This case involves two lawsuits against a doctor, certified nurse midwife, and six registered nurses for medical malpractice in the birth and delivery of L.A.H., a minor. On November 19, 2017, at approximately 4:23 AM, Plaintiff La Shanta Hacking was admitted to St. Lucie Medical Center (“SLMC”) for the delivery of her child. DE 1 at ¶11. According to the Complaint, the attending physician, Dr. Charles Zollicoffer, examined Mrs. Hacking in the morning and did not examine her again until her child was delivered at approximately 5:00 PM. Id. at ¶13. Between that time, Certified Nurse Midwife (“CNM”) Charlyn Coleman and six registered nurses at SLMC cared for Mrs. Hacking and her unborn child. Id. at ¶14. Plaintiffs allege that Dr. Zollicoffer, CNM Coleman and the SLMC nurses were negligent and failed to identify Baby L.A.H.’s multiple episodes of non-reassuring fetal heart rates. Id. at ¶15. Baby L.A.H. was ultimately delivered with her umbilical cord wrapped around her neck, and she suffered from severe metabolic acidosis, which led to her being diagnosed with hypoxic-ischemic encephalopathy. Id. at ¶¶20-21. She now suffers from massive brain damage and will need 24-hour care for the rest of her life. Id. at ¶22.

Plaintiffs La Shanta and Jonathan Hacking, individually and as parents and guardians of L.A.H., filed this lawsuit against the United States under the Federal Tort Claims Act. DE 1. The United States is the named Defendant because Dr. Zollicoffer and CNM Coleman were employed by Florida Community Health Centers, Inc. (“FCHC”) when Baby L.A.H. was delivered. Id. at ¶6a-b. As a federally supported health center, FCHC is a covered entity for purposes of the Federal Tort Claims Act. Id. at ¶6c; see Federally Supported Health Centers Assistance Act of 1992, Public Law No. 102-501, 42 U.S.C. § 233(g)(k) and Federally Supported Health Centers Assistance Act of 1995, Public Law No. 104-73.

Plaintiffs also sued SLMC for medical malpractice in the Nineteenth Judicial Circuit Court of Florida. Hacking v. HCA Health Services of Florida, Inc., d/b/a St. Lucie Medical Center, Case No. 2019-CA-001287. In that lawsuit, Plaintiffs allege that the SLMC nurses involved in Baby L.A.H.’s delivery were negligent in providing care. In both cases, Plaintiffs served subpoenas on SLMC seeking the personnel files of the six nurses at SLMC who treated Mrs. Hacking on the day of her delivery. DE 22. Plaintiffs also requested personnel files belonging to Dr. Zollicoffer and CNM Coleman from the United States. SLMC responded by producing the nurses’ licensing and certification information, but objects to producing the remaining information in the nurses’ personnel files. Id. The United States similarly objects to producing information from the personnel files of Dr. Zollicoffer and CNM Coleman.

*2 SLMC (a nonparty to this action) filed a motion for protective order asking the Court to find that the nurses’ personnel records are irrelevant and protected by privacy rights under the Florida Constitution.[1] DE 22. At a telephonic hearing on June 15, 2020, counsel for the Government made a similar objection regarding Dr. Zollicoffer's and CNM Coleman's personnel files. DE 26. The undersigned gave the Government an opportunity to submit a legal memorandum in support, which was filed on June 29, 2020. DE 31. The undersigned also instructed the parties and SLMC to submit a joint proposed confidentiality order to govern the handling of any personnel documents subsequently disclosed. DE 27. A joint proposed protective order was filed on June 25, 2020, DE 28, and this Court entered a Protective Order on June 26, 2020. DE 30. The undersigned also instructed the parties and SLMC to meet and confer to discuss the contents of the personnel files and determine which documents, if any, were clearly not relevant to the pending litigation. The Government and SLMC were instructed to submit the remaining documents to the undersigned for in camera review. DE 27. On June 29, 2020, they submitted documents from the personnel files of Dr. Zollicoffer, CNM Coleman, and six SLMC nurses to this Court for review.

Rule 26 of the Federal Rules of Civil Procedure – which governs the scope of discovery – provides, in pertinent part, that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed.R.Civ.P. 26. Relevance is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 451 (1978). Courts are required to accord discovery a broad and liberal scope. Milianazzo v. State Farm Ins. Co., 247 F.R.D. 691, 695 (S.D. Fla. 2007); see Rosenbaum v. Becker & Poliakoff, P.A., 708 F. Supp.2d 1304, 1306 (S.D. Fla. 2010). A party resisting discovery has a heavy burden of showing why discovery should be denied. S.E.C. v. BankAtlantic Bancorp, Inc., 285 F.R.D. 661, 666 (S.D. Fla. 2012) (stating that “[g]enerally, the party resisting discovery bears the burden of demonstrating that the requested discovery falls outside the scope of relevancy under Rule 26”).

Similar to discovery for parties to a case, discovery for nonparties is “often required.” Adelman v. Boy Scouts of America, 276 F.R.D. 681, 692 (S.D. Fla. 2011) (citing Ricchetti v. Starfish Beach South, S.A., 2010 WL 5437259, at *3 (S.D. Fla. Dec. 27, 2010)). While courts acknowledge nonparties’ preference for anonymity and privacy, “the understandable desire for privacy must give way to [a litigating party's] rights to discovery.” Hubbard v. Bankatlantic Bancorp, Inc., 2009 WL 3856458, at *5 (S.D. Fla. Nov. 17, 2009). Discovery requests for nonparties are often allowed even when they seek “comparatively personal and private information.” Adelman, 276 F.R.D. at 695. The right to discovery often outweighs the “right to privacy in [Article I § 23] of the Florida Constitution, if safeguards are implemented.” Id.

The Government and SLMC make several arguments against disclosure of the employee personnel files at issue in this case. First, they argue that their employees’ privacy rights under the federal Privacy Act and Florida Constitution weigh against disclosure of the personnel files. Second, they contend that documents within the personnel files are not relevant to the litigation. Third, SLMC argues that disclosure of the nurses’ personnel files would reveal propriety information regarding the methodology SLMC uses to evaluate its nurses. Fourth, SLMC argues that Fla. Stat. § 766.101 prohibits discovery of nurses’ committee evaluations. The undersigned addresses each of these arguments in turn.

The Government argues that the federal Privacy Act prohibits it from disclosing Dr. Zollicoffer's and CNM Coleman's personnel records. The Privacy Act “regulates the collection, maintenance, use and dissemination of an individual's personal information by federal agencies.” 5 U.S.C. § 552a. It allows government agencies to release information about individuals only under certain circumstances, such as upon issuance of a court order. 5 U.S.C. § 552a(b); Romeo v. Israel, 2016 WL 3646858, at *4 (S.D. Fla. June 28, 2016) (quoting Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1447 (11th Cir. 1984)). “Requests for court orders under 5 U.S.C. § 552a(b)(11), should be evaluated by balancing the need for the disclosure against the potential harm to the subject of the disclosure.” Perry, 734 F.2d at 1447. When balancing the need for disclosure against potential harm, courts have found information contained in government files outweigh privacy interests where the information “may likely lead to the discovery of admissible evidence that is relevant to a [party's] case.” Romeo, 2016 WL 3646858, at *4.

*3 SLMC bases its privacy arguments on article 1, section 23 of the Florida Constitution. In Alterra HealthCare Corp. v. Estate of Shelley, 827 So.2d 936 (Fla. 2002), the Florida Supreme Court explained that Florida recognizes a right to privacy, but that “the right is a personal one, inuring solely to individuals.” Id. at 941. Consequently, SLMC – as the employer – does not have standing to object based on its nurses’ privacy rights. Moss v. GEICO Indem. Co., 2012 WL 682450, at *4 (M.D. Fla. Mar. 2, 2012) (citing Alterra HealthCare Corp., 827 So.2d at 940). And, the nurses whose personnel files are at stake have not intervened to object on their own behalf. Nevertheless, a court “should fully consider the employees’ alleged privacy interest—in the context of determining the relevancy of any discovery request which implicates it—regardless of whether the subject employees have intervened or not.” Alterra HealthCare Corp., 827 So.2d at 947. A court must balance “the right to privacy and the right to know.” Id. at 946 (quoting Montana Human Rights Div. v. City of Billings, 649 P.2d 1283, 1290 (Mont. 1982)). It must weigh the employees’ privacy interests against the litigants’ need for the information, its probative value and their right to fully litigate their case. In doing so, it must “assure that only those portions of the pertinent personnel files, which are clearly relevant to the parties’ claims, are open to disclosure.” Williams v. The Art Institute of Atlanta, 2006 WL 3694649, at *10 (N.D. Ga. Sept. 1, 2006) (quoting Onwuka v. Federal Express Corp., 178 F.R.D. 508, 517 (D. Minn. 1997)) (internal quotations omitted). Courts should “exercise caution in permitting the discovery of information which may embarrass non-party employees.” Moss v. GEICO Indem. Co., 2012 WL 682450, at *5 (M.D. Fla. Mar. 2, 2012).

This Court has carefully reviewed the personnel files of the six SLMC nurses, Dr. Zollicoffer and CNM Coleman. Each document has been considered to determine its relevance and Plaintiffs’ need for the information. Upon review, this Court finds that all of the documents submitted from the personnel files of the six SLMC nurses are relevant. The documents consist of each nurse's job appraisals, competency quizzes, and training checklists. The parties are entitled to have this information to prove or disprove issues regarding the nurses’ qualifications and expertise. See, e.g., Kafie v. Northwestern Mutual Life Ins. Co., 2011 WL 4636889, at *2 (S.D. Fla. Oct. 6, 2011) (finding personnel documents discussing employee's job performance, compensation, evaluation, discipline, training, educational background, work duties, and hours of work to be relevant); Turner v. Geico Indem. Co., 2011 WL 11769047, at *2 (S.D. Fla. Sept. 8, 2011) (finding personnel files about employee's training, supervision, competence, abilities, shortcomings, and performance standards to be relevant); Mancuso v. Florida Metropolitan University, Inc., 2011 WL 13213836, at *3 (S.D. Fla. Jan 31, 2011) (finding files relating to employment evaluations, peer reviews, sanctions, complaints grievances and reports to be relevant, while documents relating to medical, financial and personal background were not relevant).

As for the personnel files of Dr. Zollicoffer and CNM Coleman, this Court finds that some of the documents contained therein must be produced. Specifically, the Government must disclose documents regarding their job descriptions, job titles, and performance evaluations, but need not disclose information pertaining to their employment contracts, rates of pay, annual raises, and general correspondence with human resources. The latter categories are not relevant, and the employees’ privacy rights strongly outweigh Plaintiffs’ need for the information.[1]

*4 The parties and SLMC are reminded that the Protective Order entered at DE 30 governs the handling of all personnel documents disclosed in this case. The Protective Order's provisions are to be strictly followed in order to minimize the intrusion on third party employees’ privacy rights. See Mancuso, 2011 WL 13213836, at *2 (finding a protective order sufficient to protect employee's confidential and personal information).

SLMC's remaining arguments are without merit. Any proprietary information about the methodology SLMC uses to evaluate its nurses is sufficiently protected by the Protective Order at DE 30. See, e.g., Corcel Corp. v. Ferguson Enterprises, Inc., 291 F.R.D. 680, 681 (S.D. Fla. 2013) (finding a protective order sufficient to prevent harm from disclosure of trade secret or commercial information); Mancuso, 2011 WL 13213836, at *2 (finding a protective order necessary to protect proprietary business information). Further, the statute SLMC relies on to prevent discovery of its nurses’ committee evaluations, FL ST § 766.101, has been held unconstitutional by Florida appellate courts and called into doubt by the Florida Supreme Court. See Florida Hosp. Waterman, Inc. v. Buster, 984 So.2d 478 (Fla. 2008); Bartow HMA, LLC v. Edwards, 175 So.3d 820 (Fla. Dist. Ct. App. 2015). More to the point, none of the documents submitted from the nurses’ personnel files appear to be “committee evaluations” as that term is generally used in the case law.

Accordingly, it is therefore,

ORDERED AND ADJUDGED that Non-Party SLMC's Motion for Protective Order [DE 22] is DENIED. SLMC shall produce the personnel documents submitted to this Court to Plaintiffs within seven (7) days of this Order. It is further,

ORDERED AND ADJUDGED that SLMC's Motion for Protective Order relating to the Labor and Delivery Log is DENIED as moot based on the parties’ representation at the hearing held on June 15, 2020 that this issue has been resolved. It is further,

ORDERED AND ADJUDGED that the relief requested in Defendant United States’ ore tenus Motion [DE 33] and Memorandum of Law in Support of Privilege Log [DE 31] is DENIED IN PART. Defendant shall produce documents 6, 10, 12, 13, 15, 16, 17, 18, 19, 20, 21, 24, 25, 26, 28, 31, 32, 34, 38 and 43 submitted to this Court to Plaintiffs within seven (7) days of this Order. Defendant's Motion to protect documents 1, 2, 3, 4, 5, 7, 8, 9, 11, 14, 22, 23, 27, 29, 30, 33, 35, 36, 37, 39, 40, 41 and 42 from disclosure is otherwise GRANTED.

DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 28th day of July, 2020.

In DE 22, SLMC also objects to Plaintiffs’ request for an unredacted copy of the labor and delivery log maintained by SLMC on November 19, 2017. At the telephonic hearing held on June 15, 2020, SLMC and Plaintiffs indicated that the dispute over the labor and delivery log has been resolved.

The Court also finds that one of Dr. Zollicoffer's records, US Privilege Log Entry #8, need not be disclosed although it is an Employee Counseling Report. As explained in the signed declaration of Dr. Wilhelmina Lewis, Chief Medical Officer of FCHC, the Counseling Report counsels Dr. Zollicoffer regarding a wholly administrative matter having little to do with patient care. In addition, it predates the events of November 19, 2017, and the undersigned sees no relevance of that document to the present case.