Scalia v. County of Kern et al

Filing 52

STIPULATION and ORDER 51 re: "First Look" Agreement, signed by Magistrate Judge Jennifer L. Thurston on 3/6/2019. (Hall, S)

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JEFF DOMINIC PRICE, SBN 165534
2500 Broadway, Suite 125
Santa Monica, CA 90404
T: [phone]
Email: [e-mail]
Sanjay S. Schmidt, SBN 247475
LAW OFFICES OF SANJAY S. SCHMIDT
1388 Sutter Street, Suite 810
San Francisco, CA 94109
T: [phone]
F: [phone]
Email: [e-mail]
Attorneys for Plaintiffs John Scalia, individually and as successor-in-interest of
Decedent Kimberly Morrissey-Scalia
UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN SCALIA, individually and as
successor-in-interest of Decedent KIMBERLY
MORRISSEY-SCALIA,

CASE NO. 1:17-CV-01097-LJO-SKO
Judge:
Hon. Lawrence J. O’Neill
Court Room: 4 (7th Floor)

Plaintiff,
vs.
COUNTY OF KERN, a municipal
corporation, KERN COUNTY HOSPITAL
AUTHORITY, a public entity and/or agent of
the COUNTY OF KERN, KERN COUNTY
SHERIFF DONNY YOUNGBLOOD, KERN
COUNTY SHERIFF’S SERGEANT JOE
SWANSON, KERN COUNTY SHERIFF’S
DETENTION DEPUTIES RANDI ALLEN
AND MISTY MILLER, KERN COUNTY
HOSPITAL AUTHORITY STAFF NURSE
ROWENA P. BLAKELY, R.N. and DOES 1100, Jointly and Severally,

Action Filed: August 14, 2017
Trial Date: December 3, 2019
STIPULATION RE: “FIRST LOOK”
AGREEMENT RE: DEFENDANTS’
FEDERAL RULE OF CIVIL
PROCEDURE 45 SUBPOENAS SEEKING
PLAINTIFF’S AND DECEDENT’S
CONSUMER RECORDS AND
[PROPOSED] ORDER
(Doc. 51)

Defendants.
The parties, by and through their respective attorneys of record, hereby stipulate to the
following order being issued in this matter:
1. In January 2019 and February 2019, Plaintiff’s counsel received Federal Rule of Civil
Procedure 45 subpoenas for the Production of Documents, which counsel for

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Case No. 1:17-cv-01097-JLO JLT; STIP & ORDER RE: “FIRST LOOK” AGREEMENT RE: SUBPOENAS - 1

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Defendants served through Ronsin Litigation Support Services on the following

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entities:

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A. Custodian of Record for Kleinfelder: The records requested are regardless of date

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for the following types of records: Any and all employment records, wage

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records, personnel records, attendance records, employment applications, W-2’s,

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W-4’s, contracts, 1099’s, resumes, payroll records, vacation schedule, sick leave,

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insurance records, benefits, evaluations and any other records, including but not
limited to any records/documents that may be stored digitally and/or electronically
pertaining to the employment of John Patrick Scalia, DOB#.
B. Custodian of Record for Blackburn Consulting: The records requested are
regardless of date for the following types of records: Any and all employment

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records, wage records, personnel records, attendance records, employment
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applications, W-2’s, W-4’s, contracts, 1099’s, resumes, payroll records, vacation

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schedule, sick leave, insurance records, benefits, evaluations and any other
records, including but not limited to any records/documents that may be stored
digitally and/or electronically pertaining to the employment of John Patrick Scalia,
DOB#.
C. Custodian of Record for Krazan & Associates: The records requested are

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regardless of date for the following types of records: Any and all employment

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records, wage records, personnel records, attendance records, employment

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applications, W-2’s, W-4’s, contracts, 1099’s, resumes, payroll records, vacation

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schedule, sick leave, insurance records, benefits, evaluations and any other

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records, including but not limited to any records/documents that may be stored

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digitally and/or electronically pertaining to the employment of John Patrick Scalia,

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DOB#.

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D. Custodian of Record for Kaiser Foundation Hospital/SCPMG ROI Unit: The
records requested are regardless of date for the following type of records: Any
Case No. 1:17-cv-01097-JLO JLT; STIP & ORDER RE: “FIRST LOOK” AGREEMENT RE: SUBPOENAS - 2

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and all medical records, documents, medical reports, including doctors’ entries,

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nurses’ charts, progress reports, physical therapy records, pathology reports, x-ray

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reports, lab reports, case history, emergency room records, admitting sheets,

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special tests, inpatient and outpatient records, and any sign-in sheets, any and all

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pharmacy/prescription records, activity Rx notes, including prescriptions filled and

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refilled including but not limited to any records/documents that may be stored

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digitally and/or electronically pertaining to the care and treatment, diagnosis,
prognosis, condition, discharge, affecting or relating to Kimberly MorrisseyScalia, DOB#, including ambulance records and all psychiatric, alcohol treatment
and mental health records.
E. Custodian of Record for Southern California Permanente Medical Group – Billing:

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The records requested are regardless of date for the following types of records:
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Any and all billings, statement of charges, statements of accounts, writings, and
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documents reflecting the following: Any and all payments made or received in
reference to Kimberly Morrissey-Scalia, DOB#. Any and all credits, adjustments,
write-offs, reconciliations, contract price payments or reduction, payments by any
health insurance entity, personal payments by or to said patient from any source,

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HMO, PPO, Medi-Cal, Medicare or contract payments by an entity concerning

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said patient, billing ledgers, reports and/or statements of charges rendered and any

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insurance records, including but not limited to any records/documents that may be

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stored digitally and/or electronically this request for records includes any and all

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evidence of any payments from any source regarding the account of this patient to

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or from any person and/or entity.

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F. Custodian of Record for Kern Radiology Medical Group: The records requested

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are regardless of date for the following types of records: Any and all films,

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original x-ray films, CT scans and MRI films, including any films/images that may

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be stored digitally/electronically, relating to Kimberly Morrissey-Scalia, DOB#,
Case No. 1:17-cv-01097-JLO JLT; STIP & ORDER RE: “FIRST LOOK” AGREEMENT RE: SUBPOENAS - 3

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including records from Kaiser Permanente Medical Center and Kaiser Foundation

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Hospital locations in Bakersfield.

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G. Custodian of Record for Kaiser Foundation Health Plan, Inc.: The records

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requested are regardless of date for the following types of records: Any and all

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insurance records, documents, reports, claims, legal records, applications,

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enrollment records, policies, medical records, benefits, explanation of benefits,

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billings, denials and any other records, including but not limited to any
records/documents that may be stored digitally and/or electronically relating to
Kimberly Morrissey-Scalia, DOB#.
H. Custodian of Record for Tony Carey, Inc.: The records requested are regardless of
date for the following types of records: Any and all medical records, documents,
medical reports, including doctor’s entries, nurses’ charts, notes, progress reports,
physical therapy records, pathology reports, all films, original x-rays films, MRI’s,

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CT scans, including any films/images that may be stored digitally/electronically,
x-ray reports, lab reports, case history, emergency room records, admitting sheets,
special tests, inpatient and outpatient records, any sign-in sheets, all prescriptions
and activity RX, notes pertaining to the care and treatment, diagnosis, prognosis,

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condition discharge, insurance records, all billings, statement of charges,

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statements of accounts, writing, and documents reflecting the following: All

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payments made or received in reference said patient, any and all credits,

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adjustments, write-offs, reconciliations, contract price payments or reduction,

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payments by any health insurance entity, personal payments by or to said patient

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from any source, HMO, PPO Medi-Cal, Medicare or contract payments by any

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entity concerning said patient, billing ledgers, reports and/or statement of charges

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rendered and any insurance records. This request for records including any and all

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evidence of any payment from any source regarding the account of this patient to

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or from any reason and/or entity, all records pertaining to psychiatric
Case No. 1:17-cv-01097-JLO JLT; STIP & ORDER RE: “FIRST LOOK” AGREEMENT RE: SUBPOENAS - 4

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treatment/rehabilitation, psychological treatment/ rehabilitation, treatment for

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alcoholism, drug addiction, depression, mental instability, mental disease or

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emotional instability, including but not limited to any records/documents that may

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be stored digitally and/or electronically including all patient orders and patient

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results and specifically for any discharge orders, all detailed screen shots within

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any computer system relating to Kimberly Morrissey-Scalia, DOB#, including all

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records from Dr. Tony Carey and legal records.
I. Custodian of Record for Mary K. Shell Mental Health Center: The records
requested are regardless of date for the following types of records: Any and all
medical records, documents, medical reports, including doctor’s entries, nurses’
charts, progress reports, physical therapy records, pathology reports, x-ray reports,

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lab reports, case history, emergency room records, admitting sheets, special tests,
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inpatient and outpatient records, any sign-in sheets, any and all
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pharmacy/prescription records, activity RX notes, including prescriptions filled
and refilled, pertaining to the care and treatment, diagnosis, prognosis, condition
discharge, all billings, statement of accounts, writing, and documents reflecting the
following: Any and all payments made or received, any and all credits or

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adjustments, write-offs, reconciliations, contract price payments or reduction,

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payments by any health insurance entity, personal payments by or to said patient

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from any source, HMO, PPO Medi-Cal, Medicare or contract payments by any

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entity concerning said patient, billing ledgers, reports and/or statement of charges

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rendered and any insurance records. This request for records includes any and all

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evidence of any payments from any source regarding the account of this patient to

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or from any person and/or entity, including but not limited to any

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records/documents that may be stored digitally and/or electronically including all

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patient orders and patient results and specifically for any discharge orders, all

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detailed screen shots within any computer system, including but not limited to
Case No. 1:17-cv-01097-JLO JLT; STIP & ORDER RE: “FIRST LOOK” AGREEMENT RE: SUBPOENAS - 5

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those pertaining to psychiatric treatment, psychiatric rehabilitation, psychological

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treatment, psychological rehabilitation, treatment for alcoholism, drug addiction,

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depression, mental instability, mental disease or emotional instability in referenced

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to Kimberly Morrissey-Scalia, DOB#, including legal records.

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J. Custodian of Record for Hall Ambulance: The records requested are regardless
of date for the following types of records: All dispatch and response logs,
treatment, medical and billing records, insurance and legal records, and any other
records or logs, including but not limited to records/documents that may be stored
digitally and/or electronically relating to Kimberly Morrissey-Scalia, DOB#.
K. Custodian of Record for Stewart Title of California: any and all employment
records, wage records, personnel records, attendance records, employment

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applications, W-2's, W-4's, contracts, 1099's, resumes, payroll records, vacation
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schedule, sick leave, insurance records, benefits, evaluations and any other
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records, including but not limited to any records/documents that may be stored
digitally and/or electronically pertaining to the employment of Kimberly
Morrissey-Scalia, dob #; ss#, to include any and all records relating to
recommendations for rehabilitation for alcohol or mental health treatment.

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L. Custodian of Record for Tony Carey, Inc – Billing: The records requested are

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regardless of date for the following types of records: Any and all billings,

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statement of charges, statements of accounts, writings, and documents reflecting

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the following: Any and all payments made or received in reference to Kimberly

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Morrissey-Scalia, DOB#. Any and all credits, adjustments, write-offs,

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reconciliations, contract price payments or reduction, payments by any health

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insurance entity, personal payments by or to said patient from any source, HMO,

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PPO, Medi-Cal, Medicare or contract payments by an entity concerning said

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patient, billing ledgers, reports and/or statements of charges rendered and any

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insurance records, including but not limited to any records/documents that may be
Case No. 1:17-cv-01097-JLO JLT; STIP & ORDER RE: “FIRST LOOK” AGREEMENT RE: SUBPOENAS - 6

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stored digitally and/or electronically this request for records includes any and all

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evidence of any payments from any source regarding the account of this patient to

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or from any person and/or entity.

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2. The subpoenas had production dates of January 28, 2019 and February 27, 2019.

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3. Plaintiffs’ counsel contend that the subpoenaed documents likely contain privileged

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information to which Defendants are not entitled (such as medical histories of
unrelated conditions and/or injuries), and that the subpoenas as drafted are overbroad
insofar as they seek discovery of information protected by Plaintiff’s or Decedent’s
physician-patient privilege and privacy rights, and which is neither proportional to the
needs of this case nor relevant to the claims and defenses in this matter. Counsel for
defendants disputes plaintiff’s contentions set forth in this paragraph, and by entering

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into this stipulation, does not waive any rights, contentions or defenses.
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4. Plaintiff’s counsel and Defendants’ counsel met and conferred by phone on January

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21, 2019 and during the drafting of this Stipulation. The parties agree to the following
“First-Look” Procedure:
a. Counsel for Defendants shall instruct Ronsin Litigation Support Services to obtain
the subpoenaed documents; however, instead of producing the documents to

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counsel for Defendants, Ronsin Litigation Support Service shall instead produce

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the documents directly to Plaintiff’s counsel business address no later than March

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11, 2019:

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Sanjay S. Schmidt
Law Office of Sanjay S. Schmidt
1388 Sutter Street, Suite 810
San Francisco, CA 94109
Tel: [phone]
Email: [e-mail]
Jeff Dominic Price
2500 Broadway, Suite 125
Santa Monica, CA 90404
Tel:
[phone]
Email: [e-mail]
Case No. 1:17-cv-01097-JLO JLT; STIP & ORDER RE: “FIRST LOOK” AGREEMENT RE: SUBPOENAS - 7

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b. Upon receipt of the subpoenaed documents from Ronsin Litigation Support

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Services, Plaintiff’s counsel will then have ten (10) business days to review the

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documents to see if they contain any privileged information. If the documents do

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contain such information, Plaintiff’s counsel shall redact the pages containing that

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information and Plaintiff’s counsel shall create a privilege log complying with

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Federal Rules of Civil Procedure 45(e)(2)(A)(i)-(ii) and 26(b)(5)(A)(i)-(ii).

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c. On or before the tenth (10th) day after receiving the records from Ronsin Litigation

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Support Services, Plaintiff’s counsel shall serve the subpoenaed documents by

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Federal Express Priority Overnight on Defendants’ counsel; if Plaintiff’s counsel

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has redacted any information, they shall also concurrently serve the privilege log

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described in ¶3(b) above. As an alternative to serving the subpoenaed documents

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by Federal Express Priority Overnight on Defendants’ counsel, Plaintiff’s counsel

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can serve the subpoenaed documents electronically, in PDF format, via email or

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via a file sharing service. If the tenth day for production by plaintiff’s counsel

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falls on a date between March 16-25, 2019, the deadline for production shall be

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extended to March 29, 2019.

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5. All parties shall share in the cost (equal one-thirds share) for Ronsin Litigation

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Support Services to obtain the documents and produce them to Plaintiff’s counsel.

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Plaintiff’s counsel shall pay to send them by Federal Express Priority Overnight to

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Counsel for Defendants.

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6. Counsel for Defendants reserve the rights to seek production of any documents that

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are withheld and/or redacted by Plaintiff’s counsel pursuant to the terms of this

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agreement within ten (10) business days after receipt of the records from Plaintiff’s

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counsel, if defendants dispute the redactions made by plaintiff’s counsel or the

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privilege log that was or should have been provided. Defendants’ counsel shall meet

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and confer with Plaintiff’s counsel to resolve the dispute. If the parties do not reach

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an agreement within five (5) business days thereafter, Defendants may file an ex

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parte application to request the Court to review in camera the redacted and unredacted
Case No. 1:17-cv-01097-JLO JLT; STIP & ORDER RE: “FIRST LOOK” AGREEMENT RE: SUBPOENAS - 8

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records in dispute, to determine if the withheld or redacted records are discoverable

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by, and should be produced without redaction to, Defendants.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD:

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Dated: March 6, 2019

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LAW OFFICE OF SANJAY S. SCHMIDT
By:

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Dated: March 6, 2019

CLINKENBEARD, RAMSEY, SPACKMAN
& CLARK, LLP

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/s/ Sanjay S. Schmidt
Sanjay S. Schmidt,
Attorneys for Plaintiff JOHN SCALIA, individually and as
successor-in-interest of Decedent KIMBERLY
MORRISSEY-SCALIA

By:

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/s/ Maureen Clark
Hugh S. Spackman,
Maureen Clark,
Attorneys for Defendants KERN COUNTY HOSPITAL
AUTHORITY and ROWENA P. BLAKELY, R.N.

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Dated: March 6, 2019

MARGO A. RAISON, COUNTY COUNSEL

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By:

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/s/ Marshall Scott Fontes
Marshall Scott Fontes,
Deputy County Counsel
Attorneys for Defendants COUNTY OF KERN, KERN
COUNTY SHERIFF DONNY YOUNGBLOOD, KERN
COUNTY SHERIFF’S SERGEANT JOE SWANSON,
KERN COUNTY SHERIFF’S DETENTION DEPUTIES
RANDI ALLEN AND MISTY MILLER

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ORDER

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The Court GRANTS the stipulation of the Parties (Doc. 51) as set forth above.

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IT IS SO ORDERED.

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Dated:
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March 6, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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Case No. 1:17-cv-01097-JLO JLT; STIP & ORDER RE: “FIRST LOOK” AGREEMENT RE: SUBPOENAS - 9