Scroggins et al v. C. R. England, Inc. et al

Filing 104

MEMORANDUM AND ORDER - The parties' stipulation 103 to amend the court's prior order, (filing no. 102 ), is granted. On or before July 26, 2011, Dawn Levine, Ph.D. and Kaiser Permanente shall assemble and produce to the undersigned magist rate judge, at the name and address set forth in the attached subpoenas, any and all neuropsychological records, testing data, raw scores, test results and all other documents relating to the neuropsychological evaluation Dr. Levine conducted on Rosa nne Scroggins on or about December 9, 2008. The records received by the undersigned magistrate judge will not be released to the plaintiffs, the defendants, or their counsel. The materials produced in compliance with the subpoena(s) will not be prov ided to anyone other than Robert G. Arias, Ph.D., a licensed neuropsychologist in Lincoln, Nebraska who is qualified to review the records. Ordered by Magistrate Judge Cheryl R. Zwart. (2 Certified copies to USM with subpoenas, checks, and 285 forms)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROSANNE SCROGGINS, and
CHESTER WILLIAMS,

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Plaintiffs,
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v.
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C. R. ENGLAND, INC., a Utah
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corporation, and ROBERT J. DALY JR., )
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Defendants.
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7:10CV5004

MEMORANDUM AND ORDER

On or about April 18, 2011, the defendants served a subpoena upon Dawn Levine,
Ph.D. and Kaiser Permanente, requiring all neuropsychological records, testing data, raw
scores, and test results to be sent directly to Robert Arias, Ph.D., 6940 Van Dorn, Suite 201,
Lincoln, Nebraska 68506, a neuropsychologist retained by defendants, for his review and
analysis. Defense counsel drafted the subpoena to require the information to be sent directly
to Robert Arias, Ph.D., 6940 Van Dorn, Suite 201, Lincoln, Nebraska 608506.

Dr. Levine refused to comply with the subpoena, stating the subpoenaed records
would not be produced without either a signed authorization from the plaintiff or a court
order which required the requested records to be produced.

On June 6, 2011, the defendant filed a motion for an order compelling Dr. Levine and
Kaiser Permanente to comply with the subpoenas. The plaintiff’s mental state is an issue in
this case, the subpoenaed documents are relevant, and plaintiff’s counsel did not oppose the
motion to compel.

On June 8, 2011, the court entered the following order:
On or before June 24, 2011, Dawn Levine, Ph.D. and Kaiser Permanente shall
assemble and produce directly to Robert Arias, Ph.D., 6940 Van Dorn, Suite
201, Lincoln, NE 68506, any and all neuropsychological records, testing data,
raw scores, test results and all other documents relating to the
neuropsychological evaluation Dr. Levine conducted on Rosanne Scroggins
on or about December 9, 2008.
Filing No. 88.

Dr. Levine and Kaiser Permanente did not comply with this order, and did not advise
this court that it intended to ignore the prior subpoenas and this court’s order. Upon further
inquiry by counsel for the defendant, Kaiser Permanente explained:
Neuropsychological records are afforded special confidentiality protection.
Therefore, we are unable to comply with your subpoena and request. Until
you provide us with a HIPAA compliant authorization signed by the patient or
a court order signed by the judge records will not be released. After we
receive the proper documentation the records will be sent directly to the judge
for viewing.
Filing No. 99, at CM/ECF p. 5 (Kaiser Permanente letter dated July 6, 2011)(emphasis
added).1

The court has received subpoenas and witness fee checks for service upon Dawn
Levine, Ph.D. and Kaiser Permanente in the United States District Court for the Eastern

1

Kaiser Permanente also verbally expressed concern with this court’s order because the
undersigned judge’s signature was an s/ signature. As in the California federal courts, (see Local
Rules of the United States District Court for the Eastern District of California), an electronic s/
signature on an order filed of record in this federal court is valid judicial signature, and the fact that
an s/ signature was used on a court order provides no legitimate basis for ignoring or refusing to
comply with the order.
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District of California. The subpoenas are signed by Stephen S. Gealy, counsel for the
defendant and an attorney authorized to practice in the United States District Court for the
District of Nebraska, the United States Court of Appeals for the Eighth Circuit, and the
United States Supreme Court. Mr. Gealy is therefore authorized to sign the attached
subpoenas for document production pursuant to Rule 45(a)(3)(A) of the Federal Rules of
Civil Procedure.
The subpoenas command Dawn Levine, Ph.D. and Kaiser Permanente to produce any
and all neuropsychological records, testing data, raw scores, test results and all other
documents relating to the neuropsychological evaluation Dr. Levine conducted on Rosanne
Scroggins on or about December 9, 2008. In accordance with the terms set forth in Kaiser
Permanente’s letter, the subpoenas direct Kaiser Permanente and Dawn Levine Ph.D. to
produce the documents to the undersigned judge.
Accordingly,
IT IS ORDERED:
1)

The parties’ stipulation to amend the court’s prior order, (filing no. 102), is
granted.

2)

On or before July 26, 2011, Dawn Levine, Ph.D. and Kaiser Permanente shall
assemble and produce to the undersigned magistrate judge, at the name and
address set forth in the attached subpoenas, any and all neuropsychological
records, testing data, raw scores, test results and all other documents relating
to the neuropsychological evaluation Dr. Levine conducted on Rosanne
Scroggins on or about December 9, 2008.

3)

The records received by the undersigned magistrate judge will not be released
to the plaintiffs, the defendants, or their counsel. The materials produced in
compliance with the subpoena(s) will not be provided to anyone other than
Robert G. Arias, Ph.D., a licensed neuropsychologist in Lincoln, Nebraska
who is qualified to review the records.

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4)

The clerk shall prepare two certified copies of this order, attach one such copy
to each of the subpoenas, and deliver the orders with attached subpoenas and
witness fee checks to the Marshal.

4)

To preserve the integrity of this court and assure the enforcement of its orders,
and to minimize any further delay in case progression, the United States
marshal or deputy United States marshal, or a person specially appointed for
that purpose, is required to serve a certified copy of this order along with the
attached subpoena and witness fee check on:
Dawn Levine, PhD.
Fair Oaks Medical Office Building
Department of Psychiatry/Neurological Services
2345 Fair Oaks Boulevard
Sacramento, CA 95825
and
Kaiser Permanente
%Rue Henninger
Legal Release of Information
3240 Arden Way
Sacramento, CA 95825
The Marshal is instructed to serve Rue Henninger with the order and subpoena
for service on Kaiser Permanente.

DATED this 13th day of July, 2011.
BY THE COURT:

_______________________________
United States Magistrate Judge

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