UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

TIMOTHY BERTRAM,

Plaintiff,

C. SIZELOVE, et al.,

Defendants.

CASE NO. 1:10-cv-00583-AWI-GBC (PC)

ORDER DENYING PLAINTIFF’S MOTION

TO QUASH, MOTION TO COMPEL, AND

MOTION FOR SUBPOENA

Docs. 42, 51, 54

I. Procedural History

On April 5, 2010, Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed

this civil rights action pursuant to 42 U.S.C. § 1983. On November 22, 2010, the Court dismissed

certain claims and found a cognizable Eighth Amendment claim for deliberate indifference to

medical needs. Doc. 14. On August 2, 2011, the Court issued a discovery and scheduling order,

establishing a discovery deadline of April 2, 2012 and a dispositive motion deadline of June 11,

2012. Doc. 36.

On August 17, 2011, Plaintiff filed a motion to quash subpoena. Doc. 42. On September 6,

2011, Defendants filed an opposition to Plaintiff’s motion to quash subpoena. Doc. 44. On

September 19, 2011, Plaintiff filed objections to Defendants’ opposition. Doc. 47. On October 13,

2011, Plaintiff filed a motion to compel discovery from Defendants. Doc. 51. On October 31, 2011,

Defendants filed an opposition to Plaintiff’s motion to compel. Doc. 53. On November 16, 2011,

Plaintiff filed a motion for subpoenas. Doc. 54. This matter is deem submitted pursuant to Local

Rule 230(l).

II. Plaintiff’s Motion to Quash Release of Medical Records

A. Background

In his complaint, Plaintiff alleges that Defendants were deliberately indifferent to his medical

condition; that they failed to provide him a bottom bunk; that on July 14, 2009, Plaintiff had a

seizure and fell from his top bunk; and that he suffered from head, neck, and shoulder injuries. Pl.

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Compl. at 5-8, Doc. 1. In response to Plaintiff’s complaint, Defendants requested Plaintiff’s medical

records in discovery. Defs. Opp’n at 1, Doc. 44. Defendants requested medical records from July 4,

2009 to present. Id. Defendants did not request Plaintiff’s mental or psychiatric records. Id. at 4. In

response to Defendants request for records, the Litigation Department at California Mens Colony

notified defense counsel that they were unable to comply with the request because Plaintiff objected

to the production of his medical records. Id. at 2. On August 18, 2011, Defendants received

correspondence from Plaintiff that their medical request was too broad and that it would divulge

other medical issues that are not relevant to the litigation. Id.

In lieu of his complete medical records, Plaintiff provided six sheets of paper from his

medical records, indicating that these are the only medical records relevant to the litigation. Id.

Defendants list the records as: (1) Health Care Services Request form dated 4/6/09 - appears to

include only includes Plaintiff’s handwriting regarding his allegation of seizures and a lower bunk

chrono; (2) Comprehensive Accommodation Chrono dated 03/05/09 - appears to indicate Plaintiff

needs a bottom bunk; (3) Physician’s Order - appears to include entries for 06/09/09 and 07/15/09,

states only that Inmate was sent to hospital; (4) Interdisciplinary Progress Notes dated the 14th day

of 2009, month is illegible, but would likely be July as the “Notes” appear to describe treatment after

Plaintiff’s alleged fall; (5) Physician’s Order - appears to include entries for 07/15/09 and 07/21/09;

(6) Aftercare Instructions from Tehachapi Valley Healthcare District dated 07/15/09. Id.

Plaintiff moves to quash the subpoena for medical records issued by Defendants. Pl. Mot.

Quash, Doc. 42. Plaintiff alleges the request is too broad and would violate his civil rights under

Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Id. at 1-2. Plaintiff agrees

only to release the medical records from one (1) day before the incident and eleven (11) days after

the incident. Id. Plaintiff also wants unrelated issues redacted from the records. Id. In Plaintiff’s

motion to quash, he includes four (4) of the records that Defendants’ referenced Plaintiff providing

in his response. Id. at 3-7.

In Plaintiff’s objections to Defendants’ opposition, Plaintiff contends that he only needs to

show that an actual physical injury occurred in order to prevail under the Prison Litigation Reform

Act (“PLRA”). Pl. Obj. at 1, Doc. 47. Plaintiff states that he provided the lower bunk chrono; that

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it is obvious that he had a medical need; that Defendants were deliberately indifferent to his medical

need; and that no further medical explanation is necessary. Id. at 1-2. Plaintiff states that he is not

contending that he suffered any lasting injury, so any records outside of the date of his alleged injury

and any records regarding the extent of his alleged injury are not relevant. Id. at 2. Plaintiff concludes

that whether he had a major or minor injury is not relevant to his lawsuit. Id. at 3.

B. Legal Standard

“Parties may obtain discovery regarding any nonprivileged 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.” Fed. R. Civ. P.

26(b)(1). For document production requests, responding parties must produce documents which are

in their “possession, custody or control.” Fed. R. Civ. P. 34(a)(1).

In this case the question of whether Defendants should obtain access to Plaintiff’s medical

records depends upon whether the confidentiality of these records has been waived by putting the

privileged information “at issue.” Fritsch v. City of Chula Vista, 187 F.R.D. 614, 625-626 (S.D. Cal.

1999), modified on other grounds, 196 F.R.D. 562 (S.D. Cal.1999) (citing Vanderbilt v. Town of

Chilmark, 174 F.R.D. 225 (D. Mass. 1997)) (finding waiver of psychotherapist-patient privilege if

communication between the two is put at issue by the patient, for example, where the case of action

relies on advice or findings of the psychotherapist. Under this measure of fairness, waiver prevents

the privilege from being used as both a sword and a shield). Id. at 229-30. HIPAA allows health care

providers to disclose medical records in response to a court order. See 45 C.F.R. § 164.512(e)(1).

With respect to Plaintiff’s constitutional privacy claim, there is no question that Plaintiff’s

medical condition around the time of trial is relevant to claims raised in his petition. By making these

claims, Plaintiff waived his privacy rights in his medical records. See Barnes v. Glennon, 2006 WL

2811821, at *4 (N.D. N.Y. Sept. 28, 2006) (“Although the release of the medical records was not

pursuant to a discovery order or by consent, the release, nevertheless, did not violate Plaintiff's

constitutional right to privacy since medical conditions were at the heart of the argument presented

by Plaintiff in his habeas corpus petition....”); Woods v. Goord, 2002 WL 731691, at *11 (S.D. N.Y.

Apr. 23, 2002) (“It is settled law that release of an inmate’s medical records in defense of litigation

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does not violate any right of the inmate when he has filed suit against prison officials.”) (citing Gill

v. Gilder, 1997 WL 419983, at *2 (S.D. N.Y. July 28, 1997)); Ferrell v. Glen-Gery Brick, 678 F.

Supp. 111, 112-13 (E.D. Pa. 1987) (“when a party places his or her physical or mental condition in

issue, the privacy right is waived”).

Because the requested documents are relevant to this action, they must be produced unless

they are privileged. See Fed. R. Civ. P. 26(b)(1). Plaintiff has waived the privilege, at least according

to state law, by placing his medical records at issue in this case. See In re Lifschutz, 2 Cal.3d 415,

433–34 (1970) (under California law, the patient-physician privilege is waived where the patient’s

specific medical condition is placed into issue by the patient). Under federal law, the privilege may

be waived when the patient files a lawsuit that places the content of the privileged communications

in issue. See Sarko v. Penn–Del Directory Co., 170 F.R.D. 127, 130 (E.D. Pa. 1997); Vann v. Lone

Star Steakhouse & Saloon, Inc., 967 F. Supp. 346, 349–50 (C.D. Ill. 1997); cf. Home Indem. Corp.

v. Lane Powell Moss and Miller, 43 F.3d 1322, 1326 (9th Cir. 1995) (applying waiver to the

attorney-client privilege).

Privacy rights in medical records are neither fundamental nor absolute. Whalen v. Roe, 429

U.S. 589, 603-604 (1977). The holder of a privacy right can waive it through a variety of acts,

including by written authorization or instituting a lawsuit. Id. Moreover, where an individual

institutes a law suit in which his health and medical records are at issue, release of the records would

likely be ordered, even over objection, during discovery. See Williams v. Baron, 2007 WL 433120,

at *1 (E.D. Cal. Feb. 5, 2007).

As a general rule, HIPAA prohibits disclosure of private medical data. “Except as otherwise

permitted or required by this subchapter, a covered entity may not use or disclose protected health

information without an authorization that is valid under this section.” 45 C.F.R. 164.508(a).

However, 45 C.F.R. 164.508 permits disclosure in certain circumstances including when it is

allowed under 45 C.F.R. 164.512. Subdivision (e) of this latter section permits disclosure of the

records in judicial proceedings if ordered by the court, or in response to a subpoena if the agency is

assured that the subpoenaing party has made reasonable efforts to obtain a release. 45 C.F.R.

164.512(e). “Reasonable efforts” are shown when the subpoena allows time for objections and none

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were made before the expiration of the time allowed. 45 C.F.R. 164.512(e)(1)(ii), (iii). Here, the

subpoena is governed by Federal Rules of Civil Procedure 45, which permitted objection to the

subpoena by Plaintiff in the form of a motion to quash and/or motion for protective order.

C. Analysis

Plaintiff filed a motion to quash, but the Court finds that Plaintiff has waived his right to

privacy by initiating this lawsuit and placing his medical records at issue. Thus, the Court finds that

HIPAA permits disclosure of the subpoenaed records in this instance and that Plaintiff’s objection

is not well-founded. In the instant action, Plaintiff alleges claims of deliberate indifference to serious

medical needs, alleging Defendants failed to provide adequate medical care. Accordingly, Plaintiff

has placed his medical records at issue, thereby waiving his privacy interest in the records. Moreover,

Defendants did not request Plaintiff’s mental health records. The Court agrees with Defendants that

because Plaintiff’s complaint asserts an Eighth Amendment violation premised on Defendants’

deliberate indifference to Plaintiff’s serious medical needs, his medical records are directly relevant

to the action. Seaton v. Mayberg, 610 F.3d 530, 537 (9th Cir. 2010); (clarifying that the Supreme

Court has not established a constitutional right to privacy in medical records); see also Thomas v.

Carrasco, 2010 WL 4024930 at *3-4 (E.D. Cal. Oct. 13, 2010) (determining, in line with several

other district courts, that the right of privacy of medical records is waived when the plaintiff's

medical condition is “at issue”).

III. Plaintiff’s Motion to Compel and Motion for Subpoenas of Non-Party Individuals

Plaintiff moves to compel discovery responses from Defendants. Doc. 51. However,

Defendants cannot provide responses without Plaintiff’s release of records. Defs. Resp. at 1, Doc.

44. Therefore, Defendants cannot provide responses to discovery without Plaintiff’s cooperation.

Finally, Plaintiff moves for subpoenas from five (5) nonparty individuals. Doc. 54. Subject

to certain requirements, Plaintiff is entitled to the issuance of a subpoena commanding the

production of documents or tangible things from a nonparty, and to service of the subpoena by the

United States Marshal. Fed. R. Civ. P. 45; 28 U.S.C. § 1915(d). However, the Court will consider

granting such a request only if the documents or tangible things sought from the nonparty are not

equally available to Plaintiff and are not obtainable from Defendants through a request for the

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production of documents or tangible things. Fed. R. Civ. P. 34. If Defendants object to Plaintiff’s

discovery request, a motion to compel is the next required step. If the Court rules that the documents

or tangible things are discoverable but Defendants do not have care, custody, and control of them,

Plaintiff may then seek a subpoena. Alternatively, if the Court rules that the documents are not

discoverable, the inquiry ends.

In Plaintiff’s motion for subpoena, Plaintiff does not write the names, occupation titles, or

state why he needs to subpoena these five (5) nonparty individuals. The Court will not issue blank

subpoenas, and the Court will not issue subpoenas for individuals without Plaintiff first following

the procedure outlined above.

IV. Conclusion

Accordingly, it is HEREBY ORDERED that:

1. Plaintiff’s motion to quash is DENIED;

2. Plaintiff’s motion to compel is DENIED;

3. Plaintiff’s motion for subpoenas is DENIED;

4. Plaintiff shall execute a release of medical records within fifteen (15) days of service

of this order; and

5. Plaintiff is cautioned that a failure to comply with this order may result in dismissal

pursuant to Rules 37(b) or 41(b) of the Federal Rules of Civil Procedure.

IT IS SO ORDERED.

Dated: January 30, 2012

0jh02o UNITED STATES MAGISTRATE JUDGE

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