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holding that records from four of the plaintiff's former employers were discoverable over the plaintiff's objection that "the information could be obtained less intrusively" through deposition testimony of the plaintiff, noting that "any competent cross-examiner would want to see and use relevant documents in the course of such a deposition"
Summary of this case from Levitin v. Nationwide Mut. Ins. Co.Opinion
Case No. 3:09-cv-214.
September 10, 2010
DECISION AND ORDER
This case is before the Court on the Plaintiff's Emergency Motion to Quash and/or for Protective Order related to employment records (the "Employment Motion," Doc. No. 17) and Plaintiff's Emergency Motion to Quash and/or for Protective Order related to medical records (the "Medical Motion," Doc. No. 18). Defendant Conagra opposes both Motions (Doc. Nos. 20, 21) and Plaintiff has filed a Reply in support (Doc. No. 22). After the Motions were ripe, Judge Rose referred them to the undersigned (Doc. No. 23) who conducted oral telephonic argument on September 7, 2010. These are non-dispositive Motions and thus within the decisional authority of the Magistrate Judge.
Employment Records
Conagra has issued subpoenas for Plaintiff's employment records with Mike Quinn Productions, Miami County YMCA, Global Employment Solutions, Blackstone Health Care, and Champaign Residential Services. According to the Employment Motion, the subpoenas were issued August 11, 2010 (Doc. No. 17 PageID 91). The subpoenas were returnable on August 24, 2010 (See exhibits to Doc. No. 20). As of the date of this Decision, all of the subpoenaed employers except Blackstone Health Care have produced documents in response to the subpoenas or, in the case of Mike Quinn Productions, have responded that they have no documents. With respect to those four employers, the Motion to Quash is moot.
However, during the telephone argument, Conagra's counsel advised that the produced documents had been sequestered and not reviewed. Pursuant to the Court's oral order, those document have been uniquely numbered (QTP 000001 through 000175) and produced to the Court for in camera inspection.
Plaintiff argues that these documents are all irrelevant to his failure to accommodate claim against Conagra, a former employer, and could interfere with his relationships with present employers (Employment Motion, Doc. No. 17, PageID 92.) As authority for quashing subpoenas on these bases, Plaintiff cites the unreported opinion of Magistrate Judge Nancy Vecchiarelli in Jackson v. Papa John's USA, Case No. 1:08-cv-02791 (N.D. Ohio June 17, 2009). Judge Vecchiarelli noted that the information could be obtained less intrusively by taking Plaintiff's deposition. Jackson was an FLSA case where the only possible relevant information in personnel files of subsequent employers was how the plaintiff had described his job duties with Papa John's. The potentially relevant information in personnel files of other employers in this case is much broader: what were Plaintiff's job duties? Did his disability affect his performance? Did he request an accommodation? And so forth. Therefore it is not clear that nothing relevant to claims or defenses would be found in these files.
Plaintiff also argues that "many employers have proprietary documentation contained in their employees' employment files" so that ordering production would be unjust. (Employment Motion, Doc. No. 17, PageID 92). Plaintiff lacks standing to make this argument which is properly raised by the subpoenaed employer.
Plaintiff cites the decision as having been made by Judge Gwin (Doc. No. 22, PageID 226), but it is actually solely the decision of Magistrate Judge Vecchiarelli. Because discovery matters generally are within the decisional authority of magistrate judges who have been referred matters under 28 U.S.C. § 636(b), Judge Vecchiarelli's cited decision has the same authority as this decision will have.
Of course, Defendants can depose Plaintiff on these questions, but any competent cross-examiner would want to see and use relevant documents in the course of such a deposition.
Conversely, it may also be true that there is material in these files which is irrelevant and as to which most employees would have a customary and reasonable expectation of privacy. As to such material, Plaintiff would be entitled at least to a protective order to keep that material from being generally exposed to public view. The previously entered Stipulated Protective Order (Doc. No. 14) is not broad enough to cover such material.
Therefore, with respect to the Employment Motion,
1. The request to quash is denied in its entirety. 2. As to Blackstone Health Care, the Defendant may in its discretion proceed with measures to enforce the subpoena. Any documents produced pursuant to the subpoena shall be handled by Defendant in the same manner as documents produced by the four other employment subpoenas, to wit, sequestration, unique numbering, and delivery to the Court for in camera inspection. 3. Counsel shall attempt to negotiate an appropriate protective order. In the absence of agreement, the parties shall submit competing drafts with memoranda supporting their positions to the Court for resolution. 4. The Court will retain the documents already produced and conduct an in camera inspection after a protective order is entered.Medical Records
Conagra has also issued subpoenas to Doctors Dennis Brown and Stephen Duritsch. As of September 7, 2010, neither had responded to the subpoenas.Dr. Brown has produced to Plaintiff's counsel what purports to be a copy of Plaintiff's medical records with that doctor. Plaintiff's counsel have agreed to produce that entire file to Conagra's counsel. Conagra's counsel wish to satisfy themselves that they have received the entire file. Rather than proceeding with subpoena enforcement measures against Dr. Brown, the Court suggests they might be satisfied with a certificate of the form they requested and received from the employers, certifying that everything responsive to the subpoena has been produced. Plaintiff is entitled to a HIPAA-qualified protective order for these records. Defendant is not entitled to discover medical records unrelated causally and historically to the condition which Plaintiff claims is disabling because they are not relevant to a claim or defense in the case, or at least have not been demonstrated to be relevant.
Dr. Duritsch's office has advised that he will not produce any documents pursuant to the subpoena without a valid HIPAA release from Mr. Quinn. Conagra's counsel take the position that issuance of the subpoena obviates any HIPAA requirement. The Sixth Circuit has held that a defendant in a personal injury or wrongful death action has a right to discover the medical records of the plaintiff by obtaining a medical records release. Uszak v. Yellow Transp., Inc., 2009 U.S. App. LEXIS 18873 *6 (6th Cir. 2009). The same logic would appear to apply to a disability discrimination case. At the same time, under HIPAA, the patient is entitled to a qualified protective order which conforms with 45 C.F.R. § 164.512. To resolve the impasse with respect to Dr. Duritsch, Plaintiff may furnish an appropriate medical release to Dr. Duritsch and include HIPAA-mandated language in the protective order to be negotiated. Alternatively, Conagra may proceed with subpoena enforcement measures.
In his Reply Memorandum, Plaintiff cites extensively from the opinion of my learned predecessor, the Honorable Robert A. Steinberg, then United States Magistrate Judge, in Mann v. University of Cincinnati, 824 F. Supp. 1190 (S.D. Ohio 1993). Some of the privacy interests at issue in Mann were of the sort protected by the Constitution under Griswold v. Connecticut, 381 U.S. 479 (1965). Those sorts of privacy interests do not appear to be at issue here and to that extent Mann is not in point. However, Judge Steinberg properly cautions against abuse of the subpoena power by serving subpoenas in a way which prevents an opposing party from seeking court relief. It presently appears that any damage of the sort which might flow from such abuse has been avoided here, but counsel are cautioned to take Judge Steinberg's opinion seriously.
The Motions to Quash are denied. However, Plaintiff is entitled to an appropriate protective order. Therefore to the extent any documents responsive to any of these subpoenas come into Defendant's counsel's hands, they shall be sequestered and not examined until (1) an appropriate protective order is in place and (2) the Court has conducted an in camera inspection. September 10, 2010.