United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SARAH KIM,

Plaintiff,

 v.

INTERDENT INC., et al.,

Defendants. /

No. C 08-5565 SI

ORDER GRANTING DEFENDANTS’

MOTION TO COMPEL THE

DEPOSITION OF KAREN

WEINBERGER AND RELEASE OF

RECORDS PURSUANT TO MAY 6, 2010

SUBPOENA

Defendants have filed a motion to compel the deposition of Karen Weinberger and the release

of records pursuant to a May 6, 2010 subpoena issued to Ms. Weinberger. Ms. Weinberger is a licensed

clinical social worker, and she treated plaintiff’s deceased husband, Dr. Richard Bae. Ms. Weinberger

has objected to the deposition and refused to produce records on the ground that her communications

with Dr. Bae are protected by the federal psychotherapist-patient privilege. See generally Jaffee v.

Redmond, 518 U.S. 1 (1996). However, under Federal Rule of Evidence 501, “in civil actions and

proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of

decision, the privilege of a witness, person . . . shall be determined in accordance with State law.” Fed.

R. Evid. 501. Plaintiff’s wrongful death and negligence claims arise under California law, and thus

California privilege law applies.

California law recognizes a psychotherapist-patient privilege. However, California Evidence

Code Section 1016 provides,

There is no privilege under this article as to a communication relevant to an issue

concerning the mental or emotional condition of the patient if such issue has been

tendered by:

Case 3:08-cv-05565-SI Document 98 Filed 06/04/10 Page 1 of 2
United States District Court

For the Northern District of California

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 California Civil Code § 377 was repealed in 1992, and § 377.60 is the current wrongful death

statute.

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(a) The patient;

(b) Any party claiming through or under the patient;

(c) Any party claiming as a beneficiary of the patient through a contract to which the

patient is or was a party; or

(d) The plaintiff in an action brought under Section 376 or 377 of the Code of Civil

Procedure for damages for the injury or death of the patient.

Cal. Evid. Code § 1016. Subsection (d) applies here because plaintiff has brought a claim for wrongful

death, and thus there is no privilege as to communications between Dr. Bae and Ms. Weinberger

regarding issues that are relevant to this case.1

 Indeed, plaintiff has filed a statement stating that she

does not object to Ms. Weinberger’s deposition and production of documents in response to the

subpoena.

 Accordingly, the Court GRANTS defendant’s motion to compel. (Docket No. 91). Defendants

shall meet and confer with Ms. Weinberger’s counsel regarding the scheduling of the deposition and

the production of documents. In addition, Ms. Weinberger may redact non-relevant information from

the records that she produces; if defense counsel wishes, the Court will conduct an in camera review

of the records to ensure that the redactions are appropriate. Defense counsel shall take care to limit

questioning to areas that are relevant to the claims and defenses in this case. 

IT IS SO ORDERED.

Dated: June 4, 2010 

SUSAN ILLSTON

United States District Judge

Case 3:08-cv-05565-SI Document 98 Filed 06/04/10 Page 2 of 2