I. BACKGROUND

Pursuant to the Court's required procedures for raising discovery disputes, see Scheduling Order [22] at 1–2, Plaintiff requested, and on September 27, 2019 the Court held, a teleconference to discuss her objections to five subpoenas that Defendant indicated it would be serving on Plaintiff's medical providers and other third parties. See Min. Entry [60]. In a follow-up teleconference on October 4, 2019, the Court issued rulings on Plaintiff's objections. See Min. Entry [61].

In rulings relevant to this Order, the Court on October 4, 2019 overruled Plaintiff's objections to Defendant's subpoenas to three medical providers (Drs. Kahn, Lewis, and Barnwell) who in total saw Plaintiff from approximately 2007 through approximately late 2013, to the extent those subpoenas sought records relating to complaints and/or treatment of mental health-related issues. See Min. Entry [61]. The Court sustained the objections to the extent the subpoenas to these providers sought non-mental health related records. The Court further agreed to Plaintiff's request that she propose redactions to withhold records relating solely to non-mental health issues and that the Court review those proposed redactions in camera prior to production to Defendant.

Subsequently, at Plaintiff's request, the Court held another discovery teleconference on November 4, 2019. See Min. Entry [66]. The subject of this call related to subpoenas to medical providers during the more current time period of this case. The Court denied Plaintiff's request to quash or modify several new subpoenas directed by Defendant to psychological care providers. Id. Plaintiff also objected to additional subpoenas directed to general medical providers during the 2015 to the present timeframe. As to the latter category of subpoenas, the Court declined to make a final ruling but agreed to review the records in camera to determine whether the information is discoverable vis-à-vis Plaintiff's claims for emotional distress-related damages and/or the disability issues in this case.

On November 8, 2019, pursuant to the rulings set forth above, Plaintiff submitted to the Court in camera medical records from the following providers for the following time periods: Dr. Carter Gibson, 12/26/18–3/22/19; Kaiser Permanente (Drs. Dien T. Nguyen and Marcus Griffith), 1/5/2018–10/5/2018; Dr. B. Abraham, 3/19/15–1/22/17; Family Care of Hillandale (Drs. Arlene Lewis and Kenneth Barnwell, 11/10/11–2/20/14).

II. ANALYSIS

The Court employs the rules and standards governing discoverability in assessing whether and to what extent to allow Plaintiff's proposed redactions of her medical records.

Rule 26(b)(1) of the Federal Rules of Civil Procedure defines the scope of discovery as including “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(b)(1). “The Federal Rules of Civil Procedure strongly favor full discovery whenever possible.” Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). Under the recent Amendments to Rule 26(b), however, the Court is to apply proportionality considerations in a given case to determine, on a case-specific basis, the appropriate scope of discovery. See In re Arby's Restaurant Group, Inc. Litigation, 1:17-MI- 5555-AT, 2018 WL 8666473, at *1 (N.D. Ga. Aug. 6, 2018). These proportionality considerations include: 1) the importance of the issues at stake; 2) the amount in controversy; 3) the parties' relative access to relevant information; 4) the parties' resources; 5) the importance of the discovery in resolving the issues; and 6) whether the burden or expense of proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1); In re Arby's, 2018 WL 8666473, at *1.

*2 Although the material at issue here is being sought by way of non-party subpoenas under Rule 45—as opposed to requests for party discovery—“the scope of subpoenas for production of documents pursuant to Rule 45 ‘is the same as the scope of discovery under Rule 26(b) and Rule 34.’ ” Dering v. Serv. Experts All. LLC, No. 1:06–CV–00357–RWS, 2007 WL 4299968, at *2 (N.D. Ga. Dec. 6, 2007) (quoting Commissariat a L'Energie Atomique v. Samsung Elec. Co., No. 8:06–mc–44–T–30TBM, 2006 WL 5003562, at *2 (M.D. Fla. June 14, 2006)); Chamberlain v. Farmington Sav. Bank, No. 3:06CV01437 (CFD), 2007 WL 2786421, at *1 (D. Conn. Sept. 25, 2007) (“It is well-settled that the scope of discovery under a Rule 45 subpoena is the same as that permitted under Rule 26.”).

The allegations in this case are outlined in detail in the Court's Non-Final Report and Recommendation dated June 27, 2019.[1] See [42]. In sum, Plaintiff alleges that she suffered from sexual harassment from her supervisor, Defendant Shahar, while employed with the City of Atlanta law department, beginning in at least February 2016. Plaintiff alleges that she was ultimately terminated in July 2017, after having been placed on medical leave several months earlier for a psychological episode that occurred after Shahar allegedly engaged in further unwanted sexual advances. Plaintiff brings several claims relating to her termination and other alleged adverse actions, including for sexual harassment/gender discrimination, discrimination under the Americans With Disabilities Act, violations of the Family Medical Leave Act, and retaliation for protected activity under various statutes.

Plaintiff seeks damages for emotional distress and mental anguish. Plaintiff does not argue that her emotional distress claim can be characterized as “garden variety.” Indeed, to the contrary, Plaintiff points out that she suffers from and has been treated for a psychological condition and alleges that this condition was exacerbated by Defendant's actions in this case, and that these circumstances have contributed to Plaintiff's emotional distress damages. Thus, by affirming putting at issue her own condition, Plaintiff has made her own medical records potentially subject to discovery, at least to some degree, greater than if she were pursuing a garden variety emotional distress claim. Further, Plaintiff's psychological condition is intertwined with other issues in the case, as it was the basis of her FMLA leave and her alleged disability.

As explained on the record during the October 4, 2019 teleconference, which pertained to subpoenas for medical records in the 2007–2013 timeframe, the Court balanced the competing concerns and found that considerations of proportionality supported the Defendant's efforts to obtain mental health-related treatment records during this period. Pursuant to this ruling, Plaintiff has now submitted records from Family Care of Hillendale (Drs. Lewis and Barnwell) (“Family Care”) to the Court for its in camera review to determine whether the records contain records subject to discovery pursuant to the October 4 ruling. In her submission to the Court, Plaintiff proposes that all of these records be redacted and that essentially Defendant not receive anything of substance from this provider.

*3 The Court sustains and approves of Plaintiff's proposed redactions of the Family Care records. These records include summary charts showing vital signs, lab test results, and very brief summaries regarding a few visits in 2012 and 2013. The only substantive notes describing any particular visit relate to a November 12, 2013 visit for the apparent purpose of seeking treatment for an acute physical issue. This note references, apparently as a secondary matter, that Plaintiff reported suffering from “fatigue.” But the treatment, from this general medical provider, appeared focused on a physical issue unrelated to any allegation in the Complaint. The Court cannot find that the principles of proportionality support discovery of these records, which pre-date by more than two years any alleged act of sexual harassment by Shahar, pre-date Plaintiff's medical leave in this case by three years, pre-date Plaintiff's termination by nearly four years, and relate principally to an unrelated and, as far as the Court can tell from other records, isolated physical ailment. Whatever probative value might be associated with an isolated and secondary complaint of “fatigue” from this earlier timeframe is minimal at most, and not proportional to the privacy intrusions inherent in any discovery of medical records (and these records in particular).

The remaining records relate to a timeframe that is of significantly greater importance in this case, that is, 2015 through early 2019. This period begins less than a year prior to the onset of the alleged harassment and includes the entire period during which Plaintiff was allegedly suffering from sexual harassment, was on leave for medical-related issues, was terminated, and then allegedly continued to suffer emotional distress damages post-termination. As there is significantly greater relevance and importance to the Plaintiff's medical conditions during this timeframe—including mental health conditions and other conditions that could potentially contribute to alleged emotional distress or related “loss of enjoyment of life” damages—the Court is more permissive of Defendants' efforts at seeking this discovery.

The Court has carefully reviewed these records and is simply unable to find that any of the records can be appropriately shielded from discovery in this case and/or that these records can be properly understood after applying Plaintiff's very extensive proposed redactions. Indeed, Plaintiff even proposes to redact clearly discoverable medical findings, including a notation during a March 2019 visit that Plaintiff is suffering from “no depression or emotional problems or concerns, no psychiatric symptoms.” Dr. Gibson Records at 10. While the issues discussed in these records may be predominantly physical in nature, the Court is not in a position to play doctor and declare that at least some of the conditions referenced could not have caused or contributed to Plaintiff's emotional distress, or to symptoms that she might attribute to her emotional distress during the relevant time period, including loss of sleep or appetite or “enjoyment of life.” The records also document the medications Plaintiff was taking during the relevant time period, and the Court is not in a position to declare that none of these medications or their side effects could have potentially impacted or contributed to Plaintiff's “enjoyment of life.” The Defendants should be allowed, at a minimum, to review the records for themselves and consult with their expert(s) on the issue.

Thus, based on these and other careful considerations, the Court resolves the balancing of factors in favor of providing Defendant full access to the records subpoenaed from Kaiser Permanente, Dr. Gibson, and Dr. Abraham. In other words, the Court overrules Plaintiff's proposed redactions. While, as noted above, there are always some concerns as to privacy relating to discovery into medical records, the Court finds those concerns to be outweighed by the potential probative value of the records that relate to the timeframe covered by these records. Moreover, the Court has executed a Consent Protective Order [52], which protects Plaintiff against unnecessary dissemination of this private information beyond purposes necessary for this case.

III. CONCLUSION

As explained above, and after its in camera review, the Court SUSTAINS IN PART AND OVERRULES IN PART Plaintiff's proposed redactions to the medical records described above. Plaintiff is ORDERED to produce unredacted records from Kaiser Permanente, Dr. Gibson, and Dr. Abraham, and redacted records from Family Care, within ten (10) days of this Order.

*4 Several materials were presented to the Court in camera and have not been formally filed. The CLERK is DIRECTED to file the briefs submitted by each party on the public docket and to file the two binders of medical records submitted by Plaintiff UNDER SEAL. As for the binder entitled “Redacted Medical Records,” access may be permitted to all counsel in the case and Court personnel; as for the binder entitled “Unredacted Medical Records,” access is only to be permitted to Plaintiff's counsel and Court personnel.

IT IS SO ORDERED this 14th day of November, 2019.

The Non-Final Report and Recommendation summarized the factual allegations and claims in the original Complaint [1], which has since been amended [48]. However, the differences between the two complaints are immaterial vis-à-vis the discovery issues currently before the Court.