He's constantly accusing me of prescrip. drug abuse, which is not true, but he was addicted our entire marriage and went through detox and rehab in May 08.
Craig Alan DarlingDivorce / Separation LawyerIrvine, CA ·
The records you are attempting to subpoena are arguably privileged per the Physician-Patient Privilege under California Evidence Code §994 and/or the Psychotherapist-Patient Privilege under California Evidence Code §1014. They are also protected by Responding Party’s Right to Privacy as provided for by the Constitution of the State of California, Article 1, §1.
If he has truly tendered this issue in the custody proceedings, then you can argue that the Patient-Litigant exception, pursuant to California Evidence Code §996, applies and acts as a waiver of the rights listed above. If you prevail, you will get the records. If he prevails, you do not get the records and may be required to pay the attorney fees and costs he incurred in trying to protect the rights listed above. See also Koshman v. Superior Court (1980) 111 Cal.App.3d 294, 296; Simek v. Superior Court (1981) 117 Cal.App.3d 169, 172; and Carlton v. Superior Court (1968) 261 Cal.App.2d 282, 289-290.
Given the long gap since the alleged drug abuse took place, I would guess that it is a long shot that you will obtain the records you are seeking.
You could try, and see if he objects. If he objects, you may have difficulty getting court to allow it. Rehab was 5 yrs ago, and the court may feel that is not relevant now. If you have any evidence he has been using drugs or liquor since detox, it may be.
Michelle Louise BlairFamily Law AttorneyEscondido, CA ·
Yes, you can do discovery even if you are in pro per and would have to follow the required rules of serving the subpoenas. If discovery is required I would recommend that you hire an attorney to assist you with this matter.
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If the issue of his physical and/or mental condition is relevant to the present custody proceedings, then arguably his medical history as may impact on his ability to care for your child/children while in his physical presence, and/or the placing your child/children's welfare in danger, would be material and relevant to the proceedings and therefore should be discoverable. However, his medical history is not discoverable merely because he is accusing you of drug abuse. I will defer to my CA colleagues, but I would think that if you are in the "discovery" stage of your legal proceeding, the first best step might be to make a formal demand that he provide you will HIPAA authorizations for the doctors who have prescribed him meds/and the pharmacies where he had them filled. If he objects, or does not comply, follow the procedures in CA to have sanctions imposed for failing to provide discovery. Good luck.
