Lassley v. Secura Supreme Insurance Company et al
Filing
39
ORDER granting 26 Motion for Protective Order; denying 29 Motion to Compel. Signed by Judge John W Sedwick on 8/18/2015. Lassley shall file a motion for attorneys' fees within 14 days. It must be supported as required by the local rules. Secura shall respond within 14 days after the motion is filed. The response may contest the amount sought, but not Lassley's right to recover a reasonable amount. No reply may be filed unless requested by the court.(JWS)
1
2
UNITED STATES DISTRICT COURT
3
DISTRICT OF ARIZONA
4
5
Brandon Lassley,
Plaintiff,
6
7
8
vs.
Secura Supreme Ins. Co.,
9
Defendant.
10
11
)
)
)
)
)
)
)
)
)
)
2:14-cv-1677 JWS
ORDER AND OPINION
[Re: Motions at docs. 26 & 29]
I. MOTIONS PRESENTED
12
At docket 26 plaintiff Brandon Lassley (“Lassley”) moves for a protective order
13
14
providing that he need not produce an authorization allowing defendant Secura
15
Supreme Ins. Co. (“Secura”) to obtain Lassley’s drug treatment records. Secura’s
16
response at docket 29 includes a motion asking the court to order Lassley to provide
17
the requested medical records authorization, and also to order Lassley to produce
18
documents relating to Lassley’s contacts with the United States Navy. Lassley’s
19
20
21
combined reply in support of his motion and response to Secura’s motion is at
docket 33. Secura replies in support of its motion at docket 35. Oral argument was
22
requested, but the motions are well briefed, and oral argument would not assist the
23
court.
24
25
II. BACKGROUND
Lassley was a passenger in an automobile operated by his intoxicated friend
26
27
28
Cody Murphy. Murphy lost control of the vehicle. Lassley was injured in the ensuing
crash. Lassley settled with Murphy for the limits of his insurance policy. In this lawsuit,
1
2
3
Lassley seeks additional compensation from Secura pursuant to the under-insured
motorist coverage in the policy Secura issued to Lassley. Lassley seeks damages for
breach of the insurance contract and bad faith in the adjustment of his claim. He seeks
4
5
compensatory and punitive damages. The auto accident occurred in Arizona, and
6
Lassley filed his lawsuit in Arizona state court. Secura removed the litigation to this
7
court relying on diversity of citizenship jurisdiction.
8
9
III. DISCUSSION
1. Drug Rehabilitation Records Are Privileged
10
11
12
Lassley has a history of drug abuse. He obtained substance abuse treatm ent on
four occasions, two before the accident and two after the accident. Secura seeks an
13
authorization that would enable it to review Lassley’s substance abuse treatment
14
records. Lassley is not seeking to recover any damages from Secura that relate to his
15
substance abuse problems.
16
Lassley claims that the drug rehabilitation records are privileged. Under the
17
18
Federal Rules of Evidence, any health-care provider/patient privilege available to
19
Lassley derives from the law or Arizona.1 Lassley correctly points out that under
20
Arizona law, except as otherwise provided by law, a health care provider may not
21
22
23
24
25
26
27
28
1
Fed. R. Evid. 501’s state law proviso: “But in a civil case, state law governs privilege
regarding a claim or defense for which state law applies the rule of decision.” As explained in
the Advisory Committee Notes to Rule 501, the rationale underlying the proviso “is that federal
law should not supersede that of the States in substantive areas such as privilege absent a
compelling reason. The Committee believes that in civil actions in the federal courts where an
element of a claim or defense is not grounded upon a federal question, there is no federal
interest strong enough to justify departure from State policy.” Fed. R. Evid. 501, Advisory
Committee Notes, H.R. Rep. No. 93–650.
-2-
1
2
3
disclose anything in a patient’s medical records without the patient’s written consent.2
The records Secura seeks are subject to Arizona’s health care provider/patient
privilege.
4
5
6
2. Protective Order For Drug Rehabilitation Records
To obtain a protective order, Lassley must show “good cause” for sheltering the
7
drug treatment records from disclosure.3 The Arizona legislature has concluded that
8
the contents of health care records such as those Secura seeks are “privileged and
9
confidential.”4 That being so, Lassley has established the good cause required by
10
Rule 26(c) for a protective order. As elaborated below, this is evident from the
11
12
distinction drawn by Rule 26(b)(1) between privileged and non-privileged information. It
13
may be added that both parties look to inapposite case law . Both cite Phillips v. GM
14
Corp.5 That case arose in an entirely different context. The question in Phillips was
15
whether information already produced in the course of discovery could be shielded from
16
disclosure to the public.
17
18
Secura argues that the burden, nevertheless, remains on Lassley to show
19
“specific prejudice or harm that would result if no protective order is granted.”6 Secura
20
has it backwards. Under the Federal Rules of Civil Procedure, a party may obtain
21
discovery of material which is relevant to any claim or defense if the material sought is
22
23
24
25
2
A.R.S. § 12-2292.
3
Fed. R. Civ. P. 26(c).
4
A.R.S. § 12-2292 A.
26
5
27
6
28
307 F.3d 1206 (9th Cir. 2002).
Doc. 29 at 2.
-3-
1
“nonprivileged.”7 Where a privilege applies, the discovery may be had only upon a
2
showing of good cause.8 Lassley having established that the material sought is
3
privileged, the burden is on Secura to show good cause for its production. A protective
4
5
order is appropriate unless Secura is entitled to an order requiring production of the
6
information, despite its privileged status.
7
3. Request to Compel Production of Drug Rehabilitation Records
8
9
The privilege claimed by Lassley is not absolute. It is subject to both statutory
and judicially created exceptions.9 One commonly recognized exception to the health
10
care provider/patient privilege arises when the patient has placed his condition at issue
11
12
13
14
15
16
17
18
19
in litigation. However, Lassley makes, and the court relies upon and will enforce, the
following representation:
Lassley has never asserted his drug treatment expenses form any portion
of his claim—and his complaint certainly does not do so. In short, Lassley
hasn’t ever, is not now, nor ever will assert that his drug-rehabilitation
treatment was necessitated due to the accident, or that those ex penses
should be considered as a portion of his breach-of-contract and bad-faith
damages.10
The drug treatment records are subject to discovery in this lawsuit only if they have
probative value relating to an issue before the court, or their production is reasonably
20
21
22
23
24
25
7
Fed. R. Civ. P. 26(b)(1).
8
Id.
26
9
27
10
28
Benton v. Superior Court, 897 P.2d 1352, 1354 (Ariz. Ct. App. 1994).
Doc. 33 at 7 (emphasis in original).
-4-
1
calculated to lead to the discovery of admissible evidence, and Secura can show “good
2
cause.”11
3
Secura first contends that the drug rehabilitation records are relevant to its
4
5
defense that Lassley was drunk when he accepted a ride from Murphy, because the
6
records would “probably” contain a recommendation to Lassley that he not consume
7
alcohol.12 Assuming that Lassley’s intoxication would provide a defense or establish
8
contributory fault, the relevant question is whether he was sober, not whether someone
9
told Lassley to stay sober. This contention lacks merit.
10
Secura offers additional reasons why the drug treatment records might be
11
12
discoverable. Secura contends that the drug rehabilitation records might show some
13
reason for the condition of Lassley’s knee other than the auto accident, they might
14
show Lassley said something in the course of the drug therapy that would show he was
15
drunk at the time he accepted the ride from someone he knew was intoxicated, they
16
might have an impact on Lassley’s damage claim by showing that he was not obtaining
17
18
19
appropriate care when he relapsed, and they might show something about falsehoods
told by others regarding Lassley’s involvement in the accident. 13 The pivotal issue is
20
whether Secura’s speculation about what might be in the drug treatment records shows
21
that its request for production is reasonably calculated to lead to the discovery of
22
admissible evidence.
23
24
25
11
Fed. R. Civ. P. 26(b)(1).
26
12
27
13
28
Doc. 29 at 5.
Id. at 5-6.
-5-
1
2
3
Reason, of course, does not exist in a vacuum. Something is reasonably
possible when there is some objective basis for believing it would be true. Here, it is
known from Lassley’s deposition testimony that he had shoulder surgery prior to the
4
5
accident, took opiate pain relievers as a result, and began to abuse opiate pain
6
medications.14 It is also known that he was prescribed pain medications as a result of
7
the accident and went on to abuse the drugs again. Lassley’s testimony shows that he
8
sought drug treatment both before and after the accident, and that he sought it in
9
Phoenix, San Diego, and Denver over a period of time. There is nothing else to support
10
Secura’s speculation that the drug treatment records would lead to admissible evidence
11
12
13
relating to issues in the pending lawsuit.
The burden is on Secura to show good cause for production of the drug
14
treatment records. Given what is known about Lassley’s drug treatment and the highly
15
speculative nature of the proposition that the records actually do contain or would lead
16
to discoverable information, the court concludes that Secura has not carried its burden.
17
18
19
20
Lassley will not be required to authorize disclosure of the drug treatment records.
4. Request to Compel Production of Navy Recruitment Records
According to Secura, for a substantial period of time, Lassley was contending
21
that his damages included the loss of his career prospects in the United States Navy,
22
but Lassley abandoned that proposition when confronted with the fact that persons with
23
a history of drug abuse are not acceptable to the Navy.15 Whatever potential relevance
24
25
26
14
27
15
28
Deposition of Brandon Lassley, doc. 26-1 at 10-11.
Doc. 36 at 9.
-6-
1
2
3
the Navy recruitment records might have (Secura argues that they bear on Lassley’s
credibility), the record reflects that, aside from an undated letter already produced,
neither Lassley nor his mother possess any Navy recruitment records. The record also
4
5
discloses that Secura made no Rule 34 request for production of the Navy recruitment
6
records. The record further reflects that Secura has not provided a certificate showing
7
that counsel met and conferred regarding Secura’s motion to compel production of the
8
Navy recruitment records.16
9
Secura’s motion to compel production of the Navy recruitment records lacks
10
merit for several reasons. First, it is pointless, because Lassley has no such records.
11
12
Second, a request for production of documents and an inadequate response to that
13
request is a necessary predicate to a motion to compel.17 Finally, the local rules require
14
a certificate attesting to a personal consultation between counsel before a motion to
15
compel may be filed.18
16
5. Award of Attorneys’ Fees
17
18
19
20
Lassley asks the court to award him his attorneys’ fees. Lassley’s motion was
brought pursuant to Rule 26(c). That rule contemplates the award of expenses
pursuant to Rule 37(a)(5). 19 When the moving party obtains a protective order,
21
16
22
23
24
25
26
27
28
Although Secura’s certificate ambiguously states that its counsel “conferred or
attempted to confer with” Lassley’s counsel, Doc. 29 at 11, Secura does not dispute Lassley’s
contention that no personal consultation ever took place.
17
See Fed. R. Civ. P. 37(a)(3)(B)(iv).
18
LRCiv 7.2(j) (“No discovery motion will be considered or decided unless a statement of
moving counsel is attached thereto certifying that after personal consultation and sincere efforts
to do so, counsel have been unable to satisfactorily resolve the matter.”).
19
Fed. R. Civ. P. 26(c)(3).
-7-
1
2
3
Rule 37(a)(5) requires an award of expenses, including reasonable attorneys’ fees.20
Lassley also asks for fees relating to Secura’s motion to compel. When such a motion
fails, as it has here, the defending party is entitled to recover reasonable attorneys’
4
5
fees.21 Secura will be required to pay Lassley his reasonable attorneys’ fees.
III. CONCLUSION
6
7
For the reasons above:
8
(1) The motion at docket 26 is GRANTED as follows: Lassley shall not be
9
required to authorize the release of his drug treatment records;
10
11
12
(2) The motion at docket 29 is DENIED; and
(3) Lassley shall file a motion for attorneys’ fees within 14 days. It must be
13
supported as required by the local rules. Secura shall respond within 14 days after the
14
motion is filed. The response may contest the amount sought, but not Lassley’s right to
15
16
recover a reasonable amount. No reply may be filed unless requested by the court.
DATED this 18th day of August 2015.
17
18
/S/
JOHN W. SEDWICK
SENIOR UNITED STATES DISTRICT JUDGE
19
20
21
22
23
24
25
26
20
27
21
28
Fed. R. Civ. P. 37(a)(5)(A).
Fed. R. Civ. P. 37(a)(5)(B).
-8-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?