Avina v. Bohlen et al

Filing 59

ORDER signed by Judge Rudolph T. Randa on 4/16/2015 GRANTING 51 Defendants' Motion to Compel to the extent stated herein. By 4/23/2015 Avina must provide defendants with signed school records release; by 4/23/2015 defendants must provide Avina with revised medical release form; by 4/30/2015 Avina must provide defendants with signed medical release form; by 4/30/2015 parties must submit revised proposed protective order or withdraw current proposed order. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ENRIQUE AVINA,
as Parent and Guardian of XXXX, a minor,
Plaintiff,
-vs-

Case No. 13-C-1433

TODD BOHLEN,
MIKE ROHDE,
EDWARD A. FLYNN,
CITY OF MILWAUKEE, and
DOES 1-100,
Defendants.

DECISION AND ORDER

The Plaintiff, Enrique Avina (“Avina”) as the parent and guardian of
his minor son (the “minor”), filed this civil rights action pursuant to 42 U.S.C.
§§ 1983 and 1985(2) with supplemental state law negligence, assault and
battery, false imprisonment, and malicious prosecution claims. The action
comes before the Court on the expedited non-dispositive motion to compel filed
by Defendants Todd Bohlen (“Bohlen”), Mike Rohde (“Rohde”), Edward A.
Flynn (“Flynn”), the City of Milwaukee (“Milwaukee”), and Does 1-100 (ECF
No. 51) and the parties’ proposed stipulated protective order (ECF No. 54).
Factual Background
Some limited background provides context for this decision. The action

arises out of an October 1, 2012, encounter between the minor, who is
Hispanic, and Milwaukee Police Department officers Bohlen and Rohde. The
minor, having been told to leave the grounds of Milwaukee’s South Division
High School, was riding his bicycle on public property. During the encounter,
and allegedly due to Rohde’s use of excessive force, the minor sustained a
broken arm. The officers transported the minor to the hospital, and Bohlen
and Rohde allegedly misrepresented the cause of the break “potentially
causing a delay in his treatment or a misdiagnosis.” (Second Am. Compl. ¶ 21)
(ECF No. 24.) They also arrested the minor and issued municipal
misdemeanor charges against him which were later dismissed. As a
consequence of such actions, the minor allegedly sustained physical injury,
physical pain and suffering, mental anguish, severe emotional distress, and
embarrassment for which Avina seeks damages.
MOTION TO COMPEL
The Defendants seek an order compelling Avina to produce signed
releases for the minor’s medical records covering the ten years prior to the
incident to the present,1 and his school records from 2005, when he was in

1

The medical release form provides in pertinent part:
4. Type of Information to be Disclosed: Your FILE
from October 1, 2002 to the present, including, but not
limited to, any and all individually identifiable health
information,
including:
medical
records;
reports;

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sixth grade, to the present.2 The Defendants maintain that the minor’s claim
photographs, slides, and videotapes; correspondence;
diagnostic testing including x-ray films, MRI or CT scans,
EKGs, EEGs, and lab work; progress notes; physician
orders; nurses notes; referrals; consultation reports;
diagnoses; notes; pharmaceutical records; records relating
to social history; employment information; school records;
alcoholism/drug abuse care or treatment records; treatment
of developmental disability; psychiatric evaluations,
diagnoses and treatment; physical, occupational and speech
therapy progress reports; psychological tests and evaluation
reports; vocational evaluations and records; insurance
documents; bills; invoices; or other non-medical writings in
your possession or under your control now or in the future
pertaining to the above-identified patient's physical or
mental condition, or any treatment the foregoing patient
received from you at any time. Scope of Release: The
requested materials in your file including those generated
by other health care providers, attorneys, insurers or
individuals, including reports, notes and correspondence
received from third parties.
5. This authorization does not release: records
pertaining [to] sexually transmitted disease, acquired
immunodeficiency
syndrome
(AIDS),
or
human
immunodeficiency virus (HIV).
(Aff. of Jenny Yuan, Ex. 5 at 3-4.) (ECF No. 52-5.)
2

In pertinent part, the School Record Release states:
This release authorizes you to allow Jenny Yuan, Assistant
City Attorney, or her designee, to examine my school
records while in attendance at any and all Milwaukee
Public Schools (“MPS) from 2005 until the present
(beginning from when I was in the 6th grade), including, but
not limited to, my disciplinary file, attendance file, health
files, and to speak with any school representative
concerning my attendance at any and all MPS schools. This
release does not authorize disclosure of my grades or
G.P.A., though I do specifically authorize disclosure of any
evaluations and comments in my file made by my teachers
or any other staff at MPS.

(Id. at 1.)

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of injury makes his medical condition before and after the incident relevant;
and that the minor’s high school record, including his attendance record and
his disciplinary record, may contain relevant evidence or may lead to the
discovery of admissible evidence.
Avina asserts that the medical release is overbroad and that the
minor’s entire medical record is not relevant and should be limited to the
three years before and three years after the incident; whether he had a broken
arm due to the incident; whether he had a broken arm or damage to an arm or
shoulder prior to the incident; and information regarding emergency room or
urgent

care,

surgeries,

physical

therapy,

chiropractor

and

doctor’s

appointments from the date of the incident to the present. Avina also asserts
that the request for the minor’s educational records should be denied, citing
Wis. Stat. §§ 118.125 and 118.126, the Federal Educational Rights and
Privacy Act (“FERPA”), 20 U.S.C. § 1232g, and 34 C.F.R. Part 99. Avina
further contends that a protective order should be issued with respect to all of
the minor’s medical and psychological records; the Court should conduct an in
camera review of those records to assure that the materiality and relevance of
that information outweighs the minor’s right to privacy; and the Court should
order the sealing of any medical or psychological information used during
trial, a hearing or any motions (written or oral), citing the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”) rules and Fed. R. Evid.

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501.
District courts enjoy broad discretion in controlling discovery. Semien
v. Life Ins. Co. of N. Am., 436 F.3d 805, 813 (7th Cir. 2006). Under Fed. R. Civ.
P. 26(b)(1) parties may obtain information regarding any nonprivileged matter
relevant to a claim or defense. “Relevant information need not be admissible
at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Nw. Mem'l Hosp. v. Ashcroft, 362 F.3d 923,
930 (7th Cir. 2004) (quoting Fed. R. Civ. P. 26(b)(1)). (emphasis added.)
In federal question cases, federal law provides the rule of decision and,
therefore, the federal law of privileges applies Id. at 926 (“[T]he evidentiary
privileges that are applicable to federal-question suits are given not by state
law but by federal law, Fed. R. Evid. 501”); this is true even when the plaintiff
has also asserted supplemental state law claims. See Mem’l Hosp. for
McHenry Cnty. v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981).
Furthermore, federal law “does not recognize a physician-patient (or
hospital-patient) privilege.” N.W. Mem’l Hosp., 362 F.3d at 926. The Court of
Appeals for the Seventh Circuit has expressly held that HIPAA does not give
rise to a physician-patient or medical records privilege. United States v. Bek,
493 F.3d 790, 802 (7th Cir. 2007) (citing N.W. Mem’l Hosp., 362 F.3d at 926
(“We do not think HIPAA is rightly understood as an Act of Congress that
creates a privilege.”)).

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In Jaffee v. Redmond, 518 U.S. 1, 8-10 (1996), the Supreme Court
recognized a privilege between a psychotherapist and a patient. The privilege
applies to confidential statements made between a patient and his
psychotherapist, which encompasses licensed psychiatrists, psychotherapists,
social workers, or other like counselors. Awalt v. Marketti, 287 F.R.D. 409, 423
(N.D. Ill. 2012) (citing United States v. Schwensow, 151 F.3d 650, 654 (7th Cir.
1998)). The rationale underlying the privilege is that a patient must have
complete confidence in a psychotherapist to ensure effective therapy. Id. at
414 (citing Jaffee, 518 U.S. at 10). The privilege may be raised by the patient,
his guardian, or his estate. See Id. at 415.
The party raising the privilege must show that it is applicable. See
Beard v. City of Chi., Case No. 03 C 3527, 2005 WL 66074, at *6-7 (N.D. Ill.
Jan. 10, 2005). Regardless, the privilege would not prevent disclosure of the
dates of the minor’s treatment or the identity of his psychotherapists. See
Santelli v. Electro-Motive, 188 F.R.D. 306, 310 (N.D. Ill. 1999). The privilege
also can be waived. See, e.g., Jaffee, 518 U.S. at 15 n.14; Beard, 2005 WL
66074, at *7; Santelli, 188 F.R.D. at 308. Waiver of the psychotherapistpatient privilege arises frequently in civil litigation when the plaintiff claims
damages for emotional distress, and federal courts faced with the issue have
developed divergent approaches for ascertaining whether the privilege has
been waived. See Caine v. Burge, Case No. 11 C 8996, 2012 WL 6720597, at *2

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(N.D. Ill. Dec. 27, 2012) (discussing various approaches to the waiver issue).
Despite the general breadth of discovery, the Court may limit discovery
that can be obtained from some other source that is more convenient, less
burdensome, or less expensive, or the burden or expense of the proposed
discovery outweighs its likely benefits. See Fed. R. Civ. P. 26(b)(2)(C)(i) & (iii).
Nonetheless, the party opposing discovery has the burden of showing the
discovery is overly broad, unduly burdensome, or not relevant. Ott v. City of
Milwaukee, Case No. 09-C-870, 2011 WL 2116158, at *3 (E.D. Wis. May 25,
2011). If a party refuses to respond to a discovery request, the opposing party
may move for an order to compel disclosure. Fed. R. Civ. P. 37(a).
Rule 26 allows for filing under seal for “good cause.” Fed. R. Civ. P.
26(c). “The determination of good cause cannot be elided by allowing the
parties to seal whatever they want.” Citizens First Nat’l Bank of Princeton v.
Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999). The public “at large
pays for the courts and therefore has an interest in what goes on at all stages
of a judicial proceeding.” Id. The judge is thus “duty-bound” to “review any
request to seal the record.” Id.
When information is filed with a court, it may “influence or underpin
the judicial decision” and is therefore “open to public inspection unless” the
information “meets the definition of trade secrets or other categories of bona
fide long-term confidentiality.” Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544,

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545 (7th Cir. 2002). A motion asking to seal such information has “no prospect
of success” unless it analyzes “in detail, document by document, the propriety
of secrecy, providing reasons and legal citations.” Id. at 548. General
assertions that the information is “commercial” or otherwise sensitive will not
suffice. Id. at 546.
With respect to education records, FERPA reads:
No funds shall be made available under any
applicable program to any educational agency or
institution which has a policy or practice of
permitting the release of education records . . .
20 U.S.C. § 1232g(b)(1) (2009). One of the purposes for creating the statute
was the concern over “the insertion of potentially prejudicial anecdotal
comments and factual inaccuracies into children’s school records.” 121 Cong.
Rec. 13990 (1975). “There has been clear evidence of frequent, even systematic
violations of the privacy of students and parents by the schools through the
unauthorized

collection

of

sensitive

personal

information

and

the

unauthorized, inappropriate release of personal data to various individuals
and organizations.” 121 Cong. Rec. 13991 (1975) (emphasis added). “[FERPA’s
nondisclosure provisions] have an ‘aggregate’ focus, . . . they are not concerned
with ‘whether the needs of any particular person have been satisfied.’”
Gonzaga Univ. v. Doe. 536 U.S. 273, 288 (2002) (Citation omitted). “In each [of
FERPA’s] provisions the reference to individual consent is in the context of

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describing the type of ‘policy or practice’ that triggers a funding prohibition.”
Id. “FERPA’s nondisclosure provisions further speak only in terms of
institutional policy and practice, not individual instances of disclosure.” Id.
Releases
No federal privilege protects the minor’s medical records. Furthermore,
with respect to the minor’s mental health records, included in the proposed
medical

records

release,

Avina

has

not

demonstrated

that

the

psychotherapist-patient privilege applies to any record of any treatment
provider. As noted, even if it did apply, the privilege neither extends to
information about dates of visits or names of treatment providers nor applies
to statements made to third-parties, such as insurance carriers.
However, the Defendants’ medical release form is overly broad. Not all
types of the minor’s medical records sought by the release are relevant to this
case. For example, the proposed release includes speech therapy and EKG
records, which have no apparent relationship to this case. While medical
records regarding a seemingly unrelated problem may sometimes lead to the
discovery of admissible evidence, the medical release here must be revised to
eliminate medical records without any apparent connection to this case such
as those relating to speech therapy or EKG tests.
There is also a dispute as to the time frame for the records. Avina
asserts that the minor’s medical records beginning with his birth are not

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relevant to the case and that the release should be limited to medical records
post-dating September 30, 2009. In their briefs, the Defendants state that
they want the minor’s medical records beginning with October 1, 2002.
Why does Avina refer to the minor’s records from birth on? The
statement may arise from the contradictory language of the release as to the
time frame of the records sought. Paragraph 4 of the form initially references
medical records “from October 1, 2002 to the present;” however, the end of that
paragraph references medical records “under your control now or in the future
pertaining to the above-identified patient’s physical or mental condition, or
any treatment the foregoing patient received from you at any time.” (Emphasis
added.) While the 2002 to the present time frame is reasonable, the
Defendants must revise the proposed release to (1) eliminate the reference to
“at any time” and (2) eliminate medical records that have no apparent
connection to the issues in this case such as speech therapy or EKG’s. Once
revised, Avina must sign the release by the stated deadline.
With respect to the minor’s records, the cited congressional history and
Gonzaga indicate that FERPA is intended to protect students and parents
from a school’s unauthorized release of a student’s records. It was not
designed to protect an individual, or one on whose behalf a lawsuit has been
filed, from being required to authorize disclosure of school records which are
relevant to the case. Thus, Avina must sign the release of the minor’s school

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records by the stated deadline.
In sum, the Defendants must revise the medical authorization form as
required by this decision and Avina must sign it and the education record
release form by the stated deadlines.
SEALING AND PROPOSED PROTECTIVE ORDER
The parties’ stipulated protective order states, “should any such
information,

documents,

deposition

testimony,

affidavits,

records

or

recordings be included in any court filing, said court filing shall be filed with
the court under seal, and placed in an envelope marked ‘Confidential.’” (ECF
No. 54-1.) Avina also requests the sealing of all court proceedings in which the
minor’s medical and mental health records are presented. Based on the
current record, neither sealing request is acceptable.
Avina has presented no facts to rebut the presumption of public access
to evidence or documents that the defense may present at trial or file as a
result of the discovery at issue. Moreover, a sweeping protective order sealing
all materials subject to a protective order is contrary to Seventh Circuit case
law which reflects the public’s fundamental right to monitor this case in
particular and the functioning of our federal courts in general. It also does not
reflect this District’s Civil L.R. 26(e) or 26(f). The latter states, “[a] party
seeking to file a paper under seal must follow the procedure set forth in
General L.R. 79(d).” See also, Civil L.R. 26(f) Comm. Comment ¶ 3. Based on

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the foregoing, by the stated deadline the parties’ proposed protective order
must be revised to comply with the case law of this Circuit and this District’s
local rules regarding sealed filings or be withdrawn.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
The Defendants’ motion to compel is GRANTED to the extent stated
herein.
No later than April 23, 2015, Avina MUST provide the Defendants
with a signed school record release;
No later than April 23, 2015, the Defendants MUST provide Avina
with a revised medical release form;
No later than April 30, 2015, Avina MUST provide the Defendants
with a signed medical release form; and
No later than April 30, 2015, the parties must submit a revised
proposed protective order or withdraw the current proposed protective order.
Dated at Milwaukee, Wisconsin, this 16th day of April, 2015.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
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