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March 5, 2004.


The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge


Before the court are the government's motions to compel discovery and for leave to take additional depositions and to extend time for the completion of additional depositions. Having reviewed the papers, the declarations and exhibits, and having considered the relevant legal authority and the parties' arguments, for the reasons stated on the record on March 5, 2004, this court DENIES the government's motions.

Through the instant motions, the government sought to compel production of individual patient medical records from plaintiffs Planned Parenthood Federation ("PPFA") and Planned Parenthood Golden Gate ("PPGG"), from intervenor City and County of San Francisco. ("CCSF"), and from PPFA affiliates located throughout the country. While the status of the government's requests differed for each provider,*fn1 the government generally sought to compel the same four categories of records from each. These included: (1) records of "partial-birth abortions" or PBAs, as defined by the government; (2) records of abortions involving the use Page 2 of chemical injections to effect intrauterine fetal demise; (3) any abortions during which complications arose; and (4) documents related to medical malpractice claims arising out of the performance of PBAs. PPFA, PPGG, and CCSF opposed the motions on relevance, hardship, and privacy grounds. PPFA also objected as to timeliness, and contended that its affiliates' records were not in its "possession, custody, or control" pursuant to Federal Rule of Civil Procedure ("FRCP") 34(a).

  While the court's reasons are more fully stated on the record, the court will briefly summarize its denial of the government's motions. The court finds that the government's motions should be denied as irrelevant, unduly burdensome, and based on a balancing of the individual patients' right to privacy with the government's interest in disclosure. The court further finds that any of these three bases alone would have been sufficient to deny the government's motion.

  Based on the declarations submitted by the plaintiffs and CCSF, and the court's review of the sample medical record submitted under seal, this court finds that the individual medical records are not relevant because they do not contain the information that the government seeks. Moreover, even if the records did contain such information, they are marginally relevant at best because the presence or absence of medical risks and their likelihood and nature are going to be made not on the basis of individual patients' records but on the basis of expert testimony at trial.

  Additionally, the court finds that the government's requests are unduly burdensome. The declarations in opposition to the government's motions set forth the tremendous burden on plaintiffs and CCSF. Given the marginal probative value, the short time frame before trial, the enormity of the requests, and the privacy considerations addressed below, the court finds the requests pose an undue burden on the providers.

  Furthermore, while recognizing that "[t]he right to informational privacy . . . is not absolute" but "is a conditional right which may be infringed upon a showing of proper governmental interest," the court concludes that a balancing of the relevant considerations Page 3 supports nondisclosure. See In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999)(citing United States v. Westinghouse Electric Corp., 638 F.2d 570, 577-78 (3rd Cir. 1980)).

  Although the government has agreed to the redaction of names, addresses, birthdates, and other objectively identifying information, the records nevertheless contain other potentially identifying information of an extremely personal and intimate nature, including, among others, types of contraception, sexual abuse or rape, marital status, and the presence or absence of sexually transmitted diseases. Moreover, the potential for injury to the relationship between patient and provider is significant given the providers' pledge of confidentiality. As set forth in the amicus brief filed by the California Medical Association, allowing disclosure of the records will have a chilling effect on communications between patients and providers. It is also particularly troubling that under the circumstances of this case, it is unlikely that the individual patients whose records are being produced would have notice or an opportunity to contest disclosure. Accordingly, on balance, this court cannot conclude that the government's interest in the marginally relevant patient records justifies disclosure.

  This court therefore DENIES the government's motions to compel.*fn2 Moreover, the government has agreed that given this court's denial, its request for additional depositions is moot. Accordingly, it is DENIED. For the reasons stated on the record, the court, does, however, GRANT the government's request for malpractice records from CCSF to the extent that such information has not already been provided.

  Additionally, the government has informed this court that it has subpoenaed documents from non-party PPFA affiliates pursuant to Rule 45. In recognition of other similar proceedings and that other courts may be presented with related motions to quash, this court strongly encouraged the government to withdraw those subpoenas in the interest of judicial time and resources, advising that the information sought by the subpoenas is subject to the same concerns as the requests currently before this court and will likely be inadmissible at Page 4 trial. See, e.g., Dart Industries v. Westwood Chemical Company, 649 F.2d 646, 649-650 (9th Cir. 1980)(discovery restrictions may be broader where nonparty is target of discovery and may be "more limited to protect third parties from harassment, inconvenience, or disclosure of confidential documents").

  This order fully adjudicates the matters listed at nos. 102, 103, 104, 105, and 126 on the clerk's docket for this case. PPFA's request to seal document #126, the sample medical record, is GRANTED.

  IT IS SO ...

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