Bd. of Registered Nursing v. Superior Court, No. D077440 (D4d1 Jan. 15, 2021)
This is writ taken from some discovery rulings in a big public nuisance litigation that a bunch of DAs brought against some pharmaceutical companies over their marketing of opioids. The defendants subpoenaed several government agencies for data on prescriptions, opioid deaths, and physician and nurse discipline. After a lot of ins and outs, the trial court eventually granted a series of motions to compel. The agencies took a writ on several issues.
First, two of the agencies raise timeliness issues. Code of Civil Procedure § 2025.480(b) requires a motion to compel the enforcement of a third-party subpoena to be filed within 60 days of “the completion of the record of the deposition[.]” That applies even to document-only subpoenas because, under the structure of the Discovery Act, all third-party discovery is conducted by “deposition,” even if there’s not really an actual deposition to be taken. And under a line of prior cases, the Court of Appeal has held that the 60-day clock to file a motion to compel on a documents only subpoena runs from date on which objections are served. See, e.g., Unzipped Apparel, LLC v. Bader, 156 Cal. App. 4th 123, 129 (2007); Rutledge v. Hewlett-Packard Co., 238 Cal. App. 4th 1164, 1192 (2015).
The Defendants argue, however, that this case is different than Unzipped or Rutledge because the Agencies didn’t respond with blanket objections. For some requests, they agreed to produce documents. Defendants say that for those, the clock should run from when the production is complete. But the Court of Appeal doesn’t agree.
As the Court sees it, non-party party discovery is a one-step deal. The recipient of a subpoena either makes the demanded production or it doesn’t. That the Agencies here engaged in a meet and confer process and eventually produced some documents was not enough to toll the deadline. So the 60 days runs from service of objections, regardless of whether there are any ongoing negotiations or productions after that.
This all seems generally fine, if a technically imprecise and kind of impractical. First, to be technically catty, the court’s reasoning about different rules for non-party discovery has a mistaken premise. Although most of the cases under § 2025.280 address third party subpoenas, the statute is not specific to non-party discovery. It is, instead, generally addressed to motions to compel in connection with depositions. It’s just that all non-party discovery is by deposition, and when you can serve ordinary RFPs on a party, compelling document discovery in connection with a deposition is generally unnecessary. But what happens if, for instance, a party serves a notice of the deposition of a party-affiliated witness containing document demands? The party/witness objects to the demands. But the deposition gets rescheduled a couple times. Does that mean that the motion to compel might need to be filed before the actual deposition occurs? Hard to say. But safest course would be to assume it does.
On a more practical level, notwithstanding the Court’s read of the statutes, what happened here is the norm, at least in complicated cases. The recipient of a subpoena serves objections and doesn’t produce any documents on the compliance date. Then there’s a period of negotiation where the contours of the production get worked out. And then there’s a production. So, given the Court’s ruling that the 60 days starts on objections and runs the whole time, a subpoenaing party really needs to keep a tight watch on the clock.
Generally, one way to deal with that would be to get a stipulation to extend the period while the parties negotiate. In a footnote, the Court notes that such an agreement wasn’t struck here. It, however, rather unhelpfully “express[es] no opinion” on whether an agreement could extend the deadline. But given § 2016.030’s rule that the parties can modify any discovery procedure by stipulation, that really shouldn’t be an issue.
Aside from the timing issue, there are a few other issues addressed in this writ. Some of the subpoenas sought prescription data that could contain the personal identifying information of individual physicians and surgeons. That implicates § 1985.3, which provides a procedure where consumers can get notice of the subpoena and an opportunity to object. The Court of Appeal finds that the trial court erred by ordering the production of the data without giving notice to the doctors.
But there’s a chicken and egg thing here that appears to go unnoticed. Defendants in the case likely don’t know who many of these doctors are. So how are they supposed to give them notice? There’s procedures for this when it comes to party discovery. For instance, in employment class actions, the absent members of the class can receive a notice giving them the right to opt out or object to the disclosure of their contact information. See Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554, 562 (2007); Alch v. Superior Court, 165 Cal. App. 4th 1412, 1416 (2008); Pioneer Elecs. (USA), Inc. v. Superior Court, 40 Cal. 4th 360, 366 (2007). But there, the defendant actually has the information. How is that supposed to work with a non-party? The notice ruling seems generally right, but the Court’s failure to explain how that is supposed to work practically is not very helpful.
Finally, the Court addresses the merits of the discoverability of three buckets of information—investigative files, prescription data, and coroner’s reports—finding that the trial court erred in ordering their disclosure. The opinion starts off by setting out legal standards for the various grounds for nondisclosure—there’s a mixture of irrelevance, burden, privacy, and privilege explanations—and then applies them to each category, although not with a very precise analysis. Generally, the overall determination is that the court went too far in granting the motions to compel.
On privilege, the Court makes one good point and one bad one. Ironically, they aren’t really reconcilable. But that seems to have been missed.
The good point is that statutes that make government data confidential or limit its disclosure do not create discovery or evidentiary privileges unless they specific limit disclosure and use in litigation. That is because privileges in California are supposed to be strictly creatures of statute. See Evid. Code § 911. So, for instance, exceptions to the disclosure requirements in Public Records Act do not create grounds to refuse to produce evidence in litigation.
But elsewhere, the court suggests that some of the information at issue might be subject to the deliberative process privilege. There is, however, no statute that creates such a privilege. Indeed, the Supreme Court has previously explained that the official information privilege in Evidence Code § 1040 “represents [t]he exclusive means by which a public entity may assert a claim of governmental privilege based on the necessity for secrecy.” Shepherd v. Superior Court, 17 Cal. 3d 107, 123 (1976); see also Marylander v. Superior Court, 81 Cal. App. 4th 1119, 1128 (2000) (declining to recognize an absolute deliberative process privilege applicable to discovery). Notably, the Court’s discussion of the deliberative process privilege cites two cases. One of them—San Joaquin Cty. Local Agency Formation Comm’n v. Superior Court, 162 Cal. App. 4th 159, 172 (2008)—is a mandamus case challenging a quasi-legislative decision, effectively an appeal that is supposed to be decided on a limited record. The other—Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1339-1344 & fn.9 (1991)—is a PRA case. Neither fairly stands for the proposition that there is some non-statutory deliberative process privilege that generally applies to discovery in an ordinary civil case.
Writ granted.
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