Gabriel v. Albany College of Pharmacy and Health Sciences - Vermont Campus (ACPHS) et al
Filing
131
OPINION AND ORDER denying re 124 MOTION to Quash Defendants Subpoena and MOTION for Protective Order with respect to Marissa Robbins, LMHC, and Dr. Richard W.Ober, Ph.D, denying 129 MOTION to Quash Defendants Subpoena and MOTION for Protective Order with respect to Dr.Sachin Phansalkar, M.D., 128 MOTION for Protective Order and MOTION to Quash Notice of Deposition with respect to his deposition on July 14, 2014. Signed by Judge William K. Sessions III on 7/10/2014. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Matthew Gabriel, f/k/a
Matta Ghobreyal,
Plaintiff,
v.
Albany College of Pharmacy
and Health Sciences Vermont Campus (ACPHS),
Professor Dorothy Pumo,
Ronald A. DeBellis, Dean
Robert Hamilton, Assistant
Professor Joanna Schwartz,
Jason Long, Melissa Long,
Professor Stefan Balaz,
President Dr. James J.
Gozzo, Associate Dean John
Denio, Dr. Peter J.
Cornish, Professor Gail
Goodman Snitkoff, Gerald
Katzman, Accreditation
Council of Pharmacy
Education (ACPE), Peter
H. Vlasses, Lindsay M.
Antikainen,
Defendants.
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Case No. 2:12-cv-14
OPINION AND ORDER REGARDING PLAINTIFF’S MOTIONS TO QUASH
AND MOTIONS FOR PROTECTIVE ORDERS
(Docs. 124, 128, 129)
Pending before the Court are three motions filed by pro
se Plaintiff, Matthew Gabriel, pertaining to depositions and
document production sought by Defendants Albany College of
Pharmacy and Health Sciences - Vermont Campus (“ACPHS”),
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Professor Dorothy Pumo, Ronald A. DeBellis, Dean Robert
Hamilton, Assistant Professor Joanna Schwartz, Jason Long,
Melissa Long, Professor Stefan Balaz, President Dr. James J.
Gozzo, Associate Dean John Denio, Dr. Peter Cornish,
Professor Gail Goodman Snitkoff, and Gerald Katzman
(collectively, “ACPHS Defendants”).
Gabriel’s suit arises from his tenure as a student at
the Vermont campus of ACPHS.
Gabriel’s Second Amended
Complaint(Doc. 58) names ACPHS together with several of its
administrators, professors, students, and General Counsel,
(the remaining ACPHS Defendants), alleging Federal
discrimination claims brought pursuant to 42 U.S.C. § 1981
and Federal Title VI, 42 U.S.C. § 2000d, et seq.
All other
claims, including Gabriel’s state law claims, have been
dismissed. (Doc. 70.)
Gabriel alleges that physical and
psychological harm resulted from Defendants’ discriminatory
conduct, as well as lost wages and other economic damages.
(Doc. 58 at 38-39.)
Gabriel now moves to quash several deposition subpoenas
ad testificandum and duces tecum issued by Defendants
ordering Gabriel’s mental health providers (Marissa Robbins,
LMHC, Dr. Richard W. Ober, M.D., and Dr. Sachin Phansalkar,
2
M.D.) to appear and give testimony on July 9, 2014 and to
produce copies of Gabriel’s mental health treatment records.
(Docs. 124 and 129.) Gabriel also seeks protective orders
“to prevent the defendants from attempting to obtain
plaintiff’s medical records in the future, in violation of
the plaintiff’s medical privileges.”
Id.
Additionally,
Gabriel moves for a protective order and to quash
Defendants’ Notice of Deposition for Gabriel’s own
deposition in Providence, Rhode Island on July 14, 2014
(Doc. 128.)
I. Plaintiff’s Motions to Quash Subpoenas and Motions for
Protective Orders with Respect to Mental Health Treatment
Provider Depositions
Gabriel’s pending motions to quash the subpoenas issued
to Ms. Robbins and Dr. Ober (Doc. 124) and Dr. Phansalkar
(Doc. 129) are brought pursuant to Fed. R. Civ. P. 45
(d)(3)(A), and the accompanying motions for protective
orders limiting discovery of his treatment records are
brought pursuant to Fed. R. Civ. P. 26(c).
Under Rule 45, the Court “must quash or modify a
subpoena that . . . requires disclosure of privileged or
other protected matter, if no exception or waiver applies .
. . .”
Fed. R. Civ. P. 45.
Rule 26(c) provides that,
3
“[t]he court may, for good cause, issue an order to protect
a party or person from annoyance, embarrassment, oppression
or undue burden or expense” and authorizes the Court to
issue orders narrowing the time, scope, and manner of
discovery.
See Fed. R. Civ. P. 26(c)(1).
Gabriel argues that the material sought by Defendants
is protected by the psychotherapist-patient privilege,
“HIPAA laws,” and the civil rules.
He also argues that
ordering his providers to produce treatment records is
unnecessary and imposes an undue burden because he has
already produced the records in question.
Gabriel has filed
with the Court documents purporting to constitute all of the
treatment records created by Ms. Robbins and Mr. Ober.
(Doc. 124, Exhibits G and L.) Defendants argue that Gabriel
waived any privilege he may have with respect to his
communications with these providers by placing his
psychological condition at issue and alleging that
psychological harm resulted from Defendants’ conduct.
(Doc.
127.)
Federal Rule of Evidence 501 provides that claims of
privilege are governed by federal common law, unless
superceded by federal statutory or constitutional law or if
4
“state law governs privilege regarding a claim or defense
for which state law supplies the rule of decision.”
Fed. R. Evid. 501.
See
Because Gabriel’s remaining causes of
action arise under federal law, federal common law applies
to Gabriel’s privilege claim.
The United States Supreme Court has recognized a
“psychotherapist-patient privilege” which protects
“confidential communications made to licensed psychiatrists
and psychologists.”
Jaffee v. Redmond, 518 U.S. 1, 15
(1996); see also Forunati v. Campagne, No. 1:07-CV-143, 2009
WL 1350406 at *2 (D. Vt. May 12, 2009).
The Jaffee court
also acknowledged that, “[l]ike other testimonial
privileges, the patient may of course waive the protection.”
Id. at 15 n. 14.
A waiver of psychotherapist-patient privilege may be
express or implied.
Cir. 2008).
See Sims v. Blot, 534 F.3d 117, 132 (2d
Implied waiver can occur where a plaintiff
places his medical condition directly at issue in the
litigation.
See Schoffstall v. Henderson, 223 F.3d 818, 823
(8th Cir. 2000); see also Sidor v. Reno, No. 95 Civ.
9588(KMW) 1998 WL 164823 at *2 (S.D.N.Y. April 7, 1998)
(where mental state at issue, opponent entitled to inquire
5
into present and past communications between psychotherapist
and patient).
The Second Circuit has adopted a narrow view
of implied waiver, requiring that the plaintiff’s claim
extend beyond more than a “garden variety” claim for
emotional distress or so-called “pain and suffering”
damages.
Sims, 534 F.3d at 133-35.
However, where the
plaintiff seeks compensation for “serious psychological
injuries,” he generally is deemed to have waived the
privilege.
Kunstler v. City of New York, No.
04CIV1145(RWS)(MHD), 2006 WL 2156625 *7 (S.D.N.Y. Aug. 29,
2006) (compiling cases).
Here, Gabriel alleges that Defendants’ conduct caused
or “triggered” a generalized anxiety disorder, which he also
relates to his economic damages claim because the condition
impeded his ability to pursue his pharmacy degree.
124 at 3.)
(Doc.
Unlike a non-specific claim for “emotional harm”
or “pain and suffering,” Gabriel alleges that he now suffers
from a diagnosed mental health condition that is causallyconnected to Defendants’ conduct.
By placing his mental
health diagnosis and its source at issue, Gabriel waived any
psychotherapist-patient privilege that might otherwise arise
from his treatment relationships with Ms. Robbins, Dr. Ober,
6
and Dr. Phansalkar.
Furthermore, Gabriel expressly waived
the privilege when he filed his treatment records with the
Court and served copies on Defendants.
See Tavares v.
Lawrence and Memorial Hosp., No. 3:11-CV-770, 2012 WL
4321961 (D. Ct. Sept. 20, 2012) (privilege expressly waived
by providing release forms for mental health provider at
issue).
To the extent Gabriel argues that appearing at a
deposition or producing documents would subject these nonparty witnesses to an “undue burden,” contrary to Fed. R.
Civ. P. 45(d)(3)(A)(iv), he lacks standing to bring these
arguments on their behalf. See Langford v. Chrysler Motors
Corp., 513 F.2d 1121, 1126 (2d Cir. 1975) (“In the absence
of a claim of privilege a party usually does not have
standing to object to a subpoena directed to a non-party
witness.”) (citation omitted).
Likewise, Gabriel has not shown good cause that a
protective order limiting these non-party witnesses’
deposition testimony is necessary to prevent “annoyance,
embarrassment, oppression, or undue burden or expense” per
Fed. R. Civ. P. 26(c)(1).
Therefore, Gabriel’s Motion to Quash Defendants’
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Subpoena and Motion for Protective Order with respect to
Marissa Robbins, LMHC, and Dr. Richard W. Ober, Ph.D (Doc.
124) and Motion to Quash Defendants’ Subpoena and Motion for
Protective Order with respect to Dr. Sachin Phansalkar, M.D.
(Doc. 129) both are DENIED.1
Although it appears that Gabriel has already produced
most, if not all, of the mental health treatment records
which constitute the primary subject of his motions, Gabriel
“may withdraw or formally abandon all claims for emotional
distress in order to avoid forfeiting” the privilege with
respect to as-yet-undisclosed communications.
F.3d at 134.
See Sims, 534
In the event Defendants seek further discovery
from other non-party mental health treatment providers,
Gabriel retains the option of forfeiting his psychological
damage claims and seeking an order limiting the scope of
discovery as permitted under the Federal Rules of Civil
Procedure.
1
The Court does not take up Gabriel’s argument that the
documents sought by Defendants are protected by the Health
Insurance Portability and Accountability Act of 1996(“HIPAA”), 42
U.S.C. § 300gg-22 and 29 U.S.C. § 1181 et seq., because HIPAA
does not modify the federal evidentiary rules or otherwise supply
an independent grounds for privilege. See also Warren Pearl
Const. Corp. v. Gardian Life Ins. Co., 639 F. Supp. 2d 371, 377
(S.D.N.Y. 2009) (HIPAA provide an express or implied private
right of action) (citing cases).
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II. Plaintiff’s Motion for Protective Order and Motion to
Quash Notice of Plaintiff’s Deposition
Gabriel also seeks a protective order pursuant to Fed.
R. Civ. P. 26(c)(1) and moves to quash2 Defendants’ Notice
of Deposition regarding Gabriel’s deposition set for July
14, 2014 in Providence, Rhode Island (Doc. 128.)
Gabriel
argues that he has already produced “all the materials that
the defendants need to assess his medical injuries claims,”
and that “he speaks and writes English as a second
language.”
He also argues that counsel for Defendants sent
the Notice of Deposition via email on July 1, 2014, and
therefore Defendants did not provide notice 14-days in
advance, contrary to Fed. R. Civ. P. 32(a)(5)(A).
Gabriel
generally requests “protection in regards to his deposition”
and “necessary order/decisions in that regard.”
Fed. R. Civ. P. 26(c)(1) requires the party seeking a
2
In this instance, the Court construes Gabriel’s Motion for
Protective Order and Motion to Quash as one-and-the-same.
Defendant’s did not serve notice of Gabriel’s deposition by
subpoena, pursuant to Fed. R. Civ. P. 45, because Gabriel is a
party. Pegoraro v. Marrero, No. 10 Civ. 00051 (AJN)(KNF), 2012
WL 1948887 at *6 (S.D.N.Y. May 29, 2012). Regardless, “[w]hen a
subpoena to testify at a deposition or a subpoena to testify at a
deposition and bring documents, is served on any person, Rule 30,
not Rule 45, of the Federal Rules of Civil Procedure, governs the
notice requirement . . . .” Cole v. City of New York, No. 10
Civ. 5308(BSJ)(KNF), 2012 WL 1138570 at *3 (S.D.N.Y. Apr. 5,
2012).
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protective order limiting discovery to show good cause for
the request.
See Fed. R. Civ. P. 26(c)(1) (“The court may,
for good cause, issue an order to protect a party or person
. . .”) As a general rule, especially where factual issues
remain in dispute, “the defendant is entitled to depose the
plaintiff face-to-face in order to adequately prepare for
trial.”
Clem v. Allied Van Lines, Intern. Corp., 102 F.R.D.
938, 940 (S.D.N.Y. 1984).
Gabriel’s extensive filings in
this matter demonstrate that he has sufficient command of
the English language such that his language skills do not
constitute good cause for entirely suspending his
deposition.
See Agiwai v. Mid Island Mortgage Corp., 555
F.3d 298, 302 (2d Cir. 2009) (filings and court appearances
that demonstrate fluency in written English do not excuse
failure to comply with discovery).
Likewise, the timing of the Notice of Deposition does
not excuse Gabriel’s compliance.
In support of his
argument, Gabriel cites Rule 32(a)(5)(A), governing the use
of deposition testimony in court proceedings.
Civ. P. 32(a)(5)(A).
See Fed. R.
This rule merely requires that under
certain circumstances, where a party receives less than 14days’ notice of a deposition and moves for a protective
10
order, the deposition cannot be used against that party at
trial.3
Rule 32(a)(5)(A) does not bear upon whether the
deposition may be taken.
Instead, Rule 30(b)(1) requires the party conducting
the deposition to provide all other parties with “reasonable
written notice.”
The Rules do not further define
“reasonable,” however, “many courts have found fourteen days
from the date of service as presumptively reasonable.”
Brown v. Hendler, No. 09 Civ. 4486(RLE), 2011 WL 321139, at
*2 (S.D.N.Y. Jan. 30, 2011).
Reasonableness “is fact
specific and is determined based on the circumstances and
complexities of the particular case.”
See Federal Civil
Rules Handbook, Baicker-McKee, Janssen, Corr (Thompson-West
2008) (citing cases).
While the Court is cognizant of the fact that Gabriel
is a pro se litigant, he does not claim that the timing of
the notice he received will impede his preparation or
3
More specifically, the Rule provides:
A deposition must not be used against a party who,
having received less than 14 days’ notice of the
deposition, promptly moved for a protective order under
Rule 26(c)(1)(B) requesting that it not be taken or be
taken at a different time or place–and this motion was
still pending when the deposition was taken.
Fed. R. Civ. P. 32(a)(5)(A).
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otherwise prejudice his case.
Nor does he argue that the
date (or the time or location, for that matter) will
inconvenience him in any way.
Instead, the focus of
Gabriel’s memorandum appears to be his desire to avoid being
deposed. Under these circumstances, the Court cannot
conclude that thirteen-days’ notice is unreasonable.
In sum, Gabriel has not shown good cause necessary to
limit the subject matter of the deposition, to suspend the
deposition entirely, nor has he provided sufficient grounds
for the Court to conclude that Gabriel did not receive
reasonable written notice, as required by Fed. R. Civ. P
30(b)(1).
Therefore, Gabriel’s Motion for Protective Order
and Motion to Quash Notice of Deposition with respect to the
deposition set for July 14, 2014 (Doc. 128) is DENIED.
CONCLUSION
For the reasons set forth above, Plaintiff’s Motion to
Quash Defendants’ Subpoena and Motion for Protective Order
with respect to Marissa Robbins, LMHC, and Dr. Richard W.
Ober, Ph.D (Doc. 124) and Motion to Quash Defendants’
Subpoena and Motion for Protective Order with respect to Dr.
Sachin Phansalkar, M.D. (Doc. 129) are DENIED. Plaintiff’s
Motion for Protective Order and Motion to Quash Notice of
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Deposition with respect to his deposition on July 14, 2014
(Doc. 128) is DENIED.
Dated at Burlington, in the District of Vermont, this
10th day of July, 2014.
/s/ William K. Sessions III
William K. Sessions III
Judge, United States District Court
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