, 1272 [appealability of order].)

The trial court found that Littler breached its ethical duties under Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 (Rico), when, in deposing a nonparty witness favorable to the plaintiff's case, it introduced the witness's confidential psychiatric records. We find no abuse of discretion by the trial court and shall affirm its disqualification order.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2007, plaintiff Robert M. Sallustio, a 28-year employee of Kemper, sued Kemper for wrongful termination. Sallustio alleges that Kemper fired him in December 2006 in retaliation for complaining about Kemper's refusal to accommodate the stress-related disability of his then-estranged, now former, wife N.S., herself an 18-year Kemper veteran.

In the summer of 2006, N.S. was having trouble getting Kemper's group disability insurer, Prudential Financial (Prudential), to accept her medical records concerning her disability claim. As a result, in October 2006 N.S. accepted Kemper's offer to have its corporate Human Resources Department (HR) act only as a conduit to send certain psychiatric records from N.S.'s treating psychiatrist, Carlos Solis, M.D., to Prudential.

Unfortunately, Dr. Solis in November 2006, using the wrong fax numbers, mistakenly faxed N.S.'s psychiatric treatment notes (hereafter, the treatment notes) to Kemper's regional office in Folsom (where both Sallustio and N.S. worked) instead of to the designated person at Kemper's HR corporate office in Jacksonville, Florida.

Kemper's corporate HR director informed N.S. of this mistake, but stated that the situation was "under control," that "everything had been done to make sure the situation was contained," and that N.S. had "nothing to fear" about her private records being viewed or distributed by anyone at Kemper again. Apparently, though, "a number of" Kemper employees in Folsom handled or read the treatment notes. The faxed treatment notes were accompanied by two cover sheets: one from Dr. Solis specifying that the notes were to be sent to Prudential's (named) Disability Claims Manager and were "strictly confidential" (involving a patient) and "should be viewed only by [Prudential]"; and a form from Prudential, signed by N.S., entitled, "Authorization for Release of Psychotherapy Notes to Prudential Insurance Company."

The trial court, in Sallustio's wrongful termination lawsuit, ruled in a May 7, 2008 order that Kemper could not use or disclose a nonparty's confidential information without notice to the nonparty and an opportunity to be heard. Furthermore, in a July 14, 2008 order, the trial court granted N.S.'s motion to quash subpoenas served by Kemper on Dr. Solis and Prudential to the extent the subpoenas sought N.S.'s psychiatric information (Dr. Solis saw Sallustio and N.S. together and individually).

Kemper, while represented by Littler, deposed N.S. in Sallustio's lawsuit in October 2008. Littler introduced the treatment notes as an exhibit at this deposition and confirmed their authenticity. This prompted an objection from Sallustio's counsel (to the extent Sallustio's privacy interests were implicated), a concern from N.S.'s counsel that the notes had not been marked confidential, and the following exasperation from N.S.--"I ...


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