Subpoena Costs: Setting the Standard for What is Reasonable and Necessary
The recently issued Opinion and Order Granting Petition for Reconsideration in the case Sarah Williams v. First Student and Broadspire administered by Gallagher Bassett, ADJ 839565 (LBO), January 27, 2017, Decision After Reconsideration, provides some guidance on the standards required to oppose costs of subpoenas for medical records by applicant’s attorney.
In this case, the injured worker was a school bus driver with a claim for cumulative injuries through March 9, 2011. During the discovery phase, defense counsel issued subpoenas for medical records of various locations. Applicant’s attorney later issued subpoenas to some of the same locations though copy service Med Legal LLC.
Defense counsel filed Petitions to Quash the subpoenas to Health Quest Multispecialty Group and Superior Care Medical Center as duplicate of defense counsel’s subpoenas. Those Petitions to Quash were granted by the WCJ. The defendant also moved to quash subpoenas issued to various other facilities including Broadspire as a party to the case. However, for reasons unknown, those Petitions to Quash were not acted upon by the WCJ and the records were produced. Copy service Med Legal LLC issued bills, filed a lien and prosecuted the costs related to subpoenas which were not quashed.
At trial, the lien claimant introduced evidence including the outstanding invoices and proofs of service of invoices. Lien claimant also submitted a July 31, 2013 letter summarizing the billings and requesting payment or a stated objection. Defendant did not introduce evidence of an objection to the lien claimant copy service.
After trial, the WCJ disallowed reimbursement for subpoenas to locations where the defendant had already issued its own subpoenas. The WCJ also disallowed the costs associated with the subpoena to Broadspire finding that Broadspite was a party to the case and therefore applicant’s attorney should have requested the documents informally before subpoenaing them.
The lien claimant filed a Petition for Reconsideration which was granted. On reconsideration, the WCAB commissioners held:
To establish its claim, the lien claimant has the burden to show:
- There was a contested claim at the time the expense was incurred;
- The expense was incurred for the purpose of proving or disproving the contested claim; and,
- That the expenses were reasonable and necessary at the time they were incurred.
(See Labor Code §4620 & 4621)
- A defendant shall notify a provider if it contests the reasonableness or necessity of the expenses and shall state the reasons therefore. (See Labor Code §4622(e)(1)). In essence, the defendant need to lodge an objection to the copy service within 60 days of receipt of billing.
- It is not necessary that the attorney first attempt to obtain records via written release before issuing a subpoena. (See Cal. Code Regs, 8 CCR §10530)
- Regarding defense position that the subpoenas served on locations previously subpoenaed by defendant counsel were not reasonable or necessary, the WCAB commissioners noted there was no evidence that the records were produced, received or when they were received pursuant to the defendant’s subpoena.
- Regarding the defense position that the subpoena to Broadspire was inappropriate as Broadspire was a party to the case and the applicant’s attorney should have first sought the documents by a direct informal request, the WCAB commissioners found no legal support for the proposition.
It seems that if only the defendant would have offered evidence that the records it had previously subpoenaed had been received and that defendant had notified the lien claimant of its objection, the result of trial may have been different as to the reasonableness and necessity of those subpoena costs.
With regard to the holding that the subpoena to Broadspire was appropriate, there being no cited authority to the contrary, it seems the defendant may have cited Board Rule 10532 which states: “A notice to appear or produce in accordance with Code of Civil Procedure Section 1987 is permissible in proceedings before the Workers’ Compensation Appeals Board.” CCP §1987(c) provides for jurisdiction to request document from a party without the need for subpoena.
It would appear reasonable that the applicant attorney employ the authority of CCP §1987(c) to compel production of whatever records were sought from Broadspire through the WCAB jurisdiction over Broadspire as a party rather than subjecting the defendant to the costs of a subpoena.
While the WCAB may not be compelled to follow it, the spirit of CCP §2019.030 is reasonable to follow in any jurisdiction. That section states:
(a) The court shall restrict the frequency or extent of use of a discovery method provided in Section 2019.010 if it determines either of the following:
(1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.
(2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.
(b) The court may make these determinations pursuant to a motion for a protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.
(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.