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Bell v. United States Dep't of Interior

United States District Court, Ninth Circuit

August 19, 2013



EDMUND F. BRENNAN, District Judge.


Presently pending before the court are four motions: plaintiff's amended motion to quash (ECF No. 101), plaintiff's amended motion for protective order (ECF No. 100), defendants' motion to compel independent medical examination (ECF No. 102) and defendants' motion for protective order (ECF No. 103).

A hearing on the motions was held on August 7, 2013. ECF No. 111. After considering the supporting documentation and oral arguments, and for the reasons discussed at the hearing and infra, IT IS HEREBY ORDERED that: plaintiff's amended motion to quash is denied, plaintiff's amended motion for protective order is denied, defendants' motion to compel independent medical examination is granted, and defendants' motion for protective order is denied.


Plaintiff is a former GS-14 Supervisory Contract Specialist for the Department of the Interior Bureau of Reclamation ("DOI/BOR"). Am. Compl., ECF No. 5 at 4. On January 12, 2012, plaintiff filed her amended complaint alleging violations of (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; (2) the Rehabilitation Act of 1973, 29 U.S.C. §§ 710 et seq.; (3) reprisal for engaging in protected activities; and (4) a hostile and abusive work environment. Id.

In her second amended complaint, plaintiff makes the following relevant allegations:

Defendant's conduct is discriminatory with respect to my race, color, disability, association with a disabled person, and retaliation for protected activity. Plaintiff contends that DOI/BOR officials discriminated against her by removing her from her Supervisory Contract Specialist position, reassigning her to work for her staff, denying a wage grade increase, revocation/denial of family medical leave and issuing an unsatisfactory performance review because of her race (African-American), her disability (Chronic Fatigue Syndrome with Cognitive Impairment) and her association with a disabled person and caregiver status (her sister). Plaintiff further asserts that management retaliated against her for having complained about such discrimination, and whistleblowing, created a hostile working environment for her caused her to suffer major depression, post-traumatic stress disorder, anxiety and exacerbated her chronic fatigue syndrome and cognitive impairment, and denied her family medical leave act leave for her dependent for whom she stands in loco parentis.

Id. at 2-3 (emphasis added). Plaintiff seeks, inter alia, "[t]he sum of $300, 000.00 in compensatory damages for pain and suffering due to the discrimination and retaliation, according to proof, Medical bills." Id. at 8.

In her initial disclosures, plaintiff identified her psychotherapist, Dr. Thomas Kunzig, as a witness, and indicated she sought damages for medicine, doctors, hospitals and therapy for both past and future medical expenses. ECF No. 88-4 at 14, 16. In defendants' first set of interrogatories, plaintiff was asked to itemize all damages she claims to have sustained as a result of the events she alleged in her first amended complaint. ECF No. 88-5 at 5. In her response, plaintiff itemized the following as "Non-Pecuniary - Pain and Suffering":

Loss of enjoyment of life, anxiety, isolation, deterioration of social life, social isolation, loss of family connections, loss concentration, exacerbation of preexisting conditions (chronic fatigue syndrome causing cognitive impairment), severe depression, TMJ, financial hardship, inability to pay bills, injury to credit standing, loss of health, forced to sell parents things, headaches, helplessness, hopelessness, insecurity about future, nightmares, self-esteem, weight gain, embarrassment, destruction of ability to trust, sleeplessness, post-traumatic stress, excessive fatigue, malaise, myalgia, loss of motivation, loss of desire, frustration, paranoia, injury to character and reputation, loss of career, belief career is over, fear, panic, crying, uselessness, thoughts of death, inconvenience, jaw pain, dental pain, joint pain, grinding teeth, gastrointestinal disorder (diverticulosis).

Id. at 6-7.


A. Legal Standard

As set forth in Federal Rule of Civil Procedure ("Rule") 26(b)(1), "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's 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." Relevancy at this stage of an action has been construed broadly to "encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders , 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor , 329 U.S. 495, 501 (1947)).

However, Rule 45(c)(3)(A) provides that "[o]n timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a [non-party] to travel more than 100 miles...; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden." Further, Rule 45(c)(3)(B) provides that "[t]o protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; (ii) disclosing an unretained expert's opinion or information...; or (iii) a [non-party] to incur substantial expense to travel more than 100 miles to attend trial."

A party has standing to seek to quash a subpoena served on a third party, pursuant to Fed.R.Civ.P. 45(c)(3), based on a claim that the subpoena infringes upon the movant's legitimate and privileged interests. United States v. Tomison , 969 F.Supp. 587, 596 (E.D. Cal. 1997) (citations omitted); Moon v. SCP Pool Corp. , 232 F.R.D. 633, 636 (C.D. Cal. 2005). A litigant's privacy interest in her confidential medical records is not absolute but conditional; a limited impairment of the right may be properly justified. Soto v. City of Concord , 162 F.R.D. 603, 618-619 (N.D. Cal. 1995). The determination requires a balancing of plaintiff's privacy rights against defendants' need for the information. Id . (and cases cited therein). "The test... is not relevance-the records may be highly relevant-but the test is whether the privilege has been waived by putting the privileged information at issue.'" E.E.O.C. v. Serramonte , 237 F.R.D. 220, 224 (N.D. Cal. 2006) (citing Fritsh v. City of Chula Vista , 187 F.R.D. 614, 632 (S.D. Cal. 1999) (finding plaintiff did not waive privilege because, among other things, "she does not allege that she suffered a psychiatric injury or disorder as a result of the defendants' conduct; she does not claim to suffer from unusually severe emotional distress; and she does not intend to offer expert testimony regarding her emotional distress")).

With regard to a psychotherapist-patient privilege, the Supreme Court has explicitly recognized the existence of a psychotherapist-patient privilege, which protects all confidential communications between a person and a licensed psychiatrist, psychologist, or social worker. Jaffee v. Redmond , 518 U.S. 1, 8-17 (1996); see also United States v. Chase , 340 F.3d 978, 983-84 (9th Cir. 2003). The privilege may be waived where the patient's specific medical condition is placed into issue. Maynard v. City of San Jose , 37 F.3d 1396, 1402 (9th Cir. 1994) (finding the plaintiff "waived any privilege protecting his psychological records when he put his emotional condition at issue"); EEOC v. Cal. Psychiatric Transitions , 258 F.R.D. 391, 399 (E.D. Cal. 2009).

B. Analysis

The following third party subpoenas are at issue in plaintiff's operative motion to quash:

(1) Custodian of Records, Kaiser PMG Pharmacy Department, Downey, CA, seeking "[a]ll pharmacy records (hard copy or electronic) including all paper or electronically ...

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