HEARDEN, ET AL. VS. WINDSOR REDDING CARE CENTER, LLC, ET AL.

CASE NUMBER: CVPO21-0198083 Tentative Ruling on Motion to Quash Deposition Subpoenas: Non-party Deponents Antonio Gambino, Teresa Chupp, and Deborah Olsen move to quash deposition subpoenas issued by Plaintiffs. The non-party deponents are represented by the Attorney General of California. The motion is opposed by Plaintiffs, who issued the deposition subpoenas. As a preliminary matter, the Court finds that non-party deponents have standing to move to quash deposition subpoenas issued to them. 1

The Attorney General has established that the deponents, while state employees, were performing a federal function in conducting the investigations. Decl. Gilchrist, ¶ 3. Plaintiffs have presented no evidence to the contrary.

No employee or former employee of the DHHS may provide testimony or produce documents in any proceedings to which this part applies concerning information acquired in the course of performing official duties or because of the person's official relationship with the Department unless authorized by the Agency head pursuant to this part based on a determination by the Agency head, after consultation with the Office of the General Counsel, that compliance with the request would promote the objectives of the Department. 45 C.F.R. § 2.3.

The Agency head for Centers for Medicare and Medicaid Services (“CMS”) is the Administrator. 45 C.F.R. § 2.2(7). Here, the deponents move to quash the subpoenas and ask that Plaintiffs proceed with the standard procedure of seeking authorization from the head of DHHS, which is exactly what Plaintiffs did when they deposed Joanne Gilchrist last year. While Plaintiffs argue that “DHHS eventually agreed with plaintiffs position and withdrew their objections to the deposition of Ms. Gilchrist,” the letter attached as Exhibit A makes it clear that authorization was granted under 45 C.F.R. § 2.3.

While the Court sympathizes with Plaintiffs in the urgency given the upcoming trial date, there is nothing before the Court that leads the Court to find that these subpoenas are not subject to the federal prohibition. The subpoenas issued clearly seek information regarding investigations conducted for CMS, which is a federal agency.

The motion to quash is GRANTED. The moving parties did not provide a proposed Order as required by Local Rule of Court 5.17(D). The Attorney General is to prepare the Order.

IN RE: HOWE