Opinion
Civil No. CCB-02-2568
March 2, 2004
MEMORANDUM
The parties to this Americans with Disabilities Act ("ADA") case have filed two sets of papers requiring the court to revisit issues addressed in previous Memoranda and Orders. First, the defendants' attorney has filed motions for protective orders on behalf of the members of the Baltimore County Council (who are not parties to this lawsuit), arguing that the councilors' legislative immunity affords a testimonial privilege to avoid deposition by the plaintiff. (Docket nos. 30-35.) In opposition, the plaintiff, A Helping Hand, LLC, argues that this court's previous opinion addressing the issue of legislative immunity, A Helping Hand, LLC v. Baltimore County, 295 F. Supp.2d 585, 589-91 (D. Md. 2003) (" Helping Hand I") (docket nos. 24-25), requires the councilors to submit affidavits, rather than motions signed by defense counsel. Second, the defendants have filed a motion to compel discovery of the patient records of recovering heroin addicts who receive methadone therapy from Helping Hand. (Docket no. 39.) At present, a protective order issued under Rule 26(c) of the Federal Rules of Civil Procedure bars such discovery on grounds that the limited probative value of the information for the defense does not justify the imposition involved in releasing such sensitive personal information. See Helping Hand I, 295 F. Supp.2d at 592-93.
This Memorandum will not restate the facts or posture of the case, but rather will presume familiarity with the court's previous opinions.
Regarding the councilors' request for protective orders, the court previously ruled that while the councilors appeared to hold a testimonial privilege with respect to the discovery Helping Hand seeks, the County Council could not assert the privilege on the councilors' behalf because the privilege is individual in nature. See Helping Hand I, 295 F. Supp.2d at 589-91; see also A Helping Hand, LLC v. Baltimore County, __ F. Supp.2d __, 2004 WL 86177 (D. Md. Jan. 20, 2004) (" Helping Hand II") (docket nos. 36-37) (rejecting the plaintiffs suggestion that the ordinance at issue was a bill of attainder and therefore not a basis for legislative immunity). The court's opinion envisioned that the parties would follow the procedure indicated by Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292 (D. Md. 1992): Helping Hand was to notice the individual councilors for deposition, leaving it up to each councilor whether to assert the privilege. See Helping Hand I, 295 F. Supp.2d at 590 (citing Schaefer, 144 F.R.D. at 299 n. 16). Helping Hand has now given notice to the councilors, and defense council has filed a motion on behalf of each councilor seeking to prevent the depositions.
While a literal reading of Schaefer's reference to "requir[ing] each [legislator] to assert the privilege on his own behalf might suggest that an affidavit is required, 144 F.R.D. at 299 n. 16, assertions of legislative immunity in the form of a motion for a protective order are commonplace. See, e.g., Knights of Columbus v. Town of Lexington, 138 F. Supp.2d 136, 137, 142 (D. Mass. 2001); Miles-Un-Ltd., Inc. v. Town of New Shoreham, 917 F. Supp. 91, 96 (D.N.H. 1996); Searingtown Corp. v. Incorporated Village of N. Hills, 575 F. Supp. 1295, 1296 (E.D.N.Y. 1981). I can see little point in rejecting the councilors' claims of privilege simply because they were prepared by the attorney for the Council as a whole. Absent some indication otherwise, I presume that defense counsel would not have filed motions on behalf of the individual councilors, let alone claimed to act as their attorney, if he had not discussed the matter with the councilors and received each councilor's authorization. In light of that assumption, I find that the councilors have validly asserted a testimonial privilege. I also hold, for reasons indicated in my previous opinion, that the privilege extends to the discovery Helping Hand is seeking. Thus, Helping Hand will be barred from conducting depositions regarding the councilors' intentions in passing the legislation at issue in this litigation.
Defense counsel should notify the court immediately if this assumption is false.
Though the individual councilors had not yet asserted the privilege, my previous opinion explained that "the councilors' claim of privilege, should they choose to assert it, would most likely be valid." See Helping Hand I, 295 F. Supp.2d at 590-91.
As to the second set of filings, the dispute regarding the motion to compel centers on the implications for this litigation of my opinion in START, Inc. v. Baltimore County, 295 F. Supp.2d 569 (D. Md. 2003), a case involving the same defendants and another aspiring methadone clinic. In that case, I rejected the defendants' argument that recovering drug addicts could not qualify as "disabled" under the ADA because they posed a "significant risk" to the community. See id. at 577-79. Noting that the defendants based their significant risk theory on nothing more than generalizations about heroin addiction and crime in a single criminology text, id. at 578 n. 4, my opinion explained:
A court applying the [significant risk] test "must not base its calculus on stereotypes or generalizations about the effects of a disability but rather must make `an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence.'" Montalvo [v. Radcliffe, 167 F.3d 873, 876-77 (4th Cir. 1999)] (quoting 28 C.F.R. § 36.208(c)); see also Bragdon v. Abbott, 524 U.S. 624, 649 (1998) (noting that "the risk assessment must be based on medical or other objective evidence" and that even a good-faith belief that the risk is severe will not remove liability under the ADA). Based on these stringent requirements, establishing a significant risk in this case would require specific evidence of "severe and likely harms to the community that are directly associated with the operation of the methadone clinic." [ Bay Area Addiction Research Treatment, Inc. v. City of Antioch, 179 F.3d 725, 736-37 (9th Cir. 1999) (" BAART").]Id. at 578 (footnote omitted). Seizing on the word "individualized" in this passage, the defendants argue that they must have access to Helping Hand's patient records so as to probe the viability of a significant risk defense in this case.
The defendants' argument takes the court's language out of context. While the opinion indicated the need for an "individualized" factual showing, the reference was to the individual circumstances of the plaintiff — the methadone clinic — not the clinic's patients. As I emphasized both in START and in my previous opinion in this case, the relevant predicate for an ADA claim based on a medical clinic's affiliation with disabled patients is a showing that typical patients meeting the clinic's treatment criteria would qualify as disabled under the statutory definition. See START, 295 F. Supp.2d at 576-77; Helping Hand I, 295 F. Supp.2d at 592-93. By the same token, the relevant showing of "significant risk," as I explained in START, is "specific evidence of `severe and likely harms to the community that are directly associated with the operation of the methadone clinic.'" START, 295 F. Supp.2d at 578 (quoting BAART, 179 F.3d at 736-37). On that score, individualized patient information is not nearly as probative as, for example, data about whether crime rates have increased in the vicinity of Helping Hand's clinic during its near two years of operation — or, indeed, data about whether methadone clinics are generally, or even ever, associated with increased crime. Unless and until the defendants demonstrate some effort to establish a significant risk by such other means, I am not prepared to hold that the patient records are sufficiently probative to justify the serious privacy intrusion involved in releasing personalized medical information. Accordingly, the defendants' motion to compel discovery will be denied.
Other relevant information might include security precautions taken by the clinic, and with what frequency, if at all, police officers have been called to respond to incidents involving clinic patients.
Helping Hand argues that releasing the patient records would in fact be illegal under various statutes and regulations. I need not address this argument because my decision to keep in place the protective order disposes of the defendants' motion.
A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby Ordered that:
1. the Motions for Protective Order filed by S.G. Sam Moxley (docket no. 30), T. Bryan Mclntire (docket no. 31), John Olszewski, Sr. (docket no. 32), Joseph Bartenfelder (docket no. 33), Kevin Kamenetz (docket no. 34), and Wayne Skinner (docket no. 35) shall be GRANTED;
2. the defendants' Motion to Compel (docket no. 39) shall be DENIED; and
3. copies of this Order and the accompanying Memorandum shall be sent to counsel of record.