VanValkenburg v. Oregon Department of Corrections

Filing 39

Opinion and Order. The Court ORDERS Defendant to provide substantive responses to Plaintiff's discovery requests consistent with this Opinion and Order no later than February 27, 2015. Signed on 02/02/2015 by Judge Anna J. Brown. See attached 10 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DAVID VANVALKENBURG,
Plaintiff,

v.
OREGON DEPARTMENT OF
CORRECTIONS,
Defendant.

MATTHEW C. ELLIS
Law Office of Matthew C. Ellis
621 S.W. Morrison Street
Suite 1050
Portland, OR 97205
[phone]
SHENOA L. PAYNE
Hagglund Kelly, LLP
200 S.W. Market Street
Suite 1777
Portland, OR 97201
[phone]
Attorneys for Plaintiff

1 - OPINION AND ORDER

3:14-cv-00916-BR
OPINION AND ORDER

ELLEN F. ROSENBLUM
Attorney General
HEATHER J. VAN METER
SHANNON M. VINCENT
Senior Assistant Attorneys General
Oregon Department of Justice
1162 Court Street N.E.
Salem, OR 97301
[phone]
Attorneys for Defendant

BROWN, Judge.
This matter comes before the Court on Defendant Oregon
Department of Corrections’ invocation of multiple discovery
privileges in an effort to require Plaintiff David VanValkenburg
to provide waivers signed by other deaf inmates in Defendant's
custody before Defendant can disclose information regarding those
inmates.

For the reasons that follow, the Court concludes on

this record that Plaintiff is not required to obtain signed
waivers from other deaf inmates before Defendant produces the
requested discovery materials.
Plaintiff, a person who is deaf and who, until recently, was
in Defendant’s custody, filed this action against Defendant
raising disability-discrimination claims under federal and Oregon
law.

Plaintiff alleges Defendant did not adequately accommodate

Plaintiff’s deafness and, therefore, engaged in a pattern and/or
practice of discrimination against Plaintiff.

Plaintiff

specifically alleges, inter alia, that Defendant employed a

2 - OPINION AND ORDER

policy of using insufficiently qualified inmate-American Sign
Language (ASL) interpreters to communicate with Plaintiff.
As part of discovery Plaintiff seeks information and
documentary evidence concerning the accommodations that Defendant
has made for other deaf inmates.

Defendant, however, contends

Plaintiff has not sufficiently defined the universe of deaf
inmates about which Plaintiff seeks information and, absent a
signed waiver from each deaf inmate, such information is
privileged under (1) privacy guarantees of the United States
Constitution; (2) the Health Insurance Portability and
Accountability Act (HIPAA), 42 U.S.C. § 1320d(4)(B); and
(3) Oregon Revised Statute § 179.505(2).
I.

Vagueness of Plaintiff’s Discovery Requests
In communications between counsel Plaintiff defined “deaf”

as “those with the audiological condition of not hearing” and
“those with very limited hearing who cannot rely on it for
comfortable communication and who are able to communicate via
ASL.”

Def.’s Mem. (#35) at 6.

Defendant contends Plaintiff’s

definition of “deaf” is impermissibly vague.
The Court, however, finds Plaintiff’s definition of “deaf”
is sufficiently specific to permit Defendant to make a reasonable
search of its records to locate the relevant information.
On this record the Court concludes Plaintiff’s definition of
“deaf” is not impermissibly vague.

3 - OPINION AND ORDER

II.

Defendant’s Invocation of Privilege
As noted, Defendant contends Plaintiff must provide a signed

release from other deaf inmates before Defendant can produce the
requested discovery because, absent such a release, the
information is privileged under federal constitutional privacy
guarantees, HIPAA, and § 179.505(2).
The party asserting an evidentiary privilege bears the
burden to demonstrate that the privilege applies to the
information in question.
(9th Cir. 2012).

Lambright v. Ryan, 698 F.3d 808, 823

The party asserting the privilege must also

expressly make the assertion and describe the nature of the
allegedly privileged evidence in a manner that will enable other
parties to assess the claim of privilege.

Fed. R. Civ. P.

26(b)(5)(A).
A.

Federal Constitutional Privacy Protections

Defendant contends Plaintiff must obtain signed releases
from the other deaf inmates because even disclosure of the
identities of such inmates would violate their constitutionallyprotected privacy rights.
1.

Standard

Federal courts generally recognize a constitutionallybased right to privacy that can be raised as a privilege in
response to discovery requests.

See, e.g., Estate of Shafer ex

rel. Shafer v. City of Elgin, Or., No. 2:12-cv-00407-SU, 2014 WL
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1303095, at *3 (D. Or. Mar. 28, 2014); Rogers v. Giurbino, 288
F.R.D. 469, 484 (S.D. Cal. 2012); Soto v. City of Concord, 162
F.R.D. 603, 616 (N.D. Cal. 1995).

“Resolution of a privacy

objection requires a balancing of the need for the particular
information against the privacy right asserted.”
Shafer, 2014 WL 1303095, at *3.

Estate of

See also Rogers, 288 F.R.D. at

484 (noting “courts generally balance the need for the
information against the severity of the invasion of privacy”).

A

protective order preventing disclosure of private information can
minimize the severity of the invasion of privacy.
Shafer, 2014 WL 1303095, at *3.

Estate of

See also Soto, 162 F.R.D. at

616.
2.

Analysis

As noted, Defendant contends it cannot disclose any
information about accommodations made to other deaf inmates or
the identities of such inmates without a signed release because
doing so would violate the inmates’ constitutionally-protected
privacy interests.

Plaintiff responds the other inmates’ privacy

interests are minimal in light of the inherently public nature of
deafness and the Stipulated Protective Order (#7) (SPO) entered
in this case and that Plaintiff has a substantial interest in
accessing this information because it is necessary to show that
Defendant engaged in a pattern and practice of discrimination.

5 - OPINION AND ORDER

a.

Plaintiff’s Interest in Obtaining Discovery

Although Plaintiff’s interest in the information
concerning other deaf inmates is not as compelling as Plaintiff
suggests, the Court concludes Plaintiff has a legitimate interest
in obtaining this information.

The Court notes Plaintiff’s

claims are personal in nature and limited to how Defendant
treated him; i.e., Plaintiff only asserts Defendant maintained a
pattern or practice of discriminating against Plaintiff as a
result of his deafness rather than asserting Defendant engaged in
a pattern or practice of discriminating against deaf inmates
generally.

Information regarding Defendant’s accommodation of

other deaf inmates, however, may be relevant to establish
Defendant’s discriminatory intent and to address Defendant’s
undue-burden defense.

See Lovell v. Chandler, 303 F.3d 1039,

1056 (9th Cir. 2002)(noting compensatory damages are only
available in a disability-discrimination claim under the
Americans with Disabilities Act upon a showing of discriminatory
intent).

See also Def.’s Answer (#28) ¶ 98 (regarding the undue-

burden defense).

Thus, although the Court rejects Plaintiff’s

position that information concerning other deaf inmates is
central to Plaintiff’s claim, the Court concludes Plaintiff,
nevertheless, has a legitimate interest in obtaining the
information in discovery.

6 - OPINION AND ORDER

b.

Other Deaf Inmates’ Privacy Interest

The mere fact that an inmate is deaf is not a
“private” fact because it is readily ascertainable by any person
who comes into contact with such an inmate.

Thus, the privacy

interests of other deaf inmates are minimal as to disclosure of
their identities and the accommodations that Defendant made for
the disabilities of those inmates.

Moreover, any information

disclosed to Plaintiff about other deaf inmates is subject to the
SPO, which prevents Plaintiff from disseminating such information
and requires Plaintiff to return or to destroy any such
information at the conclusion of this litigation.

In fact, the

potential disclosure of information concerning other deaf inmates
was an explicit reason for the SPO.

The Court, therefore, finds

the other deaf inmates’ privacy interests in disclosure of their
identities and information concerning Defendant’s accommodations
to those inmates for their disability is minimal.
In summary, the Court concludes on this record that
Plaintiff’s legitimate need for information concerning
Defendant’s accommodation of other deaf inmates outweighs the
inmates’ minimal privacy interest in that information.

The Court

notes, however, there may be specific documents that implicate
greater privacy interests.

The Court, therefore, does not

foreclose the possibility that Defendant may make a claim of
privilege with respect to such documents after providing

7 - OPINION AND ORDER

Plaintiff with a privilege log.
Accordingly, on this record the Court concludes
Defendant has not met its burden at this time to demonstrate the
information concerning other deaf inmates is privileged as a
result of the constitutionally-protected privacy interests of
those inmates.
B.

HIPAA Privilege

As noted, Defendant contends it cannot disclose any
information concerning other deaf inmates (including their
identities) because such disclosures are prohibited under HIPAA.
Defendant’s argument is without merit.

HIPAA regulations

provide a covered entity may disclose protected health
information in response to a discovery request during the course
of a judicial proceeding if “[t]he covered entity receives
satisfactory assurance . . . from the party seeking the
information that reasonable efforts have been made by such party
to secure a qualified protective order.”
§ 164.512(e)(1)(ii)(B).

45 C.F.R.

The SPO in this case meets the

requirements for a “qualified protective order” under 45 C.F.R.
§ 164.512(e)(1)(v).
Accordingly, on this record the Court concludes Defendant
has not met its burden to establish that information concerning
other deaf inmates is privileged pursuant to HIPAA.

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C.

Privilege under Oregon Revised Statute § 179.505

Defendant contends it may not disclose information
concerning other deaf inmates without a signed release because
§ 179.505 prohibits such disclosure.
Subject to certain exceptions, § 179.505(2) provides:
[U]nless otherwise permitted or required by state or
federal law or by order of the court, written accounts
of the individuals served by any health care services
provider maintained in or by the health care services
provider by the officers or employees thereof who are
authorized to maintain written accounts within the
official scope of their duties are not subject to
access and may not be disclosed. This subsection
applies to written accounts maintained in or by
facilities of the Department of Corrections only to the
extent that the written accounts concern the medical,
dental or psychiatric treatment as patients of those
under the jurisdiction of the Department of
Corrections.
Defendant has not met its burden to demonstrate that
Plaintiff’s requested discovery is prohibited under § 179.505(2).
For example, some of the information requested by Plaintiff
likely does not qualify as a “written account[] concern[ing] the
medical, dental, or psychiatric treatment” of an inmate.

See id.

Moreover, to the extent that Plaintiff requests health records,
those records may not be subject to § 179.505(2) because, as
noted, such disclosures are permitted by federal law as a result
of the entry of the SPO in this case.

See id.

Nonetheless, to

the extent that Defendant identifies in good faith information
that Defendant believes it is precluded from disclosing under
§ 179.505(2), Defendant may invoke that privilege after providing
9 - OPINION AND ORDER

Plaintiff with a privilege log.
Accordingly, on this record the Court concludes Defendant
has not met its burden at this time to demonstrate the
information that Plaintiff requests concerning other deaf inmates
is privileged pursuant to § 179.505(2).

CONCLUSION
For these reasons, the Court ORDERS Defendant to provide
substantive responses to Plaintiff’s discovery requests
consistent with this Opinion and Order no later than February 27,
2015.
IT IS SO ORDERED.
DATED this 2nd day of February, 2015.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

10- OPINION AND ORDER