Owens v. Toro

• Court: District Court, S.D. California
• Decided: February 24, 2025
• Docket: 3:18-cv-01579
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 WILLIAM OWENS, Case No.: 18-cv-01579-JAH-JLB

14 Plaintiff, ORDER GRANTING IN PART 15 v. DEFENDANT’S MOTION TO COMPEL 16 CARLOS DEL TORO, Secretary of the

Navy, 17 [ECF No. 56] Defendant(s). 18 19 20 Before the Court is a motion to compel filed by Defendant Carlos Del Toro, 21 Secretary of the Navy (“Defendant”). (ECF No. 56.) Defendant moves the court to either 22 (1) compel Plaintiff William Owens (“Plaintiff”) to sign and return a Veterans Affairs 23 (“VA”) authorization form, or (2) issue an order compelling the VA to produce all relevant 24 records in its possession relating to Plaintiff. (Id. at 2.) Plaintiff has not filed an opposition 25 to the motion. For the reasons stated below, Defendant’s motion to compel is GRANTED 26 IN PART. 27 /// 28 /// 1 I. BACKGROUND 2 A. Procedural Background 3 On July 12, 2018, Plaintiff commenced this action against Richard V. Spencer, 4 Secretary, Department of the Navy, under Title VII of the Civil Rights Act of 1964 (“Title 5 VII”), the Federal Vocational Rehabilitation Act (“Rehabilitation Act”), and the Age 6 Discrimination in Employment Act (“ADEA”), asserting claims of disability 7 discrimination, retaliation for prior Equal Employment Opportunity (“EEO”) activity, age 8 discrimination, race discrimination, and hostile work environment. (ECF No. 1.) On 9 August 8, 2018, and January 3, 2019, Plaintiff commenced two additional, separate actions 10 against the Secretary of the Navy: Owens v. Spencer, No. 18-cv-01852-JAH-JLB (S.D. 11 Cal.) and Owens v. Spencer, No. 19-cv-00012-JAH-JLB (S.D. Cal.). (See ECF No. 26.) 12 On September 20, 2021, the Honorable John A. Houston consolidated all three actions and 13 designated the above-captioned case as the lead case. (Id.) Judge Houston later 14 administratively closed the two member cases. (See Order Closing Member Cases, Owens 15 v. Spencer, No. 18-cv-01852-JAH-JLB (S.D. Cal.), ECF No. 16.) 16 Following consolidation, on November 1, 2021, Plaintiff filed a First Amended 17 Complaint against Defendant. (ECF No. 27.) On September 12, 2022, Plaintiff filed a 18 Second Amended Complaint, the operative complaint, against Defendant asserting claims 19 of disability discrimination, retaliation for prior EEO activity, age discrimination, race 20 discrimination, and hostile work environment. (Second Amended and Consolidated 21 Complaint [“SAC”], ECF No. 36.) 22 Defendant moved to dismiss the SAC. (ECF No. 38.) On March 26, 2024, 23 Judge Houston granted the motion to dismiss in part, finding that Plaintiff is time barred 24 from alleging the following discrete discriminatory acts contained in paragraphs 75 and 76 25 of the SAC, including: (1) “Richard Bauer and Charles Duprey physically escorted the 26 Plaintiff out of building 77 to building 76 four blocks away from the code 400 contract 27 department isolating the Plaintiff,”; and (2) Plaintiff was “placed in a room without 28 adequate ventilation, [] heating, [and the] windows [were] sealed shut which could not be 1 disturbed due to lead-based paint” and which “had no access to a restroom” that Plaintiff 2 could use “to relieve himself of bodily functions” resulting in his admission to the VA 3 hospital emergency room. (ECF No. 47 at 10–12 (quoting ECF No. 38 ¶¶ 75, 76).) 4 B. Factual Background 5 Plaintiff is a former Supervisory Contract Specialist and was employed by the 6 Department of the Navy at the Southwest Regional Maintenance Center, located in San 7 Diego, California, until his dismissal on May 25, 2016. (Id. at 2.) Plaintiff alleges, inter 8 alia, that he was subjected to vulgar language, harassment, and violent physical contact, 9 and that he was passed over for promotions and transfers based on his race, color, age, and 10 disability. (See SAC ¶¶ 11–93.) Plaintiff also claims the alleged discriminatory conduct 11 created a hostile work environment. (See id.) Defendant’s alleged violative conduct dates 12 back to 2011 and continued through Plaintiff’s termination in 2016. (Id.) Over the five- 13 year period, Plaintiff asserts he filed seven complaints with the Department of the Navy’s 14 EEO Office, which he alleges resulted in retaliation. (See id. ¶¶ 6–10, 48, 54, 56, 58.) 15 Plaintiff contends he administratively exhausted his grievances with his former employer 16 and now seeks redress with this Court. (Id. ¶¶ 6–10.) 17 As a result of his workplace environment, Plaintiff claims that he now suffers from 18 major depression, mental anguish, humiliation, embarrassment, and anxiety attacks. (Id. ¶ 19 23.) Plaintiff contends he was in constant fear of losing his job due to being in a hostile 20 work environment. (Id. ¶¶ 50, 93.) Plaintiff further claims that due to continuous acts of 21 discrimination for over seven years, he is currently 90% disabled and suffers from Post 22 Traumatic Stress Disorder (“PTSD”), major depression, mental anguish, inability to work, 23 humiliation, embarrassment, anxiety, anger, sexual dysfunction, changes in his marital 24 relationship leading to a now-pending divorce, loss of self-worth, and hopelessness. (Id. 25 ¶¶ 53, 93, 98, 104, 111, 118, 131.) Plaintiff contends that he is unable to function in the 26 same manner as he could before the harassment and, despite medication and counseling, 27 he has not been cured or had significant improvement. (Id. at ¶¶ 53, 98, 118.) 28 /// 1 Plaintiff seeks declaratory relief, remedial training for Department of Navy officials 2 and/or employees, costs of suit, and compensatory damages, including lost wages and 3 losses resulting from humiliation, mental anguish, emotional distress, and harm to 4 Plaintiff’s reputation. (Id. at 33.) Plaintiff separately seeks $900,000 for emotional harm 5 including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of 6 life, loss of health, damage to marriage resulting in divorce, injury to professional standing, 7 injury to character and reputation, damage to credit standing, and other nonpecuniary losses 8 incurred because of discriminatory conduct. (Id. at 34.) 9 II. LEGAL STANDARD 10 A party is entitled to seek discovery of “any nonprivileged matter that is relevant to 11 any party’s claim or defense and proportional to the needs of the case, considering the 12 importance of the issues at stake in the action, the amount in controversy, the parties’ 13 relative access to relevant information, the parties’ resources, the importance of the 14 discovery in resolving the issues, and whether the burden or expense of the proposed 15 discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Information need not be 16 admissible to be discoverable. Id. Federal Rule of Civil Procedure 34 provides that a party 17 may serve requests for documents, electronically stored information, or tangible things on 18 any other party within the scope of discovery defined in Rule 26(b). Fed. R. Civ. P. 34(a). 19 If a party fails to produce documents pursuant to Rule 34, the propounding party may bring 20 a motion to compel. See Fed. R. Civ. P. 37(a). 21 “The party seeking to compel discovery has the burden of establishing that its request 22 satisfies the relevancy requirements of Rule 26(b)(1).” Alves v. Riverside Cnty., 339 F.R.D. 23 556, 559 (C.D. Cal. 2021) (quoting Bryant v. Ochoa, No. 07-CV-00200-JM-PCL, 2009 24 WL 1390794, at *1 (S.D. Cal. May 14, 2009)). “District courts have broad discretion in 25 determining relevancy for discovery purposes.” Surfvivor Media, Inc. v. Survivor Prods., 26 406 F.3d 625, 635 (9th Cir. 2005) (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 27 2002)). “Once the propounding party establishes that the request seeks relevant 28 information, ‘[t]he party who resists discovery has the burden to show discovery should 1 not be allowed, and has the burden of clarifying, explaining, and supporting its 2 objections.’” Goro v. Flowers Foods, Inc., 334 F.R.D. 275, 283 (S.D. Cal. 2018) (quoting 3 Superior Commc’ns v. Earhugger, Inc., 257 F.R.D. 215, 217 (C.D. Cal. 2009)). However, 4 the Court must—either on motion or sua sponte—“limit the frequency or extent” of 5 otherwise permissible discovery if the Court finds the request “unreasonably cumulative 6 or duplicative” or the discovery sought is obtainable from a “more convenient, less 7 burdensome, or less expensive” source. Fed. R. Civ. P. 26(b)(2)(C)(i). 8 III. DISCUSSION 9 In moving to compel, Defendant seeks an order which would give effect to 10 Defendant’s proposed subpoenas for Plaintiff’s medical records, either by compelling 11 Plaintiff to sign and return an authorization form or by compelling the VA to produce all 12 responsive records as if the subpoenas were accompanied by an authorization signed by 13 Plaintiff. Defendant seeks, through the subpoenas, all of Plaintiff’s medical records, 14 including his mental health records, dating back to October 2011. (ECF No. 56.) 15 Defendant makes no argument as to the relevance of Plaintiff’s physical medical records, 16 but he argues that he should be entitled to Plaintiff’s mental health records based on the 17 allegations in Paragraph 53 of the SAC. (Id. at 2.) In Paragraph 53, Plaintiff alleges that 18 due to Defendant’s “continuous acts of discrimination against [Plaintiff] for over seven 19 years,” 20 [Plaintiff] is currently 90% disabled and suffers from PTSD, major 21 depression, mental anguish, inability to work, humiliation, embarrassment, anxiety, anger, sexual dysfunction, changes in his marital relationship now 22 pending divorce, and suffers loss of self-worth and hopelessness. Plaintiff is 23 unable to function in the same manner as he could before the harassment and despite medication and counseling, he has not been cured or has significantly 24 improved. 25 (SAC ¶ 53.) 26 Defendant specifically contends that Plaintiff identified in interrogatory responses 27 seven healthcare providers with the VA who provided him with treatment for emotional 28 1 distress, but only produced partial medical records, including records that indicate 2 additional providers not previously identified by Plaintiff. (ECF No. 56 at 2.) In the 3 attached VA authorization form, Defendant seeks all of Plaintiff’s medical records from 4 the VA, including: (1) Plaintiff’s health summary for the prior two years; (2) Plaintiff’s 5 medical records from October 10, 2011, to present; (3) Plaintiff’s inpatient discharge 6 summaries from October 10, 2011, to present; (4) Plaintiff’s Progress Notes from several 7 identified VA medical providers and clinics2 from October 10, 2011 to present; (5) all 8 operative and clinical procedures from October 10, 2011, to present; (6) all lab results from 9 several identified VA medical providers and clinics from October 10, 2011, to present; (7) 10 all administrative records from October 10, 2011, to present; (8) any and all medical and 11 psychiatric records from October 10, 2011, to present. (ECF No. 56-1 at 1.) Defendant 12 argues that without either a signed authorization or court order, the VA will not produce 13 any records to Defendant. (ECF No. 56 at 2.) 14 Although Plaintiff has not filed an opposition, the Court addresses Defendant’s 15 request in light of relevant concerns below. 16 A. Relevance 17 Here, Plaintiff has alleged that as a result of his workplace environment, he now 18 suffers from major depression, mental anguish, humiliation, embarrassment, and anxiety 19 attacks. (SAC ¶ 23.) Plaintiff further alleges that due to continuous acts of discrimination 20 21 22 1 Defendant believes Plaintiff’s production is incomplete because the records 23 contain both Bates numbers and exhibit stickers, “indicating they are likely a set of curated exhibits from another case instead of [a] complete set of medical records from the VA.” 24 (ECF No. 56 at 2.) Defendant also notes that Plaintiff has produced only 70 pages of 25 medical records despite claiming he has received mental health treatment at the VA for over a decade. (Id.) 26 2 Defendant identifies the following providers and clinics: VA San Diego 27 Health Care re: Jorge Porras, M.D.; Psych ADTP; Stanley Raczek, Staff Psychiatrist; Dr. John Keltner; Darien Cookson, RN; Dr. Lisa Campbell; Dr. Stephen Selzer; Eddie Agosto; 28 1 for over seven years, he is currently 90% disabled and suffers from PTSD, major 2 depression, mental anguish, inability to work, humiliation, embarrassment, anxiety, anger, 3 sexual dysfunction, changes in his marital relationship leading to a now-pending divorce, 4 loss of self-worth, and hopelessness. (Id. ¶¶ 53, 93, 98, 104, 111, 118, 131.) Plaintiff also 5 alleges that he is unable to function in the same manner as he could before the harassment 6 and, despite medication and counseling, he has not been cured or significantly improved. 7 (Id. at ¶ 53, 98, 118.) 8 Based on the foregoing, the Court finds that Plaintiff’s mental health records are 9 relevant to the issues of the extent of Plaintiff’s emotional distress damages as well as the 10 extent to which Plaintiff’s mental distress was caused by Defendant’s actions, as alleged. 11 See Doe v. City of Chula Vista, 196 F.R.D. 562, 569 (S.D. Cal. 1999) (“But to insure [sic] 12 a fair trial, particularly on the element of causation, the court concludes that [the] 13 defendants should have access to evidence that [the plaintiff’s] emotional state was caused 14 by something else. [The d]efendants must be free to test the truth of [the plaintiff’s] 15 contention that she is emotionally upset because of the defendants’ conduct. Once [the 16 plaintiff] has elected to seek such damages, she cannot fairly prevent discovery into 17 evidence relating to the element of her claim.”) (emphasis in original); Williams v. Cnty. of 18 San Diego, No. 17-cv-00815-MMA (JLB), 2019 WL 2330227, at *5–6 (S.D. Cal. May 31, 19 2019), objections overruled, 2019 WL 3543792 (S.D. Cal. Aug. 5, 2019) (holding that 20 discovery relating to the plaintiffs’ mental and emotional health was relevant because 21 plaintiffs sought emotional distress damages). 22 However, the Court finds that Defendant has not sufficiently established that 23 Plaintiff’s physical medical records are relevant. Accordingly, the motion is denied to the 24 extent Defendant seeks Plaintiff’s medical records for treatment unrelated to his mental 25 health. 26 B. Privileges 27 In federal question cases such as this, the federal law of privilege applies. See Fed. 28 R. Evid. 501. Federal law recognizes the privileged relationship between a patient and his 1 psychotherapist but not more generally between a patient and his physician. See Jaffee v. 2 Redmond, 518 U.S. 1, 9–10 (1996). Thus, Plaintiff’s medical information regarding his 3 physical health care is not shielded from discovery by any physician-patient privilege, as 4 none exists under federal law. However, any confidential communications between 5 Plaintiff and licensed psychiatrists, psychologists, or other similar licensed mental health 6 providers made in the course of diagnosis or treatment would qualify for protection unless 7 Plaintiff has waived the psychotherapist-patient privilege. See id. at 15 n.14 (“Like other 8 testimonial privileges, the patient may of course waive the [psychotherapist-patient] 9 protection.”). Here, it appears Plaintiff has released some of his mental health records, 10 thereby affirmatively waiving any psychotherapist-patient privilege over them. (See ECF 11 No. 56 at 2.) Plaintiff’s consent acts as an express waiver of any privilege over his mental 12 health records. 13 However, even absent Plaintiff’s consent through production, the psychotherapist- 14 patient privilege has been waived by the nature of this lawsuit. Since the Supreme Court 15 acknowledged the psychotherapist-patient privilege under federal common law, district 16 courts have adopted varying approaches to determine whether a patient has waived the 17 privilege. Courts in this district follow the “broad” approach, which holds that “a plaintiff 18 who seeks to recover for emotional distress damages” has waived the privilege by “relying 19 on [his] emotional condition as an element of [his] claim.” See Doe, 196 F.R.D. at 568. 20 Because Plaintiff is seeking $900,000 for emotional harm including emotional pain, 21 suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of health, damage 22 to marriage resulting in divorce, and other nonpecuniary losses incurred because of 23 discriminatory conduct, Plaintiff has placed his mental health at issue. (See SAC at 34.) 24 As such, regardless of his consent, Plaintiff also has implicitly waived any psychotherapist- 25 patient privilege over his mental health records. 26 Accordingly, the Court finds that Plaintiff’s mental health records are not shielded 27 from discovery due to privilege. 28 /// 1 C. Right to Privacy 2 The Supreme Court has recognized that individuals have privacy interests “in 3 avoiding disclosure of personal matters [and] in independence in making certain kinds of 4 important decisions.” Whalen v. Roe, 429 U.S. 589, 599–600 (1977). However, the 5 Supreme Court has stopped short of expressly recognizing that those interests are 6 constitutionally protected. See Nat’l Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 7 147 (2011) (“As was our approach in Whalen, we will assume for present purposes that the 8 Government’s challenged inquiries implicate a privacy interest of constitutional 9 significance.”). Similarly, the Ninth Circuit has acknowledged there may be a limited right 10 to privacy in medical records in certain contexts. See Doe v. Garland, 17 F.4th 941, 947 11 (9th Cir. 2021) (“[I]ndividuals may have a constitutional privacy interest in certain, highly 12 sensitive information[.]”). Where the court recognizes a “constitutionally-based right of 13 privacy that can be raised in response to discovery requests,” resolution of a party’s privacy 14 objection “requires a balancing of the need for the information sought against the privacy 15 right asserted.” Soto v. City of Concord, 162 F.R.D. 603, 616, 619 (N.D. Cal. 1995) 16 (collecting cases); see also In re Crawford, 194 F.3d 954, 959 (9th Cir. 1999). “When a 17 plaintiff places his medical conditions at issue, his expectation of privacy regarding those 18 conditions is diminished.” Larson v. Bailiff, No. 13-cv-02790 BAS (JLB), 2015 WL 19 4425660, at *5 (S.D. Cal. July 17, 2015); see also Syed Nazim Ali v. Gilead Sci., Inc., No. 20 18-cv-00677-LHK (SVK), 2018 WL 3629818, at *2 (N.D. Cal. July 31, 2018) (“[A] person 21 waives their right to privacy by bringing claims concerning physical or mental health 22 injuries and seeking damages for those injuries.”). 23 Here, Plaintiff has sufficiently placed his mental health at issue by alleging that as a 24 result of his workplace environment, he now suffers from major depression, mental 25 anguish, humiliation, embarrassment, and anxiety attacks. (SAC ¶ 23.) Plaintiff further 26 alleges that due to continuous acts of discrimination for over seven years, he is currently 27 90% disabled and suffers from PTSD, major depression, mental anguish, inability to work, 28 humiliation, embarrassment, anxiety, anger, sexual dysfunction, changes in his marital 1 relationship, loss of self-worth and hopelessness. (Id. ¶¶ 53, 93, 98, 104, 111, 118, 131.) 2 Plaintiff also alleges that he is unable to function in the same manner as he could before 3 the harassment and, despite medication and counseling, he has not been cured and has not 4 significantly improved. (Id. at ¶ 53, 98, 118.) Given the foregoing, the Court finds that 5 Defendant’s interest in obtaining relevant discovery to defend itself in the instant action 6 outweighs Plaintiff’s privacy concerns. Further, the Court finds that a Protective Order is 7 adequate to protect Plaintiff’s privacy concerns. See Soto, 162 F.R.D. 616–17. 8 D. Relevant Time Frame 9 Defendant seeks mental health records dating back to October 2011. (ECF No. 56- 10 1.) Defendant does not explain the reasoning behind this specific date, but the Court finds 11 the time frame reasonable. Plaintiff alleges that he experienced continuous acts of 12 discrimination for over seven years, prior to his termination in 2016. (SAC ¶ 53.) Plaintiff 13 further alleges in the SAC acts of discrimination dating back to April 2011. (Id. ¶ 11.) 14 IV. CONCLUSION 15 For the reasons set forth above, Defendant’s motion to compel (ECF No. 56) is 16 GRANTED IN PART. Further, IT IS HEREBY ORDERED: 17 1. Within five (5) days of the electronic docketing of this Order, Defendant shall 18 file a motion, either jointly with Plaintiff or ex parte, for a Protective Order, that covers, at 19 a minimum, Plaintiff’s mental health records. 20 2. Defendant shall amend the VA authorization form (ECF No. 56-1) to reflect 21 that the information requested is limited to mental health records. 22 3. Within ten (10) days of the electronic docketing of this Order, Defendant shall 23 provide Plaintiff with the amended VA authorization form that complies with this Order. 24 4. Plaintiff has until fifteen (15) days after the electronic docketing of this Order 25 to sign the updated VA authorization form and return it to Defendant. 26 /// 27 /// 28 /// 1 5. If Plaintiff declines to sign and return the updated VA authorization form 2 || within fifteen (15) days of the electronic docketing of this Order, Defendant is authorized 3 || to issue subpoenas to Plaintiff’s mental health providers for records from the relevant time 4 period. Health providers to whom Defendant issues subpoenas are ordered to comply with 5 subpoenas is if accompanied by an authorization form signed by Plaintiff. 6 IT IS SO ORDERED. 7 ||Dated: February 24, 2025 -

n. Jill L. Burkhardt ? ited States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28