In any litigation, parties are almost certain to engage in discovery. Discovery is the phase of a lawsuit that occurs after all claims have been filed and both parties have responded. During this stage, the involved parties exchange information to build their cases for trial or potential settlement before trial.
There are many forms of discovery, but the most common are Interrogatories, Requests for Production, and Depositions. The topics covered by discovery must be relevant to the pending litigation. “Relevance” is defined broadly, however; the information sought does not have to be admissible in evidence. Instead, it only must be deemed “reasonably calculated to lead to the discovery of admissible evidence.”
Interrogatories are written questions that must be answered fully and completely in writing by the responding party under oath.
Requests for Production are individual requests for particular documents or other items of evidence to be made available for inspection. Such requests are usually for documents but may also include the right to inspect a premise, perhaps in a slip and fall case or an automobile in a car crash case, for example.
Depositions are in-person sessions where a witness must appear and verbally answer direct questions from other parties’ lawyers under oath and recorded by a court reporter.
Requests for Production can be served either on a party to the litigation or a “non-party.” In discovery, a non-party is any party that is not the plaintiff or a defendant of a pending lawsuit.
In personal injury cases, for instance, the defendant’s insurance company, through the defense attorney, will almost always want to obtain the injured plaintiff’s medical records and medical bills from the injured plaintiff’s doctors and other medical care providers. The reason is obvious and legitimate: to properly evaluate an injury.
In order to do this, the insurance company must have all of the relevant information regarding the diagnosis and treatment of that injury. When those records are sought directly from the doctor instead of retrieving them directly from the injured plaintiff’s attorney, a set of rules must be followed. That process includes giving prior notice of the intent to serve the non-party discovery, along with a copy of the specific discovery requests, at least 15 days before they are sent to the third party. This 15-day window gives the injured plaintiffs and their attorney a chance to evaluate the scope of the request and whether any objection is necessary.
Any medical records outside the scope of the claimed injuries are still protected by privacy laws. However, any privacy protections for injuries relating to the injuries being claimed are waived.
Litigants, and sometimes their attorneys, might not realize that some records may have extra layers of protection that must be navigated before they can be obtained. Where the records sought are mental health records, as opposed to just run-of-the-mill medical records, there are additional, special protections.
Ind. Code §16-39-3-3 provides particular requirements that a requesting party must follow before a court can release such records. Specifically, a requesting party must file a petition for the release of the records (I.C. §16-39-3-3(2)) and provide notice to:
that the records are being sought and advising of the date of a hearing (I.C. §16-39-3-4). Then, the court is required to hold a confidential hearing (I.C. §16-39-3-6) and make findings that:
If a party does not follow these procedures to obtain mental health records, it most likely will be deemed a reversible error by the court of appeals.
The added protection for mental health records ensures that courts provide an individualized and confidential assessment regarding the need for these sensitive records in any particular case. If it is a personal injury case, such records should not be relevant unless the injured victim claims a closed head trauma that damages their mental capacities.
In a divorce or custody case, a parent’s mental health is always relevant and discoverable, subject to the statute’s protections for the proper protection of this delicate information. I.C. §31-17-2-8(6) provides that the trial court must consider the mental health of all individuals involved when determining the child’s best interest in a custody dispute).
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