United States District Court, N.D. California
ORDER RE JOINT DISCOVERY LETTER DOCKET NO.
M CHEN, UNITED STATES DISTRICT JUDGE.
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.
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.
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. ¶¶
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.
PROCEDURAL BACKGROUND AND SUMMARY OF
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.
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
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).
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.
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