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Tims v. Clark County School District

United States District Court, D. Nevada

July 16, 2019

TAMMARA TIMS, et al., Plaintiffs,
v.
CLARK COUNTY SCHOOL DISTRICT, et al., Defendants.

          ORDER MOTION FOR RECONSIDERATION [ECF NO. 143]; MOTIONS TO SEAL [ECF NOS. 194, 195]

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE.

         Before the Court are Plaintiff HH's Motion for Reconsideration of Magistrate Judge's Order ECF No. 109 (ECF No. 143) and Motions for Leave to File Documents Under Seal Pursuant to Protective Order (ECF Nos. 194, 195). For the reasons discussed below, the motion for reconsideration is granted in part and the motions to seal are granted.

         BACKGROUND

         I held a hearing on June 21, 2019 to address several motions: ECF Nos. 143, 151, 152, 157, 166, 173, 176, 178. (ECF Nos. 188, 193). I granted ECF Nos. 151, 173, and 176-two motions to seal and a motion to file a sur-reply. (ECF No. 193 at 9). I stated that I was not going to rule on ECF No. 157[1]because it was a motion to seal relating to a motion before Judge Dorsey. (ECF No. 193 at 9). I granted ECF No. 152, a motion to compel, based on the parties' understanding as to the relevancy of the CPS records. (ECF No. 193 at 43-47). I denied ECF No. 166, another motion to compel, finding that the proposed discovery related to three names was not proportional and collateral to this case. (ECF No. 193 at 47-52). I granted ECF No. 178, a motion to extend time, and set new deadlines in the case. (ECF No. 193 at 52-61). The only matter not entirely resolved during the hearing was a motion for reconsideration. (ECF No. 143).

         I. Factual Background

         In the complaint, HH, a special education student, alleges he was subjected to physical and verbal abuse by his teacher, Kasey Glass. (ECF No. 44 at 3). HH also alleges that CCSD has a “policy of deliberate indifference to abuse of special education students.” (Id. at 3). HH brings § 1983, ADA, Rehabilitation Act, battery, criminal violations motivated by characteristics of victim, IIED, and negligence claims against Glass, Mark Connors (the school principal), and CCSD. (Id. at 15-25).

         As part of its defense, CCSD argues that any damages suffered by HH could be related to the medical and mental health of his mother, Ms. Tims. (ECF No. 79 at 11-12). CCSD asserts that “Tims has a history with Child Protective Services (“CPS”), numerous encounters with police, a history of mental instability and health issues associated with PTSD, and Huntington's disease, all of which could and likely did adversely impact H.H.” (ECF No. 147 at 4).

         II. Procedural Background

         On December 11, 2019, CCSD filed a motion to compel Tims to provide a medical release and identify her medical providers. (ECF No. 79 at 3, 5-6). At this point in the case, Tims was also a plaintiff. (ECF No. 109 at 1-2). On February 13, 2019, I granted the motion to compel in part. (Id. at 4-7). I noted that “CCSD has agreed to limit its release to mental health providers and related evaluation and/or treatment information from August 2007 (the year prior to HH's birth) to the present.” (Id. at 4-5). I found, using Nevada state law, that Tims had waived her psychologist-patient privilege by placing her own mental health at issue. (Id. at 5-6). I explicitly did “not decide whether the privilege protects Tims' medical records as they relate to HH's development and behavior.” (Id. at 7). I ordered Tims to “execute a release for mental health providers and related evaluation and/or treatment information from March 2015-March 2017.” (Id.).

         On April 2, 2019, Tims dismissed her claims, removing herself as a plaintiff. (ECF No. 142). On April 8, 2019, HH filed a motion for reconsideration of my Order granting CCSD's motion to compel. (ECF No. 143) . HH argued that, “[b]y dismissing her claim for damages, Ms. Tims has restored her privilege against disclosure of mental health records.” (Id. at 5). “Defendants are in no way precluded from pursuing discovery to support their apparent theory that H.H.'s documented behavioral changes… They are free to inquire into the impact of any of Ms. Tims' medical conditions on her son.” (Id. at 9). In response, CCSD argued that Tims' records are legally significant to HH's damages and Tims has waived any privilege that would apply. (ECF No. 147 at 5-10). CCSD also argued that the Order should be amended to (1) expand the time frame of records CCSD may obtain related to Tims' mental health treatment and other related treatment to 2007 and (2) compel Tims to identify her mental health providers. (Id. at 11-12).

         At the June 21, 2019 hearing, I granted the motion for reconsideration in part. (ECF No. 193 at 27). I found that, under both Nevada and federal law, Tims had not waived the privilege relating to her psychiatric records since she had withdrawn her claims. (Id. at 27, 40). However, CCSD asked for clarification regarding Tims' other medical records and medical providers. (Id. at 28). CCSD asserted that there is “no federal medical privilege, ” and the Court should use federal privilege law in this case. (Id. at 28-38). I ordered further briefing on this issue. (Id. at 38-40).

         In its post-hearing brief, CCSD argues that “where the evidence sought is relevant to state and federal claims, the federal court will apply federal law privilege.” (ECF No. 192 at 3). “Because there is no [federal doctor-patient privilege], Tims can only argue her records are personal and private.” (Id. at 4). CCSD asserts that “her privacy interest… is outweighed by CCSD['s] right to defend itself against claims in which Tims' minor son is seeking millions of dollars in damages.” (Id. at 5).

         In response, HH argues that CCSD “previously agreed to limit [its] motion to compel to Tim's mental health records” and therefore “should be judicially estopped from changing [its] position and now arguing that [it is] entitled to the production of Tims's medical records.” (ECF No. 196 at 2). “Tims's decision to dismiss her individual claim for damages was therefore based in part on the Defendants' representation regarding the scope of the motion to compel.” (Id. at 3). HH does not discuss whether the Court should apply federal or state privilege law. HH argues that “Tims retains a constitutional right of privacy in her medical information and records, ” she cannot be compelled to sign a medical release as a non-party, and the proposed release is overbroad. (Id. at 3-5).

         In its reply, CCSD argues that it has not waived its request for Tims' medical records because “the circumstances of this case have changed since [motion to compel] briefs were originally filed more than six months ago” and “all issues raised in CCSD's original Motion to Compel (ECF 79) were sent back to Your Honor for reconsideration.” (ECF No. 197 at 2-3). CCSD asserts, “the only party that would obtain an unfair advantage due to a change in position is Plaintiff and Tims, who are seeking to prohibit CCSD from obtaining records that would ...


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