In re Sealed Case (Medical Records)

• Citation: 381 F.3d 1205
• Decision Date: 31 August 2004
• Docket Number: No. 03-7066.,No. 03-7021.,03-7021.,03-7066.
• Parties: IN RE: SEALED CASE (MEDICAL RECORDS).
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1205

381 F.3d 1205

IN RE: SEALED CASE (MEDICAL RECORDS).

No. 03-7021.

No. 03-7066.

United States Court of Appeals, District of Columbia Circuit.

Argued March 17, 2004.

Decided August 31, 2004.

COPYRIGHT MATERIAL OMITTED

Appeals from the United States District Court for the District of Columbia (No. 02cv00401).

Lois R. Goodman argued the cause an filed the briefs for appellant.

Harvey S. Williams, pro hac vice, argued the cause for appellees. With him on the brief was Patrick A. Malone.

Before: SENTELLE, TATEL, and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

The appellant, an adult male who is a committed ward of the District of Columbia Mental Retardation and Developmental Disabilities Administration (MRDDA), appeals from a district court order requiring MRDDA to produce all of his records to counsel for plaintiffs who are suing MRDDA and the District. We conclude that the court abused its discretion by ordering production of the records without determining whether any are subject to the federal psychotherapist privilege recognized in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), and without weighing the probative value of the non-privileged records against the extent of the intrusion into the appellant's legitimate privacy interests. We therefore vacate the order and remand for further proceedings.

I

The plaintiffs in the district court — the appellees here — are "two mentally retarded adult men" who are "wards of the District of Columbia government" and for whose care and well-being MRDDA is responsible. Compl. ¶¶ 1, 9. For several years during the 1990s they lived in a residential group home at 2303 Minnesota Avenue, S.E. The appellant here also is a "mentally retarded adult" man and "committed ward" of the District. Appellant's Br. at 1. He lived in the same group home beginning in mid-1997.

According to the complaint, the appellant sexually assaulted the plaintiffs at the group home. Compl. ¶¶ 12, 15. The complaint further alleges that, although the resident director of the facility notified District officials of those assaults, the District did nothing to protect the plaintiffs until it moved the appellant to another facility on August 31, 1998. The plaintiffs seek damages from the District under 42 U.S.C. § 1983 for violating their civil rights, and under various District of Columbia causes of action, including negligence.¹ The complaint asserts that the district court has federal question jurisdiction over the § 1983 claim, see Compl. ¶ 2 (citing 28 U.S.C. § 1331), and supplemental jurisdiction over the local law claims, id. (citing 28 U.S.C. § 1367(a)).

During pre-trial proceedings, the plaintiffs moved to compel production of the District of Columbia's "complete files" on the appellant. The District took no position on whether the files should be produced, either at that time or subsequently. On October 11, 2002, the district court granted the motion, directing that "the files of [appellant] shall be produced for inspection by the plaintiffs' counsel," and requiring that they be "treated as confidential" and used "only ... in connection with this litigation." Order, No. 02-401 (D.D.C. Oct. 11, 2002) (hereinafter October 2002 Order).

Thereafter, the appellant's guardian ad litem, appointed by the Superior Court of the District of Columbia, entered a special appearance to represent the appellant in connection with the requests for his "medical and ward files." Objecting to the breadth of the district court's discovery order, and contending that the documents were subject to a number of privileges, the guardian filed a motion for reconsideration and for a more extensive protective order pursuant to Federal Rule of Civil Procedure 26(c). Unconsented Mot. for Ct. to Reconsider at 1. On February 14, 2003, the district court denied the motion to reconsider and ordered that "defendant District of Columbia shall produce the relevant medical records of [appellant] to plaintiffs' counsel in accordance with the prior Order of this Court...." Order, No. 02-401 (D.D.C. Feb. 14, 2003) (hereinafter February 2003 Order).

The plaintiffs then asked the court for clarification, contending that the District should produce the appellant's "entire file," regardless of whether the records were "relevant" or "medical." 5/15/03 Tr. at 3, 4, 12. At a hearing conducted on May 15, 2003, the plaintiffs insisted that they were "entitled to receive any documents that might reasonably lead to the discovery of admissible evidence," and that they did not "want someone else saying, Well, we don't think this is relevant when we might in fact think it is relevant." Id. at 12. The appellant's guardian objected on the ground that some of the documents were privileged and confidential, and that the court had not weighed the plaintiffs' interest in the documents against the appellant's privacy interest. Id. at 5-11. The court nonetheless granted the plaintiffs' request and directed that their counsel be allowed "to review the entire file and to tab those records that he believes will serve his evidentiary purposes in connection with this case." Id. at 15. The court further instructed plaintiffs' counsel to prepare a written order, which the court entered on August 7, 2003. The order stated:

[T]he mental retardation records of [appellant], including medical records and case notes, in the possession of defendant District of Columbia [shall] be made available to counsel for plaintiffs for review. Counsel for plaintiffs shall designate which records are to be produced in connection with this case....

Order at 1-2, No. 02-401 (D.D.C. Aug. 7, 2003) (hereinafter August 2003 Order).

The appellant, through his guardian ad litem, appealed the August 2003 Order requiring production of his MRDDA files.² On October 28, 2003, another panel of this court granted a stay of production pending appeal. We now consider the issues raised by the appellant.

II

We begin with a question of appellate jurisdiction. Plaintiffs-appellees contend that we lack jurisdiction because the district court's order was merely an interlocutory discovery order, rather than a final order subject to our review pursuant to 28 U.S.C. § 1291. Ordinarily, a decision is not considered final under § 1291 unless it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 1718, 135 L.Ed.2d 1 (1996) (internal quotation marks omitted). Under the collateral order (Cohen) doctrine, however, an order qualifies as "final" under § 1291 if it: "(1) conclusively determine[s] the disputed question, (2) resolve[s] an important issue completely separate from the merits of the action, and (3) [is] effectively unreviewable on appeal from a final judgment." Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 688, 121 L.Ed.2d 605 (1993) (internal quotation marks omitted); see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949).

The application of the collateral order doctrine to the discovery order at issue here is controlled by our recent decisions in United States v. Philip Morris Inc., 314 F.3d 612 (D.C.Cir.2003), and In re England, 375 F.3d 1169 (D.C.Cir.2004). In those cases, we concluded that orders compelling production of allegedly privileged information satisfied the three criteria for collateral review. See Philip Morris, 314 F.3d at 615-16 (attorney-client privilege); England, 375 F.3d at 1175-76 (statutory non-disclosure provision covering Navy selection board proceedings); see also Pearson v. Miller, 211 F.3d 57, 64 (3d Cir.2000) (holding that the collateral order doctrine permitted appeal from an order compelling the production of records relating to the "violent sexual proclivities" of an individual, where the individual contended the records were protected by state and federal privileges). The same analysis applies to the order in this case, which overrode the appellant's claims of a number of privileges.

First, by compelling production notwithstanding the appellant's claims of privilege, the order "conclusively and finally determined" that the documents were not protected from disclosure to plaintiffs' counsel by any privilege. Philip Morris, 314 F.3d at 617. As in Philip Morris, "[i]n no way does the record suggest that the district court's conclusion is tentative or subject to revision." Id. The plaintiffs dispute the conclusiveness of the district court's order on the ground that it requires disclosure only to counsel; disclosure for use at trial requires a further decision by the court. But the order is final with respect to that initial disclosure, and if the documents are privileged — a point we must accept as true for purposes of deciding this jurisdictional question — an involuntary disclosure to the plaintiffs' counsel breaches the privilege. Although the appellant may suffer additional injury if additional disclosure is later permitted, that does not diminish the original injury or make the court's authorization of it any less final.

Second, the issue is both completely separate from the merits and important. Just as was the case for the attorney-client privilege in Philip Morris, "the privilege question" here "is separable from the merits of the underlying case." Id.; see England, 375 F.3d at 1175. And like the attorney-client privilege, the privileges at issue here are "`important' in Cohen's sense," in that they are "weightier than the societal interests advanced by the ordinary operation of final judgment principles." Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879, 114 S.Ct. 1992, 2002, 128 L.Ed.2d 842 (1994). As we discuss below, the appellant's privilege claims fall into two categories: the federal psychotherapist privilege and D.C. statutory...