Ellis et al v. Hobbs Police Department et al
ORDER by Magistrate Judge Gregory B. Wormuth granting 161 Motion to Quash Subpoena and for Protective Order. (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BRANDON ELLIS, et al.,
HOBBS POLICE DEPARTMENT, et al.,
Civ. No. 17‐1011 WJ/GBW
ORDER GRANTING MOTION TO QUASH SUBPOENA
AND FOR PROTECTIVE ORDER
THIS MATTER comes before the Court on Defendants’ Motion to Quash
Subpoena Issued by Plaintiffs to Zia Consulting, Inc. and for Protective Order. Doc. 161.
Having reviewed the motion and attendant briefing (docs. 164, 166), the Court finds that
the subpoena must be quashed because of its failure to comply with the Health
Insurance Portability and Accountability Act (“HIPAA”). In addition, the Court finds
that the records sought by Plaintiffs are not proportional to the needs of the case. The
Court will therefore GRANT Defendants’ motion.
On August 22, 2019, Plaintiffs issued a subpoena to Zia Consulting, Inc., ordering
production of pre‐employment psychological evaluation records for fifteen current and
former Hobbs Police Department (“HPD”) officers. See doc. 161‐4; doc. 161 at 2. For
each officer, the subpoena sought the following specific records for each officer:
Statement of Understanding
Social History Survey
Mental Status Exam (MSE)
Wide Range Achievement Test Reading (WRAT‐3)
Shipley Institute of Living Scale‐2 (SILS‐2)
Sixteen Personality Factor 5th Ed. (1 6PF)
Minnesota Multiphasic Personality Inventory‐2 Restructured Form
Doc. 161‐4. Some of the listed officers are Defendants in this suit, while others are non‐
party witnesses. See doc. 161 at 2. Plaintiffs have since agreed to exclude non‐party
witnesses and Defendant J. J. Murphy from their request. See doc. 164 at 11. However,
Plaintiffs maintain their entitlement to the pre‐employment psychological evaluation
records of the other officers listed in the subpoena.
Defendants argue that the subpoena to Zia Consulting must be quashed because
it is not HIPAA‐compliant. See doc. 161 at 5–7. In addition, they request a protective
order prohibiting discovery of HPD officers’ pre‐employment psychological evaluations
on the ground that (1) they are not relevant or proportional to the needs of the case, (2)
they are protected by psychotherapist/patient privilege, (3) the requests subject the
officers to undue burden, and (4) the officers have a constitutional right to privacy in
their mental health records. See generally id. Plaintiffs disagree on all counts. See
generally doc. 164. Defendants’ motion is now before the Court.
The Health Insurance Portability and Accountability Act, or HIPAA, “generally
prohibit[s] covered entities1 from using or disclosing ‘protected health information.’”
Murphy v. Dulay, 768 F.3d 1360, 1368–69 (11th Cir. 2014) (quoting 45 C.F.R. §
164.508(a)(1)). However, HIPAA regulations provide for the release of protected health
information under certain circumstances. Relevant to the instant motion:
A covered entity may disclose protected health information in the course
of any judicial or administrative proceeding:
(ii) In response to a subpoena, discovery request, or other lawful
process, that is not accompanied by an order of a court or
administrative tribunal, if:
(A) The covered entity receives satisfactory assurance, as
described in paragraph (e)(1)(iii) of this section, from the party
seeking the information that reasonable efforts have been
made by such party to ensure that the individual who is the
subject of the protected health information that has been
requested has been given notice of the request; or
(B) The covered entity receives satisfactory assurance, as
described in paragraph (e)(1)(iv) of this section, from the party
seeking the information that reasonable efforts have been
made by such party to secure a qualified protective order that
meets the requirements of paragraph (e)(1)(v) of this section.
Defendants have asserted that Zia Consulting is a “covered entity” under HIPAA, see doc. 164 at 7, and
Plaintiffs do not contradict this assertion, see generally doc. 164. A covered entity is defined by the
regulation as a “health plan,” a “health care clearinghouse,” or a “health care provider who transmits any
health information in electronic form in connection with a transaction covered by this subchapter.” 45
C.F.R. § 160.103. Based on Defendants’ uncontroverted assertion and the lack of any evidence to the
contrary, the Court assumes that Zia Consulting is, indeed, a covered entity.
45 C.F.R. § 164.512(e)(1). A covered entity receives “satisfactory assurances” if the
requesting party includes a written statement and documentation demonstrating that:
(1) the requesting party has made a good faith attempt to provide written notice to the
subject individual, (2) the notice included sufficient information about the litigation to
permit the individual to raise an objection with the court, and (3) the time for the
individual to raise objections has elapsed. Id. § 164.512(e)(1)(iii).
Defendants contend that Plaintiffs’ subpoena to Zia Consulting is deficient in
that it contains no assurances of either an attempt to notify the subject individuals or
reasonable efforts to secure a qualified protective order. See doc. 161 at 5–7. Plaintiffs’
do not appear to dispute this fact as their only discernible argument in opposition
appears to be one of waiver: “Defendants never objected to Request for Production No.
14 on the ground that the request violated the implementing regulations found in the
HIPAA.” Doc. 164 at 7.
The Court finds that Plaintiffs’ subpoena to Zia Consulting, served on August 23,
2019, is indeed deficient under HIPAA regulations. Examination of the subpoena
reveals no statement that could remotely be construed as an assurance either of efforts
to notify the subject individuals or of efforts to secure a protective order.2 See doc. 161‐4.
As Plaintiffs point out, see doc. 164 at 10, albeit in response to another of Defendants’ arguments, there is
a Stipulated Confidentiality Order in effect in this case. See doc. 29. Whether this stipulated order would
be a qualified protective order under HIPAA is debatable, since it permits opposing parties and experts
to keep medical records “confidential,” rather than destroying them or returning them to the covered
entity, at the end of the litigation. See id. at 3; cf. 45 C.F.R. § 164.512(e)(1)(v)(B). In any event, there is no
Moreover, Plaintiffs’ contention that Defendants did not previously object to Request
for Production No. 14 appears wholly immaterial to the issue at hand. For one thing,
Defendants’ counsel lack the authority to waive HIPAA requirements for covered
entities, particularly with respect to non‐represented parties. For another, the Court is
puzzled to understand how Defendants could have known that Plaintiffs’ subpoena
would be non‐compliant until it was actually issued and served. Therefore, the Court
finds that the subpoena served on Zia Consulting on August 23, 2019 (doc. 161‐4)
violates HIPAA and must be quashed.
RELEVANCE & PROPORTIONALITY
Defendants further request a protective order prohibiting future discovery of the
officers’ pre‐employment psychological evaluations. Defendants make a number of
different arguments in support of this request. See generally doc. 161. Because the Court
finds that discovery of these psychological evaluations is not proportional to the needs
of the case, it does not reach the issues of privilege, constitutional right to privacy, or
undue burden as standalone bases for the protective order.
The Federal Rules of Civil Procedure provide that:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
question that the Stipulated Confidentiality Order was not explicitly referenced in Plaintiffs’ subpoena to
Zia Consulting as required by 45 C.F.R. § 164.512(e)(1)(ii)(B). See generally doc. 161‐4.
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P 26(b)(1) (emphasis added). Information “need not be admissible in
evidence to be discoverable.” Id. However, “Rule 26 vests the trial judge with broad
discretion to tailor discovery narrowly.” Murphy v. Deloitte & Touche Group Ins. Plan,
619 F.3d 1151, 1163 (10th Cir. 2010) (quoting Crawford‐El v. Britton, 523 U.S. 574, 598
Plaintiffs’ Complaint contains three claims: (1) retaliation for whistleblowing in
violation of the New Mexico Whistleblower Protection Act, (2) retaliation for protected
speech and association in violation of the First Amendment and 42 U.S.C. § 1983, and
(3) racial discrimination and deprivation of due process in violation of the Fourteenth
Amendment, 42 U.S.C. § 1981 and § 1983. See doc. 1 at 15–20. In their response to
Defendants’ motion, Plaintiffs offer a number of reasons why discovery of the
subpoenaed records is relevant to these three claims.3 The stated reasons fall into
roughly four categories: (1) to demonstrate the individuals’ psychological fitness to
serve as HPD officers; (2) to demonstrate HPD’s pattern of hiring officers with poor
“moral character”; (3) to determine whether these individuals harbor “racist
As Defendants correctly note in their reply, Plaintiffs do not address how or why the requested
discovery is proportional to the needs of the case. See doc. 166 at 6 (“Plaintiffs failed to respond to
Defendants’ argument that the records … are not proportional to the needs of this case. As such,
Plaintiffs have conceded this argument.”). The Court declines, however, to find automatically in favor of
Defendants on that basis.
tendencies”; and (4) for general purposes of credibility and impeachment.4 See generally
doc. 164. The Court will address each in turn.
A. Psychological Fitness
First, the Court finds that evidence of the Defendant officers’ psychological
fitness to serve as HPD officers is insufficiently relevant to Plaintiffs’ claims to justify
the proposed serious intrusion on those officers’ privacy interests. Their psychological
fitness to serve (as distinct from their “moral character” or racist tendencies, which will
be explicitly addressed below) appears potentially relevant only to demonstrate that, as
Plaintiffs put it, “these Officers were as or less psychologically fit to serve as Hobbs
Police Department officers than any of the Plaintiffs.” Doc. 164 at 6. In other words, at
most, evidence of psychological instability or unfitness might demonstrate that
Plaintiffs were at least as qualified as the Defendant officers, eliminating one alternative
explanation for Plaintiffs’ differential treatment. See, e.g., Wells v. Colo. DOT, 325 F.3d
1205, 1218 (10th Cir. 2003) (quoting Reeves v. Sanderson Plumbing, Inc., 530 U.S. 133, 147
(2000)) (elimination of other plausible justifications for employment discrimination can
show that “discrimination may well be the most likely alternative explanation”).
Plaintiffs additionally make a fifth argument: that Plaintiffs’ own medical records “show that HPD was
aware that these men have pre‐existing psychiatric injuries” from their military service, but “then turned
around and mocked” their service. Doc. 164 at 9. Because Defendants do not seek a protective order
preventing Plaintiffs from disclosing their own psychological evaluations, the Court declines to address
However, the relevance of pre‐employment psychological evaluations for this
purpose is doubtful at best. This is not a discriminatory hiring case. Indeed, each
Plaintiff was successfully hired by HPD following his psychological evaluation,
notwithstanding the fact that Plaintiffs Ellis and Robinson are African American.
Therefore, a comparison of Plaintiffs’ employment applications to the Defendant
officers’ employment applications appears unlikely to advance Plaintiffs’ claims; of far
more relevance would be a comparison of their on‐the‐job performance. As for
Plaintiffs’ contention that the subpoenaed records would support their municipal
liability claim, see doc. 164 at 4, a pattern of hiring officers who are psychologically unfit
in some general sense—as distinct from racially biased—would do little to establish
whether those same officers engaged in racial discrimination, or whether HPD should
have anticipated that they would.
In addition, though the Court here refrains from deciding whether the federal
psychotherapist‐patient privilege applies to the subpoenaed records, the importance of
the privacy interests at stake is readily apparent. The Court’s evaluation of relevance
and proportionality must be particularly stringent where personal, confidential
information is involved. See Regan‐Touhy v. Walgreen Co., 526 F.3d 641, 648–49 (10th Cir.
2008) (quoting Herbert v. Lando, 441 U.S. 153, 177 (1979)). The Tenth Circuit has
recognized a constitutional “right to privacy” in personnel file information that is “of a
highly personal nature.” Flanagan v. Munger, 890 F.2d 1557, 1571 (10th Cir. 1989). In the
interest of maintaining privacy, it may often be acceptable for the trial court to limit
discovery of personnel files. See Regan‐Touhy, 526 F.3d at 649 (citing Gehring v. Case
Corp., 43 F.3d 340, 342 (7th Cir. 1994)). More specifically, courts have repeatedly
recognized the importance of confidentiality in communications with mental health
professionals. See, e.g., Jaffee v. Redmond, 518 U.S. 1, 8–9 (1996) (recognizing a federal
common law psychotherapist‐patient privilege).
Although, as Plaintiffs point out, the Defendant officers did not voluntarily seek
psychological treatment or diagnosis, their psychological evaluations are nonetheless of
a “highly personal” nature. In addition, even if the Defendant officers knew that part or
all of their evaluations might be shared with high‐ranking HPD officials, they
nevertheless had a reasonable expectation of confidentiality with respect to other
persons and entities. See NMAC § 10.29.9.12.A(7) (mandatory psychological
evaluations “shall be held in the strictest of confidence”). The important public policy
rationale underlying the Supreme Court’s decision in Jaffee—the encouragement of full
and free communication with mental health professionals—is therefore to some degree
applicable in this context. See Jaffee, 518 U.S. at 11. It is greatly in the public interest that
potential HPD officers answer questions honestly and openly during their pre‐
employment psychological evaluations. See, e.g., Gavins v. Rezaie, 2017 WL 3218506, at
*2–3 (S.D. Fla. July 28, 2017) (quoting Caver v. City of Trenton, 192 F.R.D. 154, 163 (D.N.J.
Therefore, without deciding whether any absolute psychotherapist‐patient
privilege applies, the Court takes into account the Defendant officers’ privacy interests
in conducting its proportionality analysis. See Northwestern Mem’l Hosp. v. Ashcroft, 362
F.3d 923, 927 (7th Cir. 2004) (district court properly weighed the limited probative value
of sensitive medical records against the “potential loss of privacy” to the patient,
concluding that “the balance of harms resulting from disclosure severely outweighs the
loss to the government through non‐disclosure”). Because the Court finds that the
potential relevance of demonstrating the Defendant officers’ psychological fitness to
serve at the time of application is minimal, and the privacy interests at stake are very
weighty, the requested discovery is not proportional to the needs of the case.
B. Moral Character
Second, Plaintiffs argue that the psychological evaluations are relevant to show
HPD’s pattern or practice of hiring officers with poor “moral character.” The Court
discerns two problems with this argument.
To begin with, the likelihood that the subpoenaed evaluations will reveal
anything about the officers’ “moral character” appears rather low. Of the eight
specifically requested components listed in Plaintiffs’ subpoena, see doc. 161‐4 at 4–8,
four are standardized clinical assessments not designed to reach conclusions about a
subject’s “moral character.”5 The Statement of Understanding merely informs the test‐
taker of the purpose for the evaluation.6 Another component, the Mental Status Exam,
is generally used to assess current mental capacity and cognitive function.7 While the
Social History Survey and Clinical Interview components are presumably somewhat
more open‐ended, Plaintiffs offer no evidence that either one is designed to elicit
responses or enable conclusions about an applicant’s generalized “moral character.”
Rather, the stated purpose of psychological evaluations for law enforcement officers in
the state of New Mexico is to “certify to the individual’s emotional and mental
condition.” NMAC § 10.29.9.12.A(1). See also id. § 10.29.9.12(B)(5) (clinical interview
should cover such areas as schooling, job history, substance abuse, judgment, and
reliability); NMSA § 29‐7‐6(A)(6) (applicants are qualified if “free of any emotional or
mental condition that might adversely affect  performance as a police officer”). Of
course, it is possible to imagine that information relevant to a subject’s moral character
might incidentally be revealed through these psychological evaluations. For instance,
as Plaintiffs observe, evidence of “anti‐social and sociopathic tendencies” might have
significant bearing on a measure of Defendants’ “moral character.” See doc. 164 at 6.
These standardized clinical assessments are the Wide Range Achievement Test Reading (WRAT‐3), the
Shipley Institute of Living Scale‐2 (SILS‐2), the Sixteen Personality Factor 5th Ed. (1 6PF), and the
Minnesota Multiphasic Personality Inventory‐2 Restructured Form (MMPI‐2 RF). Doc. 161‐4 at 4.
6 See Michelle Hoy‐Watkins & Megan E. Shaal, Competency to Stand Trial, in Inside Forensic Psychology 26
(Tiffany Masson, PsyD ed., 2016).
7 See George Newman, M.D., PhD, How to Assess Mental Status, Merck Manual Professional Version (Feb.
However, because poor moral character is not in itself a recognized emotional or mental
condition, it is far from certain that any information relevant to moral character would
More importantly, even assuming that such information was to be found in some
of the psychological evaluations, the relevance of the Defendant officers’ generalized
“moral character” to Plaintiffs’ claims is not readily apparent. Whether the Defendant
officers have “good moral character,” doc. 164 at 9–10, is only tangentially related to
whether or not they racially discriminated against Plaintiffs. Similarly, their “good
moral character” or lack thereof is insufficiently specific to greatly assist in establishing
whether Plaintiffs reported illegal and racially discriminatory conduct and were
consequently retaliated against. This is particularly true given that some of the
subpoenaed psychological evaluations may have been conducted years or even decades
ago.8 Even if, as Plaintiffs point out, New Mexico statutory law requires police officer
applicants to be “of good moral character,” NMSA § 29‐7‐6(A)(7),9 the Court finds that
the potential relevance of the subpoenaed records to demonstrate Defendants’ “moral
character” is insufficient to outweigh the important privacy interests discussed above.
Defendant McCall, for example, was hired by HPD in 1999, some thirteen years before Plaintiff Ellis
arrived. See doc. 143 at 4, 15.
9 Although this point is little worth discussing given the Court’s other findings, NMSA § 29‐7‐6(A)(7)
applies to applicants’ qualifications for certification. Whether or not the Defendant officers were qualified
applicants at the time of hiring is of limited relevance for the same reasons discussed with respect to their
psychological fitness to serve. See pg. 7, supra.
Consequently, Plaintiffs’ requested discovery fails the proportionality analysis on this
theory as well.
C. Racist Tendencies
Third, the Court finds that the subpoenaed psychological evaluations are not
proportional to the needs of the case as they relate to the Defendant officers’ “racist
tendencies.” Unlike their generalized moral character, whether or not the Defendant
officers have behaved in a racially discriminatory manner in the past has obvious
relevance to Plaintiffs’ claims of racial discrimination. However, to this Court’s
knowledge, not one of the clinical evaluations included in HPD’s pre‐employment
psychological evaluations is specifically designed to measure an applicant’s racial bias.
See supra n. 3–5. Nor have Plaintiffs made such an argument. At the very least,
therefore, Plaintiffs’ subpoena is dramatically overbroad: it covers a wide swath of
highly sensitive psychological information, most of which is obviously irrelevant to
showing racial bias or discrimination, on the bare chance that some information related
to racial bias will be revealed.
In addition, once again, the temporal distance between some of the Defendant
officers’ evaluations and any events that transpired during Plaintiffs’ employment
period weighs against a finding of proportionality. See, e.g., Ray v. Ropes & Gray LLP,
799 F.3d 99, 116 (1st Cir. 2015) (probative value of racially derogatory remarks is
“circumscribed if they were made in a situation temporally remote from the date of the
employment decision in question”); Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1184
(10th Cir. 2006) (no inference of pretext was reasonable where a racial comment was
“temporally remote from the termination”).
For these reasons, the Court does not find that discovery of the subpoenaed
psychological evaluations would be proportional to the needs of this case on a theory of
demonstrating racial bias.
D. Credibility and Impeachment
Lastly, Plaintiffs argue that the subpoenaed psychological evaluations are
relevant for the general purposes of impeachment and establishing credibility.
Plaintiffs assert that “credibility is always relevant.” Doc. 164 at 3 (emphasis in original).
So far as it goes, this statement is not inaccurate. For example, “[a] witness’s credibility
may always be attacked by showing that his or her capacity to observe, remember, or
narrate is impaired.” United States v. Robinson, 583 F.3d 1265, 1272 (10th Cir. 2009)
(quoting 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, §
607.05 (Joseph M. McLaughlin ed., 2d ed. 2009)). Likewise, proof of bias against a
particular party is “almost always relevant” in weighing a witness’s credibility. United
States v. Abel, 469 U.S. 45, 52 (1984).
However, the mere fact that information, if found, would be relevant does not
automatically make every file in which it might be found, discoverable. See Fed. R. Civ.
P. 26(b)(1) (discoverable information must be both relevant and proportional).
Moreover, there must be some limit to the general purposes of establishing credibility
and gathering information for impeachment. They would otherwise justify nearly
unlimited discovery with respect to every witness or party in every case. Plaintiffs do
not explain in what specific ways the Defendant officers’ pre‐employment
psychological evaluations could be used to measure their credibility or impeach them as
witnesses. See generally doc. 164. In short, without more, arguing that the subpoenaed
records “may discover statements which could be used for impeachment,” or “may
discover evidence of a character for truthfulness,” doc. 164 at 3, is inadequate to
establish that the discovery of these highly personal psychological evaluations is
proportional to the needs of the case.
In light of the foregoing, Defendants’ Motion to Quash Subpoena Issued by
Plaintiffs to Zia Consulting, Inc. and for Protective Order (doc. 161) is hereby
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
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