Folz v. Union Pacific Railroad Company et al

Filing 89

ORDER Granting 80 Defendant's Motion to Compel Compliance With Subpoena. The Department of Veterans Affairs is Ordered to produce all records responsive to the subpoena by August 12, 2015. Defendants request for sanctions is Denied. Signed by Magistrate Judge Peter C. Lewis on 7/22/2015. (srm)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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DELBERT FOLZ,

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v.

Case No. 13-cv-579-GPC-(PCL)
Plaintiff, ORDER ON DEFENDANT’S
MOTION TO COMPEL
COMPLIANCE WITH SUBPOENA

UNION PACIFIC RAILROAD
COMPANY,

[Doc. 80]

Defendant.

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This case arises from an injury sustained by Plaintiff. (See Doc. 47.) His physical

18 condition is central to the litigation. Any medical records created as a result of this injury, during
19 his recovery, or otherwise, are relevant because they tend to establish his physical condition.
20 Because the requested documents are relevant to this action, they must be produced unless they
21 are privileged. See Fed. R. Civ. P. 26(b)(1).
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Plaintiff has waived the patient-physician privilege, at least according to state law, by

23 placing his medical records at issue in this case. See In re Lifschutz, 2 Cal.3d 415, 433–34, 85
24 Cal.Rptr. 829, 467 P.2d 557 (1970) (under California law, the patient-physician privilege is
25 waived where the patient’s specific medical condition is placed into issue by the patient). Under
26 federal law, the privilege may be waived when the patient files a lawsuit that places the content
27 of the privileged communications in issue. See Sarko v. Penn–Del Directory Co., 170 F.R.D.
28 127, 130 (E.D. Pa. 1997); Vann v. Lone Star Steakhouse & Saloon, Inc., 967 F. Supp. 346,

1 349–50 (C.D. Ill.1997); cf. Home Indem. Corp. v. Lane Powell Moss and Miller, 43 F.3d 1322,
2 1326 (9th Cir. 1995) (applying waiver to the attorney-client privilege). Further, Plaintiff has
3 waived the patient-physician privilege by filing a non-opposition to the present motion, with a
4 signed waiver and release form submitted to the Department of Veterans Affairs, which complies
5 fully with the requirements presented in the Health Insurance Portability and Accountability Act
6 (“HIPAA”). (See Doc. 86-1; 45 C.F.R. § 164.508.)
Lastly, both the Plaintiff and the Department of Veterans Affairs have been given a full

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8 three weeks to file an opposition to the present motion and have failed to do so. Plaintiff, as
9 stated above, as filed a non-opposition. (Doc. 86.) In the event that the Department of Veterans
10 Affairs regards Plaintiff’s non-opposition as failing to qualify as a “written authorization” under
11 45 C.F.R. 164.508, the failure of any party to file an opposition satisfies HIPAA’s requirement
12 that the covered entity be assured that the subpoenaing party has made “reasonable efforts” to
13 obtain a release. See 45 C.F.R. § 164.512(e)(1).
It is clear that Plaintiff has waived any privilege preventing the disclosure of his medical

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15 records by the Department of Veterans Affairs. Further, all HIPAA requirements for disclosure
16 have been complied with. Therefore, based on the foregoing, the Court GRANTS Defendant’s
17 Motion to Compel Compliance with Subpoena. The Department of Veterans Affairs is
18 HEREBY ORDERED to produce all records responsive to the subpoena by August 12, 2015.
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Defendant’s request for sanctions is DENIED.

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IT IS SO ORDERED.

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DATED: July 22, 2015
Peter C. Lewis
United States Magistrate Judge

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cc:

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The Honorable Gonzalo P. Curiel
All Parties and Counsel of Record

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13-cv-579-GPC-(PCL)

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