Free Motion to Compel - District Court of Connecticut - Connecticut

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Auersoerg, gal U.S. 1015 (1987). _ `“ - ‘ ` , I
Although state evidentiary privileges are not determinative,
they must still be considered. Lora v. Board of Educ. of city of
I New York, T4 F.R.D. 565, 577 (E.D.N.Y. l9T7). "The granting or
E withholding of any privilege requires a balancing or competing
policies.“ gg. at 578, citing Carr v. Monroe Mic. Co., 431 ?.2d- t
984., EBS (Stn Cir. 1970.), 400
‘ U.S. 1000 (1971). "The potential harm from`disclosure of any i
ggégéég, communication subject to a privilege must be weighed against the
€‘.s;1d.¤=t;. .
benefits of discl;sureJ' Igga, 74 F.R.D. at 578. In balancing
§€%$§§L the potential harm against the potential benefits of disclosure
of any communication subject to a privilege, courts have - ·
l formulated a variety of tests. See e.gé ACLU of Mississippi v.
H Eipgg, 638 F.2d 1336 (Sth Cir. 1981); Kino v. Conde, 121 F.R.D.
\ 180 (E.D.N.Y._l988)} Burke v. New York Citv Transit Auth.,`ll0
· F.R.D. 660 (9.D.N.Y. 1986): Brown v- Matias, 102 ?.R.D. 580 -
‘ ii (S.D.N.I. 1984). In Doe v. Meaohum, 126 F.R.D. 444 (D. Conn.
I 1989), a class action brought by prison.inmates rho tested 1
w positive for exposure to HIV, plaintiffs challenged the policies
l of the Connecticut Department of Corrections regarding such
I inmates. In this oourt's ruling on ppg plaintiff's request for ' _
ptudklttioxx of plaintitt inmates‘ nedioal and nental health
tbcoixis, the {our-—p:u;t test tornulated in gore was aeopteiu
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_ se 2:91-cv-00180-RNC Document 532—1_1 Fnled 08/27/2007 Page 2 of 3 -— L ·
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. “In determining whether disclosure in this case will 1
I unreasonably interfere vith justifiable privilege ·
expectations . . . four significant factors must`be ‘
considered. First, is the identification of the `
individuals required for effective use of the data?
Second, is the invasion of Privacy and risk of
psychological harm being limited to the narrowest
possible extent? Third, will the data be supplied only
to qualified personnel under strict controls over
confidentiality? Fourth, is the data necessary or
` simply desirable?“ p _
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Doe, 125 F.R.D. at 499, quoting Lora, :4 :.s.D. at :79.
Defendants in Doe argued that disclosure of the records was ~
l prohibited by Conhf Gen. Stat. §§ 52—146c to 52-146j absent
_ _ written consent by each olassmember; that the court has
discretion under Fed. R. Civ. P. 23(d)(2) to require notice tor
all class members that they may sign consent forms with respect
_ _ L or
to the confidential health records; and that in the absence of
written consent forms the court should permit only a random
selection of redacted medical records. Doe, 126 F.R.D at 449.
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· In re‘ectinc cefenoants' arcunents this court stated that all
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four factors of the Lora test favored disclosure of the requested
documents. gd.
The instant case is-similar to Doe in that it involves a
class of individuals alleging system-wide practices which violate
i classmembers' interests as protected by 42 U.S.C. § l9S3. Here,
} as in Doe, the second and third factors of the Lora test favor
1 disclosure because the state‘s interest in confidentiality can be
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\ accommodated by an appropriate protective order limiting
G disclosure to plaintiffs' counsel and their experts. gee gpg,
5 l26 F.R.D. at 449. The fourth factor also favors disclosure
“ since the information sought is crucial to plaintiffs' ability to H
R substantiate their allegations. gee Plaintiff's Memorandum at 4. =
. 3 While it was noted in Qgg that "the first element is the — - a
troubling one, in that to some extent, the experts' use of the
‘ files would not be hampered by eliminating identifying data," i
\ disclosure cf th$_identity of individual classmenbers was found i
_ I necessary because "it may be critical for plaintiffs' experts and
- UM their counsel to be aware of the names of individual inmates in
`} order to evaluate their medical records over time.“ gpg, l26‘ l
i F.R.D. at 445. See also Inmates of Unit 14 V. Rebideau, 102 i
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_ F.R.D. l22, l2B (N.D.N.Y. 1984] (discovery of supervisory
evaluations in personnel files of defendant corrections officers
1 is extremely important in the need to support pattern and
1 practice allegations of unlawful assault, intimidation, and
l harassment of inmates in violation of 42 U.S.C. § l9B3). E
1 Plaintiffs allege that defendants'_policies and practices of I
"restraint and medication . . . and indefinite stigmatizing
confinement of non-dangerous retarded and brain—injured persons
with dangerous psychotic patients violates their rights secured
I by the Fourteenth.amendment." Plaintiff‘s Memorandum at 3. In
J order to substantiate the alleged mistreatment of naned .
I -. .