Vela et al v. County Of Monterey et al

Filing 112

STIPULATION AND ORDER REQUIRING CALIFORNIA FORENSIC MEDICAL GROUP TO PRODUCE MEDICAL AND MENTAL HEALTH RECORDS IN RESPONSE TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE (approving 107 ). Signed by Judge Beth Labson Freeman on 1/18/2018. (blflc1S, COURT STAFF) (Filed on 1/18/2018)

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David Sheuerman, SB No. 78132
Marc G. Cowden, SB No. 169391
Adam M. Stoddard, SB No. 272691
SHEUERMAN, MARTINI, TABARI, ZENERE & GARVIN
A Professional Corporation
1033 Willow Street
San Jose, California 95125
Telephone [phone]
Facsimile [phone]
Emails: [e-mail]
[e-mail]
Attomeys for Defendants
CALIFORNIA FORENSIC MEDICAL
GROUP; TAYLOR FITHIAN, M.D. and
ELIUD GARCIA, M.D. (erroneously sued herein as
ELUID GARCIA, M.D.)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Jose Division

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ESTATE OF SANDRA VELA, deceased, by and
through ANNAMARIE MORENO;
ANNAMARIE MORENO; and BERNADETTE
ALVERADO,

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Plaintiff,
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VS.

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COUNTY OF MONTEREY; SHERIFF STEVE
BERNAL, in his individual and official
capacities; COMMANDER JAMES BASS, in his
individual and official capacities; SERGEANT
ERIKA KAYE, in her individual capacity;
SERGEANT CAROL WHITE, in her individual
capacity; DEPUTY BARBARA FULKERSON,
in her individual capacity; DEPUTY N.
QUINTERO, in her individual capacity;
FORMER SHERIFF SCOTT MILLER, in his
individual capacity; CALIFORNIA FORENSIC
MEDICAL GROUP, TAYLOR FITHIAN, MD;
ELUID GARCIA, MD,

Case No. 16-CV-02375 BLF
STIPULATION AND [PROPOSED]
ORDER REQUIRING
CALIFORNIA FORNESIC
MEDICAL GROUP TO PRODUCE
MEDICAL AND MENTAL
HEALTH RECORDS IN RESPONSE
TO PLAINTIFF'S REQUEST FOR
PRODUCTION OF DOCUMENTS,
SET ONE
Judge: Hon. Beth Labson Freeman

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Defendants.
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ESTATE OF SANDRA VELA, deceased, by and through ANNAMARIE MORENO;
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Case No. 16-CV-02375 BLF
Stipulation and [Proposed] Order Requiring CFMG to Produce Medical and Mental Health Records

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ANNAMARIE MORENO; and BERNADETTE ALVERADO ("Plaintiffs"), and CALIORNIA

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FORENSIC MEDICAL GROUP, TAYLOR FITHIAN, M.D., and ELIUD GARCIA, M.D., and

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COUNTY OF MONTEREY, on behalf of Monterey County Sheriff s Office ("County")

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(collectively "Defendants"), by and through their respective counsel, hereby stipulate as follows.

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1.

This case was filed against Defendants on May 2, 2016. (Dkt No. 1.)

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2.

Plaintiffs have propounded on defendant CALIFORNIA FORNESIC MEDICAL

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GROUP a Request for Production of Documents, Set One, which includes a request for medical

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and mental health records, Quality Assurance reviews, communications, and non-privileged

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investigation reports generated by, and in the possession of, CALIFORNIA FORENSIC

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MEDICAL GROUP regarding inmates who committed suicide and/or attempted suicide at the

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Monterey County Jail during the period from January 1, 2010 to present.

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3.

Additionally, the Court ordered the production of "All documents reflecting

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communications by, to, from, or received by you relating to individuals who committed and/or

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attempted suicide at Monterey County Jail from January 1, 2007 to present." ECF 92. The

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documents were to be produced within 15 days following the October 18, 2017 Order. All

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documents have been redacted and produced in compliance with the Court's Order [ECF 92],

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and the parties agreement to produce documents responsive to plaintiffs' Request for Production

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of Documents, Set One.

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4.

The Health Insurance Portability and Accountability Act of 1996, and its

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implementing regulations at 45 C.F.R. Parts 160 and 164 ("HIPAA"), prohibit covered entities

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from disclosing "protected health information," except under certain limited circumstances. 45

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C.F.R. §164.502. CALIFORNIA FORENSIC MEDICAL GROUP provides health care to

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inmates at the Monterey County Jail and is a covered entity. Protected health information is

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defined as "individually identifiable health information" that is recorded in any form or medium

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that "[r]elates to the past, present or future physical or mental health or condition of the

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individual; the provision of health care to an individual; or the past, present, or future payment

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for the provision of health care to an individual." 45 C.F.R. §160.103. Thus, the medical and

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Case No. 16-CV-02375 BLF
Stipulation and [Proposed] Order Requiring CFMG to Produce Medical and Mental Health Records

mental health records, Quality Assurance reviews, communications, and non-privileged
investigation reports generated by, and in the possession of, CALFORNIA FORENSIC
MEDICAL GROUP regarding inmates at the Monterey County Jail who committed suicide
and/or attempted suicide during the period from January 1, 2010 to present are considered
"protected health information" under HIPAA.
5.

Under HIPAA, disclosure is permitted, pursuant to a court order, subpoena, or

discovery request when the health care provider "receives satisfactory assurance from the party
seeking the information that reasonable efforts have been made by such party to secure a
qualified protective order." 45 C.F.R. §164.512(e)(1)(ii)(B). The protective order must prohibit
"using or disclosing the protected health information for any purpose other than the litigation,"
and "require the retum to the [physician] or destruction of the protected health information — at
the end of the litigation or proceeding." 45 C.F.R. §164.512(e)(1)(v)(B).
6.

Similarly, California's Confidentiality of Medical Information Act ("CMIA"),

governs "medical information" (i.e., any individually identifiable information in possession of a
provider of health care regarding a patient's medical history, mental or physical condition, or
treatment). The medical and mental health records, Quality Assurance reviews,
communications, and non-privileged investigation reports generated by, and in the possession of,
CALFORNIA FORENSIC MEDICAL GROUP regarding inmates at the Monterey County Jail
who committed suicide and/or attempted suicide during the period from January 1, 2010 to
present are "medical information" under CMIA.
7.

CMIA requires a provider to disclose medical information in response to an

authorization by the subject of the information, a subpoena, or a court order. Cal. Civ. Code
§56.10(b)(1).
8.

The confidentiality provisions of the California Lanterman-Petris-Short Act

("LPS") at California Welfare and Institutions Code Sections 5328 — 5328.9 govem "[a]ll
information and records obtained in the course of providing services" to LPS patients, including
but not limited to the mental health records of patients who are treated or evaluated under
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Sections 5150 — 5344 of the LPS and LPS patients who receive mental health treatment at a

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county psychiatric ward, facility, or hospital. Thus, the mental health records of inmates at the

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Monterey County Jail in the possession of California Forensic Medical Group are subject to the

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confidentiality provisions of LPS.

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LPS prohibits the disclosure of LPS inmates mental health information unless

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expressly permitted under Sections 5328 to 5329. Section 5328(f) requires records to be

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disclosed if so ordered by the courts "to the courts, as necessary for the administration of

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justice."

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10.

Federal law at 42 U.S.C. Section 290-dd2(g) and its implementing regulations at

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42 C.F.R. Part 2 (Part 2), Confidentiality of Substance Use Disorder Patient Records, govern

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records from a covered treatment program that identify a patient as having or having had a

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substance use disorder either directly, by reference to publicly available information, or through

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verification of such identification by another person. 42 C.F.R. §2.12(a). The substance use

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disorder records of inmates at the Monterey County Jail may be governed by Part 2.

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11.

Part 2 prohibits the redisclosure of records received by persons or entities, such as

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CALIFORNIA FORENSIC MEDICAL GROUP, from a covered program with the patient's

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consent unless the written consent expressly permits such redisclosure, or it is otherwise

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permitted by Part 2. 42 C.F.R. §2.13. Part 2 permits the redisclosure of certain records governed

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by Part 2 with an authorizing court order. 42 C.F.R §§2.63 — 2.64.

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12.

The right of privacy is not an absolute bar to discovery. Rather, courts balance

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the need for the information against the claimed privacy right. Ragge v. MCA/Universal Studios

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(CD CA 1995) 165 FRD 601, 604 (right of privacy may be invaded for litigation purposes.) The

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privacy interest in one's confidential medical records in conditional and a limited impairment of

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the right may be allowed if properly justified. Soto v. City of Concord, 162 F.R.D. 603, 618

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(N.D. Cal. 1995). Additionally, the physician-patient privilege is not recognized by federal

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common law, federal statute, or the U.S. Constitution. Soto, Id. Where application of state law

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would be clearly inconsistent with federal law, state law privileges do not apply. Pagano v.

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Oroville Hospi., 145 F.R.D. 683, 688 (E.D. Cal. 1993). Similarly, with respect to the CMIA,
federal privilege laws, not state laws, apply. Delaney v. Tilton, 2008 U.S. Dist. LEXIS 111668,
*9.
13.

Here, the heirs of individual inmates who committed suicide and/or the inmates

who attempted suicide at the Monterey County Jail during the period from January 1, 2010 to
present, may not rely on the physician-patient privilege and medical records privilege, nor may
they rely on the right of privacy, since the right is only available explicitly under the California
Constitution and may be abrogated where justifíed under federal law. Soto, Id. Furthermore, the
parties have stipulated to a protective order which protects the third parties medical records.
This protective order is nearly identical to the June 19, 2017 Order of this Court for production
of third party records containing protected health information. (ECF 77). The protective order
satisfies the requirements of HIPAA because it (1) prohibits the parties from using or disclosing
the protected health information for any purpose other than the litigation or proceeding for which
such information was requested [Paragraph 20]; and (2) requires the return of the protected
material at the conclusion of the litigation [Paragraph 21]. 45 C.F.R. §164.512(e)(1)(v). Thus,
the protective order is adequate under HIPAA to protect third party medical records. A similar
protective order was found to be sufficient in Allen v. Woodford, U.S. Dist. LEXIS 11026 (E.D.
Cal. 2007). In Allen, the court found that a protective order and proper redaction safeguarded
third parties' privacy interests.
14.

Plaintiffs contend that records pertaining to inmates who committed suicide

and/or attempted suicide at the Monterey County Jail during the period from January 1, 2010 to
present are potentially relevant to their case.
15.

Accordingly, plaintiffs and defendants agree that a court order compelling the

disclosure of protected health information regarding inmates who committed suicide and/or
attempted suicide at the Monterey County Jail during the period from January 1, 2010 to present,
including medical and mental health records, Quality Assurance reviews, communications, and
non-privileged investigation reports generated by, and in the possession of, CALFORNIA
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FORENSIC MEDICAL GROUP is the most effective mechanism to ensure discovery of this

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potentially relevant information.

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16.

The protected health information produced pursuant to this Stipulation and

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Protective Order regarding inmates who committed suicide and/or attempted suicide at the

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Monterey County Jail during the period from January 1, 2010 to present, including medical and

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mental health records, Quality Assurance reviews, communications, and non-privileged

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investigation reports generated by, and in the possession of, CALFORNIA FORENSIC

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MEDICAL GROUP shall be considered "confidential information". Access to this "confidential

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information" will be restricted to the Court, its officers, court personnel and stenographic parties

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engaged in proceedings in this matter, plaintiff and defense experts, and plaintiff and defense

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counsel (defined herein to include: attomeys in this action and their support staff, including

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paralegals, legal interns, and legal assistants), and other testifying or consulting experts, where

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production is required by the Federal Rules of Civil Procedure, or where production is ordered

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by the Court. Any attomey, the attomey's support staff or expert to whom disclosure is made

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will be furnished with a copy of this Stipulation and Protective Order.

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17.

The designation of a document or portion thereof as "confidential

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information" shall be made, whenever possible prior to production, by placing or affixing

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on each page of such material in a manner that will not interfere with its legibility the

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words "confidential information." If such designation is not possible prior to the

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production, the designation must be made in writing by the producing party, and

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replacement documents bearing the "confidential information" designation shall be

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provided as soon as practicable. In the event that documents subject to confidentiality, or

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portions thereof, are inadvertently produced without being designated "confidential

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information", they shall be treated as "confidential information" as of the date of

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designation.

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18.

Counsel for any party retains the right to challenge the designation of a

particular document or portion thereof as "confidential information." The burden of

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Stipulation and [Proposed] Order Requiring CFMG to Produce Medical and Mental Health Records

proof with respect to the propriety or correctness of the designation of any document or
portion thereof as "confidential information" will rest on the designating party. If any
party believes any designation of a document or portion thereof as "confidential
information" is inappropriate, the Parties will meet and confer and attempt to resolve the
issue on an expedited basis. If the Parties are unable to mutually agree on a resolution, the
Parties will seek appropriate Court intervention, including a request for a discovery
conference or call with the Judge, and where appropriate, submit the documents to the
Judge under seal to determine whether and to what extent such documents or portions
thereof should be deemed "confidential information" in accordance with Paragraphs 1
and 3 of this Protective Order. Specifically, the Judge shall determine whether the party
seeking to designate "confidential information" has satisfied the requirements for filing
the document or portion thereof sought to be designated under seal in accordance with
Federal Rule of Civil Procedure 26(c), Local Rule 79-5, and controlling federal case law.
Where requested or permitted by the Court, the Parties may provide the Court with
separate statements containing the challenges by the party opposing the "confidential
information" designation and the justifications by the party designating the documents or
portions thereof as "confidential information."
19.

Either party may challenge the designation of a deposition transcript, or a

portion thereof, as "confidential information", under the procedure set forth in paragraph
15, above.
20.

The parties agree that "confidential information" subject to this Stipulation and

Protective Order shall be used solely for the purpose of this litigation, and in no other litigation,
except as unsealed by the Court or filed in the public record in this action.
21.

Within thirty (30) days after the conclusion of the litigation in this action, all

"confidential information" covered by this Stipulation and Protective Order not received in
evidence shall be returned to the producing party, unless the parties agree that the material may
be destroyed instead of being returned, in which instance counsel shall certify that the documents
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have been destroyed. The parties agree to request that the Clerk of the Court return to the
producing party, or destroy, any sealed material covered by this Stipulation and Protective Order
used as evidence at the end of the litigation, including appeals. This confidentiality agreement
shall survive the discontinuance or other resolution of the action.
22.

Nothing in this Stipulation and Protective Order precludes plaintiffs or defendants

from seeking or obtaining, on an appropriate showing, additional protection with respect to the
confidentiality of documents or portions thereof, or relief from the Stipulation and Protective
Order.
23.

Each person designated in paragraph 13, by receiving and reading a copy of this

Stipulation and Protective Order, agrees to abide by its provisions and to see that its provisions
are known and adhered to by those under his or her supervision or control, and to submit to the
jurisdiction of the Court in the event the Protective Order is breached.
24.

Whenever a deposition or court proceeding involves the disclosure of

"confidential information" covered by this Stipulation and Protective Order, the following
procedures will apply:
a.

The court reporter will be directed to bind those portions of the transcript

containing "confidential information" separately. This request will be made on the record
whenever possible.
b.

The cover of any portion of a deposition or court proceeding transcript that

contains testimony or documentary evidence containing "confidential information" covered by
this Stipulation and Protective Order, will be prominently marked:
CONFIDENTIAL/SUBJECT TO STIPULATION AND PROTECTIVE ORDER.
c.

All portions of deposition or court proceeding transcripts containing

"confidential information" covered by this Stipulation and Protective Order will be sealed and
will not be disseminated except to the persons designated in paragraph 13.

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IT IS SO STIPULATED.

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DATED: December 27, 2017

SHEUERMAN, MARTINI, TABARI,
ZENERE & GARVIN

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By: /s/Marc G. Cowden
Marc G. Cowden

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Attomeys for Defendants CALIFORNIA FORENSIC
MEDICAL GROUP, INC., TAYLOR FITHIAN, M.D.
and ELUID GARCIA, M.D,

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DATED: December 27, 2017

Respectfully submitted,
HADSELL, STORMER & RENICK, LLP

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By: /s/Lori Rifkin
Lori Rifkin

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Attomeys for Plaintiffs

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DATED: December 27, 2017
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OFFICE OF THE COUNTY COUNSEL
COUNTY OF MONTEREY

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By: /s/Michael R. Philivoi
Michael R. Philippi
Deputy County Counsel

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Attomeys for Defendants COUNTY OF MONTEREY,
SHERIFF STEVE BERNAL, CAPTAIN JAMES
BASS, SERGEANT ERIKA KAYE, SERGEANT
CAROL WHITE, DEPUTY N. QUINTERO and
SCOTT MILLER

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Pursuant to Northern District General Order 45(X)(B), I hereby attest that I have on file
approvals for any signatures indicated by a "conformed" signature (/s/) within this efiled
document.

DATED: December 27, 2017

SHEUERMAN, MARTINI, TABARI,
ZENERE & GARVIN
Bv: /s/March G. Cowden
Marc G. Cowden
Attorneys for Defendants CALIFORNIA FORENSIC
MEDICAL GROUP, INC., TAYLOR FITHIAN, M.D.
and ELUID GARCIA, M.D,

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Stipulation and [Proposed] Order Requiring CFMG to Produce Medical and Mental Health Records

[PROPOSED] ORDER
The Court, having reviewed the above Stipulation, and good cause appearing, enters
these Findings and Order as an Order of the Court.
THE COURT FINDS THE FOLLOWING WITH REGARDS TO CERTAIN
MEDICAL, MENTAL HEALTH, AND SUBSTANCE USE DISORDER RECORDS:
1.

Disclosure of the information contained in medical and mental health records,

Quality Assurance reviews, communications, and non-privileged investigation reports generated
by, and in the possession of, CALFORNIA FORENSIC MEDICAL GROUP regarding inmates
who committed suicide and/or attempted at the Monterey County Jail during the period from
January 1, 2010 to present may be relevant to plaintiffs claims;
2.

The public interest will be served by disclosure of said information and the need

for disclosure outweighs the potential injury to the patient, the physician-patient and/or the
psychotherapist-patient relationship, and the treatment services; and
3.

Disclosure of the information contained in said records can be effectively limited

to the Court, plaintiffs' counsel, and defendants' counsel;
GOOD CAUSE APPEARING, IT IS ORDERED THAT:
4.

For inmates at the Monterey County Jail identified in response to plaintiffs'

Request for Production of Documents, Set One, to defendant CALFORNIA FORENSIC
MEDICAL GROUP served on December 22, 2016, defendant CALFORNIA FORENSIC
MEDICAL GROUP shall disclose all relevant "protected health information" governed by
HIPAA, "medical information" governed by CMIA, mental health records governed by LPS, and
substance use disorder records governed by 42 C.F.R. Part 2. Relevant documents are limited to
those documents subject to HIPAA, CMIA, LPS, and/or 42 C.F.R. Part 2 specifically medical
and mental health records, Quality Assurance reviews, communications, and non-privileged
investigation reports generated by, and in the possession of, CALFORNIA FORENSIC
MEDICAL GROUP regarding inmates at the Monterey County Jail who committed suicide

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and/or attempted suicide during the period from January 1, 2010 to present. The information
disclosed shall be used only for the limited purpose of prosecuting or defending this litigation.
5.

Any documents disclosed pursuant to this Order shall be considered "confidential

information." Any person obtaining copies of documents disclosed pursuant to this Order shall
maintain their confidentiality in accordance with state and federal law and this Order, and shall
make no further disclosure except as required by law or by order of this Court.
6.

The Clerk of the Court shall seal from public access such "confidential

information," including any documents that may become part of this Court's records. For
pleadings or reports that contain "confidential information," the filing party shall file under seal
consistent with Civil Local Rule 79-5. Per Civil Local Rule 79-5(d)(2), courtesy copies of
Pleadings containing "confidential information" shall be filed in a sealed envelope prominently
marked with the caption of this case, the identity of the party filing the envelope, and the
notation: "COURTESY [or CHAMBERS] COPY - - DOCUMENTS SUBMITTED UNDER

SEAL."
7.

These confidentiality requirements for "confidential information" shall survive

the termination of this litigation.

IT IS SO ORDERED.

DATED:

,
Beth Labson Freeman
United States District Judge

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