UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

C.R. and J.R., individually and as 

Next Friends of JOE R., a minor, 

Plaintiffs, 

v. Case No. 14-14531 

 HON. TERRENCE G. BERG 

NOVI COMMUNITY SCHOOL HON. R. STEVEN WHALEN 

DISTRICT, et al., 

 

Defendants. 

 / 

ORDER GRANTING PLANTIFFS’ MOTION TO OVERRULE OBJECTIONS 

AND COMPEL PRODUCTION OF SUBPOENAED DOCUMENTS (DKT. 58) 

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., 

 

1 On October 22, 2015, this case was reassigned to the undersigned from the Honorable Nancy G. 

Edmunds. (Dkt. 55.) 

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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 

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reasons for not producing the subpoenaed documents. (Dkt. 63.) ProvidenceProvidence 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 

 

2 In its response, Providence-Providence Park Hospital states that it “would be happy to produce the 

medical records; however, as discussed above, in order to fully comply with Michigan law, HIPAA, 

and the Michigan Court Rules, the Hospital requires a HIPAA-compliant patient authorization or a 

direct court order signed by a judge.” (Dkt. 63, p. 9.) 

3 HIPPA clarifies when a covered entity can disclose protected health information during a judicial 

proceeding. See 45 CFR § 164.512(e)(1). Disclosure is permitted in response to a court order, provided 

that the covered entity discloses only the protected health information expressly authorized by the 

order. 45 CFR § 164.512(e)(1)(i). Disclosure is also permitted in response to a subpoena served 

without a court order if the covered entity received satisfactory assurance that the party seeking the 

information: (1) has made reasonable effort to notify the person who is the subject of the protected 

health information of the request; or (2) reasonable effort has been made to secure to secure a 

qualified protective order. 45 CFR § 164.512(e)(1)(i)(ii). Because the subpoenaed parties apparently 

believe that Plaintiffs have not satisfied the requirements of 45 CFR § 164.512(e)(1)(ii), Plaintiffs are 

requesting a court order in compliance with 45 CFR § 164.512(e)(1)(i). 

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(“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 

 

4

 As Magistrate Judge Whalen states: 

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 (“HIPAA”), 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). 

(Dkt. 49, p. 1.) 

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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 

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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. 

s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Dated: January 12, 2016 

Certificate of Service 

I hereby certify that this Order was electronically submitted on January 12, 2016, 

using the CM/ECF system, which will send notification to each party. 

 By: s/A. Chubb 

Case Manager 

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