Doe v. Kaiser Foundation Health Plan, Inc.

Background

This putative class action was brought by John Doe, John Doe II, Jane Doe, Jane Doe II, Jane Doe III, Jane Doe IV, and Jane Doe V against Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and The Permanente Medical Group, Inc. The Plaintiffs allege that Kaiser embedded code in its website, patient portal, and mobile applications that allowed third-party social-media and advertising-technology companies to intrude upon, read, intercept, and use sensitive personal and medical information without the Plaintiffs’ knowledge or consent.

The discovery dispute concerned substantially identical subpoenas that Plaintiffs served on Adobe, Inc., Alphabet, Inc., Microsoft, Inc., X Holdings, Corp., and Quantum Metric, Inc. The subpoenas sought, among other things, data collected from visitors to Kaiser’s website and mobile application; communications with Kaiser about those services and data collection; information about cookies and code; information concerning specified user identifiers; and documents concerning settings or options selected by or for Kaiser.

Kaiser objected that the subpoenas sought sensitive personal and medical information concerning thousands of people who were not parties, were not represented by Plaintiffs’ counsel, and had not consented to disclosure. Kaiser asked the court to limit user-information requests to the named Plaintiffs. Kaiser also argued that numerous requests sought its confidential commercial information and trade secrets, and that responses should be delayed until an attorneys’-eyes-only protective order was entered. Plaintiffs argued that the subpoenas were needed to support their wiretapping and privacy claims and to prevent the destruction of important information. Plaintiffs also agreed to treat produced materials as attorneys’-eyes-only until a formal protective order was entered.

Court’s Analysis

The court applied Federal Rule of Civil Procedure 45 and the discovery limits in Rule 26(b)(1). Those rules generally allow discovery of nonprivileged information relevant to a claim or defense and proportional to the needs of the case.

Standing to object based on burden or relevance. The court held that Kaiser lacked standing to object to subpoenas directed to third parties on the grounds that the requests were irrelevant or burdensome. Standing is the legal requirement that a party have a sufficient personal interest to raise an objection. The subpoenas were directed to third parties, sought information allegedly within those third parties’ possession or control, and did not seek documents from Kaiser. The subpoenaed entities had notice and had asserted their own objections. Accordingly, the court overruled Kaiser’s objections based on overbreadth and irrelevant personal or medical information and denied Kaiser’s motion on those grounds for lack of standing.

Confidential information and trade secrets. The court also concluded that Kaiser had not shown that the subpoenaed information was sufficiently confidential or sensitive to justify quashing the subpoenas. Kaiser’s briefing identified broad categories such as financial information, vendor contract terms, and information about its website, but did not provide enough specific evidence about particular trade secrets or confidential materials. The court noted that Kaiser did not discuss confidentiality agreements, contractual confidentiality provisions, service contracts, or efforts to preserve secrecy, and did not submit an affidavit or declaration substantiating the claimed harm.

The court further ruled that Kaiser had not demonstrated a personal right in the information sufficient to establish standing to challenge the subpoenas on confidentiality grounds. Even assuming Kaiser had standing, the court held that Kaiser had not met its burden to show that the requested materials were so sensitive that complete quashing was warranted. The court explained that federal law does not create an absolute privilege for trade secrets and that a protective order can permit discovery while limiting use and disclosure.

Protective measures and disposition

The court found that the protective order being prepared, including an attorneys’-eyes-only provision, could address Kaiser’s generalized confidentiality concerns. It ordered that materials produced before the protective order was entered be treated as highly confidential and attorneys’-eyes-only under the court’s model protective order. After the final protective order was entered, the materials were to be treated according to their assigned confidentiality level.

The court denied Kaiser’s motion to quash the subpoenas. It also ordered Plaintiffs to serve this order and the protective order, after entry, on counsel for each subpoenaed entity, and ordered Plaintiffs and the subpoenaed entities to comply with the court’s standing discovery order while resolving subpoena objections and disputes. Judge Peter H. Kang stated that the order resolved Docket Nos. 55 and 80.