IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DAVID VANVALKENBURG, 3:14-cv-00916-BR

Plaintiff, OPINION AND ORDER

v.

OREGON DEPARTMENT OF 

CORRECTIONS,

Defendant.

MATTHEW C. ELLIS

Law Office of Matthew C. Ellis

621 S.W. Morrison Street

Suite 1050

Portland, OR 97205

(503) 226-0072

SHENOA L. PAYNE

Hagglund Kelly, LLP

200 S.W. Market Street

Suite 1777

Portland, OR 97201

(503) 225-0777

Attorneys for Plaintiff

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ELLEN F. ROSENBLUM

Attorney General

HEATHER J. VAN METER

SHANNON M. VINCENT

Senior Assistant Attorneys General

Oregon Department of Justice

1162 Court Street N.E.

Salem, OR 97301

(503) 947-4700

Attorneys for Defendant

BROWN, Judge.

This matter comes before the Court on Defendant Oregon

Department of Corrections’ invocation of multiple discovery

privileges in an effort to require Plaintiff David VanValkenburg

to provide waivers signed by other deaf inmates in Defendant's

custody before Defendant can disclose information regarding those

inmates. For the reasons that follow, the Court concludes on

this record that Plaintiff is not required to obtain signed

waivers from other deaf inmates before Defendant produces the

requested discovery materials.

Plaintiff, a person who is deaf and who, until recently, was

in Defendant’s custody, filed this action against Defendant

raising disability-discrimination claims under federal and Oregon

law. Plaintiff alleges Defendant did not adequately accommodate

Plaintiff’s deafness and, therefore, engaged in a pattern and/or

practice of discrimination against Plaintiff. Plaintiff

specifically alleges, inter alia, that Defendant employed a

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policy of using insufficiently qualified inmate-American Sign

Language (ASL) interpreters to communicate with Plaintiff.

As part of discovery Plaintiff seeks information and

documentary evidence concerning the accommodations that Defendant

has made for other deaf inmates. Defendant, however, contends

Plaintiff has not sufficiently defined the universe of deaf

inmates about which Plaintiff seeks information and, absent a

signed waiver from each deaf inmate, such information is

privileged under (1) privacy guarantees of the United States

Constitution; (2) the Health Insurance Portability and

Accountability Act (HIPAA), 42 U.S.C. § 1320d(4)(B); and 

(3) Oregon Revised Statute § 179.505(2).

I. Vagueness of Plaintiff’s Discovery Requests

In communications between counsel Plaintiff defined “deaf”

as “those with the audiological condition of not hearing” and

“those with very limited hearing who cannot rely on it for

comfortable communication and who are able to communicate via

ASL.” Def.’s Mem. (#35) at 6. Defendant contends Plaintiff’s

definition of “deaf” is impermissibly vague.

The Court, however, finds Plaintiff’s definition of “deaf”

is sufficiently specific to permit Defendant to make a reasonable

search of its records to locate the relevant information.

On this record the Court concludes Plaintiff’s definition of

“deaf” is not impermissibly vague.

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II. Defendant’s Invocation of Privilege

As noted, Defendant contends Plaintiff must provide a signed

release from other deaf inmates before Defendant can produce the

requested discovery because, absent such a release, the

information is privileged under federal constitutional privacy

guarantees, HIPAA, and § 179.505(2).

The party asserting an evidentiary privilege bears the

burden to demonstrate that the privilege applies to the

information in question. Lambright v. Ryan, 698 F.3d 808, 823

(9th Cir. 2012). The party asserting the privilege must also

expressly make the assertion and describe the nature of the

allegedly privileged evidence in a manner that will enable other

parties to assess the claim of privilege. Fed. R. Civ. P.

26(b)(5)(A).

A. Federal Constitutional Privacy Protections

Defendant contends Plaintiff must obtain signed releases

from the other deaf inmates because even disclosure of the

identities of such inmates would violate their constitutionallyprotected privacy rights.

1. Standard

Federal courts generally recognize a constitutionallybased right to privacy that can be raised as a privilege in

response to discovery requests. See, e.g., Estate of Shafer ex

rel. Shafer v. City of Elgin, Or., No. 2:12-cv-00407-SU, 2014 WL

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1303095, at *3 (D. Or. Mar. 28, 2014); Rogers v. Giurbino, 288

F.R.D. 469, 484 (S.D. Cal. 2012); Soto v. City of Concord, 162

F.R.D. 603, 616 (N.D. Cal. 1995). “Resolution of a privacy

objection requires a balancing of the need for the particular

information against the privacy right asserted.” Estate of

Shafer, 2014 WL 1303095, at *3. See also Rogers, 288 F.R.D. at

484 (noting “courts generally balance the need for the

information against the severity of the invasion of privacy”). A

protective order preventing disclosure of private information can

minimize the severity of the invasion of privacy. Estate of

Shafer, 2014 WL 1303095, at *3. See also Soto, 162 F.R.D. at

616.

2. Analysis

As noted, Defendant contends it cannot disclose any

information about accommodations made to other deaf inmates or

the identities of such inmates without a signed release because

doing so would violate the inmates’ constitutionally-protected

privacy interests. Plaintiff responds the other inmates’ privacy

interests are minimal in light of the inherently public nature of

deafness and the Stipulated Protective Order (#7) (SPO) entered

in this case and that Plaintiff has a substantial interest in

accessing this information because it is necessary to show that

Defendant engaged in a pattern and practice of discrimination.

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a. Plaintiff’s Interest in Obtaining Discovery

Although Plaintiff’s interest in the information

concerning other deaf inmates is not as compelling as Plaintiff

suggests, the Court concludes Plaintiff has a legitimate interest

in obtaining this information. The Court notes Plaintiff’s

claims are personal in nature and limited to how Defendant

treated him; i.e., Plaintiff only asserts Defendant maintained a

pattern or practice of discriminating against Plaintiff as a

result of his deafness rather than asserting Defendant engaged in

a pattern or practice of discriminating against deaf inmates

generally. Information regarding Defendant’s accommodation of

other deaf inmates, however, may be relevant to establish

Defendant’s discriminatory intent and to address Defendant’s

undue-burden defense. See Lovell v. Chandler, 303 F.3d 1039,

1056 (9th Cir. 2002)(noting compensatory damages are only

available in a disability-discrimination claim under the

Americans with Disabilities Act upon a showing of discriminatory

intent). See also Def.’s Answer (#28) ¶ 98 (regarding the undueburden defense). Thus, although the Court rejects Plaintiff’s

position that information concerning other deaf inmates is

central to Plaintiff’s claim, the Court concludes Plaintiff,

nevertheless, has a legitimate interest in obtaining the

information in discovery.

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b. Other Deaf Inmates’ Privacy Interest

The mere fact that an inmate is deaf is not a

“private” fact because it is readily ascertainable by any person

who comes into contact with such an inmate. Thus, the privacy

interests of other deaf inmates are minimal as to disclosure of

their identities and the accommodations that Defendant made for

the disabilities of those inmates. Moreover, any information

disclosed to Plaintiff about other deaf inmates is subject to the

SPO, which prevents Plaintiff from disseminating such information

and requires Plaintiff to return or to destroy any such

information at the conclusion of this litigation. In fact, the

potential disclosure of information concerning other deaf inmates

was an explicit reason for the SPO. The Court, therefore, finds

the other deaf inmates’ privacy interests in disclosure of their

identities and information concerning Defendant’s accommodations

to those inmates for their disability is minimal.

In summary, the Court concludes on this record that

Plaintiff’s legitimate need for information concerning

Defendant’s accommodation of other deaf inmates outweighs the

inmates’ minimal privacy interest in that information. The Court

notes, however, there may be specific documents that implicate

greater privacy interests. The Court, therefore, does not

foreclose the possibility that Defendant may make a claim of

privilege with respect to such documents after providing

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Plaintiff with a privilege log.

Accordingly, on this record the Court concludes

Defendant has not met its burden at this time to demonstrate the

information concerning other deaf inmates is privileged as a

result of the constitutionally-protected privacy interests of

those inmates.

B. HIPAA Privilege

As noted, Defendant contends it cannot disclose any

information concerning other deaf inmates (including their

identities) because such disclosures are prohibited under HIPAA.

Defendant’s argument is without merit. HIPAA regulations

provide a covered entity may disclose protected health

information in response to a discovery request during the course

of a judicial proceeding if “[t]he covered entity receives

satisfactory assurance . . . from the party seeking the

information that reasonable efforts have been made by such party

to secure a qualified protective order.” 45 C.F.R. 

§ 164.512(e)(1)(ii)(B). The SPO in this case meets the

requirements for a “qualified protective order” under 45 C.F.R. 

§ 164.512(e)(1)(v). 

Accordingly, on this record the Court concludes Defendant

has not met its burden to establish that information concerning

other deaf inmates is privileged pursuant to HIPAA.

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C. Privilege under Oregon Revised Statute § 179.505

Defendant contends it may not disclose information

concerning other deaf inmates without a signed release because 

§ 179.505 prohibits such disclosure. 

Subject to certain exceptions, § 179.505(2) provides:

[U]nless otherwise permitted or required by state or

federal law or by order of the court, written accounts

of the individuals served by any health care services

provider maintained in or by the health care services

provider by the officers or employees thereof who are

authorized to maintain written accounts within the

official scope of their duties are not subject to

access and may not be disclosed. This subsection

applies to written accounts maintained in or by

facilities of the Department of Corrections only to the

extent that the written accounts concern the medical,

dental or psychiatric treatment as patients of those

under the jurisdiction of the Department of

Corrections.

Defendant has not met its burden to demonstrate that

Plaintiff’s requested discovery is prohibited under § 179.505(2). 

For example, some of the information requested by Plaintiff

likely does not qualify as a “written account[] concern[ing] the

medical, dental, or psychiatric treatment” of an inmate. See id.

Moreover, to the extent that Plaintiff requests health records,

those records may not be subject to § 179.505(2) because, as

noted, such disclosures are permitted by federal law as a result

of the entry of the SPO in this case. See id. Nonetheless, to

the extent that Defendant identifies in good faith information

that Defendant believes it is precluded from disclosing under 

§ 179.505(2), Defendant may invoke that privilege after providing

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Plaintiff with a privilege log.

Accordingly, on this record the Court concludes Defendant

has not met its burden at this time to demonstrate the

information that Plaintiff requests concerning other deaf inmates

is privileged pursuant to § 179.505(2).

CONCLUSION

For these reasons, the Court ORDERS Defendant to provide

substantive responses to Plaintiff’s discovery requests

consistent with this Opinion and Order no later than February 27,

2015.

IT IS SO ORDERED.

DATED this 2nd day of February, 2015.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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