Mahil v. Option Care Enterprises, Inc.

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 HARJIT MAHIL, Case No.: 20cv1559-BEN-MDD

11 Plaintiff, ORDER GRANTING 12 v. DEFENDANT'S MOTION TO COMPEL PRODUCTION OF 13 OPTION CARE ENTERPRISES, PLAINTIFF'S UNREDACTED INC., 14 MEDICAL RECORDS Defendants. 15 [ECF No. 21] 16

17 18 Before the Court is a discovery dispute motion brought by Option 19 Care Enterprises, Inc. (“Defendant”) seeking production of Harjit Mahil’s 20 (“Plaintiff”) unredacted medical records. (ECF No. 21). Plaintiff argues 21 production is not warranted because the redacted information is irrelevant 22 and privileged. (Id.). For the reasons stated herein, the Court finds that 23 Plaintiff has not met her burden of “clarifying, explaining, and supporting” 24 her objections based on relevance and privilege. DIRECTV, Inc. v. Trone, 209 25 F.R.D. 455, 458 (C.D. Cal 2002) (citing Blankenship v. Hearst Corp., 519 F.2d 26 418, 429 (9th Cir. 1975)). Instead, Plaintiff provides conclusory assertions 1 information identifying any sensitive material contained in the medical 2 records. Instead, her counsel asserts, in a conclusory fashion, that the 3 redacted information is “irrelevant” and “private.” The conclusory assertions 4 do not meet Plaintiff’s burden to justify continued redaction in light of the 5 protections contained in the protective order. (See ECF No. 10). Accordingly, 6 the Court GRANTS Defendant’s request. 7 I. FACTUAL BACKGROUND1 8 Plaintiff, who has generalized anxiety disorder, began working as a 9 pharmacist for Defendant on March 27, 2017. (ECF No. 1, hereinafter 10 “Compl.” ¶¶ 19, 35). Defendant’s employees, including Plaintiff, were “forced 11 to forgo their meal and rest breaks (or to remain on duty while attempting to 12 take a break), work significant amounts of overtime, and remain on call after 13 hours and on weekends to keep up with the demand.” (Compl. ¶ 16). 14 Plaintiff notified her supervisor in April 2018 of several missed meal breaks. 15 (Compl. ¶ 26). Defendant did not provide premium pay for the breaks and 16 did not ensure subsequent meal breaks were taken. (Id.). As such, Plaintiff 17 began asking for premium pay each time she missed a meal break. (Id.). 18 Beginning in October 2019 and after voicing her concerns about 19 being overworked and unable to take rest and meal breaks at a staff meeting, 20 Defendant began reprimanding Plaintiff for failing to take her breaks. 21 (Compl. ¶¶ 30-32). Plaintiff “began clocking out for meal breaks” even 22 though she was not able to take them because she was afraid she would be 23 reprimanded or lose her job. (Compl. ¶ 32). 24 On October 18, 2019, while covering for another employee Plaintiff 25

26 1 These facts, taken from the Complaint, should not be construed as findings of fact by the 1 “accidentally missed two deliveries.” (Compl. ¶ 33). Plaintiff’s supervisor 2 reprimanded her for missing the deliveries. (Id.). On October 23, 2019, 3 Plaintiff’s supervisor gave her a verbal disciplinary warning for “disorderly 4 conduct” stemming from this incident. (Compl. ¶ 34). Plaintiff subsequently 5 suffered a panic attack and left work early to see her doctor. (Compl. ¶ 35). 6 Plaintiff’s doctor prescribed her new medication to control her anxiety and 7 wrote a note excusing her from work that day and the next for a medical 8 condition. (Id.). Plaintiff provided the note to Defendant and took the 9 recommended days off. (Id.). 10 On October 29, 2019, Plaintiff had a follow-up appointment with 11 her doctor regarding her anxiety. Plaintiff’s anxiety “was still not under 12 control,” and “[s]he felt extremely stressed, was suffering from abdominal 13 pain, and everything felt hard to do . . . .” (Compl. ¶ 36). Her doctor 14 recommended she take a month of medical leave, but Plaintiff declined. (Id.). 15 On October 30, 2019, Plaintiff’s supervisor gave her another disciplinary 16 warning for “minor offenses” that purportedly occurred on September 14, 17 2019 when another employee mispackaged patients’ deliveries. (Compl. ¶ 18 37). 19 “By December 24, 2019, [Plaintiff] was still suffering from severe 20 anxiety, experiencing insomnia, and having difficulty concentrating and 21 performing her job duties due to [Defendant’s] wage and hour violations and 22 retaliation.” (Compl. ¶ 38). Plaintiff had also recently learned that another 23 pharmacist planned to resign. (Id.). Fearing that Plaintiff would have to 24 pick up the resigning pharmacist’s workload, Plaintiff saw her doctor who 25 again recommended taking medical leave. (See id.). Plaintiff took a note to 26 Defendant certifying her need for a medical leave of absence from December 1 December 26, 2019 under the Family Medical Leave Act (“FMLA”) and 2 California Family Rights Act (“CFRA”). (Compl. ¶ 39). 3 On January 10, 2020, Plaintiff was terminated “under the guise of 4 an alleged reduction in force.” (Compl. ¶ 40). Two weeks later, Defendant 5 advertised online for a full-time pharmacist in the San Diego branch. 6 (Compl. ¶ 42). Shortly thereafter, Defendant hired back a former staff 7 pharmacist. (Id.). As a result of Defendant’s conduct, Plaintiff alleges that 8 she “has suffered lost wages and benefits and emotional distress.” (Compl. ¶ 9 43). 10 Accordingly, on August 12, 2020, Plaintiff filed a complaint against 11 Defendant raising eleven causes of action: (1) FMLA interference; (2) CFRA 12 interference; (3) CFRA retaliation; (4) disability/perceived disability 13 discrimination; (5) retaliation for requesting reasonable accommodation; (6) 14 failure to prevent discrimination and retaliation; (7) failure to provide rest 15 breaks or pay premiums; (8) failure to provide meal breaks or pay premiums; 16 (9) retaliation; (10) wrongful termination in violation of public policy; and (11) 17 unlawful and unfair competition. (Compl. ¶ 2). 18 II. RELEVANT PROCEDURAL BACKGROUND 19 On February 11, 2021, Plaintiff testified at her deposition that she 20 “temporarily suffered from severe emotional distress” from January 10, 2020 21 to November 2020. (ECF No. 17 at 11). Plaintiff contends that she still 22 suffers from “continuing ‘garden variety’ emotional distress.” (Id. at 8). 23 On February 26, 2021, Plaintiff disclosed seven of her treating 24 physicians as non-retained experts—Dr. Kaylan Graham, Dr. Preeti Mathur, 25 April L’Heureux, LMFT, Joyce Prince, LMFT, Dr. Brandon Niemeier, Dr. 26 Cara Niemeier, and Tatiana Baroni—that will “testify about Plaintiff’s 1 mental disability and emotional distress as a result of the claims alleged in 2 this action.” (ECF No. 17-3). 3 On March 9, 2021, Defendant served subpoenas for the production 4 of documents on Scripps Clinic Carmel Valley and Community Psychiatry 5 seeking Plaintiff’s medical records. (ECF No. 21-1, hereinafter “Durazo 6 Decl.” ¶ 3). On March 29, 2021, the parties agreed to a first look agreement 7 wherein the medical providers would first submit Plaintiff’s medical records 8 to Plaintiff’s counsel. (Durazo Decl. ¶ 4). Plaintiff’s counsel was permitted to 9 review the records, redact information, and transmit the redacted records, 10 along with a privilege log, to Defendant’s counsel. (Id.). On April 3, 2021, 11 Defendant served a subpoena for the production of documents on Sharp Mesa 12 Vista Hospital seeking Plaintiff’s medical records. (Durazo Decl. ¶ 3). These 13 documents were subject to the same first look agreement. (Durazo Decl. ¶ 4). 14 Pursuant to the first look agreement, Plaintiff received 336 pages of 15 Scripps Clinic records dated March 2, 2016 to April 12, 2021, 217 pages of 16 Community Psychiatry records dated January 20, 2020 to December 8, 2020, 17 and 440 pages of Sharp Mesa Vista Hospital records dated April 23, 2020 to 18 July 8, 2020. (Rangel Decl. ¶ 13). 19 In the end of April and beginning of May, Plaintiff transmitted a 20 privilege log and redacted medical records to Defendant. (Durazo Decl. ¶¶ 6- 21 11). Plaintiff produced 180/336 pages of Scripps Clinic records, including all 22 medical records relating to Plaintiff’s anxiety disorder, all 217 pages of 23 Community Psychiatry records, and all 440 pages of Sharp Mesa Vista 24 Hospital records. (Rangel Decl. ¶ 14). Plaintiff explained in her privilege 25 logs that the withheld records and redactions are irrelevant and private 26 information, such as “unrelated medical ailments and medications, routine 1 and background information about [Plaintiff’s] childhood.” (Id. ¶ 15). 2 Plaintiff’s attorney declares that Plaintiff did not redact “any information 3 relating to [Plaintiff’s] emotional distress symptoms such as insomnia, 4 nightmares, and depression, or her treatment and medications for her 5 anxiety and emotional distress, and has also not redacted information 6 relating to her potential alternate stressors.” (Id. ¶ 19). 7 On May 10, 2021, counsel for Plaintiff and Defendant agreed to 8 create a detailed chart outlining a sample of Plaintiff’s redacted records and 9 detailing the parties’ positions relating to the medical record redactions at 10 issue. (Durazo Decl. ¶ 12). 11 III. LEGAL STANDARD 12 Federal Rule of Civil Procedure 26(b) permits relevant and 13 proportional discovery. Fed. R. Civ. P. 26(b)(1). “Information within this 14 scope of discovery need not be admissible in evidence to be discoverable.” Id. 15 “Under Federal Rule of Evidence 501, federal common law 16 generally governs claims of privilege.” Wilcox v. Arpaio, 753 F.3d 872, 876 17 (9th Cir. 2014). “But in a civil case, state law governs privilege regarding a 18 claim or defense for which state law supplies the rule of decision.” Fed. R. 19 Evid. 501. “Where . . . the same evidence relates to both federal and state law 20 claims” Ninth Circuit courts are not bound by state law on privilege. Wilcox, 21 753 F.3d at 876. “The party who resists discovery has the burden to show 22 that discovery should not be allowed, and has the burden of clarifying, 23 explaining, and supporting its objections.” DIRECTV, Inc., 209 F.R.D. at 458. 24 IV. ANALYSIS 25 Plaintiff contends that the redacted portions of her medical records 26 are not relevant to any of her claims and that they are protected by her right 1 (ECF No. 21). Defendant contends the information is relevant to Plaintiff’s 2 FMLA and emotional distress claims. (Id. at 18). Defendant also asserts 3 that Plaintiff waived the psychotherapist-patient privilege, the physician- 4 patient privilege is inapplicable because federal law applies, and the interest 5 in the information outweighs any privacy interests. (Id. at 18-24). 6 A. Relevance 7 As the party resisting discovery, Plaintiff bears the burden of 8 showing that the discovery should not be allowed, “and has the burden of 9 clarifying, explaining, and supporting its objections.” DIRECTV, Inc., 209 10 F.R.D. at 458. Plaintiff seeks emotional distress damages and, under a 11 separate cause of action, must show that she was entitled to leave under the 12 FMLA because of her generalized anxiety disorder. (See generally, Compl.). 13 Plaintiff’s medical records are relevant to those claims. 14 Plaintiff has not adequately explained the contents of the 15 redactions. (See Durazo Decl., Exhibits E, G, and I; see also ECF No. 29, 16 hereinafter “Exhibit J”). Plaintiff only provides conclusory assertions 17 regarding her purported bases for her objections. (See Exhibit J). For 18 example, Plaintiff explains that the redactions include “unrelated and 19 irrelevant” medical records, such as vaccinations, lab results, medical 20 screenings, medications, medical history, “routine healthcare maintenance,” 21 and physical injuries. (See generally, id.). With respect to her 22 psychotherapist records, Plaintiff contends the redacted information includes 23 “unrelated, irrelevant, and private” information, such as family history, 24 information about Plaintiff’s background and childhood, physical injuries, a 25 “legal history comment from 2007,” and “third-party financial information 26 related to Plaintiff’s mother’s estate.” (See generally, id.). Plaintiff’s legal 1 of nonspecific medical information does not meet her burden to justify the 2 continued redaction of this information. 3 Defendant is entitled to review Plaintiff’s medical records to 4 determine whether she was entitled to rights under the FMLA and to 5 evaluate her emotional distress damages claims. The Court, therefore, finds 6 that Defendant has established the relevancy of the requested information. 7 Plaintiff’s relevancy objection is OVERRULED.2 8 B. Choice of Law 9 Next, the Court must determine whether state or federal privilege 10 law applies to Plaintiff’s redacted medical records. If the redacted medical 11 records relate to Plaintiff’s state law claims only, then state privilege law 12 applies. Wilcox, 753 F.3d at 876-77. If, however, the records relate to 13 Plaintiff’s federal and state law claims, then federal privilege law applies. Id. 14 Plaintiff argues that the medical records relate only to her state law 15 claims. (ECF No. 21 at 28). Defendant counters that the medical records 16 also relate to Plaintiff’s federal law claim for FMLA interference. (Id. at 18). 17 Specifically, Defendant contends the records relate to whether Plaintiff’s 18 generalized anxiety disorder qualifies as a serious health condition under the 19 FMLA. (Id. at 18). Because the parties agree that the records relate at least 20 to the state law claims, the Court only analyzes whether they relate to 21 Plaintiff’s FMLA interference claim. 22 Under the FMLA, a “serious health condition” is “an illness, injury, 23 impairment, or physical or mental condition that involves . . . continuing 24

25 2 Plaintiff would prefer the Court conduct an in camera review of the records prior to 26 compelling production of the unredacted medical records at issue. However, an inadequate demonstration of the contents of the redactions does not require the Court to 1 treatment by a health care provider.” 29 U.S.C. § 2611(11). The medical 2 records at issue are dated from December 27, 2017 to December 29, 2020. 3 (See Exhibit J). The first and last medical records reference Plaintiff’s 4 generalized anxiety disorder. (See id.). Although the records pre-date 5 Plaintiff’s termination in January 2020, they do relate to Plaintiff’s FMLA 6 interference claim because they provide discoverable information regarding 7 whether Plaintiff’s generalized anxiety disorder is a mental condition that 8 involves “continuing treatment by a health care provider.” 29 U.S.C. § 9 2611(11). As a result, the Court finds that the medical records relate to state 10 and federal law claims and that federal law on privilege applies. 11 C. Plaintiff’s Objections 12 Plaintiff objects to production of her unredacted medical records on 13 the grounds that they are protected by the psychotherapist-patient privilege 14 and the right to privacy.3 (ECF No. 21). The Court addresses each objection 15 in turn. 16 1. Psychotherapist-Patient Privilege 17 “[C]onfidential communications between a licensed psychotherapist 18 and her patients in the course of diagnosis or treatment are protected from 19 compelled disclosure under Rule 501 of the Federal Rules of Evidence.” 20 Jaffee v. Redmond, 518 U.S. 1, 15 (1996). This privilege may be waived by 21 the patient. Id. at 15 n.14. Courts in the Ninth Circuit follow one of three 22

23 24 3 In arguing that state privilege law applies, Plaintiff argued that the physician-patient privilege protected her from disclosing the unredacted medical records. (ECF No. 21 at 25 28). The Court declines to address this argument because federal privilege law applies and no physician-patient privilege exists under federal common law. See In re Grand Jury 26 Proceedings, 867 F.2d 562, 564 (9th Cir. 1989) (noting the Ninth Circuit’s refusal to adopt a phsycian-patient privilege), abrogated on other grounds by Jaffee v. Redmond, 518 U.S. 1 different approaches to determine whether a plaintiff has waived the 2 psychotherapist-patient privilege. Under the broad approach, a plaintiff 3 waives the privilege merely by alleging emotional distress in the complaint. 4 Fitzgerald v. Cassil, 216 F.R.D. 632, 636 (N.D. Cal. 2003). A plaintiff waives 5 the privilege under the middle approach by alleging either a separate tort of 6 distress or unusually severe emotional distress (i.e., more than garden 7 variety emotional distress). Id. at 637. Under the narrow approach, a 8 plaintiff waives the privilege by affirmatively relying on the psychotherapist- 9 patient communication. Id. at 636. 10 Plaintiff has waived her psychotherapist-patient privilege under 11 each of the three approaches. First, Plaintiff has alleged emotional distress 12 in the Complaint. (Compl. ¶ 43) (“Because of Option Care’s conduct, Ms. 13 Mahil has suffered . . . emotional distress.”). Second, Plaintiff seeks more 14 than garden variety emotional distress. (ECF No. 18) (“Plaintiff testified at 15 her deposition that she ‘temporarily suffered from severe emotional distress’ 16 from January 10, 2020 to November 2020.”). Third, Plaintiff will rely on the 17 psychotherapist patient communication. Plaintiff disclosed Dr. Mathur, April 18 L’Heureux, LMFT, and Joyce Prince, LMFT as non-retained experts who will 19 “testify about Plaintiff’s mental disability, emotional distress, and the 20 treatment she received for her mental disability and emotional distress . . . .” 21 (ECF No. 17-3, Exhibit C). Accordingly, the Court OVERRULES Plaintiff’s 22 objection based on the psychotherapist-patient privilege. 23 2. Right to Privacy 24 Plaintiff contends that the redacted information is protected by her 25 right to privacy. As an initial matter, a party’s right to privacy was taken 26 into consideration by the Supreme Court in Jaffee when articulating the 1 the approach in which a court ‘balanced’ the evidentiary need for the 2 communications against the patient’s privacy concerns.” Fritsch v. City of 3 Chula Vista, 196 F.R.D. 562, 565 (S.D. Cal. 1999)(citing Jaffee, 518 U.S. at 7, 4 17-18). Accordingly, the Court only determines whether the right to privacy 5 prevents disclosure of the remaining non-psychotherapist medical records. 6 Plaintiffs have a right to privacy in the confidentiality of their 7 medical records. Soto v. City of Concord, 162 F.R.D. 603, 618 (N.D. Cal. 8 1995). The right to privacy is neither a recognized privilege nor an absolute 9 bar to discovery. Rather, the right to privacy is subject to the balancing of 10 needs. See Seaton v. Mayberg, 610 F.3d 530, 539 (9th Cir. 2010). Courts 11 must balance the following factors to determine whether the interest in 12 obtaining the information requested outweighs the individual’s privacy 13 interests: “(1) the type of information requested, (2) the potential for harm in 14 any subsequent non-consensual disclosure, (3) the adequacy of safeguards to 15 prevent unauthorized disclosure, (4) the degree of need for access, and (5) 16 whether there is an express statutory mandate, articulated public policy, or 17 other recognizable public interest militating toward access.” Id. 18 The unredacted medical records are relevant and important to 19 establishing whether Plaintiff’s generalized anxiety disorder is a serious 20 health condition. Also, “[Defendant[] must be free to test the truth of 21 [Plaintiff’s] contention that she is emotionally upset because of [Defendant’s] 22 conduct. Once [Plaintiff] has elected to seek such damages, she cannot fairly 23 prevent discovery into evidence relating to the element of her claim.” Fritsch, 24 196 F.R.D. at 568-69 (emphasis in original). Further, there is a protective 25 order governing confidential materials in this case. (See ECF No. 10). This 26 protective order addresses confidentiality and privacy concerns. See Dowell 1 ||can ordinarily be addressed with a protective order). Considering the 9 ||competing interests, and based on the information before the Court, the 3 || protective order in this case was designed for and adequately protects the 4 || privacy and confidentiality rights of Plaintiff and any third parties mentioned 5 |}in the medical records. As such, the Court OVERRULES Plaintiffs G objections based on the right to privacy. 7 V. CONCLUSION 8 Based on the foregoing, the Court GRANTS Defendant’s request, 9 || OVERRULES Plaintiffs objections, and ORDERS Plaintiff to produce 10 |} unredacted versions of the pages specified in Exhibit J to Defendant on or 11 || before July 6, 2021. 12 IT IS SO ORDERED. Dated: June 21, 2021 Mitel by. [= Hon. Mitchell D. Dembin 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27