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, L.P. (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
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.
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), 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, 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),
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."
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.
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 ["`Although the scope of civil discovery is broad, it is not limitless,'" (quoting Calcor, supra, 53 Cal.App.4th at p. 223)].) 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) outweigh the significant privacy interests that the nonparty petitioners have identified. (See Williams, supra, 3 Cal.5th at p. 556 [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].)
FACTUAL AND PROCEDURAL BACKGROUND
A. The operative complaint
In June 2018, the People filed the operative complaint against defendants. According to the operative complaint, the defendants engaged in wide ranging illegal misconduct designed to promote the use of opioids. The People alleged that defendants targeted susceptible prescribers and vulnerable patient populations with false and misleading statements about opioids. Specifically, according to the People, the defendants falsely downplayed, and failed to disclose, the known risks of long-term opioid use. Defendants also "[g]rossly [o]verstated" the benefits of chronic opioid therapy. The operative complaint alleges that defendants carried on this "marketing scheme" through varied means, including the use of direct marketing of branded opioids and the use of "seemingly independent third parties." The People further allege that defendants' efforts led to a huge increase in the number of opioid prescriptions and the use of such drugs, which has resulted in a public health crisis that includes high rates of opioid abuse and addiction and ancillary social costs.
The operative complaint relies on such allegations to state causes of action for false advertising (Bus. & Prof. Code, § 17500), unfair competition (Bus. & Prof. Code, § 17200), and public nuisance. (Civ. Code, §§ 3479, 3480.)
The People seek civil penalties for each act of false advertising and unfair competition and an order requiring defendants to abate the public nuisance. In addition, the People seek declaratory and injunctive relief.
B. The underlying discovery dispute
In December 2018, the Johnson & Johnson defendants
The Johnson & Johnson defendants served similar subpoenas on various County of Alameda agencies.
The County of Los Angeles identified two sets of responsive data: (1) opioid prescription and medical encounter data from publicly funded healthcare centers tracked by the County of Los Angeles Department of Health Services's Online Real-time Centralized Health Information Database (ORCHID); and (2) patient-level claims data measuring substance-abuse treatment recovery outcomes tracked by the Los Angeles County Participant Reporting System (LACPRS). The County of Alameda identified data for patients that the county treats through its implementation of the Medi-Cal program "including prescription data, claims data, [and] encounter data."
After engaging in various informal discovery efforts, the Johnson & Johnson defendants filed motions to compel the petitioners to provide the requested data on an identified basis
C. The discovery referee's reports and recommendations
After the parties submitted briefing and a discovery referee held several hearings on the discovery issues presented in these writ proceedings as well as numerous other discovery disputes, the discovery referee issued two reports and recommendations to grant the Johnson & Johnson defendants' motions to compel. As to the County of Los Angeles, with respect to the ORCHID data, the referee agreed that the Protective Order "in practice, requires that the County produce its data to Rawlings so that Rawlings can de-identify the data and make it cross-walkable."
D. Petitioners' objections to the discovery referee's report and recommendations
Petitioners each filed objections to the discovery referee's report and recommendations. Among other arguments, the County of Los Angeles argued that "[t]here is no basis, legal or factual, to order the reproduction of identified patient data," and that "[t]he Protective Order does not contemplate, let alone require, that any entity must contract with and produce identified heath data to a third-party vendor, and such a requirement would violate the Protective Order as well as numerous privacy law protections." Specifically, the County of Los Angeles contended that "to produce identifiable protected health information to any party or third party would violate ... the constitutional rights of third parties," among other laws.
In its objection, the County of Alameda raised numerous arguments, including those rooted in the privacy rights of the patients whose medical
E. The Johnson & Johnson defendants' responses
The Johnson & Johnson defendants filed responses to the petitioners' objections. With respect to the County of Los Angeles's objections, the Johnson & Johnson defendants noted that the County had "mention[ed]— again, without explanation—`the constitutional rights of third parties.'" The Johnson & Johnson defendants argued that the superior court had ruled, with respect to previous discovery issues in the case, that deidentification and the Protective Order would suffice to protect constitutional privacy rights and that "`[t]he limited invasion being permitted here is justified due to the relevance of the discovery to Plaintiffs['] claims.'" The Johnson & Johnson defendants argued that the court should reach the same conclusion with respect to the County of Los Angeles's production.
In their opposition to the County of Alameda's objections, the Johnson & Johnson defendants argued that the Protective Order and "precautions taken by the parties and third parties operating under it ensure that privacy laws will be fully complied with while providing the parties access to claims data critical to testing Plaintiff[s'] theory of the case."
F. The superior court's order granting the Johnson & Johnson defendants' motions to compel
After a hearing, the superior court entered an order on July 6, 2020 granting the Johnson & Johnson defendants' motions to compel. The court ordered the County of Los Angeles "to provide to Rawlings the identified data for the County's previous ORCHID production to defendants, so that Rawlings can de-identify all such data and make it cross-referenceable against other de-identified data processed by Rawlings in this case." The court also ordered the County of Los Angeles to produce the LACPRS data to Rawlings for deidentification. The court specified that "[o]nly fully de-identified data will be provided by Rawlings to defendants (or any other party
The superior court also directed the Johnson & Johnson defendants to modify the Protective Order to make Rawlings subject to the Protective Order; to ensure that Rawlings expressly consented to such modification and agreed to act in compliance with various provisions of federal law; and to provide that all information produced by a nonparty would be subject to the Protective Order.
G. Writ proceedings in this court
In August 2020, petitioners filed petitions for writ of mandate
After soliciting and receiving informal responses from the Johnson & Johnson defendants with respect to each petition, this court summarily denied the petitions.
The Supreme Court granted petitioners' petitions for review and transferred the matters to this court with directions to vacate our orders denying the petitions for writ of mandate and to issue orders directing respondent superior court to show cause why the relief sought in the petitions should not be granted. We acted in accordance with the Supreme Court's directions and consolidating the proceedings.
The Johnson & Johnson defendants filed a return by way of answer/demurrer and a request that we take judicial notice of: (1) the June 8, 2018 operative sixth amended complaint in the Underlying Action; (2) the Protective Order as revised pursuant to the July 6 order, and (3) the February 26, 2020 hearing transcript of the discovery proceedings that led to the writ proceedings in this court in Board of Registered Nursing.
Petitioners claim that the superior court's July 6 discovery order threatens to intrude on the state constitutional privacy rights (Cal. Const., art. I, § 1) of the patients whose medical information would be affected by the order.
A. Preliminary matters
Before considering the merits of petitioners' claim, we address three preliminary matters presented by their writ petitions.
First, although not specifically addressed in the briefing in these writ proceedings, it is well established that, under appropriate circumstances, a litigant "may assert the privacy rights of third parties." (Tien v. Superior Court (2006) 139 Cal.App.4th 528, 539, fn. 7 [43 Cal.Rptr.3d 121].) One such circumstance is where the litigant's interests align with those of the third party and the third party's "rights are `likely to be diluted or adversely affected' unless [the litigant] is permitted to assert their rights on their behalf." (Lewis v. Superior Court (2017) 3 Cal.5th 561, 570 [220 Cal.Rptr.3d 319, 397 P.3d 1011] (Lewis) [concluding that physician had standing to assert privacy rights of patients whose prescription records had been accessed by state board].) For the same reasons that the Lewis court concluded that a doctor could assert his patients' privacy interests in their prescription records,
Second, although discovery orders are ordinarily not reviewable on an interlocutory basis (City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1031 [204 Cal.Rptr.3d 196]), writ review is appropriate "[w]here, as here, an order will effectively ... infringe on privacy rights." (Los Angeles Gay & Lesbian Center v. Superior Court (2011) 194 Cal.App.4th 288, 300 [125 Cal.Rptr.3d 169] (Los Angeles Gay & Lesbian Center).) In such an instance, "review on appeal is deemed inadequate because reversal on appeal will not cure the disclosure of protected information." (Ibid.) Accordingly, because petitioners lack an "adequate remedy at law" to vindicate the third party privacy rights at stake in their petitions and those third parties "will suffer an irreparable injury" (ibid.) if a writ is not granted, we conclude that writ review is appropriate.
Finally, although petitioners did not discuss Hill or present a developed state constitutional argument in the superior court, for the following reasons, we exercise our discretion to reach the merits of their state constitutional claim, notwithstanding any possible forfeiture. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [69 Cal.Rptr.2d 917, 948 P.2d 429] ["An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party"].)
To begin with, the privacy rights at stake are those of the petitioners' patients, and we are therefore disinclined to conclude that petitioners' briefing in the superior court precludes our consideration of these rights. (See Boler v. Superior Court (1987) 201 Cal.App.3d 467, 472, fn. 1 [247 Cal.Rptr. 185].) In Boler, the court considered whether the defendant had forfeited his right to object on privacy grounds to deposition questions pertaining to the defendant's prior sexual history with certain nonparties. The Boler court rejected this argument, reasoning in part: "[T]he privacy protection extends to the unknown, unnamed female partners of Boler who have neither executed a waiver nor are even necessarily aware their privacy interests are endangered by the deposition question. Indeed, where third-party privacy interests are involved, the target of discovery has an affirmative duty to notify the third parties of the discovery request and give them an opportunity to appear and object. [Citations.] An inflexible waiver rule would defeat the exercise of this duty and infringe upon the constitutional privacy rights of citizens not
In addition, although petitioners did not develop a state constitutional privacy argument in the superior court, in their oppositions to the discovery referee's recommendations and reports, the County of Los Angeles specifically mentioned "the constitutional rights of third parties" and the County of Alameda reiterated its privacy objections to having to produce unredacted patient health information. In addition, in its briefing before the discovery referee, the County of Alameda argued that the Johnson & Johnson defendants had failed to demonstrate that the "privacy interests of [patients] are outweighed by what is, in essence, a fishing expedition." Further, petitioners alerted the superior court to the third party privacy interests at stake by extensively arguing that the requested discovery sought materials protected by federal privacy regulations governing substance abuse treatment records.
Moreover, the Johnson & Johnson defendants do not present any forfeiture argument in this court,
B. Standard of review
Ordinarily, "[w]e review the trial court's grant or denial of a motion to compel discovery for an abuse of discretion. [Citation.] ... A circumspect approach to appellate review of discovery orders ensures an appropriate degree of trial court latitude in the exercise of that discretion." (Williams,
The Williams court also noted that the application of Hill to requested discovery constitutes one such principle of law that may be applied by a reviewing court "as a matter of law," where there are no disputed material facts. (Williams, supra, 3 Cal.5th at p. 554, fn. 7.) Thus, because a determination of whether the superior court's discovery order implicates constitutional privacy rights under Hill rests upon undisputed facts (see pt. III.A., ante), we review this question of constitutional law de novo. (See, e.g., Alfaro v. Superior Court (2020) 58 Cal.App.5th 371, 384 [272 Cal.Rptr.3d 404] ["Although in general discovery rulings are reviewed for abuse of discretion, where, as here, `"`the propriety of a discovery order turns on ... a question of law,' we `determine the issue de novo'"'"]; City of Los Angeles v. Superior Court (2017) 9 Cal.App.5th 272, 282 [214 Cal.Rptr.3d 858] [when "`the propriety of a discovery order turns on ... a question of law,' we `determine the issue de novo'"].)
C. Governing law
1. Relevant principles of the law governing discovery from nonparties
In Board of Registered Nursing, this court recently provided an overview of the law governing discovery from nonparties: "`Although the scope of civil discovery is broad, it is not limitless.' (Calcor[, supra,] 53 Cal.App.4th [at p.] 223....) In general, `any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears
"Even if information is otherwise discoverable, it may be protected by a constitutional ... privilege ... [including] ... the right to privacy...." (Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1039; Williams, supra, 3 Cal.5th at p. 554 [stating that a trial court's order denying a request for discovery may be "affirmed on privacy grounds if ... such concerns supported denial of discovery"]; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 8:293 ["Even highly relevant, nonprivileged information may be shielded from discovery if its disclosure would impair a person's `inalienable right of privacy' provided by Calif. Const. Art. 1, § 1"].)
2. The right to privacy under the California Constitution
a. The state constitutional amendment adding a right of privacy
"In November 1972, the voters of California specifically amended article I, section 1 of our state Constitution to include among the various `inalienable' rights of `all people' the right of `privacy.'" (White v. Davis (1975) 13 Cal.3d 757, 773 [120 Cal.Rptr. 94, 533 P.2d 222].)
b. The Hill framework
In Hill, the California Supreme Court "articulated a two-part inquiry for determining whether the right to privacy under article I, section 1 has been violated." (Lewis, supra, 3 Cal.5th at p. 571, citing Hill, supra, 7 Cal.4th at p. 26.) "First, the complaining party must meet three `"threshold elements"... utilized to screen out claims that do not involve a significant intrusion on a privacy interest protected by the state constitutional privacy provision.' [Citation.] The party must demonstrate `(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.' [Citation.] This initial inquiry is necessary to `permit courts to weed out claims that involve so insignificant or de minimis an intrusion on a constitutionally protected privacy interest as not even to require an explanation or justification by the defendant.' [Citation.]" (Lewis, supra, at p. 571.)
Second, if a claimant satisfies the threshold inquiry, "`[a] defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.' [Citation.]" (Lewis, supra, 3 Cal.5th at p. 572, citing Hill, supra, 7 Cal.4th at p. 40.)
As alluded to in our discussion of the applicable standard of review (see pt. III.B., ante), "The Hill test, conceived in the context of a pleaded cause of action for invasion of privacy, has been applied more broadly, including to circumstances where litigation requires a court to reconcile asserted privacy interests with competing claims for access to third party contact information." (Williams, supra, 3 Cal.5th at p. 552.) A reviewing court "may conduct a Hill analysis for the first time," in a case in which "there are no disputed material facts." (Id. at p. 554, fn. 7.)
We apply the Hill framework in considering whether the superior court's order implicates state constitutional privacy rights (Cal. Const., art. I, § 1) of the patients whose medical information would be affected by the order.
1. Petitioners have established the threshold elements of a Hill claim
We first consider whether petitioners have carried their threshold burden of demonstrating that the superior court's discovery order threatens a serious invasion of privacy.
a. Legally protected privacy interest
In considering the first of the three factors comprising the threshold inquiry, it is clear that patients "have a bona fide interest in the confidentiality of their [medical] information." (Williams, supra, 3 Cal.5th at p. 554.) "[P]atients have a right to privacy with respect to information contained in ... medical records. Indeed, that right is well settled." (Grafilo, supra, 33 Cal.App.5th at p. 1034, citing numerous cases].) It is a right that is protected by case law as well as state and federal statutes and regulations. (See, e.g., Civ. Code, § 56 et seq. ["This part may be cited as the Confidentiality of Medical Information Act"]; 42 U.S.C. § 1320d et seq., Health Insurance Portability and Accountability Act of 1996 (HIPAA) [providing that health care providers generally may not disclose medical information without a patient's authorization or court order]; Citizens for Health v. Leavitt, 428 F.3d 167, 172 (3d Cir. 2005) [describing administrative privacy regulations promulgated pursuant to HIPAA].)
"Medical patients' privacy interest, our Supreme Court has observed, derives from their expectation of privacy in their physician's files, which `may include descriptions of symptoms, family history, diagnoses, test results, and other intimate details concerning treatment.'" (Grafilo, supra, 33 Cal.App.5th at p. 1034, citing Lewis, supra, 3 Cal.5th at p. 575.) "`[T]he matters disclosed to the physician arise in most sensitive areas often difficult to reveal even to the doctor. Their unauthorized disclosure can provoke more than just simple humiliation in a fragile personality.... The individual's right to privacy encompasses not only the state of his mind, but also his viscera, detailed complaints of physical ills, and their emotional overtones. The state of a person's gastro-intestinal tract is as much entitled to privacy from unauthorized public or bureaucratic snooping as is that person's bank account, the contents of his library or his membership in the NAACP.'" (Grafilo, supra, at p. 1034, quoting Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 679 [156 Cal.Rptr. 55].) As one court explained in discussing the "examination of medical records within the purview of the privacy amendment": "The information that may be recorded in a doctor's files is broad[-]ranging. The chronology of ailments and treatment is potentially sensitive. Patients may disclose highly personal details of lifestyle and information concerning sources of stress and anxiety. These are matters of great sensitivity going to the core of the concerns for the
Medical records pertaining to substance abuse treatment, such as those at issue in this case, are an example of such "highly personal details" (Wood, supra, 166 Cal.App.3d at p. 1147) that are entitled to even greater privacy protections under both state and federal law. (See Health & Saf. Code, § 11845.5;
With respect to the subset of records that may be said to constitute "prescription records,"
b. Reasonable expectation of privacy
We also think it clear that patients have "a reasonable expectation of privacy under the [particular] circumstances." (Hill, supra, 7 Cal.4th at p. 50.) To begin with, patients could reasonably rely on the statutory and case law described in part III.D.1.a., ante, in expecting that their medical information would not be used to facilitate the construction of a database for litigation purposes.
Further, the patients whose records are being sought have not taken any litigation position that could possibly constitute a waiver of their privacy rights. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 864 [143 Cal.Rptr. 695, 574 P.2d 766] ["while [plaintiffs] may not withhold information which
In particular, the patients whose records were ordered disclosed are not seeking to have their interests furthered by facilitating the payment of insurance payments to their providers. Thus, we are unpersuaded by the Johnson & Johnson defendants' argument that such patients' privacy rights would not be invaded by the ordered production because the Confidentiality of Medical Information Act permits patients' medical information to be "disclosed to a person or entity that provides billing, claims management, medical data processing, or other administrative services for providers of health care or health care service plans...." (Civ. Code, § 56.10(c)(3).)
Nor can it be said that the patients' reasonable expectation of privacy was reduced because the Johnson & Johnson defendants are seeking to use the requested discovery to further patients' interests generally. (Compare with Williams, supra, 3 Cal.5th at p. 554 [in considering whether plaintiff employee was entitled to disclosure of contact information of defendant employer's other employees, stating "we doubt ... fellow employees would expect that information to be withheld from a plaintiff seeking to prove labor law violations committed against them and to recover civil penalties on their behalf," citing numerous cases].)
Finally, we are not aware of, and the Johnson & Johnson defendants have not cited, any historical practice, social norm, cultural practice or physical setting that would reduce such patients' expectations of privacy in the present context. (See County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 927 [157 Cal.Rptr.3d 481, 301 P.3d 1102] (County of Los Angeles) ["`customs, practices, and physical settings surrounding particular activities may create or inhibit reasonable expectations of privacy'"]; compare with Lewis, supra, 3 Cal.5th at pp. 568-569 [noting Court of Appeal's conclusion that release of CURES prescription data to Medical Board for investigative purposes was supported by the fact that
c. Serious invasion of privacy
In determining whether petitioners have established `a serious invasion of privacy' (Lewis, supra, 3 Cal.5th at p. 571), we must ask whether the ordered disclosure is "`sufficiently serious in [its] nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.'" (County of Los Angeles, supra, 56 Cal.4th at p. 929, quoting Hill, supra, 7 Cal.4th at p. 37; see also County of Los Angeles, supra, at p. 929 ["The disclosure contemplated in this case was more than trivial. It rose to the level of a `"serious"' invasion of privacy under Hill"].)
As discussed in part I., ante, as with the CURES prescription record data at issue in Board of Registered Nursing, the court's order directed petitioners to provide the records on a personally identified basis to Rawlings so that Rawlings could deidentify the data and make it cross-referenceable against other deidentified data in the case. In Board of Registered Nursing, this court stated that such disclosure "implicate[s] the privacy rights of the patients." (Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1045.) For the reasons that follow, we reach a similar conclusion with respect to the prescription records and substance abuse treatment records at issue in these writ proceedings.
In considering the first of the Hill factors—the nature of the disclosure—as discussed above, the order pertains, in part, to medical records, "which may contain `matters of great sensitivity going to the core of the concerns for the privacy of information about an individual.'" (Grafilo v. Soorani (2019) 41 Cal.App.5th 497, 507 [254 Cal.Rptr.3d 149].) Further, the nature of the medical records at issue in this case—treatment records for a stigmatized condition—only heightens the need for "robust protection." (Ibid. ["The privacy interest in psychiatric records is particularly strong and, in some respects, entitled to more robust protection than other types of medical records"]; cf. Los Angeles Gay & Lesbian Center, supra, 194 Cal.App.4th at p. 308 ["unnamed plaintiffs have a reasonable expectation in the privacy of their medical records at the Center given the extremely sensitive nature of the
In sum, the nature of the disclosure—the production of patients' opioid prescription treatment history and/or substance abuse treatment records, without notice to the patients—is consistent with a serious invasion of privacy interests.
The scope of the disclosure ordered is also extremely broad, whether considered as applied to an individual patient or with respect to the number of records implicated by the order. As to individual patients, the documents to be produced include "encounter data" containing "diagnoses, procedures, and other clinical information." (See pt. I., ante.) As to the number of patient records implicated by the order, the superior court ordered petitioners to disclose all of the relevant patient records. (Compare with Snibbe v. Superior Court (2014) 224 Cal.App.4th 184, 188-189 [168 Cal.Rptr.3d 548] (Snibbe) [real party in interest sought to "discover all postoperative orders signed by
With respect to the "actual or potential impact" (Hill, supra, 7 Cal.4th at p. 37, italics added) of the ordered production on privacy rights, we acknowledge that the trial court's discovery order does not contemplate public disclosure of the records, or even identified disclosure to the Johnson & Johnson defendants. However, as the Supreme Court cautioned in a case involving the disclosure of prescription records, constitutional privacy concerns are not eliminated by the existence of protections against public disclosure. (See Lewis, supra, 3 Cal.5th at p. 577 ["adequate protections against public disclosure do not obviate constitutional concerns as privacy interests are still implicated when the government accesses personal information without disseminating it"]; accord, Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1045 ["production of patient identifying information" to defendants' vendor for deidentification "would ... implicate the privacy rights of the patients" (citing Lewis)].)
Indeed, under the circumstances of this case, for the following reasons, we conclude that the "actual or potential" (Hill, supra, 7 Cal.4th at p. 37) impact on patient privacy rights is substantial. With respect to "actual" impact (ibid.), as petitioners remind us throughout their briefing, the superior court's order requires the production of fully identified data to Rawlings. Thus, it cannot be disputed that the superior court's order will have some actual impact on patients' privacy rights in that the court ordered the production of their highly sensitive medical records and prescription data on a fully personally identified basis to an outside entity without the notice or consent of the patients.
This fact distinguishes this case from Snibbe, supra, 224 Cal.App.4th 190 and the case law on which Snibbe relied. In Snibbe, a patient died after receiving pain medication after surgery. (Id. at p. 187.) The deceased patient's family members sued the petitioner surgeon for wrongful death. (Ibid.) The family members sought to discover postoperative orders involving other
The Snibbe court recognized the privacy rights at stake, notwithstanding the redacted nature of the records: "As it stands, the discovery order is too broad. Based on [the family members'] limited showing and the trial court's finding of relevance only as to the opioid provisions of postoperative orders, allowing discovery of the orders in their entirety is unreasonable. It is all the more so because production of entire orders may raise legitimate concerns about the scope of intrusion into patient privacy rights...." (Snibbe, supra, 224 Cal.App.4th at p. 190.)
However, the Snibbe court concluded that patients lacked a privacy interest in the "pain management provisions of otherwise redacted postoperative orders." (Snibbe, supra, 224 Cal.App.4th at p. 191; see id. at pp. 194-195.) The Snibbe court reasoned in part: "[P]atients' privacy rights are not infringed if `neither disclosure of the patients' identities nor disclosure of identifying medical information was requested.' (Board of Medical Quality Assurance v. Hazel Hawkins Memorial Hospital (1982) 135 Cal.App.3d 561, 565 [185 Cal.Rptr. 405] [request for unnamed charts of four patients did not infringe on patients' privacy rights]; see Kizer v. Sulnick (1988) 202 Cal.App.3d 431, 439 [248 Cal.Rptr. 712] [privacy rights require no more than deletion of named medical records in health study or `if feasible, the deletion of information which individually identifies the participants'].) The limited production of redacted postoperative orders cannot be said to infringe on patients' privacy rights any more than the production of unnamed patients' charts." (Snibbe, at pp. 194-195.)
The productions mandated by the courts in Snibbe and Board of Medical Quality Assurance pertained to records that did not contain personally
We assume, without deciding, that the Snibbe court and the cases on which it relied were correct in concluding that patients have no privacy interest in
Irrespective of whether patients maintain privacy rights in their deidentified data, the superior court's order mandates the production of "identified data" to Rawlings. (Italics added.) As to that data, the patients whose records are at issue clearly maintain privacy rights. (See pt. III.D.1., ante.) Moreover, petitioners' briefing identifies at least three "potential impact[s]" (Hill, supra, 7 Cal.4th at p. 37) related to such rights that are of significance. First, there is the potential for a data breach, whether inadvertent or malicious, that might reveal identified patient data.
Second, petitioners argue that "mass disclosure to an out-of-state data miner would surely discourage meaningful treatment and impair trust between [p]etitioners and their current, former, and future patients." We agree
Finally, and as emphasized by petitioners in reply,
As one commentator noted in discussing the "well-documented failures of anonymization": "Historically, the way to share private information without betraying privacy was through anonymization, stripping away all identifiers that could potentially uniquely identify an individual or group of individuals. Anonymization, however, proved to be anything but a `silver bullet.'" (Bellovin et al., Privacy and Synthetic Datasets (2019) 22 Stan. Tech. L.Rev. 3-4, fns. omitted (Bellovin).)
Bellovin argues that various high-profile reidentification incidents suggest that it is often possible with "even novice computer aptitude to `join'
Commentators have suggested various "[r]isk [f]actors," to consider in assessing the risk of reidentification, including the "[v]olume of [d]ata," because "large data sets have a high degree of unicity, which makes it easier to launch reidentification attacks." (Rubinstein & Hartzog, Anonymization and Risk (2016) 91 Wash. L.Rev. 703, 741.) The Johnson & Johnson defendants both acknowledge that Rawlings has "previously anonymized over a dozen other databases containing tens of millions of records from government agencies, private insurers, and the People in this case," and seek to make petitioners' own massive datasets cross-referenceable with these "multiple datasets." Another risk factor for reidentification is the "[s]ensitivity of the [d]ata," because "[s]ome information, like health ... information, is more sensitive and thus more likely to be targeted by attackers" (ibid.). As discussed throughout this opinion, the disclosure ordered in this case involves extremely sensitive medical and substance abuse treatment information.
Finally, and critically, while the discovery order directs Rawlings to "de-identify" the data, it contains no protocols or requirements as to how such deidentification must be carried out. (Compare with Sander, supra, 26 Cal.App.5th at p. 658 [noting that "[a] primary issue [at trial] was whether the four different protocols proposed by Petitioners to de-identify or `anonymize' the data were sufficient to prevent matching a record in the supposedly anonymous data to either an individual or a small group of individuals"]; see also id. at pp. 659-663 [describing four different complex deidentification protocols and noting "[p]rotocols 2 and 4 employ variations of a concept known as `k-anonymity,'" in which "`[t]he proper size of k (i.e. how much anonymity to provide) is a policy question depending on the sensitivity of the data and how ambiguous an identification is considered permissible'"].) Given the massive size of the ordered production, the multiple datasets, and the high sensitivity of the materials to be produced, the risks associated with an order to provide identified data to a third party vendor with vague directions to "de-identify" such data, without any specification as to how such deidentification must occur, presents a clear potential threat to patient privacy.
d. Petitioners met their threshold burden to establish a serious invasion of privacy interests
In sum, given the nature, scope and the actual and potential impact on patient privacy, we conclude that petitioners have carried their threshold
2. The Johnson & Johnson defendants have not identified interests in favor of disclosure that outweigh the serious invasion of privacy that such disclosure would entail
We next must consider whether the Johnson & Johnson defendants have identified interests in favor of disclosure that outweigh the serious invasion of privacy described in part III.D.1., ante. (See Williams, supra, 3 Cal.5th at p. 557 [describing the shifting burdens in applying the Hill framework]; Tom v. City and County of San Francisco (2004) 120 Cal.App.4th 674, 686 [16 Cal.Rptr.3d 13] ["Because we conclude that respondents carried their burden of demonstrating a serious invasion of their reasonable privacy interests, the burden shifted to the City to show `that the invasion of privacy is justified because it substantively furthers one or more countervailing interests'"].) In conducting such inquiry, we may consider "the interest of the requesting party, fairness to litigants in conducting the litigation, and the consequences of granting or restricting access to the information." (Los Angeles Gay & Lesbian Center, supra, 194 Cal.App.4th at p. 307, citing Hill, supra, 7 Cal.4th at p. 37.)
In considering the interests of the requesting party, we observe that the Board of Registered Nursing court noted that defendants contended that the CURES prescription data sought in that case was "relevant and discoverable," because it would demonstrate "whether defendants' drugs were associated with opioid abuse and overdoses," and "whether patients were engaged in illicit activities or whether they obtained prescriptions from unauthorized prescribers." (Board of Registered Nursing, supra, 59 Cal.App.5th at pp. 1045-1046.) The Board of Registered Nursing court concluded that such interests were insufficient to justify the discovery of the CURES prescription records—even when considering the broad scope of discovery allowed from nonparties generally. (Id. at p. 1046, citing Calcor, supra, 53 Cal.App.4th at p. 224.)
In this case, 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 that threaten an even more substantial invasion of privacy rights (see Lewis, supra, 3 Cal.5th at p. 575; see also ibid. ["medical records contain far more sensitive information than do prescription records"]).
Given that the Board of Registered Nursing court concluded that such interests were insufficient to justify disclosure under the broad Calcor discovery standard (Board of Registered Nursing, supra, 59 Cal.App.5th 1011), we think it necessarily follows that such interests are not sufficient to justify disclosure in light of the serious potential invasion of privacy rights that exists in this case. This conclusion is strengthened by the Johnson & Johnson defendants' failure to provide any discussion of the elements of plaintiffs' causes of action or any case law bearing on such causes of action to attempt to demonstrate a theory of discoverability of the sensitive medical information at issue in these writ proceedings. Simply put, the Johnson & Johnson defendants fail to provide any "cogent legal argument" (Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1041) as to how the discovery that they seek would be admissible or lead to the discovery of admissible evidence.
This omission is particularly striking given that, in their reply, petitioners noted that the Johnson & Johnson defendants failed to provide any argument as to how the requested discovery "could be used to defend against causes of action that do not require a link between an individual harm and their particular product" (italics omitted), and the Board of Registered Nursing court rejected the superior court's finding of relevance on which the Johnson & Johnson defendants relied in their return.
The Johnson & Johnson defendants also have not made any persuasive argument that fairness to the litigants in conducing the litigation outweighs the privacy interests at stake. (Los Angeles Gay & Lesbian Center, supra, 194 Cal.App.4th at p. 307.) To begin with, the Johnson & Johnson defendants do not argue that they bear the burden of proof with respect to either causation or damages, the two general areas for which the Johnson & Johnson defendants have argued that the requested discovery is relevant. Further, the Johnson & Johnson defendants do not make any argument that plaintiffs have sought to discover the prescription records and substance abuse treatment records at issue in these writ proceedings. Thus, the Johnson & Johnson defendants have not shown that they are being deprived of any discovery on which plaintiffs may rely in proving their case, nor have they demonstrated that any other fairness concerns mandate disclosure.
Relatedly, the Johnson & Johnson defendants do not discuss in any detail the other discovery that has been produced in this case in attempting to explain their need for the specific discovery at issue in these writ proceedings. The Board of Registered Nursing court noted the lack of any such showing in that case: "[Defendants fail to] persuasively explain why such a large amount of personal and private data, on millions of Californians, is necessary in light of the extensive information already available to them. For example, defendants admit they have `insurance claims data and hospital claims data' from the plaintiff jurisdictions and other private entities, as well as comprehensive mortality data from the State Department of Public Health. The department already releases data on opioid-related deaths, emergency room visits, hospitalizations, and county-level prescriptions. The [Department of Justice] releases aggregate statistics from the CURES database across numerous dimensions." (Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1046.)
Similarly, in these writ proceedings, the Johnson & Johnson defendants acknowledge having access to multiple datasets in preparing their defense and fail to demonstrate why the discovery they seek from petitioners is critical in defending against plaintiffs' claims.
3. After applying the Hill framework, we conclude that the superior court erred in granting the Johnson & Johnson defendants' motions to compel
Petitioners have established a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The Johnson & Johnson defendants have not established countervailing interests that outweigh this serious potential invasion of privacy rights. Accordingly, we conclude that the superior court erred in granting the Johnson & Johnson defendants' motions to compel.
The Johnson & Johnson defendants' demurrer to the petitions is overruled. The petitions are granted. Let a peremptory writ of mandate issue directing the superior court to vacate its order compelling production of documents from petitioners County of Los Angeles and County of Alameda and enter a new order denying the Johnson & Johnson defendants' motions to compel. Petitioners shall recover their costs in this original proceeding. (Cal. Rules of Court, rule 8.493(a)(2).)
Benke, Acting P. J., and Irion, J., concurred.
We also grant the Johnson & Johnson defendants' unopposed December 16, 2020 request that we take judicial notice of: (1) the June 8, 2018 operative sixth amended complaint in the Underlying Action; (2) the August 17, 2020 revised Protective Order, and (3) the February 26, 2020 hearing transcript of the discovery proceedings that led to the writ proceedings in this court in Board of Registered Nursing. (See Evid. Code, §§ 452, subd. (c), 455, subd. (a), 459, subd. (c) [specifying the manner by which reviewing courts may take judicial notice of judicial records].)
In their return, the Johnson & Johnson defendants cite Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246 [225 Cal.Rptr.3d 81], in which this court concluded that the third party privacy rights at issue in that case were adequately protected by the production of documents in which "personal identifying information" was redacted (id. at p. 1270) and Poway Unified School Dist. v. Superior Court (1998) 62 Cal.App.4th 1496 [73 Cal.Rptr.2d 777] in which this court concluded that "privacy concerns" (id. at p. 1506) related to the disclosure of a minor's tort claim form to a newspaper could be "address[ed]," by "redacting released materials." (Ibid.) We disagree that these few fact-specific cases stand for the broad proposition that individuals never maintain a privacy interest in anonymized data under California law. (See fn. 25, post, and accompanying text.) However, as discussed in the text, even assuming that patients do not maintain a privacy interest in anonymized medical data, the discovery order at issue in these proceedings mandates the production of identified data to Rawlings, and thus is not governed by Snibbe or cases mandating the production of anonymized data.
"[R]elevance and burden concerns" are clearly factors that not only may, but must be considered in determining whether a defendant has demonstrated that "the interest of the requesting party, fairness to litigants in conducing the litigation, and the consequences of granting or restricting access to the information" outweigh the privacy interests at stake in a case. (Los Angeles Gay & Lesbian Center, supra, 194 Cal.App.4th at p. 307.) Indeed, the Johnson & Johnson defendants argued in their return that they had carried their Hill burden by quoting the superior court's determination that the discovery of CURES data was "relevant" in the proceedings that led to Board of Registered Nursing.