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Maysey v. Henkel Corp.

United States District Court, W.D. Kentucky, Bowling Green Division

January 5, 2018

NATHANIEL EDWARD MAYSEY PLAINTIFF
v.
HENKEL CORPORATION; HENKEL AG & CO. KGAA; and NEMAK USA, INC. DEFENDANTS

          GREG N. STIVERS JUDGE.

          MEMORANDUM OPINION AND ORDER

          H. BRENT BRENNENSTUHL UNITED STATES MAGISTRATE JUDGE.

         Before the Court are two related motions. DN 60 is the motion of Defendant Henkel Corporation to compel compliance with a subpoena issued to non-party Rivendell Behavioral Health. No response has been filed to the motion. Also before the Court is DN 66, Plaintiff Maysey's motion to quash the subpoena and for entry of a protective order governing production and disclosure of other discovery in the case. Henkel filed a response at ¶ 69 and Maysey has not filed a reply.

         The Subpoena Issued to Rivendell

         On September 25, 2017, Henkel filed a notice that it had served five subpoenas on physicians and healthcare entities, in conformance with Fed.R.Civ.P. 45(a)(1)(D)(4) (DN 44). Among those listed was Rivendell. Attached was a copy of the subpoena requesting “any and all medical records pertaining to Nathaniel Edward Maysey” (DN 44-1). The production was specified to take place at counsel's office in Fort Wright, Kentucky, at 10:00 a.m. on October 19, 2017. The subpoena was served by certified mail on September 27, 2017 (DN 60-1).

         Henkel's Motion to Compel Compliance

         Rivendell has not filed an objection of record or moved to quash the subpoena. Henkel's counsel advises, however, that it did respond with a letter indicating that it would provide the requested medical information only with Maysey's written authorization or in compliance with a court order (DN 60). Henkel attached a letter from Darla Harwood, Rivendell's Health Information Management Director in which she states that the requested records are psychiatric records subject to privilege under Ky. R. Evid. 507 (DN 60-2). Her letter sets forth Rivendell's position that it will only provide the records with a patient authorization or court order.

         Henkel states that, as Plaintiff has been unwilling to execute a release, it seeks judicial compulsion of Rivendell's records. Henkel also noted that, as of the date of filing the motion on November 10, 2017, Maysey had not objected to the subpoena.

         Maysey's Motion to Quash

         Maysey filed his motion on November 22, 2017 (DN 66).[1] He brings the motion under Fed.R.Civ.P. 45(d)(3)(A)(iii), contending that he has standing to move to have the subpoena quashed because it seeks medical records in which he has a personal privacy interest. Maysey advances several arguments for why Rivendell should not be compelled to produce his medical records:

1. The records are afforded psychiatrist-patient privileged status under Ky. R. Evid. 507, and, as this is a diversity case, the Court is obliged to recognize the privilege;
2. The requested records bear no relevance to the subject of this action, which involves injuries Maysey sustained in an industrial accident. Maysey characterizes the nature of the treatment received at Rivendell as “adolescent counseling.”
3. The scope of the subpoena is excessive and would encompass information which has no bearing on the issues in the case.
4. Production of the information would place Henkel in a position of unfair advantage because Maysey's concern over disclosure of the ...

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