Cnty. of L. A. v. Superior Court of Orange Cnty.

Citation280 Cal.Rptr.3d 85,65 Cal.App.5th 621
Decision Date15 June 2021
Docket NumberD077794, D077795
CourtCalifornia Court of Appeals
Parties COUNTY OF LOS ANGELES, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent; Johnson & Johnson et al., Real Parties in Interest. County of Alameda, Petitioner, v. The Superior Court of Orange County, Respondent; Johnson & Johnson et al., Real Parties in Interest.

Mary C. Wickham and Rodrigo A. Castro-Silva, County Counsel, Robert E. Ragland, Scott Kuhn, Andrea Ross, Tracy Hughes, Deputies County Counsel; Bradley Bernstein Sands and Erin B. Bernstein for Petitioner County of Los Angeles.

Donna R. Ziegler, County Counsel, Kathleen A. Pacheco, Raymond J. Leung, Deputies County Counsel, for Petitioner County of Alameda.

O'Melveny & Myers, Michael G. Yoder, Amy J. Laurendeau, Newport Beach, Charles C. Lifland, Sabrina H. Strong, Amy R. Lucas, Jonathan P. Schneller, Los Angeles, for Real Parties in Interest Johnson & Johnson et al.

AARON, J.

I.INTRODUCTION

In the lawsuit underlying these consolidated writ proceedings, 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, and the Oakland City Attorney, filed an action against defendants—various pharmaceutical companies involved in the manufacture, marketing, distribution, and sale of prescription opioid medications. (People v. Purdue Pharma (Super Ct. Orange County, 2014, No. 30-2014-00725287-CU-BT-CXC) ("Underlying Action").)

In the operative sixth amended complaint, the People allege that 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 the number of opioid prescriptions, the use and abuse of opioids

, and opioid-related deaths. The operative complaint contains causes of action for violations of the False Advertising Law ( Bus. & Prof. Code, § 17500 et seq. ), the Unfair Competition Law ( Bus & Prof. Code, § 17200 et seq. ), and the public nuisance statutes ( Civ. Code, §§ 3479, 3480 ) and seeks declaratory and injunctive relief, as well as civil penalties.

In Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, 273 Cal.Rptr.3d 889 ( Board of Registered Nursing ), this court recently considered the propriety of several discovery orders in the Underlying Action that compelled four nonparty state agencies to produce to defendants various categories of documents related to opioids.1 ( Id. at p. 1021, 273 Cal.Rptr.3d 889.) Of relevance to these writ proceedings, the Board of Registered Nursing court considered the legality of a superior court order requiring the production of prescription records contained in the state's Controlled Substance Utilization Review and Evaluation System (CURES) database. ( Id. at p. 1022, 273 Cal.Rptr.3d 889.) The order required the Department of Justice to produce CURES prescription records for individually identified patients to an outside vendor. The vendor would then replace patient names with unique identifiers, cross-reference the records with other datasets in the vendor's possession, and provide the linked deidentified datasets to the defendants. ( Id. at p. 1045, 273 Cal.Rptr.3d 889.)2

In a writ proceeding challenging the propriety of the order, after observing that the production of identified patient data to an outside vendor for deidentification "would ... implicate the privacy rights of the patients" ( Board of Registered Nursing, supra , 59 Cal.App.5th at p. 1045, 273 Cal.Rptr.3d 889 ), the Board of Registered Nursing court concluded that defendants "ha[d] not justified such a sweeping production of personal and private medical data" under the law governing nonparty discovery. ( Id. at p. 1038, 273 Cal.Rptr.3d 889, citing Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223, 61 Cal.Rptr.2d 567 ( Calcor ).) Accordingly, the Board of Registered Nursing court held that the superior court abused its discretion in ordering production of the CURES records.

The present writ proceedings pertain to another discovery dispute in the Underlying Action. The dispute arose after several of the defendants in the Underlying Action ("Johnson & Johnson defendants"),3 served subpoenas on two nonparty counties, petitioners County of Los Angeles and County of Alameda, seeking records of patients in various county programs, including individual prescription data and individual patient records related to substance abuse treatment.

In its petition, the County of Los Angeles describes the documents at issue as including "detailed data for over one million dispensed medications, along with pharmacy and prescriber identifiers, as well as over 1.7 million associated encounters, including diagnoses, procedures, medical service, treating provider and attending (billing) provider" (italics omitted) and "records for 5,867 individuals and over 65,000 associated encounters, including diagnoses, procedures, and other clinical information," pertaining to "patients diagnosed with or treated for opioid use disorder, opioid addiction, or overdose at LA County facilities." In its petition, the County of Alameda describes the documents as including "patient-level data related to substance use treatment, pharmacy records, encounter data, and other sensitive information."4

After petitioners and the Johnson & Johnson defendants engaged in various informal and formal means to attempt to resolve the dispute, the superior court issued a discovery order granting the Johnson & Johnson defendants' motions to compel production of the records. As with the CURES data at issue in Board of Registered Nursing , the court's order directed petitioners to provide the records on a personally "identified" basis to a vendor that would "de-identify [the] data and make it cross-referenceable against other de-identified data processed by [the vendor] in this case." The court's order specifies that "[o]nly fully de-identified data will be provided by [the vendor] to defendants (or any other party in this case)."

Each petitioner filed a petition for writ of mandate in this court, seeking vacatur of the superior court's order compelling production of the documents. The petitioners claim that the discovery order implicates the state constitutional privacy rights of the individuals whose records the superior court ordered produced, among other arguments. We consolidated the petitions and issued an order to show cause.

In determining whether a discovery order would violate state constitutional privacy rights, we apply the framework established in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633 ( Hill ). (See Williams v. Superior Court (2017) 3 Cal.5th 531, 552, 556, 220 Cal.Rptr.3d 472, 398 P.3d 69 ( Williams ) [stating that Hill applies to a discovery dispute that "requires a court to reconcile asserted privacy interests with competing claims for access"].) In applying the Hill test, "[t]he party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious." ( Williams, supra , at p. 552, 220 Cal.Rptr.3d 472, 398 P.3d 69, citing Hill, supra , at pp. 35–37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) "The party seeking information may raise in response whatever legitimate and important countervailing interests [the] disclosure serves," and "[a] court must then balance these competing considerations." ( Williams, supra , at p. 552, 220 Cal.Rptr.3d 472, 398 P.3d 69, citing Hill, supra , at pp. 37–40, 26 Cal.Rptr.2d 834, 865 P.2d 633.)

As we explain in part III, post , we conclude that petitioners have established that the superior court's order threatens a serious intrusion into the privacy interests of the patients whose records are at issue. In considering whether the Johnson & Johnson defendants have "demonstrated, under the heightened standard applicable to constitutional rights of privacy, a practical necessity for discovery [of the records]," ( John B. v. Superior Court (2006) 38 Cal.4th 1177, 1201, 45 Cal.Rptr.3d 316, 137 P.3d 153 ), we observe that the Johnson & Johnson defendants seek to obtain opioid prescription data similar to the CURES data at issue in Board of Registered Nursing , as well as substance abuse treatment records, which threatens to cause an even more substantial invasion of privacy rights. Yet, the Johnson & Johnson defendants fail to provide a justification for the discovery of such records that differs in any material way from that which this court found insufficient in Board of Registered Nursing to justify discovery under the broad Calcor standard applicable to nonparty discovery requests generally. (See Board of Registered Nursing, supra , 59 Cal.App.5th at p. 1039, 273 Cal.Rptr.3d 889 [" ‘Although the scope of civil discovery is broad, it is not limitless,’ " quoting Calcor, supra , 53 Cal.App.4th at p. 223, 61 Cal.Rptr.2d 567 ].) Therefore, and for reasons we explain more fully in part III, post , we conclude that the Johnson & Johnson defendants have failed to demonstrate that their interests in obtaining "such a vast production of medical information" ( Board of Registered Nursing, supra , at p. 1046, 273 Cal.Rptr.3d 889 ) outweigh the significant privacy interests that the nonparty petitioners have identified. (See Williams, supra , 3 Cal.5th at p. 556, 220 Cal.Rptr.3d 472, 398 P.3d 69 [where "a discovery request seeks information implicating the constitutional right of privacy," the party seeking discovery must make a showing of need greater than that needed for discovery requests generally].)

Accordingly, we grant petitioners' writ petitions and direct the superior court to vacate its order...

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