United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose District Judge.
ORDER AND ENTRY GRANTING DEFENDANT'S MOTION TO
COMPEL (DOC. 24)
Michael J. Newman United States Magistrate Judge.
civil case is before the Court on Defendant's motion to
compel release authorizations from Plaintiff. Doc. 24.
Plaintiff filed a memorandum in opposition. Doc. 25.
Thereafter, Defendant filed a reply. Doc. 27. The Court heard
oral argument on the issues presented on June 14, 2019. Docs.
20, 21. The undersigned has carefully considered all of the
foregoing, and Defendant's motion is now ripe for
is a veteran of the United States Army, having served from
July 1996 through July 2004. Doc. 1 at PageID 3. During his
Army service, Plaintiff deployed to Afghanistan as part of
Operation Enduring Freedom and engaged in active combat.
Id. As a result of his service, Plaintiff suffers
from service-connected physical and emotional impairments,
including post-traumatic stress disorder. Id.
Following his service in the Army, Plaintiff worked for
Defendant in Dayton, Ohio from December 12, 2009 until his
termination from employment on July 25, 2017. Id. at
PageID 2-3. Plaintiff contends that Defendant terminated his
employment improperly as a result of discrimination on the
basis of his disability in violation of, inter alia,
the Americans with Disabilities Act (“ADA”), 42
US.C. § 12101 et. seq., and the Uniformed
Services Employment and Reemployment Act of 1994, 42 U.S.C.
§ 4301 et. seq Id. at PageID 1.
discovery, it was revealed that Plaintiff has received
disability benefits from the United States Department of
Veterans Affairs (“VA”). Doc. 24 at PageID 67. In
fact, during his deposition, Plaintiff testified that, in
June 2017, he applied for an increase in his VA benefits
based on unemployability, representing that he was
“unable to secure or follow any substantially gainful
occupation[.]” Id. Defendant has requested
copies of Plaintiff's VA treatment records, as well as
other documents related to his VA disability claim(s) and
seeks an executed release authorization from Plaintiff so
that Defendant can obtain records from the VA. Id.
at PageID 67-68; see also doc. 25 at PageID 77.
objects to Defendant's request to provide a release
authorization and, instead, Plaintiff (or his counsel)
obtained records directly from the VA to review and,
subsequently, produced them to Defendant. Id. at
PageID 68. While Defendant has received “several
hundred pages of VA treatment and examination records,
” Defendant's counsel represents that “few if
any records relating to Plaintiff's disability benefits
or any related VA evaluation or determination were
produced.” Id. As a result, Defendant has
again requested that Plaintiff execute and return to it a
release authorization so that its counsel can receive the VA
records directly. Id. Plaintiff objects to Defendant
directly obtaining records from the VA on the grounds that
some information produced by the VA may be irrelevant or
privileged. Doc. 25. Thus, Plaintiff's counsel argues he
should have an opportunity to review the records for
relevance and privilege concerns before production to
Defendant occurs. Id.
the undersigned's perspective, Plaintiff's VA
disability status, his representations made in seeking
benefits, and the records considered by the VA in making a
disability determination are relevant to issues presented in
this case and Plaintiff's assertions of potential
privilege are unclear. Plaintiff cites no authority
suggesting that documents in the hands of a third- party
could be protected by the attorney-client
privilege or that the patient-physician privilege
would now attach to his application for VA benefits or to the
records considered in determining his disability benefits
claim. Cf. United States v. Hudson, No. CRIM.A.
13-20063-01, 2013 WL 4768084, at *6 (D. Kan. Sept. 5, 2013);
In re Grand Jury Investigation, 114 F.Supp.2d 1054,
1056 (D. Or. 2000). Insofar as there are concerns about the
sensitivity of the information at issue, any such concern can
be resolved by, at least preliminarily, deeming any documents
obtained by virtue of the release authorization confidential
information subject to the terms of the Protective Order
issued in this case, which the undersigned now
ORDERS. Doc. 13.
that Defendant receiving documents directly from the VA
“represents the most efficient and economical way for
Defendant to obtain those records[, ]” Langenfeld
v. Armstrong World Indus., Inc., 299 F.R.D. 547, 555
(S.D. Ohio 2014), the undersigned GRANTS
Defendant's motion to compel (doc. 24), and
ORDERS Plaintiff to execute and return to
Defendant's counsel a release authorization forthwith.
IS SO ORDERED.
 The attorney-client privilege to
attaches “(1) [w]here legal advice of any kind is
sought (2) from a professional legal adviser in his capacity
as such, (3) the communications relating to that purpose, (4)
made in confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by
the legal adviser, (8) except the ...