Lassley v. Secura Supreme Insurance Company et al, No. 2:2014cv01677 - Document 39 (D. Ariz. 2015)

Court Description: ORDER granting 26 Motion for Protective Order; denying 29 Motion to Compel. Signed by Judge John W Sedwick on 8/18/2015. Lassley shall file a motion for attorneys' fees within 14 days. It must be supported as required by the local rules. Secura shall respond within 14 days after the motion is filed. The response may contest the amount sought, but not Lassley's right to recover a reasonable amount. No reply may be filed unless requested by the court.(JWS)
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Lassley v. Secura Supreme Insurance Company et al Doc. 39 1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF ARIZONA 4 5 Brandon Lassley, Plaintiff, 6 7 8 vs. Secura Supreme Ins. Co., 9 Defendant. 10 11 ) ) ) ) ) ) ) ) ) ) 2:14-cv-1677 JWS ORDER AND OPINION [Re: Motions at docs. 26 & 29] I. MOTIONS PRESENTED 12 At docket 26 plaintiff Brandon Lassley (“Lassley”) moves for a protective order 13 14 providing that he need not produce an authorization allowing defendant Secura 15 Supreme Ins. Co. (“Secura”) to obtain Lassley’s drug treatment records. Secura’s 16 response at docket 29 includes a motion asking the court to order Lassley to provide 17 the requested medical records authorization, and also to order Lassley to produce 18 documents relating to Lassley’s contacts with the United States Navy. Lassley’s 19 20 21 combined reply in support of his motion and response to Secura’s motion is at docket 33. Secura replies in support of its motion at docket 35. Oral argument was 22 requested, but the motions are well briefed, and oral argument would not assist the 23 court. 24 25 II. BACKGROUND Lassley was a passenger in an automobile operated by his intoxicated friend 26 27 28 Cody Murphy. Murphy lost control of the vehicle. Lassley was injured in the ensuing crash. Lassley settled with Murphy for the limits of his insurance policy. In this lawsuit, 1 2 3 Lassley seeks additional compensation from Secura pursuant to the under-insured motorist coverage in the policy Secura issued to Lassley. Lassley seeks damages for breach of the insurance contract and bad faith in the adjustment of his claim. He seeks 4 5 compensatory and punitive damages. The auto accident occurred in Arizona, and 6 Lassley filed his lawsuit in Arizona state court. Secura removed the litigation to this 7 court relying on diversity of citizenship jurisdiction. 8 9 III. DISCUSSION 1. Drug Rehabilitation Records Are Privileged 10 11 12 Lassley has a history of drug abuse. He obtained substance abuse treatm ent on four occasions, two before the accident and two after the accident. Secura seeks an 13 authorization that would enable it to review Lassley’s substance abuse treatment 14 records. Lassley is not seeking to recover any damages from Secura that relate to his 15 substance abuse problems. 16 Lassley claims that the drug rehabilitation records are privileged. Under the 17 18 Federal Rules of Evidence, any health-care provider/patient privilege available to 19 Lassley derives from the law or Arizona.1 Lassley correctly points out that under 20 Arizona law, except as otherwise provided by law, a health care provider may not 21 22 23 24 25 26 27 28 1 Fed. R. Evid. 501’s state law proviso: “But in a civil case, state law governs privilege regarding a claim or defense for which state law applies the rule of decision.” As explained in the Advisory Committee Notes to Rule 501, the rationale underlying the proviso “is that federal law should not supersede that of the States in substantive areas such as privilege absent a compelling reason. The Committee believes that in civil actions in the federal courts where an element of a claim or defense is not grounded upon a federal question, there is no federal interest strong enough to justify departure from State policy.” Fed. R. Evid. 501, Advisory Committee Notes, H.R. Rep. No. 93–650. -2- 1 2 3 disclose anything in a patient’s medical records without the patient’s written consent.2 The records Secura seeks are subject to Arizona’s health care provider/patient privilege. 4 5 6 2. Protective Order For Drug Rehabilitation Records To obtain a protective order, Lassley must show “good cause” for sheltering the 7 drug treatment records from disclosure.3 The Arizona legislature has concluded that 8 the contents of health care records such as those Secura seeks are “privileged and 9 confidential.”4 That being so, Lassley has established the good cause required by 10 Rule 26(c) for a protective order. As elaborated below, this is evident from the 11 12 distinction drawn by Rule 26(b)(1) between privileged and non-privileged information. It 13 may be added that both parties look to inapposite case law . Both cite Phillips v. GM 14 Corp.5 That case arose in an entirely different context. The question in Phillips was 15 whether information already produced in the course of discovery could be shielded from 16 disclosure to the public. 17 18 Secura argues that the burden, nevertheless, remains on Lassley to show 19 “specific prejudice or harm that would result if no protective order is granted.”6 Secura 20 has it backwards. Under the Federal Rules of Civil Procedure, a party may obtain 21 discovery of material which is relevant to any claim or defense if the material sought is 22 23 24 25 2 A.R.S. § 12-2292. 3 Fed. R. Civ. P. 26(c). 4 A.R.S. § 12-2292 A. 26 5 27 6 28 307 F.3d 1206 (9th Cir. 2002). Doc. 29 at 2. -3- 1 “nonprivileged.”7 Where a privilege applies, the discovery may be had only upon a 2 showing of good cause.8 Lassley having established that the material sought is 3 privileged, the burden is on Secura to show good cause for its production. A protective 4 5 order is appropriate unless Secura is entitled to an order requiring production of the 6 information, despite its privileged status. 7 3. Request to Compel Production of Drug Rehabilitation Records 8 9 The privilege claimed by Lassley is not absolute. It is subject to both statutory and judicially created exceptions.9 One commonly recognized exception to the health 10 care provider/patient privilege arises when the patient has placed his condition at issue 11 12 13 14 15 16 17 18 19 in litigation. However, Lassley makes, and the court relies upon and will enforce, the following representation: Lassley has never asserted his drug treatment expenses form any portion of his claim—and his complaint certainly does not do so. In short, Lassley hasn’t ever, is not now, nor ever will assert that his drug-rehabilitation treatment was necessitated due to the accident, or that those ex penses should be considered as a portion of his breach-of-contract and bad-faith damages.10 The drug treatment records are subject to discovery in this lawsuit only if they have probative value relating to an issue before the court, or their production is reasonably 20 21 22 23 24 25 7 Fed. R. Civ. P. 26(b)(1). 8 Id. 26 9 27 10 28 Benton v. Superior Court, 897 P.2d 1352, 1354 (Ariz. Ct. App. 1994). Doc. 33 at 7 (emphasis in original). -4- 1 calculated to lead to the discovery of admissible evidence, and Secura can show “good 2 cause.”11 3 Secura first contends that the drug rehabilitation records are relevant to its 4 5 defense that Lassley was drunk when he accepted a ride from Murphy, because the 6 records would “probably” contain a recommendation to Lassley that he not consume 7 alcohol.12 Assuming that Lassley’s intoxication would provide a defense or establish 8 contributory fault, the relevant question is whether he was sober, not whether someone 9 told Lassley to stay sober. This contention lacks merit. 10 Secura offers additional reasons why the drug treatment records might be 11 12 discoverable. Secura contends that the drug rehabilitation records might show some 13 reason for the condition of Lassley’s knee other than the auto accident, they might 14 show Lassley said something in the course of the drug therapy that would show he was 15 drunk at the time he accepted the ride from someone he knew was intoxicated, they 16 might have an impact on Lassley’s damage claim by showing that he was not obtaining 17 18 19 appropriate care when he relapsed, and they might show something about falsehoods told by others regarding Lassley’s involvement in the accident. 13 The pivotal issue is 20 whether Secura’s speculation about what might be in the drug treatment records shows 21 that its request for production is reasonably calculated to lead to the discovery of 22 admissible evidence. 23 24 25 11 Fed. R. Civ. P. 26(b)(1). 26 12 27 13 28 Doc. 29 at 5. Id. at 5-6. -5- 1 2 3 Reason, of course, does not exist in a vacuum. Something is reasonably possible when there is some objective basis for believing it would be true. Here, it is known from Lassley’s deposition testimony that he had shoulder surgery prior to the 4 5 accident, took opiate pain relievers as a result, and began to abuse opiate pain 6 medications.14 It is also known that he was prescribed pain medications as a result of 7 the accident and went on to abuse the drugs again. Lassley’s testimony shows that he 8 sought drug treatment both before and after the accident, and that he sought it in 9 Phoenix, San Diego, and Denver over a period of time. There is nothing else to support 10 Secura’s speculation that the drug treatment records would lead to admissible evidence 11 12 13 relating to issues in the pending lawsuit. The burden is on Secura to show good cause for production of the drug 14 treatment records. Given what is known about Lassley’s drug treatment and the highly 15 speculative nature of the proposition that the records actually do contain or would lead 16 to discoverable information, the court concludes that Secura has not carried its burden. 17 18 19 20 Lassley will not be required to authorize disclosure of the drug treatment records. 4. Request to Compel Production of Navy Recruitment Records According to Secura, for a substantial period of time, Lassley was contending 21 that his damages included the loss of his career prospects in the United States Navy, 22 but Lassley abandoned that proposition when confronted with the fact that persons with 23 a history of drug abuse are not acceptable to the Navy.15 Whatever potential relevance 24 25 26 14 27 15 28 Deposition of Brandon Lassley, doc. 26-1 at 10-11. Doc. 36 at 9. -6- 1 2 3 the Navy recruitment records might have (Secura argues that they bear on Lassley’s credibility), the record reflects that, aside from an undated letter already produced, neither Lassley nor his mother possess any Navy recruitment records. The record also 4 5 discloses that Secura made no Rule 34 request for production of the Navy recruitment 6 records. The record further reflects that Secura has not provided a certificate showing 7 that counsel met and conferred regarding Secura’s motion to compel production of the 8 Navy recruitment records.16 9 Secura’s motion to compel production of the Navy recruitment records lacks 10 merit for several reasons. First, it is pointless, because Lassley has no such records. 11 12 Second, a request for production of documents and an inadequate response to that 13 request is a necessary predicate to a motion to compel.17 Finally, the local rules require 14 a certificate attesting to a personal consultation between counsel before a motion to 15 compel may be filed.18 16 5. Award of Attorneys’ Fees 17 18 19 20 Lassley asks the court to award him his attorneys’ fees. Lassley’s motion was brought pursuant to Rule 26(c). That rule contemplates the award of expenses pursuant to Rule 37(a)(5). 19 When the moving party obtains a protective order, 21 16 22 23 24 25 26 27 28 Although Secura’s certificate ambiguously states that its counsel “conferred or attempted to confer with” Lassley’s counsel, Doc. 29 at 11, Secura does not dispute Lassley’s contention that no personal consultation ever took place. 17 See Fed. R. Civ. P. 37(a)(3)(B)(iv). 18 LRCiv 7.2(j) (“No discovery motion will be considered or decided unless a statement of moving counsel is attached thereto certifying that after personal consultation and sincere efforts to do so, counsel have been unable to satisfactorily resolve the matter.”). 19 Fed. R. Civ. P. 26(c)(3). -7- 1 2 3 Rule 37(a)(5) requires an award of expenses, including reasonable attorneys’ fees.20 Lassley also asks for fees relating to Secura’s motion to compel. When such a motion fails, as it has here, the defending party is entitled to recover reasonable attorneys’ 4 5 fees.21 Secura will be required to pay Lassley his reasonable attorneys’ fees. III. CONCLUSION 6 7 For the reasons above: 8 (1) The motion at docket 26 is GRANTED as follows: Lassley shall not be 9 required to authorize the release of his drug treatment records; 10 11 12 (2) The motion at docket 29 is DENIED; and (3) Lassley shall file a motion for attorneys’ fees within 14 days. It must be 13 supported as required by the local rules. Secura shall respond within 14 days after the 14 motion is filed. The response may contest the amount sought, but not Lassley’s right to 15 16 recover a reasonable amount. No reply may be filed unless requested by the court. DATED this 18th day of August 2015. 17 18 /S/ JOHN W. SEDWICK SENIOR UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 20 27 21 28 Fed. R. Civ. P. 37(a)(5)(A). Fed. R. Civ. P. 37(a)(5)(B). -8-