By Jonathan Padua
On January 15, 2021, in Board of Registered Nursing v. The Superior Court of Orange County (Johnson & Johnson), 59 Cal. App. 5th 1011 (2021), the Fourth District Court of Appeal issued a peremptory writ of mandate directing the Superior Court of Orange County to vacate its order compelling the Medical Board of California (MBC) to produce administrative records of disciplinary proceedings against doctors related to opioid prescriptions, including investigatory files, and coroner’s reports of opioid-related deaths that may have involved gross negligence or incompetence by a physician or surgeon, and issue a new order denying the motion to compel.
The defendant pharmaceutical companies were seeking these records from the Board pursuant to a non-party subpoena in their ongoing litigation involving the opioid crisis, The People of the State of California v. Purdue Pharma, L.P., et al., in which the Attorney General of California filed a complaint in superior court against several pharmaceutical companies on May 21, 2014. The state claimed that defendants made false and misleading statements in the marketing of opioids, falsely downplaying the risks of opioid medications and inflating their benefits, leading to a significant increase in opioid prescriptions and subsequent increased use, abuse, and deaths related to opioids. The state further alleged that this public health crisis caused by defendant’s misleading statements violated the False Advertising Law, Unfair Competition Law, and various public nuisance statutes.
After several years of litigation, in early 2019, defendants served non-party business records subpoenas on MBC, broadly seeking all documents and communications related to opioid use, opioid abuse, opioid treatment, and opioid-related disciplinary proceedings over the preceding 30 years. The Board objected to the subpoenas on numerous grounds, and after several months of negotiations, defendants moved to compel the production of a subset of documents responsive to the subpoenas.
In opposing the motion to compel, MBC argued that, as a threshold matter, it should be denied as untimely. It also maintained that the document categories at issue were not reasonably calculated to lead to the discovery of admissible evidence and would be unduly burdensome to produce. MBC’s interim executive director stated in a declaration that the Board had undertaken more than 7,500 investigations over the past five years, that these files “invariably contain significant amounts of patients’ personal or health information,” and that “Board staff would be required to review each and every administrative case and investigatory file to determine whether they are the types of records Defendants are seeking.”
Noting the highly confidential and privileged nature of patient medical records, MBC also argued that pursuant to section 2225 of the Business and Professions Code, it is empowered to obtain documents that would otherwise be shielded from civil discovery, including communications covered by the physician-patient privilege. According to MBC, patients would have to be notified before their records were turned over. Additionally, the Board asserted that the information defendants seek in their subpoenas are protected by the official information privilege and the deliberative process privilege and that confidentiality was essential to protect the integrity of its investigations, prevent witness intimidation, and avoid deterring future complainants or witnesses from coming forward.
In response, defendants claimed that their motions were in fact timely and that consumer notices were not required because the Board could redact the names of consumers whose complaints or medical records are produced.
After referring the dispute to a discovery referee, the trial court largely adopted the discovery referee’s recommendation overruling MBC’s objections and ordered MBC to produce five complete administrative records, 30 complete investigatory files, and all coroner’s reports involving opioids, as well as additional administrative records and investigatory files if needed, explicitly including any CURES database data, which includes every prescription for a controlled substance in California over the past 30 years.
In response, along with the other state agencies subpoenaed, MBC filed a petition of writ of mandate on April 3, 2020, challenging the trial court’s order compelling production (Case No. D077442). The Fourth District Court of Appeals summarily denied the petition on April 8, 2020. The Board then filed a petition with the Supreme Court of California. On July 15, 2020, the Supreme Court granted review. It transferred the matter back to the Fourth District Court of Appeal with directions to vacate the order denying the petitions and issue orders to show cause why the relief sought in the petitions should not be granted.
After full briefing, the appellate court ultimately agreed with the Medical Board and held that the trial court erred in ruling that defendants’ motion to compel was timely. Specifically, the court found that because the Board is a non-party to the underlying action, the 60-day time frame in which the defendants had to move to compel a response to the subpoena began to run on the day that the Board served its objections; defendants did not file their motion until six months later. The court further held that the fact that the Board and the defendants engaged in an extended meet and confer process did not impact the 60-day timeline as it might if the Board were an actual party to the litigation. Thus, defendants’ motions were untimely, and they should have been denied on this basis.
In addition, because defendants’ subpoenas sought the personal information of investigated or disciplined health care professionals, without redaction, the court held that defendants did not follow the lawful procedure in obtaining these documents. The court found that the administrative records and data sought by defendants were overly broad, violated the 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 agreed with the Board that both the deliberative process privilege and official information privilege protected overly broad requests of government information. Thus the state agencies adequately refused to produce such information.
Accordingly, the appellate court issued a peremptory writ of mandate directing the superior court to vacate its order to compel production of documents and issue new orders denying the motion to compel. The court denied the defendants’ petition for rehearing on February 3, 2021. On February 24, 2021, Defendants filed a petition for review with the California Supreme Court (Case No. S267294). At this writing, that petition is still pending.
 Defendants also served nonparty subpoenas on the California State Board of Pharmacy, the California Board of Registered Nursing, and the California Department of Justice seeking similar information. This post focuses on the litigation as it applies to the Medical Board.