Carpenter v. RES-CARE Health Services, Inc.

Filing 28

MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendant's 23 MOTION to Compel Discovery Responses; directing as follows: Plaintiff shall provide a full and complete answer to Interrogatory No. 7 within 10 days of the date of this Order, as more fully set forth herein. Signed by Magistrate Judge Cheryl A. Eifert on 4/23/2013. (cc: attys) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
MARJORIE CARPENTER,
Plaintiff,
v.

Case No.: 3:12-cv-08047

RES-CARE HEALTH SERVICES, INC.,
d/b/a RES-CARE HEALTH SERVICES, INC.
of West Virginia, a foreign corporation
authorized to do business in West Virginia,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant’s Motion to Compel Discovery Responses
(ECF No. 23). Plaintiff has filed a memorandum in opposition, (ECF No. 25), and
Defendant has replied. (ECF No. 27). Having considered the issues and the written
submissions of counsel, the undersigned finds that oral argument is unnecessary.
Accordingly, for the reasons that follow, the Court GRANTS, in part, and DENIES, in
part, Defendant’s motion.
I.

Relevant Background
Plaintiff brought this action for retaliatory discharge after being terminated from

Defendant’s employment in November 2011. As part of her complaint, Plaintiff alleged
negligent/intentional infliction of emotional distress by Defendant and demanded
compensation for “embarrassment, humiliation, and mental suffering.” (ECF No. 1-2 at
8).

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In the course of discovery, Defendant requested the names and addresses of all
health care practitioners who had seen or treated Plaintiff in the past ten (10) years;1
sought production of all records referring or relating to physical, emotional,
psychological, or mental injuries suffered by Plaintiff in the past ten (10) years;2 and
asked Plaintiff to sign an authorization permitting health care providers to release her
relevant medical and psychological records.3 Plaintiff refused to comply with any of
these requests on the basis that she had not received medical or mental health treatment
as a result of her termination; therefore, the information sought was irrelevant to either
party’s claims or defenses and unnecessarily invaded Plaintiff’s privacy. Defendant
wrote to Plaintiff in an effort to resolve the dispute, explaining that the information was
required to evaluate and assess Plaintiff’s allegation of emotional distress and her
request for damages. (ECF No. 23-1). Plaintiff did not respond to the letter, so
Defendant proceeded to file the Motion to Compel. That same day, Plaintiff
communicated with Defendant by electronic mail, indicating that she did not intend to
provide the requested information. (ECF No. 27-2).
II.

Analysis
Federal Rule of Civil Procedure 26(b)(1) permits a party to obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claims or defenses.
“Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P.
26(b)(1). Thus, relevancy in discovery is broad in scope, because “[d]iscovery is of
broader scope than admissibility, and discovery may be had of inadmissible matters.”
1

Interrogatory No. 7.

2

Request for Production of Documents No. 12.

3

Request for Production of Documents No. 20.

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King v. Conde, 121 F.R.D. 180, 194 (E.D.N.Y. 1988); see, also, Caton v. Green Tree
Services, LLC, 2007 WL 2220281 (N.D.W.Va.) (The “test for relevancy under the
discovery rules is necessarily broader than the test for relevancy under Rule 402 of the
Federal Rules of Evidence.”); Carr v. Double T Diner, 272 F.R.D.431, 433 (D.Md. 2010)
(“The scope of relevancy under discovery rules is broad, such that relevancy
encompasses any matter that bears or may bear on any issue that is or may be in the
case”). For purposes of discovery, information is relevant, and thus discoverable, if it
‘“bears on, or ... reasonably could lead to other matter[s] that could bear on, any issue
that is or may be in the case. Although ‘the pleadings are the starting point from which
relevancy and discovery are determined ... [r]elevancy is not limited by the exact issues
identified in the pleadings, the merits of the case, or the admissibility of discovered
information.’ Rather, the general subject matter of the litigation governs the scope of
relevant information for discovery purposes.” Kidwiler v. Progressive Paloverde Ins.
Co., 192 F.R.D. 193, 199 (N.D.W.Va. 2000) (internal citations omitted). A party resisting
discovery bears the burden of explaining “precisely why its objections are proper given
the broad and liberal construction of the federal discovery rules. This includes, of
course, where the resisting party asserts that the discovery is irrelevant.” United Oil Co.,
Inc. v. Parts Assocs., Inc., 227 F.R.D. 404, 411 (D.Md. 2005); see also Kinetic Concepts,
Inc. v. Convatec, Inc., 268 F.R.D. 226, 243-44 (M.D.N.C. 2010) (collecting cases).
A.

Contact Information of Medical Providers and Records

Plaintiff argues that her medical records are not relevant because she has not
placed her medical, physical, or psychological condition at issue. (ECF No. 25 at 4).
Plaintiff concedes that she has made a “garden variety” emotional distress claim, but
emphasizes that she has “never undergone any mental health treatment, so the only
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records [available] would be for physical conditions.” (ECF No. 25 at 6). According to
Plaintiff, she has not alleged a physical injury; consequently, her prior medical
treatment has no bearing on her claims.
To the contrary, Defendant contends that Plaintiff’s medical records are relevant
to show whether Plaintiff has pre-existing conditions that relate to or affect her claims of
emotional distress and to determine the cause of her alleged injuries. (ECF No. 27 at 3).
Defendant argues that courts addressing this issue have routinely required plaintiffs to
produce medical and psychological records.
A review of cases decided by courts in the Fourth Circuit confirms Defendant’s
perception of the prevailing law. In EEOC v. Sheffield, LLC, 2007 WL 1726560
(M.D.N.C. June 13, 2007), the District Court addressed the very argument raised by
Plaintiff regarding “garden variety” emotional distress claims, finding that “[w]hen a
plaintiff seeks damages for mental anguish, ‘[t]he medical and psychological
information sought by [ ] interrogatories and requests for production are relevant as to
both causation and the extent of plaintiff's alleged injuries and damages.’” Id., at *4
(quoting Garrett v. Sprint PCS, 2002 WL 181364, at *2 (D. Kan. Jan. 31, 2002)). Like
Plaintiff here, the terminated employee in Sheffield did not claim to have incurred any
medical or mental health treatment as a result of the termination. Nevertheless, the
Court determined that defendant was entitled to plaintiff’s medical, mental, and
pharmaceutical history “to determine if any prior event may affect his demand for
damages.” Id.; see also EEOC v. Dolgencorp, LLC, 2011 WL 1260241 (M.D.N.C. Mar. 31,
2011) (Medical records are subject to discovery when a party claims emotional or mental
distress.); EEOC v. Smith Bros. Truck Garage, Inc., 2011 WL 102724, at *2 (E.D.N.C.
Jan. 11. 2011) (Defendant may review plaintiff’s medical records to determine whether
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other contributing factors or events prior to termination caused the alleged emotional
distress or anxiety.); Carr v. Double T Diner, 2010 WL 3522428, at *2 (D.Md. Sept. 8,
2010) (“Plaintiff's mental state is at issue for purposes of discovery because her
emotional suffering is germane to the calculation of damages she requested in her
complaint.”); Jimoh v. Charlotte-Mecklenburg Housing Partnership, Inc., 2009 WL
4062881 (W.D.N.C. Nov. 20, 2009) (“Plaintiff has placed her alleged mental state and
any factors causing that mental state squarely at issue in this case. Plaintiff's medical,
psychological and counseling records are both relevant and discoverable. A party
claiming compensatory damages for emotional distress, pain and suffering, and mental
anguish puts her mental and physical condition at issue and must produce requested
medical records.”); Teaque v. Target Corp., 2006 WL 3690642 (W.D.N.C. Dec. 11,
2006); Coffin v. Bridges, 72 F.3d 126 (4th Cir. 1995) (unpublished).
In contrast, the cases cited by Plaintiff are unpersuasive. Plaintiff provides no
legal support for the argument that her medical records are irrelevant to the claims and
defenses in this case. Instead, she couches her opposition in terms of the confidentiality
that generally surrounds medical information and relies largely on cases that address
the federal psychotherapist-patient privilege. These cases are inapposite, however,
because Plaintiff reportedly has no records of mental health treatment to which the
privilege might attach. Thus, waiver of the psychotherapist-patient privilege simply is
not at issue in this case.
Plaintiff also relies on a 1997 decision from the Eastern District of Texas in which
the Court denied defendant’s request for plaintiffs’ medical records, finding that
defendant did not need the records since plaintiffs did not intend to introduce medical
evidence to support their claims of emotional distress. Burrell v. Crown Central
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Petroleum, Inc., 177 F.R.D. 376, 384 (E.D. Tex. 1997) (“If plaintiffs are not going to use
medical records or medical testimony at trial in order to prove up the claims for mental
anguish, then the court sees no reason why the records must be disclosed.”). The Court
reasoned that without some evidence that plaintiffs’ mental conditions were at the “crux
of the case,” their medical records were irrelevant. Id.
Clearly, the Burrell decision is not binding on this Court and is contrary to the
aforementioned decisions in this Circuit. Moreover, the undersigned does not find the
reasoning in Burrell to be consistent with the broad scope of relevancy envisioned by the
federal discovery rules. Notwithstanding Plaintiff’s representation in this case that she
does not intend to offer medical records to corroborate her claims, she alleges that
Defendant has caused her to suffer emotional distress and she seeks compensation for
that injury. As a result, discovery of her medical records is reasonably calculated to lead
to the discovery of admissible evidence. Notations regarding consultation, diagnosis and
treatment of psychological illnesses are often found in the records of health care
providers who do not practice in a psychiatric specialty. For instance, family
practitioners and internists routinely address the signs and symptoms of depression and
anxiety that arise in their patient populations. For that reason alone, Plaintiff’s medical
records are relevant to the claims and defenses in this case despite the reported lack of
records prepared by mental health providers. Moreover, particular medical conditions
suffered by Plaintiff, or medications used to treat her, may also be relevant to the cause
and extent of her alleged emotional distress.
B.

Authorization for Release of Protected Health Information

While Defendant is entitled to obtain Plaintiff’s medical and pharmaceutical
information, the undersigned declines Defendant’s request for an order compelling
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Plaintiff to sign a written release for those records. In Fields v. West Virginia State
Police, 264 F.R.D. 260 (S.D.W.V. 2010), this District Court addressed its authority to
issue such an order, finding no basis in the Federal Rules of Civil Procedure that
empowers a court to require a party to execute a release of medical records. In any
event, a written authorization is not necessary to obtain Plaintiff’s records. The Health
Insurance Portability and Accountability Act (“HIPAA”), 45 C.F.R. Parts 160, 164, which
governs the use and disclosure of protected health information, allows a health care
provider to release medical information pursuant to a court order or pursuant to a
subpoena not accompanied by a court order if certain conditions are met. 45 C.F.R. §
164.512(e). In particular, 45 C.F.R. § 164.512(e)(1)(ii)(B) authorizes a health care
provider to release protected health information pursuant to a subpoena when the
provider receives reasonable assurances from the party requesting the records that it
has secured a qualified protective order that prohibits use of the records outside of the
litigation and requires the return or destruction of the protected health information at
the end of the litigation. Here, the Court has previously entered an Agreed Protective
Order that meets the definition of a “qualified protective order” under 45 C.F.R. §
164.512(e)(1)(v). Thus, Defendant can attach the Agreed Protective Order, as well as this
Order, to a subpoena and obtain the records directly from Plaintiff’s medical providers.
III.

Motion for Sanctions
Pursuant to Fed. R. Civ. P. 37(a)(5), Defendant seeks reimbursement of fees and

expenses incurred in bringing its motion to compel. Plaintiff argues that fees and
expenses should not be permitted because Defendant failed to comply with Local Rule
37.1(b), which requires a moving party to arrange for a meeting in person or by
telephone to narrow areas of disagreement before filing a motion to compel discovery.
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(ECF No. 25 at 12). In response, Defendant points out that (a) it sent Plaintiff a “good
faith” letter detailing the deficiencies of the discovery response; (b) Plaintiff’s counsel
admittedly received the letter; (c) within one day of receiving the letter, Plaintiff’s
counsel made a decision not to rectify the perceived deficiencies, but failed to convey
this decision to Defendant—despite having in-person contact with Defendant’s counsel.
(ECF No. 27 at 6).
The purpose of the “meet and confer” requirement of the Local Rule is to
facilitate a resolution of discovery differences before parties resort to court intervention.
The premise underlying the rule is that understanding and compromise are more likely
to occur when parties discuss the issues directly, rather than under cover of pen and
paper or computer. Unfortunately, few lawyers talk face-to-face anymore and even fewer
seem to read the Local Rules. In this particular case, it appears that a face-to-face
meeting would not have resolved the issue. Moreover, the Local Rule was never
intended to provide incentive for the nonmoving party to ignore a good faith letter,
evade the discussion, or avoid initiating a compromise to the dispute. The Court finds
that Defendant substantially prevailed on the motion to compel; consequently, an award
of reasonable fees and expenses is justified. Nonetheless, the Court finds that
Defendant’s failure to abide by the “meet and confer” provision of the Local Rule
justifies some small reduction in the amount of that award.
IV.

Order
Wherefore, for the foregoing reasons, the Court ORDERS as follows:
1.

Plaintiff shall provide a full and complete answer to Interrogatory No. 7

within ten (10) days of the date of this Order;

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2.

Plaintiff shall provide Defendant with copies of documents in her

possession responsive to Request for Production of Documents No. 12 within fourteen
(14) days of the date of this Order. Defendant shall also be permitted to obtain copies
of any and all documents responsive to Request for Production of Documents No. 12 by
service of subpoenas in the manner set forth in the applicable HIPAA provisions.
3.

The medical information obtained by Defendant will be considered

confidential under the Agreed Protective Order even though it is not stamped as such.
4.

Defendant’s request for a written authorization for the release of records

(Request for Production of Documents No. 20) is DENIED; and
5.

Within fourteen days of the date of this Order, Defendant shall file an

affidavit and any supporting documentation quantifying the amount of reasonable fees
and expenses it seeks to have reimbursed under Fed. R. Civ. P. 37(a)(5). Plaintiff shall
have ten (10) days thereafter to contest the amount of the fees and expenses requested
by Defendant.
The Clerk is instructed to provide a copy of this Order to counsel of record.
ENTERED: April 23, 2013.

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