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Passeri v. Dahlquist11/4/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
This is an appeal from a discovery order in which the briefs of both parties suffer from hyperbole and a lack of candor. In an action in which the plaintiff Stacy Passeri seeks damages for sexual harassment, battery, and related torts, defendant Mike Dahlquist appeals from an order of the discovery commissioner quashing a subpoena duces tecum calling for Passeri's medical records, without prejudice to the service of a more limited subpoena, and imposing sanctions. We believe the commissioner acted well within his discretion in quashing the subpoena without prejudice, but that there was no basis for imposing sanctions on Dahlquist for opposing Passeri's motion.
Factual and Procedural background
Passeri's complaint alleges that Dahlquist and others engaged in acts of sexual harassment and battery towards her. With respect to her damages, the complaint alleges as follows: "This course of misconduct imposed tremendous stress on Ms. Passeri. As a result of the distress imposed on her by Mr. Dahlquist . . . , Ms. Passeri suffered a seizure that stopped her breathing for over one minute and rendered her unconscious for five minutes. She is now under the care of several doctors who have ordered the following tests to date: full blood work, several EKGs, a Holter monitor study, a King of Hearts monitor study, an echo cardiogram, a chest x-ray, a CAT scan, and an EKG treadmill. Following a sleep-deprived EEG, it was recommended that she seek a work- up with a neurologist. Defendants have caused plaintiff to suffer a confirmed arrhythmia, as well as other personal injury . Plaintiff continues to pursue a neurological evaluation and the full extent of her injuries are not stable at this time."
Through discovery, Dahlquist has obtained plaintiff's medical records from the specialists who have been treating Passeri for the seizure she suffered in 2001 that is central to her claim and for the other conditions described in her complaint. Dahlquist also served a subpoena duces tecum on the custodian of records of two other doctors, Drs. Moreno and Zeiger, seeking: " ny and all documents that relate to or reference [Passeri], including but not limited to: [ ] A. Any and all writings, notes and memoranda; [ ] B. Any and all tests, test results, evaluations and reports; [ ] C. Any and all reports prepared or received by your office; [ ] D. Any and all correspondence prepared or received by your office; [ ] E. Any and all patient history information; [ ] F. Any and all files and charts including all entries within those charts; [ ] G. Any and all records of surgeries including pre-operative and post-operative reports; [ ] H. Any and all records of medications recommended and/or prescribed; [ ] I. Any and all evaluation and consultation reports; [ ] J. Any and all insurance forms, records and reports; [ ] K. Any and all statements of charges and fees, billing records; and L. Any other records of any description that relate to or reference [Passeri]."
Dr. Moreno, and to a lesser extent his partner Dr. Zeiger, were Passeri's "general practice physician ." Over the preceding four or five years, Passeri stated, these doctors had treated her on many occasions, "the vast majority of which have nothing to do with my seizure." After service of the challenged subpoena, there followed unsuccessful efforts by the attorneys to agree upon limitatio
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