Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 333

Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Doc. 333

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Daniel B. Treon (No. 014911) TREON & SHOOK, P.L.L.C. 2700 North Central Ave., Suite 1000 Phoenix, AZ 85004 Tel: [phone] Fax:[phone] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ROBERT H. and MARCIA MALLIN, husband and wife, Plaintiffs, v. PROGRESSIVE NORTHWESTERN INSURANCE COMPANY, a foreign corporation, JOHN and JANE DOES IX, ABC CORPORATIONS I-X; and XYZ PARTNERSHIPS I-X, Defendant. Plaintiffs Robert H. and Marcia Mallin (hereinafter "Plaintiffs"), move this Court for an order of protection regarding the production of Robert H. Mallin's psychiatric records from Dr. David N. Boyer, M.D., P.C. Plaintiffs ask the Court to order that Dr. Boyer be allowed to submit a summary report of Mr. Mallin's treatment in lieu of producing all of Mr. Mallin's records to Defendant Progressive Northwestern Insurance Company ("Progressive"). Plaintiffs support their motion with the following Memorandum. Case No.: 2:06cv0593-HRH PLAINTIFFS' MOTION FOR PROTECTIVE ORDER OF ROBERT H. MALLIN'S RECORDS FROM DAVID N. BOYER, M.D., P.C. (Expedited Telephonic Oral Argument Requested)

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RESPECTFULLY SUBMITTED this 13th day of June, 2007. TREON & SHOOK, P.L.L.C. By: s\ Daniel B. Treon Daniel B. Treon 2700 N. Central Ave., Suite 1000 Phoenix, AZ 85004

MEMORANDUM

Dr. Boyer has been Bob Mallin's treating psychiatrist for the past several years. Dr. Boyer has counseled Bob Mallin on innumerable personal issues, almost all of which relate to matters far, far outside the purview of the emotional distress caused by Defendant Progressive's bad faith failure to pay Mr. and Mrs. Mallin their policy limits. Much of this counseling relates to family

members who are not part of this litigation. Plaintiff Bob Mallin's emotional distress claim is quite limited, as he has disclosed in his response to Defendant's interrogatories that Defendant's conduct caused strain to his marital relationship, and this contributed to his decision to obtain counseling from Dr. Boyer. While Plaintiffs' Complaint noticeplead that Defendant's conduct caused them "a general feeling of malice, shock to their nervous systems, grief and depression," Bob Mallin has specifically disclosed only that Defendant's conduct caused him marital strife which warranted counseling. Nevertheless, Defendant Progressive subpoenaed all of Dr. Boyer's records related to all counseling of Bob Mallin. On May 30, 2007, Dr. Boyer

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wrote to Defendant Progressive and requested that in lieu of producing Mr. Mallin's entire medical records he write a summary report of his treatment of Mr. Mallin which would address matters specially related to the issues in case (Exhibit 1). Defendant's counsel, Steven Plitt, responded to Dr. Boyer's letter that same date (Exhibit 2). Mr. Plitt refused Dr. Boyer's request for a reasonable accommodation, stating that writing a summary report of Mr. Mallin's treatment, "will not be acceptable." Dr. Boyer, concerned about his obligation to maintain confidentiality of his patient's records on tangential issues that relate to other Mallin family members, has refused to produce the records pending this Court's decision. This action concerns Defendant Progressive's conduct in adjustment of an under-insured motorist claim and has nothing to do with other Mallin family members. In addition to chronicling the effect of Progressive's handling of his claim on the Mallin marriage, Dr. Boyer's records mostly contain a variety of other concerns which are completely unrelated to Mr. Mallin's complaint against Progressive. The records sought by Defendant contain confidential information that pertains not only to Mr. Mallin, but his family members as well ­ information that does not relate to any issues of this case, and which in basic fairness should not be disclosed. Accordingly, the interests of privacy and simple

decency warrant that the records containing this evidence be excluded from production. Plaintiffs therefore request that the Court order that Dr. Boyer produce a summary report of Mr. Mallin's treatment that addresses the one area of

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emotional distress claimed by Mr. Mallin to have been caused by Defendant ­ namely, the effect of Defendant's conduct on Mr. Mallin's marriage.

RESPECTFULLY SUBMITTED this 6th day of November, 2006.

TREON & SHOOK, P.L.L.C. By: s\ Daniel B. Treon Daniel B. Treon 2700 N. Central Ave., Suite 1000 Phoenix, AZ 85004

ORIGINAL of the foregoing electronically filed this 13th day of June, 2007 with: Clerk of the Court USDC, District of Arizona Sandra Day O'Connor U.S. Courthouse 401 W. Washington St. Phoenix, AZ 8503-2118 COPY of the foregoing electronically delivered this 13th day of June, 2007 to: Steven Plitt, Esq. KUNZ PLITT HYLAND DEMLONG & KLEIFIELD 3838 N. Central Avenue, Suite 1500 Phoenix, AZ 85012-1902 Attorneys for Defendant Progressive Northwestern Insurance Company By: s\ Laura L. Quesada

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