Garnish v. M/V Eyak, LLC, et al

Filing 44

Order on Motion to Compel

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

ELI T. GARNISH,

)
)
Plaintiff,
)
)
vs.
)
)
M/V EYAK LLC; AQE FISHERMAN
)
SERVICES, LLC; DAVID S. CASTLE; )
F/V EYAK, O.N. 241454, her tackle,
)
gear, furniture, apparel and
)
equipment,
)
)
Defendants.
)
)

1:07-cv-00008 JWS
ORDER FROM CHAMBERS
[Re:

Motion at Docket 34]

I. MOTION PRESENTED
At docket 34, defendant M/V EYAK LLC (“EYAK”) moves for an order compelling
plaintiff Eli T. Garnish (“Garnish”) to provide complete responses to Interrogatory No. 5
and Request for Production No. 3. Defendant moves further to compel plaintiff to sign
EYAK’s release, authorizing disclosure of medical records pertaining to Garnish’s
treatment for drug abuse, alcoholism, HIV/AIDS, and mental illness. Garnish denies that
any such medical information exists, objects to its being discoverable, and opposes the
motion at docket 40. EYAK’s reply is filed at docket 42. Oral argument was not
requested and would not assist the court.
II. BACKGROUND
This action arose out of injuries suffered by Garnish while employed by EYAK as
a seaman aboard the F/V EYAK. Garnish’s right hand and arm were injured while he

was trying to repair a “large industrial machine.”1 Garnish’s complaint against EYAK,
AQE Fisherman Services, LLC, and David S. Castle alleges negligence and
unseaworthiness. It seeks recovery for physical injuries, present and future medical
expenses, and “lost earnings and lost earning capacity, pain and suffering, anguish,
disfigurement, psychological stress, disability and loss of enjoyment of life.”2
The motion to compel was made in response to conflicts that arose between the
parties during discovery. Request for Production No. 2 asked Garnish to “produce all
records of any doctor, hospital or other medical care provider rendering care, treatment
or other services as a result of the injury which is the subject of this case.”3 Plaintiff
complied with this request with respect to his wrist injuries, but submitted a release form
that expressly withheld authorization for the release of medical records related to past
treatment for alcohol and drug abuse, mental illness, and HIV or AIDS.4
Request for Production No. 3 asked Garnish to “produce all records of any
doctor, hospital, or other medical provider rendering care, treatment or other services,
for whatever reason within the ten (10) years immediately preceding the incident which
is the subject of this case through the present.”5 Plaintiff objected to this request, and
contends in his response that this information is beyond the scope of discovery,
privileged, and protected by the Health Insurance Portability and Accountability Act
(“HIPAA”).6
Interrogatory No. 5 asked Garnish to “identify all medical care providers from
whom [he had] received services within ten (10) years preceding the alleged injury up to

1

Doc. 40 at 2-3.

2

Doc. 1 at 3.

3

Doc. 35 at 21.

4

Id. at 30.

5

Id. at 21.

6

Id. at 22.

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the present date.”7 Garnish raised the same objections in his answer to this
interrogatory as he did in his response to Request for Production No. 3.8
The parties met and conferred, pursuant to Federal Rule of Civil Procedure
37(a)(1), but were unable to resolve their differences. EYAK then moved to compel
discovery of plaintiff’s medical records regarding treatment for drug and alcohol abuse,
mental illness, and HIV/AIDS within the last ten years.
III. STANDARD OF REVIEW
The scope of discovery permitted by the Federal Rules of Civil Procedure is very
broad.9 Rule 26(b)(1) permits the discovery of “any non-privileged matter relevant to
any party’s claim or defense . . . .”10 “‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of consequence to the determination
of the action more or less probable.”11 Such “[r]elevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.”12 Professor Wright states that “[t]he rules . . . permit
the broadest scope of discovery and leave it to the enlightened discretion of the district
court to decide what restrictions may be necessary in a particular case.”13 The Ninth
Circuit observes these principles and has emphasized that “wide access to relevant
facts serves the integrity and fairness of the judicial process by promoting the search for
truth.”14

7

Id. at 17.

8

Id. at 17-18.

9

Hickman v. Taylor, 329 U.S. 495, 507 (1947).

10

Fed. R. Civ. P. 26(b)(1).

11

Fed. R. Evid. 401.

12

Fed. R. Civ. P. 26(b)(1).

13

Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, Federal Practice and
Procedure, § 2001 at 44 (2d ed. 1994) (“Wright”).
14

See Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9th Cir. 1995).

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A party may seek a protective order precluding or limiting discovery of certain
material. The court may issue such an order, for good cause, to prevent “annoyance,
embarrassment, oppression, or undue burden or expense . . . .”15 To establish good
cause, a party must demonstrate a particular and specific need for the protective
order.16 This requires the moving party to “show some plainly adequate reason” for the
order.17 Absent a protective order, or privilege, “[a] party seeking discovery may move
for an order compelling an answer, designation, production, or inspection[,]”18 where
another party has submitted “an evasive or incomplete disclosure, answer, or response
. . . .”19
IV. DISCUSSION
Garnish argues that medical records not related to the injuries to his hand and
arm are not relevant. Garnish also argues that the material sought is privileged and that
the Health Insurance Portability and Accountability Act (“HIPAA”) bars disclosure of
medical records unrelated to the injuries in question. Each of these contentions will be
addressed in turn.
A. The Discoverability of the Medical Records At Issue
The first question is whether medical records of treatment for substance abuse,
HIV/AIDS or mental illness are relevant to either party’s claims or defenses and thus
discoverable. Rule 26(b)(1) “has been construed broadly to encompass any matter that
bears on, or that reasonably could lead to other matter that could bear on, any issue
that is or may be in the case.”20 To the extent that Garnish seeks recovery for
permanent disability, future wage loss, lost earning capacity, anxiety, mental anguish,

15

Fed. R. Civ. P. 26(c)(1).

16

Wright, § 2035 at 484-86.

17

Wright, § 2035 at 484.

18

Fed. R. Civ. P. 37(a)(3)(B).

19

Fed. R. Civ. P. 37(a)(4).

20

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

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psychological stress and future pain and suffering, evidence of treatment for substance
abuse, HIV/AIDS, and mental illness is relevant. Records of past treatment for
alcoholism or drug abuse, HIV/AIDS, and mental illness could have a direct bearing on
the resolution of those claims and are therefore within the realm of permissible
discovery.
B. Psychotherapist-Patient Privilege
The next question is whether information sought by EYAK, pertaining to
Garnish’s mental health, is privileged and thus immune from compelled discovery.
Rule 26(b)(1) calls for disclosure of all “non-privileged matter that is relevant to any
party’s claim or defense. . . .”21 In Jaffee v. Redmond,22 the United States Supreme
Court recognized the existence of a psychotherapist-patient privilege. The court found
that “the mere possibility of disclosure [of the content of counseling sessions] may
impede development of the confidential relationship necessary for successful
treatment.”23 The court ultimately held “that confidential communications between a
licensed psychotherapist and her patients in the course of diagnosis or treatment are
protected from compelled disclosure . . . .”24 The court also noted that “[l]ike other
testimonial privileges, the patient . . . may waive the protection.”25
While the Supreme Court has not addressed the issue of precisely how the
psychotherapist-patient privilege can be waived, “[n]umerous courts since Jaffee have
concluded that, similar to attorney-client privilege that can be waived when the client
places the attorney’s representation at issue, a plaintiff waives the psychotherapistpatient privilege by placing his or her medical condition at issue.”26 Garnish has put his

21

Fed. R. Civ. P. 26(b)(1) (emphasis added).

22

Jaffee v. Redmond, 518 U.S. 1 (1996).

23

Id. at 10.

24

Id. at 15.

25

Id. at 15, n. 14.

26

Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000).

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mental health at issue, and thereby waived the psychotherapist-patient privilege to the
extent that it applied.
C. Applicability and Effect of HIPAA
The final question is whether the Health Insurance Portability and Accountability
Act (“HIPAA”)27 bars compelled production of plaintiff’s medical records of treatment for
substance abuse, mental health, and HIV/AIDS. Garnish argues that HIPAA prevents
disclosure of the medical records in question without an adequate protective order in
place. EYAK argues that HIPAA authorizes disclosure of such records by a health care
provider so long as a HIPAA-compliant release is obtained and submitted, that is, so
long as Garnish signs the release that EYAK has provided.
EYAK’s contention is correct insofar as it urges that HIPAA authorizes a health
care provider to disclose protected medical records when the subject of those records
has authorized their release. The corresponding regulations state that “a covered entity
is permitted to . . . disclose protected health information . . . pursuant to and in
compliance with a valid authorization under § 164.508[.]”28 There is little doubt that
EYAK’s release is adequate under § 164.508, however, Garnish has refused to sign it.
A health care provider may, alternatively, disclose “protected health information
. . . [i]n response to a . . . discovery request . . . that is not accompanied by an order of a
court . . . if . . . [t]he covered entity receives satisfactory assurance . . . that the
individual who is the subject of the protected health information . . . has been given
notice of the request[.]”29 Although Garnish has been given notice of the request,
assurance that the subject of the records has received notice of the request will not

27

Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-19, 110
Stat. 1936 (1996).
28

45 C.F.R. § 164.502(a)(1)(iv) (2007).

29

45 C.F.R. § 164.512(e)(ii)(A) (2007).

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suffice when that party objects to their disclosure30 or until “[a]ll objections . . . have
been resolved by the court . . . .”31
In the second alternative, a medical care provider may disclose the protected
information pursuant to a discovery request if the provider “receive[s] . . . satisfactory
assurance . . . from the party seeking the information that reasonable efforts have been
made by such party to secure a qualified protective order . . . .”32 Satisfactory
assurances can be made if “[t]he parties giving rise to the request for information have
agreed to a qualified protective order and have submitted it to the court . . .”33 or if “[t]he
party seeking the protected health information has requested a qualified protective order
from such court . . . .”34
A protective order will serve the stated ends of HIPAA if it “[p]rohibits the parties
from using or disclosing the protected health information for any purpose other than the
litigation or proceeding for which such information was requested”35 and if it “[r]equires
the return to the covered entity or destruction of the protected health information
(including all copies made) at the end of the litigation or proceeding.”36
Garnish argues that “the Court is required to balance the plaintiff’s privacy rights
against the defendant’s discovery requests.”37 While clearly a basic function of HIPAA
is to protect the confidentiality of individuals’ health records, as the regulations suggest,
it was not intended to circumvent Federal Rule 26 by shielding litigants from having to
disclose relevant, discoverable information. The court declines to graft a balancing

30

See 45 C.F.R. § 164.512(e)(iii)(C)(1) (2007).

31

45 C.F.R. § 164.512(e)(iii)(C)(2) (2007).

32

45 C.F.R. § 164.512(e)(ii)(B) (2007).

33

45 C.F.R. § 164.512(e)(iv)(A) (2007).

34

45 C.F.R. § 164.512(e)(iv)(B) (2007).

35

45 C.F.R. § 164.512(e)(v)(A) (2007).

36

45 C.F.R. § 164.512(e)(v)(B) (2007).

37

Doc. 40 at 8.

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requirement onto the discovery standards established by the Federal Rules of Civil
Procedure. Despite contesting the records’ existence, Garnish has requested a
protective order. Such an order would adequately serve both his interest in maintaining
the privacy of any such records and comport with HIPAA.
V. CONCLUSION
For the reasons set forth above, defendant EYAK’s motion to compel plaintiff to
furnish complete responses to Interrogatory No. 5 and Request for Production No. 3
and to execute EYAK’s Authorization to Disclose Health Information, authorizing the
release of Garnish’s medical records with respect to diagnosis or treatment for
substance abuse, HIV/AIDS or mental illness is GRANTED. The parties shall submit a
proposed protective order for the court’s consideration on or before June 13, 2008.
Garnish shall execute the release and deliver it to EYAK within five (5) days after the
court issues the protective order.
DATED at Anchorage, Alaska, this 29th day of May 2008.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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