Court of Appeal Grants Protective Order in Favor of the Board of Registered Nursing and Upholds Patient Privacy Rights

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By Kendra J. Muller

Board of Registered Nursing v. Johnson & Johnson et al., Case No. 30-2014-00725287 (Super. Ct., Orange County). On May 21, 2014, in The People of the State of California v. Purdue Pharma, L.P., et al., the People of the State of California filed a complaint in superior court against several pharmaceutical companies alleging that defendants made false and misleading statements in the marketing of opioids, which minimized the risks of opioid medications and inflated their benefits. Plaintiff alleges this caused a public health crisis by dramatically increasing prescriptions, use, abuse, and even deaths related to opioids, all in violation of False Advertising Law, Unfair Competition Law, and public nuisance statutes.

In the course of litigation, defendants subpoenaed several healthcare-related boards, including the Board of Registered Nursing (BRN), for the production of business records regarding a wide range of documents. The request included all BRN documents related to opioid prescriptions, licensee discipline, and complaints over the past thirty years. On February 26, 2020, BRN moved for a protective order for relief from the broad obligations of the subpoena for the production of business records. BRN contended the records were confidential and would violate patient and licensee privacy rights. On March 10, 2020, the court ordered BRN to produce the list of nurses that have been disciplined and were allowed to prescribe, furnish or administer opioids, as well as all prescription records for opioids, antidepressants, and other specific drugs in the CURES database.

On April 3, 2020, BRN filed a petition for Extraordinary Writ of Mandate to vacate the production order. BRN argued that defendants did not provide notice to consumers that their personal information would be subpoenaed. On January 15, 2021, in Board of Registered Nursing v. The Superior Court of Orange County, the Fourth District Court of Appeal issued an opinion reversing the lower court’s order and granting BRN’s motion for a protective order over the subpoenaed documents. In defense of the discovery subpoena, defendants argued that consumer notice does not apply to state agencies under the California Code of Civil Procedure section 2020.410. The appellate court disagreed, concluding that state agencies must give notice to consumers pursuant to California Code of Civil Procedure section 1985.4. Defendants failed to provide this notice to persons who would be impacted by the discovery.

The appellate court found that BRN was justified in refusing production, as defendants incorrectly sought personal data without following the lawful steps to obtain confidential information. The court further held in BRN’s favor that the administrative records and data sought were too broad, violated privacy rights of record holders, and were not reasonably calculated to lead to the discovery of admissible evidence. In addition to the right of privacy, the court held that both the deliberative process privilege and official information privilege protected overly broad requests of government information. The Fourth District Court of Appeal ordered the trial court to vacate its orders denying BRN’s protective order, and instead, grant the protective order.

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