Hounshel v. Battelle Energy Alliance, LLC

Filing 42

MEMORANDUM DECISION AND ORDER granting in part and denying in part 35 Motion to Compel. Defendant Battelle Energy Alliance, LLC produce the information as outlined in this decision no later than October 2, 2013. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DEREK HOUNSHEL,
Case No. 4:11-cv-00635-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
BATTELLE ENERGY ALLIANCE,
LLC,
Defendant.

INTRODUCTION
Before the Court is Plaintiff Derek Hounshel’s Motion to Compel Discovery
Pursuant to Fed.R.Civ.P. 37(a) (Dkt. 35). Hounshel seeks an order compelling
Defendant Battelle Energy Alliance, LLC to respond to discovery requests asking
Battelle (1) to identify any employees Battelle sent for a psychiatric evaluation based on
alleged workplace behavior, and (2) to produce the personnel files for any identified
employees. Battelle objected to the discovery requests on the grounds that the requested

MEMORANDUM DECISION AND ORDER - 1

information (1) was not relevant, (2) contained personal and confidential information
regarding other non-party Battelle employees, and (3) was protected by the Federal
Privacy Act of 1974, the Health Insurance Portability and Accountability Act of 1996
(HIPAA), and the Public Health Act. The counsel for the parties discussed the issue, and
Battelle’s counsel indicated that Battelle was not necessarily opposed to producing the
information but could only do so with a court order. In accordance with the Court’s Case
Management Order outlining the procedure for discovery disputes, the parties contacted
court staff and obtained approval from the Court to file this Motion.
For the reasons set forth below, the Court will grant Hounshel’s motion in part and
deny in part.
ANALYSIS
Although Battelle previously objected to producing the requested information on
several bases, including HIPAA and the ADA, it now appears that Battelle relies
exclusively on the Federal Privacy Act (“FPA”), in refusing to produce this information
without a court order. The parties debate whether the FPA applies to the discovery
requests.
Regardless of whether the FPA applies or not, the Court believes that Hounshel’s
discovery requests raise significant privacy concerns for third-party employees who have
no involvement in this case. “Federal Courts ordinarily recognize a constitutionallybased right of privacy that can be raised in response to discovery requests.” Soto v. City
of Concord, 162 F.R.D. 603, 616 (N.D.Cal. 1995) (citing Breed v. United States Dist. Ct.

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for Northern District, 542 F.2d 1114, 1116 (9th Cir.1976) (balancing the invasion of
minor's privacy rights against the court's need for ward files). “[T]he initiation of a law
suit does not, by itself, grant plaintiffs the right to rummage unnecessarily and unchecked
through the private affairs of anyone they choose.” Cook v. Yellow Freight System, Inc.,
132 F.R.D. 548, 551 (E.D.Cal. 1990), abrogated on other grounds by Jaffee v. Redmond,
518 U.S. 1 (1996). “A balance must be struck.” Id.
Resolution of a privacy objection requires a balancing of the need for the
information sought against the privacy right asserted. Soto, 162 F.R.D. at 616.
Non-party employees, with no interest in this case, undoubtedly have a significant
privacy interest in not having their names and mental health information disclosed
without their consent. Indeed, the Supreme Court has recognized a limited privacy
interest in the confidentiality of an individual’s medical records, derived implicitly from
the United States Constitution. Whalen v. Roe, 429 U.S. 589, 599–600 (1977). And the
Ninth Circuit has held that this right to privacy encompasses the doctor-patient and
psychotherapist-patient relationship. Caesar v. Mountanos, 542 F.2d 1064, 1067 n. 9 (9th
Cir.1976), cert. den. 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 804 (1977).
On the other hand, the relevancy requirements with respect to discovery are to be
broadly construed. N.L.R.B. v. Local Union 497, 795 F.2d 836, 838 (9th Cir. 1986).
Given this broad standard, the information Hounshel seeks is no doubt relevant. Hounshel
is alleging that Battelle discriminated against him by requiring him to undergo psychiatric
evaluation based on alleged workplace violence. So obtaining the information regarding

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other employees who Battelle required to undergo a psychiatric evaluation based on
workplace behavior bears not only on Hounshel’s claims but also on Battelle’s defenses.
Also, the public has a strong interest in uncovering civil rights violation of the type
alleged here.
Balancing a non-party employee’s very substantial privacy interest in information
pertaining to mental health and Hounshel’s need for the requested information, the Court
finds the balance slightly tips in favor of disclosure. But “even where the balance weighs
in favor of disclosure of private information, the scope of disclosure will be narrowly
circumscribed; such an invasion of the right to privacy must be drawn with narrow
specificity and is permitted only to the extent necessary for a fair resolution of the
lawsuit.” Cook, 132 F.R.D. at 552 (citation omitted). This rule accords with the Court’s
discretionary power under Federal Rule of Civil Procedure 26(c), which allows courts to
fashion discovery in a manner that is suitable to the actions before it. Id.
Here, given a non-party’s very substantial privacy interest in mental health
records, the limitations on disclosure must be carefully crafted. It is the Court’s
understanding that the parties have already in place a protective order that limits access of
confidential information to Hounshel, his counsel, and his experts, and provides that
copies of such materials will be returned to Battelle or destroyed at the conclusion of the
case. In addition, Hounshel has agreed to narrow the scope of his request in two
significant ways. First, rather than requesting each identified employees’ entire
personnel file, Hounshel asks for only those portions that contain documents related to

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the reasons for Battelle’s requiring a psychiatric examination of the employee (which
may include disciplinary records) and the psychiatric examinations. Second, Hounshel
has further narrowed the scope of his request “to those individuals who were required to
undergo a psychiatric examination as a result of workplace violence or alleged workplace
violence.” Pl’s Reply at 8, Dkt. 3
This is a good start. But the Court does not believe it is enough to protect the
substantial privacy interests at issue here. The Court will therefore require a two-tier
approach to disclosure of the requested information. First, the Court will require Battelle
to identify employees – by their initials only – who Battelle has required to undergo a
psychiatric evaluation based on alleged workplace behavior. Battelle must also provide a
very brief and general description of the alleged behavior that led to Battelle’s requiring
the identified employee to undergo such an evaluation, as well as a general description of
what action, if any, Battelle took against the identified employee. Second, the Court will
order Battelle to produce to Hounshel the requested portions of personnel files for those
employees who were required to undergo a psychiatric evaluation because of alleged
workplace violence only (and not just workplace behavior in general).
Because of the highly sensitive nature of mental health information, the Court will
not compel Battelle to disclose the psychiatric evaluations themselves, and Battelle must
redact any personal identifying information, including names and addresses, from the
produced personnel files. These non-party employees have done nothing to inject
themselves into this case, and the Court sees no reason to invade their privacy without

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more. If, after reviewing the produced information, Hounshel determines that he needs
the name of a specific employee and that employee’s psychiatric evaluation, Hounshel
may file a motion seeking the information. Hounshel will have to make a particularized
showing to justify disclosure of an employee name and psychiatric evaluation. At this
point, however, the Court would not be inclined to grant such a request.
ORDER
IT IS ORDERED that Plaintiff Derek Hounshel’s Motion to Compel Discovery
Pursuant to Fed.R.Civ.P. 37(a) (Dkt. 35) is GRANTED in part and DENIED in part in
accordance with this decision.
IT IS FURTHER ORDERED that Defendant Battelle Energy Alliance, LLC
produce the information as outlined in this decision no later than October 2, 2013.

DATED: September 24, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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