Lawyers for the County of San Diego are once again being accused of snooping through confidential records to defend a civil lawsuit, the third time in recent months that plaintiffs have leveled such an allegation.

The new accusation was contained in a motion plaintiffs’ lawyers filed last Thursday in U.S. District Court, where the mother of a man who died in sheriff’s custody three years ago claimed her son was not properly supervised at the Vista Detention Facility.

According to the filing last week, the county asked medical personnel to review patient files written by Anne Brantman, the psychiatric nurse hired by the county to treat inmates at the Vista jail.


Brantman evaluated Jason Nishimoto at the lock-up in 2015 and noted that he was suicidal. Nishimoto, then 44, managed to hang himself even though deputies were told when he was jailed that he had tried to kill himself and required special supervision.

The County Counsel’s Office wants to use language in Brantman’s medical reports in other cases to impeach her testimony at trial, the motion says, without specifying what might be in the other files.

County officials did not respond Monday to questions about whether it is appropriate to examine confidential records unrelated to a pending lawsuit as a legal defense strategy. Instead, they issued issued a one-sentence statement.

“The county does not comment on pending litigation, but County Counsel complies with HIPAA when defending the County,” spokesman Michael Workman wrote. HIPAA is the Health Insurance Portability and Accountability Act, a federal law that protects confidential medical information.


The plaintiffs in the Nishimoto case said it was not clear whether the county obtained federal privacy waivers before accessing Brantman’s other medical records. They want access to the same documents and more time to collect evidence in the case.

“Since the county was able to review all of the prior notes created by Anne Brantman, and examine her on some of the language contained therein, defendant is entitled to the same information,” the motion states.

The law office representing Brantman directed questions about the legal strategy to the county of San Diego.

The current court schedule calls for discovery — the process of collecting evidence — to conclude by Oct. 29. The plaintiffs are asking Judge Roger T. Benitez to extend the deadline to Jan. 28.


San Diego lawyer Christopher Morris, who represents Nishimoto’s mother, Rochelle Nishimoto, said he was disappointed to learn that the county had accessed the medical files of unrelated inmates to defend the claim brought by his client.

“To me, it’s more than just a HIPAA violation,” Morris said. “It shows the lengths the county will go to in order to avoid taking responsibility for a death they could have easily prevented.”

The Nishimoto lawsuit is the third recent case in which county lawyers were noted to have used unrelated confidential files to defend civil litigation.

In August, one of two brothers suing the county for allegedly ignoring abuse claims at the hands of their foster parent filed a separate suit complaining that county lawyers wrongly accessed his private files.


Last month, the county agreed to pay $3 million to settle both lawsuits. Workman would not discuss the merits of the settlements or explain why it was a worthwhile use of tax dollars. He did not specify how much of the $3 million went to resolve the negligence lawsuit and how much went to close the invasion-of-privacy case.

Two weeks ago, another group of foster-care children filed a similar complaint against the county and two attorney’s in the County Counsel’s Office. That suit, which is requesting class-action status, also claims that county lawyers wrongly examined confidential juvenile files in order to defend an underlying suit.

Legal scholars and other experts questioned the appropriateness of county lawyers digging into records that are not available to the general public.

Robert Fellmeth, the University of San Diego law professor who also runs the Children’s Advocacy Institute, said plaintiffs and defendants have to have access to the same information for a civil dispute to be resolved in an equitable manner.


“County Counsel needs serious instruction on how it should handle a case against an aspect of its operation that involves liability of county employees -- particularly in the context of privacy concerns that either side may abrogate,” he said earlier this year.

County lawyer Erica Cortez, one of the co-defendants in the lawsuit, defended the practice during a hearing earlier this year.

“I would maintain that we need to review our client’s records in its entirety in order to serve in our multiple roles as in-house counsel,” Cortez told the judge in May. The defendants “have not proven that I am going into their records and getting information willy-nilly in order to sandbag them or attack them.”

That case is pending at the U.S. District Court in San Diego.


The judge in the Nishimoto litigation has yet to rule on the motion to allow plaintiffs access to the same records and additional time to conduct discovery.

Staff writer Morgan Cook contributed to this report.


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jeff.mcdonald@sduniontribune.com (619) 293-1708 @sdutMcDonald