Klug v. Marshall University Joan C. Edwards School of Medicine et al
Filing
131
MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendant Marshall University Board of Governors' 118 MOTION to Compel Discovery, as more fully set forth herein. Signed by Magistrate Judge Cheryl A. Eifert on 3/29/2021. (cc: counsel of record) (jsa)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
REBECCA KLUG,
Plaintiff,
v.
Case No.: 3:18-cv-00711
MARSHALL UNIVERSITY
BOARD OF GOVERNORS, and
FARID B. MOZAFFARI, an individual,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is Defendant Marshall University Board of Governors’ Motion to Compel
Discovery. (ECF No. 118). Plaintiff filed a response in opposition to the Motion, (ECF No.
129), and Defendant has filed a reply memorandum. (ECF No. 130). For the reasons that
follow, the Court GRANTS, in part, and DENIES, in part, the Motion to Compel.
Plaintiff alleges in this action that she was subjected to a discriminatory and hostile
work environment in her surgical residency program at Marshall University Joan C.
Edwards School of Medicine, which began in 2013 and ended in 2016. She further alleges
that she was terminated from the program in retaliation for complaining about the
discriminatory and hostile conditions. This discovery dispute pertains to a second set of
discovery requests filed by Defendant.
As a preliminary matter, the Court considers Plaintiff’s argument that Defendant’s
Motion to Compel was not timely filed. Plaintiff served her responses to Defendant’s
second set of discovery on January 29, 2021, sending them to Defendant by United States
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Mail. (ECF No. 101). If Defendant had received the responses on January 29, 2021,
Defendant should have filed the Motion to Compel on March 1, 2021. However, Defendant
states that it did not receive the discovery responses until February 2, 2021; therefore, the
Motion to Compel was timely filed on March 4, 2021. The Court has no reason to doubt
Defendant’s representation; accordingly, the Motion to Compel was timely filed. With
respect to Defendant’s failure to make a good faith effort to confer, in this district, the
failure to make a such an effort does not prevent the Court from considering the substance
of the motion; however, it has, in the past, provided grounds for the Court to deny
reasonable expenses if the movant is successful. Given that Defendant’s motion was not
entirely successful, reasonable expenses would not have been awarded in any event.
Defendant seeks to compel the following information:
1.
Interrogatory No. 2—Defendant asked Plaintiff “[h]ave you ever created
a profile for any dating website or application? If so, please state the date you created such
profile, the website or application the profile was created, and whether any romantic
relationships resulted from said website or application.” Plaintiff objected to the
interrogatory on the grounds that the interrogatory was intended to harass her, sought
irrelevant information, and invaded her privacy.
Defendant argues that it is entitled to this information, because Plaintiff has
alleged emotional and mental distress, humiliation, anxiety, embarrassment, depression,
aggravation, annoyance, inconvenience, and loss of enjoyment of life. (ECF No. 119 at 34). According to Defendant, “[p]art of the enjoyment of life is a relationship with a
significant other.” (Id. at 4). Plaintiff responds that Defendant is engaging in a “fishing
expedition” after already having (1) reviewed Plaintiff’s mental health care records, (2)
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taken a lengthy deposition of Plaintiff, and (3) subjected Plaintiff to an extensive interview
and examination by a forensic psychiatrist selected by Defendant. (ECF No. 129 at 3-4).
Federal Rule of Civil Procedure 26(b)(2) authorizes the court to limit the frequency
or extent of discovery otherwise allowed by the federal rules when the discovery is
cumulative, or when the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action. Defendant does not dispute Plaintiff’s contention
that it has conducted considerable discovery regarding Plaintiff’s alleged damages.
Consequently, Defendant could have sought direct information regarding Plaintiff’s
romantic attachments when deposing Plaintiff, or during her independent medical
examination. Whether or not Plaintiff has created an on-line dating profile is
inconsequential to the relevant issues, because how Plaintiff may have met a significant
other does not provide any information about the quality of the relationship or its impact
on Plaintiff’s emotional condition. Given that Defendant has already had ample
opportunity to investigate Plaintiff’s romantic attachments using more effective discovery
tools, the motion to compel a supplemental answer to Interrogatory 2 is DENIED.
2.
Request for Documents No. 2—Defendant asked for “a privilege log
based on text messages that have been redacted and/or are missing.” (ECF No. 118-1 at
4). Defendant received a privilege log, which showed that many of the text messages were
redacted because they contained third-party medical information. Defendant now
complains about the redactions themselves and wants the redactions removed. Defendant
further asserts that documents are clearly missing from the privilege log based on gaps in
page numbers.
Plaintiff explains that the text messages in question were produced in 2019 in
response to Defendant’s first set of discovery requests, which asked for documents that
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were relevant to, related to, or supportive of Plaintiff’s liability claims, or might be used
as exhibits at trial. (ECF No. 129 at 5). Plaintiff points out that Defendant never moved to
compel unredacted copies of the messages at the time of their production and should not
be permitted to convert the recent request for a privilege log into a request for the
unredacted messages. (Id.). Plaintiff states that the redacted portions of the text messages
contain medical information about her patients, which Plaintiff does not feel comfortable
copying and disseminating. By way of compromise, she has agreed that Defendant may
examine the text messages without the redactions. As for the alleged “missing”
information, Plaintiff indicates that the gaps in the page numbers are due to the fact that
she did not include those pages as part of her discovery response. In other words, they
were not reflected in the privilege log, because Plaintiff never identified them as
documents that were relevant to, related to, or supportive of her liability claims, or that
might be used as exhibits at trial.
In response, Defendant argues that the medical information contained in the text
messages belongs to Defendant, as the patients discussed in the messages were patients
of Marshall University’s residency program. (ECF No. 130 at 5-6). Therefore, Defendant
asserts, Plaintiff is attempting to withhold information that Defendant has a right to
receive.
Plaintiff is correct that Defendant asked only for a privilege log in Request No. 2,
and that Plaintiff produced a privilege log; thereby, fully responding to the request. It is
also true that Defendant does not complain about the log itself; rather, Defendant
complains that the text messages were redacted in the first instance. However, Plaintiff’s
arguments are not particularly persuasive, because Defendant should not have had to
request a privilege log at all. Pursuant to Fed. R. Civ. P. 26(b)(5)(A), Plaintiff was
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obligated to supply a privilege log as to any information she was withholding from
production at the time she responded to the original discovery request. Had Plaintiff
fulfilled that obligation, Defendant would have known the reason for Plaintiff’s failure to
disclose all of the text messages and could have moved to compel the documents.
Moreover, the Court agrees that the information Plaintiff seeks to withhold is information
to which the Defendant has an equal, if not superior, claim as the messages pertain to
patients of the Defendant’s residency program. Accordingly, the motion to compel
production of copies of unredacted text messages is GRANTED. Within seven (7) days
of the date of this Order, Plaintiff shall provide Defendant with a copy of the unredacted
messages to which a “patient medical information” privilege was asserted.
3.
Request for Documents No. 6—Defendant asked for all of Plaintiff’s
communications—including pictures exchanged—between her and Dr. Igor Wanko
Mboumi. Plaintiff objected on the ground that the request was overly broad as it was not
limited to any time frame, scope, or subject matter. She also claimed that the request
sought irrelevant information.
Defendant argues that it is entitled to this information, because Plaintiff listed Dr.
Mboumi as a witness and Plaintiff’s relationship with him may have had a bearing on her
emotional state. (ECF No. 118-2 at 3). Defendant offered to limit the time frame of the
request from January 1, 2013 to the present, but did not offer any limitations to scope or
subject matter. In response, Plaintiff indicates that she told Defendant on March 1, 2021
that she does not intend to call Dr. Mboumi as a witness. (ECF No. 129 at 6). Plaintiff
reiterates that Defendant has already received a “wealth of information” regarding
Plaintiff’s emotional condition during the relevant years; therefore, Defendant’s “fishing
expedition” into her communications with Dr. Mboumi is “overkill and is just an attempt
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to harass and embarrass her.” (ECF No. 129 at 7). In reply, Defendant claims that because
Plaintiff had a romantic relationship with Dr. Mboumi during the relevant time frame,
Defendant has a right to see all of their communications. (ECF No. 130 at 4).
As previously stated, Defendant has had ample opportunity to explore the nature
of Plaintiff’s romantic attachments and friendships, and their effect on her emotional
condition. Moreover, as Dr. Mboumi has been withdrawn as a witness, Plaintiff’s
communications with him are far less relevant. The Court disagrees with Defendant that
simply because Plaintiff had a romantic attachment to Dr. Mboumi, Defendant should be
permitted to rifle through 5 ½ years of their communications. The request is clearly overly
broad and is disproportional to the needs of the case. Therefore, the motion to compel a
further response to this request is DENIED.
4.
Request for Documents No. 7—Defendant seeks the records from
Plaintiff’s and her husband’s joint marriage counseling sessions. Defendant contends that
they are relevant to Plaintiff’s emotional state during her residency, while Plaintiff
disputes the relevancy of the records. Plaintiff also indicates that Defendant has already
asked Plaintiff about her marriage counseling and has deposed the physician who
provided the counseling. (ECF No. 129 at 7-8).
Fed. R. Civ. P. 26(b)(1) describes the scope of discovery, stating that “[u]nless
otherwise limited by court order: 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.” The court may limit discovery that is unreasonably cumulative or
duplicative, when the party has had ample opportunity to obtain the information, and
when discovery is outside the scope of Rule 26(b)(1). See Fed. R. Civ. P. 26(b)(2). The
court may also grant a protective order under Rule 26(c), upon a showing of good cause,
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to protect a party from annoyance, embarrassment, oppression, and undue burden and
cost. Plaintiff argues that this document request seeks information outside the scope of
Rule 26(b)(1), because the request is overly broad, harassing, constitutes an unreasonable
invasion of her privacy, and is cumulative. Although Plaintiff does not specifically argue
that the records are privileged from discovery, she does contend that they are confidential.
(Id.).
Plaintiff asserts federal question jurisdiction in this case. Accordingly, under Fed.
R. Evid. 501, whether a privilege attaches to the records must be analyzed under federal
law. See, e.g., PPM America, Inc. v. Marriott Corp., 152 F.R.D. 32, 34 (S.D.N.Y.1993).
Federal common law does recognize a psychotherapist-patient privilege, Jaffee v.
Redmond, 518 U.S. 1, 15 (1996), which has been construed to include records of marriage
counseling. Curtis Conyers v. Marisa Cano, No. CV203146JFWPLAX, 2020 WL
7084546, at *3 (C.D. Cal. Sept. 25, 2020). The privilege can be explicitly waived, by the
patient’s express authorization, or implicitly waived, as when a party to a civil action
places his or her mental health at issue. E.E.O.C. v. Dolgencorp, LLC, No. 1:09CV700,
2011 WL 1260241, at *13 (M.D.N.C. Mar. 31, 2011) (collecting cases).
In addition to federal common law, the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”), Pub. L. 104-191, provides that an individual’s
mental health care records constitute protected health information subject to security and
privacy standards. See 45 C.F.R. §164.102 et. seq. Most mental health care records are
treated like any other health care record under HIPAA. However, “psychotherapy notes”
receive additional protection; indeed, unlike the access given to other medical records, an
individual does not have the automatic right to access his own psychotherapy notes. 45
C.F.R. §164.524(a)(1)(i). Under certain circumstances—such as when a treating mental
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health care professional believes that access to the notes is reasonably likely to endanger
the life or physical safety of the individual or another person—the individual may be
denied permission to review his psychotherapy notes. 45 C.F.R. §164.524(a)(3)(i).
Psychotherapy notes are defined narrowly under HIPAA, including only those notes made
by a mental health care provider that document or analyze the contents of conversations
occurring during counseling sessions, and that are separated from the rest of the
individual’s record. Psychotherapy notes expressly do not include “medication
prescription and monitoring, counseling session start and stop times, the modalities and
frequencies of treatment furnished, results of clinical tests, and any summary of the
following items: Diagnosis, functional status, the treatment plan, symptoms, prognosis,
and progress to date.” 45 C.F.R. §164.501. Notably, even with the added protection given
to psychotherapy notes, HIPAA allows their disclosure to a third-party with a valid
authorization, 45 C.F.R. §164.508(a)(1), and without an authorization when the
disclosure is required by law. 45 C.F.R. §§164.508(a)(2)(ii), 164.512(a).
In this case, Plaintiff has waived her right to keep information regarding her
marital counseling privileged. She has testified about the counseling and allowed her
psychiatrist to testify about it, as well. Furthermore, she has placed her mental and
emotional state in question by the allegations contained in her complaint. Undoubtedly,
“[m]arital difficulties significant enough to prompt counseling are likely to have been an
independent cause of emotional distress.” Tavares v. Lawrence & Mem'l Hosp., No. 3:11CV-770 CSH, 2012 WL 4321961, at *10 (D. Conn. Sept. 20, 2012). Therefore, as Defendant
is entitled to information regarding Plaintiff’s marital strife, including information
contained in the records, the motion to compel a response to this request is GRANTED.
However, to limit the disclosure to the period of time that is most relevant to the claims
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in this case, Plaintiff shall only be required to produce records prepared between January
1, 2013 and May 15, 2015. In addition, if the psychiatrist has separate notes documenting
the conversations that occurred during the counseling sessions and wishes to provide a
summary instead of the actual session notes, then the summary will be adequate to
comply with this Order. Plaintiff is ORDERED to obtain and produce these records
within twenty-one (21) days of the date of this Order.
5.
Request for Documents No. 9—Defendant asked Plaintiff to produce
“your application to sponsor Saeed Keshavarzian as a U.S. citizen.” According to
Defendant, this information has been obtained from another source. Therefore, the
motion to compel a supplemental response to this request has been withdrawn by
Defendant. (ECF No. 130 at 6).
6.
Request for Documents No. 10—Defendant asked for all writings and
records Plaintiff prepared during her residency program. Not surprisingly, Plaintiff
objected to the request as overly broad. The parties discussed limitations to the request,
and Plaintiff confirmed that she had already produced all writings related to her
residency. Therefore, the motion to compel a further response to this request is DENIED
as moot.
7.
Request for Documents No. 18—Defendant requested information
regarding any payment Plaintiff received as a result of her husband’s death in May 2015.
Plaintiff states that she did not receive a death payment. Defendant has accepted that
response and has withdrawn the motion to compel a supplemental answer to this request.
(ECF No. 130 at 6).
8.
Request for Documents No. 19—Defendant sought a copy of all of
Plaintiff’s cell phone records from July 1, 2013 through December 31, 2018. The fact that
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Plaintiff filed a lawsuit does not give the adverse party carte blanche to review every call
Plaintiff made in a 5 ½-year period. This request is simply not proportional to the needs
of the case and is overly broad. In its reply memorandum, Defendant provides one
example of how the call records might be relevant. Defendant asserts that Plaintiff claims
that she was forced to return to work prematurely by her chief resident, Dr. Abomaali.1
Dr. Abomaali denies engaging in such a call. Defendant argues that it should be permitted
to discover from Plaintiff’s cell phone records whether a telephone call took place between
Plaintiff and Dr. Abomaali. (Id. at 6-7). Accordingly, the motion to compel all of the cell
phone records is DENIED. However, the motion is GRANTED as to the call from Dr.
Abomaali. Plaintiff is ORDERED to request from her cell phone carrier, within three
(3) business days, the record of her calls on the day that she alleges Dr. Abomaali
contacted her to demand her return to work. Within three (3) business days of receipt
of that record, Plaintiff shall produce the record to Defendant.
9.
Request for Documents No. 20—Defendant requested all of Plaintiff’s
bank statements for the period of July 1, 2013 to December 31, 2018. Defendant contends
that these records are relevant to provide information regarding a vacation that Plaintiff
scheduled but had to cancel, and that they would “lend insight as to her mental status
during and after her residency program.” (ECF No. 119 at 8-9). Plaintiff responds that she
has previously advised Defendant that she cannot locate any records regarding the
cancelled vacation. In addition, Plaintiff argues that the request is harassment and
exceeds the scope of Rule 26.
Defendant claims that the bank records are germane to show how and where
Defendant spells the resident’s name in two different ways. As the undersigned has no way of knowing
which is the correct spelling, one of the two options was chosen for the purposes of this Order.
1
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Plaintiff spent her time during the relevant years. (ECF No. 130 at 7). According to
Defendant, a record of Plaintiff’s location and purchases could refute her claims of being
overworked and depressed. Defendant cites to three cases—none of which are from this
district—which purportedly allow the production of such records to prove or disprove the
location of a party. (ECF No. 130 at 7-8). Defendant’s argument is entirely unavailing.
The cases cited by Defendant are not applicable to this case. In Cooper v. Old
Dominion Freight Line, Inc., No. 09-CV-2441 JAR, 2011 WL 251447, at *10 (D. Kan. Jan.
25, 2011), the records were compelled, because Plaintiff abandoned her objections to the
request. In Vai, Inc. v. Miller Energy Res., Inc., No. 11-CV-3906, 2012 WL 12897099, at
*2 (E.D. Pa. Feb. 24, 2012), discovery was being conducted on the issue of whether the
court had personal jurisdiction over a party. The location of the party during certain
business dealings was key to the exercise of jurisdiction. Therefore, the court ordered the
party to produce credit card records showing business-related expenditures. However,
the party was not required to produce a record of personal credit card charges.
Furthermore, the court found the request for the party’s bank statements to be
“inappropriate.” Id. The last case, Wellin v. Wellin, No. 2:13-CV-1831-DCN, 2015 WL
5785709, at *29 (D.S.C. July 31, 2015), involved a family dispute over the assets, trusts,
and estate of a deceased individual in which claims of undue influence and financial
hardship were asserted. Because the alleged manipulation of the deceased, his
competency, the disposition of his assets, and the motives of the family members were
integral to the case, the court found that certain aspects of the parties’ financial
transactions were relevant. As such, the court ordered all of the parties to exchange
statements reflecting their financial activity over a set period of years. However, the
instant case has absolutely nothing to do with a family squabble over the alleged abuse
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and dissipation of a deceased relative’s estate. Requiring Plaintiff to provide records of
her daily financial transactions over a 5 ½-year period is inappropriate considering the
nature of this case.
Certainly, there are cases where the production of extensive financial records is
necessary. This case is not one of them. Defendant’s contention that Plaintiff should be
compelled to produce years of bank statements, so that Defendant can historically track
her every move and financial transaction, quite honestly, is outlandish. Defendant has
already received Plaintiff’s income tax returns and has collected other information related
to Plaintiff’s claim of lost wages. Requiring Plaintiff to produce financial records for
tracking purposes is clearly not proportional to the needs of the case and is overly
intrusive. Plaintiff filed a lawsuit seeking damages for emotional distress. However, that
alone does not strip her of her right to privacy, nor does it open every aspect of her life to
such intense scrutiny. Therefore, the motion to compel a supplemental answer to this
request is DENIED.
The Clerk is directed to provide a copy of this Memorandum Opinion and Order to
counsel of record.
ENTERED: March 29, 2021
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