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ORDER 

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JENNIFER N. FORSHEY, D.M.D., M.D.,

Plaintiff,

v.

SOUND ORAL & MAXILLOFACIAL

SURGERY, P.S., a Washington corporation;

ROBERT TODD ERICKSON, DDS, and

ANNE ERICKSON, and their marital

community; and INTERMOUNTAIN

EMPLOYMENT SOLUTIONS, INC., a Utah

corporation d.b.a. ASCEND HR

SOLUTIONS,

Defendants.

CASE NO. C06-5335RJB

ORDER DENYING WITHOUT

PREJUDICE DEFENDANTS

SOUND ORAL &

MAXILLOFACIAL SURGERY,

P.S., ROBERT TODD

ERICKSON, DDS, AND ANNE

ERICKSON’S MOTION FOR A

PROTECTION ORDER

This matter comes before the Court on Defendants Sound Oral & Maxillofacial Surgery,

P.S., Robert Todd Erickson, DDS, and Anne Erickson's Motion for a Protection Order (Dkt. 75).

The Court has considered the pleadings filed in support of and in opposition to the motion and the

file herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Jennifer N. Forshey is an oral surgeon who was hired by Sound Oral &

Maxillofacial Surgery (“Sound Oral”) in March of 2004. Dkt. 35 at 2. Defendant Robert Todd

Erickson, co-owner of Sound Oral, was Dr. Forshey’s direct supervisor. Dkt. 1 at 4. Dr.

Forshey’s employment with Sound Oral was terminated on August 19, 2004. Id. at 2. The

complaint alleges that the termination stemmed from Dr. Forshey’s opposition to Dr. Erickson

permitting Michael Serrianne to administer anesthetics when he was in fact not licensed to do so.

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ORDER 

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Id. at 5. Dr. Forshey alleges that her termination constitutes wrongful discharge in violation of

public policy and breach of employment contract. Id. at 7. Intermountain Employment Solutions,

Inc. was dismissed, and the moving defendants are the only defendants remaining in this matter.

See Dkt. 45.

The defendants contend that Dr. Forshey’s employment was terminated for cause. Dkt. 75

at 2. To support this defense, the defendants have identified 119 patient charts allegedly

demonstrating that Dr. Forshey’s care put Sound Oral patients at risk in a manner falling below

the standard of care. Id. at 2. The defendants provided redacted versions of these patient charts to

Dr. Forshey. Id. at 3. Dr. Forshey requested the redacted patient information so that she could

recall the details of the patients’ cases. See Dkt. 76, Exh. 3 at 14 (letter requesting redacted

records). 

The parties have stipulated to modify the Stipulated Protective Order entered on

December 7, 2006. Dkt. 74. The modification would allow a ten day notice period before any

contact by the plaintiff’s counsel with patients or referring dentists. Id. at 12-13. The notice

period would afford the defendants time to seek a protective order. Id. This protective order

professes to be a modified version of an earlier protective order but fails to take into account the

parties’ corrections to the original Stipulated Protective Order. See Dkt. 50 (Stipulated Protective

Order); Dkt 51 (Notice of Corrected Image/Document). It is unclear whether the addition of text

omitted in the corrected document was intentional. The Court has attempted to schedule a

telephone conference call with counsel for both parties to ensure that the modified protective

order in the electronic file is the correct version, but the attorneys have not responded to these

efforts. The Modified Stipulated Protective Order will remain in the file unsigned until the parties

advise the Court as to whether the Modified Stipulated Protective Order (Dkt. 74) is the correct

version.

On March 31, 2007, the plaintiff’s counsel notified the defendants’ counsel that the

plaintiff and her attorneys intended to contact patients and referring dentists. Dkt. 76, Exh. 6 at

21. The plaintiff’s counsel was unable to or unwilling to identify which patients or dentists would

be contacted. Dkt. 76 at 3. Pursuant to the Modified Stipulated Protective Order, the defendants

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ORDER 

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seek a protective order prohibiting or prescribing such contact. Dkt. 75 at 3. Counsel for both

parties conferred by telephone and were unable to agree to resolve this discovery dispute. Dkt. 75

at 2.

II. DISCUSSION

 Unless limited by court order, “[p]arties may obtain discovery regarding any matter, not

privileged, that is relevant to the claim or defense of any party,” Fed. R. Civ. P. 26(b)(1). Federal

Rule 26 governs protective orders and provides the following:

Upon motion by a party . . . accompanied by a certification that the movant has in good

faith conferred or attempted to confer with other affected parties in an effort to resolve the

dispute without court action, and for good cause shown, the court in which the action is

pending . . . may make any order which justice requires to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or expense . . . .

Fed. R. Civ. P. 26(c). The burden of demonstrating good cause lies with the party seeking the

protective order. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004). In this case, the

defendants seek a protective order preventing Dr. Forshey and her attorneys from contacting Dr.

Forshey’s former patients or their referring dentists because the information sought is irrelevant,

constitutes an invasion of privacy, and would damage the defendants’ reputation. Dkt. 75 at 4-5,

6, 7. In the alternative, the defendants seek an order limiting or identifying the patients to be

contacted and providing for a Court-approved letter to first alert the patients to basic information

about the case and the parameters of contact by the doctors, their lawyers, or their experts. Dkt.

75 at 7. 

A. RELEVANCE

The defendants contend that contacting the patients is irrelevant because “there is no

allegation that any of them w[as] harmed” and because “these patients and their charts are just

some of the reason[s] that [the defendants] had for terminating [Dr. Forshey’s] employment.”

Dkt. 75 at 5. To demonstrate that the plaintiff was terminated for cause, the defendants seek to

compare the level of care provided by Dr. Forshey, as demonstrated by patient charts, with the

legal standard of care. See Dkt. 75 at 2. Dr. Forshey seeks to interview these patients to

determine whether the level of care she provided was sufficient despite alleged inadequacies in

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ORDER 

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patients’ charts. Dkt. 77 at 6. As the plaintiff notes, the proffered justification for Dr. Forshey’s

termination is not based solely upon the adequacy of Dr. Forshey’s charting. Whether the care

actually provided to these patients exceeds what was recorded in the patient’s charts is therefore

relevant, and the Court should decline to bar the plaintiffs’ contact with patients on the grounds of

irrelevance.

B. PRIVACY

The defendants contend that a protective order is appropriate to protect patients from an

invasion of their privacy. Dkt. 75 at 6. The defendants’ cited legal authority governs the release of

health care information, and the defendants fail to offer authority requiring limitation of contact

with patients after such information is legally disclosed. See 45 C.F.R. §164.512(e). While the

Court is sympathetic to concerns for the privacy of patients, the defendants fail to demonstrate

that such concerns outweigh the plaintiff’s rights to seek relevant information to support her

claims.

C. DAMAGE TO DEFENDANTS’ REPUTATION

The defendants also seek a protective order to “protect their business from efforts that will

undoubtedly have an impact.” Dkt. 75 at 7. While the defendants’ reputations may suffer as a

result of having to defend in this matter, the defendants again fail to demonstrate that such

concerns constitute “good cause” for limiting the plaintiff’s contact with potential witnesses. Fed.

R. Civ. P. 26(c).

D. ADVANCE NOTICE TO PATIENTS 

The defendants also contend that “patients ought to be Declorded [sic] some advanced

notice that lawyers from either side may be calling them to discuss the particular facts of their

care” and that they have the right to refuse to participate in the case. Dkt. 75 at 5-6. Counsel for

both parties are bound by rules regarding ethics and professional conduct and, as in all cases,

should be courteous and respectful when contacting potential witnesses. The Court expects the

parties to adhere to these principles. If the parties fail to do so, justice may require judicial

intervention. At this juncture, intervention would be premature.

E. CONCLUSION

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ORDER 

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The defendants having failed to demonstrate that contacting Dr. Forshey’s former patients

would be improper, the Court should deny the motion without prejudice. The parties are

reminded of the Court’s instructions to meet and confer, attempt to resolve discovery and other

issues in good faith, and use conference calls to chambers before filing further discovery motions.

Dkt. 70 at 3.

III. ORDER

Therefore, it is hereby

ORDERED that Defendants Sound Oral & Maxillofacial Surgery, P.S., Robert Todd

Erickson, DDS, and Anne Erickson's Motion for a Protection Order (Dkt. 75) is DENIED

without prejudice.

The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel

of record and to any party appearing pro se at said party’s last known address.

Dated this 19th day of April, 2007. 

ARobert J. Bryan

United States District Judge 

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