Fedweek Legal

In Moore v. Chertoff, D.D.C., No. 00-953, (May 22, 2006), the U.S. District Court for the District of Columbia held that plaintiffs who claim emotional distress may not shield discovery of their medical records even when they do not plan on having medical providers or experts testify at trial concerning damages.


Plaintiffs, current and former United States Secret Service special agents, filed an action alleging that the Secret Service engaged in a pattern and practice of discrimination against black agents. In the complaint, plaintiffs stated they seek damages based on “emotional distress [which] has been manifested in a variety of ways including, but not limited to, psychological trauma and physical symptoms to be proven at trial.” During discovery, the agency requested that each plaintiff identify any doctor and other health care provider, including any psychiatrists, psychologists, physicians, nurses, therapists, counselors, hospitals, and other health care facilities, who has provided any plaintiff with physical or mental care, treatment, counseling, or consultation during the past ten years. Defendant also requested that plaintiffs “[s]ign and provide fully executed release and consent forms for each and every health care provider plaintiffs identified.”

Plaintiffs objected, and the agency then filed a motion to compel, arguing the records were “plainly relevant” and that it was entitled to explore “whether there were any pre-existing conditions, whether there have been other stress factors in their lives, and whether the evidence otherwise supports or contradicts Plaintiffs’ damage allegations.” The magistrate judge, relying on Sanders v. District of Columbia, Civil Action No. 97-2938(PLF), (D.D.C. Apr. 15, 2002), ruled that because “plaintiffs do not intend to offer the testimony of any health care provider at trial” the government has “no basis upon which to seek discovery of the plaintiffs’ medical records.”

The district court overruled the magistrate, holding that when a plaintiff alleges emotional distress, a defendant is entitled to explore whether causes unrelated to the alleged discrimination contributed to plaintiff’s claimed distress, including obtaining the plaintiff’s relevant medical records. The court held that the plaintiffs’ argument that their medical records are irrelevant because they will not offer expert testimony at trial is “a non sequitur,” and found that Sanders contains no discussion of the defendant seeking medical records to explore whether factors other than the alleged employment discrimination caused plaintiff’s alleged injuries. The court then ordered the plaintiffs to turn over their medical records to the agency.

The lesson to be learned from this case is that when filing a discrimination complaint and requesting compensatory damages for pain and suffering, there is a strong possibility that your employer will request copies of your medical records. While there may be limitations placed on the scope of the request, a complainant should expect that his or her medical records may be disclosed to the agency.


This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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