Ali v. eBay, Inc.

Filing 46

ORDER REGARDING JULY 2, 2018 DISCOVERY DISPUTE (In re: ECF Nos. 41 , 42 , 44 and 45 ) Signed by Magistrate Judge Susan van Keulen on 7/10/2018. (ofr, COURT STAFF) (Filed on 7/10/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SYED NAZIM ALI,

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Plaintiff,

Re: Dkt. Nos. 41, 42, 44, 45

EBAY, INC.,

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United States District Court
Northern District of California

ORDER REGARDING JULY 2, 2018,
DISCOVERY DISPUTE

v.

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Case No. 17-cv-06589-BLF (SVK)

Defendant.

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Defendant eBay, Inc. (“eBay”) submitted two discovery letters on July 2, 2018, regarding

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separate discovery disputes with Plaintiff Syed Nazim Ali (“Ali”). ECF 41, 42. On July 4, 2018,

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Ali responded to those letters. ECF 44, 45. eBay’s letters raise two issues: (1) Ali’s revocation of

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his consent to the release of his medical records after eBay prepared subpoenas to Ali’s healthcare

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providers, and (2) Ali’s cancellation of his deposition and request to delay his deposition due to

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his high blood pressure. ECF 41, 42. In the underlying case, Ali sues eBay based on claims

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arising from Ali’s work as a contract employee. ECF 1 at Ex. A. Ali seeks damages from eBay,

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alleging disability, age, national origin, race, and religious discrimination as well as failure to

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accommodate, retaliation, and intentional infliction of emotional distress. Id. Ali further alleges

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that he suffers both physical and emotional injuries because of these events. Id.

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Pursuant to Civil Local Rule 7-1(b), the Court finds this matter suitable for disposition

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without oral argument and rules as follows:

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I.

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Plaintiff Ali’s Medical Records
eBay seeks an order to compel the production of Ali’s medical records. See ECF 41. Ali

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originally signed a consent form for the release of his medical records. Id. at Ex. A. But after

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eBay provided Ali with copies of the subpoenas, Ali withdrew his consent. Id. at 6. Ali argues

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that eBay did not disclose the scope of the requests when first obtaining his consent, and Ali

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objects to the subpoenas on numerous grounds, including that they are overbroad and infringe on

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his right to privacy under the Privacy Act and the Health Insurance Portability and Accountability

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Act (“HIPPAA”). ECF 44 at 2. According to Ali, the Court should limit the disclosure of his

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medical records to (1) August 2016, the time of his termination at eBay, and (2) the physical

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nature of his disability. Id. at 2.

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In general, Ali has a right to privacy over his medical records. Anderson v. Clawson, 2014

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WL 3725856, at *2 (N.D. Cal. July 25, 2014) (citation omitted). But a person waives their right to

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privacy by bringing claims concerning physical or mental health injuries and seeking damages for

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those injuries. See Enwere v. Terman Assocs., L.P., 2008 WL 5146617, at *2 (N.D. Cal. Dec. 4,
2008). Such a waiver is limited and only applies to private information relevant to the lawsuit. Id.

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United States District Court
Northern District of California

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Although Ali also cites the Privacy Act, ECF 44 at 2, the Privacy Act only precludes the

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disclosure of certain kinds of personal information by federal agencies and does not protect

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information from disclosure in litigation pursuant to a valid discovery request. See e.g. Laxalt v.

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McClatchy, 809 F.2d 885, 889 (D.C.Cir.1987).

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Here, Ali places both his physical and mental health at issue. See ECF 1 at Ex. A. First,

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Ali’s claims of disability discrimination, failure to accommodate, and retaliation concern his

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physical health, in particular the knee, joint, back problems that cause his disability. Id. at Ex. A,

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¶ 19. Second, Ali’s intentional emotional distress claim and decision to seek damages for

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emotional distress resulting from his other claims puts his mental and emotional health at issue.

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Id. at ¶¶ 66, 74, 78–81. In particular, Ali alleges that because of eBay’s retaliation and wrongful

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termination, he “suffer[s] physical and emotional injuries including nightmares, nervousness,

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humiliation, depression, anguish, embarrassment, fright, shock, pain, discomfort, fatigue, and

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anxiety.” Id. at ¶ 66. By these allegations Ali waives his right to privacy in his mental health

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records.

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Ali appears to acknowledge the relevance of both his physical and mental health by

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offering to have his doctors provide a letter confirming plaintiff’s disability and emotional distress

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as well as the dates and nature of Ali’s treatment. ECF 44 at 4. But a letter of unknown origin,

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signed by treatment providers selected by Plaintiff, is not sufficient. eBay is entitled to examine
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Ali’s medical records and healthcare providers regarding the physical and mental health

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allegations in the Complaint. Further, to the extent Ali alleges that eBay is the cause of his mental

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distress, eBay is entitled to examine records and providers from an earlier time frame to test the

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allegations of causation. eBay’s access to Ali’s historical medical information is not, however,

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unlimited and should be bounded by a reasonable time period.
Accordingly, the Court orders Ali to execute a release for each of his medical providers for

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any alleged disability; medical condition; emotional, mental, physical or psychological damage;

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distress; or injury for which treatment has been sought since August 8, 2013. Ali shall provide

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eBay with a complete list of his medical providers since August 8, 2013, and their contact
information. Ali’s medical providers, including Community Psychiatry and Drs. Kisuk Cho,

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United States District Court
Northern District of California

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Catherine Reed, Charles Kaspar, Raymond Lorenzato, Smith, and Shaid, shall release his medical

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records to counsel for eBay.

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II.

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Plaintiff Ali’s Deposition
eBay’s second discovery letter raises issues regarding Ali’s deposition. See ECF 42. eBay

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originally noticed Ali’s deposition for June 14, 2018, but Ali requested a continuance due to his

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high blood pressure. Id. at 2. Ali contends that the stress of this case continues to keep his blood

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pressure at dangerous levels, and as a result, a written deposition under Fed. R. Civ. P. 31 is more

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appropriate. ECF 45 at 2. One of Ali’s physicians has instructed that any oral deposition should

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be rescheduled if Ali’s blood pressure remains higher than 160/90 during the deposition. Id. at Ex.

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1. As a result, the parties have not agreed on a new date for Ali’s deposition. eBay seeks an order

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(1) setting a date for Ali’s deposition, (2) requiring Ali to pay the costs of any additional

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deposition sessions due to delays caused by his health condition, and (3) allowing the parties to

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conduct the deposition at the Courthouse. ECF 42 at 4–6.

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Parties have a justified desire to take the oral deposition of a key witness rather than rely

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on a written deposition. See Hines v. California Pub. Utilities Comm'n, 2009 WL 3621878, at *1

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(N.D. Cal. Oct. 29, 2009); Sec. & Exch. Comm'n v. Wu, 2016 WL 4943000, at *4 (N.D. Cal. Sept.

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16, 2016) (“A written deposition is no substitute for an oral deposition.”). Indeed, oral depositions

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have several advantages over written depositions, including the opportunity for follow-up
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questions. Ali initiated this litigation, and eBay’s insistence on an oral deposition is reasonable.

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However, Ali has identified a medical condition that should be taken into consideration in

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arranging the deposition. Unfortunately, the parties have been unable to reach such an

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accommodation on their own.

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Accordingly, Ali must appear for two (2) half-day deposition sessions. Each session shall

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consist of 3.5 hours of recorded time. Plaintiff may take breaks as needed, but such breaks are not

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to exceed a total of 90 minutes in each half-day session. Both sessions shall take place no later

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July 31, 2018. The Court orders these two sessions, totaling seven (7) hours, without prejudice to

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eBay to seek additional deposition time upon a showing of good cause. The Court denies eBay’s
requests for costs incurred during additional deposition days and for an order to conduct to the

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United States District Court
Northern District of California

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deposition at the Courthouse, without prejudice to renew those requests upon a showing of good

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cause.

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III.

Sanctions

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eBay seeks sanctions in connection with both discovery disputes. See ECF 41, 42. The

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Court DENIES those requests without prejudice. The parties are reminded that the standards of

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professional conduct and Civil Local Rule 11-4 require them to “[p]ractice with the honesty, care,

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and decorum required for the fair and efficient administration of justice.” The parties are

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encouraged to maintain a calm, civil environment throughout Ali’s deposition to help control Ali’s

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blood pressure and to ensure an efficient use of both parties’ time. Inappropriate conduct during

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discovery or depositions by either party will lead to sanctions in an amount and manner to be

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determined by the Court, including and up to case dispositive sanctions. See Fed. R. Civ. P.

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37(b)(2); Valley Engineers Inc. v. Elec. Eng'g Co., 158 F.3d 1051, 1058 (9 th Cir. 1998) (“Where a

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party so damages the integrity of the discovery process that there can never be assurance of

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proceeding on the true facts, a case dispositive sanction may be appropriate.”).

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IV.

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Conclusion
The Court’s Order is summarized as follows:
1. The Court GRANTS eBay’s motion to compel the production of Ali’s medical records.
Ali must execute a release for each of his medical providers for any alleged disability;
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medical condition; emotional, mental, physical or psychological damage; distress; or injury

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for which treatment has been sought since August 8, 2013. Ali shall provide eBay with a

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complete list of his medical providers since August 8, 2013, and their contact information.

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Ali’s medical providers, including Community Psychiatry and Drs. Kisuk Cho, Catherine

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Reed, Charles Kaspar, Raymond Lorenzato, Smith, and Shaid, shall release his medical

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records to counsel for eBay.

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2. The Court GRANTS eBay’s motion to compel Ali to appear for a deposition. Ali must
appear for two (2) half-day deposition sessions. Each session shall consist of 3.5 hours of

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recorded time. Plaintiff may take breaks as needed, but such breaks are not to exceed a

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total of 90 minutes in each half-day session. Both sessions shall take place no later July

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United States District Court
Northern District of California

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31, 2018. The Court orders these two sessions, totaling seven (7) hours, without prejudice

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to eBay to seek additional deposition time upon a showing of good cause. The Court

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denies eBay’s requests for costs incurred during additional deposition days and for an

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order to conduct to the deposition at the Courthouse, without prejudice to renew those

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requests upon a showing of good cause.

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3. The Court DENIES eBay’s request for sanctions without prejudice.
SO ORDERED.
Dated: July 10, 2018

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SUSAN VAN KEULEN
United States Magistrate Judge

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