714 F.2d 632 (6th Cir. 1983), 82-1906, In re Zuniga

Docket Nº:82-1906, 82-1907 and 82-1964.
Citation:714 F.2d 632
Party Name:In re Subpoena Served Upon Jorge S. ZUNIGA, M.D., et al. In re Subpoena Served Upon Gary R. PIERCE, M.D., et al.
Case Date:August 03, 1983
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 632

714 F.2d 632 (6th Cir. 1983)

In re Subpoena Served Upon Jorge S. ZUNIGA, M.D., et al.

In re Subpoena Served Upon Gary R. PIERCE, M.D., et al.

Nos. 82-1906, 82-1907 and 82-1964.

United States Court of Appeals, Sixth Circuit

August 3, 1983

Argued Feb. 2, 1983.

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Gordon S. Gold (argued), Evans & Luptak, Detroit, Mich., for appellant in Nos. 82-1906 and 82-1907.

Neil H. Fink (argued), Detroit, Mich., Lori R. Fregolle, for appellant in No. 82-1964.

Leonard R. Gilman, U.S. Atty., Richard L. Delonis, Asst. U.S. Atty. (argued), Detroit, Mich., for appellee in 82-1906, 82-1907 and 82-1964.

Before ENGEL and KRUPANSKY, Circuit Judges and BROWN, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

These are consolidated appeals from two orders of separate courts of the Eastern District of Michigan adjudging appellants, Jorge S. Zuniga, M.D. (Zuniga) and Gary S. Pierce, M.D. (Pierce), in civil contempt for failing to appropriately respond to subpoenas duces tecum issued by the grand jury of that district. In both cases the grand jury sought records relevant to an investigation of alleged schemes to defraud in billings submitted to Michigan Blue Cross-Blue Shield.

Pierce

Pierce is a practicing psychiatrist licensed to practice medicine in the State of Michigan. Pierce's practice is organized as a professional corporation. On November 24, 1980 a subpoena duces tecum was issued by the Grand Jury for the Eastern District of Michigan commanding Pierce, or an authorized custodian of records, to appear and produce the following records:

Patient files, progress notes, ledger cards, copies of insurance claim forms and any other documentation supporting dates of service rendered and identity of patient receiving said service for the years 1978 and 1979 for the following individuals and all dependents thereof covered under the individuals' Blue Cross/Blue Shield contract:

The names and addresses of 18 persons were listed thereunder.

The subpoena directed Pierce to appear before the grand jury on December 11, 1980. On December 3, 1980 he filed a motion to quash the subpoena in the district court. A hearing on the motion was conducted before the Honorable Patricia J. Boyle, and on February 26, 1981, Judge Boyle issued an order denying the motion to quash. The district court, in accordance with the Government's concession, held that the records to be produced would be redacted of information other than the data showing the patient's name and the fact and time of treatment.

Pierce persisted in his refusal to produce the subpoenaed documents and the Government filed a motion to show cause why he should not be held in contempt. Another hearing was conducted subsequent to which the court found Pierce in civil contempt and remanded him to the custody of the United

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States Marshal until such time as he was prepared to purge himself of contempt by compliance with the subpoena. The court stayed execution of the order pending this appeal.

Zuniga

Zuniga is also a practicing psychiatrist licensed to practice medicine in Michigan and his practice is organized as a professional corporation. On March 30, 1982, the Grand Jury for the Eastern District of Michigan issued a subpoena commanding Zuniga, or an authorized custodian of records, to appear before the grand jury and produce the following records:

with respect to each of the followed (sic) names on the list attached, the following documents:

1. Redacted copies of patient files indicating patient name, date of service, type of psycho-therapy session rendered (i.e., full, half, brief) 1 and billed.

2. Original ledger cards for patients.

3. Original of any intra-office forms in support of service rendered and date thereof.

The attached list included the names of 268 persons.

On April 2, 1982, Zuniga filed a motion in the district court to quash the subpoena. A hearing was conducted before the Honorable Phillip Pratt and on May 3, 1982, Judge Pratt denied the motion but limited the subpoena to the production of records for 75 individuals. Judge Pratt also confined the scope of the subpoena to the five preceding years.

On June 18, 1982, the Government moved the district court to reconsider its May 3rd ruling. The Government proposed to limit the scope of the subpoena to 21 specific dates rather than a five year period. The Government requested, however, that the records for all of the initially named 268 individuals be produced. The lower court ruled that, in effect, the Government was proposing an entirely new subpoena and refused to grant the request.

In response, the grand jury, on July 15, 1982, issued a second subpoena ordering the production of the following documents:

Bring with you, with respect to the following dates:

May 3, 1978 October 19, 1978 June 9, 1978 November 3, 1978 July 17, 1978 November 20, 1978 July 24, 1978 December 1, 1978 August 9, 1978 May 8, 1979 August 10, 1978 May 23, 1979 August 14, 1978 June 2, 1979 September 11, 1978 June 7, 19792 October 9, 1978 the following documents:

1. Patient appointment books, or pages therefrom, setting forth all patient names and type or length of services rendered by Dr. Zuniga, for both hospital and office services, on the above-listed dates.

2. Patient sign-in sheets for all patients treated by Dr. Zuniga on the above-listed dates.

3. Doctor's daily activity log, book or sheets, listing all patients treated by Dr. Zuniga on the above-listed dates.

4. Redacted copies of patient files, indicating patient name, date of service and type of psychotherapy session rendered (i.e. full, half, brief) for the persons listed on pages Two and Three herein.

5. Original patient ledger cards for the persons listed on pages Two and Three.

6. Original of any intra-office forms, records, or memoranda in support of service rendered on the above-listed dates to the persons listed on pages Two and Three herein.

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The attached pages included the names of 268 persons.

On August 11, 1982 Zuniga moved to quash the second subpoena, which motion the district court denied on September 30, 1982. Zuniga persisted in his refusal to comply with the subpoena and the Government filed a motion to show cause why Zuniga should not be held in contempt. A hearing was conducted on November 4, 1982 at which Zuniga's counsel indicated that Zuniga would continue to refuse compliance. The district court found Zuniga in contempt and remanded him to the custody of the United States Marshal until such time as Zuniga purged himself of contempt by compliance. Execution of the order was stayed pending this appeal.

These appeals were consolidated pursuant to Rule 3(b), Fed.R.App.P., inasmuch as the issues joined and arguments presented in both are identical. Zuniga and Pierce contended below and maintain on appeal that the documents sought by the grand jury are protected from disclosure for three reasons: (1) a psychiatrist-patient privilege, (2) the patients' constitutional privacy right and (3) the Fifth Amendment's privilege against self-incrimination.

With respect to appellants' first argument, the point of departure for analysis is Rule 501, Fed.R.Ev. That Rule provides:

RULE 501--GENERAL RULE

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State or political subdivision thereof shall be determined in accordance with State law.

Two preliminary observations are necessary. Initially, inasmuch as the subpoenas in issue are the product of a federal grand jury investigation into alleged violations of federal criminal law, questions of privilege are governed by federal law. United States v. Gillock, 445 U.S. 360, 369, 100 S.Ct. 1185, 1191, 63 L.Ed.2d 454 (1980). Second, although the subpoena powers of the grand jury are extremely broad, it may not use its authority to "violate a valid privilege, whether established by the Constitution, statutes, or the common law." United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). Thus, the Court must determine if federal law recognizes a psychiatrist-patient privilege and, if so, whether...

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