                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


ANGEL PORTER,

                   Plaintiff,

        v.                                                Civil Action No. 13-1141 (GK)

PINKERTON GOVERNMENT
SERVICES, INC. ,

                   Defendant.


                                      MEMORANDUM OPINION

        Plaintiff          Angel      Porter       ("Plaintiff")          brings        this     case

against          Pinkerton    Government          Services,        Inc.    ("Defendant")          for

violations          of Title VII           of    the Civil     Rights       Act    of    1964,     42

U.S.C.       §     2000e-2,    the     Civil     Rights Act         of    1866,    42    U.S.C.     §

1981, and her common law right to privacy.

        Pending before the Court are                       Plaintiff's Motion to Quash

Defendant's Subpoena Directed to Ivy Plastic Surgery Associates

[Dkt.        No.     17]    and     Plaintiff's           Motion     to    Quash        or     Modify

Defendant's Subpoena for Testimony of an Employee of Ivy Plastic

Surgery Associates                [ Dkt.   No.    18] .      Upon consideration of the

Motions, Oppositions, and Replies, and the entire record herein,

and for the reasons stated below,                         the Motions shall be granted

in part and denied in part.
                                                                                                           -------~--




    I.   BACKGROUND

         A.    Factual Background1

         Defendant         is     a     company       specializing         in        security        and

emergency           services          for     government          agencies.             FAC           5.

Plaintiff, who is African American, was employed by Defendant as

a security guard from 2008 until June 2012.                               FAC   ~~    6-8.     During

that     time,       she    was       assigned       to    work    for    TASC,       Inc.,        whose

management gave her multiple compliments for the quality of her

work and frequent recommendations for a promotion.                                      FAC   ~~    8-9.

Plaintiff interviewed for a                        supervisor position with Defendant

on at least four                occasions,         but despite the positive feedback

from TASC,          Inc.,       "her    strong background            in    security,          and the

fact that she was already training people that were going to be

her new supervisors," Plaintiff was not hired.                                  Plaintiff claims

she was specifically told by her supervisors that the reason she

would not        be       hired was         that    they were       looking       for    a    "bright

face."        FAC     ~   12.     The positions were filled instead by three

white women and an Asian man.                       FAC   ~~   10-12.

         Plaintiff also alleges that, in December 2011, she received

approval from Defendant's Human Resources                           Departm~nt          for medical

leave to have a surgical procedure on her stomach.                                      The surgery

1
  The facts are taken from the First Amended Complaint                                        ("FAC")
[Dkt. No. 11].
                             -2-
was   to    be    performed               by   Ivy   Plastic            Surgery       Associates        ("Ivy

Associates").           Two days before the surgery, however,                                 Plaintiff's

Site Manager, Ms.             Persell, and Branch Manager, Mr. Paczek, began

to harass her about taking the time off from work,                                            even though

her request for medical leave had already been approved by the

Human      Resources          Department.               FAC      <_![<_![    13,     15.      Mr.     Paczek

allegedly took it upon himself to contact Ivy Associates in an

attempt to obtain information about the nature of her surgery,

and he and Ms.           Persell subsequently told Plaintiff's co-workers

that she was having a "tummy tuck," causing her humiliation and

embarrassment.           FAC    <][<_![   14, 16-17, 20.                    This was not,       according

to    Plaintiff,         the       first         time      Mr.          Paczek       investigated           her

personal affairs.              He also contacted her son's doctor on several

prior occasions when she missed work as a                                          result of her son's

asthma.     FAC   <][   19.

      On December 27, 2011, Plaintiff filed a formal complaint of

harassment and invasion of privacy against Mr.                                             Paczek and Ms.

Persell.      Thereafter, Mr. Paczek and Ms. Persell ceased verbally

communicating with her and began looking for                                          reasons    to    fault

and reprimand her,             including "by calling other co-workers to ask

about things        like       Plaintiff's uniform,                         work,    etc."      FAC   <][   22.

      Plaintiff asserts                   that "[a] fter dealing with this                          hostile


                                                     -3-
environment for quite some time and definitively being told in

2012 that she would not be promoted due to her race," she "was

forced to resign on or about June 1, 2012."                        FAC      en   26.

        B.     PROCEDURAL BACKGROUND

        On    July    27,    2013,        after    exhausting         her        administrative

remedies with the EEOC,              Plaintiff filed this case.                        On December

2,    2013,    she filed her FAC           [Dkt.   No.   11], which asserts claims

for     invasion      of    privacy,        disparate        treatment,           hostile     work

environment,         retaliation, and discrimination in violation of the

Civil Rights Act of 1866,                  42 U.S.C.     §    1981.         On December 16,

2013,    Defendant filed its Answer,                generally denying Plaintiff's

allegations          and    asserting,        as    an       affirmative           defense,      a

qualified           privilege        to      "investigate          the            circumstances

surrounding Plaintiff's December 2011" request for medical leave

and "to disclose to its management staff and its employees any

factual       information related to Plaintiff's effort to take time

off work in December 2011."                 See generally Answer [Dkt. No. 11];

id. at Tenth and Eleventh Affirmative Defenses.

        On February 10,         2014,      Defendant served two subpoenas:                     one

on    Ivy     Associates     seeking        production        of   Plaintiff's             medical

records       and     the    other        commanding         Ivy   Associates              Patient

Coordinator Adrienne            Harvill      to    testify at         a   deposition.           On


                                             -4-
April      1,      2014,       Plaintiff ,filed her Motion to Quash Defendant's

Subpoena Directed to Ivy Plastic Suigery Associates                                                         ("Ivy Mot.")

[ Dkt.     No.      17]        and        her     Motion        to       Quash        or    Modify           Defendant's

Subpoena           for    Testimony               of    an     Employee          of        Ivy     Plastic          Surgery

Associates           ("Harvill Mot.")                     [ Dkt.     No.     18] .          On Apr i 1           14 ,    2 0 14 ,

Defendant filed its Opposition to the Ivy Motion                                                       ("Opp'n to Ivy

Mot.")       [Dkt.        No.        20]     and its          Opposition to                 the Harvill                 Motion

( "Opp' n to Harvill Mot.")                            [ Dkt. No.        19] .     On April 21,                  Plaintiff

filed      her      Reply            in     further          support        of        the     Ivy           Motion       ("Ivy

Reply")         [Dkt.         No.     21]       and her Reply in                  further              support of the

Harvill Motion ("Harvill Reply")                                   [ Dkt. No. 22] .

II.      LEGAL STANDARD

         " [I] t    is        settled           that     a    subpoena           is    limited              in    scope       by

Rule 26(b) (1) ·of the Federal Rules of Civil Procedure."                                                           Coleman

v.    D.C.,        275     F.R.D.           33,    36        (D. D.C.      2011)           (citations            omitted).

Under      Rule      2 6 (b) ( 1) ,         "[p] arties may obtain discovery                                     regarding

any nonpri vileged matter that                                is     relevant to any party's claim

or defense."                  Fed.    R. Civ.           P.    26(b).        "Evidence is relevant if:

(a)   it     has     any tendency to make                            a    fact     more           or    less      probable

than it would be without the evidence;                                           and        (b)    the        fact      is of

consequence              in    determining               the       action."                Fed.        R.     Evid.       401.

This definition is broadly construed for purposes of discovery.


                                                              -5-
Food Lion v.          United Food     &   Commercial Workers Int 1 1 Union,      103

F.3d 1007, 1012 (D.C. Cir. 1997).

           "Rule 45 also supplies the standards under which district

courts assess                 objections to a subpoena."          Watts v. S.E.C.,

482       F.3d 501,    508    (D.C.   Cir.   2007).     "The rule    requires   that

district courts quash subpoenas that call for privileged matter

or would cause an undue burden."                   Id.; see also Fed. R. Civ. P.

4 5 (d)    ( 3) (A) (iii) .   Thus, as our Court of Appeals has held:

          if the documents under subpoena are relevant to the
          subject matter of the proceeding for which their
          production is sought, the subpoena should be enforced
          on a showing of good cause unless the documents are
          privileged   or    the   subpoena   is   unreasonable,
          oppressive, annoying, or embarrassing.     And if the
          District Court believes the subpoena has a meritorious
          basis but should not be enforced as drafted,      . it
          has authority under Rule 30(b) to modify the subpoena
          and impose such conditions on enforcement as justice
          may require.

Freeman v. Seligson, 405 F.2d 1326, 1334-35 (D.C. Cir. 1968)

III. DISCUSSION

          In   both   subpoenas,      Defendant     seeks   the   following   eleven

categories of information:

           ( 1) Any and all documents related to Angel Porter 1 s
          counseling, treatment, surgery or other procedures,
          including, but not limited to, intake, progress notes,
          examinations, testing, surgical notes, post-op notes
          and any remaining documents kept in any files related
          to Angel Porter;



                                             -6-
 (2) Any and all documents related to any medications
or supplements that Angel Porter was prescribed or
recommended to take;

( 3) Any and all documents related to any statements
from Angel Porter regarding her symptoms or medical
problems;

 ( 4) Any and all documents related to any statements
from    Angel  Porter   regarding the  counseling  or
treatment she received;

(5) Any and all documents related to any diagnoses of
Angel Porter;

 (6) Any and all documents related to results from any
examinations, tests, surgeries or procedures conducted
in connection with Angel Porter;

 (7) Any and all documents related to any instructions
that Angel Porter was given;

(8) Any and all documents related to any medical,
outpatient, or other  services  received by Angel
Porter;

(9) Any and all documents related to any conversations
between Angel Porter and Adrienne Harvill;

(10)  Any and all documents related to telephone
inquiries that Adrienne Harvill or any employee or
doctor of Ivy Associates may have had with any person
who inquired at any point in time about Angel Porter
or about the types of medical procedures or surgerLes
performed by Ivy Associates as part of its medical
practice; and

 (11) Any and all documents related to Angel Porter's
employment with Pinkerton Government Services, Inc.
and/or medical leave that she may have requested or
taken in the time frame covering January 2011 through
June 20, 2012.



                         -7-
See Ivy Mot.,                Ex.    1    [Dkt.       No.   17-1].        Defendant also seeks to

depose Harvill about these topics.                               See Harvill Mot., Ex. 1.

        A.           Relevance

         "When            confronted         with      a   discovery          demand    to    which     an

objection has been made,                       the Court must first ascertain whether

there          is     a     reasonable           likelihood         or       possibility      that     the

information               sought     may be          relevant       to   a    claim or       defense    or

likely to lead to such evidence."                                St.     John v.      Napolitano,      274

F.R.D.         12,    15     (D.D.C.         2011)     (citation and internal punctuation

omitted).

        As       discussed,             in    her      FAC,      Plaintiff         alleges    that,     in

December            2011,     Mr.       Paczek       and   Ms.      Persell        intruded    into    her

personal            affairs        by "call [ing]          her doctor's            office to    inquire

about          her        surgery,"          even     though      she        had    already    obtained

approval for medical leave from the Human Resources Department.

FAC   '!['![   13-15,       17.      Thus,       categories 10 and 11 of the subpoena,

which seek information related to Mr. Paczek's alleged telephone

inquiries to Ivy Associates and Plaintiff's request for medical

leave, are directly relevant to Plaintiff's allegations. 2



2
  Plaintiff appears to concede as much by acknowledging that
"Defendant's  communications  with Plaintiff's   health   care
provider Ivy [are] at issue, and           [are] important to
establish what information about Plaintiff and her scheduled
                             -8-
       As     to    the    remaining      categories        of    information,          Defendant

claims that they are relevant to                     (1)    the merits of her claims,

(2) her credibility, and (3) her assertion of emotional distress

as an element of damages.                  It explains that Plaintiff "initially

claimed that she needed the surgery for an appendectomy," which

her    supervisors believed to be untrue                     upon learning "that                the

designated surgeon worked with a medical practice -                                   Ivy Plastic

Surgery Associates - specializing in plastic surgery."                                  Opp'n to

Ivy    Mot.    at    2.         Defendant    contends       that       the     true    nature    of

Plaintiff's         procedure       is    relevant    to     whether          the    surgery    was

elective and thus could be rescheduled to a                              less busy time of

year, and "whether her supervisors' inquiries about her surgical

status      were     motivated       by     reasonable       and       legitimate        business

concerns."         Id. at 1-2.

       The Court agrees with Defendant that these issues reflect

upon    Plaintiffs'         employment       relationship             with    her     supervisors

and,   therefore,          are    relevant    to    her     claims       of    harassment       and

discrimination            under   Title     VII.      The    accuracy          of     Plaintiff's

representations            to     her     supervisors            is     also        relevant     to

credibility and Plaintiff's                  claim of       emotional          distress    as    an

element of damages.               See,    e.g.,    Barnett v.          PA Consulting Group,


procedure Defendant attempted to obtain and what information was
exchanged between Defendant and Ivy." Ivy Reply at 2-3.
                               -9-
Inc.,    No.     04-1245,         2007 WL 845886,           at *4    (D. D.C. Mar.       19,    2007)

("[A]    defendant is entitled to explore whether causes unrelated

to      the     alleged        wrong          contributed       to    plaintiff's            claimed

emotional        distress,         and    a    defendant      may propound discovery                  of

any     relevant       medical      records         of    plaintiff    in    an    effort       to    do

so.")        (internal quotation marks and citation omitted) .                               In sum,

the requested information relevant.

        B.      Privilege

        Relevance does not, however,                      end the analysis.            Even if the

information is relevant,                  the subpoenas must still be quashed or

modified if they are unduly burdensome or require "disclosure of

privileged or other protected matter,                          if no exception or waiver

applies."            Fed.    R.    Civ.       P.    45(d) (3) (A) (iii)-(iv);          see     In     re

England,       375     F.3d 1169,         1177      (D.C.    Cir.    2004)     (if     there     is    a

valid statutory privilege "information may be withheld,                                      even if

relevant       to    the     lawsuit      and essential         to    the    establishment            of

plaintiff's claim")               (citation omitted).

        Federal law governs a claim of privilege in federal courts

except in a          civil case "regarding a claim or defense for which

state    law supplies the                rule      of decision."        Fed.      R.   Evid.     501.

In    this     case,    it    is    unclear         whether    federal       privilege         law    or

state     privilege          law    applies         because     Plaintiff         brings       claims


                                                   -10-
•·




     under both bodies of law.                   See In reSealed Case (Med. Records),

     381 F.3d 1205, 1212            (D.C. Cir. 2004)            (observing that the choice

     of law inquiry under Rule 501 is unclear                          "wh~re    the plaintiffs

     assert both federal and state claims, and relevant evidence may

     be privileged under one but not the other").

              The Court need not,               however,     decide this question because

     Defendant has not contested Plaintiff's assertion that District

     of Columbia law governs.                     Therefore,      the Court may treat the

     applicability of          District          of Columbia      law as        conceded.

     ~'        A Love of Food I,              LLC v. Maoz Vegetarian USA,                Inc.,     292

     F.R.D.      142,   143      (D.D.C.         2013)       ("[T]he    Court     may     treat     [a

     party's] failure to            oppose [an opponent's]                        arguments as a

     decision      to   concede       those           arguments.")      (quoting        Nat'l     Sec.

     Counselors v.        C.I.A.,         898    F.    Supp.   2d 233,     268     (D.D.C.      2012)

     (quotation marks omitted)).

              D.C. Code§ 14-307(a) states:

              In the Federal courts in the District of Columbia .
              . a physician .    . may not be permitted, without the
              consent of the person afflicted, or of his [or her]
              legal representative, to disclose any information,
              confidential in its nature, that he [or she] has
              acquired in attending a client in a professional
              capacity and that was necessary to enable him [or her]
              to act in that capacity[.]

     D. C .   Code §    14- 3 0 7 (a) .         This    provision      "prevents    a     physician

     from     testifying      about       a     patient's medical        condition        in    court
                                                      -11-
without          the patient's              consent" and also protects                          against      "the

release          of    information            during          the    pretrial       discovery           phase."

Kuhn & Kogan,                Chtd.    v.     Jeffrey C. Mensh & Associates,                            Inc.,    77

F.   Supp. 2d 52, 56 (D.D.C. 1999)                             (citations omitted).                Defendant

does not dispute that this language covers the medical records

requested by the subpoenas.                          Therefore, under Rule 45 (d) (3), the

subpoenas             must     be    quashed         or       modified       unless        Plaintiff           has

waived the privilege.

        C.        Waiver

        Under District of Columbia law,                               a "patient may waive or be

deemed to have waived the physician-patient privilege                                                        . by

filing       a    lawsuit          which places               in    issue    the    patient's medical

condition."             Nelson v.            United States,             649 A.2d 301,              308       (D.C.

1994)        (citations         omitted).                As    the    Court     of Appeals             for     the

District of Columbia observed in Nelson, waiver is based on the

principle             that         " [a]      patient-litigant                may         not      authorize

disclosure             of     only         those     portions          of     the    medical            records

favorable         to        that     party's         position,          while       withholding           other

relevant          portions           which         are        unfavorable."               Id.     at     308-09

(citations            omitted).              At     the        same    time,        the     Nelson        court

expressly             rejected        the     proposition             that     "a     general           waiver"

occurs by mere "implication of any medical information" in the


                                                         -12-
lawsuit.       Id. at 309.            Instead, "[W]aiver determinations are to

be     carefully        scrutinized"            in     relation            to     "the     facts        and

circumstances of the particular case."                              Id.

       Our Court of Appeals has also provided helpful guidance for

assessing waiver.              In Koch,         489 F.3d at 382, which concerned an

asserted      waiver      of    the     psychotherapist-patient                       privilege,         it

held that the waiver doctrine must be applied in such a way that

it "does not eviscerate the privilege," but merely gives effect

to the principle that a party may not "employ privileges both as

a sword and as a shield."                   Koch,       489 F.3d at 382                (citation and

quotation      marks     omitted) .             The     proper        inquiry,        the ·Court         of

Appeals       observed,        is     not        whether        "there           is   a     particular

evidentiary need for disclosure," but whether the opposing party

has somehow relied on the privileged information in asserting a

claim or defense.             See id. at 381-83.                    Thus,       a plaintiff may be

deemed to have waived the privilege to the extent she "relies

upon    the     [provider's]          diagnoses           or        treatment         in   making        or

defending       [her]     case"       or        "selectively              discloses        part    of     a

privileged      communication              in     order        to     gain       an    advantage         in

litigation."            Id.    at     381-82          (citations           and    quotation        marks

omitted).




                                                 -13-
               With these principles in mind,                 the Court considers whether

 Plaintiff             has     waived        the     physician-patient                  privilege             with

 respect to the information at issue.

                      1.     Subpoena Categories 10 and 11

           As     discussed          above    with     respect    to     Category                 10    of     the

 subpoenas,                Plaintiff         has     specifically           alleged               that         her

 supervisors               "called    her     doctor's       office    to       inquire            about       her

 surgery and                     obtain personal information about Plaintiff."

 FAC     <JI    17.    Consequently,          Plaintiff has put these phone calls at

 issue          and waived       any privilege           that    would       otherwise                 apply to

· both         the phone       calls    themselves         and any      related documents                       or

 records of such calls.

           With       respect    to     category       11,    Plaintiff               alleges          that    her

 supervisors               harassed    her     about     taking       time            off    to    have        the

 surgery even though her leave request had already been approved

 by    the        Human      Resources        Department.         FAC        <JI<JI    13-14.            By     so

 alleging,            Plaintiff has put the approval of her leave request,

 and any records and communications underlying that approval,                                                   at

 issue.           Thus,      she is also deemed to have waived the privilege

over            any        information        in     Ivy      Associates'                   custody           that

specifically pertains to her request for medical leave.




                                                   -14-
              2.        Subpoena Categories 1-9

      Defendant's only argument for disclosure of the information

in Categories 1-9 of the subpoena is that Plaintiff has put her

medical information at issue by claiming emotional distress as

an element of damages.

      District          courts          have    adopted           different        approaches     to

assessing     whether         a     plaintiff       places         her    medical      and   mental

health condition at issue merely by claiming emotional distress.

See   Koch,       489   F.3d       at    382.       Under         the    "narrow    approach,"     a

plaintiff only waives the privilege by affirmatively placing the

substance of the privileged advice or communication directly in

issue.      Id.     (citing Fitzgerald v.                   Cassil,       216 F.R.D.      632,   638

(N.D. Cal. 2003)).                Under the "middle ground" approach, "where a

plaintiff merely alleges                  'garden variety'              emotional distress and

neither     alleges       a       separate      tort        for     distress,       any    specific

psychiatric        injury      or       disorder,      or    unusually        severe      distress,

that plaintiff has not placed his/her mental condition at issue

to justify waiver."                 Koch,      489 F.3d at 382             (citing Jackson v.

Chubb Corp.,        193 F.R.D.           216    (D.N.J.      2000)).        Under the "broad"

approach,     "courts have held that a plaintiff places his or her

medical condition at issue and waives the .                                 . privilege simply




                                                -15-
by making a claim for emotional distress."                                 St. John, 274 F.R.D.

at 18 (citing Koch, 489 F.3d at 390).

        Our    Court       of Appeals            has     not        decided which,     if    any,     of

these approaches applies.                       However, courts in this District have

adopted        the       "middle      ground"            approach        "under    which      'garden

variety'       emotional distress allegations are not deemed to waive

privilege."             St.   John,       274    F.R.D.         at 19 _(citing Sims v.           Blot,

534     F.3d 117         (2d Cir.         2008),        Barnett v.        PA Consulting Group,

Inc.,    No.     04-1245         (RWR),        2007 WL 845886,            at *3-4      (D.D.C.      Mar.

19, 2007)).             This Court also finds the middle ground approach to

be reasonable and appropriate and shall adopt that approach.

        Federal         courts     have         used     the        following   five      factors     to

assess whether a plaintiff's claims for emotional distress are

"garden variety" or more severe:                             ( 1)   the presence of a cause of

action     for         intentional         or     negligent           infliction     of     emotional

distress;       ( 2)     an allegation of a specific mental or psychiatric

injury or disorder;                ( 3)    a    claim of unusually severe emotional

distress;        ( 4)    a proffer of expert testimony to support ·a claim

of emotional distress; and/or                          (5)    a concession by the plaintiff

that his or her mental condition is "in controversy."                                         Id.     at

119 (citation omitted).




                                                   -16-
      None of these factors are present here:                                Plaintiff does not

bring a cause of action for intentional or negligent infliction

of    emotional         distress.           She        does     not    allege     any       specific

psychiatric       disorder        or    unusually             severe    emotional        distress.

She has specifically disclaimed any intent to rely on an expert

to support her claim of emotional distress.                              See Ivy Reply at 5.

Finally,    she does not concede that her mental condition is "in

controversy."           Consequently,            "there are no factors showing that

the plaintiff has alleged more than                            'garden variety'          emotional

distress     of     the        kind    an        ordinary       person        might     experience

following an episode of discrimination."                               St.    John,    274    F.R.D.

at 20.     Therefore,          Plaintiff has not waived the privilege over

her    private      medical           records          merely     by     claiming        emotional

distress.

      Defendant          has     not     otherwise             addressed       waiver        in   its

Opposition.·        Consequently,            the       Court    concludes       that     Plaintiff

has   waived      the    privilege          as    to    categories       10     and    11    of   the

subpoenas but not as to the remaining categories.                                 The subpoenas

shall be modified to permit discovery solely of the information

contained in categories 10 and 11. 3


3
  The Court also concludes that categories 1 and 2 are overly
broad and burdensome and thus are also subject to modification
on those grounds. See Fed. R. Civ. P. 45(d) (3) (A) (iv).
                              -17-
      D.      Lack of Proper Notice

       Finally, Plaintiff also contends that the subpoenas must be

quashed      because     Defendant    failed       to    provide    her   with     proper

notice      prior   to   serving     them    on    Ivy    Associates      and    Har.vill.

Although it is undisputed that Defendant's notice was deficient

in    certain       respects,      there     is     no     indication       that    these

deficiencies were intentional or prejudicial, and they certainly

do    not    constitute      grounds        to    quash     under    Rule       45(d) (3).

Consequently, this request is denied.

IV.   CONCLUSION

              For the     reasons    set    forth       above,   Plaintiff's Motions

are granted in part and denied in part, and the subpoenas shall

be modified consistent with this Memorandum Opinion.




                                                    & k~¥ jc:;V' lL,__
                                                               __
May 23, 2014                                      Gladys Kes~ '
                                                  United States District Judge




Copies to: attorneys on record via ECF




                                           -18-
