Austin v. Fordham University

Background

Francis Austin sued Fordham University, asserting four negligence claims and one claim under New York City’s Victims of Gender-Motivated Violence Protection Act. Austin alleges that Patrick Sweeney sexually assaulted him in 2011 and 2012 while they were undergraduate students and members of Fordham’s Naval Reserve Officers Training Corps program. Austin alleges that Fordham knew about threats and an earlier assault involving Sweeney, and failed to protect him. Fordham brought Sweeney into the case as a third-party defendant, asserting contractual and common-law indemnification and contribution claims.

The opinion addresses two discovery disputes. The parties agreed that Austin’s medical records were discoverable and should be covered by a confidentiality order. They disagreed about whether Sweeney could personally review some records or whether those records should be limited to review by attorneys under an “attorneys’ eyes only” designation. Sweeney also moved to require Austin to provide the personal addresses and telephone numbers of five family-member witnesses. Austin had used his law firm’s contact information instead.

Medical-records confidentiality request

Under Federal Rule of Civil Procedure 26(c), a court may issue a protective order for good cause to prevent annoyance, embarrassment, oppression, or undue burden or expense. The party seeking protection must show a particular need and a clearly defined, specific, and serious injury that disclosure would cause.

The court rejected Austin’s argument that Sweeney’s alleged earlier misuse of Austin’s medical records justified restricting Sweeney’s access. Sweeney denied the alleged misuse, the court found no independent proof of it, and the alleged conduct occurred approximately 13 years earlier. The court also noted that Sweeney would have to sign a nondisclosure agreement, could use the records only for this litigation, could not disclose them to third parties, and could face contempt sanctions for violating the protective order.

The court nevertheless recognized Austin’s legitimate privacy interest in highly personal medical information, particularly information about his sexual, psychological, and emotional life. It balanced that interest against Sweeney’s interest in consulting freely with his attorney about records relevant to defending the case and to potential damages.

The court held that Austin could designate as attorneys’ eyes only records, or portions of records, concerning Austin’s relationships with intimate partners. Austin could not apply that designation to information reflecting his recollection or narrative of the events underlying his claims. The court found that Austin had not shown sufficient good cause to restrict Sweeney’s access to other records, including records concerning surgery, post-traumatic stress disorder, depression, alcohol abuse, and anorexia.

The parties were directed to prepare a revised confidentiality order implementing these limits and including the court’s required nondisclosure agreement. The court also noted that any attorneys’-eyes-only designations would apply only to Sweeney, not Fordham, and that Fordham could use those documents with witnesses during depositions and at trial.

Witness information

Federal Rule of Civil Procedure 26 generally requires a party to disclose the name and, if known, the address and telephone number of each person likely to have discoverable information. The applicable local rule defines identifying a person as providing, to the extent known, the person’s full name and present or last known address.

The court held that Austin could not satisfy these requirements simply by providing his law firm’s address as the contact information for the witnesses. Austin’s interrogatory responses also did not provide addresses for the five witnesses. The court rejected Austin’s argument that another local rule limited what information he had to provide when identifying witnesses.

Disposition

Austin’s motion for a confidentiality order containing an attorneys’-eyes-only provision was granted in part and denied in part. Sweeney’s motion to compel disclosure of the witnesses’ present or last known addresses was granted. Austin was ordered to provide those addresses to Sweeney and Fordham within three business days. The court did not require Austin to provide the witnesses’ telephone numbers.