Roblin v. Costco Wholesale Corporation

Background

Ethelyn Roblin sued Costco Wholesale Corporation under negligence and premises-liability theories. She alleges that, on February 21, 2021, a Costco employee struck her from behind while pushing shopping carts near a store entrance. She attributes an elbow fracture, lower-back injury, traumatic brain injury, headaches, difficulty concentrating, slowed information processing, light sensitivity, depression, and post-traumatic stress disorder to the incident. She also alleges wage loss, medical expenses, loss of earning capacity, and the need for household and nursing services provided by family members.

Costco subpoenaed Kaiser Permanente for Roblin’s medical and billing records from February 21, 2011, through the present. Roblin objected based on privacy and doctor-patient privilege concerns and requested a “first-look” procedure. Under her proposal, her counsel would review the records first, redact information counsel considered unrelated, and provide a privilege log before producing the records to Costco. Roblin contended that only her left elbow, lower back, and head injuries, along with depression and post-traumatic stress disorder, were at issue.

Court’s Analysis

The court disagreed that discovery should be limited to those body parts and mental conditions. It reasoned that Roblin’s allegations concerning wage loss, loss of earning capacity, household and nursing services, workplace-related psychological symptoms, headaches, concentration, information processing, and sensitivity to light supported broader discovery into medical and psychological conditions during the subpoena period. The court found that this information could be relevant to causation and damages.

The court also rejected the proposed first-look procedure. It concluded that giving Roblin’s counsel unilateral authority to withhold information deemed unrelated or irrelevant could prejudice Costco. The court found an in-camera review—meaning review by the judge in private—unworkable because Costco would not know what had been withheld, and the court would have to review the records and evaluate each redaction individually.

Instead, the court concluded that Roblin’s privacy interests could be protected through a protective order. It agreed with the approach described in a prior case involving subpoenaed employment, academic, and medical records: the opposing lawyers would initially receive the information under an attorney-eyes-only restriction, followed by discussions about what level of continued protection each document should receive.

Ruling and Required Procedure

The court ordered the parties to promptly meet and confer about a supplemental stipulated protective order containing an attorney-eyes-only provision within two weeks of the order. If they could not agree, they were ordered to jointly submit their respective proposed orders by January 3, 2024, with a joint cover letter describing their disagreements. After entry of the supplemental order, Costco’s counsel must treat all documents produced under the subpoenas as attorney-eyes-only for at least 60 days while the parties meet and confer about continued protection.

The court overruled Roblin’s relevancy objections and denied her motion to institute a first-look procedure. The opinion addresses discovery and protection of subpoenaed medical records; it does not decide the underlying negligence or premises-liability claims.