Owens v. Fluz Fluz LLC, a Delaware limited liability company

Background

The parties asked the court to resolve a discovery dispute concerning redactions Plaintiff’s counsel made to Plaintiff’s medical records. They agreed that the relevant period was August 2021 to the present and that California law governed privilege questions in this diversity action.

The dispute involved the California physician-patient privilege and psychotherapist-patient privilege. Defendant appeared to argue that Plaintiff waived privilege over all produced medical records by placing his physical and emotional condition at issue through the lawsuit. Plaintiff argued that any waiver was limited to Lyme disease, Epstein-Barr virus, post-concussive syndrome, and emotional distress for which he sought damages.

Privilege Scope

The court applied California authority stating that a patient’s waiver extends only to information concerning the specific medical conditions placed at issue, not automatically to the patient’s entire medical history. The court found that Plaintiff had placed Lyme disease, Epstein-Barr virus, and post-concussive syndrome at issue. The complaint alleged that these conditions caused periodic flare-ups affecting his processing of oral feedback, which the court described as appearing to involve mental conditions.

The court also found that emotional distress was at issue because Plaintiff sought damages for it. Because the complaint additionally sought damages for physical pain and mental pain and anguish, the court concluded that physical pain was also at issue, but only insofar as it resulted from Lyme disease, Epstein-Barr virus, or post-concussive syndrome. Physical pain from an unrelated condition, such as a sprained ankle, was not placed at issue based on the discussion described in the order.

Ruling on Redactions

The court held that the physician-patient and psychotherapist-patient privileges were waived as to Lyme disease, Epstein-Barr virus, post-concussive syndrome, physical pain resulting from those conditions, and emotional distress. Plaintiff could not redact medical-record information concerning those conditions, but could redact information unrelated to them.

For appointments involving both an at-issue condition and a condition not at issue, the court ruled that waiver applied only to the portions concerning the at-issue condition. Information concerning the other condition could remain redacted. The court rejected the idea that discussing multiple conditions during one appointment automatically required production of the entire record.

Further Review and Other Issues

Because the parties disputed whether particular redactions were excessive, the court ordered them to file a joint discovery letter brief by April 4, 2025. Each side was also required to provide a declaration and the redacted medical records, and Plaintiff was ordered to submit hard copies of the unredacted records for the court’s private inspection. The court stated that it would then rule on the redactions.

The court rejected Defendant’s argument that Plaintiff waived privilege by signing a letter authorizing medical providers to give records to Plaintiff’s attorney, explaining that the authorization did not waive privilege as to Defendant. The court also stated that it did not need a separate privacy analysis for records discoverable under the California privilege statutes and that Defendant did not receive sanctions under Rule 37 because it had not yet obtained relief.