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Fisch v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

September 13, 2000

CHARLES FISCH, individually and on behalf of others similarly situated, Petitioner,
v.
STATE COMPENSATION INSURANCE FUND, Respondent/Insurer for DRY CREEK EXCAVATION, Employer.

          Submitted: Petitioner's Motion to Compel Discovery - July 3, 2000;

          Respondent's Motion for Protective Order - August 7, 2000;

          Petitioner's Motion to Compel - August 18, 2000

          ORDER COMPELLING DISCOVERY

          MIKE MCCARTER JUDGE

         Summary of Case: Claimant seeks payment for past domiciliary care. He propounded interrogatories asking for the rates paid by the State Fund for domiciliary care. The State Fund filed untimely objections to the interrogatories and he moved to compel answers. Later, he filed a request for production for documents showing the manner in which domiciliary care rates were set for the five highest and lowest rates and the five median rates. The State Fund moved for a protective order, objection on relevance and privacy grounds.

         Held:

         (1)Where a party fails to timely object to discovery, its objections shall generally be deemed waived except as to materials that a non-party has a privilege or constitutionally protected interest. Whether the doctrine should be extended to personal privileges of a party, the Court reserves judgment. Further, even though objections are waived, the Court will not compel answers to patently irrelevant, wholly improper, or patently burdensome and onerous discovery. Here the information sought is simply rates: no privilege or private information is requested. Rate information sought prior to claimant's injury patently irrelevant and need not be produced. Claimant is entitled to the cost of his care, § 39-71-1107(1), MCA, which is best determined by looking at rates charged for similar care in the communities where claimant resided, but the discovery might possibly lead to some comparisons and in light of the lack of an objection, the Court declines to analyze the relevancy of the information further. State Fund ordered to answer interrogatories.

         (2)Individual claimants receiving domiciliary care have a constitutional right of privacy that may be overcome only by a compelling state interest. There is no public right to know at stake here, so the Court need not balance the public's right to know against the right of privacy. Montana Health Care Assoc. v. Montana Board of Directors of State Fund Compensation Mutual Ins. Fund, 256 Mont. 146, 845 P.2d 113 (1993) and Mountain States Telephone and Telegraphy v. Dept. of Pub. Serv. Reg., 194 Mont. 277, 634 P.2d 181 (1981) are inapposite. Claimant has failed to show any compelling interest in information pertaining to other claimants. The cost of domiciliary care can be established through the rates charged by private companies and individuals who provide the care. Therefore, claimant is not entitled to any information relating to individual claimants. However, since it is possible that domiciliary care might not be readily available and priceable, the rates might provide parameters for fixing a rate in this case and the requested documents may conceivably lead to admissible evidence. State Fund ordered to produce the documents in redacted form, redacting any information that could by any means be used to identify individual claimants.

         Topics:

Discovery: Compelling Discovery. Where a party fails to timely object to discovery, its objections shall generally be deemed waived except as to materials that a non-party has a privilege or constitutionally protected interest. Whether the doctrine should be extended to personal privileges of a party, the Court reserves judgment. Further, even though objections are waived, the Court will not compel answers to patently irrelevant, wholly improper, or patently burdensome and onerous discovery. Here, information sought by interrogatories involved rates paid for domiciliary care, raising no issues of privilege or privacy regarding rates paid in institutional setting. Rate information regarding individual claimants receiving domiciliary care did raise privacy interests, requiring redaction of identifiers of particular individuals. Rate information prior to claimant's injury was patently irrelevant and need not be produced.
Discovery: Interrogatories. Where a party fails to timely object to interrogatories, its objections shall generally be deemed waived except as to materials that a non-party has a privilege or constitutionally protected interest. Whether the doctrine should be extended to personal privileges of a party, the Court reserves judgment. Further, even though objections are waived, the Court will not compel answers to patently irrelevant, wholly improper, or patently burdensome and onerous discovery. Here, information sought by interrogatories involved rates paid for domiciliary care, raising no issues of privilege or privacy regarding rates paid in institutional setting. Rate information prior to claimant's injury was patently irrelevant and need not be produced.
Discovery: Objections to Discovery. Where a party fails to timely object to discovery, its objections shall generally be deemed waived except as to materials that a non-party has a privilege or constitutionally protected interest. Whether the doctrine should be extended to personal privileges of a party, the Court reserves judgment. Further, even though objections are waived, the Court will not compel answers to patently irrelevant, wholly improper, or patently burdensome and onerous discovery.
Discovery: Requests for Production. Where individual claimants receiving domiciliary care have a constitutionally protected privacy interest in medical information, insurer ordered to produce information about rates paid to domiciliary care providers with identifiers of recipients redacted.

         ¶1 Before the Court are cross-motions by the parties regarding discovery. Claimant, who is seeking payment for domiciliary care, moves to compel answers to interrogatories requesting the State Compensation Insurance Fund (State Fund) to provide information regarding wages it pays to domiciliary care attendants in other cases. State Fund moves for a protective order barring the request for production regarding domiciliary care rates on grounds that the information is privileged and irrelevant. The amount of paper expended by counsel in briefing the matter would make a small but nice fire on a cold evening.

         Nature of the Controversy

         ¶2 This is an accepted claim. The claimant suffered severe spinal cord injuries in a July 9, 1998 automobile-train accident and there is no dispute that he needs some degree of home assistance. In an earlier telephone conference with counsel, I was informed that domiciliary care is presently being provided to claimant by WestMont, which is an institutional home health care provider, and paid for by the State Fund. However, the parties ...


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