Summary
finding that a subpoena issued to the educational institution seeking student records was defective and without merit
Summary of this case from In re Subpoena Issued to SmithOpinion
CIVIL ACTION NO. 02-3217, SECTION "R" (3)
August 20, 2003
The matters of Karen MacKenzie M.D.'s Motion for Leave to Amend and Motion to Compel Discovery came on for hearing before the undersigned Magistrate Judge. Participating were:
Robert E. McKnight and Maureen Jennings on behalf of the plaintiff Karen MacKenzie, M. D. James D. Morgan and Kevin Troutman on behalf of defendant Ochsner Clinic Foundation
For the reasons discussed below, the plaintiffs Motion to Amend is DENIED and the plaintiffs Motion to Compel production of certain "educational records" of non-party surgery residents without their consent is DENIED.
I. BACKGROUND
In her original Title VII complaint, Dr. MacKenzie (formerly a resident in general surgery at Ochsner Clinic Foundation), claims that she was the subject of pregnancy-based harassment which culminated in her constructive discharged in June, 2001. It is not disputed that during her three year tenure in the general surgery residency program at Ochsner Clinic ("Ochsner"), the plaintiff gave birth to two children. According to the plaintiff, news of her first pregnancy sparked "a severe or pervasive program of pregnancy-based harassment by Ochsner staff physicians and Dr. MacKenzie's residency program director, George M. Fuhrman, M.D." See Plaintiffs Memorandum in Support of Motion for Leave to Amend; Original Complaint filed October 24, 2002, at ¶ 7. Dr. MacKenzie transferred to Tulane Medical School for the remaining two years of her five-year general surgery residency. She filed an EEOC charge and then the captioned pregnancy discrimination lawsuit.
Plaintiff now seeks to amend her complaint to add a claim for invasion of privacy, based upon her relatively recent discovery of a memorandum physician's excuse in her personnel records at Tulane. See Memorandum to Dr. George M. Furhman dated February 8, 1999 [Plaintiffs Amended Complaint/Exh. "A"]. The subject correspondence is a memorandum from her obstetrician to the residency program director, Dr. Fuhrman, which had been apparently provided to the plaintiffs present employer (Tulane) by her former employer (Ochsner). It is disputed whether Dr. Furhman provided the correspondence directly to Tulane under separate cover or the memorandum was forwarded by Human Resources along with other personnel records provided in globo to Tulane by Ochsner. The one-page memorandum from Dr. MacKenzie's obstetrician to Dr. Fuhrman supplies the medical excuse for missing a certain period of work during the plaintiffs residency at Ochsner (i.e., complications with her first pregnancy).
Plaintiff submits that it was not until recently in June of 2003 that she discovered the aforesaid memorandum. On July 30, 2003, plaintiff filed the Motion for Leave to Amend her original complaint to add a claim that Ochsner invaded her privacy by sending the aforesaid memorandum physician's excuse to Tulane.
II. MOTION TO AMEND
Plaintiff contends that the "good cause" standard for modification of the district judge's Rule 16 Scheduling Order has been met in her case. MacKenzie argues the deadline was set a mere 35 days after the scheduling order issued and almost five (5) months before discovery cutoff (i.e., September 9). Additionally, Dr. MacKenzie notes that the amendment prompted by Tulane's June 4th, 2003 production of Dr. MacKenzie's personnel file pursuant to an Ochsner's subpoena issued May 21, 2003. She further submits that defense counsel compounded the delay by waiting until July 29, 2003 to advise that it would not consent to filing beyond the scheduled deadline. Plaintiff submits that amendment to add the claim of invasion of her privacy would not be futile.
Defendant filed formal opposition arguing that the plaintiff has failed to meet the enhanced requirements of Rule 16(b). More particularly, Ochsner argues that, at this late stage, plaintiffs lawsuit will require additional discovery which may necessitate a continuance of the October trial date. The defendant highlights the futility of the proposed amendment and that the August 19th deadline for filing dispositive motions is imminent Essentially, Ochsner contends that the plaintiff has failed to show the requisite good cause and, thus, leave to amend should be denied.
Rule 15(a) of the Federal Rules of Civil Procedure provides that, after a responsive pleading has been served, "a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Rule 15(a) evinces a bias in favor of granting leave to amend, absent substantial reason for denying leave. See Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (5th Cir. 2000); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597-98 (5th Cir. 1981).
In this case, the more restrictive test of Rule 16(b) — i.e., "[a] schedule shall not be modified except upon a showing of good cause" — is the operative rule. Fed.R.Civ.P. 16(b). The "good cause" standard focuses on the diligence of the party seeking a modification of the Court's scheduling order. See American Tourmaline Fields v. International Paper Co., 1998 WL 874825 at *1 (N.D. Tex. 1998). Movant must show that despite her diligence, she could not have reasonably met the scheduling deadline." Id.
In deciding whether to grant leave to file an amended pleading, the court may consider such factors as undue delay, bad faith or dilatory motive on the part of movant, undue prejudice to opposing party, and futility of amendment. See Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993) (citing Foman v. Davis, 371 U.S. 178, 182 (1962) (noting that granting "leave to amend is by no means automatic"); Overseas Inns S.A. P.A. v. United States, 911 F.2d 1146, 1150 (5th Cir. 1990)). Delay, the futility of amendment, and prejudice to Ochsner are all implicated in this case.
Claims for invasion of privacy under Louisiana law may stem from four types of misconduct: "(1) the appropriation of an individual's name or likeness, for the use or benefit of the defendant; (2) an unreasonable intrusion by the defendant upon the plaintiffs physical solitude or seclusion; (3) publicity that unreasonably places the plaintiff in a false light before the public; and (4) unreasonable public disclosure of embarrassing private facts." Young v. St. Landry Parish School Board, 673 So.2d 1272, 1275 (La.App. 3d Cir. 1996) (citing Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1389 (La. 1979)). For a defendant's conduct to be actionable, it requires a finding of an unreasonable intrusion into one's solitude or serious interference with the plaintiff's private affairs. See Todd v. City of Natchitoches, 238 F. Supp.2d 793, 801 (W. D. La. 2002) (citing Samour v. Louisiana Casino Cruises, Inc., 818 So.2d 171 (La.App. 1st Cir. 2002)). The reasonableness of a defendant's conduct is determined on a case-by-case basis "by balancing the conflicting interests at stake; the plaintiffs interest in protecting his privacy from serious invasion, and the defendant's interest in pursuing his course of conduct." Jaubert, 375 So.2d at 1389. Conduct that is justified by the circumstances is not actionable. Samour, 238 F. Supp.2d at 803 (citing Parish National Bank v. Lane, 397 So.2d 1282, 1286 (La. 1981)).
To recover for the tort of invasion of privacy, a plaintiff must prove that 1) the defendant publicized information concerning the plaintiffs private life, 2) the publicized matter would be highly offensive to the reasonable person, and 3) the information is not of legitimate public concern. Roshto v. Hebert, 439 So.2d 428, 430 (La. 1983).
If leave to amend were granted at this late stage, the defendant may be forced to defend against a futile claim at trial on the merits without the benefit of discovery. As aforestated, the dispositive motion filing deadline expires mid-August, 2003 and the discovery deadline expires shortly thereafter on September 9, 2003.
In S W Enterprises LLC v. Southtrust Bank of Alabama, N.A., 315 F.3d 533, 536 (5th Cir. 2003), the Fifth Circuit found the following four-part test appropriate in the context of untimely motions to amend the pleadings, to wit: (1) the explanation for the failure to timely seek leave to amend; (2) the importance of the amendment; (3) potential prejudice in granting leave to amend; and (4) the availability of a continuance to cure such prejudice. The balance of the aforesaid factors weighs against granting plaintiffs application. Accordingly, leave to amend is DENTED.
III. MOTION TO COMPEL
The subject of the plaintiffs motion to compel are certain "educational records" of other resident students participating in Ochsner's general surgery residency program during the pertinent time frame. The defendant has refused to produce these educational records, citing the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g(f), which imposes a direct obligation on educational institutions which are recipients of Pell grants and/or certain other federal funds, not to disclose educational records without consent of the student or the student's parents.
Plaintiff argues that only the actual educational records will suffice to determine whether non-pregnant surgery residents with the same academic shortcomings as Dr. MacKenzie were similarly treated. Consent of the other surgery residents or their parents is not an option with only several weeks remaining before the discovery deadline expires.
Plaintiff submits that she is entitled to test whether Fuhrman applied his residency program probation policy and standards evenhandedly on the basis of the other residency students' actual "educational records," albeit redacted of all personal identifiers. Dr. MacKenzie seeks an order of this Court directing Ochsner to produce the below listed categories of documents, to wit:
(i) documents pertaining to the first-year's residents scores at or below the 30th percentile;
(ii) documents pertaining to the other-year residents' scores at or below the 20th percentile;
(iii) evaluation forms showing a below-average rating in the "fund of knowledge" criterion;
(iv) documents pertaining to any resident's probationary status; (v) the files of all residents enrolled in Dr. Fuhrman's surgical residency program; and
(vi) the entire file of the plaintiffs replacement, Judy Bourget, M. D., who was also later dismissed from Dr. Fuhrman's residency program at Ochsner.
FERPA was designed to regulate the release of student records. Ochsner contends before disclosure of the aforesaid documents is permitted, the Act requires a student's or parent's consent, even if personal identifiers are redacted from the educational records sought.
The Secretary of Education is empowered to enforce the various provisions of FERPA. 20 U.S.C. S 1232g(f). An educational agency or institution that unlawfully releases a student's record or a student's personally identifiable information risks loss of federal funding. 20 U.S.C. § 1232g(b)(1). Regulations promulgated pursuant to the Act define "personally identifiable information" and "record."
"Personally identifiable information" includes, but is not limited to:
(a) The student's name;
(b) The name of the student's parent or other family member;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social security number or student number;
(e) A list of personal characteristics that would make the student's identity easily traceable; or
(f) Other information that would make the student's identity easily traceable.34 C.F.R. § 99.3.
"Record" means any information recorded in any way, including, but not limited to handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche. Id. "The plain meaning of the statutory language reveals that Congress intended for the definition of ["education records"] to be broad in scope." Belanger v. Nashua, New Hampshire, Sch. Dist., 856 F. Supp. 40, 48 (D.N.H.1994). The only types of records that are specifically identified are those that are specifically excluded from the definition of "education records," such as law enforcement unit records. According to the Secretary' of Education, "FERPA does not list, identify, or single out any particular type of materials or documents as "education records." Rules and Regulations, Department of Education, 60 Fed. Reg. 3464-01, at 3466, 1995 WL 13326, 34 C.F.R. Pan 99 (January 17, 1995). The Secretary's comments to the Act explain that the definition of "education records" is "all inclusive." Id.
FERPA imposes the following obligation upon educational institutions, to wit: "No funds shall be made available under any applicable program to any educational . . . institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein . . .) of students without written consent of their parents. . . ." 20 U.S.C. § 1232g(b)(1). Suffice it to say, where, as here, none of the specific exceptions to the Act apply, the plain language of FERPA precludes the disclosure of student educational records or personally identifiable information contained therein without the consent of the student or his or her parents. See United States v. The Miami University, 91 F. Supp.2d 1132, 1148 (S.D. Oh.), affirmed, 294 F.3d 797 (6th Cir. 2002). In Miami University, supra, the court held that the student disciplinary records of the defendant universities are "education records" as defined in FERPA, that the defendants violated the Act by releasing the records to third parties without student or parental consent, and further permanently enjoined the defendants from disclosing student disciplinary records or any "personally identifiable information" contained therein without first obtaining the requisite consent. Id. at 1160.
Because FERPA prohibits disclosure of both educational recordsand personally identifiable information and further considering that the definition of educational record is not restricted by whether the record contains personal identifiers or not, plaintiffs subpoena issued contemporaneously with the motion to compel is defective and, concomitantly, the motion to compel records is without merit. Nevertheless, as promised and commensurate with the parties' agreement, Ochsner continue to work with plaintiffs counsel to provide the plaintiff with necessary statistical summary information pursuant to an written interrogatory drafted with eye toward mining relevant information regarding non-pregnant surgery residents placed on academic probations, their test scores, academic performance, and their treatment while on academic probation. The information shall be provided without utilizing personally identifiable information and without disclosing the records themselves, as was done in the case of Naglak v. Pennsylvania State University, 133 F.R.D. 18 (M. D. Perm. 1990).
The Educational Privacy Act was successfully circumnavigated in Naglak, supra, by providing information requested "in statistical, summary form, listing [the information requested] but omitting the students' names and addresses." 133 F.R.D. at 24. The Naglak court concluded that "this will give the plaintiff the data she seeks, but avoid any breach of confidentiality." Id. The Naglak court did not order production of actual "educational records." See id. at 25. The use of statistical summaries in the place of the approximate eighty to ninety "educational records" sought will provide the plaintiff with the essential information she seeks and protect the substantial, competing interests of other resident students and of Ochsner Clinic Foundation. Cf. Florida State University v. Hatton, 672 So.2d 576, 580 (Fla.App. 1st Cir. 1996).
Pursuant to the hearing, the Court grants the plaintiffs oral motion for an abbreviated or expedited time frame within which the defendant must respond to her written interrogatory seeking summaries and statistical information regarding test scores, inter alia, of other student general surgery residents Accordingly,
IT IS ORDERED that the plaintiffs Motion for Leave to Amend is DENIED.
IT IS FURTHER ORDERED that the plaintiffs Motion to Compel production of "educational records" is DENIED.
IT IS FURTHER ORDERED that the plaintiff shall serve an interrogatory request regarding non-pregnant surgery residents' performance on academic probation so as to determine whether Ochsner's general surgery residency program policies and standards were evenhandedly applied to non-pregnant residents and pregnant residents on probationary status.
IT IS FURTHER ORDERED that the plaintiffs motion for an expedited return date for answering the aforesaid written interrogatory is GRANTED, and thus, counsel for the defendant shall make every effort to respond within seven (7) days of the service of the aforesaid written discovery request.
IT IS FURTHER ORDERED that the defendant's objection to the subpoena duces tecum issued by the plaintiff to Ochsner Clinic Foundation for the actual "educational records" of other general surgery residents is SUSTAINED and the aforesaid subpoena for educational records is hereby QUASHED.