1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL INGRANDE, Case No.: 21-CV-1075-L-WVG

12 Plaintiff,

ORDER ON DISCOVERY DISPUTE

13 v. 14 AUTOZONERS, LLC; DOES 1 through 20, et al., 15 Defendants. 16 17 18 I. INTRODUCTION 19 On March 4, 2022, this Court convened a telephonic discovery conference on a 20 discovery dispute counsel for the Parties initially raised with Chambers consistent with 21 Rule IV(c) of this Court’s Civil Chambers Rules. The Parties’ dispute concerns an eight- 22 page questionnaire the Social Security Administration (“SSA”) produced along with other 23 documents in response to Defendant’s third-party subpoena. Plaintiff objects to the 24 questionnaire’s production based on the deliberative process privilege and privacy 25 concerns. Defendant disagrees the privilege or privacy considerations shield the 26 questionnaire from production and posits that the questionnaire should be produced on 27 relevance grounds. Having reviewed and considered the Parties’ positions and the legal 28 authority to which they cited, the Court hereby OVERRULES Plaintiff’s objections to 1 production of the questionnaire and ORDERS Plaintiff to produce the questionnaire to 2 Defendant no later than one week from the issuance of this Order. 3 II. BACKGROUND 4 This is a disability discrimination action arising from California’s Fair Employment 5 and Housing Act (“FEHA”). At the center of the Parties’ discovery dispute is a 6 questionnaire Plaintiff’s wife completed. The questionnaire reveals Plaintiff’s wife’s 7 perception of Plaintiff’s medical condition and the effects it has had on Plaintiff’s quality 8 of life, both at work and at home. It is undisputed between the Parties that the questionnaire 9 is relevant to Plaintiff’s claims against Defendant. Even so, Plaintiff objects to producing 10 the questionnaire to Defendant and, in doing so, invokes the deliberative process privilege 11 and related privacy concerns. In support of his position, Plaintiff refers the Court to Crest 12 Catering Co. v. Superior Ct. of Los Angeles Cty., 62 Cal. 2d 274 (1965). Defendant 13 counters with Miller v. Pancucci, 141 F.R.D. 292 (C.D. Cal. Jan. 21, 1992.) The Court has 14 considered the Parties’ respective positions and the legal authority on which they rely. 15 Before addressing both, the Court begins with a survey of the deliberative process 16 privilege. 17 III. DISCUSSION 18 a. The Deliberative Process Privilege 19 The deliberative process privilege aims to “shield certain intra-agency 20 communications from disclosure” and thus “allow agencies freely to explore possibilities, 21 engage in internal debates, or play devil’s advocate without fear of public scrutiny.” Lahr 22 v. National Trans. Safety Bd., 569 F.3d 964, 979 (9th Cir. 2009); Carter v. U.S. Dept. of 23 Commerce, 307 F.3d 1084, 1089 (9th Cir. 2002) (citing Dep’t of Interior v. Klamath Water 24 Users Protective Assoc., 532 U.S. 1, 8 (2001)); see also Newport Pac. Inc. v. Cty. of San 25 Diego, 200 F.R.D. 628, 637 (S.D. Cal. June 18, 2001) (citing In re Franklin National Bank 26 Securities Litigation, 478 F.Supp. 577, 580–81 (E.D.N.Y.1979) (“The assumption is that 27 ‘government, no less than the citizen, needs open but protected channels for the kind of 28 plain talk that is essential to the quality of its functioning.’”).) Concurrently, the privilege’s 1 scope is not limitless. The privilege “only protects expressions of opinions or 2 recommendations in intragovernmental documents; it does not protect purely factual 3 information.” Id. (citing In re Franklin, 478 F.Supp. at 581). 4 Courts employ a two-part test to determine whether the deliberative process 5 privilege has been appropriately invoked by a party contesting a document’s production. 6 Specifically, the discovery opponent must show the document at issue is both “pre- 7 decisional” and “deliberative.” Lahr, 569 F.3d at 982; see National Resources Defense 8 Council v. U.S. Dept. of Defense, 388 F.Supp.2d 1086, 1097 (C.D. Cal. May 25, 2005). A 9 document is “pre-decisional” if it is “prepared [] to assist an agency decisionmaker in 10 arriving at his decision and may include recommendations, draft documents, proposals, 11 suggestions, and other subjective documents which reflect the personal opinions of the 12 writer rather than the policy of the agency.” Assembly of California v. United States Dep't 13 of Commerce, 968 F.2d 916, 920 (9th Cir.1992) (citing Formaldehyde Inst. v. Dep't of 14 Health and Human Services, 889 F.2d 1118 (D.C. Cir. 1989).); see also Carter v. United 15 States DOC, 307 F.3d 1084, 1089 (9th Cir. 2002). A document is “deliberative” if “the 16 disclosure of the materials would expose an agency's decision-making process in such a 17 way as to discourage candid discussion within the agency and thereby undermine the 18 agency's ability to perform its functions.” Lahr, 569 F.3d at 982 (citing Assembly of State 19 of California, 968 F.2d at 921 and Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 20 421 U.S. 168, 184 (1975).). 21 Here, the Court finds neither of the two parts of the applicable test are met and 22 addresses each part in turn. As a threshold matter, the “key to the [pre-decisional] inquiry 23 is whether revealing the information exposes the deliberative process.” United States v. 24 McKesson Corp., 2021 WL 2037965, at *16 (N.D. Cal. May 21, 2021) (citing National 25 Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114, 1119 (9th Cir. 1988).). More 26 specifically, “the deliberative process privilege is available when the material demanded 27 in a subpoena request implicates the mental processes of government officials.” City and 28 County of San Francisco v. Purdue Pharma L.P., 2021 WL 1111146 (N.D. Cal. Mar. 23, 1 2021) (citing Times Mirror Co. v. Superior Court, 53 Cal.3d 1325, 1342 (1991).). Here, 2 the questionnaire reveals Plaintiff’s wife’s perception of Plaintiff’s condition and nothing 3 more. No government official’s mental process is implicated. Thus, there is no revelation 4 of information that exposes the SSA’s deliberative process. For this reason, the “pre- 5 decisional” prong is unmet. 6 Further, the questionnaire Plaintiff’s wife submitted to the SSA only reveals 7 Plaintiff’s wife’s thoughts and observations concerning Plaintiff’s condition. The 8 questionnaire does not reveal, to any extent, the SSA’s decision-making process over 9 Plaintiff’s disability benefits application as it relates to the questionnaire. No government 10 official’s impressions of, comments on, or concerns about the questionnaire are reflected 11 in the questionnaire. Only Plaintiff’s wife’s words are committed to the eight pages that 12 make up the questionnaire. Consequently, Plaintiff falls short of establishing the 13 “deliberative” prong of the two-part test. Accordingly, Plaintiff has not carried his burden 14 to show the deliberative process privilege attaches to the questionnaire. The Court finds 15 the document is thus not privileged. 16 Plaintiff’s citation to Crest Catering Co. does nothing to stir the Court’s finding. 17 Plaintiff relies on the case for the proposition that section 1040 of the California Evidence 18 Code protects the questionnaire submitted to the SSA from disclosure. It does not. In Crest 19 Catering Co., the California Supreme Court opined sections 1094 and 2111 of the 20 California Unemployment Insurance Code shielded agency documents from disclosure. In 21 relevant part, section 1094 provided that the information delivered to the Department of 22 Employment by an employing unit “shall be for the exclusive use and information of the 23 director and shall not be open to the public, nor admissible in evidence in any action or 24 special proceeding.” Crest Catering Co., 62 Cal. 2d at 276–77. Section 2111 added such 25 information “is confidential and shall not be published or open to public inspection in any 26 manner” and “any employee of the department who violates this section is guilty of a 27 misdemeanor.” Id. The statutes’ emphatic language informed the Court’s conclusion that 28 “these provisions manifest a clear legislative purpose to preserve the confidentiality of 1 information submitted to the Department of Employment.” Id. (citing Webb v. Standard 2 Oil Co., 49 Cal.2d 509, 513 (1957).). 3 Notably, the court’s ruling in Crest Catering Co. was limited to sections 1094 and 4 2111 of the California Unemployment Insurance Code. Plaintiff reads the decision broadly 5 but without basis: nothing in Crest Catering Co. suggests the court intended to extend its 6 conclusion to all other agency statutes concerning public disclosure of government records. 7 To this end, Plaintiff’s additional reliance on section 1040 of the California Evidence Code, 8 which he asks the Court to consider in tandem with Crest Catering Co., is misplaced. In 9 relevant part, sub-section (b)(2) of section 1040 provides a public entity “has a privilege to 10 refuse to disclose official information and to prevent another from disclosing official 11 information” where “disclosure of the information is against the public interest because 12 there is a necessity for preserving the confidentiality of the information that outweighs the 13 necessity for disclosure in the interest of justice…” Cal. Evid. Code § 1040. A plain reading 14 of this statute does not “manifest a clear legislative purpose to preserve the confidentiality 15 of the information,” which formed the basis of the court’s holding in Crest Catering Co. 16 This Court will certainly not read language into a statute or exceed the scope of a court’s 17 legal opinion to make Plaintiff’s case for him. 18 Finally, and consistent with Defendant’s citation to Miller, the Court observes that 19 the federal policy of discovery is a liberal one. Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1) 20 expressly provides, “parties may obtain discovery regarding any matter, not privileged, 21 which is relevant to the subject matter involved in the pending action, whether it relates to 22 the claim or defense of the party seeking discovery or to the claim or defense of any other 23 party…” The Parties agree the questionnaire at issue is relevant, and the Court finds the 24 questionnaire is not privileged or otherwise protected from disclosure. The questionnaire 25 shall be produced. 26 / / / 27 / / / 28 / / / 1 b. Plaintiff’s Privacy Rights Objection 2 The Court next turns to Plaintiff’s objection based on his privacy rights. Generally, 3 litigants have a right to privacy in their medical records. Mahil v. Option Care Enterprises, 4 Inc., 2021 WL 2550084, at *5 (S.D. Cal. June 21, 2021) (citing Soto v. City of Concord, 5 162 F.R.D. 603, 618 (N.D. Cal. 1995).). Concurrently, however, these privacy rights are 6 not protected by any recognized privilege and do not serve as a bar to discovery. Id.; 7 Whalen v. Roe, 429 U.S. 589, 603-604 (1977) (privacy rights in medical records are neither 8 fundamental nor absolute). To assess whether a litigant’s medical records are shielded from 9 disclosure, courts employ a balancing test that considers: (1) the type of information 10 requested, (2) the potential for harm in any subsequent non-consensual disclosure, (3) the 11 adequacy of safeguards to prevent unauthorized disclosure, (4) the degree of need for 12 access, and (5) whether there is an express statutory mandate, articulated public policy, or 13 other recognizable public interest militating toward access.” Seaton v. Mayberg, 610 F.3d 14 530, 539 (9th Cir. 2010). Waiver is properly found where a party places their physical or 15 mental condition at issue at any time throughout the litigation. Warner v. Velardi, 2017 16 WL 3387723, at *2 (S.D. Cal. Aug. 7, 2017) (citing Fritsch v. City of Chula Vista, 187 17 F.R.D. 614, 625-626 (S.D. Cal. 1999) and Ferrell v. Glen-Gery Brick, 678 F.Supp. 111, 18 112-13 (E.D. Pa. 1987).); Seaton, 610 F.3d at 537 (a litigant can waive his or her privacy 19 rights through a variety of acts, including by commencing a lawsuit). 20 Here, Plaintiff generally has a privacy interest in maintaining the confidentiality of 21 his medical records. As it specifically concerns the questionnaire Plaintiff’s wife 22 completed, however, Plaintiff’s privacy claim is unconvincing. Having reviewed the 23 unredacted version of the questionnaire in camera, the Court finds none of Plaintiff’s 24 wife’s responses are so intimate and personal that their disclosure would invade Plaintiff’s 25 privacy rights. To be sure, the revelations Plaintiff’s wife made in the questionnaire are 26 ones she would foreseeably be compelled to make if called as a witness at trial. Therefore, 27 the Court strains to conclude that the questionnaire implicates Plaintiff’s rights to privacy. 28 / / / 1 Notwithstanding the above, the Court finds Plaintiff has waived any possible right 2 || to privacy in the questionnaire at issue by initiating this lawsuit. Plaintiff has brought and 3 ||continues to maintain disability discrimination and related causes of action against 4 || Defendant. Collectively, Plaintiff's claims and allegations against Defendant squarely put 5 || Plaintiff's personal health at issue for the relevant time period. This circumstance 6 ||necessitates the conclusion that medical records, including the questionnaire □□□□□□□□□□□ 7 || wife completed regarding Plaintiff's disabling condition and its impact on Plaintiff's daily 8 || life, are both relevant and discoverable. 9 Equally availing is that there 1s a protective order governing confidential materials 10 |/in this case. (Doc. No. 10.) The Court’s October 19, 2021 entry of the Order on Joint 11 ||Motion for Stipulated Protective Order ensures that specifically identified documents 12 exchanged throughout this litigation are spared from public disclosure. Ud.) Accordingly, 13 ||the protective order sufficiently addresses confidentiality and both Parties’ privacy 14 ||concerns. Dowell v. Griffin, 275 F.R.D. 613, 617, 620 (S.D. Cal. 2011) (finding privacy 15 ||concerns can ordinarily be addressed with a protective order). For this reason, and in 16 considering the Parties’ competing interests, the claims at issue, and the unremarkable 17 ||nature of the document in dispute, the Court finds the questionnaire is subject to 18 || production. Accordingly, the Court OVERRULES Plaintiff's objection to producing the 19 || document based on his right to privacy. 20 V. CONCLUSION 21 In light of the foregoing, the Court OVERRULES Plaintiff's objections to 22 || Defendant’s request for production of the questionnaire and ORDERS Plaintiff to produce 23 questionnaire to Defendant no later than one (1) week from the date of this Order’s 24 || issuance. 25 IT IS SO ORDERED. 26 || Dated: March 15, 2022 : a7 Hon. William V. Gallo 28 United States Magistrate Judge