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Redfern v. Home Depot U.S.A. Inc.

United States District Court, N.D. California

November 16, 2017

HOME DEPOT U.S.A. INC., Defendant.



         Docket No. 26-3 The parties disagree whether Defendant is entitled to medical records pertaining to three doctor's visits. For the reasons below, the Court concludes Defendant is entitled to some, but not all, of the information in the records. The parties are ordered to meet-and-confer further in compliance with this order.


         Plaintiff alleges that Home Depot discriminated against her on the basis of a disabling medical condition, multiple sclerosis. She alleges that she disclosed her condition to Defendant in August 2013; that the condition limits her major life activities like walking, standing, and working for extended periods of time; and that she requested a reasonable accommodation of working limited hours to avoid exacerbating her condition. Compl. ¶ 14. Defendant allegedly did not respond to her August 2013 request or attempt to engage in a good faith interactive process under California law, id.¶ 15, but she was transferred to another department in November 2014 where she was provided a reasonable accommodation and modified schedule as requested, id. ¶ 16.

         Plaintiff alleges that her condition worsened in February 2016, prompting her to make a second request for reasonable accommodation limiting the number of hours she worked. Id. ¶ 17. Her request was “temporarily approved.” Id. Shortly thereafter, she notified her new supervisor, Tammy Zigenis, of the approved request for accommodation. Id. ¶ 19. Zigenis allegedly began to make discriminatory remarks to Plaintiff about her disability. Id. ¶ 20. Plaintiff attempted to complain about Zigenis to Assistant Manager Ricardo Diaz on three occasions between February and April 2016, but he discouraged her from making an official complaint to Human Resources. Id. ¶¶ 21-22.

         In April 2016, Defendant terminated Plaintiff. Id.¶ 23. Plaintiff alleges she was terminated on the basis of her disability and in retaliation for her request for an accommodation and her complaints about Zigenis's alleged comments. Id. She alleges that these actions caused her to suffer “special damages including but not limited to past and future loss of income, benefits, medical expenses, and other damages to be proven at time of trial, ” id. ¶¶ 30, 36, 42, and “general damages including but not limited to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress and other damages to be proven at the time of trial, ” id. ¶¶ 31, 37, 43.


         This discovery dispute concerns whether Defendant must return medical records pertaining to three doctor's visits during Plaintiff's employment. Defendant subpoenaed the records from Plaintiff's physicians on July 3, 2017. Plaintiff objected, but did not move for a protective order until the subpoena's date of production, July 28, 2017. See Docket No. 22. Upon review, the Court ruled that “the subject subpoenas may be enforced to the extent they directly relate to: (1) the diagnosis, symptoms, care and treatment of Plaintiff's disability during the time of her employment with Defendant, and (2) the diagnosis, symptoms, care and treatment of any medical condition purportedly caused by Defendant's conduct which is the subject of this lawsuit.” Docket No. 24.

         However, it appears that the third parties apparently produced records in response to Defendant's subpoenas either before or on the same date that Plaintiff's motion was filed. Through meet and confer, Defendant has agreed to return or destroy approximately half of those records. See Docket No. 26-3 at 1. The parties are unable to agree whether three documents consisting of approximately 22 pages regarding the three doctor's visits fall within the scope of the Court's prior order. Each document is analyzed below.[1]


         A. Legal Standard

         Plaintiff demands the three documents regarding three medical appointments be returned or destroyed on the basis that they are privileged medical records. Fed.R.Civ.P. 45(e)(2)(B). Plaintiff's claims are brought under California law, so state law on privilege governs. See Fed. R. Evid. 501 (“[I]n a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”). Under California law, confidential communications between a patient and physician are privileged, “including information obtained by an examination of the patient” and “a diagnosis made and the advice given by the physician.” Cal. Evid. Code § 992; see also Cal. Evid. Code § 994. Additionally, California law recognizes that patients have a constitutional right of privacy in their medical records. See Cal. Const. art. I, § 1. The constitutional right of privacy in such records is “broader” than the statutory privilege. Davis v. Super Ct., 7 Cal.App.4th 1008, 1013 (1992).

         Both the constitutional protection and the statutory privilege are waivable, and both for similar reasons. The statutory privilege is waived for “a communication relevant to an issue concerning the condition of the patient if such issue has been tendered” by the patient in litigation. Cal. Evid. Code § 996(a). Similarly, “[a]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” Davis, 7 Cal.App.4th at 1014 (emphasis in original). Such waivers “must be narrowly, rather than expansively construed, so that plaintiffs will not be undeterred form instituting lawsuits by fear of exposure of private activities.” Id. For that reason, “[e]ven when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a careful balancing of the compelling public need for discovery against the fundamental right of privacy.” Id. Any disclosure “must be narrowly circumscribed, drawn with narrow specificity, and must proceed by the least intrusive manner.” Id.

         California courts apply a high threshold to determine whether a patient's confidential medical records have been placed “in issue.” For example, in In re Lifschutz, 2 Cal.3d 415 (1970), the California Supreme Court considered when waiver of the analogous psychotherapist-patient privilege occurs. It rejected the notion that “complete waiver of privilege [occurs] whenever a patient institutes a claim for any physical or mental injury, ” noting that “the [litigation] exception has been generally applied only to compel disclosure of medical treatment and communication concerning the very injury or impairment that was the subject matter of the litigation.” Id. at 434. It explained that “disclosure can be compelled only with respect to those mental conditions the patient-litigant has 'disclose[d] . . . by bringing an action in which they are in issue, '” but that “communications which are not directly relevant to those specific conditions do not fall” within the ...

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