Mann v. University of Cincinnati

152 F.R.D. 119, 1993 U.S. Dist. LEXIS 16778, 1993 WL 492186
District Court, S.D. Ohio·Decided November 9, 1993·No. No. C-1-92-852·Published·Cited by 9 cases

Opinion

ORDER AFFIRMING MAGISTRATE JUDGE’S ORDER

SPIEGEL, District Judge.

This matter is before the Court on the Magistrate Judge’s Report and Recommendation (doc. 12), the Defendants’ Objections (doe. 13), the Plaintiffs Response to Defendants’ Objections (doc. 17), the Defendants’ Reply (doc. 19), the Plaintiffs Application for Partial Award of Attorney’s Fees (doc. 22), and the Defendants’ Response (doc. 23).

BACKGROUND

In his Order the Magistrate Judge recounted in detail the facts of this case. We have reviewed the Magistrate Judge’s Order, 824 F.Supp. 1190 (1993), and find that his findings of fact are not clearly erroneous. See 28 U.S.C. § 636(b)(1)(A). Accordingly we conclude that it would be unnecessary for the Court to attempt to improve upon the Magistrate Judge’s presentation of the facts. Because the details of the Defendants’ conduct in this case are so crucial to the Court’s holding, and because we concur in the magistrate Judge’s reasoning with respect to Rule 45 and to Ms. Mann’s privacy rights,1 we adopt the following portions of the Magistrate Judge’s opinion:

[ The documents before the Court] call into question the conduct of defense counsel who, knowing that Ms. Mann objected to their review of her medical records due to the private information contained therein and that her attorney was studying the question whether to release relevant medical records, nevertheless issued a subpoena duces tecum for all of Ms. Mann’s medical records, regardless of their relevancy. This subpoena was issued on only one week’s notice to Ms. Mann’s attorney and was accompanied by an ex parte letter instructing the custodian to release the records prior to the date set forth in the subpoena.

Two business days after the subpoena was issued, defense counsel obtained Ms. Mann’s entire medical file without her knowledge and copied several pages. The file included extremely private information she provided years before the events in this case, which is irrelevant to the issues herein. Defense counsel, also obtained copies of certain records. In response to the instant motions, defense counsel showed no remorse, surprisingly, they claimed Ms. Mann[’s] ... privacy rights were not invaded, and that it was their [121]*121common practice to obtain medical records prior to the subpoena date without notice to opposing counsel or the patient.

******

On October 29,1992, Ms. Mann filed the instant action, alleging that University of Cincinnati academic employees, defendants Robert Monast and Jon Clemens, sexually harassed her and improperly took unfavorable academic actions against her in violation of her Fourteenth Amendment rights to equal protection of the law and to be free from arbitrary, capricious, and unreasonable academic decisions and that defendant University of Cincinnati failed to take appropriate action to correct these improprieties, all in violation of 42 U.S.C. § 1983. She also alleged that she was denied her right to an education at the University of Cincinnati in violation of 20 U.S.C. § 1681. The aforesaid conduct allegedly took place between September 1990 and July 1991. Among other damages, Ms. Mann alleges she suffered emotional distress, including destruction of her self-esteem and emotional trauma.

During the course of the alleged sexual harassment, on May 28, 1991, Ms. Mann wrote “to whom it may concern,” and forwarded her letter to the President of the University of Cincinnati. (Df. Ex. B). The letter stated that she was withdrawing from the University because “I have suffered a major emotional crisis.... The Student Health Clinic should be able to provide you with a diagnosis by Dr. A_ (sic), he’s a foreign doctor and I cannot read his writing. He claimed I suffered from ‘anxiety’ and gave me medicine. I ... decided not to take these drugs and deal with the problem that was seriously disturbing me. Also I went to a dermatologist at this time because for the first time in my life I suffered from a complexion problem.” Id. (Emphasis in original). This letter was referred to a University of Cincinnati Assistant General Counsel (University counsel), who investigated the matter and consulted with outside counsel, a member of a private Cincinnati law firm (defendants’ attorney).

University counsel testified at the hearing that she has managed this case since the complaint was filed in October 1992 and has coordinated the defense with defendants’ attorney. In response to defendants’ interrogatories, Ms. Mann stated that she told Mr. Clemens in early 1991 that she “had been diagnosed as under stress and had medication.” (Doc. 8, Ex. A, plaintiffs answer to interrogatory 9(dd)). She stated that “I continue to suffer mental pain because of the indignities suffered at the hands of Defendants, and remain distressed and outraged at Mr. Monast and Mr. Clemens.” (Id., plaintiffs answer to interrogatory 9(ff)). She claimed damages for “emotional pain, sufféring, and outrage, shock and degradation of and to person, loss of respect and confidence in education and educational process, and despair at being exposed to such process ... “[ljoss of enjoyment of life due to psychological trauma ... and for anxiety.” (Id., plaintiffs answer to interrogatory 17).

On March 2, 1993, during Ms. Mann’s deposition, defendants’ attorney presented her with releases for her medical records in order to study them in preparation for further deposition questions regarding Ms. Mann’s emotional distress claim. Ms. Mann refused to sign the releases believing her medical records contained private information; however, her attorney stated he would study the matter further.

On March 12,1993, defendants’ attorney wrote plaintiffs attorney:

Upon the postponement of Ms. Mann’s deposition on March 2 because of her inability to continue, we requested that she sign medical releases to enable us to obtain her medical records from Doctors Hani Abdulla and Elmore A. Kindel, Jr. We still have not received the signed releases. If we have not received the releases by March 19, we will subpoena the records. We would much prefer, however, to have Ms. Mann’s cooperation in this matter.

(Df. Ex. C). Defendants’ attorney stated at the hearing that she was aware that Ms. Mann had previously obtained medical [122]*122treatment related to a fire and to an automobile accident. Defendants’ attorney was searching for this information and any other information about “previous life stressors” as well as any contemporaneous reports by Ms. Mann of sexual harassment.

On March 17, 1993, plaintiffs attorney wrote defendants’ attorney: “In reference to your letter of March 12, 1993, requesting medical releases ... I am currently considering these requests.” (Df. Ex. D). On April 1, 1993, plaintiffs attorney advised defendants’ attorney orally that he was still studying the matter of medical releases and would advise her of his position on April 9, 1993. Defendants’ attorney responded that she would subpoena the medical records. Defendants’ attorney and University counsel then agreed to issue a subpoena for the medical records.

Free access — add to your briefcase to read the full text and ask questions with AI

Mann v. University of Cincinnati, 152 F.R.D. 119, 1993 U.S. Dist. LEXIS 16778, 1993 WL 492186 (S.D. Ohio 1993).

152 F.R.D. 119 (Mann v. University of Cincinnati) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related