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Gratton v. United Parcel Service

November 14, 2008

JENNIFER GRATTON, PLAINTIFF,
v.
UNITED PARCEL SERVICE, INC. AND HOWARD POPECK, DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge

ORDER

I. PRELIMINARY STATEMENT

Before the Court is a motion by Defendant United Parcel Service, Inc. ("UPS") seeking the Court's assistance in resolving a dispute that has arisen between UPS and Plaintiff Jennifer Gratton during the negotiation of a stipulated confidentiality order [DE 34]*fn1 . The Court has reviewed UPS's letter motion as well as the written opposition submitted by Plaintiff [DE 35]. For the reasons set forth more fully below, UPS's motion is GRANTED in part and DENIED in part.

II. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff commenced this action alleging that Defendants UPS and Howard Popeck discriminated against her based on her gender in violation of Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law. In particular, Plaintiff claims that she was subjected to a hostile work environment which caused her to suffer severe emotional distress. According to UPS, Plaintiff has also commenced a separate Workers' Compensation action against UPS and its insurance carrier, Liberty Mutual. In that action, Plaintiff seeks Workers' Compensation benefits for "psychological injuries" she suffered "as a result of certain on-the-job conduct by" Defendant Popeck. DE 34 at 2. UPS emphasizes that "[c]entral to Plaintiff's workers' compensation case is her claim that her psychological conditions resulted from Mr. Popeck's conduct in the workplace." Id. The Complaint avers that this conduct began in December 2004.

On May 15, 2008, the parties appeared before me for a telephone status conference. As part of the Civil Conference Minute Order entered following that conference, I noted the following:

Counsel for UPS represented that he had already begun to produce certain documents to Plaintiff last night. The parties intend to negotiate a confidentiality order and to submit it for the Court's endorsement. All parties are directed to abide by the understanding that documents produced by Defendants are to be treated as confidential until the parties' confidentiality agreement is submitted to and "so ordered" by the Court.

DE 21 ¶ 7.

UPS issued a subpoena seeking documents and deposition testimony from Karen Tukman, a licensed clinical social worker who had treated Plaintiff. Id. According to UPS, "[b]efore appearing for a [June 9, 2008] deposition, Ms. Tukman requested that Ms. Gratton first execute an Authorization and Release." Id. Plaintiff signed an Authorization and Release which provided as follows:

I, Jennifer Gratton, hereby authorize and release Karen Tukman, LCSW, to disclose any and all information and documents in her possession, custody, and/or control regarding me, including but not limited to any and all treatment information; any and all information about my sessions with her; any and all healthcare information; any and all communications she has had with me, my representatives, or others acting on my behalf; and any and all psychotherapy and/or mental healthcare information; as well as any and all notes, emails, documents, communications, and/or information. By executing this Authorization and Release, I specifically intend to waive the social worker-patient privilege as well as any and all federal and state laws and regulations mandating the confidentiality of healthcare information in general and psychotherapy and mental healthcare information in particular. By executing this release I also explicitly authorize Ms. Tukman to give testimony at any deposition and/or at trial in the pending legal case in which I am plaintiff and United Parcel Service and Howard Popeck are defendants.

Id., Ex. A.

According to UPS, Ms. Tukman revealed during her deposition that:

[S]he intentionally withheld certain highly relevant information from the workers' compensation proceeding, at Plaintiff's repeated and explicit direction. See Exhibit B. The withheld information relates to Ms. Gratton's prior history of psychological conditions, and demonstrates that these conditions arose well before the events complained of in the workers' compensation case and this action. Ms. Tukman memorialized Plaintiff's instructions to her in handwritten notes, which she authenticated at her deposition.

Id. at 2. Plaintiff does not dispute that Ms. Tukman gave this deposition testimony, but she "vehemently denies [the substance of] these allegations" and contends that UPS has not "fully investigat[ed] the truth." DE 35 at 1.

UPS believes that it "need[s] to share this information with UPS's insurance carrier to address any past and ongoing fraud" that it claims has occurred in connection with Plaintiff's receipt of Workers' Compensation benefits. DE 34 at 2. Accordingly, following Ms. Tukman's deposition, UPS's counsel requested that Plaintiff consent to having UPS share the information learned during Ms. Tukman's deposition with UPS's insurance company, Liberty Mutual. In particular, UPS sought Plaintiff's agreement that such disclosure would not violate "Magistrate Judge Tomlinson's Confidentiality Order, issued from the bench on or about May 15, 2008." DE 34, Ex. C. Plaintiff objected to any such disclosure and contended that "this information is subject to the confidentiality order issued from the bench and/or the one contemplated in said bench order (but never prepared by Defendants)." Id., Ex. D.

After bringing this issue to the Court's attention via letter [DE 27, 29], the parties appeared for a telephone conference with Chambers on July 18, 2008 [see DE 30]. Counsel for UPS agreed to draft a proposed confidentiality order and submit it to Plaintiff for his input. During a subsequent status conference on August 13, 2008, the parties informed the Court that they could not agree on the terms of the proposed confidentiality order [see DE 32]. At that time, the Court informed Defendant UPS's counsel that he could file a ...


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