Varfolomeeva v. United States of America

Filing 29

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/22/18, ORDERING that Defendant's 24 motion to compel plaintiff to execute release for medical information in DMV records is GRANTED IN PART. On or before 3/26/2018, plaintiff shall complete a consent and waiver for release of medical information in DMV records. A copy of the Application for Disabled Person Placard or Plates shall be provided to the court on or before 4/9/2018, for an in camera review. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALINA VARFOLOMEEVA,

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No. 2:17-cv-00599-CKD

Plaintiff,
v.

ORDER

UNITED STATES OF AMERICA,

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Defendant.

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Presently pending before the court is defendant’s motion to compel plaintiff to execute a

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release for medical information in DMV records. (ECF No. 24.) This matter came on regularly

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for hearing on March 21, 2018 at 10:00 a.m. Present at the hearing were Kirill B. Tarasenko, on

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behalf of plaintiff, and Joseph B. Frueh, on behalf of defendant. Upon review of the documents

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in support and opposition, upon hearing the arguments of counsel, and good cause appearing

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therefor, the court finds as follows.

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RELEVANT BACKGROUND

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This case arises from a motor vehicle accident involving a pedestrian. (See generally ECF

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No. 1.) On November 19, 2014, plaintiff alleges she was in a crosswalk at the intersection of J

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Street and Fifth Street in Sacramento, California, when a vehicle operated by a federal employee

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struck her, in violation of California Vehicle Code section 21950(a). (Id.) Plaintiff further
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alleges that the collision caused her personal injuries and other economic and noneconomic

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damages. (Id.)

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It is undisputed that on September 23, 2014, plaintiff was issued a disability placard from

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the California Department of Motor Vehicles (“DMV”). (ECF No. 27 at 7.) In order to obtain

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such a placard, an individual must submit an “Application for Disabled Person Placard or Plates”

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that requires a medical provider’s certification as to the basis for the disability placard. (ECF No.

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27-5.)

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In this matter, significant discovery has already occurred. Defendant has requested that

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plaintiff provide all documents in her “possession, custody, or control relating to [her] medical

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care from 2012 to 2017” and plaintiff has provided responses. (ECF No. 27 at 4.) Plaintiff has

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disclosed personal medical information, including mental health records and records from her

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primary care physician. (ECF No 27 at 3.) However, plaintiff has not provided a copy of the

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application she submitted to the DMV. Defendant has requested that plaintiff execute a release to

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obtain a copy of her disabled placard application from the DMV, but plaintiff has refused. (ECF

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No. 27 at 2.) This motion to compel followed. (ECF No. 24.)

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DISCUSSION

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“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any

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party’s claim or defense and proportional to the needs of the case, considering the importance of

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the issues at stake in the action, . . . [and] the parties’ relative access to relevant information . . .”

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Fed. R. Civ. P. 26.

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Federal courts generally recognize a right of privacy that can be raised in response to

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discovery requests. See Johnson by Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir. 1992).

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However, “[p]rivacy rights in medical records are neither fundamental nor absolute.” Williams v.

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Baron, No. CIV S-03-2044-LKK-JFM, 2007 WL 433120, at *1 (E.D. Cal. Feb. 5, 2007) (citing

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Whalen v. Roe, 429 U.S. 589, 603-604, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)).

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When plaintiff filed this lawsuit, she placed her physical condition and alleged limitations

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directly at issue (see ECF No. 1) and she has already provided medical records to defendant. Yet

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plaintiff asserts that this DMV application is not relevant, and to force her to disclose it would
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violate her privacy. (See ECF No. 27 at 5–8.) Thus, plaintiff asserts that she should not have to

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execute the release for this DMV application. In the alternative, plaintiff requests that she be

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allowed to provide the DMV application to the court for an in camera review before the court

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rules on whether it shall be disclosed to defendant. (Id. at 8.)

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Plaintiff’s arguments are not persuasive. As plaintiff admits, she received this disability

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placard from the DMV on September 23, 2014, less than two months before the accident that is

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the subject of this lawsuit. Plaintiff has voluntarily placed her physical condition at the time of

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the accident at issue; any potential physical limitation that was present two months before the

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accident is highly relevant. Therefore, any privacy right that she may have in this DMV

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application is outweighed by the defendant’s right to discovery about an issue central to its

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potential defense.

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At the same time, since the DMV application in question is only three pages, and since the

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deadline for all discovery is not until July 30, 2018 (ECF No. 12 at 3), there would be no

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prejudice to defendant for the court to perform an in camera review of this document prior to any

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further disclosure. If upon review this document appears relevant to the questions at issue, the

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court will order that the document be provided to defendant.

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Accordingly IT IS HEREBY ORDERED that:

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1. Defendant’s motion to compel plaintiff to execute release for medical information in

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DMV records (ECF No. 24) is GRANTED IN PART.
2. On or before March 26, 2018, plaintiff shall complete a consent and waiver for

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release of medical information in DMV records, pursuant to California Vehicle Code §

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1808.5.

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3. A copy of the Application for Disabled Person Placard or Plates, which served as the

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basis for plaintiff’s September 23, 2014 disability placard, shall be provided to the

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court on or before April 9, 2018, for an in camera review. This document shall be

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bates-stamped in numerical order.

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4. If plaintiff is unable to provide a copy of the application by April 9, 2018, the parties
shall meet and confer and submit a joint statement to the court, indicating when the
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application will be provided.
5. After the court reviews this document in camera, the court will determine whether the
document shall be provided to defendant, and shall issue a further order as appropriate.
Dated: March 22, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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14/17-cv-599.varfolomeeva.order MTC

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