The opinion of the court was delivered by: Chief Judge Kane
Before the Court is a motion for a protective order by non-party White Deer Run, Inc. ("White Deer"). (Doc. No. 26.) The motion is opposed by Defendants Infotech Solutions, Inc. and Leonard Tokar ("Defendants") and by Plaintiff. (Doc. Nos. 28, 30.) For the reasons explained below, the Court will grant White Deer's motion and quash Defendants' subpoena.
Plaintiff Kathryn Megonnell filed suit against Infotech Solutions, Inc., Pamela Hunter, and Leonard Tokar on December 28, 2007. Plaintiff claims that the Defendants violated the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., by interfering and retaliating against her attempt to take FMLA leave to address the involuntary discharge of her niece Kylee Johnson Davis ("K.D.") from White Deer, a drug and alcohol rehabilitation center. (Doc. No. 1.) Plaintiff alleges that she stood in loco parentis to her niece, who was suffering from a "serious health condition" within the meaning of the FMLA.
On September 8, 2008, Defendants served a subpoena on White Deer to produce K.D.'s rehabilitation records. (Doc. No. 21, Ex. A.) White Deer objected to the request on the basis that Pennsylvania law did not allow them to release any information "without a good cause court order." (Doc. No. 21, Ex. B.) On October 23, 2008, Defendants filed a motion to enforce the subpoena against White Deer and to require them to produce the requested documents. (Doc. No. 21.) On October 28, 2008, the Court issued an order requiring White Deer to produce any and all records associated with K.D.'s care or treatment. (Doc. No. 23.)
In response to the court order, White Deer has motioned for a protective order on the grounds that the production of the requested information potentially subjects White Deer to criminal and/or civil liability. (Doc. No. 27 at 2-3.)White Deer argues that, as a drug and rehabilitation center, and pursuant to federal law under the Public Health Service Act, 42 U.S.C. § 290dd-2, it cannot release patient records except as expressly authorized by federal regulations. See 42 C.F.R. § 2.13.
Both Defendants and Plaintiff have filed briefs in opposition to White Deer's motion for a protective order (Doc. Nos. 28, 30). Defendants argue that since the health and treatment of K.D. is directly at issue in the current litigation, White Deer is compelled to produce the documents so Defendants may review the seriousness of K.D.'s medical condition. (Doc. No. 28 at 2-3.) Defendants also argue that a failure to require production of documents relating to K.D.'s medical condition severely prejudices Defendants since they will be precluded from evaluating a prima facie element of Plaintiff's claim. (Doc. No. 28 at 10.) Plaintiff argues that good cause exists for the disclosure of K.D's treatment records, but emphasizes that the Court should apply appropriate safeguards for disclosure of the documents. (Doc. No. 30.)
"[D]iscovery disputes in federal courts are governed by federal law . . . ." Pearson v. Miller, 211 F.3d 57, 61 (3d Cir. 2000). The discovery rules regarding the production of documents are governed by Rules 34 and 45 of the Federal Rules of Civil Procedure. Rule 34(c) states that, "[a]s provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection." Fed. R. Civ. Pro. 34(c). Rule 45(c) outlines the protections that are given to non-parties against the liberal discovery disclosure requirements, and directs that an issuing court "must quash or modify a subpoena that . . . requires disclosure of privileged or other protected matter, if no exception or waiver applies[.]" Fed. R. Civ. Pro. 45(c)(3)(A)(iii).
The documents at issue in this case are treatment records that may be in the possession of White Deer as a result of any treatment K.D. incurred as a patient. Both parties agree that the documents that Defendants have requested are clearly relevant to the matter at hand. Yet, even if they are relevant, the Court must quash or modify the subpoena if it requires disclosure of information that is privileged or protected by law. See Pearson, 211 F.3d at 61 (noting whether evidence is discoverable turns on whether "federal law recognizes one or more applicable evidentiary privileges, or [whether] federal law otherwise provides for the protection of the information"). Therefore, the Court must determine: (1) whether the records held by White Deer are privileged or protected and (2) if they are protected, whether an exception or a waiver applies.
A. The Documents Requested are Protected by Federal Statute
No federal privilege has yet been recognized for a patient's drug and alcohol abuse records. Because White Deer does not assert that such a privilege exists, and because the Court finds that the records at issue are otherwise protected under federal law, the Court need not address further whether such a privilege should be created.
Under federal law, disclosure of medical records relating to the treatment of drug and alcohol abuse patients in federally funded treatment programs is governed by 42 U.S.C. § 290dd-2 ("Public Health Service Act"). 42 U.S.C. § 290dd-2(a) states in pertinent part:
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 ...