Lin v. Solta Medical, Inc. et al

Filing 107

Discovery Order re 106 Discovery Letter Brief.(pjhlc2, COURT STAFF) (Filed on 6/5/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HSIN LIN,

v.

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United States District Court
Northern District of California

Case No. 21-cv-05062-PJH
Plaintiff,

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DISCOVERY ORDER

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SOLTA MEDICAL, INC.,

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Defendant.

Re: Dkt. No. 106

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Before the court is the parties’ fifth joint discovery dispute letter. Dkt. 106. Having

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read the parties’ submissions and carefully considered their arguments and the relevant

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legal authority, and good cause appearing, the court hereby rules as follows.

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The parties present two issues. First, they dispute the appropriate length and

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scope of plaintiff’s second deposition. Second, they dispute whether defendant must

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produce images that were part of otherwise-produced complaint files.

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A.

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Second Deposition of Plaintiff
Solta Medical, Inc. (“Solta”) seeks four additional hours to depose plaintiff. Plaintiff

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has already sat for a 7.5-hour deposition. Federal Rule of Civil Procedure 30(d)(1) limits

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a deposition to 1 day of 7 hours absent agreement between the parties or a court order.

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“The party seeking a court order to extend the examination, or otherwise alter the

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limitations, is expected to show good cause to justify such an order.” Fed. R. Civ. P. 30

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advisory committee's note to 2000 amendment.

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Solta argues that good cause exists for the extension for three reasons: first,
defense counsel left the deposition open, and plaintiff’s counsel agreed; second,

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plaintiff’s counsel’s extensive speaking objections consumed an undue amount of

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deposition time; and third, the deposition required a translator, which when compounded

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with plaintiff’s counsel’s lengthy speaking objections consumed an undue amount of

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deposition time. Plaintiff addressed only the first argument.
“The rule directs the court to allow additional time where consistent with

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Rule 26(b)(2) if needed for a fair examination of the deponent. In addition, if the

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deponent or another person impedes or delays the examination, the court must authorize

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extra time.” Id. “Parties considering extending the time for a deposition—and courts

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asked to order an extension—might consider a variety of factors. For example, if the

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witness needs an interpreter, that may prolong the examination.” Id.
Defendant’s argument that the use of a translator—coupled with the fact that

United States District Court
Northern District of California

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plaintiff’s first deposition occurred nearly a year ago—establishes good cause to extend

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plaintiff’s deposition an additional four hours, during which time defense counsel may

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question plaintiff on any relevant topic.

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B.

Photographs of Other Patient Burn Injuries

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The parties dispute whether Solta must produce images of other patients that were

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part of otherwise-produced complaint files. As part of discovery, plaintiff timely requested

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Solta’s internal files concerning other people who complained about Solta’s machine.

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The court ordered production of these files, subject to some redaction of personal

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identifying information of non-party patients. Photographs are normally part of those

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complaint files, and Solta failed to produce those photographs without notifying plaintiff.

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Plaintiff learned about the existence of those photographs through depositions.

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Solta first argues that the request is untimely. Second, Solta has declined to

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produce those photographs because they are protected patient information under the

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Health Insurance Portability and Accountability Act (“HIPAA”) and California law.

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First, Solta’s argument that the production request is untimely is unavailing. The

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request was timely; Solta simply failed to produce the responsive materials. Solta cannot

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escape its discovery obligations by silently withholding responsive materials. Even if it
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could, Solta must produce those materials pursuant to its ongoing obligation to

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supplement or correct its responses upon learning that in some material respect the

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disclosure or response is incomplete or incorrect. See Fed R. Civ. P. 26(e).

United States District Court
Northern District of California

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Second, Solta’s argument that it cannot produce these relevant materials because

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of federal and California privacy laws is unavailing. It is true that personally-identifying

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materials are subject to various privacy laws, and that photographs of faces can in some

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circumstances be considered personally-identifying materials. But protected health

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information can be shared and produced pursuant to certain exceptions, including court

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proceedings. For example, a party is permitted to disclose protected health information

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under HIPAA “in the course of any judicial or administrative proceeding . . . [i]n response

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to an order of a court or administrative tribunal”. 45 C.F.R. § 164.512(e)(i). It may also

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do so “[i]n response to a subpoena, discovery request, or other lawful process, that is not

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accompanied by an order of a court or administrative tribunal” if a “qualified protective

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order” is in place binding the receiving party. 45 C.F.R. § 164.512(e)(ii)(B). The

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protective order must prohibit “using or disclosing the protected health information for any

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purpose other than the litigation,” and require “the return to the covered entity or

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destruction of the protected health information (including all copies made) at the end of

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the litigation or proceeding.” 45 C.F.R. § 164.512(e)(v).

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Here, the parties have stipulated to a protective order which protects the third

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parties' medical records. Stipulated Protective Order, Dkt. 47 (“PO”). The protective

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order satisfies the requirements of HIPAA because it (1) prohibits the parties from using

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or disclosing the protected health information for any purpose other than the litigation or

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proceeding for which such information was requested (PO ¶ 7); and (2) requires the

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return or destruction of the protected material at the conclusion of the litigation (PO ¶ 13).

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See 45 C.F.R. § 164.512(e)(v). Thus, the protective order is adequate under HIPAA to

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protect third party information, and the materials may be produced subject to the

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protective order’s “CONFIDENTIAL” designation. Courts routinely require such

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production. See, e.g., F.G. v. Coopersurgical, Inc., Case No. 24-cv-01261-JST, 2024 WL
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United States District Court
Northern District of California

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2274448, at *5 & n.4 (N.D. Cal. May 20, 2024) (“The production of such information shall

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be subject to a qualifying protective order.”); Stallworth v. Brollini, Case No. 11-cv-04841-

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JSW-LB, 2013 WL 2156267, at *2 (N.D. Cal. May 17, 2013) (“The relevant rules allow

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production pursuant to a protective order.”); Hutton v. City of Martinez, 219 F.R.D. 164,

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167 (N.D. Cal. 2003) (“HIPAA does not preclude production of the medical records”).

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Similarly, the California Confidentiality of Medical Information Act (“CMIA”)

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prohibits California health care providers from disclosing medical information, except as

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permitted by California law. Cal. Civ. Code § 56.10. CMIA does not preclude disclosure

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here, as it permits a health care provider to disclose medical information pursuant to “[a]

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court order” (Cal. Civ. Code § 56.10(b)(1)), “a subpoena”, or “any provision authorizing

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discovery in a proceeding before a court” (Cal. Civ. Code § 56.10(b)(3)).

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Accordingly, even though the photographs at issue may be the kind of identifying

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material that should be protected, given the importance of counsel’s and perhaps experts’

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ability to compare injuries, the materials are relevant, and the protective order in this

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action permits Solta to produce them in compliance with the privacy statutes it identifies.

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Solta is therefore required to produce the requested photographs of third-party persons in

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its complaint files.

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However, plaintiff and her counsel are strongly admonished that these

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CONFIDENTIAL materials must be handled in compliance with the terms of the

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governing protective order. Given plaintiff’s counsel’s prior disclosure of information in

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violation of the protective order, any further violation will result in sanctions.

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IT IS SO ORDERED.
Dated: June 5, 2024
/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge

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