Porter v. Pinkerton Government Services, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANGEL PORTER,
Plaintiff,
v. Civil Action No. 13-1141 (GK)
PINKERTON GOVERNMENT
SERVICES, INC. ,
Defendant.
MEMORANDUM OPINION
Plaintiff Angel Porter ("Plaintiff") brings this case
against Pinkerton Government Services, Inc. ("Defendant") for
violations of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2, the Civil Rights Act of 1866, 42 U.S.C. §
1981, and her common law right to privacy.
Pending before the Court are Plaintiff's Motion to Quash
Defendant's Subpoena Directed to Ivy Plastic Surgery Associates
[Dkt. No. 17] and Plaintiff's Motion to Quash or Modify
Defendant's Subpoena for Testimony of an Employee of Ivy Plastic
Surgery Associates [ Dkt. No. 18] . Upon consideration of the
Motions, Oppositions, and Replies, and the entire record herein,
and for the reasons stated below, the Motions shall be granted
in part and denied in part.
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I. BACKGROUND
A. Factual Background1
Defendant is a company specializing in security and
emergency services for government agencies. FAC 5.
Plaintiff, who is African American, was employed by Defendant as
a security guard from 2008 until June 2012. FAC `` 6-8. During
that time, she was assigned to work for TASC, Inc., whose
management gave her multiple compliments for the quality of her
work and frequent recommendations for a promotion. FAC `` 8-9.
Plaintiff interviewed for a supervisor position with Defendant
on at least four occasions, but despite the positive feedback
from TASC, Inc., "her strong background in security, and the
fact that she was already training people that were going to be
her new supervisors," Plaintiff was not hired. Plaintiff claims
she was specifically told by her supervisors that the reason she
would not be hired was that they were looking for a "bright
face." FAC ~ 12. The positions were filled instead by three
white women and an Asian man. FAC `` 10-12.
Plaintiff also alleges that, in December 2011, she received
approval from Defendant's Human Resources Departm~nt for medical
leave to have a surgical procedure on her stomach. The surgery
1
The facts are taken from the First Amended Complaint ("FAC")
[Dkt. No. 11].
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was to be performed by Ivy Plastic Surgery Associates ("Ivy
Associates"). Two days before the surgery, however, Plaintiff's
Site Manager, Ms. Persell, and Branch Manager, Mr. Paczek, began
to harass her about taking the time off from work, even though
her request for medical leave had already been approved by the
Human Resources Department. FAC <_![<_![ 13, 15. Mr. Paczek
allegedly took it upon himself to contact Ivy Associates in an
attempt to obtain information about the nature of her surgery,
and he and Ms. Persell subsequently told Plaintiff's co-workers
that she was having a "tummy tuck," causing her humiliation and
embarrassment. FAC <][<_![ 14, 16-17, 20. This was not, according
to Plaintiff, the first time Mr. Paczek investigated her
personal affairs. He also contacted her son's doctor on several
prior occasions when she missed work as a result of her son's
asthma. FAC <][ 19.
On December 27, 2011, Plaintiff filed a formal complaint of
harassment and invasion of privacy against Mr. Paczek and Ms.
Persell. Thereafter, Mr. Paczek and Ms. Persell ceased verbally
communicating with her and began looking for reasons to fault
and reprimand her, including "by calling other co-workers to ask
about things like Plaintiff's uniform, work, etc." FAC <][ 22.
Plaintiff asserts that "[a] fter dealing with this hostile
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environment for quite some time and definitively being told in
2012 that she would not be promoted due to her race," she "was
forced to resign on or about June 1, 2012." FAC en 26.
B. PROCEDURAL BACKGROUND
On July 27, 2013, after exhausting her administrative
remedies with the EEOC, Plaintiff filed this case. On December
2, 2013, she filed her FAC [Dkt. No. 11], which asserts claims
for invasion of privacy, disparate treatment, hostile work
environment, retaliation, and discrimination in violation of the
Civil Rights Act of 1866, 42 U.S.C. § 1981. On December 16,
2013, Defendant filed its Answer, generally denying Plaintiff's
allegations and asserting, as an affirmative defense, a
qualified privilege to "investigate the circumstances
surrounding Plaintiff's December 2011" request for medical leave
and "to disclose to its management staff and its employees any
factual information related to Plaintiff's effort to take time
off work in December 2011." See generally Answer [Dkt. No. 11];
id. at Tenth and Eleventh Affirmative Defenses.
On February 10, 2014, Defendant served two subpoenas: one
on Ivy Associates seeking production of Plaintiff's medical
records and the other commanding Ivy Associates Patient
Coordinator Adrienne Harvill to testify at a deposition. On
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April 1, 2014, Plaintiff ,filed her Motion to Quash Defendant's
Subpoena Directed to Ivy Plastic Suigery Associates ("Ivy Mot.")
[ Dkt. No. 17] and her Motion to Quash or Modify Defendant's
Subpoena for Testimony of an Employee of Ivy Plastic Surgery
Associates ("Harvill Mot.") [ Dkt. No. 18] . On Apr i 1 14 , 2 0 14 ,
Defendant filed its Opposition to the Ivy Motion ("Opp'n to Ivy
Mot.") [Dkt. No. 20] and its Opposition to the Harvill Motion
( "Opp' n to Harvill Mot.") [ Dkt. No. 19] . On April 21, Plaintiff
filed her Reply in further support of the Ivy Motion ("Ivy
Reply") [Dkt. No. 21] and her Reply in further support of the
Harvill Motion ("Harvill Reply") [ Dkt. No. 22] .
II. LEGAL STANDARD
" [I] t is settled that a subpoena is limited in scope by
Rule 26(b) (1) ·of the Federal Rules of Civil Procedure." Coleman
v. D.C., 275 F.R.D. 33, 36 (D. D.C. 2011) (citations omitted).
Under Rule 2 6 (b) ( 1) , "[p] arties may obtain discovery regarding
any nonpri vileged matter that is relevant to any party's claim
or defense." Fed. R. Civ. P. 26(b). "Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of
consequence in determining the action." Fed. R. Evid. 401.
This definition is broadly construed for purposes of discovery.
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Food Lion v. United Food & Commercial Workers Int 1 1 Union, 103
F.3d 1007, 1012 (D.C. Cir. 1997).
"Rule 45 also supplies the standards under which district
courts assess objections to a subpoena." Watts v. S.E.C.,
482 F.3d 501, 508 (D.C. Cir. 2007). "The rule requires that
district courts quash subpoenas that call for privileged matter
or would cause an undue burden." Id.; see also Fed. R. Civ. P.
4 5 (d) ( 3) (A) (iii) . Thus, as our Court of Appeals has held:
if the documents under subpoena are relevant to the
subject matter of the proceeding for which their
production is sought, the subpoena should be enforced
on a showing of good cause unless the documents are
privileged or the subpoena is unreasonable,
oppressive, annoying, or embarrassing. And if the
District Court believes the subpoena has a meritorious
basis but should not be enforced as drafted, . it
has authority under Rule 30(b) to modify the subpoena
and impose such conditions on enforcement as justice
may require.
Freeman v. Seligson, 405 F.2d 1326, 1334-35 (D.C. Cir. 1968)
III. DISCUSSION
In both subpoenas, Defendant seeks the following eleven
categories of information:
( 1) Any and all documents related to Angel Porter 1 s
counseling, treatment, surgery or other procedures,
including, but not limited to, intake, progress notes,
examinations, testing, surgical notes, post-op notes
and any remaining documents kept in any files related
to Angel Porter;
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(2) Any and all documents related to any medications
or supplements that Angel Porter was prescribed or
recommended to take;
( 3) Any and all documents related to any statements
from Angel Porter regarding her symptoms or medical
problems;
( 4) Any and all documents related to any statements
from Angel Porter regarding the counseling or
treatment she received;
(5) Any and all documents related to any diagnoses of
Angel Porter;
(6) Any and all documents related to results from any
examinations, tests, surgeries or procedures conducted
in connection with Angel Porter;
(7) Any and all documents related to any instructions
that Angel Porter was given;
(8) Any and all documents related to any medical,
outpatient, or other services received by Angel
Porter;
(9) Any and all documents related to any conversations
between Angel Porter and Adrienne Harvill;
(10) Any and all documents related to telephone
inquiries that Adrienne Harvill or any employee or
doctor of Ivy Associates may have had with any person
who inquired at any point in time about Angel Porter
or about the types of medical procedures or surgerLes
performed by Ivy Associates as part of its medical
practice; and
(11) Any and all documents related to Angel Porter's
employment with Pinkerton Government Services, Inc.
and/or medical leave that she may have requested or
taken in the time frame covering January 2011 through
June 20, 2012.
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See Ivy Mot., Ex. 1 [Dkt. No. 17-1]. Defendant also seeks to
depose Harvill about these topics. See Harvill Mot., Ex. 1.
A. Relevance
"When confronted with a discovery demand to which an
objection has been made, the Court must first ascertain whether
there is a reasonable likelihood or possibility that the
information sought may be relevant to a claim or defense or
likely to lead to such evidence." St. John v. Napolitano, 274
F.R.D. 12, 15 (D.D.C. 2011) (citation and internal punctuation
omitted).
As discussed, in her FAC, Plaintiff alleges that, in
December 2011, Mr. Paczek and Ms. Persell intruded into her
personal affairs by "call [ing] her doctor's office to inquire
about her surgery," even though she had already obtained
approval for medical leave from the Human Resources Department.
FAC '!['![ 13-15, 17. Thus, categories 10 and 11 of the subpoena,
which seek information related to Mr. Paczek's alleged telephone
inquiries to Ivy Associates and Plaintiff's request for medical
leave, are directly relevant to Plaintiff's allegations. 2
2
Plaintiff appears to concede as much by acknowledging that
"Defendant's communications with Plaintiff's health care
provider Ivy [are] at issue, and [are] important to
establish what information about Plaintiff and her scheduled
-8-
As to the remaining categories of information, Defendant
claims that they are relevant to (1) the merits of her claims,
(2) her credibility, and (3) her assertion of emotional distress
as an element of damages. It explains that Plaintiff "initially
claimed that she needed the surgery for an appendectomy," which
her supervisors believed to be untrue upon learning "that the
designated surgeon worked with a medical practice - Ivy Plastic
Surgery Associates - specializing in plastic surgery." Opp'n to
Ivy Mot. at 2. Defendant contends that the true nature of
Plaintiff's procedure is relevant to whether the surgery was
elective and thus could be rescheduled to a less busy time of
year, and "whether her supervisors' inquiries about her surgical
status were motivated by reasonable and legitimate business
concerns." Id. at 1-2.
The Court agrees with Defendant that these issues reflect
upon Plaintiffs' employment relationship with her supervisors
and, therefore, are relevant to her claims of harassment and
discrimination under Title VII. The accuracy of Plaintiff's
representations to her supervisors is also relevant to
credibility and Plaintiff's claim of emotional distress as an
element of damages. See, e.g., Barnett v. PA Consulting Group,
procedure Defendant attempted to obtain and what information was
exchanged between Defendant and Ivy." Ivy Reply at 2-3.
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Inc., No. 04-1245, 2007 WL 845886, at *4 (D. D.C. Mar. 19, 2007)
("[A] defendant is entitled to explore whether causes unrelated
to the alleged wrong contributed to plaintiff's claimed
emotional distress, and a defendant may propound discovery of
any relevant medical records of plaintiff in an effort to do
so.") (internal quotation marks and citation omitted) . In sum,
the requested information relevant.
B. Privilege
Relevance does not, however, end the analysis. Even if the
information is relevant, the subpoenas must still be quashed or
modified if they are unduly burdensome or require "disclosure of
privileged or other protected matter, if no exception or waiver
applies." Fed. R. Civ. P. 45(d) (3) (A) (iii)-(iv); see In re
England, 375 F.3d 1169, 1177 (D.C. Cir. 2004) (if there is a
valid statutory privilege "information may be withheld, even if
relevant to the lawsuit and essential to the establishment of
plaintiff's claim") (citation omitted).
Federal law governs a claim of privilege in federal courts
except in a civil case "regarding a claim or defense for which
state law supplies the rule of decision." Fed. R. Evid. 501.
In this case, it is unclear whether federal privilege law or
state privilege law applies because Plaintiff brings claims
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•·
under both bodies of law. See In reSealed Case (Med. Records),
381 F.3d 1205, 1212 (D.C. Cir. 2004) (observing that the choice
of law inquiry under Rule 501 is unclear "wh~re the plaintiffs
assert both federal and state claims, and relevant evidence may
be privileged under one but not the other").
The Court need not, however, decide this question because
Defendant has not contested Plaintiff's assertion that District
of Columbia law governs. Therefore, the Court may treat the
applicability of District of Columbia law as conceded.
~' A Love of Food I, LLC v. Maoz Vegetarian USA, Inc., 292
F.R.D. 142, 143 (D.D.C. 2013) ("[T]he Court may treat [a
party's] failure to oppose [an opponent's] arguments as a
decision to concede those arguments.") (quoting Nat'l Sec.
Counselors v. C.I.A., 898 F. Supp. 2d 233, 268 (D.D.C. 2012)
(quotation marks omitted)).
D.C. Code§ 14-307(a) states:
In the Federal courts in the District of Columbia .
. a physician . . may not be permitted, without the
consent of the person afflicted, or of his [or her]
legal representative, to disclose any information,
confidential in its nature, that he [or she] has
acquired in attending a client in a professional
capacity and that was necessary to enable him [or her]
to act in that capacity[.]
D. C . Code § 14- 3 0 7 (a) . This provision "prevents a physician
from testifying about a patient's medical condition in court
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without the patient's consent" and also protects against "the
release of information during the pretrial discovery phase."
Kuhn & Kogan, Chtd. v. Jeffrey C. Mensh & Associates, Inc., 77
F. Supp. 2d 52, 56 (D.D.C. 1999) (citations omitted). Defendant
does not dispute that this language covers the medical records
requested by the subpoenas. Therefore, under Rule 45 (d) (3), the
subpoenas must be quashed or modified unless Plaintiff has
waived the privilege.
C. Waiver
Under District of Columbia law, a "patient may waive or be
deemed to have waived the physician-patient privilege . by
filing a lawsuit which places in issue the patient's medical
condition." Nelson v. United States, 649 A.2d 301, 308 (D.C.
1994) (citations omitted). As the Court of Appeals for the
District of Columbia observed in Nelson, waiver is based on the
principle that " [a] patient-litigant may not authorize
disclosure of only those portions of the medical records
favorable to that party's position, while withholding other
relevant portions which are unfavorable." Id. at 308-09
(citations omitted). At the same time, the Nelson court
expressly rejected the proposition that "a general waiver"
occurs by mere "implication of any medical information" in the
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lawsuit. Id. at 309. Instead, "[W]aiver determinations are to
be carefully scrutinized" in relation to "the facts and
circumstances of the particular case." Id.
Our Court of Appeals has also provided helpful guidance for
assessing waiver. In Koch, 489 F.3d at 382, which concerned an
asserted waiver of the psychotherapist-patient privilege, it
held that the waiver doctrine must be applied in such a way that
it "does not eviscerate the privilege," but merely gives effect
to the principle that a party may not "employ privileges both as
a sword and as a shield." Koch, 489 F.3d at 382 (citation and
quotation marks omitted) . The proper inquiry, the ·Court of
Appeals observed, is not whether "there is a particular
evidentiary need for disclosure," but whether the opposing party
has somehow relied on the privileged information in asserting a
claim or defense. See id. at 381-83. Thus, a plaintiff may be
deemed to have waived the privilege to the extent she "relies
upon the [provider's] diagnoses or treatment in making or
defending [her] case" or "selectively discloses part of a
privileged communication in order to gain an advantage in
litigation." Id. at 381-82 (citations and quotation marks
omitted).
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With these principles in mind, the Court considers whether
Plaintiff has waived the physician-patient privilege with
respect to the information at issue.
1. Subpoena Categories 10 and 11
As discussed above with respect to Category 10 of the
subpoenas, Plaintiff has specifically alleged that her
supervisors "called her doctor's office to inquire about her
surgery and obtain personal information about Plaintiff."
FAC Koch, 489 F.3d at 382. Under the "narrow approach," a
plaintiff only waives the privilege by affirmatively placing the
substance of the privileged advice or communication directly in
issue. Id. (citing Fitzgerald v. Cassil, 216 F.R.D. 632, 638
(N.D. Cal. 2003)). Under the "middle ground" approach, "where a
plaintiff merely alleges 'garden variety' emotional distress and
neither alleges a separate tort for distress, any specific
psychiatric injury or disorder, or unusually severe distress,
that plaintiff has not placed his/her mental condition at issue
to justify waiver." Koch, 489 F.3d at 382 (citing Jackson v.
Chubb Corp., 193 F.R.D. 216 (D.N.J. 2000)). Under the "broad"
approach, "courts have held that a plaintiff places his or her
medical condition at issue and waives the . . privilege simply
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by making a claim for emotional distress." St. John, 274 F.R.D.
at 18 (citing Koch, 489 F.3d at 390).
Our Court of Appeals has not decided which, if any, of
these approaches applies. However, courts in this District have
adopted the "middle ground" approach "under which 'garden
variety' emotional distress allegations are not deemed to waive
privilege." St. John, 274 F.R.D. at 19 _(citing Sims v. Blot,
534 F.3d 117 (2d Cir. 2008), Barnett v. PA Consulting Group,
Inc., No. 04-1245 (RWR), 2007 WL 845886, at *3-4 (D.D.C. Mar.
19, 2007)). This Court also finds the middle ground approach to
be reasonable and appropriate and shall adopt that approach.
Federal courts have used the following five factors to
assess whether a plaintiff's claims for emotional distress are
"garden variety" or more severe: ( 1) the presence of a cause of
action for intentional or negligent infliction of emotional
distress; ( 2) an allegation of a specific mental or psychiatric
injury or disorder; ( 3) a claim of unusually severe emotional
distress; ( 4) a proffer of expert testimony to support ·a claim
of emotional distress; and/or (5) a concession by the plaintiff
that his or her mental condition is "in controversy." Id. at
119 (citation omitted).
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None of these factors are present here: Plaintiff does not
bring a cause of action for intentional or negligent infliction
of emotional distress. She does not allege any specific
psychiatric disorder or unusually severe emotional distress.
She has specifically disclaimed any intent to rely on an expert
to support her claim of emotional distress. See Ivy Reply at 5.
Finally, she does not concede that her mental condition is "in
controversy." Consequently, "there are no factors showing that
the plaintiff has alleged more than 'garden variety' emotional
distress of the kind an ordinary person might experience
following an episode of discrimination." St. John, 274 F.R.D.
at 20. Therefore, Plaintiff has not waived the privilege over
her private medical records merely by claiming emotional
distress.
Defendant has not otherwise addressed waiver in its
Opposition.· Consequently, the Court concludes that Plaintiff
has waived the privilege as to categories 10 and 11 of the
subpoenas but not as to the remaining categories. The subpoenas
shall be modified to permit discovery solely of the information
contained in categories 10 and 11. 3
3
The Court also concludes that categories 1 and 2 are overly
broad and burdensome and thus are also subject to modification
on those grounds. See Fed. R. Civ. P. 45(d) (3) (A) (iv).
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D. Lack of Proper Notice
Finally, Plaintiff also contends that the subpoenas must be
quashed because Defendant failed to provide her with proper
notice prior to serving them on Ivy Associates and Har.vill.
Although it is undisputed that Defendant's notice was deficient
in certain respects, there is no indication that these
deficiencies were intentional or prejudicial, and they certainly
do not constitute grounds to quash under Rule 45(d) (3).
Consequently, this request is denied.
IV. CONCLUSION
For the reasons set forth above, Plaintiff's Motions
are granted in part and denied in part, and the subpoenas shall
be modified consistent with this Memorandum Opinion.
& k~¥ jc:;V' lL,__
__
May 23, 2014 Gladys Kes~ '
United States District Judge
Copies to: attorneys on record via ECF
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