Harry Lifschutz, M.D. v. American Board of Surgery, et al Case No. ED CV 14-1762-FMO (SPx) United States District Court, C.D. California Filed April 24, 2015 Counsel Bruce Mason Cohen, Jonathan F. Golding, Cohen and Lord PC, Los Angeles, CA, John D. Harwell, John D. Harwell Law Office, Manhattan Beach, CA, for Harry Lifschutz. Alan K. Steinbrecher, Douglas R. Painter, Steinbrecher and Span LLP, Los Angeles, CA, for American Board of Surgery, et al. Pym, Sheri, United States Magistrate Judge Proceedings: (In Chambers) Order Granting Defendant's Motion to Compel Production of Documents [26] *1 On March 25, 2015, defendant American Board of Surgery (“ABS”) filed a motion to compel (docket no. 26), asking the court to compel plaintiff Harry Lifschutz, M.D. to produce documents responsive to Request Nos. 4, 12, and 14 of defendants's first set of document requests. Both defendant and plaintiff also seek an award of their fees and costs in bringing or opposing this motion. The parties have fully briefed the motion to compel, including submitting a Joint Stipulation (“JS”), declarations, and exhibits. Defendant also filed a supplemental memorandum. The court previously determined that a hearing on this matter was not necessary and therefore took the hearing off calendar. For the reasons that follow, the court GRANTS defendant's motion to compel but DENIES the request for sanctions. BACKGROUND Defendant ABS is a non-profit organization that provides certification to physicians who meet certain standards of competency and proficiency in the field of surgery. Lewis Decl. ¶ 3. Plaintiff Dr. Lifschutz is a surgeon who was first certified by ABS in 1985. Lewis Decl. ¶ 4; Hanna Decl., Ex. B. He was recertified in 1994 and 2004. Hanna Decl., Ex. B. Under ABS rules, “ABS certification may be subject to revocation at any time the directors determine, in their sole judgment, that a surgeon ‘failed to provide an acceptable level of care [and] competence in the treatment of patients’ or ‘engaged in conduct resulting in a ... limitation of his ... license to practice medicine.’ ” Lewis Decl. ¶ 6; see Complaint, Ex. A at 58-59. On May 25, 2007, the Medical Board of California placed plaintiff on probation beginning June 4, 2007, which was completed April 1, 2011. Complaint, Ex. B. This period of probation was due to allegations of gross negligence in surgeries. Lewis Decl. ¶ 4. New accusations were filed against plaintiff on May 14, 2013, and plaintiff is once again on probation by the Medical Board. Complaint, Ex. B; Lewis Decl. ¶ 4. The Medical Board's accusations against plaintiff included that in treating two patients with pacemakers embedded in infected chest pockets, plaintiff simply washed the pacemakers and returned them to the same infected pockets, and that one of these patients died of sepsis the following day. Lewis Decl. ¶ 7. Defendant ABS revoked plaintiff's certification on January 6, 2008. Lewis Decl. ¶ 4; Hanna Decl., Ex. B at 48. The ABS's decertification of plaintiff was triggered by the Medical Board's actions. Lewis Decl. ¶ 6. In particular, the ABS found the conditions of the Medical Board's probation included monitoring and supervision of plaintiff's practice, and therefore plaintiff's license was less than full and unrestricted. Complaint, Exs. C, D. In letters in January and July 2008, the ABS informed plaintiff of its decision to revoke his surgery certification because his license was not full and unrestricted, and informed him he could apply for certification upon restoration of his full and unrestricted license, which application would entail taking examinations. Id. *2 Although ABS apparently revoked plaintiff's certification in 2008, a hospital where plaintiff worked made routine inquiries into plaintiff's certification on July 24, 2008, July 26, 2010, and July 23, 2012, and on each of these occasions the American Board of Medical Specialties reported plaintiff was still certified by ABS. Hanna Decl. ¶ 7, Ex. A. The hospital's first inquiry that revealed plaintiff is not ABS certified was on November 11, 2014. Hanna Decl. ¶ 8, Ex. B. Even so, in a letter to the ABS in July 2011, plaintiff's attorney noted that the ABS website listed plaintiff as revoked as of January 2008. Complaint, Ex. H. And a responding letter from ABS that same month confirmed that plaintiff's surgery certificate was still revoked, and if he wished to again be certified he would have to complete the full certification process including taking and passing examinations. Complaint, Ex. I. Plaintiff initiated the instant action by filing a Complaint in Riverside Superior Court on July 1, 2014, which defendant subsequently removed to this court. Plaintiff challenges defendant's revocation of his surgery certification, disputing the ABS's finding that the Medical Board in fact limited plaintiff's license to practice and arguing the procedures followed by the ABS were improper. Plaintiff asserts claims for breach of contract, denial of fair procedure, unfair business practices, declaratory relief, and injunctive relief. Plaintiff seeks, inter alia, reinstatement of his ABS certification and damages. On December 2, 2014, defendant served plaintiff with its First Set of Requests for Production of Documents and Things. Compendium, Ex. 2. Plaintiff served his initial responses on January 5, 2015, and amended responses on March 9, 2015. Compendium, Exs. 3, 4. The parties met and conferred regarding discovery disputes in January, February, and March 2015. Compendium, Ex. 5. Remaining at issue are the three document requests at issue here: Requests Nos. 4, 12, and 14. DISCUSSION Defendant moves to compel plaintiff to produce documents responsive to the following requests: Request No. 4: All DOCUMENTS RELATED TO any MALPRACTICE CHARGE from 2000 to the present. Request No. 12: All DOCUMENTS RELATED TO any MEDICAL BOARD complaints and/or accusations (including but not limited to Accusation No. 18-2002-13419 [ ]and Accusation No. 09-2012-222826) filed against YOU by the MEDICAL BOARD at any time, including but not limited to all filings, pleadings, correspondence, evidence, transcripts and written materials submitted or prepared by YOU or by any other person or entity in connection therewith. Request No. 14: All DOCUMENTS RELATED TO the MEDICAL BOARD, including but not limited to any COMMUNICATIONS YOU have had with the MEDICAL BOARD at any time. Plaintiff has objected to each of these requests on the same grounds, namely, that they call for irrelevant information, call for information protected by the attorney-client privilege and work-product doctrine, seek information invading plaintiff's privacy rights, call for disclosure of protected patient health information, and are unduly burdensome. Relevance Rule 26 of the Federal Rules of Civil Procedures provides that parties may obtain discovery regarding any matter that is not privileged and is relevant to the claim or defense of any party. Fed. R. Civ. P. 26(b)(1). “Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action.” Fed. R. Evid. 401. Discovery sought may be relevant even if not admissible at trial so long as the information “appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Relevancy should be “construed ‘liberally and with common sense’ and discovery should be allowed unless the information sought has no conceivable bearing on the case.” Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (quoting Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992)). *3 The three requests at issue all call for information pertaining to any malpractice by plaintiff or claims of malpractice made against plaintiff, as well as any investigation or actions taken by the Medical Board. Plaintiff argues that this information is irrelevant, because the ABS did not revoke his certification based on findings of malpractice. Rather, he argues that the ABS revoked his certification based solely on its finding that the Medical Board's probation terms restricted plaintiff's medical license, and thus what is at issue is what the ABS did and knew in 2008, not whatever other evidence of malpractice it might now uncover. Plaintiff contends his case is limited to reviewing that administrative decision and the procedures followed by the ABS. Plaintiff's argument has some logical appeal. The court does not have the benefit of all the information now known to the parties and that will be known by trial; however, it is possible that plaintiff may succeed in preventing defendant from introducing into evidence some or all of the information it seeks here. But the problem with plaintiff's argument is that the scope of permissible discovery is far broader than that which is admissible at trial, and the information defendant seeks here appears, at a minimum, reasonably calculated to lead to the discovery of admissible evidence, for two main reasons. First, defendant argues that the information sought is relevant to its defense that plaintiff is not a competent surgeon who meets the criteria for certification. JS at 3, 9. Of course, plaintiff maintains that his certification was revoked simply due to his probation (see, e.g., JS at 13), and the letters from ABS tend to support this. Nonetheless, the court cannot say at this juncture that defendant's apparent contention that plaintiff's certification was also revoked because he failed to provide an acceptable level of care and competently treat his patients, as reflected by the incidents underlying the Medical Board's probation decision, is not a legitimate defense. The information sought with Request Nos. 4, 12, and 14 is unquestionably relevant to such a defense. Second, the information sought is plainly relevant to the recertification remedy plaintiff seeks. Plaintiff argues he only seeks to reverse the ABS's decision to revoke his certification in 2008, and is not asking this court to decree that he be granted certification. JS at 6. But this is a distinction without a difference, and is in any event not a fair reading of the complaint. In the complaint plaintiff asks the court to issue a writ of mandate and enter an injunction directing the ABS to reinstate plaintiff's certification and to permit plaintiff to achieve recertification in 2015. Complaint at 19. Even if the discovery defendant seeks is not relevant to its defense of plaintiff's claims that the ABS improperly revoked plaintiff's certification, the discovery would still be relevant to any showing defendant might wish to make that plaintiff's certification should in any event not be reinstated. Indeed, as defendant points out, plaintiff's claims are not just that the ABS erred in revoking plaintiff's certification, but also that the ABS continues to wrongfully refuse to reinstate plaintiff's certification. See Complaint ¶¶ 37, 52, 64. For these reasons, the documents defendant seeks with Requests Nos. 4, 12, and 14 are relevant and discoverable under Rule 26. Private, Privileged, and Protected Information Plaintiff also objects to the requests as seeking information protect from discovery for various reasons. First, although it is not clear that plaintiff stands on this objection, plaintiff objects that disclosure of the information sought would invade plaintiff's own privacy rights. Plaintiff cites no authority to support this objection, but the court assumes the matters before the Medical Board are generally private up to a point, and therefore plaintiff's right to privacy is implicated. *4 The right to privacy is set forth in the California Constitution. Cal. Const. art. I, § 1. But private or confidential information is not absolutely protected from discovery. Instead, courts may balance the need for information against the claimed privacy right. See, e.g., Ragge v. MCA/Universal Studios, 165 F.R.D. 601, 604-05 (C.D. Cal. 1995). In striking this balance, “invasion of the right to privacy must be drawn with narrow specificity and is permitted only to the extent necessary for a fair resolution of the lawsuit.” Cook v. Yellow Freight System, Inc., 132 F.R.D. 548, 552 (E.D. Cal. 1990) (overruled on other grounds) (internal citation omitted). Here, although the information sought is private, it is fairly sought in the context of this litigation. “[A]s plaintiff initiated this lawsuit, his privacy interest is vastly reduced.” Sirota v. Penske Truck Leasing Corp., 2006 WL 708910, at *2 (N.D. Cal. Mar. 17, 2006); accord Guitron v. Wells Fargo Bank, N.A., 2011 WL 4345191, at *2 (N.D. Cal. Sept. 13, 2011). Of course, plaintiff does not waive all his privacy rights by filing a lawsuit, but plaintiff put the information sought here at issue when he filed this case. It is relevant for the reasons discussed above, and on balance the court finds defendant's need for this information outweighs any privacy interest plaintiff may have in it. Plaintiff also objects that the documents sought include patient health information protected from disclosure by federal and state law, including the Health Insurance Portability and Accountability Act (“HIPAA”) and the California Confidentiality of Medical Information Act (“CIMA”). But defendant has made clear it is not seeking such information, and that individual patient information can and should be redacted from responsive documents before production. See JS at 8. Plaintiff's argument that the patients must be given the opportunity to decide how much of their information is redacted is not supported by Binder v. Superior Court, 196 Cal. App. 3d 893, 899-900, 242 Cal. Rptr. 231 (1987), or any other authority of which this court is aware. Redacting individual patient identification information addresses the legal restrictions on disclosure of patient health information. See 45 C.F.R. § 164.514(b) (describing information that should be redacted so health information is not individually identifiable, including names, birthdates, and medical record numbers). Finally, plaintiff objects that the request call for documents containing information protected by the attorney-client privilege and work-product doctrine. Plaintiff asserts the records sought are litigation records possessed by plaintiff's previous attorneys. Undoubtedly, then, there is privileged information among the responsive documents. But responsive documents would also include many that cannot be privileged, such as communications with the Medical Board, findings of the Medical Board, and complaints made by others. As in any case, documents that are entirely privileged may be withheld from production; documents containing privileged information may be redacted; and withheld documents and redacted information should be included on a privilege log. See Fed. R. Civ. P. 26(b)(5); Friends of Hope Valley v. Frederick Co., 268 F.R.D. 643, 650-51 (E.D. Cal. 2010). In sum, although there may be responsive documents containing private or privileged information, this is no barrier to production. Burden Plaintiff tacitly acknowledges that the protected information may be redacted as set forth above, but argues that the need for such redaction, coupled with the volume of the materials sought, makes the requests unduly burdensome. The court disagrees. *5 The court first notes the limitation to Request No. 4 to which defendant has agreed. Request No. 4 as served calls for all documents related to any malpractice charge since 2000, with “malpractice charge” defined to include both formal and informal charges. During the meet and confer process, defendant agreed to narrow Request No. 4 to the following: “all non-privileged documents related to all matters filed since 2000 with any court, the Medical Board or other formal body against Dr. Lifschutz related to his performance of medical related services.” JS at 8. This limitation should eliminate the need for plaintiff to look for informal complaints, and refutes plaintiff's argument that the request could call for thousands of medical records, unless plaintiff has faced far more malpractice charges than this court is aware. Plaintiff argues that since Request No. 4 calls for documents going back to 2000, and Request Nos. 12 and 14 call for all Medical Board documents without time limitation, the production will be voluminous and the burden tremendous. But plaintiff does not quantify the rough number of documents that would be responsive, and it is not evident to the court from the nature of the requests that the volume would be unreasonably large. According to plaintiff, the documents sought are in his previous attorneys' possession. Although he does not stay so, plaintiff may also have some responsive documents in his own files. Either way, this is not a great number of places to look. Further, although the scope of documents sought in terms of time is broad, the subject matter is not. The requests are limited to matters filed with a court or other formal body, and anything having to do with the Medical Board. Even given plaintiff's repeated dealings with the Medical Board, this still appears to be a fairly limited set of documents. Moreover, the relevance of such documents outweighs the burden of their production. The court acknowledges that the burden to separate and either withhold or redact privileged information and patient health information may be significant. But the nature of this case filed by plaintiff puts at issue documents that may contain protected information that must be redacted, and thus plaintiff must assume this burden as a cost of bringing this case. In light of the relevance of the information sought, the burden and expense to plaintiff of redacting and producing responsive documents does not outweigh their likely benefit to defendant. See Fed. R. Civ. P. 26(b)(2)(C)(iii). Sanctions Rule 37(a)(5) provides that the prevailing party on a discovery motion is entitled to an award of its reasonable expenses incurred in bringing or opposing the motion, including attorney's fees, except no payment should be ordered if: (1) the motion was filed before the moving party made a good faith effort to resolve the dispute; (2) the losing party's position was substantially justified; or (3) other circumstances make award of expenses unjust. Fed. R. Civ. P. 37(a)(5). Defendant is the prevailing party. It is a close question as to whether plaintiff's position was substantially justified, as the court disagrees with each of plaintiff's contentions, and in particular with what appears to be his chief contention, that the requests call for irrelevant documents. Nonetheless, as discussed above, the court recognizes the logical appeal of plaintiff's argument, although it is misplaced in the discovery context and relies on a strained reading of the complaint. Given plaintiff's basis for withholding the documents sought, the court finds an award of expenses would not be just here. CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that Defendant's Motion to Compel the Production of Documents to First Set of Requets for Production (docket no. 26) is GRANTED as set forth above and as follows: *6 1. On or before May 15, 2015, or such other date as agreed by the parties, plaintiff shall produce to defendant all documents responsive to Request No. 4 (as modified as set forth above), Request No. 12, and Request No. 14, with protected information redacted as needed; and 2. The request for sanctions is denied.