By Meghan Droste, March 13, 2019
Our discussion of tips to make the discovery process more efficient continues this month with a topic that is near and dear to me—in other words, something that drives me crazy on a regular basis; something that counsel for agencies (and other employers, this is by no means unique to the federal sector) do all of the time and then seemed shocked when I push back; something that results in a lot of wasted time arguing when it could be straight forward if done properly. What could be so bad? What could drive me to distraction, or at least to writing a mini-rant to you? Overly broad medical releases and requests for medical information. I know, maybe not as scary as you were expecting based on my build up, but stick with me.
First, some basics on medical information in discovery in general. As those of you have attended Absence, Leave Abuse & Medical Issues Week know, there are very specific, and limited, circumstances in which an agency is entitled to an employee’s medical information. Agencies are never, even in discovery, permitted to go on a fishing expedition or to dig around in an employee’s medical records simply because the agency is curious about possible medical conditions or methods of treatment.
One of the permissible times is the enforcement of the Rehabilitation Act. That means that an agency may be entitled to information about conditions that substantially limit major life activities when a complainant alleges a failure to accommodate. However, if there is no dispute about whether the complainant is an individual with a disability—if the agency determined at the time that the complainant was entitled to an accommodation and/or if the condition and need for accommodations is obvious—there is no need to obtain this information in discovery. Please don’t try. It’s a waste of the agency’s discovery requests and the complainant will likely push back on it. If you move to compel you will likely have a difficult time explaining why the agency needs medical documentation of a condition it is not contesting.
Now, on to the more common example of this problem: when a complainant in any type of case is seeking compensatory damages for the emotional distress the complainant suffered as a result of the agency’s actions. Too often in these situations I see the agency send out a broad medical release asking the complainant to sign off on the agency obtaining information from all of the complainant’s doctors about all of the complainant’s conditions for which the complainant has ever sought treatment. That’s right, a completely blanket release for all medical information ever. Do not do this. This can also take the form of an incredibly broad discovery requests asking for the names of all doctors from whom the complainant has ever sought care with a description of all conditions and all treatments with no limitation on time frame or connection to the alleged discrimination (I wish I was making this up but I really have seen it). Do not do this either. Neither approach is appropriate. Why not? Because an agency is not entitled to a complainant’s entire medical history. The entire history simply isn’t relevant. Your discovery requests should always be limited to the relevant time period—in this situation I would argue no more than a year or two before the events at issue—and to information that is relevant or will lead to the discovery of relevant information. The complainant’s entire medical history is not relevant. Other conditions the complainant suffered from during the relevant time period that were not the result of the agency’s actions and that impacted the complainant’s damages are relevant. A good test for all discovery requests is to ask yourself why are you asking for the information. If you can’t easily provide a one-sentence explanation for how it is directly related to the case—and simply saying that the complainant is seeking damages or requested an accommodation is not specific enough—the request is probably too broad. Droste@FELTG.com