Wilshire et al v. Love et al, No. 3:2014cv08374 - Document 58 (S.D.W. Va. 2015)
Court Description: MEMORANDUM OPINON AND ORDER granting 55 MOTION AND MEMORANDUM OF LAW IN SUPPORT by Yevette Wilshire, Jeremy Rinehart to File Exhibit Under Seal; granting 47 MOTION by Brian S. Love for Protective Order or, in the Alternative, MOTION to Quash Subp oenas for Education Records, denying as moot with respect to the defendant's pharmacy records; defendant is granted leave to re-file the motion should the need arise. Signed by Magistrate Judge Cheryl A. Eifert on 3/31/2015. (cc: attys) (mkw)
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Wilshire et al v. Love et al Doc. 58 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION YEVETTE W ILSH IRE, in d ivid u ally an d in h e r cap acity as ad m in is tratrix o f th e Es tate o f JEREMY RIN EH ART, D e ce as e d , Plain tiff, v. Cas e N o .: 3 :14 -cv-0 8 3 74 ( Co n s o lid ate d w ith 2 :12 -cv-0 0 6 2 2 ) BRIAN S. LOVE, M.D ., an d U N ITED STATES OF AMERICA, D e fe n d an ts . MEMORAN D U M OPIN ION AN D ORD ER Pending before the Court is the Motion for Protective Order or, in the Alternative, Motion to Quash Subpoenas for Education and Pharm acy Records filed by Brian S. Love, M.D. (ECF No. 47). Defendant Love filed a m em orandum in support of the m otion, (ECF No. 48), and Plaintiff filed a responsive brief in opposition. (ECF No. 54). Plaintiff also filed a Motion and Mem orandum of Law in Support of Motion to File Exhibit Under Seal, (ECF No. 55), which the Court GRAN TS for the reasons set forth in the m otion. The defendant has now filed a reply m em orandum . (ECF No. 57). The positions of the parties are clear; thus, the undersigned does not find oral argum ent necessary prior to ruling. For the reasons that follow, the Court GRAN TS the defendant’s Motion for a Protective Order and to quash the subpoena for education records. With respect to the 1 Dockets.Justia.com defendant’s pharm acy records, in view of the plaintiff’s representation that she does not intend to seek the defendant’s pharm acy records at this tim e, that portion of the m otion is D EN IED as m oot. (See ECF No. 54 at 1). However, defendant is granted leave to refile the m otion should the need arise. I. Re le van t Facts In this m edical m alpractice action, Plaintiff Yevette Wilshire (“Wilshire”) com plains about care rendered to her son, J erem y Rinehart, in the Em ergency Departm ent at Plateau Medical Center on August 22, 20 0 9. In regard to Defendant Brian S. Love, M.D. (“Love”), Wilshire alleges that Love deviated from accepted standards of care when he failed to properly treat her son’s acute cocaine intoxication and prem aturely discharged him from the hospital, allowing him to suffer a cardiac arrest that led to his death four days later. In the course of discovery, Wilshire served interrogatories upon Love asking, in relevant part, for his detailed educational history, including the places where he had been educated, the degrees he had obtained, and the dates on which he had obtained the degrees. In response, Love provided a curriculum vitae. (ECF No. 54-3). The curriculum vitae indicates that Love attended Marshall University School of Medicine from August 1993 through May 20 0 3. (Id. at 1). It next reflects that Love com pleted a one-year internship at West Virginia University Hospital from J uly 20 0 4 through J uly 20 0 5. (Id.). Between these two entries, the curriculum vitae states: “Tim e Gap due to Motor Vehicle Accident.” (Id.). Apparently because of its location on the curriculum vitae, Wilshire interpreted this phrase as Love’s explanation for why he spent ten years in m edical school, com pleting a program that norm ally takes four years to finish. (ECF No. 54 at 3). Wilshire deposed Love after receiving the curriculum vitae, 2 but Wilshire did not ask any questions regarding Love’s ten-year stint in m edical school, or the im plications of the phrase “Tim e Gap due to Motor Vehicle Accident.” (See ECF No. 57 at 3, 57-1). Wilshire recently notified Love that she intended to serve a subpoena upon the Dean of the Marshall University School of Medicine to produce Love’s education records from that institution. Love im m ediately objected to the subpoena on the basis that his m edical school records were irrelevant to the claim s and defenses in the instant action and were protected from discovery by the Fam ily Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g. The parties m et and conferred, but were unable to resolve their differences. Accordingly, Wilshire served the subpoena, and Love filed the Motion for Protective Order and to Quash. Since that tim e, the parties have conferred again, and Wilshire is willing to lim it the scope of the subpoena “to inform ation and records which are germ ane to the reasons at [sic] to why it took Love ten (10 ) years to com plete his m edical education.” (ECF No. 54 at 2). II. Po s itio n s o f th e Partie s Wilshire claim s that Love’s m edical school records are relevant for two essential reasons. First, they are evidence of Love’s credentials. (ECF No. 54 at 4). According to Wilshire, while m edical school records are not im portant in every m edical negligence case, in this case they are significant because of the extraordinary am ount of tim e it took Love to finish a four-year curriculum . Wilshire adds that she should be perm itted to discover the reason for the lengthy delay not only because the quality of Love’s care is at issue, but also because Love intends to give “expert opinions” in this case. Second, Wilshire argues that the records are highly relevant to Love’s credibility. Wilshire indicates that she has good reason to believe that Love’s explanation for his 3 protracted education (i.e. a m otor vehicle accident) is a m isrepresentation of the facts. (Id. at 5). If Love falsified an answer to a discovery request, Wilshire m aintains that the jury has a right to know the circum stances; particularly, as there is already evidence in the record suggestive of Love’s lack of candor. Wilshire alleges that Love added selfserving late notes to J erem y Rinehart’s m edical chart after Love learned of Rinehart’s cardiac arrest. (Id. at 7). Wilshire points out that the credibility of a pivotal witness is always a m atter “open for discovery in m ost civil proceedings.” (Id. at 5) (citing Keeney v. Charnock, 20 0 6 U.S.Dist. LEXIS 17468, at 3 (S.D.W.Va. Apr 5. 20 0 6)). Conversely, Love bases his m otion to quash and for protective order on three grounds. First, he disagrees that his m edical school records are relevant, arguing that records reflecting his perform ance or level of success in school between 1993 and 20 0 3 are not likely to lead to adm issible evidence as to whether he m et the standard of care on August 22, 20 0 9. In Love’s view, the plaintiff has not made any showing to support her broad request for inform ation, nor has she articulated any rational argum ent for how evidence from the m edical school will m ake it m ore or less likely that Love appropriately treated J erem y Rinehart. (ECF No. 48 at 5-6). Second, Love takes issue with the factual predicate underlying Wilshire’s credibility argum ent. (ECF No. 57 at 3). Rather than providing an explanation for the ten years spent in m edical school, Love explains that the phrase “Tim e Gap due to Motor Vehicle Accident” relates to the one-year gap between his graduation from m edical school and the beginning of his internship. Indeed, when exam ining the curriculum vitae, the ten-year period Love spent at Marshall’s m edical school does appear as a tim e span, while the “gap” seem s to be the tim e between May 20 0 3 and J uly 20 0 4. (ECF No. 54-3 at 1). Furtherm ore, Love contends that there is no other basis in the record upon 4 which to question his credibility. (ECF No. 57 at 5). He addresses Wilshire’s allegations that he added late notes to the chart, acknowledging that he testified at his deposition that he m ay have late-charted. However, contrary to Wilshire’s attem pt to cast him in a negative light, Love argues that this testim ony actually dem onstrates his propensity for truthfulness. Finally, Love argues that education records are recognized as private under FERPA and, consequently, they should be protected from unnecessary disclosure. He cites to a series of cases holding that a party seeking to discover education records has a “significantly heavier burden” than exists with respect to discovery of other kinds of inform ation and m ust show that “its interest in obtaining the records outweighs the significant privacy interests of the students.” (ECF No. 48 at 6) (citing Alig-Mielcarek v. Jackson, 286 F.R.D. 521, 526 (N.D.Ga. 20 12)). III. Fe d e ral Ru le s 2 6 an d 4 5 Federal Rule of Civil Procedure 26(b)(1) provides that: Parties m ay obtain discovery regarding any m atter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, docum ents, or other tangible things and the identity and location of persons having knowledge of any discoverable m atter ... Relevant inform ation need not be adm issible at the trial if the discovery appears reasonably calculated to lead to the discovery of adm issible evidence. While the intended focus of discovery is the claim s and defenses involved in the action, depending upon the particular needs of the case, broader discovery is perm issible. Fed. R. Civ. P. 26(b)(1), advisory com m ittee notes (20 0 0 ). In m any cases, “the general subject m atter of the litigation governs the scope of relevant inform ation for discovery purposes,” Kidw iler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 199 (N.D.W.Va. 20 0 0 ) (internal citations om itted), and discovery seeking inform ation with which to 5 im peach the credibility of a witness is com m only allowed. Behler v. Hanlon, 199 F.R.D. 553, 555-56 (D.Md., 20 0 1). “Inform ation showing that a person having knowledge of discoverable facts m ay not be worthy of belief is always relevant to the subject m atter of the action.” 8 Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure, § 20 15 (3d ed.20 10 ); see, also, Cobell v. Norton, 213 F.R.D. 16, 25 (D.D.C. 20 0 3) (holding that discovery on whether factual m isrepresentations were m ade is directly relevant to witness credibility). The party resisting discovery, not the party seeking discovery, bears the burden of persuasion. See Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243– 44 (M.D.N.C. 20 10 )(citing W agner v. St. Paul Fire & Marine Ins. Co., 238 F.R.D. 418, 424– 25 (N.D.W.Va. 20 0 6)). Sim ply because inform ation is discoverable under Rule 26, however, “does not m ean that discovery m ust be had.” Schaaf v. Sm ithKline Beecham Corp., 233 F.R.D. 451, 453 (E.D.N.C. 20 0 5) (citing N icholas v. W y ndham Int'l, Inc., 373 F.3d 537, 543 (4th Cir. 20 0 4)). For good cause shown under Rule 26(c), the court m ay restrict or prohibit discovery that seeks relevant inform ation when necessary to protect a person or party from annoyance, em barrassm ent, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c). In addition, Rule 26(b)(2)(C) requires the court, on m otion or on its own, to lim it the frequency and extent of discovery, when (1) “the discovery sought is unreasonably cum ulative or duplicative;” (2) the discovery “can be obtained from som e other source that is m ore convenient, less burdensom e, or less expensive;” (3) “the party seeking the discovery has already had am ple opportunity to collect the requested inform ation by discovery in the action;” or (4) “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the am ount in controversy, the parties’ resources, the im portance of the issues at stake in the action, 6 and the im portance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). This rule “cautions that all perm issible discovery m ust be m easured against the yardstick of proportionality.” Ly nn v. Monarch Recovery Managem ent, Inc., 285 F.R.D. 350 , 355 (D. Md. 20 12) (quoting Victor Stanley , Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md. 20 10 )). To insure that discovery is sufficient, yet reasonable, district courts have “substantial latitude to fashion protective orders.” Seattle Tim es Co. v. Rhinehart, 467 U.S. 20 , 36, 10 4 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Federal Rule of Civil Procedure 45(d) sets forth the protections available to a person subject to or affected by a subpoena. In particular, Rule 45(d)(3) outlines when a court m ust quash or m odify a subpoena, when it m ay do so, and when the court m ay direct compliance under specified conditions. As a general rule, “only the party or person to whom the subpoena is directed has standing to m ove to quash or otherwise object to a subpoena.” Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 590 (D.Kan. 20 0 3) (citation om itted). However, an exception exists when the person objecting has a personal right or privilege in the inform ation sought by the requester. Singletary v. Sterling Transport Com pany , Inc., 289 F.R.D. 237, 239 (E.D.Va. 20 12). Although the subpoena in this case is directed to the Dean of the Marshall University School of Medicine, the Court finds as a prelim inary m atter that Love has the requisite standing to m ove for its quashal. Clearly, Love has a personal right in the confidential inform ation contained in his education records, and thus a corresponding right to m ove to quash a subpoena duces tecum seeking those records. In the context of discovery, “Rule 45 adopts the standards codified in Rule 26 which allows for the discovery of any m atter ‘not privileged, that is relevant to the claim or defense of any party’ when the discovery request ‘appears reasonably calculated to 7 lead to the discovery of adm issible evidence.’” Schaaf v. Sm ithKline Beecham Corp., 233 F.R.D. 451, 453 (E.D.N.C. 20 0 5). Thus, the sam e lim itations to discovery requests found in Rule 26 should be applied to a subpoena served pursuant to Rule 45. See, e.g., HDSherer LLC v. Natural Molecular Testing Corp, 292 F.R.D. 30 5, 30 8 (D.S.C. 20 13) (“Rule 45 does not list irrelevance or overbreadth as reasons for quashing a subpoena. However, the scope of discovery allowed under a subpoena is the sam e as the scope of discovery allowed under Rule 26.”) (citing Cook v. How ard, 484 Fed.Appx. 80 5, 812 (4th Cir. Aug. 24, 20 12) (“Although Rule 45(c) sets forth additional grounds on which a subpoena against a third party m ay be quashed[,] ... those factors are co-extensive with the general rules governing all discovery that are set forth in Rule 26.”)). Accordingly, in this case, the Court shall consider Love’s m otion to quash under the standards set forth in Federal Rule of Civil Procedure 26 and m ay fashion a protective order quashing or m odifying the subpoena to the extent that it seeks discovery which is irrelevant, overly broad, annoying, em barrassing, oppressive, unduly burdensom e or expensive, unreasonably cum ulative, or duplicative. IV. D is cu s s io n Wilshire argues that Love’s education inform ation is neither privileged, nor entitled to special treatm ent. Relying on the decision in Maggard v. Essar Global Ltd., Wilshire disagrees that the burden is on her to establish a greater need for Love’s records than would norm ally be required. She asserts that, like any other case, once she dem onstrates the relevancy of the inform ation she seeks, the burden shifts to Love to show cause why discovery of that inform ation should be lim ited or prohibited. Maggard, No. 2:12cv0 0 0 31, 20 13 WL 615840 3, at *7 (W.D.Va. Nov. 7, 20 13). Wilshire m aintains that Love cannot m eet this burden because the issues of com petence and 8 credibility are extremely relevant. In addition, precautions can be taken to lim it or prevent re-disclosure of Love’s m edical school records without denying their legitim ate use in this case. The undersigned does not entirely agree. Through FERPA, Congress explicitly recognized a student’s privacy right in the inform ation contained in his or her education records and clearly intended for those records to be treated with special care. United States v. Miam i University , 91 F.Supp.2d 1132, 1159 (S.D.Ohio 20 0 0 ). While that privacy right m ay not necessarily translate into a heavier burden on a civil litigant to establish a special need for education records before they can be discovered, the privacy right certainly is an im portant factor to consider in assessing good cause under Rule 26(c) and in conducting a proportionality analysis under Rule 26(b)(2)(C). Looking first at Wilshire’s contention that she needs the records to investigate Love’s credentials, the Court finds this position unpersuasive. As Love em phasizes, Wilshire spent an entire day deposing Love, yet m ade no effort to explore the reasons why it took him so long to com plete m edical school. (See ECF No. 57-1). Wilshire asked m any other questions during the deposition pertaining to Love’s qualifications, experience, and training, but apparently did not find the ten-year stretch in m edical school to be particularly im portant. Under the proportionality analysis, Wilshire has already had am ple opportunity to obtain a thorough explanation of the circum stances surrounding Love’s m edical school experience from Love, who is undoubtedly the best, least expensive, and m ost convenient source of inform ation on the subject. Asking Love the pertinent questions likely would have obviated the need to invade the privacy of his education records. Furtherm ore, the burden of this discovery outweighs the expected benefit. On the burden side, there is the invasion of Love’s privacy, the expense of the 9 deposition, the expense and inconvenience to the m edical school and its Dean, and the anticipated tim e and expense of m otions that are to likely follow disclosure of the records. On the flipside, Wilshire m ay confirm that Love was not a particularly brilliant or am bitious m edical student, which is, at very best, m arginally relevant to the case and likely m ore prejudicial than probative of the central issues. In any event, that conclusion could be inferred solely from the length of tim e it took Love, when com pared to his peers, to finish m edical school. Moreover, even if Love was a poor m edical student, he com pleted an internship and residency thereafter, and was a licensed and practicing Em ergency Departm ent physician six year later when the alleged m alpractice occurred.1 Wilshire’s second argum ent, that the records are central to the question of Love’s credibility, is equally faulty. Wilshire believes that the records will provide a basis for im peachm ent by dem onstrating that Love was untruthful when he said that a m otor vehicle accident delayed his com pletion of m edical school. The problem , however, is that Love apparently never m ade that statem ent. Instead, the foundation for im peachm ent is based upon a m isinterpretation of Love’s curriculum vitae. Again, this issue could have been clarified during Love’s deposition, which would have been m ore convenient, less burdensom e, and less expensive than collecting his education records, and, as previously stated, Wilshire had am ple opportunity to obtain this inform ation. Finally, even if Wilshire could dem onstrate a m ore pressing need for the records than she has shown, the prospect certainly exists that there are no records available at Marshall University that would adequately convey all relevant facts regarding why Love took ten years to finish m edical school. In that case, the records could actually serve to 1 Although Wilshire argues that Love is an expert, it appears from what was presented to the undersigned that Love’s expert testim ony is lim ited to rendering an opinion that he feels he m et the standard of care and did not injure the plaintiff’s decedent; not that he has special expertise, training, or credentials in any particular aspect of the case. 10 com plicate and obscure, rather than sim plify and illum inate, the issue. At this point in the litigation, when discovery is closed and dispositive m otions are due, it is too late in the process to open matters that should have been resolved m onths, even years, ago.2 Moreover, the records potentially could contain highly personal, highly sensitive, or em barrassing inform ation that would never have been requested and disclosed if Wilshire had explored the topic at deposition or through other, less intrusive m ethods of discovery. V. Co n clu s io n Wherefore, the Court finds good cause to GRAN T the Motion for Protective Order or, in the Alternative, Motion to Quash Subpoenas for Education Records filed by Brian S. Love, M.D. (ECF No. 47). The Clerk is instructed to provide a copy of this Order to counsel of record. EN TERED : March 31, 20 15 2 While the instant action was rem oved to this Court in 20 14, the m edical negligence action against Love was instituted in 20 11. Love served Wilshire with the curriculum vitae on February 8, 20 12, and Love’s deposition was taken in Decem ber 20 12. It appears that the first time Wilshire showed an interest in Love’s education records was February 12, 20 15. 11
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