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JOSEPH RUSSONIELLO (CSBN 44332)

United States Attorney

JOANN M. SWANSON (CSBN 88143)

Chief, Civil Division

VICTORIA R. CARRADERO (CSBN 217885)

Assistant United States Attorney

 450 Golden Gate Avenue, Box 36055

 San Francisco, California 94102

 Telephone: (415) 436-7181

 Facsimile: (415) 436-6748

 Email: victoria.carradero@us.doj.gov

Attorneys for Defendant

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

DEAN APOSTOL )

)

Plaintiff, )

)

v. )

)

TOM VILSACK, SECRETARY OF THE )

UNITED STATES DEPARTMENT OF )

AGRICULTURE )

)

)

Defendant. )

)

)

___________________________________)

NO. C 09-1807-MEJ

[PROPOSED] ORDER FOLLOWING

SECOND ORDER TO SHOW CAUSE

HEARING REGARDING PRODUCTION OF

DR. LEE’S MEDICAL RECORDS

REGARDING PLAINTIFF AND RELEASE

OF PLAINTIFF’S RECORDS FROM THE

SOCIAL SECURITY ADMINISTRATION

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This matter came on for hearing on February 18, 2010 on the Court’s Second Order to Show

Cause dated January 25, 2010. Plaintiff Dean Apostol was represented by attorney Arlo Garcia Uriarte. 

Defendant Tom Vilsack, Secretary, United States Department of Agriculture was represented by

Assistant United States Attorney Victoria R. Carradero. 

The Court hereby orders as follows:

Dr. Lee’s Medical Records/Files Regarding Plaintiff

Plaintiff previously executed a release directed to Dr. Paul V. Lee M.D. F.P.P.A, Plaintiff’s

psychiatrist, authorizing him to release Plaintiff’s medical records (including, but not limited to,

treatment, billing and pharmacy records) to Defendant’s counsel. A copy of the release (redacted for

compliance with Federal Rule of Civil Procedure 5.2) is attached to this Order as Exhibit 1. Dr. Lee

failed to release the records to Defendant, requiring Defendant to file a discovery motion, which Plaintiff

did not oppose. See Docket Entry Nos. 17, 20. The Court hereby ORDERS Dr. Lee to immediately

produce to Defendant’s counsel all of Plaintiff’s medical records/information as called for in the release

and complete and current as of the date of production so that they are received by Defendant’s counsel

by no later than March 10, 2010. The Court reiterates that the documents must be sent by Dr. Lee

timely so that they are received by Defendant’s counsel by March 10, 2010 in order to accommodate

other deadlines the Court has set in this case, including, but not limited to, Plaintiff’s deposition. To the

extent reasonable costs are incurred for copying of the records, Dr. Lee shall produce the documents to

Defendant’s counsel first and then submit an invoice to Defendant’s counsel for reimbursement. 

The Court further finds that, had the case proceeded as scheduled, the release Plaintiff signed

would have expired after one year, on or about October 26, 2010 (during the original trial set for this

action). However, because of the substantial delay in production of Dr. Lee’s records and indications

from the parties’ counsel that Plaintiff has interfered with Dr. Lee’s production of the records, several

pre-trial dates have had to be continued and the trial date has been vacated. Accordingly, the Court

hereby further ORDERS that the release Plaintiff executed on or about October 26, 2009 will remain

effective until the conclusion of this case. 

Should Dr. Lee fail to comply with this Court’s order or should Plaintiff interfere with Dr. Lee’s

production of the records, the Court will consider issuing sanctions, including monetary, evidentiary or

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terminating sanctions. 

The Court hereby ORDERS Plaintiff to communicate this order to Dr. Lee within two calendar

days of issuance.

Plaintiff’s Records from the Social Security Administration (“SSA”)

Plaintiff previously executed SSA’s Standard Form 3288 Consent for Release of Information

authorizing the release of records and information about Plaintiff to the U.S. Attorney’s office. A

redacted copy of the release (redacted for compliance with Federal Rule of Civil Procedure 5.2) is

attached as Exhibit 2 to this Order. Defendant submitted the consent form to SSA but was notified by

SSA that some part of the identifying information (name, date of birth, or social security number “SSN”)

was incomplete. However, SSA refused to specify to Defendant exactly which identifying information

was incomplete or incorrect. The parties consulted with each other and determined that the consent form

contained Plaintiff’s correct date of birth and SSN but that Plaintiff’s full name, Dean Mark Francisco

Apostol, was not listed. Accordingly, in November 2009, Defendant requested that Plaintiff execute a

new authorization form containing his full name. Plaintiff left to the Phillippines without returning the

second consent form and without informing Defendant or the Court of his departure. He has apparently

been in the Phillippines for the last several months, thereby substantially delaying this matter. Defendant

filed a discovery motion compelling Plaintiff to execute the second consent form, which Plaintiff did not

oppose. See Docket Entry Nos. 18, 22. 

At the hearing, Plaintiff’s counsel confirmed to the Court that Plaintiff consented to SSA’s release

of records and information about him to the U.S. Attorney’s office and that he did execute the consent

form attached hereto as Exhibit 2. Based upon Plaintiff’s actions and representations to this Court

(including, the execution of the consent form and his attorney’s representations), the Court hereby finds

that Plaintiff has consented to SSA’s release of the information and further finds that such consent is

sufficient for SSA to release the records requested to Defendant’s counsel. 

Accordingly, the Court hereby ORDERS SSA to produce to Defendant’s counsel certified copies

of the records/information requested in Exhibit 2 complete and current as of the date of production so

that they are received by Defendant’s counsel by no later than March 10, 2010. The Court reiterates that

the documents must be sent by SSA timely so that they are received by Defendant’s counsel by March

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10, 2010 in order to accommodate other deadlines the Court has set in this case, including, but not

limited to, Plaintiff’s deposition. 

Though not required in light of this Court’s finding that Plaintiff has consented to release of the

records, as a matter of courtesy to SSA, the Court further ORDERS Plaintiff to execute and return to

Defendant an unredacted version of the second consent form containing his full name attached hereto as

Exhibit 3 (redacted here for compliance with Federal Rule of Civil Procedure 5.2) by no later than

February 25, 2010. Should SSA wish to have a copy of the second consent form for its records, SSA

shall make a written request to Defendant. However, SSA shall not withhold or delay production of the

records based upon, or until receipt of, the second consent form. 

The Court hereby ORDERS Defendant to communicate this order to SSA within two calendar

days of issuance. 

IT IS SO ORDERED.

DATED: __________________________

The Honorable Maria-Elena James

United States Magistrate Judge

February 19, 2010

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Exhibit 1

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Exhibit 2

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Exhibit 3

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