The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge
ORDER: (1) DENYING PLAINTIFF'S MOTION TO MODIFY DEFENDANT'S ) SUBPOENA [Doc. 13]; (2) DENYING MOTION TO QUASH OR MODIFY THE DEPOSITION SUBPOENA [Doc. 15]; and (3) GRANTING DEFENDANT'S EX PARTE APPLICATION TO EXTEND THE DISCOVERY CUTOFF AND MOTIONS DEADLINES [Doc. No. 18].
Plaintiff is a California state prisoner proceeding pro se in a § 1983 civil rights action. He alleges that his Eighth Amendment rights were violated as a result of Defendant's inadequate medical care. Defendant issued a subpoena to High Desert State Prison for Plaintiff's medical records with a response date of December 1, 2008. High Desert State Prison timely complied with the subpoena. Defendant's counsel received Plaintiff's medical records on December 8, 2008. Since that date, however, Defendant's counsel has never examined the contents of the records, other than to confirm they were Plaintiff's records and to ascertain the date range.
On December 17, 2008, the Court accepted for filing Plaintiff's "Motion to Modify Defendants Subpoena Dated October 29, 2008" and filed it nunc pro tunc to December 1, 2008. On February 4, 2009, Plaintiff filed a second motion--nearly identical to the December 1 motion--entitled: "Motion to Quash or Modify the Deposition Subpoena." In that second motion, Plaintiff repeated his request to modify Defendant's request for medical records. Specifically, Plaintiff seeks to limit Defendant's access to these medical records to "only those medical records that are relevant and necessary to the issues complained of by [P]laintiff."
The Court ordered Defendant to file an opposition, if any, to Plaintiff's motions no later than March 23, 2009. Defendant opposed, arguing that the requested documents are relevant to the claims or defenses at issue. Defendant also submitted a proposed protective order as exhibit B to the Opposition.*fn1
The Court gave Plaintiff until April 3, 2009 to file a reply, but he did not do so. Plaintiff's Allegations.
Plaintiff complains of events that occurred on December 3, 2006 and December 4, 2006 while he was housed in Calipatria State Prison ("CSP"). On December 3, 2006 Plaintiff sought medical care from Defendant, a Medical Technical Assistant ("MTA"), at CSP. Compl. at 7. Plaintiff told Defendant he was in pain because of several unidentified head sores. Id. Defendant then told Plaintiff, "you'll be okay, it's not going to kill you" and denied Plaintiff medical treatment. Id. Defendant also told Plaintiff to have his building officer send him back if things get worse. Id. When Plaintiff asked to be sent back to Defendant for medical treatment, Defendant again denied Plaintiff proper medical care. Id. Defendant became frustrated with Plaintiff's continued requests for treatment, so submitted a false disciplinary charge against Plaintiff. Id. at 7-8. Defendant accused Plaintiff of threatening him. Id. Defendant's false accusation was made in retaliation to Plaintiff's repeated requests for medical care.
Plaintiff was placed in Administrative Segregation because of Defendant's false disciplinary charge. Id. at 8. While Plaintiff was in Administrative Segregation, MTA Caraballo and certain Correctional Officers noticed Plaintiff's medical condition. Id. Plaintiff was then taken to Central Health Clinic where he was examined by Registered Nurse Ramirez and certain doctors. Id. The doctors diagnosed Plaintiff with a staph infection. Id. Plaintiff's blood pressure was also extremely elevated. Id. Plaintiff attributed these medical problems to Defendant's failure to respond to Plaintiff's prior requests for medical treatment. Id. at 8-9. Plaintiff claims he has suffered permanent bald spots and discomfort because of Defendant's conduct. Id. at 11.
Production of Medical Records
Privacy rights in medical records are neither fundamental nor absolute. Whalen v. Roe, 429 U.S. 589, 599-600 (1977); Soto v. City of Concord, 162 F.R.D. 603, 618-619 (N.D. Cal. 1995). When a plaintiff places his medical conditions at issue, his expectation of privacy regarding those conditions is diminished. Urbina v. Carson, 2007 U.S. Dist. LEXIS 74890, *39-*40 (E.D. Cal. 2007). When determining whether to order a production of records, a court must balance the requesting party's interest in reviewing the records against the patient's right to maintain the medical records as private.
, 162 F.R.D. at 619. Regarding mental health records, while California recognizes a physician-patient privilege, no such privilege applies in this case. Federal law regarding privilege applies here because this is a federal question case. Fed. R. Evid. 501; see Admiral Ins. Co. v. U.S. Dist. Court, 881 F.2d 1486, 1492 (9th Cir. 1989). Under federal law, there is no physician-patient privilege, and the Ninth Circuit has not recognized one. Soto, 162 F.R.D. at 618.
Here, Plaintiff placed his medical conditions at issue by claiming that Defendant provided him with inadequate medical care. Defendant has a great interest in reviewing the medical records because they are highly relevant to the claims and defenses in this case. For example, they may show a record of Defendant's past treatment of Plaintiff, Plaintiff's medical status prior to December 3, 2006 and the seriousness of Plaintiff's condition. Determination of these issues may be relevant to the validity of Plaintiff's claims and request for damages. Further, discovery of Plaintiff's mental health records are relevant because Defendant learned, through a Tarasoff disclosure by a mental health provider, that Plaintiff threatened Defendant. Learning more about this alleged threat would speak to Plaintiff's claim that Defendant made false and retaliatory charges against Plaintiff.
While the Court finds that Plaintiff's medical records are relevant to the claims and defenses in this case, and that Defendant has a great interest in reviewing those records, confidentiality may still be maintained over Plaintiff's medical records. Defendant submitted a proposed protective order that would govern the dissemination of the medical records. The Court has reviewed the proposed protective order, and finds that with the additions below, it will allow Defendant appropriate access to the medical records while maintaining their confidentiality. Therefore, the Court DENIES Plaintiff's motion to modify and motion to quash, and ORDERS Defendant to resubmit the proposed protective order electronically to the Court by June 3, 2009, with the following additions:
Add Par. 7: "If Defendant seeks to file any of Plaintiff's medical records in support of any pleadings, those records shall be filed under seal."
Add Par. 8: "Nothing shall be filed under seal, and the court shall not be required to take any action, without separate prior order by the Judge before whom the hearing or proceeding will take place, after application by the ...