Motion to Compel Further Discovery Responses (Judge David R. Chaffee)

Plaintiff?s (3) Motions to Compel Further Discovery Responses

(0) disputed Form Interrogatories

DENIED.

Plaintiff Andrew Nguyen?s motion is very confusing to the court.

The caption to the notice of motion states that Plaintiff is moving to compel Defendant Palm Retirement Center LLC to provide further responses to Plaintiff?s first set of form interrogatories.? However, no form interrogatories are listed in the separate statement.

The motion at p. 1, lines 14-15, states that Defendant has promised to provide supplemental responses to certain form interrogatories by 2/1/17.? Yet, the motion was filed on 2/14/17 and Plaintiff never explains if he received the supplemental responses.

(3) disputed Special Interrogatories

Special Interrogatory No. 62:? [DENIED]

Please IDENTIFY each resident of the FACILITY during the time period(s) in which the PLAINTIFF was a resident of the FACILITY.

Special Interrogatory No. 63:? [DENIED]

Please IDENTIFY the RESPONSIBLE PERSON for each resident of the FACILITY during the time period(s) in which the PLAINTIFF was a resident of the FACILITY.

Special Interrogatory No. 64:? [GRANTED]

For every witness identified in response to these Special Interrogatories, please provide the name of each person who is not currently employed by a named defendant in this action.

Meet and Confer Efforts

The motion to compel further is DENIED as to nos. 62 and 63, based on Plaintiff?s failure to adequately meet and confer.

The parties dispute whether Plaintiff engaged in adequate meet and confer efforts.? The court finds that Plaintiff did not engage in adequate meet and confer efforts.? In Opposition, Defendant argues correctly that Plaintiff?s 1/23/17 meet and confer letter did not expressly mention special interrogatories 62 and 63.

Plaintiff argues that this was merely a scrivener?s error and that when the letter referred to special interrogatories 52 and 53, Plaintiff actually meant 62 and 63.? However, this does not sufficiently demonstrate that the parties engaged in a meaningful meet and confer effort once this clerical error was discovered.

The court finds that Plaintiff did engaged in adequate meet and confer efforts as to special interrogatory 64.

Overbroad and Irrelevant

The objection is SUSTAINED on this ground as to nos. 62 and 63, and the motion to compel further is therefore DENIED as to those special interrogatories.

The court agrees with Defendant that special interrogatories 62 and 63 are overbroad and seek information that is currently irrelevant to this dispute.? The initial burden is on Plaintiff to show that the special interrogatories seek relevant information, but Plaintiff has failed to carry this burden.

The lawsuit alleges that Plaintiff was injured when he fell at the facility, due to a lack of supervision, or possibly due to an assault by other unknown residents.? However, at this stage, those are merely theories as to how the injury occurred.? At this juncture it is premature for Plaintiff to engage in a fishing expedition by attempting to contact and question every single resident of the facility.? Plaintiff makes no showing that the facility is so small or the incident was so prominent that every single resident is likely to have information concerning Plaintiff?s injury and how it occurred.

Unless Plaintiff can cite controlling case law demonstrating that a mass mailing to all residents is justifiable under the facts of this case, Plaintiff must instead start with a far more narrow course of discovery limited to those residents and staff who were present, on duty, and/or in close proximity to Plaintiff?s room and who were likely to have seen or heard something.? Plaintiff makes no showing as to where his room was located, how many residents were at the facility, what areas of the facility he frequented, etc., to help limit the initial scope of discovery.

If that initial discovery turns up facts that justify expanding the scope of discovery, then the court is amenable to permitting additional and more far-ranging discovery.

After balancing all of the competing interests and considering all of the facts and circumstances, the court finds that the residents? privacy rights outweigh the Plaintiff?s interest in conducting overly broad initial discovery.

Because special interrogatories 62 and 63 are overbroad, the court need not determine whether HIPAA does or does not bar disclosure of the information they seek.

Uncertain and ambiguous.

The objection on this ground is OVERRULED, so the motion to compel further is GRANTED as to no. 64.

Defendant objects on the ground that special interrogatory 64 is uncertain and ambiguous, but Defendant fails to carry its burden to explain precisely why the language of no. 64 is is uncertain and ambiguous.? The court finds that no. 64 appears to be written in clear and straightforward language and asks Defendant to disclose the names of any non-party witnesses, whose names are responsive to any of the other special interrogatories.

Furthermore, the court cannot rule on a generalized non-specific objection.? Once Defendant has determined what non-party witness names, if any, are responsive to this request, it may raise specific objections to disclosure of specific persons based on specific reasons and supported by citations to controlling authority.

Because special interrogatories 62 and 63 are overbroad and need not be answered, special interrogatory no. 64 is moot and need not be answered as to those interrogatories.

However, special interrogatory no. 64 must be answered as to all other special interrogatories, if applicable, unless the Defendant can raise a specific objection to disclosure of the specific names of certain non-party witnesses.

Monetary Sanctions

Plaintiff?s notice of motion does not request monetary sanctions, so none will be awarded.

(7) Requests for Production

Plaintiff withdrew his motion as to RFP?s 1 and 30.

Plaintiff moves to compel further responses to 7 RFP?s — nos. 2, 14, 18, 19, 26, 27, and 31.

Moot as to 14, 18, 26, 27, and 31?

In Opposition, Defendant argues that it served supplemental responses (dated 2/6/17) to RFP?s 14, 18, 26, and 27, and that on 2/6/17 Plaintiff sent over a copy service to copy additional responsive documents.? Accordingly, it appears that the motion is moot as to these requests.

Defendant does not mention RFP 31, but Ex. A appears to include a supplemental response to that request.

Inadequate meet and confer efforts

The parties dispute whether Plaintiff made adequate meet and confer efforts.? However, as the disputes appear to have been resolved, this issue is now moot.

Monetary Sanctions

The court DENIES both parties? requests for monetary sanctions.? The court finds that this was a good faith discovery dispute that the parties largely resolved through meet and confer efforts.

Text of RFP?s and rulings thereupon

RFP 2: [GRANTED]

Please provide any and all DOCUMENTS in the custody, control or possession of the responding party referring to and/or pertaining to the PLAINTIFF.

The court finds that this RFP seeks relevant documents.

In his separate statement, Plaintiff contends that Defendant has refused to produce the original chart, and has only produced a heavily redacted copy. (Garcia Decl. at Ex. 1.)

In Opposition, Defendant argues that in its initial response served on 1/17/17, it agreed to make all responsive documents available for inspection and copying.? However, this argument does not properly address Plaintiff?s initial contention that the unredacted original was not provided.

Plaintiff does not appear to have filed a Reply brief addressing Defendant?s Opposition.

At the hearing, Defendant must either produce the original unredacted chart for copying at a mutually convenient copy center, or lodge and serve a privilege log that explains precisely why redactions have been made.? Defendant must explain and cite supporting authorities indicating whether the court or a discovery referee may conduct an in camera review of the unredacted chart to determine if the redactions are justified.

The parties must notify the court as to the current status of this request.

RFP 14:? [MOOT]

Please produce all DOCUMENTS referencing, evidencing or pertaining to statements, remarks or complaints of understaffing at the FACILITY by “PERSON” at any time during the time period of January 1, 2016 through October 20, 2016.

Defendant has agreed to produce responsive documents.

RFP 18:? [MOOT]

Please provide all DOCUMENTS submitted by YOU to YOUR licensing agency in accordance with the provisions of Title 22 California Code of Regulations ?87211 (a) during the time period of January 1, 2016 through October 20, 2016. (The names of all residents other than the PLAINTIFF should be redacted from the production.

Defendants has now produced a privilege log.? Any documents withheld pursuant to the privilege log must be the subject of a? separate motion to compel further responses.

RFP 19:? [MOOT]

All DOCUMENTS constituting the FACILITY “Application for License” as required by 22 Code of Regulations ?87155(a) as to any FACILITY license in effect during the residency of the

PLAINTIFF in the FACILITY.

Defendant represents that it provided responsive documents on 2/6/17.? (Opposition, Ross Decl. at Ex. D.)

RFP 26:? [MOOT]

Please provide all DOCUMENTS in the possession of the FACILITY encompassing any portion of time period during the residency of the PLAINTIFF at the FACILITY upon which the FACILITY relied to ensure that Sandra Guerena were fit to perform their job duties at the FACILITY.

On or about 2/6/17, without waiving its constitutional privacy and HIPAA objections, Defendant agreed to make available for copying any responsive documents within its possession, custody, and control.

RFP 27:? [MOOT]

Please provide all DOCUMENTS in the possession of the FACILITY encompassing any portion of time period during the residency of the PLAINTIFF at the FACILITY upon which the FACILITY relied to ensure that each FACILITY employee who provided care to the PLAINTIFF fit to perform their job duties at the FACILITY.

RFP 31:? [MOOT]

Please produce the written minutes of all family council meetings of the FACILITY which occurred during the time period of January 1, 2016 through October 20, 2016. (The names of any and all residents, other than PLAINTIFF, should be redacted.)

In its initial response, Defendant agreed to produce the written minutes subject to a protective order and confidentiality agreement.? Plaintiff argues that no responses had been received as of 2/14/17.

In Opposition, Defendant?s Ex. A shows that Defendant has now served a supplemental response indicating that it does not possess any responsive documents because ?they have never existed.?

Plaintiff?s Motion for Terminating Sanctions

The court DENIES Plaintiff?s motion for terminating, issue, or evidentiary sanctions, and for $12,860 in monetary sanctions.? The court finds that such extreme sanctions are premature at this time.

Furthermore, this appears to be a good faith discovery dispute, involving matters of some legal complexity, so that no sanctions are merited at this time.? In Opposition, Defendant notes correctly that its PMK did appear and did testify as to 23 of 26 topics and produced documents responsive to 21 of 23 topics.? This demonstrates that Defendant has largely cooperated in good faith.

By the same token, the court also DENIES Defendant?s request for $4,730 in monetary sanctions, as Plaintiff appears to be pursuing potentially relevant discovery in good faith.

Deposition Topic 4:

[GRANTED in part and DENIED in part]

How, when and where the FACILITY contends the PLAINTIFF suffered any fall during the residency of the PLAINTIFF in the FACILITY and the IDENTITY of all persons who the FACILITY contends has any information as to any such fall.

(The term IDENTITY as utilized herein means to provide the person’s name, employment status with any defendant in this action and last known residence address and telephone number.)

At her deposition, the PMK for Palm Retirement Center refused to disclose the redacted names of another resident who had fallen at the facility, on the grounds of the constitutional right to privacy and HIPAA.

Privacy Rights Objection [Sustained]

The court agrees with Defendant Palm Retirement Center that constitutional privacy rights protect against disclosure of whether a person is a resident of a retirement center and whether that person fell while at a retirement center.? In this case, the court finds that the non-party resident?s privacy rights outweigh Defendant?s right to discovery.

HIPAA [Sustained]

Defendant appears to argue correctly that as a residential care facility for the elderly, it maintains medical records and information that are required to be kept confidential.? While Defendant cites not case law expressly holding that such a facility is a health care facility under HIPAA, nevertheless the plain language of the applicable federal regulations appears to support Defendant?s position.? So the burden shifts to Plaintiff to prove that the objection is improper.

Plaintiff argues that the HIPAA objection is invalid for two main reasons, but Plaintiff fails to carry his burden of proof on these points.

First, Plaintiff argues that under 45 CFR 160.103, HIPAA only applies to covered entities, defined as:

A health plan;
A health care clearinghouse;
A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter.

Plaintiff appears to argue correctly that Defendant Palm Retirement Center is not a health plan (individual or group plan insurance provider) or health care clearing house (billing service, repricing company, or health management information system).? (45 CFR 106.103.)

However, Plaintiff merely asserts that Palm Retirement is not a healthcare provider, without giving a detailed analysis of the definition and without citing a controlling case on point.? Accordingly, Plaintiff has failed to carry its burden on this point.

Second, Plaintiff merely asserts in conclusory fashion that the identity and location of residents in a retirement home is not ?health information? within the meaning of HIPAA.? (45 CFR 160.103.)

?Health information? means any information, whether oral or recorded in any form or medium, that:

(1) ???? Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and

(2) ???? Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.

Plaintiff fails to cite any controlling case law that holds that the fact of a resident?s placement in a retirement center (assuming it qualifies as? health care provider) or the fact of a resident?s fall is not information related to his past, present, or? future physical health or physical condition.

Defendant notes that by way of analogy, the very identity of a physician?s psychiatric patients is subject to constitutional privacy protection and physician-patient confidentiality.? (Akkerman v. Mecta Corp Inc. (2007) 152 Cal.App.4^th 1094, 1104.)

?Akkerman contends the trial court erred by denying his motion to require that a pre-certification notice be sent by hospitals to notify ECT patients about the class action. We disagree. A court order requiring a doctor to identify his or her psychiatric patients intrudes into an area protected by physician-patient confidentiality and the constitutional right of privacy.?? (Ibid.)

?Even a party who shows a compelling need for such disclosure may not obtain it without proving that there are no other ?less intrusive means of accomplishing? the result. ??When the right to disclosure clashes with a privilege, the court is required to ?indulge in a careful balancing? of the need for disclosure against the fundamental right of privacy.??? (Ibid.)

?Here the trial court properly weighed the factors in support of and against the issuance of this order. It noted that the hospitals were not parties to this case and had objected to the order on physician-patient confidentiality grounds. The California Hospital Association (CHA) opposed the motion on the grounds that: 1) such an order would be ?unreasonably burdensome,? 2) sending notices to the last known address of former ECT patients could compromise their privacy because many of them had moved, and 3) identifying ECT patients in the class would be difficult because many hospitals do not exclusively use Mecta machines and rely on ECT devices from a variety of manufacturers. These concerns were substantial. The court weighed them and found that Akkerman had other more traditional and less intrusive methods to notify the class. There is no abuse of discretion.?? (Ibid.)

Confidentiality Agreement

However, once a stipulated confidentiality agreement and protective order has been signed, the court may permit some private information to be disclosed, after balancing all of the relevant and competing factors.? Accordingly, if Plaintiff elects to renew the motion as to topic 4, Plaintiff must bring a motion explaining what terms the parties have agreed to and what terms the parties disagree upon, so that the court can resolve all disputes related to the confidentiality agreement.

Form Disclosure Letter to Third Party Residents

Furthermore, Plaintiff does have the right to send an appropriate communication to residents and/or their guardians/conservators, if it can be demonstrated that those residents/guardians/conservators are reasonably likely to have information relevant to this dispute.? In this case, the court finds that Plaintiff may send a communication to the other resident who fell, and/or his or her guardian/conservator.

The court agrees that Defendant?s proposed form letter is more equitable, attached as Ex. D to the Ross Declaration.? So the parties shall use that form letter.? It may be sent out by a neutral third-party service mutually selected by the parties.

No Showing of Ultimate Relevance as Yet

At this juncture, there is insufficient information to show that the other resident?s fall is related to this dispute.? However, if the other resident consents to the release of his or her contact information, or if the other resident consents to speak with counsel for the parties, then Plaintiff may make further inquiries to determine if the fall of the other resident is or is not relevant to this dispute.

Those additional disclosures and communications may have to be subject to privacy protections under the confidentiality agreement, as applicable.

Deposition Topic 6:

[GRANTED in part and DENIED in part]

Plaintiff?s separate statement does not set forth the language of this deposition topic and does not specify any questions related to topic 6 which Defendant refused to answer.

Deposition Topic 8:

The IDENTITY of all involved persons, and the IDENTITY of all persons who the deponent believes has any information relating to, in the incident alleging the PHYSICAL ABUSE of

PLAINTIFF during his residency in the FACILITY.

Plaintiffs asks the court to compel Defendant Palm Retirement Center to disclose the identity of another resident who allegedly got into a fight or altercation with Plaintiff.

While the court agrees with Plaintiff that the fact of an altercation between two residents does not appear to be health-related medical information protected by HIPAA, nevertheless the fact of a resident?s placement or presence at the retirement center is subject to privacy protection and HIPAA protection.

However, given that the alleged fight or altercation may be highly relevant to the subject matter of this lawsuit, Plaintiff and Defendant may send a third-party form letter to the other resident using the language set forth in Ex. D to the Ross Declaration.

RFP 2: [DENIED]

Defendant argues correctly that this argument was waived because Plaintiff failed to include any reference in its separate statement to RFP 2, and because Plaintiff failed to explain how Defendant failed to comply with RFP 2.

RFP 17: [DENIED]

Please produce all DOCUMENT(S) utilized by the FACILITY during the residency of the PLAINTIFF in the FACILITY to ensure that FACILITY employees who provided services to the

PLAINTIFF, as well as Sandra Guerena, and any FACILITY employee who provided any services to the PLAINTIFF on behalf of the FACILITY, were fit to perform their job duties in the FACILITY.

Defendant?s privacy objections are well-taken.? This is not a wrongful termination lawsuit wherein the witness?s job performance and the contents of his or her employment application and employment file are automatically put at issue by the plaintiff/employee who filed the lawsuit.? At this point, the court has no evidence that Sandra Guerena?s confidential employment documents are relevant to the lawsuit.? Plaintiff must pursue other means of establishing Guerena?s unfitness in performing her job duties, aside from demanding disclosure of her employment records.

Plaintiff shall serve notice of all (4) rulings — I (A), I (B), I (C), and II.