DUSTIN B. PEAD, Magistrate Judge.
This civil rights matter was referred to the Court under 28 U.S.C. § 636(b)(1)(A). (Dkt. 36.) The matter is presently before the court on Defendants' Motion to Compel Dr. Soderquist Records. (Dkt. 208.)
Motion to compel
Defendants seek to compel responses to a subpoena served on Dr. Jean Soderquist, Ph.D. Specifically, Defendants seek records for five counseling sessions. Two of the records pertain to sessions between Dr. Soderquist and Plaintiff's ex-wife. The other three records relate to joint sessions with Dr. Soderquist, Plaintiff's ex-wife, and Plaintiff. Plaintiff resists the motion to compel, arguing that the records at issue are Plaintiff's ex-wife's privileged records and that she has not waived her privilege.
Dr. Soderquist filed an untimely opposition to Defendants' motion to compel. (ECF No. 224.) The court might ordinarily strike this tardy opposition because it was filed with no explanation from Dr. Soderquist for responding nearly three months after the initial motion was filed. Yet the court finds it need not strike the motion because it only repeats Plaintiff's arguments regarding Jaffee and makes an argument, without citation, that the records are "not related . . . to the issues in this lawsuit." (Id.)
a. Dr. Soderquist must produce records of joint therapy
While patients enjoy a privilege in psychotherapy records, Plaintiff's ex-wife waived her privilege here. The parties agree that federal law recognizes a psychotherapist-patient privilege.
1. Plaintiff's ex-wife waived any privilege
To allow Plaintiff's ex-wife an opportunity to assert her privilege here, the court ordered Dr. Soderquist to provide Plaintiff's ex-wife with notice of this matter and an opportunity to object by February 17, 2017. (See ECF No. 222.) Dr. Soderquist appears to have complied with this order. (See ECF No. 224, Ex. 1.) As of the date of this Order, Plaintiff's ex-wife has not made any attempt to assert her privilege in the records at issue. Accordingly, the court finds she has waived that privilege for the purposes of this lawsuit.
2. Plaintiff's ex-wife's individual records are not sufficiently relevant
Although this waiver applies to all five records, the court declines to order production of records of Plaintiff's ex-wife's individual meetings with Dr. Soderquist. Federal Rule of Civil Procedure 26(b)(1) provides that discovery should be limited to what is both relevant and "proportional to the needs of the case" based on various considerations. Here, Defendant has not demonstrated that Plaintiff's ex-wife's records are sufficiently relevant to merit production.
Defendants cite several cases to suggest these records are relevant. Yet, the cases Defendants cite address joint marital therapy records rather than individual therapy records of a plaintiff's spouse. Thus, these cases do not suggest that Plaintiff's ex-wife's individual counseling sessions are relevant to Plaintiff's claims here.
Additionally, the court rejects Defendant's suggestion that material is sufficiently relevant if it has "some possibility" of being relevant. The case cited to support this proposition relies on the "reasonably calculated" language of former Rule 26 that has been stricken from the Rule's text, with a note disapproving of that phrase's use to delineate the scope of discovery. See DIRECTV, Inc. v. Puccinelli, 224 F.R.D. 677, 684 (D. Kan. 2004); Fed. R. Civ. P. 26, Advisory Committee Note, 2015 Amendment. Accordingly, the court will not order production of the individual records on the basis there is some "possibility" they are relevant.
3. HIPAA does not preclude compliance with the subpoena
Plaintiff's HIPAA argument appears to overlook the alternative language in 45 C.F.R. § 164.512(e)(1). Plaintiff relies on a portion of the regulation that requires a party who issues a subpoena for records to provide assurance that the subject of the protected health information has been notified of the request. Id. § 45 C.F.R. § 164.512(e)(1)(ii)(A). Yet this argument overlooks an alternative statutory provision. The statute provides that disclosure is likewise appropriate where the party who issues a subpoena provides assurance that it has secured a qualified protective order. Id. § 45 C.F.R. § 164.512(e)(1)(ii)(B). A protective order has been entered in this case. (ECF No. 86.) Plaintiff does not argue that this protective order fails to satisfy the requirements for a "qualified protective order" as defined in HIPAA. Accordingly, HIPAA does not prohibit production of these records.
Based on the foregoing, Dr. Soderquist must produce all records related to Plaintiff's treatment, including joint therapy sessions in which his ex-wife also participated.
For the reasons set forth above, the court:
IT IS SO ORDERED.