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Ellis v. Hobbs Police Department

United States District Court, D. New Mexico

November 4, 2019

BRANDON ELLIS, et al., Plaintiffs,
v.
HOBBS POLICE DEPARTMENT, et al., Defendants.

          ORDER GRANTING MOTION TO QUASH SUBPOENA AND FOR PROTECTIVE ORDER

          GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE

         THIS 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 Defendants' motion.

         I. Background

         On 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
Clinical Interview
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.

         Defendants 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.

         II. HIPAA Compliance

         The Health Insurance Portability and Accountability Act, or HIPAA, “generally prohibit[s] covered entities[1] 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 ...

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