The opinion of the court was delivered by: Magistrate Judge Carlson
Now pending before the Court in the above-captioned action is Plaintiff's motion to compel Defendants to produce a report, including notes and test results, from the medical professional who conducted an independent psychological examination of Plaintiff pursuant to Rule 35 of the Federal Rules of Civil Procedure. (Doc. 115.) Defendants have refused to produce the requested materials, arguing variously that: Plaintiff's request is untimely because it was made outside of the discovery period; the psychological evaluation was not performed pursuant to Court order, and therefore Rule 35 does not apply; Rule 26(b)(4)(D) of the Federal Rules of Civil Procedure operates to protect the materials from disclosure; and that regardless of whether the examination was conducted pursuant to Rule 35, the examining physician did not prepare a final report, and, therefore, there is no report is available to be produced.
Upon consideration, we find Defendants' arguments unpersuasive. As an initial matter, we discount Defendants' contention that Plaintiff's discovery request is untimely for having been made outside of the discovery period. We reject this argument for the simple reason that the independent examination was not even completed until after the discovery period had concluded. Furthermore, we find that Defendants err with respect to their assertion that the independent psychological examination was not conducted pursuant to a Court order, as the record in this case contains an order from January 7, 2011, compelling Plaintiff to submit to such follow-up tests so that the expert could complete his examination. (Doc. 73.)
However, and more substantively, even if the examination had been conducted purely pursuant to an agreement of the parties, Rule 35(b) expressly authorizes a voluntarily examined party to obtain a copy of a report from the examining expert. See Fed. R. Civ. P. 35(b)(6). Because Rule 35(b) operates as an exception to Rule 26(b)(4)(D)'s general prohibition against discovery of facts known or opinions held by an expert who has been retained to assist counsel and who is not expected to be called as a witness at trial, we also reject Defendants' assertion that Rule 26(b)(4)(D) somehow precludes the discovery Plaintiff seeks in this case. Finally, although we acknowledge the fact that Defendants' expert apparently did not prepare a "final" report following his examination of Plaintiff, Defendants have represented that Dr. Buzogany has prepared what they refer to as a "draft" report. (Doc. 122, Ex. O.) Because we find that Plaintiff's discovery request is governed by Rule 35(b), and because Defendants have represented that Dr. Buzogany has prepared and provided to Defendants a "draft" report following his examination of E.N. over multiple days, we will grant Plaintiff's motion to compel, and we will direct Defendants to cause the independent examiner to furnish his "draft" report to Plaintiff. Additionally, to the extent that Dr. Buzogany amends his "draft" report, or prepares what Defendants deem to be a "final" report, we will require that such amended or finalized report be produced to Plaintiff without delay.*fn1
The Plaintiff in this case, E.N., was a student at Susquehanna Township High School from 2004 through 2008. E.N. contends that during the spring of 2006, while she was taking driving lessons with James Frank, the school district's driver- education instructor, Mr. Frank harassed and sexually assaulted her. E.N. has sued the school district and a number of individuals, including James Frank, for violations of her constitutional rights and her rights under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. Plaintiff has also brought claims for alleged violations of Pennsylvania state law for intentional infliction of emotional distress and for assault and battery, and for alleged violations of the Pennsylvania Constitution.
On or about January 5, 2011, pursuant to an agreement of the parties, Plaintiff was subjected to an independent medical examination by Dr. Joseph A. Buzogany, M.D., the Director of Wellspan Behavioral Health Forensic Services Program. Because Dr. Buzogany indicated a need to subject Plaintiff to a number of additional tests as part of his examination, on January 7, 2011, the District Court entered an order that, inter alia, directed Plaintiff to "make herself available for the conclusion of her independent psychological examination, to be scheduled at her convenience." (Doc. 73.) Following entry of this order, Plaintiff appeared for additional psychological testing on January 17, 2011, and again on April 12, 2011. (Doc. 122, Ex. J.) On that day, Plaintiff's counsel formally requested that Defendants preserve all material relating to Dr. Buzogany's examination. (Doc. 122, Ex. K.) In accordance with a case management order in this case, Defendants were to produce expert reports, if any, by May 6, 2011. (Doc. 82.) Defendants did not produce an expert report from Dr. Buzogany by this day, and on May 9, 2011, Defendants advised Plaintiff that no report or expert testimony would be forthcoming.
On May 10, 2011, Plaintiff's counsel acknowledged that Defendants would not be producing expert reports, but at the same time requested the notes, tests, and any reports prepared by Dr. Buzogany following his examination of E.N. (Doc. 122, Ex. L.) On May 11, 2011, Defendants' counsel responded by observing that the discovery period had already closed, and asserting that the discovery of such information was not authorized under Rule 35 of the Federal Rules of Civil Procedure. (Doc. 122, Ex. M.) On May 17, 2011, Plaintiff's counsel requested a telephone conference with the Court to resolve a dispute that had arisen with respect to Plaintiff's request for Dr. Buzogany's notes, report, and testing results. (Doc. 122, Ex. N.) According to Defendants' counsel, Dr. Buzogany has not produced a "final" report, although he has prepared what they characterize as a "draft" report. (Doc. 122, Ex. O.)
Following a telephone conference, the District Court referred the matter to the undersigned for resolution. This Court held a telephone conference with the parties on June 1, 2011, after which the Court directed the parties to submit briefs outlining their competing views with respect to the requested discovery. (Doc. 114.) On June 3, 2011, Plaintiff filed a motion seeking to compel Defendants to produce Dr. Buzogany's reports, notes, and testing results, together with a brief in support of the motion. (Docs. 115, 116.) Defendants filed a brief in opposition to the motion on June 20, 2011. (Doc. 122.) Plaintiff replied on June 24, 2011. (Doc. 123.)
Plaintiff has requested that the Court compel Defendants to produce to her a copy of Dr. Buzogany's report, together with any notes and testing results obtained in connection with her independent psychological examination. As support for this request, Plaintiff asserts that she has an absolute right to these materials under Rule 35(b)(1), which provides, in relevant party, that "[t]he party who moved for the [mental or physical] examination must, on request, deliver to the requester a copy of the examiner's report, together with like reports of all earlier examinations of the same condition." Fed. R. Civ. P. 35(b)(1). In response to Plaintiff's request for Dr. Buzogany's report, Defendants argue that ...