United States District Court, D. New Mexico
ORDER GRANTING MOTION TO QUASH SUBPOENA AND FOR
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Defendants' Motion to
Quash Subpoena Issued by Plaintiffs to Zia Consulting, Inc.
and for Protective Order. Doc. 161. Having reviewed
the motion and attendant briefing (docs. 164,
166), the Court finds that the subpoena must be
quashed because of its failure to comply with the Health
Insurance Portability and Accountability Act
(“HIPAA”). In addition, the Court finds that the
records sought by Plaintiffs are not proportional to the
needs of the case. The Court will therefore GRANT
August 22, 2019, Plaintiffs issued a subpoena to Zia
Consulting, Inc., ordering production of pre-employment
psychological evaluation records for fifteen current and
former Hobbs Police Department (“HPD”) officers.
See doc. 161-4; doc. 161 at 2. For each
officer, the subpoena sought the following specific records
for each officer:
Statement of Understanding
Social History Survey
Mental Status Exam (MSE)
Wide Range Achievement Test Reading (WRAT-3)
Shipley Institute of Living Scale-2 (SILS-2)
Sixteen Personality Factor 5th Ed. (1 6PF)
Minnesota Multiphasic Personality Inventory-2 Restructured
Form (MMPI-2 RF)
Doc. 161-4. Some of the listed officers are
Defendants in this suit, while others are non- party
witnesses. See doc. 161 at 2. Plaintiffs have since
agreed to exclude non-party witnesses and Defendant J. J.
Murphy from their request. See doc. 164 at 11.
However, Plaintiffs maintain their entitlement to the
pre-employment psychological evaluation records of the other
officers listed in the subpoena.
argue that the subpoena to Zia Consulting must be quashed
because it is not HIPAA-compliant. See doc. 161 at
5-7. In addition, they request a protective order prohibiting
discovery of HPD officers' pre-employment psychological
evaluations on the ground that (1) they are not relevant or
proportional to the needs of the case, (2) they are protected
by psychotherapist/patient privilege, (3) the requests
subject the officers to undue burden, and (4) the officers
have a constitutional right to privacy in their mental health
records. See generally id. Plaintiffs disagree on
all counts. See generally doc. 164.
Defendants' motion is now before the Court.
Health Insurance Portability and Accountability Act, or
HIPAA, “generally prohibit[s] covered
entities from using or disclosing ‘protected
health information.'” Murphy v. Dulay, 768
F.3d 1360, 1368-69 (11th Cir. 2014) (quoting 45 C.F.R. §
164.508(a)(1)). However, HIPAA regulations provide for the
release of protected health information under certain
circumstances. Relevant to the instant motion:
A covered entity may disclose protected health information in
the course of any judicial or ...