The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER DENYING DEFENDANT'S DISCOVERY MOTIONS
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
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
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
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
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.