ONOFRE PADILLA vs CITY OF SAN BUENAVENTURA

2025CUPP054997: ONOFRE PADILLA vs CITY OF SAN BUENAVENTURA

(3) The raw test data shall not be released directly to Plaintiff’s counsel, but to Plaintiff’s retained neuropsychologist-expert at a mutually-agreed-upon date within 30 days of exam completion. If Plaintiff has not retained a neuropsychologist expert within 30 days of exam completion, then the exchange of the raw test data shall occur at a mutually agreed upon date within 10 days of Plaintiff retaining a neuropsychology expert.

(4) The parties are ordered to meet and confer and draft a compromise protective order guaranteeing both confidentiality to Plaintiff and the secrecy of the testing procedures.

Notice to be provided by Defendant’s counsel.

Discussion:

The fundamental dispute here is not whether Plaintiff must attend a neuropsychological exam. He agrees to attend. The dispute is what tests are to be performed, who gets the raw testing materials afterward, and whether the exam may be recorded. The court must decide whether test-security concerns justify limiting disclosure, or whether Plaintiff’s need for meaningful discovery and cross-examination supports direct disclosure to counsel.

Statutory authority and case law appear to require that the trial court address this sort of dispute as follows:

(1) Determine if good cause exists to order the mental examination and specify the exact tests to be administered.

(2) If good cause exists, then the court must grant the request to audio record the examination as a matter of statutory right.

(3) The court must then exercise its discretion to resolve the transmission dispute by balancing the Plaintiff's interest in effective cross-examination against the City's interest in test security, deciding whether to order direct disclosure to Plaintiff's counsel under a protective order or restrict the transmission of the raw data and recordings strictly to a qualified neuropsychologist.

1. Leave to Conduct the Mental Examination and the Showing of Good Cause

The threshold issue the trial court must address is whether to grant the City leave to conduct the neuropsychological examination. Here, the parties agree there is good cause for the exam, and the Court finds the nature of the injury supports good cause for the exam.

Plaintiff argues the notice of the exam does not specify which of the tests listed will be conducted. The Court finds the list of testing procedures identified in Exhibit B to the Demand for Neuropsychological Exam sufficiently places Plaintiff on notice of the potential tests to be performed. This notice is compliant with CCP §2032.320(d).

2025CUPP054997: ONOFRE PADILLA vs CITY OF SAN BUENAVENTURA

2. The Right to Record the Examination

Under CCP § 2032.530 both the examiner and the examinee have an absolute statutory right to record a mental examination using audio technology. (CCP § 2032.530; Randy's Trucking, Inc. v. Superior Court (2023) 91 Cal. App. 5th 818, 832-837.)

Because the right to audio record is statutory, the trial court must permit the audio recording of the examination.

3. Discretionary Authority to Disclose Raw Data and Audio Recordings to Counsel

After establishing the parameters and recording conditions of the examination, the court must resolve the central dispute: whether the raw test data and audio recordings must be disclosed directly to Plaintiff’s counsel or restricted to expert-to-expert transmission.

a. Statutory Disclosure Limits: Under CCP section 2032.610(a)(1), an examined party has the option to demand a "detailed written report" setting out the history, examinations, findings, "results of all tests made," diagnoses, prognoses, and conclusions of the examiner. (CCP § 2032.610.) However, this statutory provision does not expressly require the examiner to produce raw test data, test booklets, or the examinee's raw answers directly to counsel. The phrase "results of all tests" refers to the examiner's findings rather than the underlying raw written testing materials. (Randy's Trucking, Inc. at 834, Roe v. Superior Court (2015) 243 Cal. App. 4th 138, 149.)

b. Discretion to Order Wider Disclosure: Although CCP § 2032.610 does not mandate the delivery of raw data to counsel, the trial court possesses the inherent discretion to order the disclosure of raw testing data, test materials, and audio recordings to the examinee's attorney. There is no statutory authority precluding a trial court from ordering such disclosure. (Randy's Trucking, Inc. at 834-835.)

c. The Balancing Test for Disclosure: In exercising its discretion to order disclosure to counsel, the court must weigh the competing interests of the parties:

• Plaintiff’s Right to Discovery and Cross-Examination: The court must weigh the plaintiff's right to take discovery and effectively cross-examine the defense's expert witnesses under Cal Evid Code § 721(a), which includes examining the expert on the materials and reasons underlying their opinions. (Randy's Trucking, Inc. at 838.)

• Defendant's Test Security and Professional Integrity Concerns: The court must weigh the City's concerns regarding copyright protection, test security, and the ethical/professional obligations of the neuropsychologist. (Randy's Trucking, Inc. at 835-837; Carpenter v. Superior Court (2006) 141 Cal. App. 4th 249, 267.)

2025CUPP054997: ONOFRE PADILLA vs CITY OF SAN BUENAVENTURA

d. Adequacy of a Protective Order: To reconcile these competing interests, the court shall determine whether a protective order is sufficient to safeguard the integrity of the test materials. (Randy's Trucking, Inc. at 838-842.)

If the court determines that a protective order can be adequately enforced against Plaintiff's attorney (via contempt or other sanctions) and that the Defendant has not shown an unacceptable risk of inadvertent or abusive dissemination, the court may exercise its discretion to permit direct disclosure to Plaintiff's counsel under a protective order. (Randy's Trucking, Inc. at 838-842.)

e. Expert-to-Expert Transmission alternative: If the court finds the test-security concerns outweigh the immediate need for counsel's personal review, or if the court finds a protective order inadequate, it has the discretion to order that the raw data and recordings be transmitted only to a licensed neuropsychologist designated by the Plaintiff(Randy's Trucking, Inc. at 849.) Here, the Court finds the concerns by Dr. Schaeffer to be valid as to the raw test data. The Court orders that the raw test data shall not be released directly to Plaintiff’s counsel, but to Plaintiff’s retained neuropsychologist-expert at a mutually-agreed-upon date within 30 days of exam completion.

If Plaintiff has not retained a neuropsychologist expert within 30 days of exam completion, then the exchange of the raw test data shall occur at a mutually agreed upon date within 10 days of Plaintiff retaining a neuropsychology expert.

Additionally, as to the audio recording, testing materials, and test results (including the raw data), the parties are ordered to meet and confer and draft a compromise protective order guaranteeing both confidentiality to Plaintiff and the secrecy of the testing procedures.

Conclusion:

With the above limitations, Defendant’s motion for leave of court to conduct a mental examination is GRANTED.

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