Alexander v. Boeing Commercial Space Company

Filing 20

ORDER by Judge Richard A Jones. The court GRANTS Plaintiff Jill Alexander's motion for protective order. Dkt. # 11 . The court also GRANTS Defendant's motion to seal (Dkt. # 12 ), although Boeing must submit additional documents by October 25, 2013, in accordance with this order. (CL)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JILL ALEXANDER,
Plaintiff,

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CASE NO. C13-1369RAJ
v.
ORDER
THE BOEING COMPANY,
Defendant.

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I. INTRODUCTION

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This matter comes before the court on Plaintiff Jill Alexander’s motion for a

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protective order and Defendant The Boeing Company’s motion to seal. No one has

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requested oral argument and the court finds oral argument unnecessary. For the reasons

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stated herein, the court GRANTS the motion for protective order. Dkt. # 11. The court

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also GRANTS the motion to seal (Dkt. # 12), although Boeing must submit additional

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documents by October 25, 2013, in accordance with this order.

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II. BACKGROUND

Ms. Alexander worked at Boeing for about seventeen years, until Boeing fired her

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this May. Ms. Alexander suffers from chronic migraine headaches, which she contends

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constitute a disability. She claims not only that Boeing failed to reasonably

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accommodate her disability, but that it fired her after misleading her about whether she

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could continue to take medical leave. She sued initially in King County Superior Court,

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ORDER – 1

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invoking the Washington Law Against Discrimination and the Washington Family Leave

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Act. After Boeing removed the case to this court, she added a claim invoking the federal

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Family and Medical Leave Act.
Discovery began and the parties attempted to negotiate discovery into Ms.

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Alexander’s medical records. Ms. Alexander is willing to permit discovery into her

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records for the five years before she sued in July; Boeing wants records reaching back ten

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years. The parties could not resolve their impasse, and Boeing last month issued notices

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of its intent to issue subpoenas to nine of Ms. Alexander’s medical providers. Each of

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those notices advised the targeted provider of Boeing’s intent to subpoena all medical

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records from 2003 or later. Ms. Alexander moved for a protective order. 1 Boeing relied

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on some of her medical records in responding to her motion, and has moved to seal those

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records.

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Civil litigants are entitled to discovery of “any nonprivileged matter that is

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relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). A discovery request

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need not call for evidence that would be admissible at trial, so long as the request

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“appears reasonably calculated to lead to the discovery of admissible evidence.” Id. A

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party can seek a protective order to limit discovery, which the court may grant if the party

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demonstrates the need for protection from “annoyance, embarrassment, oppression, or

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undue burden or expense . . . .” Fed. R. Civ. P. 26(c)(1); Rivera v. NIBCO, Inc., 364 F.

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3d 1057, 1063 (9th Cir. 2004) (“The burden is upon the party seeking the order to ‘show

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good cause’ by demonstrating harm or prejudice that will result from the discovery.”).

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The court must limit discovery where its “burden or expense . . . outweighs its likely

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benefit, considering the needs of the case, the amount in controversy, the parties’

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Boeing issued notices of its intent to issue subpoenas in compliance with RCW 70.20.060(1),
which requires notice to a medical provider at least fourteen days in advance of a subpoena. The
court assumes that Boeing has not issued subpoenas, pending the resolution of Ms. Alexander’s
motion for a protective order.

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resources, the importance of the issues at stake in the action, and the importance of

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discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C)(iii).

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The purpose of Ms. Alexander’s motion is to prevent discovery into her mental

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health treatment. She declares that she has not received mental health treatment in the

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past five years, and Boeing does not dispute her evidence.

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Boeing contends that older mental health records are relevant based on Ms.

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Alexander’s employment history. The record reveals that Ms. Alexander intermittently

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missed work (because of her headaches, in her view) beginning in 2012 and continuing

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until her termination. For many years prior to 2012, Ms. Alexander’s headaches

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apparently did not interfere materially with her work at Boeing. Neither Boeing nor Ms.

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Alexander contend that her headaches caused her to miss any work from 2005 through

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2011. In 2003 and 2004, however, Boeing permitted Ms. Alexander to take two medical

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leaves totaling 10 months. Medical records in Ms. Alexander’s personnel file show that

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she took this leave for a variety of reasons, including her headaches, depression, post-

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traumatic stress disorder, and more. Those records, plus records that Boeing subpoenaed

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from its third-party leave administrator, suggest that during that time, at least one medical

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provider found Ms. Alexander’s headaches and her mental health to be closely related

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causes of her disabling symptoms. Luschei Decl. (Dkt. # 18) at 18. In Boeing’s view, it

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is entitled to inquire into her nearly decade-old mental health records because they may

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help it demonstrate that her more recent absences are also not solely the result of her

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headaches, but also mental health conditions. The records may also, according to

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Boeing, help it demonstrate that the emotional distress that Ms. Alexander claims as

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damages has causes other than Boeing’s conduct.

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The parties’ arguments focus extensively on whether any privilege protects Ms.

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Alexander’s mental health records, arguments that turn in part on choice-of-law issues

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arising from Ms. Alexander’s mixed federal- and state-law claims. For reasons that the

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court will soon discuss, the court need not resolve any question of privilege today.

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Should those issues arise again, Ms. Alexander ought to consider whether any court

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would permit her to selectively present her medical records when they benefit her (as she

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has done in her motion) but to claim a privilege preventing Boeing from further inquiring

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into her medical history.

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The court can resolve this motion solely by comparing the marginal relevance of

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the records Boeing seeks against the impact their disclosure would have on Ms.

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Alexander. As to the latter consideration, no one seriously questions that the exposure of

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mental health treatment records is not to be taken lightly.

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As to relevance, Ms. Alexander has properly questioned how the records Boeing

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seeks will lead to the discovery of admissible evidence. The court assumes for purposes

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of this motion that Boeing has demonstrated that Ms. Alexander’s leaves of absence in

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2003 and 2004 were due not only to her headaches, but to her mental health. Boeing is

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free to speculate that her more recent absences from work have the same causes, but on

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this record, that is ungrounded speculation. Boeing points to no current evidence that

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Ms. Alexander is suffering from a mental health condition. It does not contest that she

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has not received mental health treatment in at least five years. It offers no opinion from a

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qualified medical professional that there is reason to suspect a current or recent mental

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health condition. The supposition of lawyers is no substitute for medical opinion.

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Like virtually all employment-law plaintiffs, Ms. Alexander seeks damages for

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emotional distress as a result of her treatment by Boeing. Boeing is entitled to inquire

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into whether her emotional distress results from other causes (like a mental health

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condition) that she cannot attribute to Boeing. But on this record, an inquiry into mental

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health records that are more than a decade old is too far afield from an inquiry into the

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causes of her more recent emotional distress.

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ORDER – 4

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The court will not permit Boeing to seek discovery of medical records from more

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than five years prior to the date Ms. Alexander sued. No one should misconstrue this

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prohibition on discovery of medical records as a prohibition on making inquiries into Ms.

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Alexander’s mental health, even inquiries that stretch back as far as a decade. Boeing

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may, for example, ask Ms. Alexander appropriate questions at a deposition about her

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mental health, including her mental health in 2004. Should those questions, or other

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discovery, reveal a better reason for obtaining old medical records, Boeing may revisit

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the issue.

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Both parties request that the court award attorney fees for bringing (or in Boeing’s

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case, opposing) this motion. The court must award attorney fees to a party who

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successfully moves for a protective order, unless that party failed to meet and confer in

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good faith before filing the motion, the opposing party’s position was “substantially

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justified,” or other circumstances make such an award unjust. Fed. R. Civ. P.

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37(a)(5)(A)(i)-(iii); see also Fed. R. Civ. P. 26(c)(3) (declaring that with respect to a

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motion for a protective order, “Rule 37(a)(5) applies to the award of expenses”).

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Although it is a close question, the court declines to award Ms. Alexander attorney

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fees. Boeing had at least a colorable argument that Ms. Alexander’s old medical records

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were relevant. Ms. Alexander, moreover, focused her argument in favor of protecting the

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older records on a dubious assertion or privilege, rather than the relevance of the

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documents Boeing sought. The court encourages both parties to improve their

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communication about discovery issues, with the hope of avoiding motions like these. For

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now, the court will not impose fees.

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Finally, the court turns to Boeing’s motion to seal. It asks the court to seal two

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exhibits consisting of medical records from Ms. Alexander’s personnel file and records

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from its leave administrator that reveal medical information about Ms. Alexander. That

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motion was an appropriate recognition of Ms. Alexander’s right to present arguments in

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ORDER – 5

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favor of sealing documents, and the court rejects Ms. Alexander’s contention that Boeing

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did something improper by informing her that only the court could decide whether the

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documents would remain under seal. Boeing did nothing but restate portions of this

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District’s local rules, which make clear that the parties’ stipulation alone is no basis to

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keep a document under seal. Local Rules W.D. Wash. LCR 5(g), 26(c)(2).

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The local rules, specifically LCR 5(g), acknowledge the “strong presumption of

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public access to the court’s files.” LCR 5(g). For a non-dispositive motion like this one,

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a party need only show “good cause” for maintaining a document under seal. Kamakana

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v. City & County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006). Even though Ms.

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Alexander did not respond to the motion to seal, the court finds good cause to seal the

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two exhibits to Boeing’s declarations that contain Ms. Alexander’s medical records. Ms.

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Alexander’s motion, in which she decried what she anticipated would be Boeing’s

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decision to file some of her old medical records, suffices to demonstrate the impact of

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disclosure of those records.

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Boeing did not follow the portion of the court’s local rules that requires it to

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separate documents filed under sealed from documents that do not require protection.

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LCR 5(g)(4). It filed two entire declarations under seal, even though only single exhibit

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to each of those motions was the subject of its motion to seal. It also filed its entire

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opposition to Ms. Alexander’s motion for protective order under seal, rather than merely

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redacting sensitive information and filing separate redacted and sealed versions of the

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opposition. LCR 5(g)(5). The court will keep each of these three documents under seal,

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but Boeing must file new documents that comply with the local rules. It must file a

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separate redacted version of its motion to seal. It must also publicly file versions of each

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of its declarations, eliminating only the exhibits that the court has permitted to be sealed,

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in accordance with court rules.

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ORDER – 6

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Should the parties’ future submissions to the court require them to move to seal

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some documents, the court expects them both to comply with LCR 5(g). The court will

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consider sanctions for any party who does not comply.

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III. CONCLUSION

For the reasons stated herein, the court GRANTS the motion for protective order.

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Dkt. # 11. Boeing may not obtain discovery of any medical records (including records of

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mental health treatment) that predate the filing of this lawsuit by more than five years.

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The court GRANTS Boeing’s motion to seal (Dkt. # 12), but orders Boeing to
publicly file the three documents described in this order no later than October 25, 2013.
DATED this 18th day of October, 2013.

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The Honorable Richard A. Jones
United States District Court Judge

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ORDER – 7