July 31, 2019 Practice Points

“Garden Variety” Distress Does Not Warrant Discovery Requests for Medical Records

Parties can save themselves time and money by thinking carefully before seeking discovery on such sensitive issues.

By Angela S. Fetcher and Elizabeth Clements

Courts will likely hold requests for medical records to the same strict requirements as requests for medical examinations under Federal Rule of Civil Procedure 35, which requires a party’s mental or physical condition to be “in controversy.”

In Prado v. Equifax Info. Servs. LLC, No. 18-cv-02405-PJH (LB) (N.D. Cal. Jan. 3, 2019), Prado sued Equifax, requesting damages for “garden variety” distress. Prado had to manage a frustrating credit mix-up when Equifax allegedly mistook her sister’s credit file for her own and reported “serious delinquencies” to Prado’s credit-card companies. Not only were Prado’s credit limits significantly lowered, but her requests to reinstate the original credit limits were denied. When Equifax allegedly ignored Prado’s requests for it to correct the mistake, Prado claimed Equifax violated the Fair Credit Reporting Act, the California Credit Reporting Agencies Act, and the California Civil Code.

In response to Prado’s claim for distress damages, Equifax requested “all documents relating or referring to any medical or mental treatments [Ms. Prado] received in the past seven years.” Prado refused the request, arguing against the invasive nature of the request in comparison to her “garden variety” distress claim. The parties took their dispute to the court when they could not reach a resolution.

In support of its request, Equifax argued that it was not requesting a medical examination, which is subject to the heightened “in controversy” requirement under FRCP 35, but merely medical records. However, the court recognized that requests for medical or psychiatric records may be even more invasive than an actual examination. The court also emphasized that Prado’s “garden variety” distress claim did not rise to the level of placing her mental or physical condition “in controversy.” Therefore Equifax’s request was found to be unwarranted, and Prado’s objections to Equifax’s discovery request were sustained.

Public policy favors protecting one’s right to privacy. A party requesting personal medical information needs to have a solid reason for doing so. The courts will not support unwarranted invasions of privacy, and parties can save themselves time and money, and protect their public image, by thinking carefully before seeking discovery on such sensitive issues.

Angela S. Fetcher is a member of Stoll Keenon Ogden PLLC in Louisville, Kentucky and Elizabeth Clements is a 2021 J.D. candidate at the University of Louisville, Brandeis School of Law.

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