Defendant?s Motion to Compel Further Discovery Responses
Defendant James Walton McNally asks the court to compel Plaintiff Lorenzo Antonio Soberanis to provide further discovery responses to form interrogatory 6.7 from Defendant?s first set of form interrogatories.
The court GRANTS the motion and Defendant?s request for monetary sanctions.? Within 15 calendar days after service of notice of this ruling, Plaintiff shall provide further responses, without objection.? Plaintiff?s request for monetary sanctions is DENIED.
Defendant makes a prima facie showing of good cause for relief.? The interrogatory seeks information relevant to this personal injury action and Plaintiff?s need for future or additional treatments, if any, arising from the accident.
The burden shifts to Plaintiff to justify his objections and failure to respond.? In Opposition, Plaintiff raises three main arguments.
- Copies of Medical Records and Bills
First, Plaintiff argues that he has already provided copies of all medical records and bills in his possession.? He asserts that these medical records provide more than sufficient information regarding any future treatment recommendations.
However this argument fails.? In Reply, Defendant argues correctly that he is entitled to a direct answer to his question about future treatment, because information about recommended future treatment is not necessarily contained in prior medical records which normally only document past medical treatment.? While some future treatment may be discussed, it is not necessarily true that all future treatment will be set forth in writing.? Often future treatment will be discussed orally and will not have been set forth in writing.
In Reply, Defendant argues correctly that in his declaration, Plaintiff?s counsel fails to show that he has personal knowledge that the medical records do contain all future care recommendations involving Plaintiff, and that there were absolutely no oral communications between Plaintiff and his physicians detailing future treatment.
- Privilege Objection
Second, Plaintiff insists that his privilege objections based on attorney-client privilege and attorney work-product privilege are valid.? However, the problem with this argument is that the burden is on Plaintiff to produce a privilege log in order to invoke the privilege as to any responsive documents that he has chosen not to produce, to the extent he has chosen to produce documents rather than a written response.
Furthermore, Plaintiff fails to adequately explain how any such privileges could possibly apply to oral communications with his physicians regarding his future treatment.? Communications between patient and physician would not have involved an attorney.? Plaintiff argues that expert reports containing opinions and communications to an attorney are protected as work product.? (Petterson v. Superior Court (1974) 39 Cal.App.3d 267.)? However, Plaintiff cannot invoke the privilege as to unidentified documents in a vacuum.? Plaintiff is required to prepare a privilege log, but makes no showing that he has done so.
The court orders Plaintiff to produce a privilege log and to serve it both by personal service and by email on Defendant within 15 calendar days, identifying any responsive documents which are being withheld on the basis of privilege.
Plaintiff is ordered to prepare a privilege log specifically describing and identifying the documents, videotapes, or reports for which it is invoking these privileges.? (CCP 2031.240 (b) and (c).)? The information in the privilege log must be sufficiently specific to enable the court and opposing party to determine whether each withheld document is truly privileged.?? (Wellpoint Health Network Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 130; BP Alaska Exploration Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1249.)
CCP 2031.240 clearly and expressly provides that if the responding party objects on the basis of privilege, then he or she must set forth sufficient factual information to permit the court and opposing party to evaluate the merits of the claim, including a privilege log if necessary.? However, this was not done here and the court deems it necessary for Plaintiff to prepare a privilege log.
In Reply, Defendant argues correctly that as a general rule, the identity and opinions of treating physicians are not privileged.? (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 38.)? Here, Defendant is seeking information about future treatment that Plaintiff discussed with his treating physicians, not expert opinions solicited by Plaintiff?s counsel.
- Further Responses Already Produced
Third, Plaintiff argues that the motion is moot, except as to monetary sanctions, because he has already served an amended response to Form Rog 6.7.? However, Plaintiff fails to submit any documentary proof to show what responses he served and when, and whether they complied with the statutory requirements.
In Reply, Defendant represents that the supplemental responses were UNVERIFIED and notes correctly that unverified responses are tantamount to no responses at all.? (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 635-636.)
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Accordingly, the court GRANTS the motion to compel further responses for the reasons set forth in Defendant?s separate statement and memo in support.
- Requests for Monetary Sanctions
The court GRANTS Defendant?s request for $1,775 in monetary sanctions, which amount the court deems to be reasonable.? Accordingly, Plaintiff is ordered to pay said sanctions to Defendant, through Defendant?s counsel of record, within 15 calendar days after service of notice of this ruling.
Plaintiff?s request for $1,250 in monetary sanctions is DENIED.