(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 of records about substance abuse. This is a critical distinction in the case at hand where a party is seeking oral testimony.
The Secretary, as stated above, defines "record" as "any information . . . relating to a patient received or acquired by a federally assisted alcohol or drug program." 42 C.F.R. § 2.11. In describing what information a court may authorize disclosed, the regulations refer to "confidential communications made by a patient to a program in the course of diagnosis, treatment, or referral for treatment." Id. § 2.63(a). This latter characterization is notably narrower than any other description of protected information found in the statute or regulations. It protects only confidential information, travelling only in one direction, from patient to program, and only for diagnosis, treatment, or referral. The broadest characterization of information protected by the statute appears to be the term "content of any record" found in subsection 290dd-2(b).
With these conclusions in mind, we make the following rulings:
1. Pursuant to 42 U.S.C. § 290dd-2, Carr is prohibited from discovering any information about any person that is contained in any record held by defendants' substance abuse treatment program. Carr's circumstances do not fit any of the exceptions under which disclosure of such information is authorized. 42 U.S.C. § 290dd-2(b); 42 C.F.R. § 2.63.
2. Carr may take Doe's deposition under the following conditions. Pursuant to Federal Rule of Civil Procedure 26(c), the court will also consider the Joint Motion to Quash Subpoena as a motion for protective order
, and direct that under no circumstances shall Doe's identity be revealed during the deposition or in any court filing.
This is done to prevent embarrassment to Doe not pursuant to, but rather in the spirit of, the statute. In this vein we note that Carr's counsel has at times not exercised the requisite care in protecting confidential information in this case, at one point attaching a letter containing Doe's name to a publicly accessible pleading. Carr claims that Doe's identity and his alleged drug problem are commonly known by his fellow employees. Nonetheless, the parties and counsel are advised that the court takes seriously the confidentiality protections afforded by Congress under the statute and by the court under its protective orders, and will act accordingly if notified about further transgressions. Counsel should be mindful that what is relevant is Doe's condition, his similarity to plaintiff, and the treatment received by Doe at the hands of defendant, as related to his employment. For these purposes his identity is of no consequence.
3. Doe may be questioned about historical facts that exist independently of records related to his substance abuse treatment or rehabilitation. In his response to the motion to quash Carr sets out some examples of the questions he intends to ask. We will rule on these, which should set the course for a minimally disrupted deposition.
1. Were you employed by defendants in their Dietary Department?
Permitted; seeks background information.