Bd. of Registered Nursing v. Superior Court of Orange Cnty., D077440

• Court: California Court of Appeals
• Writing for the Court: GUERRERO, J.
• Citation: 273 Cal.Rptr.3d 889,59 Cal.App.5th 1011
• Decision Date: 15 January 2021
• Docket Number: D077443,D077440,D077441,D077442
• Parties: BOARD OF REGISTERED NURSING, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent, Johnson & Johnson et al., Real Parties in Interest. California State Board of Pharmacy, Petitioner, v. The Superior Court of Orange County, Respondent, Johnson & Johnson et al., Real Parties in Interest. Medical Board of California, Petitioner, v. The Superior Court of Orange County, Respondent, Johnson & Johnson et al., Real Parties in Interest. Department of Justice, Petitioner, v. The Superior Court of Orange County, Respondent, Teva Pharmaceuticals USA, Inc. et al., Real Parties in Interest.

59 Cal.App.5th 1011
273 Cal.Rptr.3d 889

BOARD OF REGISTERED NURSING, Petitioner,
v.
The SUPERIOR COURT OF ORANGE COUNTY, Respondent,

Johnson & Johnson et al., Real Parties in Interest.

California State Board of Pharmacy, Petitioner,
v.
The Superior Court of Orange County, Respondent,

Johnson & Johnson et al., Real Parties in Interest.

Medical Board of California, Petitioner,
v.
The Superior Court of Orange County, Respondent,

Johnson & Johnson et al., Real Parties in Interest.

Department of Justice, Petitioner,
v.
The Superior Court of Orange County, Respondent,

Teva Pharmaceuticals USA, Inc. et al., Real Parties in Interest.

D077440
D077441
D077442
D077443

Court of Appeal, Fourth District, Division 1, California.

Filed January 15, 2021

Xavier Becerra, Attorney General, Carl W. Sonne, Assistant Attorney General, Gregory J. Salute, Molly E. Selway, and Nicole R. Trama, Deputy Attorneys General, for Petitioners Board of Registered Nursing and California State Board of Pharmacy.

Xavier Becerra, Attorney General, Gloria L. Castro, Assistant Attorney General, Alexandra M. Alvarez, Matthew M. Davis, Rosemary F. Luzon, and Tessa L. Heunis, Deputy Attorneys General, for Petitioner Medical Board of California.

Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Anthony R. Hakl, and Natasha Saggar Sheth, Deputy Attorneys General, for Petitioner Department of Justice.

No appearance for Respondent.

O'Melveny & Myers, Michael G. Yoder, Newport Beach, Amy J. Laurendeau, Charles C. Lifland, Sabrina H. Strong, Amy R. Lucas, and Jonathan P. Schneller, Los Angeles, for Real Parties in Interest Johnson & Johnson, Janssen Pharmaceuticals, Inc., Ortho-McNeil-Janssen Pharmaceuticals, Inc., and Janssen Pharmaceutica, Inc.

Hueston Hennigan, Marshall A. Camp, Moez M. Kaba, Padraic W. Foran, Los Angeles, John C. Hueston, Newport Beach; Arnold & Porter Kaye Scholer, Sean O. Morris and Neda Hajian, Los Angeles, for Real Parties in Interest Endo Health Solutions Inc. and Endo Pharmaceuticals Inc.

Morgan, Lewis & Bockius and Collie F. James IV, Costa Mesa, for Real Parties in Interest Cephalon, Inc., Teva Pharmaceuticals USA, Inc., Actavis LLC, Actavis Pharma, Inc., and Watson Laboratories, Inc.

Kirkland & Ellis and Zachary Byer, Los Angeles, for Real Parties in Interest Allergan PLC and Allergan Finance, LLC.

No appearance for Real Party in Interest the People of the State of California.

GUERRERO, J.

59 Cal.App.5th 1021

The People of the State of California, by and through the Santa Clara County Counsel, the Orange County District Attorney, the Los Angeles County Counsel,

273 Cal.Rptr.3d 894

and the Oakland City Attorney, filed suit against various pharmaceutical companies involved in the manufacture, marketing, distribution, and sale of prescription opioid medications. The People allege the defendants made false and misleading statements as part of a deceptive marketing scheme designed to minimize the risks of opioid medications and inflate their benefits. This scheme, the People allege, caused a public health crisis in California by dramatically increasing opioid prescriptions, opioid use, opioid abuse, and opioid-related deaths. In their suit, the People allege causes of action for violations of the False Advertising Law ( Bus. & Prof. Code, § 17500 et seq. ), the Unfair Competition Law (id. , § 17200 et seq.), and the public nuisance statutes ( Civ. Code, §§ 3479 - 3480 ). The People seek declaratory and injunctive relief, as well as civil penalties.

After several years of litigation, the defendants served business record subpoenas on four nonparty state agencies: the California State Board of Registered Nursing (Nursing Board), the California State Board of Pharmacy (Pharmacy Board), the Medical Board of California (Medical Board), and the California Department of Justice (DOJ). The Nursing Board, the Pharmacy Board, and the Medical Board are

59 Cal.App.5th 1022

responsible for licensing, regulation, enforcement, and disciplinary actions in their respective professions. The DOJ, headed by the Attorney General, is responsible for civil and criminal investigations of statewide interest, regulatory oversight, and related recordkeeping, among many other areas of concern.

The subpoenas demanded the production of documents in various extremely broad categories related to illicit drugs, opioid medications, opioid prescriptions, opioid overdoses, and opioid-related complaints and disciplinary proceedings. A representative request, to the DOJ, essentially sought all documents and communications related to the use and abuse of legal and illegal drugs in California, without limitation, over a period of 30 years.¹

The Pharmacy Board, the Medical Board, and the DOJ served objections to the subpoenas. After a meet and confer process, defendants filed motions to compel production of a subset of documents covered by the subpoenas. The Nursing Board, after a similar meet and confer process, filed a motion for a protective order seeking relief from the production obligations of its subpoena.

After further litigation, which is recounted below, the trial court ordered the state agencies to produce documents in response to the subpoenas. The documents include (1) administrative records of disciplinary proceedings against doctors, nurses, pharmacists, and others related to opioid prescriptions; (2) investigatory files of complaints against doctors, nurses, pharmacists, and others related to opioid prescriptions; (3) coroner's reports of opioid-related deaths that may have involved gross negligence or incompetence by a physician or surgeon ( Bus. & Prof. Code, § 802.5 ); and (4) hundreds of millions of prescription records for opioids, anti-depressants, and certain other drugs

273 Cal.Rptr.3d 895

in California, as reflected in the Controlled Substance Utilization Review and Evaluation System (CURES) database maintained by the DOJ ( Health & Saf. Code, § 11165 ). The trial court allowed the redaction of some personal identifying information contained in these documents and records.

In these consolidated proceedings, the state agencies challenge the trial court's orders compelling production of documents. The Pharmacy Board and

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the Medical Board argue, as a threshold matter, that the motions to compel should have been denied as untimely. ( Code Civ. Proc., § 2025.480, subd. (b).) Additionally, the state agencies all argue that the motions to compel should have been denied because defendants did not provide notice to consumers whose personal information was sought by the subpoenas. (Id. , §§ 1985.3, 2020.410, subd. (d).) Regarding the requests themselves, the state agencies argue that the documents sought do not meet the standards for nonparty discovery (id. , § 2020.010 et seq.), they are protected by the constitutional right to privacy ( Cal. Const., art. I, § 1 ), they are protected by the statutory official information privilege and the related deliberative process privilege ( Evid. Code, § 1040 ), or they are otherwise exempted by statute from discovery.

We conclude the motions to compel against the Pharmacy Board and Medical Board were untimely, and the defendants were required to serve consumer notices on at least the doctors, nurses, pharmacists, and other health care professionals whose identities would be disclosed in the administrative records, investigatory files, and coroner's reports. We further conclude that the requests for complete administrative records and investigatory files, as well as millions of CURES database records, were overbroad and not reasonably calculated to lead to the discovery of admissible evidence. The requests for complete administrative records and investigatory files also ran afoul of the constitutional right to privacy and the statutory official information and deliberative process privileges. The trial court abused its discretion in finding otherwise. In light of these conclusions, we direct the trial court to vacate its orders compelling production of documents and enter new orders denying the motions to compel and, for the Nursing Board, granting its motion for a protective order.

FACTUAL AND PROCEDURAL BACKGROUND

As noted, the operative complaint filed by the People alleges a deceptive marketing scheme by the named pharmaceutical companies to encourage the prescription—and overprescription—of opioid pain medication. The People allege, "Defendants' false and misleading statements deceived doctors and patients about the risks and benefits of opioids and convinced them that opioids were not only appropriate but necessary for the treatment of chronic pain. Defendants targeted susceptible prescribers like family doctors as well as vulnerable patient populations like the elderly and veterans. And they tainted the sources that doctors and patients relied upon for guidance, including treatment guidelines, continuing medical education programs, medical conferences and seminars, and scientific articles. As a result, Defendants successfully transformed the way doctors treat chronic pain, opening the floodgates of opioid prescribing and use. Opioids...