304 F.R.D. 24
D.D.C.2014Background
- Porter, an African American former Pinkerton guard, alleges Title VII and related claims and privacy invasion against Pinkerton.
- She contends she was denied a supervisor position despite favorable performance reviews and appropriate qualifications, with allegedly race-based reasons given (a “bright face”).
- In Dec. 2011 she obtained approved medical leave for stomach surgery to be performed by Ivy Associates; Pinkerton supervisors allegedly harassed her and inquired about the surgery.
- Mr. Paczek and Ms. Persell allegedly discussed her medical leave with Ivy Associates and told coworkers about the planned procedure, causing humiliation.
- In Feb. 2014 Pinkerton served subpoenas on Ivy Associates for medical records and testimony; Porter moved to quash, and the court analyzed relevance, privilege, waiver, and notice issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether categories 10 and 11 are relevant to the case | Porter concedes relevance of communications with Ivy and leave | Information about medical leave and calls is directly relevant to harassment/discipline | Categories 10-11 relevant; waiver applies; others narrowed |
| Whether physician–patient privilege applies and should be enforced | DC privilege applies to medical records and communications | Privilege blocks disclosure absent waiver | DC physician–patient privilege applies; waiver not presumed for all categories; modify subpoenas |
| Whether Porter waived the privilege by her emotional distress claim | Emotional distress alone does not waive privilege under middle-ground approach | Emotional distress could place medical info at issue | Waiver for categories 10-11 only; categories 1-9 not waived; middle-ground approach adopted |
| Whether categories 1-9 are overly broad or unduly burdensome | Disallow broad medical records requests | Some categories may be relevant to credibility and damages | Categories 1-2 and others subject to modification for scope/burdens; modify accordingly |
| Whether proper notice was given for subpoenas | Notice deficiencies exist | Notwithstanding defects, no prejudice or deliberate misconduct shown | Notice issue denied as grounds to quash; addressed in modification of subpoenas |
Key Cases Cited
- In re England, 375 F.3d 1169 (D.C. Cir. 2004) (privilege scope and waivers; protected communications may be withheld)
- Nelson v. United States, 649 A.2d 301 (D.C. 1994) (waiver when patient sues; careful scrutiny of waiver)
- Koch v. Cox, 489 F.3d 382 (3d Cir. 2007) (waiver not as broad as eviscerating privilege; must show reliance on privileged info)
- St. John v. Napolitano, 274 F.R.D. 12 (D.D.C. 2011) (middle-ground approach to emotional distress and waiver)
- Freeman v. Seligson, 405 F.2d 1326 (D.C. Cir. 1968) (court may modify subpoena; balance relevance and burden)
- Love of Food I, LLC v. Maoz Vegetarian USA, Inc., 292 F.D. 142 (D.D.C. 2013) (treats choice of DC privilege law when federal/state claims coexist)
- Sims v. Blot, 534 F.3d 117 (2d Cir. 2008) (garden-variety emotional distress inquiry for waiver)
- Food Lion v. United Food & Commercial Workers Int’l Union, 103 F.3d 1007 (D.C. Cir. 1997) (broad relevance standard in discovery)