The opinion of the court was delivered by: CINDRICH
In this employment discrimination case, defendants and a potential witness have moved to quash a subpoena served on the witness. The witness is being referred to as John Doe to protect his confidentiality. Plaintiff ("Carr") believes Doe to have a history of substance abuse. Carr seeks detailed information about Doe's substance abuse and his treatment by defendants because Carr claims his own alcohol problem was considered less favorably than other similarly situated employees' because of his age and race. Doe and defendants ("movants") assert that Doe's deposition cannot be taken to obtain this information because doing so would reveal privileged information about him.
Movants only meritorious argument for restricting the typically expansive scope of discovery and quashing the subpoena is based on a privilege created by federal statute. Title 42 U.S.C. § 290dd-2(a)
Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall . . . be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.
In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure.
A court order is contemplated only under narrow circumstances, however. To guide application of the statute, subsection 290dd-2(g) directs the Secretary of Health and Human Services to
prescribe regulations to carry out the purposes of this section. Such regulations may contain such definitions, and may provide for such safeguards and procedures, including procedures and criteria for the issuance and scope of orders under subsection (b)(2)(C) of this section, as in the judgment of the Secretary are necessary or proper to effectuate the purposes of this section, to prevent circumvention or evasion thereof, or to facilitate compliance therewith.
The Secretary has promulgated such regulations. 42 C.F.R. § 2.1-2.67 (1995). They state, among other things, that
the patient records to which these regulations apply may be disclosed or used only as permitted by these regulations and may not otherwise be disclosed or used in any civil, criminal, administrative, or legislative proceedings conducted by any Federal, State, or local authority.
42 C.F.R. § 2.13(a). The regulations go on to provide that "[a] court order under these regulations may authorize disclosure of confidential communications made by the patient to a program in the course of diagnosis, treatment, or referral for treatment only if" one of three conditions is met: (1) a threat to life or limb, or of child abuse; (2) prosecution of "an extremely serious crime" such as homicide, rape, or assault; or (3) litigation "in which the patient offers testimony or other evidence pertaining to the content of the confidential communications." Id. § 2.63(a)(1), (2), (3) (emphasis added). Finally and importantly, the regulations define "records" as "any information, whether recorded or not, relating to a patient received or acquired by a federally assisted alcohol or drug program."
Id. § 2.12. Anyone who violates the statute or corresponding regulations is subject to the criminal penalty of a fine. 42 U.S.C. § 290dd-2(f); 42 C.F.R. § 2.4. In sum, the sweep of the statute, the broad discretion delegated to the Secretary of Health and Human Services, and the provision for penalties make unmistakable Congress's intent to vigorously protect the range of records about substance abuse. Whyte v. Connecticut Mutual Life Insurance Co., 818 F.2d 1005, 1009 (1st Cir. 1987) ("Congress recognized that absolute confidentiality is an indispensable prerequisite to successful alcoholism research," and "is necessary to insure successful alcoholism treatment.").
That being established, the motion to quash requires us to lay out the scope of the statute fairly precisely. The meaning of "record" is the fulcrum of this dispute. The statute throughout speaks of the confidentiality of "records." Section 290dd-2(a), (b)(1), (b)(2), (c), (d), and (e). One of the dictionary definitions of record, and we believe the commonly understood meaning, is "something that recalls or relates past events." Webster's Ninth New Collegiate Dictionary 984 (1990) (emphasis added). The question thus raised is whether the statute and the regulations encompass a deposition, where, assuming for the sake of argument that no documents are at issue, oral testimony is sought from the subject himself. Are questions put directly to Doe about the facts of his substance abuse, and the bare facts of the manner in which defendants dealt with it, covered by section 290dd-2? There is no authority on this issue from the United States Court of Appeals for the Third Circuit, and very little relevant treatment even in the district courts, which might offer guidance.
To determine the application of the privilege to Doe's deposition, we look first, of course, to the statute itself. Licata v. U.S. Postal Service, 33 F.3d 259, 261 (3d Cir. 1994). In addition to providing for the confidentiality of "records," 290dd-2(a), in the subsection on permissible disclosures Congress refers to "the content of any record," 290dd-2(b)(1), and "the content of such record," 290dd-2(b)(2). Thus, Congress has expressly safeguarded not just records about substance abuse, but the contents ...