United States District Court, D. Oregon
MATTHEW C. ELLIS, Law Office of Matthew C. Ellis, Portland, OR, SHENOA L. PAYNE, Hagglund Kelly, LLP, Portland, OR, Attorneys for Plaintiff.
ELLEN F. ROSENBLUM, Attorney General, HEATHER J. VAN METER, SHANNON M. VINCENT, Senior Assistant Attorneys General Oregon Department of Justice, Salem, OR, Attorneys for Defendant.
OPINION AND ORDER
ANNA J. BROWN, District 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 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.
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 ...