Khan et al v. Board Of Education Of The City Of Chicago et al

MOTION

N.D. Ill.June 28, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION SHAHEENA KHAN, ) ) Plaintiff, ) Case no. 1:16-cv-08668 ) v. ) Judge Manish S. Shah ) CHICAGO BOARD OF EDUCATION, ) and KAREN SAFFOLD, ) ) Defendants. ) CONSOLIDATED FOR DISCOVERY PURPOSES WITH: SHAHEENA KHAN, ) ) Plaintiff, ) Case no. 1:17-cv-09300 ) v. ) Judge Manish S. Shah ) BOARD OF EDUCATION OF THE ) CITY OF CHICAGO, ) ) Defendant. ) DEFENDANTS’ MOTION TO COMPEL PRODUCTION OF PLAINTIFF’S MENTAL HEALTH RECORDS OR, IN THE ALTERNATIVE, FOR AN IN CAMERA INSPECTION OF DOCUMENTS Defendants, Board of Education of the City of Chicago (“the Board”) and Karen Saffold (“Saffold”) (collectively, Defendants), through their counsel Susan Best, Elizabeth K. Barton, and Helena B. Wright, pursuant to Federal Rule of Civil Procedure 37, move this Honorable Court to compel Plaintiff to provide a full release for her mental health records, or in the alterative, for the in camera inspection of those records. In support, Defendants state as follows: 1. The claims in this case stem from the Plaintiff’s termination from the Board. Plaintiff claims that as a direct or proximate cause of the alleged unlawful employment practices, she has suffered “extreme emotional distress” (Pl.’s Fifth Am. Compl., ¶ 130, ECF No. 258) experienced “pain and Case: 1:16-cv-08668 Document #: 321 Filed: 06/28/19 Page 1 of 6 PageID #:5688 2 suffering” (Id. at ¶ 163; Pl.’s Am. Compl., ¶¶ 244, 287, 17 C 9300 ECF No. 27), and “suffered extreme mental anguish, outrage, severe anxiety about her future and ability to support herself and her family” (Id. at ¶¶ 309, 357). 2. In discovery, Plaintiff disclosed two medical treaters: Heather Heiman, M.D. and Karen Wertymer, LCSW. See ECF No. 318, p. 2.1 Based on the Plaintiff’s allegations and disclosures, the Defendants set about obtaining the relevant documentation relating to Plaintiff’s claim of psychological damages. 3. Despite putting her mental health directly at issue in this case, Plaintiff continues to place obstacles at every turn, attempting to prevent Defendants from obtaining the relevant information. 4. Initially, Plaintiff refused to sign an authorization under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) in order to release her medical records, forcing the Board to obtain a HIPAA Protective Order from the Court. See ECF No. 315, 318. 5. Then, Plaintiff moved to quash Defendants’ subpoenas to her medical providers, which defense counsel sent only after the Court entered the HIPAA Qualified Protective Order on June 3, 2019. ECF Nos. 317, 318. 6. On June 10, 2019, this Court denied Plaintiff’s motion, stating: “The time period requested is not overbroad and the existing confidentiality order is sufficient to protect plaintiff’s privacy. In camera review or pre-screening by plaintiff before disclosure to the defense is not necessary and would only add to the time and expense of discovery. Plaintiff has placed her medical condition at issue and the defense is permitted to obtain documents directly from third parties to explore plaintiff’s claim for damages. Defendants do not need to wait for plaintiff’s deposition before conducting discovery into plaintiff’s condition…Plaintiff’s deposition will be more efficient if informed by the records in advance…” ECF No. 320 (emphasis added). 1 Plaintiff has already identified these two treaters in the public record. See ECF No. 318, p. 2. Case: 1:16-cv-08668 Document #: 321 Filed: 06/28/19 Page 2 of 6 PageID #:5689 3 7. Accordingly, on June 11, 2019, Defendants issued two subpoenas to Plaintiff’s identified treaters, one of which was to Karen Wertymer, LCSW of Cathedral Counseling Center with a return date of June 24, 2019. See Subpoena, attached as “Exhibit 1.” 8. On June 21, 2019, counsel for Cathedral Counseling Center (“Cathedral”) contacted defense counsel and indicated that Cathedral would be unable to respond to the subpoena because pursuant to the Illinois Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/10, Cathedral required a specific court order or Plaintiff’s specific consent in order to provide a full release of Plaintiff’s records. However, as Cathedral’s counsel explained, Plaintiff refused to consent to disclosure of her records to the Board. See Email Correspondence, attached as “Exhibit 2.” 9. In an effort to avoid motion practice, defense counsel set up a conference call with Plaintiff’s counsel and Cathedral’s counsel. Id. At that time, Plaintiff’s counsel only agreed to sign a limited consent, which authorizes disclosure to Defendants only after an in camera review by this Court. Therefore, all parties eventually agreed that Cathedral’s counsel would prepare a limited consent, which Plaintiff ultimately signed. See Consent, attached as “Exhibit 3.” 10. Plaintiff’s counsel would not file a motion “to enforce the consent,” but stated he had no objection if the Defendants or Cathedral filed one. See Exhibit 2. This leaves Defendants without any other way to obtain the relevant records from Cathedral. 11. This Court previously ordered an “[i]n camera review or pre-screening by plaintiff before disclosure to the defense is not necessary and would only add to the time and expense of discovery.” ECF No. 320. However, once again, Plaintiff has forced Defendants to seek the appropriate relief from the Court to obtain records that she put at issue in this case. 12. At this point, Plaintiff has not complied with the Court’s June 10, 2019 order and has failed to permit discovery on relevant claims. Rule 37 states that if a party fails to obey an order to provide or permit discovery, the court may issue further just orders, including: “(i) directing that the matters Case: 1:16-cv-08668 Document #: 321 Filed: 06/28/19 Page 3 of 6 PageID #:5690 4 embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in party; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.” Fed. R. Civ. P. 37(b)(2)(A). 13. Therefore, Defendants request that this Court bar Plaintiff from introducing psychological damages in evidence and/or strike Plaintiff’s claim for psychological damages. Especially given the fact that Plaintiff’s counsel has repeatedly said the Defendants’ request for Plaintiff’s medical records are “a waste of everyone’s time and resources.” See Exhibit 2. If Plaintiff does not wish to put her mental health at issue and withdraws any request for emotional or compensatory damages, Defendants agree that requesting records relating to her mental health is not necessary. But as it stands, she has placed her mental health at issue, and, as the Court already ruled, Defendants are entitled to discovery on that issue. 14. Alternatively, Defendants respectfully request this Court either order Plaintiff to provide a consent to Cathedral for full release of her records, enter an order authorizing Cathedral to release all of Plaintiff’s records to defense counsel, or conduct an in camera review of Cathedral’s records to determine what records may be released to Defendants. Counsel for Cathedral stated the records were about 40 pages. Exhibit 2. 15. As this Court recognized, Plaintiff’s deposition will be more efficient if informed by her medical records in advance. Unfortunately, Defendants have been forced to cancel her July 8, 2019 deposition because of her continued efforts to delay Defendants from obtaining the relevant records. Case: 1:16-cv-08668 Document #: 321 Filed: 06/28/19 Page 4 of 6 PageID #:5691 5 WHEREFORE, Defendants ask this Court for the following relief: 1. Bar Plaintiff from introducing psychological damages in evidence; and/or 2. Strike Plaintiff’s claim for psychological damages; and/or 3. Order Plaintiff to provide a consent to Cathedral for full release of her records; and/or 4. Enter an order authorizing Cathedral to release all of Plaintiff’s records to defense counsel; and/or 5. Conduct an in camera review of Cathedral’s records to determine what records may be released to Defendants; and/or 6. Any other relief this Court deems just. Dated: June 28, 2019 Respectfully Submitted, DEFENDANTS BOARD OF EDUCATION OF THE CITY OF CHICAGO AND SAFFOLD JOSEPH MORIARTY, General Counsel By: /s/ Elizabeth K. Barton Elizabeth K. Barton, Attorney No. 6295848 Susan J. Best / sjbest@cps.edu Elizabeth K. Barton / ekbarton@cps.edu Helena B. Wright / hbwright@cps.edu Board of Education of the City of Chicago One North Dearborn Street Law Department, Suite 900 Chicago, Illinois 60602 Tel: (773) 553-1700 Fax: (773) 553-1701 Case: 1:16-cv-08668 Document #: 321 Filed: 06/28/19 Page 5 of 6 PageID #:5692 6 CERTIFICATE OF SERVICE I, , an attorney of record, hereby state that on, I electronically filed the above DEFENDANTS’ MOTION TO COMPEL PRODUCTION OF PLAINTIFF’S MENTAL HEALTH RECORDS, OR IN THE ALTERNATIVE, FOR AN IN CAMERA INSPECTION OF DOCUMENTS using the Court’s CM/ECF Filing System, which will send electronic notice to all counsel of record, as well as counsel for the third-party subpoena recipient including: Eric Carlos Onyango Prime Legal, LLC 222 North Columbus Drive, Suite 1507 Chicago, IL 60601 e@primelgl.com Daniel Walker, Jr. Cesario & Walker 211 West Chicago Avenue, Suite 118 Hinsdale, IL 60521 dan@cesariowalker.com Charles A. Egner Lewis Brisbois 550 West Adams Street, Suite 300 Chicago, IL 60661 Charles.Egner@lewisbrisbois.com By: s/ Elizabeth K. Barton Elizabeth K. Barton, Attorney No. 6295848 Case: 1:16-cv-08668 Document #: 321 Filed: 06/28/19 Page 6 of 6 PageID #:5693