House v. TH Foods, Inc.

Opinion

6 * * *

7 Preston House, Case No. 2:24-cv-01326-JAD-DJA

8 Plaintiff, Order 9 v.

10 TH Foods, Inc.,

11 Defendant.

12 13 Before the Court is Defendant TH Foods, Inc.’s motion to extend discovery deadlines 14 (ECF No. 71) and supplemental motion (ECF No. 96), which supplement seeks to stay discovery. 15 Also before the Court is Defendant’s motion to compel pro se Plaintiff Preston House to sign a 16 Health Insurance Portability and Accountability Act (“HIPAA”) release (ECF No. 74) and motion 17 to compel Plaintiff to produce notes on which he relied at his deposition (ECF No. 81). Plaintiff 18 moves to quash certain of Defendant’s subpoenas to third parties. (ECF No. 77). Defendant also 19 moves to seal documents attached to its response to Plaintiff’s motion to quash. (ECF No. 82). 20 Because Defendant has shown good cause to extend discovery, but not to stay it, the Court 21 grants Defendant’s motion to extend discovery (ECF No. 71) and denies its supplemental motion 22 (ECF No. 96). Because Defendant has shown that Plaintiff has put his mental health and medical 23 records at issue in this litigation to a certain extent, the Court grants Defendant’s motion to 24 compel Plaintiff to sign a HIPAA release. (ECF No. 74). Because Plaintiff and Defendant have 25 failed to include meet and confer certifications in Plaintiff’s motion to quash and Defendant’s 26 motion to compel Plaintiff to produce his notes, the Court denies those motions without prejudice. 27 (ECF Nos. 77, 81). Finally, because Defendant has shown good cause to seal documents, which 1 documents contain Plaintiff’s medical records or references to those records, the Court grants 2 Defendant’s motion to seal. (ECF No. 82). 3 I. Defendant’s motion to extend discovery deadlines. 4 Defendant requests a thirty-day extension of the discovery deadlines to allow it to obtain 5 Plaintiff’s medical records. (ECF No. 71). Defendant explains that Plaintiff has refused to sign a 6 release of those records, necessitating the extension. Plaintiff opposes the motion, arguing that he 7 already provided his medical records. (ECF No. 72). Defendant explains in reply that it is 8 seeking to obtain records from Plaintiff’s providers directly and so, it does not matter that 9 Plaintiff already provided certain medical records that he had in his possession. (ECF No. 73). 10 Since filing its motion, Defendant filed a supplement to its motion to extend discovery 11 deadlines. (ECF No. 96). In that supplement, Defendant modifies its request. Instead of asking 12 for an extension of all discovery deadlines, Defendant asks that the court “allow for the 13 completion of discovery already in process at the time of the June 21, 2025 discovery cut-off and 14 suspend expert discovery until the Court has had an opportunity to adjudicate dispositive 15 motions.” Plaintiff opposes the supplemental motion. (ECF No. 99). 16 The Court finds that Defendant has shown good cause to extend the discovery deadlines. 17 See Fed. R. Civ. P. 16(b); see LR 26-3. So, the Court grants Defendant’s motion to extend 18 discovery. The Court will sua sponte extend the discovery deadlines by 120 days because certain 19 of Defendant’s proposed deadlines have already passed. 20 However, the Court does not find that Defendant has made the requisite showing for its 21 second, supplemental request, which seeks a stay of discovery. Defendant has not filed points 22 and authorities supporting its request for a stay. The Federal Rules of Civil Procedure do not 23 provide for automatic or blanket stays of discovery because a dispositive motion is pending. 24 Skellerup Indus. Ltd. v. City of L.A., 163 F.R.D. 569, 600-01 (C.D. Cal. 1995). And, in evaluating 25 the propriety of a stay, this Court analyzes: (1) if the dispositive motion can be decided without 26 further discovery; and (2) whether good cause exists to stay discovery. Schrader v. Wynn Las 27 Vegas, LLC, No. 2:19-cv-02159-JCM-BNW, 2021 WL 4810324, at *4 (D. Nev. Oct. 14, 2021). 1 II. Defendant’s motion to compel HIPAA Authorization. 2 Defendant moves to compel Plaintiff to sign a HIPAA compliant release, explaining that 3 Plaintiff’s medical and mental health providers will not release his records in response to 4 Defendant’s subpoenas without one and that Plaintiff refuses to sign one. (ECF No. 74). 5 Defendant points out that Plaintiff has claimed emotional distress damages in his lawsuit and 6 seeks millions of dollars in damages, making his medical and mental health records relevant. 7 Defendant also points out that Plaintiff cannot dispute the relevance of the records because 8 Plaintiff himself has produced certain of his medical records that he had in his own possession. 9 Plaintiff opposes Defendant’s motion, arguing that he has already produced his medical and 10 mental health records and so, Defendant seeks redundant information by seeking the records 11 directly from Plaintiff’s providers. (ECF No. 75). Plaintiff argues that Defendant is simply 12 speculating that his providers will have more documents than Plaintiff has provided. Defendant 13 argues in reply that it is entitled to obtain Plaintiff’s records directly from his providers instead of 14 being forced to rely on records that Plaintiff has unilaterally selected to produce. (ECF No. 76). 15 Defendant adds that it requires the records directly from providers so that Defendant can verify 16 the records for the purpose of admissibility. 17 Under Federal Rule of Civil Procedure 26(b)(1), 18 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to 19 the needs of the case, considering the importance of the issues at 20 stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance 21 of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. 22 23 However, with respect to psychiatric records, even if the evidence is relevant, the Court 24 must determine if the federal psychotherapist privilege applies to protect the information. See 25 Fitzgerald v. Cassil, 216 F.R.D. 632, 635 (N.D. Cal. 2003). The Supreme Court has recognized a 26 psychotherapist-patient privilege under federal common law. Jaffee v. Redmond, 518 U.S. 1, 15 27 (1996). The federal privilege applies to cases involving both state and federal claims if the 1 Parties may waive the psychotherapist-patient privilege and their general privacy rights 2 over medical records by putting their mental health and medical conditions at issue in a case. Id. 3 In deciding whether to find that a plaintiff has waived the psychotherapist-patient privilege, 4 courts in the Ninth Circuit apply one of three tests: (1) the broad approach; (2) the narrow 5 approach; or (3) the middle ground approach. See Cassil, 216 F.R.D. at 636-38. Under the broad 6 approach, “courts have held that a simple allegation of emotional distress in a complaint 7 constitutes waiver.” Id. (collecting cases). Under the narrow approach, courts have held that the 8 plaintiff must affirmatively rely on the psychotherapist-patient communications before the court 9 will deem the privilege waived. Id. (collecting cases). Under the middle ground approach, courts 10 generally find a waiver when the plaintiff has done more than allege “garden variety” emotional 11 distress. Id. (compiling cases). 12 In Roberts v. Clark County School District, a court in this district relied on the middle 13 ground approach. See Roberts v. Clark County School District, 312 F.R.D. 594, 607 (D. Nev. 14 2016). It explained that “[g]arden variety emotional distress has been described as one court as 15 ‘ordinary or common place emotional distress,’ which is ‘simple or usual.’” Id. The court 16 contrasted “garden-variety” emotional distress with “emotional distress that ‘may be complex, 17 such as that resulting in a specific psychiatric disorder.’” Id. It noted that “[a] number of courts 18 in the Ninth Circuit have held that the physician-patient privilege is not waived where a plaintiff 19 alleges ‘garden-variety’ emotional distress and does not rely on medical records or medical expert 20 testimony for proof at trial.” Id. (citing e.g., EEOC v. Wal-Mart Stores, Inc., 276 F.R.D. 637, 21 640-41 (E.D. Wash. 2011) (collecting cases and finding that the physician-patient privilege was 22 not waived as to plaintiff’s medical records because she intended to support her garden-variety 23 emotional distress damages through evidence other than medical records or expert testimony)). 24 The Western District of Washington addressed what types of emotional distress claims are 25 “garden variety” and which are not in Ginter v. BNSF Ry. Co., No. C13-00224-RSM, 2014 WL 26 294499, at *3 (W.D. Wash. Jan 24, 2014). There, the court found that the plaintiff had waived his 27 psychotherapist-patient privilege and required the plaintiff to sign a HIPAA-compliant medical 1 waiver issue by limiting his request for damages to general emotional harms like ‘humiliation, 2 embarrassment, anger, and other similar emotions.’” Id. (citing Carrig v. Kellogg USA Inc., No. 3 12-837-RSM, 2013 WL 392715, at *2 (W.D. Wash. Jan. 30, 2013)). But the court noted that the 4 plaintiff had chosen “to pursue damages claims for anxiety and depression, which are not 5 ‘garden-variety’ emotional distress claims.” Id. (citing Santelli v. Electro-Motive, 188 F.R.D. 6 306, 309 (N.D. Ill. 1999)). The court also noted that “[i]f there is evidence to show that plaintiff’s 7 emotional distress may have been caused by something besides the workplace injury, fairness 8 dictates that the employer should be permitted access to that evidence.” Id. 9 Here, using the middle ground approach, the Court will grant Defendant’s motion to 10 compel Plaintiff to sign a HIPAA compliant medical release.1 Plaintiff has put his mental health 11 and medical records at issue in this case. His emotional distress claims fall somewhere in 12 between “garden variety,” which claims do not serve to waive the psychotherapist-patient 13 privilege, and the more specifically alleged emotional distress claims that do. In his amended 14 complaint, Plaintiff alleges that he has suffered “emotional pain and suffering, mental anguish, 15 humiliation, embarrassment, indignity…[and] loss of self-esteem.” (ECF No. 18 at 5-6). These 16 are “garden-variety” allegations. But on the other hand, Plaintiff seeks $10,000,000.00 in 17 damages for “emotional distress & mental anguish” alone, indicating that his emotional distress 18 claims exceed “garden-variety.” (ECF No. 74-5 at 3). Plaintiff has also revealed more details 19 about his mental health treatment and potential other reasons for its causes in his deposition and 20 has produced his own mental health and medical records in this case, indicating that his emotional 21 distress claims are more specific than the “garden-variety” claims he alleges in his complaint. 22 (ECF No. 84 at 3-4). Indeed, Plaintiff asserts that the records he produced include information 23 showing “inpatient and outpatient treatment for work-related claims,” “expert evaluations 24 25

26 1 The parties do not distinguish between Plaintiff’s medical records and mental health records in 27 their motions, but refer to them interchangeably. Because medical records may encompass mental health records, and because the Court is not deciding a motion for protective order over 1 substantiating the nexus between Defendant’s conduct and Plaintiff’s condition,” and “Plaintiff’s 2 own sworn declaration and deposition testimony concerning his distress.” (ECF No. 75 at 3). 3 For the limited purpose of compelling a HIPAA release, the Court finds that Plaintiff has 4 waived his privacy interests in his mental health and medical records by alleging emotional 5 distress damages. This is not to say that Plaintiff is precluded from raising his privacy interests 6 over certain specific records, seeking a protective order regarding Defendant’s subpoenas, or 7 asserting the psychotherapist-patient privilege at some other stage in the litigation. But, because 8 Plaintiff has put his mental health at issue in this litigation, he may not prevent Defendant from 9 seeking any of his mental health and medical records at all by refusing to sign a HIPAA release. 10 So, the Court grants Defendant’s motion to compel. 11 III. Plaintiff’s motion to quash. 12 Plaintiff moves to quash Defendant’s subpoenas to Plaintiff’s former and current 13 employers—the U.S. Navy; Amazon/Pinnacle Logistics; Aryzta Bakery; Bird’s Eye; Kellogg 14 Company; Solina, Inc.; and W.W. Grainger—and one of his mental health providers— 15 BetterHelp—seeking Plaintiff’s employment records and health records. (ECF No. 77). Plaintiff 16 argues that the entities to whom Defendant sent its subpoenas “include employers and providers 17 with no clear relationship to the retaliation claim at issue.” He adds that the subpoenas are overly 18 burdensome on their recipients and pose a privacy risk to Plaintiff. 19 However, Plaintiff did not meet and confer with Defendant before bringing his motion. 20 See Nevada Local Rule (“LR”)2 26-6(c) (explaining that “[d]iscovery motions will not be 21 considered unless the movant (1) has made a good-faith effort to meet and confer as defined in 22 LR IA 1-3(f) before filing the motion and (2) includes a declaration setting forth the detail and 23 results of the meet-and-confer conference about each disputed discovery request.”); see LR IA 1- 24 3(f). Plaintiff has also brought a motion to quash, rather than a motion for protective order. But a 25 motion for protective order is the more appropriate vehicle through which to challenge subpoenas 26

27 2 This refers to the Local Rules for the United States District Court for the District of Nevada, 1 issued to non-parties, like the subpoenas at issue here.3 So, the Court will deny Plaintiff’s motion 2 to quash without prejudice. 3 IV. Defendant’s motion to compel Plaintiff’s notes. 4 Defendant moves to compel Plaintiff to produce a set of notes to which Plaintiff 5 repeatedly referred and read from during his deposition, but that Plaintiff has refused to produce 6 to Defendant. (ECF No. 81). However, Defendant has not included a certification that it has met 7 and conferred with Plaintiff prior to bringing its motion. See Fed. R. Civ. P. 37(a)(1)(explaining 8 that a motion to compel “must include a certification that the movant has in good faith conferred 9 or attempted to confer with the person or party failing to make disclosure or discovery in an effort 10 to obtain it without court action”); see LR 26-6(c); see LR IA 1-3(f). So, the Court denies 11 Defendant’s motion without prejudice. 12 V. Defendant’s motion to seal. 13 Defendant moves to seal two exhibits to its response to Plaintiff’s motion to quash, 14 explaining that the documents constitute excerpts from Plaintiff’s deposition—referencing his 15 medical records—and Plaintiff’s medical records. (ECF No. 82). Plaintiff responds, taking “no 16 position on the necessity of redacting narrative portions of Defendant’s filing beyond the 17

18 3 “[A] party lacks standing under Fed. R. Civ. P. 45[(d)(3)(A)] to challenge a subpoena issued to a non-party unless the party claims a personal right or privilege with respect to the documents 19 requested in the subpoena.” G.K. Las Vegas Ltd. Partnership v. Simon Property Group, Inc., No. 20 2:04-cv-01199-DAE-GWF, 2007 WL 119148, at* 4 (D. Nev. Jan. 9, 2007); compare In re Rhodes Companies, LLC, 475 B.R. 733, 740 (D. Nev. Apr. 30, 2012) (declining to adopt the 21 “personal right or privilege” standing rule for motion to quash subpoenas). “A party’s objection that the subpoena issued to the non-party seeks irrelevant information or imposes an undue 22 burden on the non-party are not grounds on which a party has standing to move to quash a subpoenas issued to a non-party, especially where the non-party, itself, has not objected.” G.K. 23 Las Vegas Ltd. Partnership, 2007 WL 119148 at* 4. “A party can, however, move for a 24 protective order in regard to a subpoena issued to a non-party if it believes its own interest is jeopardized by discovery sought from a third party and has standing under Rule 26(c) to seek a 25 protective order regarding subpoenas issued to non-parties which seek irrelevant information.” Id. at *3; see Fed. R. Civ. P. 26(c)(1); see also First Am. Title Ins. Co. v. Commerce Assocs., 26 LLC, No. 2:15-cv-00832-RFB-VCF, 2017 WL 53704, at *1 (D. Nev. Jan. 3, 2017). Under 27 Federal Rule of Civil Procedure 26(c)(1), a motion for protective order “must include a certification that the movant has in good faith conferred or attempted to confer with other affected 1 protection of medical data and personal identifiers.” (ECF No. 86). Defendant did not file a 2 reply. 3 A party seeking to file a confidential document under seal must file a motion to seal and 4 must comply with the Ninth Circuit’s directives in Kamakana v. City and County of Honolulu, 5 447 F.3d 1172 (9th Cir. 2006) and Ctr. for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092 6 (9th Cir. 2016). For records attached to motions not more than tangentially related to the merits 7 of the case, the “good cause” standard applies. See Ctr. for Auto Safety, 809 F.3d 1095, 1101. 8 Courts frequently find the privacy interests that parties have in their medical records and 9 documents referencing those records to constitute good cause to seal those documents. See 10 Ansara v. Maldonado, No. 2:19-cv-01394-GMN-VCF, 2022 WL 17253803, at *3 (D. Nev. Nov. 11 1, 2022) (explaining that “sensitive and private medical information protected by HIPAA” meets 12 the compelling reasons standard); see Steven City Broomfield v. Aranas, No. 3:17-cv-00683- 13 MMD-WGC, 2020 WL 2549945, at *2 (D. Nev. May 19, 2020) (compiling cases). 14 Here, Defendant seeks to seal exhibits to its response to Plaintiff’s motion to quash, which 15 response is not more than tangentially related to the merits of the case. So, the good cause 16 standard applies. And because Defendant seeks to seal Plaintiff’s medical records and portions of 17 his deposition transcript that mention his medical data, the Court finds that Defendant has shown 18 good cause to seal these documents. The Court grants Defendant’s motion to seal. 19 20 21 22 23 24 25 26 /// 27 /// 1 IT IS THEREFORE ORDERED that Defendant’s motion to extend discovery (ECF No. 2 71) is granted. The following deadlines shall govern discovery: 3 Expert disclosures: August 20, 2025 4 Rebuttal expert disclosures: September 22, 2025 5 Discovery cutoff: October 21, 2025 6 Dispositive motions: November 18, 2025 7 Joint pretrial order: December 22, 20254 8 9 IT IS FURTHER ORDERED that Defendant’s motion to compel Plaintiff to sign a 10 HIPAA authorization (ECF No. 74) is granted. 11 IT IS FURTHER ORDERED that Plaintiff’s motion to quash (ECF No. 77) and 12 Defendant’s motion to compel (ECF No. 81) are denied without prejudice for their failure to 13 include a certification regarding the parties’ meet and confer efforts. 14 IT IS FURTHER ORDERED that Defendant’s motion to seal (ECF No. 82) is granted. 15 The documents filed under seal at ECF No. 84 shall remain sealed. 16 IT IS FURTHER ORDERED that Defendant’s supplemental motion to extend discovery 17 (ECF No. 96) is denied. 18 19 DATED: July 3, 2025 20 DANIEL J. ALBREGTS 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 4 Under Local Rule 26-1(b)(5), if dispositive motions are filed, the deadline for filing the joint pretrial order will be suspended until 30 days after decision on the dispositive motions or further