Megan Hertzler v. Genentech, Inc., et al

(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the

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court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

(Code Civ. Proc., § 1987.1, subd. (a).)

Defendant argues that Plaintiff cannot seek to modify or quash the subpoena or oppose this Motion because she did not serve formal objections or move to quash or modify the subpoena. The day after Defendant served Plaintiff with a Notice to Consumer regarding the subpoena, Plaintiff’s counsel emailed Defendant’s counsel objecting to the subpoena. (Ettinghoff Decl., Exh. A.) Although the court agrees that Plaintiff should have served formal objections, the parties nevertheless agreed to and participated in an informal discovery conference regarding the informal objections raised by Plaintiff to the subpoena. (Finn Decl., ¶ 7, and Exh.

E.) Therefore, Defendant was clearly aware of the grounds for Plaintiff’s objections to the subpoena. Further, section 1987.1 permits the court to quash or modify the subpoena or direct compliance on terms and conditions as the court declares. As such, the court is not persuaded that Plaintiff cannot oppose this Motion.

REQUEST NOS. 1-12

The Motion to Request nos. 3-5, 7, 9-12, is GRANTED. Plaintiff does not object to the production of her records in response to these requests.

The Motion to Request nos. 1 (all visit summaries during the applicable time period) and no. 8 (all written notes, audio recordings, video recordings and typed notes of all sessions) is GRANTED IN PART.

Confidential communications between a patient and the patient’s psychotherapist are protected by the psychotherapist-patient privilege under Evidence Code section 1014 and the patient’s constitutional right of privacy. (Roe v. Sup. Ct. (1991) 229 Cal.App.3d 832, 837.) However, no psychotherapist-patient privilege applies to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by the patient. (Evid. Code, § 1016, subd. (a).)

However, this patient-litigant exception under Evidence Code section 1016 compels disclosure of only those matters which the patient has chosen to reveal by tendering them in litigation. (In re Lifschutz (1970) 2 Cal.3d 415, 427.) A disclosure of confidential or private information must be accomplished in a manner which protects, as is practical, the patient’s privacy. (McGovern v. BHC Fremont Hospital, Inc. (2022) 87 Cal.App.5th 181, 200.) A court must utilize discovery procedures that identify and remove documents that are irrelevant and immaterial to the issue. (Id., at pp. 200-201.)

Accordingly, these requests are limited to production of records concerning Plaintiff’s claims of Cognitive Decline, Emotional Distress, Depression, Anxiety, Sleeplessness, Stress, Financial Concerns and/or Deterioration of Self-Confidence or Self-Worth and her employment. In response to Form Interrogatory no. 6.2, Plaintiff identified the following injuries as a result of the incident: Emotional distress, depression, anxiety, sleeplessness, stress, financial concern, and deterioration of self-confidence/self-worth. (Finn Decl., Exh. A.) Plaintiff placed these conditions at issue, and therefore no privilege applies to such records or to any of these requested documents regarding her employment. Defendant also has a compelling need for such records that outweighs Plaintiff’s privacy interests.

The Motion to Request no. 2 (all intake documents as a new patient) and no. 6 (questionnaires, tests, clinical assessments, self-diagnosis forms and treatment summaries) is GRANTED. Plaintiff argues that these requests

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seek documents unrelated to the claims in this action, but Plaintiff does not dispute that these requests also seek documents that are relevant to this action. The court therefore finds that any concerns about documents unrelated to Plaintiff’s claims may be addressed by the first look procedure proposed by Plaintiff, as discussed below.

THE COURT ORDERS THE RECORDS TO BE PRODUCED TO PLAINTIFF FOR A FIRST LOOK

To address Plaintiff’s concerns that the therapy records produced are narrowly tailored and to separate relevant information from irrelevant information, Plaintiff proposes a first look procedure in which Plaintiff’s counsel may redact any non-responsive information, log any redactions based on privacy or privilege and provide the redacted documents and log to Defendant. The parties are then to attempt to resolve any disputes informally. If any disputes may not be resolved informally, then the dispute may be submitted to the court. The parties adopted the same procedure last year when Defendant subpoenaed Plaintiff’s medical records from Kaiser. (See February 22, 2024 and October 7, 2024 Minute Orders.)

Defendant argues that the therapy records are different from the Kaiser records because Defendant only seeks Plaintiff’s therapy records from January 1, 2023 to the present, and Plaintiff sought therapy following her alleged depression from her employment. However, in light of the important policy behind the psychotherapist-patient privilege to promote confidentiality essential for successful psychotherapy, the court finds that such a first look ensures that Plaintiff may still maintain confidentiality as to any information that is not relevant to the claims at issue in this action.

To that end, Plaintiff may also redact any names and identifying information of any third parties in the records to address privacy concerns as well. Although Defendant argues that a first look places the onus on Defendant, the court finds that such a procedure appropriately balances Defendant’s needs for the relevant records with protecting the psychotherapist-privilege to documents that are not relevant and protected by the psychotherapist-patient privilege as well as privacy rights.

The court therefore ORDERS Headspace to produce Plaintiff’s therapy records to Plaintiff, as set forth above. Plaintiff is to serve a copy of the order on Headspace by May 28, 2026, and Headspace is to produce the records on or before June 8, 2026 to Plaintiff’s counsel for a first look. Plaintiff is then to produce the records and any log to Defendant on or before June 22, 2026.

Defendant’s Request for Sanctions against Headspace is DENIED.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court's ruling for the Court's signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. The Court alerts the parties to revised Local Rule 3.403(b)(iv) (amended effective January 1, 2024) regarding the wording of proposed orders.