Filed 2/27/14


                               CERTIFIED FOR PUBLICATION



                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SECOND APPELLATE DISTRICT

                                         DIVISION FOUR




JASON C. SNIBBE,                                   B252210

                 Petitioner,                       (Los Angeles County
                                                   Super. Ct. No. BC481372)
        v.

THE SUPERIOR COURT OF LOS
ANGELES COUNTY,

                 Respondent;

BRUCE GILBERT et al.,

                 Real Parties in Interest.



        ORIGINAL PROCEEDINGS in mandate. Ernest M. Hiroshige, Judge. Petition
granted in part and denied in part.
        Cole Pedroza, Kenneth R. Pedroza and Matthew S. Levinson; Law Brandmeyer &
Packer, Robert B. Packer and Corey E. Krueger for Petitioner.
        No appearance for Respondent.
        Law Offices of Harold J. Light and Harold J. Light for Real Parties in Interest.
                                ______________________________
       Jason C. Snibbe, an orthopedic surgeon, has petitioned for a writ of mandate to
compel the trial court to vacate a discovery order that required petitioner to produce 160
postoperative orders in a wrongful death case. Petitioner contends the orders are
irrelevant to the litigation, the physician-patient privilege and patient privacy rights
preclude their discovery, and the discovery order is unduly burdensome. We grant the
petition in part, limiting discovery to the pain management provisions of the orders,
including the type of surgery, date and signature fields, and directing that all other
information be redacted. We deny the petition in all other respects.


                      FACTUAL AND PROCEDURAL SUMMARY
       Mildred Gilbert passed away in January 2011 after a hip replacement surgery
petitioner performed on her at Cedars Sinai Medical Center (Cedars). Mrs. Gilbert’s
sons, real parties in interest Bruce Gilbert and Scott Gilbert, sued Cedars,1 petitioner, and
the anesthesiologist for their mother’s wrongful death.
       The postoperative order in Mrs. Gilbert’s case included, among other directions
for her care, a provision for the administration of morphine, Dilaudid (hydromorphone),
or other pain medication to be filled in by the physician. The form order left blank spaces
for the doses and intervals at which the chosen medication was to be administered for
mild, moderate, and severe pain. Handwritten notations provided for the administration
of a maximum dose of two milligrams of hydromorphone every two hours for severe
pain. Mrs. Gilbert was found unresponsive several hours after a nurse administered a two
milligram dose by IV push.
       Hydromorphone is a schedule II controlled substance. (Health & Saf. Code,
§ 11055, subd. (b)(1)(J).) In a declaration, an expert for real parties stated that
hydromorphone presents a high risk of fatal respiratory depression. The expert opined




       1
           Cedars has been dismissed from the lawsuit.

                                              2
that the order of a maximum of two milligrams of hydromorphone for postoperative pain
relief was below the standard of care and a substantial factor in Mrs. Gilbert’s death.2
       At his deposition, petitioner testified that the postoperative order was filled out
and signed by his physician assistant Jennifer Cabrera.3 Petitioner testified that it is his
“standard of practice” to have Ms. Cabrera prepare all postoperative orders, which he
“dictates[s] to her.” He claimed that the two of them discuss pain relief with an
anesthesiologist and refer some cases to a pain management service. He also claimed
they decided together what pain relief to order for Mrs. Gilbert based on such factors as
her age and the bone fracture she suffered during surgery.
       In another part of the deposition cited by real parties’ expert, petitioner testified he
did not remember whether he consulted with the anesthesiologist about the maximum
dose of hydromorphone to be administered in Mrs. Gilbert’s case. The expert also cited
the anesthesiologist’s deposition testimony that he would not have recommended the two
milligram maximum had petitioner dictated the drug order to Ms. Cabrera in the
anesthesiologist’s presence. The expert opined that making postoperative orders after a

       2
        The expert also opined that ordering Mrs. Gilbert to an unmonitored bed on the
orthopedic floor after the surgery was below the standard of care, given her condition and
surgical complications. The expert cited to evidence that Mrs. Gilbert was 82 years old,
had been bedridden, and had heart problems, elevated potassium levels, and anemia.
Mrs. Gilbert’s hip replacement surgery was complicated by an interoperative femur
fracture that required placing her under general anesthesia and caused substantial blood
loss.
       3
         Business and Professions Code section 3502.1 allows a physician to delegate the
issuance of drug orders to a physician assistant according to specified written protocols,
and in issuing such orders the assistant acts as the physician’s agent. (Id., subd. (a)(2).)
A physician assistant authorized to issue drug orders must register with the United States
Drug Enforcement Administration (DEA) and must complete a course in order to issue
drug orders for schedules II through V controlled substances without a physician’s
advance approval. (Id., subds. (c)(2) & (f).) When a physician assistant issues a schedule
II drug order, the supervising physician must review, countersign, and date the patient
record within seven days. (Id., subd. (e).) While petitioner offers evidence on appeal that
Ms. Cabrera is registered with the DEA, the record is unclear whether the other
requirements of section 3502.1 were met in this case.

                                              3
major surgery was not included in the delegation of services agreement between
petitioner and Ms. Cabrera, and even if it were, a physician assistant would be “totally
unqualified to make the medical decisions” regarding Mrs. Gilbert’s postoperative care.
       In requests for production nos. 23 and 24, real parties sought to discover all
postoperative orders signed by petitioner between June 2010 and June 2011 and by
Ms. Cabrera between June 2009 and June 2011, which provided for the administration of
opioids, including hydromorphone. The requests allowed for the redaction of patients’
names and personal identifying information. Petitioner objected to these requests as
overbroad, irrelevant, and violative of third party privacy rights. Real parties moved to
compel production. After allowing additional briefing and argument, the court granted
the motion to compel, but limited the scope of discovery to 160 postoperative orders
including provisions for the administration of opioids, split equally between surgeries
petitioner performed at Cedars before and after Mrs. Gilbert’s surgery. Upon seeking
clarification, petitioner was given 15 days to produce the entire postoperative orders, not
limited to their pain management provisions.
       On petitioner’s request, we issued an alternative writ directing the trial court to
vacate its order granting the motion to compel as to requests for production nos. 23 and
24 and to deny the motion as to those requests, or show cause for not doing so. We also
stayed the discovery order.


                                       DISCUSSION
       Petitioner argues the discovery order violates the physician-patient privilege and
third party privacy rights, seeks production of irrelevant evidence, and is unduly
burdensome. We generally review discovery orders for abuse of discretion, but we
independently review issues of law, such as those involving statutory interpretation.
(Pomona Valley Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687,
692–693.)




                                              4
                                               I
       We begin with relevance. “Unless otherwise limited by order of the court . . . any
party may obtain discovery regarding any matter, not privileged, that is relevant to the
subject matter involved . . . if the matter either is itself admissible in evidence or appears
reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Pro.,
§ 2017.010.) In the trial court, the parties disagreed whether the entire postoperative
orders or only the provisions for the administration of opioids were subject to the
discovery order. In response to petitioner’s request for clarification, real parties argued in
a conclusory fashion that other provisions in the orders, such as whether a patient is
ordered returned to the orthopedic floor or how often vital signs are to be checked, are
highly relevant to the litigation. The trial court apparently agreed since it directed
petitioner to produce the entire postoperative orders, even though real parties’ separate
statement supporting the motion to compel and the court’s findings on the motion were
limited only to the relevance of provisions for the administration of opioids.
       In their return, real parties argue that discovery of other patients’ postoperative
orders is relevant to “whether the Dilaudid Order arose from Dr. Snibbe’s practice of
always dictating to Ms. Cabrera as she makes the postoperative orders with the two of
them discussing the case with the anesthesiologist; or instead the Dilaudid Order was
made because Dr. Snibbe regularly permitted Ms. Cabrera to rely on boilerplate drug
orders for the administration of opioid pain medication.” Real parties do not argue that
all provisions in petitioner’s postoperative orders are “boilerplate.” Nor do they explain
the independent relevance of provisions for other patients’ return to the orthopedic unit
and vital signs checks. Significantly, the trial court denied real parties’ separate requests
to discover all postoperative orders, finding no evidence that orders not involving
provisions for “opioid pain medications would be relevant to the issues in this case,” and
concluding that the discovery of such orders “would essentially constitute a fishing
expedition” and infringe on third-party privacy rights without a compelling need.
       As it stands, the discovery order is too broad. Based on real parties’ limited
showing and the trial court’s finding of relevance only as to the opioid provisions of

                                               5
postoperative orders, allowing discovery of the orders in their entirety is unreasonable. It
is all the more so because production of entire orders may raise legitimate concerns about
the scope of intrusion into patient privacy rights, which we discuss later in this opinion.
But we do not agree with petitioner’s argument that the opioid provisions in
postoperative orders are irrelevant as well.
       Petitioner relies on Bowen v. Ryan (2008) 163 Cal.App.4th 916 (Bowen) to argue
that his treatment of other patients is irrelevant to whether his treatment of Mrs. Gilbert
fell below the standard of care and that real parties essentially seek to discover
inadmissible character evidence. In Bowen, supra, 163 Cal.App.4th 916, a dentist was
sued for choking and shoving a difficult child against a wall during an appointment. At
trial, evidence was introduced of nine other incidents of alleged mistreatment of difficult
children by the defendant during appointments. (Id. at p. 918.) The Court of Appeal
rejected the plaintiff’s argument that evidence of the unrelated incidents was admissible
to demonstrate that defendant acted in accordance with his usual custom or habit. The
court explained that “[c]ustom or habit involves a consistent, semi-automatic response to
a repeated situation. [Citations.]” The court concluded that the defendant’s mistreatment
of “nine of some 45,000 patients,” in different ways and under different circumstances,
did not qualify as custom or habit; it was, rather, improper character evidence. (Id. at
p. 926.)
       Bowen is distinguishable because, here, petitioner himself placed at issue his
custom and practice of preparing post-operative orders. “Any otherwise admissible
evidence of habit or custom is admissible to prove conduct on a specified occasion in
conformity with the habit or custom.” (Evid. Code, § 1105.) Specifically, such evidence
can be used to show “it was unlikely that a defendant was negligent on a particular
occasion.” (Dincau v. Tamayose (1982) 131 Cal.App.3d 780, 793–795 [evidence of
habitual response of doctor and staff to telephone calls about children’s ailments
admissible to show due care in case of alleged delay in diagnosing infant with spinal
meningitis].) Petitioner’s deposition testimony that it is his custom and practice to dictate
post-operative orders to his physician assistant can be used to show it was unlikely

                                               6
Ms. Cabrera filled out Mrs. Gilbert’s postoperative order on her own, without any input
from petitioner.
       Real parties, in turn, seek to rebut petitioner’s testimony with evidence showing
that petitioner routinely allowed Ms. Cabrera to fill out postoperative orders with
“boilerplate” provisions for the administration of opioids. Such evidence of custom and
practice is not improper character evidence even though it might also reflect poorly on
petitioner’s character. (Cf. Marshall v. Brown (1983) 141 Cal.App.3d 408, 416 [evidence
of defendants’ policy of giving employees bad recommendations admissible to prove
conduct on particular occasion].) Petitioner is incorrect that real parties would need to
prove the other patients’ cases are medically similar to Mrs. Gilbert’s, which would
require a review of each patient’s entire medical file. The only similarity needed to show
petitioner’s custom and practice would be in the substance of the pain management
provisions in the postoperative orders. If all or substantially all postoperative orders
include substantially similar provisions for opioids, the orders would tend to show that
those provisions were indeed “boilerplate,” rather than patient specific.4
       We next consider whether the limited production of the pain management
provisions of otherwise redacted postoperative orders violates the physician-patient
privilege or the patients’ right to privacy.
                                               II
       The physician-patient privilege protects from disclosure confidential
communications between a patient and his or her physician. (Evid. Code, § 994.) Its
dual purpose is to protect the patient from the humiliation that might follow the
disclosure of his or her ailment and to encourage full disclosure to the physician of
information necessary for diagnosis and treatment. (Board of Medical Quality Assurance
v. Gherardini (1979) 93 Cal.App.3d 669, 678–679.)

       4
         Our decision does not preclude real parties from requesting additional discovery
if the pain management provisions of postoperative orders turn out to be “boilerplate,”
and real parties show the relevance of such other provisions as the return of patients to
the orthopedic floor and standard vital signs checks to petitioner’s custom and practice of
preparing postoperative orders.
                                               7
       We do not agree with real parties’ argument that petitioner waived the physician-
patient privilege by failing to raise it in opposition to the request for production. While a
physician may claim the physician-patient privilege, only the holder of the privilege may
waive it, and the physician is not its holder. (See Evid. Code, §§ 912, 993, 994; cf.
Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 602–603 [psychotherapist not
holder of psychotherapist-patient privilege].) Besides, petitioner’s objection on privacy
grounds was sufficient since the physician-patient privilege and the constitutional right of
privacy in medical records are “closely related protections against public disclosure of
private information.” (Binder v. Superior Court (1987) 196 Cal.App.3d 893, 899
(Binder).)
       Real parties interpret the physician-patient privilege as excluding physician orders.
This narrow interpretation is contrary to the plain language of Evidence Code section
992, which defines “confidential communication” to include not only information
disclosed by the patient but also “a diagnosis made and the advice given by the
physician.” (See Carlton v. Superior Court (1968) 261 Cal.App.2d 282, 288–289
[physician orders within scope of privilege].)5
       But the physician-patient privilege will not be violated by the limited production
of redacted postoperative orders in this case. In Rudnick v. Superior Court (1974)
11 Cal.3d 924 (Rudnick), which involved a request for production of adverse drug
reaction reports, the Supreme Court explained for the guidance of the trial court that “if
the disclosure reveals the ailments but not the patient’s identity, then such disclosure


       5
         At oral argument, real parties argued for the first time that physician assistant
orders do not fall within the physician-patient privilege, citing Duronslet v. Kamps (2012)
203 Cal.App.4th 717, 736 (holding physician-patient privilege does not apply to nurses or
other medical staff working under physician’s supervision or acting as physician’s agent).
We consider this argument forfeited because real parties could have presented it in their
return but did not do so. (See Yee v. Cheung (2013) 220 Cal.App.4th 184, 197, fn. 9.)
Moreover, in light of petitioner’s testimony that his practice is to dictate postoperative
orders to his physician assistant, it is at least arguable that orders signed by Ms. Cabrera
may be treated as physician orders for purposes of the physician-patient privilege.

                                              8
would appear not to violate the privilege.” (Id. at p. 933–934, fn. 13.) Petitioner relies
on Binder, supra, 196 Cal.App.3d 893, where the court declined to apply what it
considered to be a dictum in Rudnick, supra, 11 Cal.3d 924 to photographs of patients’
skin lesions. The court in Binder acknowledged that the dictum in Rudnick “may be
correct under some circumstances.” It distinguished the reports in Rudnick from
photographs because “it is one thing to have a description of one’s ailment read, but quite
another to have that ailment actually depicted in a photograph.” (Binder, at p. 899.) The
Binder court was particularly concerned that the disclosure of patient photographs
“would discourage patients from allowing physicians to photograph their ailments or
other conditions.” (Ibid.)
       The postoperative orders at issue in this case do not implicate the concerns in
Binder, supra, 196 Cal.App.3d 893 because there is no indication they contain
photographs. If Mrs. Gilbert’s order is any indication, postoperative orders are multi-
page form orders that provide standard options for patient postoperative care, including
pain management options, to be checked off or filled in as needed. In the top left corner
of each page, Mrs. Gilbert’s order identifies “total hip replacement” as the type of surgery
performed at Cedars’ Department of Surgery. Her personal identifying information is
stamped in the upper right hand corner of the page. At the bottom, every page contains a
signature-and-date block. The pain management section appears on page two of the
order. It includes the names of the pain medications ordered, their doses, frequency and
means of administration. This section makes no reference to Mrs. Gilbert’s medical
history. The page on which it appears can be easily redacted by whiting out the patient
identifying information and orders unrelated to pain management. Petitioner has not
shown that any other format is used in postoperative orders subject to discovery.
       Petitioner appears to argue that the physician-patient privilege is absolute and
applies even if the patient is “deidentified.” The non-California cases the parties cite
indicate a split of authority on the issue. Several courts have expressly approved the
dictum in Rudnick, supra, 11 Cal.3d 924 that disclosure of the ailment without a
disclosure of the patient’s identity does not violate the physician-patient privilege. (See

                                              9
Terre Haute Regional Hosp., Inc. v. Trueblood (Ind. 1992) 600 N.E.2d 1358, 1360;
Ziegler v. Superior Court in and for Pima County (Ariz. 1982) 656 P.2d 1251, 1255;
Community Hospital Ass’n v. District Court In and For Boulder County (Colo. 1977) 570
P.2d 243, 245.) Other courts have applied the physician-patient privilege out of concern
that the patient’s identity may be recognized from information about the patient’s health
history included in the medical records. (See e.g. People ex rel. Dept. of Professional
Regulation v. Manos (Ill. 2002) 782 N.E.2d 237, 246, quoting Parkson v. Central
DuPage Hospital (Ill. 1982) 435 N.E.2d 140, 144 [history of patients’ prior and present
medical conditions included in “admit and discharge summaries” made possibility of
patient recognition very high].) Here, real parties do not request production of the
patients’ entire medical records, and the possibility of patient recognition from the
disclosure of deidentified postoperative orders is remote, especially when limited to the
pain management provisions of such orders pursuant to our decision here.
       Additionally, while some states generally prohibit disclosure of patient records
even after redaction of personal information (see e.g. Roe v. Planned Parenthood
Southwest Ohio Region (Ohio 2009) 912 N.E.2d 61, 71; In re Columbia Valley Regional
Medical Center (Tex.App. 2001) 41 S.W.3d 797, 802), others recognize that whether
redaction is sufficient depends on the circumstances of each case. (See Staley v.
Northern Utah Healthcare Corp. dba St. Mark’s Hospital (Utah 2010) 230 P.3d 1007,
1012.) Neither Rudnick, supra, 11 Cal.3d 924, nor Binder, supra, 196 Cal.App.3d 893
suggests that a blanket prohibition against disclosure of redacted patient medical records
exists or should exist in California. The physician-patient privilege does not prevent the
disclosure of portions of redacted postoperative orders in this case.
                                             III
       The right to privacy protects the “individual’s reasonable expectation of privacy
against a serious invasion.” (Los Angeles Gay & Lesbian Center v. Superior Court
(2011) 194 Cal.App.4th 288, 307 (Los Angeles Gay & Lesbian Center), quoting Pioneer
Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) “If the invasion
of privacy is serious, then the court must balance the privacy interest at stake against

                                             10
other competing interests, which include the interest of the requesting party, fairness to
litigants in conducting the litigation, and the consequences of granting or restricting
access to the information.” (Ibid.)
       Petitioner argues the trial court failed to balance third-party privacy rights against
real parties’ need for discovery. The court denied real parties’ request for production of
all postoperative orders “regardless of whether they involved administration of opioids”
because it “could infringe the privacy rights of third parties without compelling need.”
But it found good cause for the limited production of postoperative orders providing for
the administration of opioids in other patients’ cases because those orders could show
petitioner allowed Ms. Cabrera to issue “boilerplate” opioid orders. The court’s findings
indicate the court balanced real parties’ need for discovery of opioid orders against non-
parties’ privacy right in their medical records.
       To require balancing at all, an intrusion into privacy rights must be “serious in
nature, scope, and actual or potential impact. [Citation.]” (Los Angeles Gay & Lesbian
Center, supra, 194 Cal.App.4th at p. 307.) But patients’ privacy rights are not infringed
if “neither disclosure of the patients’ identities nor disclosure of identifying medical
information was requested.” (Board of Medical Quality Assurance v. Hazel Hawkins
Memorial Hospital (1982) 135 Cal.App.3d 561, 565 [request for unnamed charts of four
patients did not infringe on patients’ privacy rights]; see also Kizer v. Sulnick (1988)
202 Cal.App.3d 431, 439 [privacy rights require no more than deletion of named medical
records in health study or “if feasible, the deletion of information which individually
identifies the participants”].) The limited production of redacted postoperative orders
cannot be said to infringe on patients’ privacy rights any more than the production of
unnamed patients’ charts.
       Most recently, in Sander v. State Bar of California (2013) 58 Cal.4th 300, 326, our
Supreme Court declined to hold “as a matter of law that bar applicants’ constitutional
rights of privacy preclude disclosure” of information included in the State Bar admissions
database (such as the applicant’s race, ethnicity, law school, bar exam results, and grade
point averages) “even in a deidentified form.” The court did not reach the factual dispute

                                             11
whether it is possible to successfully deidentify information obtained from government
databases.
       Petitioner argues generally that patients have substantial privacy interests in their
medical records, but does not explain how any patient can be identified from the limited
information included in the redacted postoperative orders at issue in these proceedings.
The suggestion that redacted orders would disclose the patients’ age, gender, weight and
other personal information is unsupported because none of this information appears in the
body of Mrs. Gilbert’s postoperative order and the stamp bearing personal identifying
information will be redacted.
       The additional suggestion that improving reidentification techniques would pose
actual danger to personal health information is speculative. It is based on the successful
reidentification experiment a data specialist performed on an anonymized cancer patient
database, which the Illinois Supreme Court rejected as definite proof of actual danger of
re-identification. (Southern Illinoisan v. Illinois Department of Public Health (Ill. 2006)
844 N.E.2d 1; see generally Yakowitz, Tragedy of The Data Commons (2011) 25 Harv.
J.L. & Tech. 1, 41 [arguing that hypothetical danger of reidentification is no greater than
other information-based risks, such as hacking].)
       Petitioner has made no showing that the postoperative orders in this case cannot
successfully be redacted. To the extent he argues that disclosure of redacted orders
nevertheless violates the patients’ privacy rights as a matter of law, that is not the law in
California. Moreover, to the extent the redacted orders would reveal information about
the patients’ health and ailments, such as the type of surgery performed or type and
dosage of pain medication ordered, there is no indication that they would reveal
particularly sensitive or embarrassing information comparable to the photographs of
possibly cancerous skin lesions at issue in Binder, supra, 196 Cal.App.3d 893, 899, or the
information about “sexually transmitted disease, possible HIV status, and sexual
orientation” at issue in Los Angeles Gay & Lesbian Center, supra, 194 Cal.App.4th at
page 308. Petitioner’s deposition testimony indicates that he tends not to make orders for
pain medication for patients taking heavy doses of opioids, preferring to refer such

                                              12
patients to a pain management service. If so, the postoperative orders subject to
discovery in this case appear less likely to include significant information about patients
with any drug dependency.
       Private information may be discoverable if directly relevant to the litigation.
(Binder, supra, 196 Cal.App.3d at p. 900.) Generally, the least intrusive means must be
utilized when privacy rights are at stake. (Lantz v. Superior Court (1994) 28 Cal.App.4th
1839, 1855.) A compelling need for private information does not exist if the information
can be obtained through nonconfidential sources. (Harding Lawson Associates v.
Superior Court (1992) 10 Cal.App.4th 7, 10.) However, absent a showing of a serious
intrusion into patient privacy, there is no need to balance privacy interests against the
need for discovery. (Los Angeles Gay & Lesbian Center, supra, 194 Cal.App.4th at
p. 307.) Because the production of portions of redacted orders would not invade patient
privacy, real parties need not show a compelling need for discovery. We nevertheless
agree with their contention that the opioid orders are directly relevant and may provide
information not realistically obtainable from other sources.
       Petitioner suggests that deposing real parties’ expert would show he can render an
opinion without reference to orders in other patients’ cases. In his declaration, the expert
already has rendered an opinion that the opioid order in Mrs. Gilbert’s case fell below the
standard of care whether it was prepared by petitioner or Ms. Cabrera, for whose acts
petitioner is responsible. The reason real parties seek to discover other patients’ orders is
not that the expert could not render an opinion on the standard of care without them, but
that petitioner has not conceded he breached that standard. In his deposition, petitioner
testified he and Ms. Cabrera together decided what postoperative relief to order for Mrs.
Gilbert based on various factors specific to her case, suggesting that petitioner exercised
his medical judgment. Real parties’ theory is that Ms. Cabrera filled the postoperative
order without any input from petitioner and without consideration of Mrs. Gilbert’s
condition. They admittedly have not deposed Ms. Cabrera because they do not expect
she would be willing to confirm their theory and thus jeopardize her physician assistant
license. But if postoperative orders in all or substantially all other patient cases include

                                              13
substantially similar opioid provisions as the order in this case, that would weigh against
finding that petitioner exercised medical judgment or supervision over Ms. Cabrera, thus
providing additional support for the expert’s opinion and strengthening real parties’ case.
       Petitioner insists that notice should be given to the patients whose records would
be disclosed and that real parties circumvented the notice and opportunity to object under
provisions of Code of Civil Procedure section 1985.3. That statute requires a party
utilizing a subpoena duces tecum to obtain a consumer’s hospital records to give notice to
the consumer. (In re R.R. (2010) 187 Cal.App.4th 1264, 1272–1273, fn. 7, citing Code
Civ. Pro., § 1985.3, subds. (b)(1) & (2).) Petitioner offers no argument or authority that a
subpoena was required in this case, and in any event the notice provisions do not apply
when a custodian of records is required to delete “all information which would in any
way identify any consumer whose records are to be produced.” (Code Civ. Pro., §1985.3,
subd. (i).)
                                             IV
       Petitioner argues that, even as limited to production of 160 postoperative orders,
the discovery order still is unduly burdensome because he needs to expend valuable time
identifying, reviewing, and redacting those orders. According to real parties, the undue
burden argument was untimely because petitioner raised it in his supplemental papers.
But the trial court agreed with petitioner that reviewing over 900 charts and 600 surgeries
would pose an undue burden, and limited the number of discoverable orders to alleviate
that burden. Under the abuse of discretion standard, we cannot say that the limited
discovery order is unreasonable. (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th
876, 881–882.)
       Petitioner’s deposition testimony indicates he has access to his patients’ records at
Cedars through the Internet. Nevertheless, he insists that he cannot access patient records
within the custody and control of Cedars except for legitimate medical reasons and that
he may be subject to penalties under the state Confidentiality of Medical Information Act
(CMIA) (Civ. Code, § 56 et seq.) and the federal Health Insurance Portability and
Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320 et seq.) if he accesses records to

                                             14
comply with the discovery order in this case. As real parties point out, producing
redacted postoperative orders in response to the trial court’s discovery order violates
neither CMIA nor HIPAA, both of which allow disclosure of medical information
pursuant to a court order without patient authorization. (See Civ. Code, §§ 56.05,
subd. (j) [CMIA protects individually identifiable medical information], 56.10, subds. (a)
& (b)(1) [disclosure compelled by court order permitted]; 45 C.F.R. § 164.512(e)(1)(i)
[disclosure authorized by court order permitted].) In light of these provisions,
petitioner’s concerns appear to be unjustified.


                                      DISPOSITION
       The petition for writ of mandate is granted in part and denied in part. Let a
peremptory writ of mandate issue directing the trial court to set aside its order of
August 20, 2013, as clarified on October 24, 2013, which granted real parties’ requests
for production nos. 23 and 24 and required production of 160 postoperative orders in
their entirety. The trial court is directed to issue a new order, requiring production of the
pain management provisions of the 160 postoperative orders. Patients’ personal
identifying information must be redacted, so that the redacted orders include only
information about the type of surgery, the medication ordered, and the dates and
signatures on the order. In all other respects the petition is denied.
       The parties are to bear their own costs.
       CERTIFIED FOR PUBLICATION



                                                   EPSTEIN, P. J.
We concur:




       WILLHITE, J.                                MANELLA, J.



                                              15
