United States District Court, District of Columbia
MEMORANDUM OPINION RE DOCUMENT NOS. 9 (18-CV-2416) 1
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
Plaintiffs' Motion to Quash Granting in
Part and Denying in Part Plaintiffs' Motion For A
October 22, 2018, Juan Avila and Duane Burrows (collectively
“Plaintiffs”), filed a sixteen-count complaint
against Lincoln Property Company Commercial, Inc. (“LPC
Commercial”) and Lincoln Property Company (“LPC
Company”). Plaintiffs, former employees of Defendant
LPC Commercial, allege that they were forced to resign due to
national origin and race-based discrimination and harassment.
On April 22, 2019 and April 29, 2019, Defendant LPC
Commercial issued subpoenas duces tecum to
Plaintiffs' respective healthcare providers. Now pending
are Plaintiffs' Motion for a Protective Order and
Plaintiffs' nearly identical Motion to Quash. In both
motions, Plaintiffs contest Defendant LPC Commercial's
subpoenas largely on the grounds that medical information is
privileged under Maryland and District of Columbia law. For
reasons explained below, the Court finds that Plaintiffs have
waived their physician-patient privilege over the information
at issue and, as such, this information is discoverable.
However, the Court will exercise its discretion to limit the
scope of discovery over Plaintiffs' medical information.
Therefore, the Court will deny Plaintiffs' Motion to
Quash under Federal Rules of Civil Procedure 45(a)(4) and
45(d)(3)(A)(iii). The Court will grant in part and deny in
part Plaintiffs' Motion for a Protective Order under
Federal Rules of Civil Procedure 26(c)(1)(A) and 26(c)(3).
allege both national origin and race-based discrimination and
retaliation under local and federal statutes. See
Compl. ¶¶ 16-25, ECF No. 1. Each Plaintiff seeks to
recover five million dollars in damages, including
compensatory damages for emotional distress. See id.
In their Complaint, Plaintiffs allege that they suffered from
stress as a result of the alleged actions by Defendants and
their agents. See Compl. ¶¶ 66-68
(alleging Plaintiff Burrows “suffered from physical
manifestations of stress, including, but not limited to,
difficulty sleeping and panic attacks”); id.
at 88 (alleging that “[o]n or about September 22, 2016,
Mr. Avila saw his doctor, who recommended that Mr. Avila not
return to work . . . due to work-related stress”). In
response to Defendant LPC Commercial's first set of
discovery requests, Plaintiffs provided documents, including
therapy notes from medical professionals and select medical
records, elaborating the bases for their compensatory
damages. See Pls.' Mot. Prot. Ord. at 4-6
(18-cv-2416), ECF No. 9; Defs.' Opp'n Mot. Prot. Ord.
at 4-7 (18-cv-2416), ECF No. 10.
to these documents, both Plaintiffs not only received medical
attention for stress related symptoms, but also required
leave from work as a result of their severe stress.
See Defs.' Opp'n Mot. Prot. Ord., Ex. 7 at
55; Defs.' Opp'n Mot. Prot. Ord., Ex. 6 at 105-07.
Plaintiffs suffered physical manifestations of their stress,
including panic attacks. See Defs.' Opp'n
Mot. Prot. Ord., Ex. 7 at 55; Defs.' Opp'n Mot. Prot.
Ord., Ex. 6 at 3, 105-06. Plaintiff Burrows suffered from
“mental-health related episodes” three times a
week for a duration of eight hours per episode, resulting in
his taking leave for over three months. Defs.' Opp'n
Mot. Prot. Ord., Ex. 7 at 55. Meanwhile, Plaintiff Avila was
diagnosed with anxiety and depression. Defs.' Opp'n
Mot. Prot. Ord., Ex. 6 at 105. In his Charge for
Discrimination filed with the U.S. Equal Employment
Opportunity Commission, Plaintiff Avila is described as
“so emotional[ly] debilitated that he sought
doctor's assistance and was prescribed medication.”
Id. at 3.
April 22, 2019, Defendants served a Notice of Subpoena on
Plaintiffs, informing Plaintiffs that Defendant LPC
Commercial had served subpoenas duces tecum for
records from four of Plaintiffs' medical
providers. Pls.' Mot. Prot. Ord. at 6. Defendant
served subpoenas (“the Subpoenas”) for medical
and personal records dating ten years back through the
present. Id. at 7. On May 10, 2019, Plaintiffs filed
a Motion for a Protective Order prohibiting Defendants from
taking or seeking discovery of Plaintiffs' mental health
or medical conditions. See Pls.' Mot. Prot. Ord.
On the same day, Plaintiffs filed an almost identical Motion
to Quash Defendant LPC Commercial's subpoenas duces
tecum in the United States District Court for the
Eastern District of Virginia. See Pls.' Mot. to
Quash (19-mc-117), ECF No. 5. Contemporaneously, Plaintiffs
also filed a Motion to Transfer the subpoena-related dispute
to this Court. See Pls.' Mot. to Transfer
(19-mc-117), ECF No. 2. On June 21, 2019, Plaintiffs'
Motion to Quash was transferred to this Court. See
Order Granting Mot. to Transfer (19-mc-117), ECF 10;
Pls.' Mot. to Quash (19-mc-117), ECF No. 1.
Waiver of Physician-Patient Privilege
Federal Rule of Civil Procedure 26(b), “[u]nless
otherwise limited by court order . . . [p]arties may obtain
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case.” Fed.R.Civ.P. 26(b). Plaintiffs move
to prevent disclosure of their medical information largely on
the grounds that this information is privileged. See
generally Pls.' Mot. Prot. Ord.; Pls.' Mot. to
Quash. Under both District of Columbia and Maryland law, the
contents of a patient's mental health and medical records
are privileged by statute. See D.C. Code §
14-307(a); Md. Code, Health-Gen. §§ 4-302- 4-307;
Md. Code, Cts. & Jud. Pro. § 9-109. However, 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.” Porter v. Pinkerton Gov't
Servs., Inc., 304 F.R.D. 24, 29 (D.D.C. 2014) (citing
Nelson v. United States, 649 A.2d 301, 308 (D.C.
1994)). A patient may therefore waive the physician-privilege
by relying on the provider's “diagnoses or
treatment in making or defending [his] case.”
Id. The threshold for waiver of the
physician-patient privilege afforded by Maryland law is
substantially similar, if not slightly lower. See Meyer
v. McDonnell, 392 A.2d 1129, 1135 (Md. Ct. Spec. App.
1978) (finding privilege waived where “[a]ppellant
claimed damages for his mental or emotional disorders in his
declaration, in testimony, and in his request for
instructions”); Butler-Tulio v. Scroggins, 774
A.2d 1209, 1219 (Md. Ct. Spec. App. 2001) (finding that
“[a]n express exception to the confidentiality
[requirement] . . . is when a patient puts his or her medical
condition at issue in a civil action”).
District of Columbia law, however, a patient has not waived
privilege by making allegations of mere “garden
variety” emotional distress, “of the kind an
ordinary person might experience following an episode of
discrimination.” Porter, 304 F.R.D. at 30
(citing St. John v. Napolitano, 274 F.R.D. 12, 19
(D.D.C. 2011)). Federal courts have considered the following
factors in assessing whether a plaintiff has made allegations
beyond mere “garden variety” emotional distress:
“(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
Motion to Quash
move to quash the Subpoenas under Rule 45(d)(3)(A)(iii) and
45(a)(4). Pls.' Mot. to Quash at 1. Under Rule
45(d)(3)(A)(iii), upon timely motion, a district court may
quash a subpoena which calls for disclosure of privileged
matter, provided no waiver applies. Under Rule 45(a)(4),
“[i]f [a] subpoena commands the production of
documents, electronically stored information, or other
tangible things . . . then before it is served on the person
to whom it is directed, a notice and copy of the subpoena
must be served on each party.” Fed.R.Civ.P. 45(a)(4). A
court may quash a subpoena for ...