59 Cal.App.5th 1011
Cal. Ct. App.2021Background:
- The People of California sued multiple pharmaceutical companies alleging a deceptive marketing scheme that caused a statewide opioid public‑health crisis and sought injunctive relief and civil penalties.
- Defendants served broad business‑records subpoenas on four nonparty state agencies (Medical Board, Pharmacy Board, Board of Registered Nursing, and DOJ) seeking administrative records, investigatory files, coroner’s reports, and hundreds of millions of prescription records from the CURES database spanning decades.
- The agencies objected based on timeliness, failure to provide statutorily required consumer notice, burdens and overbreadth, privacy interests, the official‑information and deliberative‑process privileges, and statutory confidentiality of CURES data.
- The trial court largely adopted a discovery referee’s recommendations and ordered limited productions (e.g., a small number of complete files, coroner’s reports, and massive CURES extracts with de‑identification requirements), permitting certain redactions.
- The Court of Appeal held (1) motions to compel against the Medical and Pharmacy Boards were untimely, (2) consumer notice was required for health professionals whose identities would be disclosed, and (3) the trial court abused its discretion by compelling overly broad production of investigatory/administrative files and massive CURES data; it vacated the orders and directed the court to deny the motions/grant protection.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of motions to compel under Code Civ. Proc. §2025.480(b) | Motions were timely because production negotiations continued and some documents were later produced; 60‑day clock should run from completion of production. | 60‑day clock ran from the nonparties’ objections on the production date; motions filed after that were untimely. | Motions were untimely. For nonparty business‑records subpoenas the 60‑day period begins when the deponent serves objections/the record of the deposition is complete. |
| Consumer notice requirement (Code Civ. Proc. §§1985.3, 1985.4; IPA) | Consumer notice statutes don’t preclude state agencies or were satisfied by redactions and protective order. | Statutes apply to state agencies; notice required for individuals whose personal information will be disclosed; redactions do not excuse lack of notice for health professionals. | Notice required for investigated/disciplined health professionals whose identities would be produced; failure to give notice invalidated production orders. |
| Scope/relevance and privileges re: investigatory files and administrative records | Agencies over‑claim confidentiality; records are relevant to causation, comparative fault, and apportionment and can be redacted/produced under protective order. | Categories are massively overbroad, include privileged/confidential patient data and internal deliberations, and are not reasonably calculated to lead to admissible evidence. | Trial court abused its discretion: complete investigatory files and administrative records were overbroad and invaded privacy and official‑information/deliberative‑process interests; production must be denied or narrowly tailored. |
| CURES database production and statutory confidentiality | CURES confidentiality does not create an absolute privilege; de‑identified extracts or vendor‑masked data are appropriate and necessary for cross‑linking to other datasets. | Although not absolutely privileged, massive production of patient‑level CURES records is unjustified given privacy, statutory protections, and defendants’ access to other data; re‑identification risks and consumer notice concerns weigh against production. | CURES statute does not create an absolute litigation privilege, but the trial court abused its discretion by ordering sweeping production of hundreds of millions of patient records; any production must be narrowly tailored and account for privacy/notice risks. |
Key Cases Cited
- Unzipped Apparel, LLC v. Bader, 156 Cal.App.4th 123 (2007) (60‑day deadline for motions to compel in nonparty business‑records subpoenas runs from the completion of the deposition record; objections on production date start the clock)
- Rutledge v. Hewlett‑Packard Co., 238 Cal.App.4th 1164 (2015) (followed Unzipped; 60‑day period begins when nonparty serves objections)
- Calcor Space Facility v. Superior Court, 53 Cal.App.4th 216 (1997) (party seeking nonparty discovery must provide focused, fact‑specific justification; overbroad subpoenas may be denied)
- Department of Motor Vehicles v. Superior Court, 100 Cal.App.4th 363 (2002) (statutory confidentiality of agency records is not equivalent to an absolute privilege against disclosure in litigation)
- Los Angeles Unified School Dist. v. Trustees of Southern Cal. IBEW‑NECA Pension Plan, 187 Cal.App.4th 621 (2010) (statutes labeling information confidential do not create absolute discovery privileges absent clear legislative intent)
- Lewis v. Superior Court, 3 Cal.5th 561 (2017) (discusses CURES as California’s prescription drug monitoring program and privacy considerations)
- Sander v. State Bar of California, 58 Cal.4th 300 (2013) (application of official‑information privilege under Evidence Code §1040 and balancing test)
- Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1 (1994) (framework for constitutional informational‑privacy balancing)