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considering untimely motion to quash because movant was "entitled to protection from discovery of his confidential health and disciplinary records"
Summary of this case from In re DMCA Section 512h Subpoena to Youtube Google, Inc.Opinion
No. 96 Civ. 3393 (RPP).
December 13, 2000.
Counsel for Plaintiff Olszewski: By: David N. Mair, Esq. William H. Kaiser, Esq.
Counsel for Non-Party Samuel A. Abady: Simeon H. Baum, Esq.
Counsel for Defendant Bloomberg L.P.: By: Thomas H. Golden, Esq. Randa G. Soudah, Esq.
Counsel for Defendant Bryan Lewis: By: Franklin B. Velie, Esq. Mark Golden, Esq.
OPINION AND ORDER
By order to show cause, Petitioner Samuel A. Abady moves, pursuant to Rules 59 and 60(b)(1) of the Federal Rules of Civil Procedure ("FED. R. CIV. P.") to: (1) quash the deposition subpoena duces tecum dated July 25, 2000, served on him as Plaintiffs former counsel; and (2) stay the order of this Court of September 12, 2000, entered on his default, requiring him to produce records pertaining to his health care and other confidential matters as demanded in the July 25, 2000, subpoena.
BACKGROUND
In May 1996, Plaintiff Mary Ann Olszewski, represented by Abady, Luttati, Kaiser, Saurborn Mair, commenced a sexual harassment lawsuit against her former employer, Bloomberg L.P. and her former manager, Bryan Lewis. After the completion of discovery, by separate motions dated November 6, 1998, Defendants moved for summary judgment on all claims. Petitioner Abady, Plaintiffs attorney at the time, failed to file opposition papers to Defendants' summary judgment motions. The Court, by order dated December 10, 1998, advised Abady that despite Plaintiffs failure to submit opposition papers, such papers would be considered if they were received prior to the rendering of the Court's Opinion. After waiting almost four months, the Court granted the unopposed summary judgment motions and entered a default judgment against Plaintiff on March 31, 1999. See Olszewski v. Bloomberg, No. 96 Civ. 3393 (RPP), 1999 U.S. Dist. LEXIS 4047, (S.D.N.Y. March 31, 1999). Plaintiff appealed. On December 27, 1999, the Second Circuit affirmed the grant of default summary judgment to Defendants, stating that "[a]ppellant failed to file opposition papers to appellee's motions for summary judgment despite repeated orders to do so by the district court." Olszewski v. Bloomberg, No. 99-7573, 1999 U.S. App. LEXIS 34304, at *1-2 (2d Cir. Dec. 27, 1999).
Pursuant to Fed.R.Civ.P. 60(b)(6), Plaintiff moved to vacate the March 31, 1999 default judgment on the grounds that Mr. Abady, an able and experienced attorney, must have been suffering from a mental disorder. On July 13, 2000, the Court, relying on United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977), denied the motion without prejudice to Plaintiffs moving by July 31, 2000, with supporting affidavits for a hearing to establish that Mr. Abady was suffering from a mental disorder or some other exceptional circumstance during the period of his inexcusable neglect, and to establish that Plaintiff made diligent efforts to monitor the performance of his duties. See Olszewski v. Bloomberg, No. 96 Civ. 3393 (RPP), 2000 U.S. Dist. LEXIS 9739, at *2 (S.D.N.Y. July 13, 2000).
FED. R. Civ. P. 60(b)(6) allows the court to "relieve a party or a party's legal representative from a final judgment, order, or proceeding for . . . (6) any other reason justifying relief from the operation of judgment."
On July 25, 2000, Plaintiffs new counsel, David Mair, issued a subpoena duces tecum and ad testificandum to Mr. Abady dated July 25, 2000 seeking his medical, psychological, and disciplinary records. On August 3, 2000, the Court denied Plaintiffs request that the Court order Mr. Abady to comply with the subpoena and directed Plaintiff to proceed by making a motion to compel with proper notice to Mr. Abady. The Court extended Plaintiffs time to renew her motion to vacate until September 4, 2000. On August 18, 2000, Plaintiff moved to compel Abady's compliance with the July 25, 2000, subpoena and to produce the documents and appear for his deposition.
Mr. Mair and Mr. Abady were partners in the firm of Abady, Luttati, Kaiser, Saurborn Mair, prior to the dissolution of the firm.
The July 25, 2000 subpoena ordered Abady to submit to a deposition and produce the following documents:
1. All documents concerning the mental and physical health of Samuel A. Abady during 1998 and 1999, including, but not limited to:
(a) medical, psychiatric and/or therapy records of any treating physicians and/or mental health professionals;
(b) prescriptions and pharmacy records;
(c) prescription bottles and labels;
(d) insurance claim documentation for medical or mental health treatment and prescriptions
(e) checks, invoices and receipts evidencing or concerning medical, psychiatric and/or therapy treatment; and
(f) documents reflecting the identity of all medical, psychiatric and/or therapy health care providers that were consulted by and/or treated Samuel A. Abady.
2. All documents concerning any representations made at any time by Samuel A. Abady to any other person or entity relating to his mental and physical health during 1998 and 1999, including but not limited to:
(a) documents concerning any representations made in any proceedings by or before the Departmental Disciplinary Committees of the Appellate Divisions of the New York State Supreme Court;
(b) documents concerning any representations made in any proceedings by or before the disciplinary authorities of any United States District Court; and
(c) documents concerning any representations made in connection with a disciplinary proceeding before the Hon. Shira Sheindlin in the Unites States District Court for the Southern District of New York entitled Matter of Samuel Abady.
3. All documents concerning the reasons and/or explanations provided by Samuel
A. Abady to any court or tribunal, including but not limited to the Departmental Disciplinary Committees of the Appellate Divisions of the New York State Supreme Court, concerning any alleged default or failure by him and/or the Law Offices of Samuel A. Abady and Associates, P.C., or any predecessor or successor firms, to comply with a litigation deadline imposed by court order, rule or otherwise.
Abady did not file opposing papers to the motion. Consequently, on September 12, 2000, a default was entered against Abady, and he was ordered to produce the subpoenaed documents on September 25, 2000, and appear for deposition on September 27, 2000. On September 12, 2000, the Court granted Plaintiffs motion extending her time to renew her motion to vacate the default judgment entered against her to twenty-eight days after the Court issues a final ruling on the August 18, 2000 motion for discovery.
Upon application to the Court, the deposition was adjourned to October 2, 2000.
On Friday, September 29, 2000, Abady brought this motion to quash the July 25, 2000, subpoena on the grounds that his health and disciplinary records were protected by his privacy interests. Abady asserted that Plaintiff had instructed him not to proceed with her action during 1998 when the defendants' motion for summary judgment was pending. (See Declaration of Samuel A. Abady (hereinafter "Abady Decl."), 9/29/00 ¶ 3; see also Deposition of Samuel A. Abady 10/2/00, at 41:6.) Abady also asserted that his failure to timely file opposition papers to plaintiffs motion to compel compliance with the July 25, 2000, subpoena is excusable because, notwithstanding FED. R. Civ. P. 6(d) and S.D.N.Y. Civ. R. 6.1(a), he had not received a fixed return date from the Court and he had assumed the Court would notify him of the filing deadline. (See Abady Decl. ¶¶ 14-16.)
FED. R. Civ. P. 6(d) provides, in relevant part:
A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court.
S.D.N.Y. Civ. R. 6.1(a) provides:
On all motions and exceptions under Rules 26 through 37 inclusive and Rule 45(c)(3) of the Federal Rules of Civil Procedure, (1) the notice of motion, supporting affidavits, and memoranda of law shall be served by the moving party on all other parties that have appeared in the action, (2) any opposing affidavits and answering memoranda of law shall be served within four business days after service of the moving papers, and (3) any reply affidavits and reply memoranda of law shall be served within one business day after service of the answering papers.
On Monday, October 2, 2000, a hearing was held on Mr. Abady's order to show cause. At the hearing, the Court ordered Mr. Abady be deposed on October 2, 2000, as scheduled. (October 2, 2000, Transcript ("Tr.") at 33.) The Court further ordered additional briefing on the privacy issues raised by Mr. Abady in his memorandum dated September 29, 2000. (Id. at 32.) During the deposition held later that day, Mr. Abady, upon instruction of his counsel, did not answer any questions regarding his mental or physical health or disciplinary proceedings. Plaintiff filed a memorandum of law in opposition to Mr. Abady's motion on October 10, 2000, and Petitioner Abady filed a reply memorandum on October 19, 2000. Defendants Bloomberg L.P. and Bryan Lewis filed an affidavit on October 24, 2000.
DISCUSSION
Petitioner Abady asserts a privacy interest in keeping his physical and mental health records confidential. The courts have recognized a privacy interest in keeping one's medical and mental health records confidential. See Whalen v. Roe, 429 U.S. 589, 598 (1977). While the Constitution does not expressly mention a federal right to privacy, Justice Brandeis characterized "the right to be let alone" as "the right most valued by civilized men" in his dissent in Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). In Whalen, the Supreme Court recognized an individual's privacy interest in avoiding disclosure of personal matters, as well as a privacy interest in independence in making certain kinds of important decisions. See Whalen, 429 U.S. at 598 n. 23 (citing Roe v. Wade, 410 U.S. 113, 152-53 (1973)).
These important decisions include "matters relating to marriage, procreation, contraception, family relationships, and child rearing and education." Id. at 713 (citing Paul v. Davis 424 U.S. 693 (1976)).
New York law specifically provides for a physician-patient privilege of confidentiality. See N.Y. Civil Practice Law and Rules ("CPLR") § 4504(a). This protection extends also to the records of psychologists and social workers. See N.Y. CPLR §§ 4507, 4508. The right to waive confidentiality belongs to the patient. Wheeler v. Comm'r of Soc. Serv., 662 N.Y.S.2d 550, 553 (2d Dep't 1997) (finding that "it is for the patient and no one else to decide whether to waive confidentiality"). Abady has not waived the confidentiality of his medical records.
In cases in which a court has permitted discovery of medical records, it has usually done so only after finding that the societal interest in disclosure outweighs the individual's privacy interest on the specific facts of the case. See United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980). Here, no such societal interest has been advanced by Plaintiff.
Petitioner Abady has not put his mental health at issue by asserting it as a defense to his failure to file opposition papers to Defendants' motion for summary judgment. Instead, Abady asserts that Plaintiff instructed him not to oppose Defendants' motions for summary judgment. Here, Plaintiff is seeking to put Abady's mental health in issue in an effort to revive Plaintiffs case against Defendants. Thus Abady has not placed his health in issue or waived the confidentiality of his medical records.
Evidently to counter Plaintiffs claim of Abady's mental disability, Defendants have submitted examples of other cases Abady was working on at the time of Plaintiffs default to summary judgment. These documents, which cover the period from late 1998 to March 1999, indicate that Mr. Abady was engaged in a vigorous practice of law during the period prior to the March 31, 1999, default in Olszewski. Taking Mr. Abady's privacy interest into account along with the documentary evidence showing he continued actively to practice law at the time of Plaintiffs default, Mr. Abady will not be required to produce his medical and mental health records.
See Affidavit of Thomas H. Golden 10/23/00, Exhibits I, L, M, 0, R, 5, U, W and Y: Ivanovic v. Memorial Hosp. for Cancer and Allied Diseases, Index No. 106289/98, (N.Y.Sup.Ct.) (certificate of merit, filed Nov. 16, 1998); Joines v. City of New York, 98 Civ. 0916 (DAB), (S.D.N.Y.) (stipulation and order, dated Nov. 24, 1998); Vitale v. Gay Men's Health Crisis, 97 Civ. 7212 (DLC), (S.D.N.Y.) (amended complaint, dated Nov. 29, 1998); Basile v. Feder, 95 Civ. 5018 (SHS), (S.D.N.Y.) (stipulation, dated Dec. 10, 1998); Margo v. Weiss, 96 Civ. 3842 (MBM), (S.D.N.Y.) (memorandum of law, dated Jan. 5, 1999; hearing before Hon. Michael B. Mukasey, argued January 7, 1999); Kent v. Rothzeid Partners P.C., Index No. 99-101814, (N.Y.Sup.Ct.) (verified complaint, dated Jan. 27, 1999; summons, dated Jan. 28, 1999); Byrne v. Pirro, Index. No. 3533-99, (N.Y.Sup.Ct.) (Article 78 Petition, dated March 9, 1999; motion in opposition, dated March 30, 1999).
Plaintiff in her subpoena also requests documents in Mr. Abady's possession relating to New York Supreme Court, Appellate Division, First Department disciplinary proceedings. In an Order dated July 20, 2000, this Court rejected Plaintiffs letter request for discovery of disciplinary proceedings pending against Mr. Abady as inconsistent with NEW YORK JUDICIARY LAW § 90(10), which provides in relevant part:
Any statute or rule to the contrary notwithstanding, all papers, records and documents upon the application or examination of any person for admission as an attorney and counselor at law and upon any complaint, inquiry, investigation or proceeding relating to the conduct or discipline of an attorney or attorneys, shall be sealed and be deemed private and confidential.
N.Y. JUD. LAW § 90(10) (Lexis 1999).
Plaintiff now seeks to bypass this provision by asserting that Abady's disciplinary records are discoverable because Plaintiff seeks them directly from Abady rather than from the First Department Disciplinary Committee. Plaintiff contends these documents may reveal whether in that proceeding Abady asserted his mental or physical health as a reason for default in other cases. However, Abady has not waived the right to confidentiality of those disciplinary records under New York Judiciary Law. Accordingly, Mr. Abady will not be required to produce against his will his copy of proceedings before the First Department Disciplinary Committee or of the proceedings before the Committee on Grievances of this Court chaired by the Honorable Shira A. Scheindlin.
Petitioner Abady brought this motion pursuant to FED. R. Civ. P. 60(b)(1), claiming that he is entitled to be heard in opposition to Plaintiffs motion to compel despite his default. Under FED. R. Civ. P. 60(b)(1), "[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect." However, Plaintiff moved to compel Abady's compliance with the July 25, 2000, subpoena pursuant to FED. R. Civ. P. 45. Thus, even though Petitioner Abady brought this motion under Rule 60, the motion is more properly considered under Rule 45(c)(3)(A), which provides that "[o]n timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it . . . (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies." FED. R. Civ. P. 45(c)(3)(A)(iii). The decision of whether to quash or modify a subpoena is within the district court's discretion. Tiberi v. Cigna Ins. Co., 40 F.3d 110, 112 (5th Cir. 1994); see also Sur. Ass'n of Am. v. Republic Ins. Co., 388 F.2d 412, 416 (2d Cir. 1967) (finding that a delay until the deposition in objecting to a subpoena duces tecum was understandable under the circumstances of the case). Although Abady's motion is untimely, given the Court's finding that Petitioner Abady is entitled to protection from discovery of his confidential health and disciplinary records and since it is within the Court's discretion, Abady's motion to quash the July 25, 2000, subpoena is granted.
CONCLUSION
For the foregoing reasons, Petitioner Abady's motion to quash the July 25, 2000, subpoena duces tecum is granted and this Court's Order of September 12, 2000, entered upon Petitioner Abady's default, requiring him to produce records pertaining to his health care and other confidential matters as demanded in the July 25, 2000, subpoena, is vacated.
IT IS SO ORDERED.