ORDER GRANTING PLANTIFFS' MOTION TO OVERRULE OBJECTIONS AND COMPEL PRODUCTION OF SUBPOENAED DOCUMENTS (DKT. 58)

TERRENCE G. BERG, District Judge.

This is a case involving claims of negligence and deliberate indifference against the Novi Community School District and certain teachers there, for failing to protect Plaintiff Joe R., a student, from alleged sexual harassment and abuse at the hands of J.J., a classmate.1 (See Dkt. 12.) J.J. is not a party to this action. (See id.) Plaintiffs' Amended Complaint presents claims under Title IX, 20 U.S.C. §1681, et seq., 42 U.S.C. § 1983, and § 504 of the Rehabilitation Act of 1973/Americans with Disabilities Act of 1990, 42 U.S.C. 12101, et seq. (Id.)

Before the Court is Plaintiffs' unopposed November 24, 2015 motion to compel four non-parties to produce medical records. (Dkt. 58.) During discovery conducted between September and October 2015, Plaintiffs subpoenaed four psychiatric treatment facilities where J.J. was treated: Havenwyck Hospital, Inc., Oakland County Children's Village, Providence-Providence Park Hospital, and New Oakland Family Centers. (See Dkt. 58, Exs. C-F.)

In each subpoena, Plaintiffs requested "any and all records" of J.J. from January 1, 2009 to the present. (Id.) Although this general request is accompanied by a short list of specific categories of materials that is different for each hospital, Plaintiffs seek production from each hospital of their entire file on J.J. (See id.) None of the subpoenaed parties agreed to produce the records without a court order, although Oakland County Children's Village made them available for inspection. (Id. at Exs. G-I.)

The Court discussed this issue with the parties during a telephonic status conference with on November 18, 2015. Plaintiff's Counsel stated that the subpoenaed parties would not produce the requested documents without an order from this Court compelling them to do so for fear of incurring liability under the privacy provisions of the Health Insurance Portability and Accountability Act ("HIPPA"), Pub. L. 104-191, 110 Stat 1936. Plaintiff then sought leave to file a motion to enforce the subpoena. Defense Counsel indicated to the Court that while he would not oppose such a motion, he would not stipulate to the production of the requested documents either. Accordingly, the Court granted Plaintiffs' Counsel leave to file this motion.

Plaintiff's motion to enforce the subpoena is now before the Court. Defendants have filed no response in opposition. Providence-Providence Park Hospital filed a response to Plaintiffs' motion on December 4, 2015 explaining its reasons for not producing the subpoenaed documents. (Dkt. 63.) Providence-Providence Park Hospital contends that although it does not generally oppose producing the requested documents,2 it believes that it may not do so under Michigan law or HIPPA without "a HIPAA-compliant patient authorization or a direct order signed by a judge."3 (Id. at 9.) None of the other subpoenaed parties have filed any objections to Plaintiffs' motion.

As Plaintiffs note in their motion, a stipulated protective order was entered in this case on April 22, 2015. (Dkt. 33) Moreover, the issue of whether HIPPA creates an evidentiary privilege was previously litigated and resolved in this case by the Honorable Magistrate Judge R. Steven Whalen. (See Dkt. 49.) On June 29, 2015, Plaintiffs filed a substantially similar motion to compel, seeking to require Defendant Novi Community School District to produce documents "directed at NSD's knowledge of the propensities of J.J., the alleged abuser, including his disciplinary records, behavior records, reports, correspondence, and electronically stored information, among other documents." (Dkt. 41, p. 9.) Defendants objected, asserting that HIPPA and the Federal Educational Rights and Privacy Act ("FERPA") prohibited the production of the requested documents. (See Dkt. 41, Ex. H.)

Judge Whalen held a hearing in that matter on August 6, 2015 and issued an order granting Plaintiffs' motion to compel that same day subject to the protections stated on the record and in the order. (See Dkt. 49.) In his order, Judge Whalen held that both HIPPA and FERPA "provide for disclosure of otherwise confidential information `in compliance with a judicial order,' for use in a judicial proceeding." (Id. at 1.) After finding that "this litigation exception" applies in this case, Judge Whalen ruled that, as a general matter, the FERPA and HIPPA statutory confidentiality provisions "do not create evidentiary privileges." (Id.)

Magistrate Judge Whalen's Order is supported by the statute, the regulations, and the case law.4 It is also the law of the case in this matter. There is no reason to reconsider that ruling. The Court finds no basis, nor do Defendants or the subpoenaed parties provide any, for disturbing Judge Whalen's reasoning and conclusions, as stated on the record during the August 6, 2015 hearing and in the Order issued that same day. The only question before the Court, therefore, is whether the records sought are relevant within the broad scope of Rule 26(b)(1) of the Federal Rules of Civil Procedure. Neither Defendants nor the subpoenaed parties assert any form of privilege or claim to confidentiality.

Accordingly, the requested records must be produced if they relate to any claim or defense raised in the present action. This case involves very serious allegations of sexual abuse and Defendants' alleged deliberate indifference to the elevated risk of such abuse. Plaintiffs must show Defendants had knowledge of the alleged abuse and were deliberately indifferent to it. Evidence that Defendants had knowledge of J.J.'s behavioral history would be relevant to showing that Defendants had ignored the elevated risk posed by J.J.'s conduct. See, e.g., Lopez v. Metropolitan Gov't of Nashville, 646 F.Supp.2d 891, 915-16 (M.D. Tenn. 2009) (Title IX liability not limited to a federal education funding recipient's knowledge of, and deliberate indifference to, the alleged harassment of a particular individual; Title IX claims can be based on the recipient's knowledge of, and deliberate indifference to, a particular harasser's conduct in general.)

Plaintiffs are requesting documents related to J.J.'s behavioral history and propensities including his psychiatric and behavioral records, medical assessment and testing records, counseling and therapy reports, and correspondence. (See Dkt. 58, Exs. C-F.) Plaintiffs assert, and Defendants and the subpoenaed parties do not challenge, that the requested materials "are directly relevant and go to the heart" of Plaintiffs' claims. (Dkt. 58, p. 10.) The Court agrees.

For the reasons stated above, the Court finds that HIPAA does not create an evidentiary privilege as a matter of law and any documents produced in response to Plaintiffs' subpoenas are subject to the stipulated protective order previously entered in this case. For the convenience of the subpoenaed parties, the Court attaches a copy of this stipulated protective order (Dkt. 33) as Exhibit 1, and a copy of Magistrate Judge Whalen's August 6, 2015 order granting Plaintiff's previous motion to compel (Dkt. 49) as Exhibit 2. The subpoenaed parties are hereby ORDERED to produce the documents called for in the subpoenas within 21 days of the date of this order.

SO ORDERED.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

STIPULATED PROTECTIVE ORDER

WHEREAS, in the course of discovery in the above captioned civil action ("Lawsuit"), it may be necessary for the parties to disclose sensitive information affecting a minor's legitimate privacy rights, including but not limited to, confidential medical and educational information;

IT IS HEREBY ORDERED that this Protective Order is hereby entered pursuant to Fed. R. Civ. P. 26(c).

DEFINITIONS

The following definitions shall apply to this Protective Order:

A. "Confidential Information" means any information, documents and data which relate to any minor's legitimate privacy interests, educational records as defined by the Family Education Rights and Privacy Act ("FERPA") 20 U.S.C. § 1232g, and all health care records, including all copies, excerpts or summaries therefrom, and all information derived therefrom. Confidential Information includes those portions of any documents which contain the names of minors or their parents, or the residence address or other identifying information related to minors or their parents.

B. "Qualified Person" means:

ORDER

1. Where applicable, this Order shall govern all depositions, documents produced in response to requests for production of documents, answers to interrogatories, responses to requests for admissions and all other discovery taken pursuant to the Federal Rules of Civil Procedure, as well as testimony adduced at trial and other materials which the disclosing party properly designates as Confidential Information hereafter furnished, directly or indirectly, by or on behalf of any party in connection with this Lawsuit.

3. Confidential Information may be disclosed only to a Qualified Person.

4. Information and materials produced or discovered in this litigation that is properly designated as Confidential Information under the strict terms of this Order, shall be used solely for the prosecution or defense of this Lawsuit, unless that information has become publicly available without a breach of the terms of this Order.

5. Qualified Persons shall be provided with a copy of this Protective Order and must agree to comply with same prior to receiving Confidential Information. Qualified Persons who receive any Confidential Information hereby agree to subject themselves to the jurisdiction of this Court for the purpose of any proceedings relating to the performance under, compliance with or violation of this Order.

6. In the event that any Confidential Information is used in any court proceeding except trial in connection with this Lawsuit, they shall not lose their confidential status through such use, and the parties and the Court shall take all steps reasonably required to protect its confidentiality during such use. A party seeking to protect information during trial must apply to the Court for protection of the material or testimony they seek to protect.

7. Disclosure of Confidential Information to a person other than a "Qualified Person" may occur only upon the prior written consent of the party who produced and designated the information as confidential, or upon the information losing its protected status in accordance with the provisions of this Order, or upon order of the Court.

8. Nothing in this Order shall preclude any party to the Lawsuit or its counsel: (a) from showing a document designated as Confidential Information to an individual who either prepared or reviewed the document prior to the filing of this Lawsuit; or (b) from disclosing or using, in any manner or for any purpose, any information or documents from the party's own files which that party itself has designated as Confidential Information.

9. In the event that any party to this litigation disagrees with the propriety of a Confidential Information designation, such party shall provide to the producing party within 30 days after such designation, written notice of its disagreement. The parties shall first try to resolve such a dispute in good faith. If the dispute cannot be so resolved, the party disputing the claim of confidentiality may, after such formal written notice, ask the Court to make an independent determination as to whether the disputed information is Confidential Information, as defined above. The information shall be treated as confidential pending a determination of the court.

10. Nothing contained in this Order shall affect the right of any party to make any objection, claim of privilege, or otherwise contest any request for production of documents, interrogatory, request for admission, or question at a deposition as permitted by the Federal Rules of Civil Procedure. Nothing in this Order shall constitute an admission or waiver of any claim or defense by any party.

11. Within ninety (90) days after the termination of this Lawsuit, all Confidential Information, and all copies thereof shall be assembled and returned to the party which produced it or otherwise it shall be destroyed and a certification of destruction shall be provided to the party which produced it upon request.

12. Third parties from whom discovery is sought in this Lawsuit may utilize this Order to protect Confidential Information produced by them if they notify all parties of their intent to do so and agree to be bound by the terms of this Order and jurisdiction of this Court to enforce this Order.

13. This Order does not authorize the filing of any documents under seal. Documents may be sealed only if authorized by statute, rule, or order of the Court. A party seeking to file under seal any paper or other matter in any civil case pursuant to this section shall file and serve a motion or stipulation that sets forth (i) the authority for sealing; (ii) an identification and description of each item proposed for sealing; (iii) the reason that sealing each item is necessary; (iv) the reason that a means other than sealing is not available or unsatisfactory to preserve the interest advanced by the movant in support of the seal; and, if a party files a motion only, (v) a memorandum of legal authority supporting the seal. See Local Rule 5.3. No party shall file or otherwise tender to the Clerk any item proposed for sealing unless the Court has entered an order allowing filing under seal.

14. Whenever a motion or stipulation to seal is filed, the party seeking to file under seal shall submit a proposed order which states the particular reason the seal is required. The proposed order shall be submitted via the link located under the "Utilities" section of CM/ECF.

15. This Order may be modified, amended or vacated by further order of the Court upon the motion of any party for good caused shown.

16. This Order will survive the termination of this litigation between the parties to the extent necessary to affect the provisions hereof.

IT IS SO ORDERED.

Exhibit A

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

ORDER

For the reasons and under the terms stated on the record on August 6, 2015, Plaintiffs' Motion to Overrule Objections to Requests for Production and to Compel production of Discovery [Doc. #41] is GRANTED to the extent that the discovery at issue will be produced subject to the protections set forth below and stated on the record, but DENIED as to Plaintiffs' request for sanctions.

Both the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g(b)(2)(B), and the Health Insurance Portability and Accountability Act ("HTPAA"), 42 U.S.C. § 1320d; 45 C.F.R. § 164.512(e), provide for disclosure of otherwise confidential information "in compliance with a judicial order," for use in a judicial proceeding. This litigation exception to disclosure applies here. See Edmonds v. Detroit Pub. Sch. Sys., 2012 WL 5844655, *3 (E.D. Mich.2012). Statutory confidentiality provisions such as those under FERPA and HIPAA do not create evidentiary privileges. See Seales v. Macomb County, 226 F.R.D. 572, 577 (E.D. Mich. 2005).

Production of documents that fall within FERPA and HIPAA will be subject to the stipulated protective order entered in this case [Doc. #33]. In addition, documents that fall within FERPA will be subject to the condition that Defendant Novi Community School District make a reasonable effort to notify student JJ and his parents of this Order "in advance of the compliance therewith." 20 U.S.C. § 1232g(b)(2); Edmonds at *4.1

All discovery covered by this Order shall be produced within 21 days of the date of this Order.

IT IS SO ORDERED.