St. Luke Institute v. Jones

Saint Luke Institute, Inc. v. Andre Jones, No. 62, September Term, 2019, Opinion by Booth, J. Discovery of Mental Health Records Under the Maryland Confidentiality of Medical Records Act, Health General (“HG”) §§ 4-301 Through 309 (“Confidentiality Act”) – Where mental health records are requested by a private party litigant in a civil case in which the patient has not authorized disclosure, the Confidentiality Act, the Maryland discovery rules, and our case law establish the following process for disclosure. The party seeking discovery should file a motion seeking or compelling the disclosure and requesting a court order under HG § 4-307. The movant must establish a “need to inspect”—in other words, a reasonable possibility that review of the records would result in discovery of usable evidence. In considering whether the movant has a need for access to the records, the court should consider the nature of the underlying litigation, the relationship between the records and any claim or defense, and the likelihood that review of the records would result in the discovery of relevant information.

Once the movant makes a threshold proffer sufficient to enable the court to determine that there is a “need to inspect,” the court should undertake an in camera review of the documents sought to be disclosed to ensure that the records sought are relevant, and to ensure that disclosure is limited to only those records that may be relevant. If the court determines that the records are relevant, it should enter an order under Maryland Rule 2- 403(b) authorizing the disclosure with adequate provisions or restrictions to protect the patient’s privacy interests as it determines are appropriate on a case-by-case basis. Such conditions or restrictions should include a provision prohibiting redisclosure and requiring the return of original records and the return or destruction of any copies made, at the conclusion of the litigation. Health Care Provider’s Standing to Raise Patient’s Objections to Disclosure – Under the plain language of the Confidentiality Act, HG § 4-307(k)(6), where a litigant is seeking discovery of mental health records, the health care provider or custodian has standing to raise a patient’s “constitutional right or other legal authority in opposition to disclosure.” Circuit Court for Prince George’s County Case No.: CAL18-40657 Argued: September 10, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 62 September Term, 2019 SAINT LUKE INSTITUTE, INC. v. ANDRE JONES Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ.

Opinion by Booth, J. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-11-20 10:19-05:00 Filed: November 20, 2020 Suzanne C. Johnson, Clerk In this case, we are asked to determine the legal standard to be applied under the Maryland Confidentiality of Medical Records Act, Maryland Code (2000, 2019 Repl. Vol.), Health General (“HG”) §§ 4-301 through 309 (“Confidentiality Act”), when a private party in a civil case seeks discovery of a patient’s mental health records where the patient has not authorized the disclosure. We are also asked to determine whether the custodian of the records has standing to raise the patient’s privacy rights or other legal opposition to disclosure on the patient’s behalf.

These questions arise in the context of a civil case filed in Massachusetts in which the plaintiffs allege that they were sexually abused by a brother or member of a religious order while they were minor children residing in a children’s group home that employed the brother. The Massachusetts plaintiffs filed a proceeding in Maryland seeking discovery of the brother’s mental health records that they believe are in the custody of Saint Luke Institute, Inc. (“SLI”), a facility located in Maryland. After considering the plaintiffs’ motion for a court order to produce the records and SLI’s opposition to disclosure, the Circuit Court for Prince George’s County entered an order directing that SLI produce the brother’s mental health records under seal to a Massachusetts court. Prior to ordering the disclosure of the records, the circuit court did not review the pleadings in the Massachusetts case, nor did the court conduct an in camera review of the records.

SLI appealed the order to the Court of Special Appeals, which reversed the judgment and remanded the case for further proceedings. For the reasons more fully set forth in this opinion, we affirm the judgment of the Court of Special Appeals and remand this proceeding to the circuit court for that court to undertake an in camera review of the mental health records and to determine what portion of the records are relevant in accordance with its statutory obligation under HG § 4-307, and to enter an order transferring the portion of the records determined to be relevant under seal to the Massachusetts court for that court’s determination as to what should be released to counsel. I. Background A. Massachusetts Action This case arises from a discovery motion related to a civil lawsuit pending in the Massachusetts Superior Court involving four consolidated cases alleging negligent hiring and supervision of Brother Edward Anthony Holmes, who was a member of the Congregation of Sacred Hearts (“CSH”), and who is now deceased. In 2017, Petitioner, Andre Jones, the lead plaintiff, filed a lawsuit in the Massachusetts Superior Court, Trial Division in Suffolk County (“Massachusetts Court”), naming as defendants the Roman Catholic Archbishop of Boston and the CSH (“Massachusetts Action”).1 Although the Massachusetts complaint is not included in the record of the proceedings in this case, according to proffers made by counsel for Mr. Jones, the suit alleges that Mr. Jones was sexually assaulted by Brother Holmes when he was a minor, while he was placed in his 1 The pleadings in the Massachusetts Action were not presented to the circuit court in connection with the discovery motion, nor are they included in the record on appeal.

The only Massachusetts pleading filed in this case is the Letters Rogatory issued by the Massachusetts Court. For purposes of this appeal, our description of the Massachusetts Action is based upon the proffers of counsel for Mr. Jones in his various pleadings filed in Maryland. 2 care at the Nazareth Child Care Center in Jamaica Plain, Massachusetts (“Nazareth”). According to Mr. Jones, the complaint in the Massachusetts Action includes counts alleging negligent hiring and negligent supervision of Brother Holmes by the defendants.2 Mr. Jones asserts that documents produced by the defendant CSH in discovery in the Massachusetts Action noted that Brother Holmes underwent psychotherapy at SLI in the early 1990s. SLI, located in Maryland, is a “Catholic organization with 40 years of experience treating Catholic clergy” and “offers a full range of psychological screening, treatment and educational services for Catholic clergy.” Mr. Jones alleges that, according to the documents produced by the CSH, two psychiatric evaluation reports on Brother Holmes were written by SLI employees, dated June 28, 1991 and November 8, 1993.

The produced documents highlighted and summarized a “caution” contained in the 1993 report generated by SLI, stating, “[t]here are no reported signs that [Brother Holmes] has been sexually inappropriate. However, we would caution [] [Brother Holmes] and his order: there are many signs of risk that should not lightly be dismissed.” The report also noted that Brother Holmes had “not worked through his experience of being molested as a child.” After Mr. Jones learned of the existence of the 1991 and 1993 reports, he requested that the reports and associated records be produced by the defendants in the Mr. Jones’ case was consolidated with three other companion cases by the 2 Massachusetts Court. The Letters Rogatory reflects that the cases of Andre Jones, Lawrence Gay, John Doe SV, and John Doe RJ were consolidated. According to Mr. Jones, each plaintiff alleges similar child sexual assault and abuse perpetrated upon them by Brother Holmes while each was a minor and resident of Nazareth. 3 Massachusetts Action.

Mr. Jones was informed that the mental health evaluation reports had been destroyed by the Roman Catholic Archbishop of Boston and the CSH in the early 2000s. Unable to obtain the mental health evaluation reports directly from the defendants, Mr. Jones and the other plaintiffs sought production of the records from SLI by filing a Motion for the Issuance of Letters of Rogatory and a Commission3 to Take the Deposition of a Non-Resident Witness Custodian of Records. The Massachusetts Court entered an order granting the motion and issued a Commission and Letters Rogatory. The Letters Rogatory requests “as a matter of comity” that an appropriate Maryland Court “issue process to compel [t]he [c]ustodian of [r]ecords for St. Luke Institute . . . to appear” for a deposition in Maryland and to produce documents.

The Letters Rogatory acknowledges that SLI is located out of state and is therefore not subject to the jurisdiction of the Massachusetts Court, and that its appearance “can be compelled only by process issued by the appropriate authority in the State of Maryland.” The Letters Rogatory explained that “the production of documents and things for copying and inspection are left entirely to your Court’s procedure.” (Emphasis added). The Letters 3 A letter rogatory is a letter from a Massachusetts court requesting that the appropriate authority in another jurisdiction assist in obtaining discovery within that state’s borders for use in Massachusetts litigation. The authority to issue a letter rogatory is set forth in Mass. Gen.

Laws ch. 223A, § 10 (2020), which provides that an in-state litigant may take “[a] deposition to obtain testimony or documents or other things in an action pending in [Massachusetts] . . . outside [Massachusetts] . . . pursuant to a letter rogatory issued by the court.” Id. § 10(a), (a)(3). Section 10(b) sets forth the process by which a party may request a Massachusetts court to issue a letter rogatory. Specifically, § 10(b) provides that “a letter rogatory shall be issued after notice and application to the court, and on terms that are just and appropriate.” Id. § 10(b). 4 Rogatory reflect that the documents to be produced are “all documents related to Brother Edward Anthony Holmes, including but not limited to, psychotherapy examinations/risk assessments that were conducted on June 28, 1991 and November 8, 1993 at St. Luke Institute.” B. Maryland Circuit Court Proceeding After the Letters Rogatory was issued by the Massachusetts Court, Mr. Jones sought a subpoena from the Circuit Court for Prince George’s County requesting that SLI produce Brother Holmes’ mental health records. SLI filed a motion to quash the subpoena, arguing that under HG § 4-307, mental health records may only be disclosed to a private party in litigation by a court order, not through a subpoena.

Apparently realizing the error in attempting to obtain the records by subpoena as opposed to a court order, Mr. Jones filed a cross-motion for a court order to produce the mental health records. In connection with the motion for a court order, counsel for Mr. Jones filed a memorandum in which counsel described the underlying Massachusetts Action, including the allegations of sexual abuse, and represented that the litigation included counts for negligent hiring and negligent supervision. In the memorandum, Mr. Jones alleged that he was sexually assaulted by Brother Holmes after being removed from the custody of his parents and placed at Nazareth. The memorandum stated that three other individuals had made similar allegations of sexual assault by Brother Holmes while the plaintiffs were residents of Nazareth, and that those cases had been consolidated with Mr. Jones’ case in the Massachusetts Action.

Mr. Jones described the discovery that had been undertaken by the parties, explaining that defendant CSH had produced written documents 5 consisting of handwritten and typed notes from SLI, which referenced two psychiatric evaluations that were performed on Brother Holmes, dated June 28, 1991 and November 8, 1993. Counsel for Mr. Jones attached to the motion copies of the handwritten and typed notes that had been produced by CSH. Mr. Jones argued that the “relevance of these psychiatric evaluations and mental health records to the underlying case [were] self- evident.” Specifically, Mr. Jones contended that “[w]hat was known about Holmes’ propensity to sexually abuse minors in his care and when that was known is a central issue in the case.” Counsel proffered that Mr. Jones had requested that CSH produce the underlying records or reports but was informed that the mental health reports had been destroyed by CSH in the early 2000s. In the memorandum, Mr. Jones asserted that Brother Holmes’ sexual abuse of minors at Nazareth was “public knowledge,” and attached as exhibits copies of three articles from Boston newspapers,4 which reported that Brother Holmes pleaded guilty in 2006 to repeatedly raping and assaulting two boys in the 1970s and 1980s and that he was sentenced to five years and one day for the crimes.

The articles recite that Brother Holmes was a member of CSH and had been assigned to work at Nazareth, which was run by the Archdiocese of Boston. The sex crimes occurred while the children were 4 According to Mr. Jones, the articles, which appeared in the Boston Globe, TheBostonChannel.com, and the Jamaica Plain Gazette, had been produced by the defendant Roman Catholic Archdiocese of Boston in discovery in the Massachusetts Action. The victims of Brother Holmes’ crimes who were described in the articles are not the plaintiffs in the Massachusetts Action. 6 living at the Nazareth facility. Mr. Jones also pointed out that Brother Holmes died in August 2011.

SLI filed a memorandum in opposition, arguing that the circuit court would need to examine pleadings in the Massachusetts Action to properly determine whether Brother Holmes’ mental condition had been raised and whether such evidence was relevant. In a memorandum opinion and order dated January 23, 2019, the circuit court granted Mr. Jones’ cross-motion for an order to produce Brother Holmes’ mental health records and ordered that any responsive records “shall be filed under seal to the Superior Court of the Commonwealth of Massachusetts.” In its memorandum opinion, the circuit court determined that “records already in possession of [Mr. Jones] from [SLI] do suggest that more records would be directly relevant to the [Massachusetts Action], which involve negligent hiring and negligent supervision of Brother Holmes.” In rejecting SLI’s argument that the circuit court must examine the pleadings in the Massachusetts Action to properly determine whether Brother Holmes’ mental condition has been raised and whether such evidence is relevant, the circuit court stated that it did “not believe that two separate courts are required to review what are likely extensive pleadings in order to adjudicate this discovery request. To do so is contrary to the interests of judicial economy, especially as the trial court can and will be the ultimate gatekeeper of evidence at trial.” The circuit court judge proceeded to apply a balancing test that is undertaken when a governmental agency seeks discovery of confidential medical records in connection with a government investigation, which was first outlined in United States v. 7 Westinghouse Electric Corp., 638 F.2d 570, 578 (3d Cir. 1980), and was adopted by the Court of Special Appeals, in Dr. K. v. State Board of Physician Quality Assurance, 98 Md. App. 103 , 113–15, cert. denied, 334 Md. 18 , cert. denied, 513 U.S. 817 (1994) and later adopted by this Court in Doe v. Maryland Board of Social Work Examiners, 384 Md. 161, 186 (2004).5 Applying the Westinghouse balancing analysis, the circuit court concluded that “there is a compelling state interest in aiding the Plaintiff [to] obtain the requested records.” The circuit court reasoned that “[t]his case is one of the predatory sexual assault of minors, and there are multiple alleged victims, at least one of whom was sent to this institution by the state itself.” The circuit court stated that the “[p]laintiff in this instance case was taken from the custody of his parents by the Commonwealth of 5 The Westinghouse analytical framework, first adopted by the Court of Special Appeals in Dr. K, and later adopted by this Court in Doe, applies in circumstances in which a government agency is seeking medical records of a third party, and requires the balancing of several factors when weighing an individual’s right to privacy in his or her medical records against the government’s competing interest in obtaining access to those records. See United States v. Westinghouse Elec.

Corp., 638 F.2d 570, 578 (3d Cir. 1980); Dr. K. v. State Bd. of Physician Quality Assurance, 98 Md. App. 103 , 113–15, cert. denied, 334 Md. 18 , cert. denied, 513 U.S. 817 (1994); Doe v. Maryland Bd. of Soc. Work Exam’rs, 384 Md. 161, 184 (2004). Specifically, when a government actor seeks disclosure of an individual’s medical records, the Westinghouse balancing framework requires that the court consider the type of record requested, the information it contains, the potential for harm in subsequent nonconsensual disclosure, the injury in disclosure to the relationship for which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the government’s need for access, and whether there is an express statutory mandate, articulate public policy, or other public interest militating towards access. Doe, 384 Md. at 184–85 (quoting Dr. K, 98 Md. App. at 114–15 (citing Westinghouse, 638 F.2d at 578 )) (emphasis added). 8 Massachusetts, and place[d] in the care of Brother Holmes.” The circuit court balanced what it considered to be the “compelling state interest” in disclosure against any intrusions into Brother Holmes’ privacy interest in the records, by concluding that “the records requested do not at this time injure or embarrass Brother Holmes, who is now deceased and who previously admitted to rape and sexual assault of minors.” Accordingly, the circuit court determined that there were “compelling factors towards ordering the release of this requested information, with the [Massachusetts] trial court as the gatekeeper and safeguard for the Defendants.” Based upon this analysis, the circuit court entered an order directing that SLI produce, under seal, Brother Holmes’ mental health records to the Massachusetts Court.

After the circuit court denied SLI’s motion for reconsideration and request to vacate the order, SLI filed a timely appeal to the Court of Special Appeals, and a motion to stay the production of the mental health records. The motion to stay was granted by the Court of Special Appeals. C. Court of Special Appeals The Court of Special Appeals reversed the decision of the circuit court and remanded the case for additional proceedings. St. Luke Inst., Inc. v. Jones, 242 Md. App. 617 , 631 (2019).

The Court of Special Appeals determined that the circuit court had the authority to order SLI to produce Brother Holmes’ confidential medical records under the Confidentiality Act. Id. at 625. However, the intermediate appellate court pointed out that under our case law, where the information sought to be discovered is confidential, before disclosure of the materials in discovery, the “moving party must show, usually at a hearing, 9 some connection between the records sought, the issue before the court, and the likelihood that information relevant to the trial would be discovered.” Id. at 626 (quoting Goldsmith v. State, 337 Md. 112 , 127–28 (1995) (quoting Zaal v. State, 326 Md. 54, 83 (1992))) (emphasis omitted). Based upon the pleadings filed by Mr. Jones in connection with his motion to compel, the Court of Special Appeals concluded that “[Mr.] Jones met his burden in establishing the need for pre-trial disclosure of Brother Holmes’ mental health records.” Id. at 626.

The intermediate appellate court explained that “[a]s we see it, the circuit court did not abuse its discretion in finding that, based on the two reports and averments made by Jones, Holmes’ mental health records with SLI were likely relevant to the Massachusetts Action and subject to discovery.” Id. at 627. Believing that SLI was asserting Brother Holmes’ patient-therapist privilege,6 the Court of Special Appeals rejected any assertion that the records could not be disclosed based upon privilege. Id. at 628. The intermediate appellate court explained that, although Maryland recognizes a patient-therapist privilege, “[t]he privilege belongs to the patient to assert, not to the psychiatrist or psychologist.” Id.

(cleaned up). The intermediate appellate court declined to address SLI’s arguments with respect to Brother Holmes’ privacy interest in the mental health records because the court concluded that SLI lacked the requisite standing to advance the argument on Brother Holmes’ behalf. Id. at 628 n.6. 6 As discussed infra, it does not appear from our review of the record that SLI was asserting patient-therapist privilege on Brother Holmes’ behalf—as opposed to Brother Holmes’ privacy rights under the Confidentiality Act or the Constitution—either before the trial court or on appeal. 10 Although the Court of Special Appeals determined that Mr. Jones had made a sufficient proffer establishing a need for pre-trial disclosure of Brother Holmes’ mental health records, and that the records were not barred from disclosure under a statutory privilege or the Confidentiality Act, the court agreed with SLI that the circuit court erred in ordering that Brother Holmes’ entire mental health file be transferred to the Massachusetts Court without examining the file for relevancy. Id. at 629.

The intermediate appellate court explained that, pursuant to HG § 4-307(c), the circuit court was only authorized to permit release of records that are determined to be relevant to the Massachusetts Action. Id. The Court of Special Appeals also agreed with SLI that the appropriate manner for the circuit court to undertake its statutory review was an in camera review of Brother Holmes’ mental health records to determine what portion was relevant to the Massachusetts Action, and therefore, should be produced in discovery. Id. at 630.

Relying on this Court’s analysis in Zaal v. State, 326 Md. 54, 58 (1992), the Court of Special Appeals stated that it was “appropriate that the circuit court order the portion of Brother Holmes’ mental health records deemed relevant to the Massachusetts Action be produced under seal to the Massachusetts Court for that court’s determination as to what should be released to counsel.” Id. at 631. SLI petitioned for a writ of certiorari, asserting, among other things, that the Court of Special Appeals erred by analyzing the discovery request under a privilege statute, and by holding that SLI had no standing to raise Brother Holmes’ privacy interests in the mental 11 health records. We granted certiorari to consider the following questions, which we have consolidated and rephrased as follows7: 1. Did the circuit court apply the correct legal standard for the disclosure of mental health records when requested by a private party litigant where the patient has not authorized disclosure? 2.

Does a health care provider in custody of a patient’s mental health records have standing under the Confidentiality Act, § HG 4-307(k)(6) to raise the patient’s objections to disclosure? For the reasons set forth below, we answer the first question in the negative. The circuit court did not apply the correct legal standard when considering whether to order the 7 The questions presented in the writ of certiorari were: 1. Does SLI have standing to raise the constitutional right of privacy on behalf of a mental health patient? 2.

If SLI has the requisite standing, must the court first determine whether the constitutional right of privacy of the person whose records are sought has been superseded prior to any release of mental health records or can the court immediately proceed to the question of release without first determining that the right of privacy has been superseded? 3. If the constitutional right of privacy is required to be ruled upon by the court to determine if it has been superseded, then what are the standards to be applied by the court when a private party litigant rather than a state agency is making the request? 4. If the determination is made that records may be released, does the party requesting the release of mental health records have the burden of identifying to the court the nature of the information being sought for release from the mental health records prior to the court undertaking its in camera review? 12 release of confidential mental health records. Concerning the second question, we hold that a health care provider has standing to raise a patient’s objections to disclosure under the Confidentiality Act, HG § 4-307(k)(6).

We affirm the judgment of the Court of Special Appeals and remand this case to the Circuit Court for Prince George’s County for further proceedings consistent with this opinion.

II

Standard of Review This case involves an attempt by Massachusetts litigants to obtain records from a Maryland institution pursuant to a Maryland court order for use in the Massachusetts Action. Although this matter is not a traditional Maryland discovery dispute, the same principles that govern Maryland discovery matters also apply here. With respect to the application of discovery rules, “it is long settled that the trial judges are vested with a reasonable, sound discretion in applying them, which discretion will not be disturbed in the absence of a showing of its abuse.” Ehrlich v. Grove, 396 Md. 550, 560 (2007) (internal quotations and citations omitted). Although we generally review discovery disputes under an abuse of discretion standard, the dispute in this case involves a civil litigant’s right to obtain mental health records that are ordinarily protected from disclosure by statute and may only be obtained in accordance with the express statutory provisions authorizing such disclosure.

When a trial court’s order involves an interpretation and application of statutory and case law, we must determine whether the lower court’s conclusions are 13 legally correct under a de novo standard of review. Nesbit v. Gov’t Emps. Ins. Co., 382 Md. 65, 72 (2004).

III

Discussion A. Parties’ Contentions SLI contends that under the Confidentiality Act, the circuit court erred by ordering the release of all of Brother Holmes’ mental health records to the Massachusetts Court without first conducting an in camera review and making a relevancy determination. SLI points out that under HG § 4-307(c), a private party litigant may obtain disclosure of only the portions of the mental health records that are relevant. SLI asserts that the Confidentiality Act requires that the circuit court review the records and make the relevancy determination, and that the circuit court is not permitted to abdicate its responsibilities by releasing the entire contents of the records to the Massachusetts Court without first undertaking its own review. SLI notes that this Court described the in camera review process to be undertaken by a court when a private party litigant seeks discovery of confidential records in Baltimore City Department of Social Services v. Stein, 328 Md. 1, 14 (1992).

SLI posits that the circuit court should have applied the same in camera review process in this instance. In connection with the court’s statutory obligation under the Confidentiality Act to review the records for relevancy, SLI contends that the circuit court erred by accepting Mr. Jones’ representations concerning the Massachusetts Action without reviewing the complaint or related pleadings to determine the relevance of the mental health records to the allegations asserted in that case. SLI 14 does not contend that the circuit court was required to review all the pleadings in the Massachusetts Action. Rather, SLI asserts that the burden was on the movant to establish the relevancy of the mental health records by focusing the court’s attention on specific issues alleged in the Massachusetts Action.

SLI also contends that the circuit court incorrectly applied the Westinghouse factors as part of its analysis, pointing out that the Westinghouse balancing analysis applies when a governmental agency is seeking medical records, not when a private party litigant is seeking records from a health care provider. Although SLI recognizes that the Westinghouse balancing test does not apply because there is no state action that would require balancing a “compelling state interest” in disclosure against the individual’s privacy rights in the records, SLI argues that this Court should adopt a “compelling need” standard when a private litigant seeks discovery of confidential records in the context of civil discovery, which SLI asserts should be determined on a case-by-case basis. To demonstrate a “compelling need,” SLI contends that the private party litigant must do more than simply represent that the litigant needs the records to prove its case. Finally, SLI contends that the Court of Special Appeals erred in analyzing “the issues in this case under the doctrine of privilege,” because SLI did not assert any privilege.

SLI also argues that the Court of Special Appeals erred when it failed to consider SLI’s standing to raise Brother Holmes’ privacy rights under HG § 4-307(k)(6). SLI asserts that 15 under the plain language of that subsection, SLI has standing to raise Brother Holmes’ privacy rights.8 In response, Mr. Jones argues that the Court of Special Appeals’ holding, which remands the case to the circuit court for an in camera review of the records, is reasonable and appropriate and provides an “exceeding level of scrutiny” prior to any subsequent review by the Massachusetts Court or the litigants. Mr. Jones contends that, to the extent that records are ultimately produced to the parties in the underlying action, they will only be produced under a protective order prohibiting public disclosure/dissemination. With respect to Brother Holmes’ right to privacy, Mr. Jones asserts that there is no “right to privacy in public facts,” and given Brother Holmes’ admission of sexual assault and related convictions, matters pertaining to Brother Holmes’ mental health records and to his risk of being a child predator are “public knowledge.” Mr. Jones also asserts that the fact that Brother Holmes is now deceased is certainly a relevant factor in determining what right to privacy, if any, exists over SLI’s records.

In any event, Mr. Jones contends that SLI has no standing to assert Brother Holmes’ right to privacy because that right is a “personal one” and argues that HG § 4-307(k)(6) only gives the patient or “person in 8 Although SLI asserts in its brief that the circuit court erred in failing to conduct a hearing under Maryland Rule 2-311(f), it did not raise this issue in its petition for writ of certiorari. It is well-settled that this Court “ordinarily do[es] not . . . consider an issue not raised in a petition for certiorari.” Renbaum v. Custom Holding, Inc., 386 Md. 28 , 33 n.2 (2005). In the rare circumstances where this Court addresses an issue not raised in a petition for certiorari, it is generally because the issue is “implicitly contained within the question on which we granted certiorari.” State v. Roshchin, 446 Md. 128, 147 (2016). We determine that there is no basis to consider the propriety of the trial court’s decision to rule on SLI’s and Mr. Jones’ motions without a hearing, as the issue was neither explicitly nor implicitly raised in the petition for writ of certiorari. 16 interest” the right to assert a “constitutional right.” Assuming the statute confers standing on SLI to object to the disclosure on Brother Holmes’ behalf, Mr. Jones contends that Brother Holmes waived his right to privacy in the records.

With respect to the circuit court’s application of the Westinghouse factors, Mr. Jones contends that he has demonstrated a “compelling state interest” in the disclosure of the records. B. Disclosure of Mental Health Records in Private Civil Litigation—The “Balancing Framework” Established by Applicable Rules, Statutes, and Case Law In this case, we are being asked to determine the legal standard to be applied under the Confidentiality Act when a private party in civil litigation seeks discovery of a third party’s mental health records where the patient has not authorized the disclosure. 9 Although the specific request at issue in this case involves an additional procedural complication—namely, that the records are being sought in connection with litigation pending in another state—our analysis and consideration of the threshold determination of whether these records are discoverable, and the parameters for disclosure, is the same regardless of whether the litigation was initiated in Maryland or elsewhere. 9 As noted in our discussion of the parties’ contentions, SLI asserts that the Court of Special Appeals erred when it discussed the patient-therapist privilege, codified in Md. Code Ann., Cts. & Jud. Proc. § 9-109 (b)(1)–(2) (2020). The Court of Special Appeals addressed the patient-therapist privilege because the court believed that SLI was raising the privilege as a basis for non-disclosure.

St. Luke Inst., Inc. v. Jones, 242 Md. App. 617 , 627 (2019). Based upon our review of the record and the briefs, it does not appear that SLI was asserting a privilege. Rather, SLI’s position was that the circuit court failed to comply with the mental health records disclosure provisions under the Confidentiality Act, HG § 4-307. Regardless of whether privilege was raised below, SLI is not asserting any privilege in connection with this Court’s review.

Accordingly, we do not address any privilege as part of this opinion and our discussion and holding is limited to the disclosure provisions under the Confidentiality Act. 17 As described more fully below, the Maryland discovery rules, the Confidentiality Act, and our case law establish the framework for a trial court to apply when balancing the civil litigant’s need to obtain relevant, discoverable information against the patient’s privacy interests in the confidential mental health records. 1. Maryland Discovery Rules Generally Maryland’s discovery rules, governed by Chapter 400 of Title 2 of the Maryland Rules, “were deliberately designed to be broad and comprehensive in scope.” Ehrlich v. Grove, 396 Md. 550, 560 (2007) (internal quotations omitted). Maryland Rule 2-402(a) permits, in pertinent part, a party to obtain discovery “regarding any matter that is not privileged . . . if the matter sought is relevant to the subject matter involved in the action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” As we have stated on numerous occasions, “Maryland’s discovery rules are to be liberally construed.” Ehrlich, 396 Md. at 560 (first citing Kelch v. Mass Transit Admin., 287 Md. 223, 229 (1980); then citing Klein v. Weiss, 284 Md. 36, 55 (1978)). There are limitations, however, on the general proposition that discovery rules are to be liberally construed. 2.

Statutory Provisions Governing Disclosure of Mental Health Records Under the Confidentiality Act In this case, the limitation comes in the form of the pertinent statutory provisions governing the confidentiality and disclosure by health care providers of medical records, including mental health medical records that are set forth in the Confidentiality Act, HG §§ 4-301 through 4-309. The Confidentiality Act addresses the confidentiality of medical 18 records in general. HG § 4-302(a) requires health care providers to keep medical records confidential, and allows disclosure only as provided by Maryland law.10 10 Medical records, including mental health records, are also subject to the confidentiality provisions of the Health Insurance and Portability Accountability Act (“HIPAA”), 42 U.S.C. § 1320d et seq. HIPAA provides for the confidentiality of individually identifiable health information and establishes the Department of Health and Human Services’ (“HHS”) authority to regulate the disclosure of medical and mental health records. 45 C.F.R. § 160.203 (b) establishes federal preemption of state laws unless the state regulation is more protective of protected health information.

For purposes of this case, our focus is solely on the Confidentiality Act, HG §§ 4- 401 through 4-309. SLI did not raise any objection to the disclosure of the records under HIPAA. SLI acknowledges in its pleadings that the Confidentiality Act contains more restrictive provisions for the disclosure of mental health records than its federal counterpart, and therefore is controlling. Comparing the applicable provisions of the Confidentiality Act with the applicable HIPAA provisions, we agree that, although the provisions are similar, the Maryland statute provides greater protections with respect to disclosure of mental health records. 45 C.F.R. § 164.512 sets forth the circumstances in which a covered health care provider “may use or disclose protected health information without the written authorization” of an individual.

Subsection (e) of that regulation governs unauthorized disclosure of protected health information in the course of a judicial or administrative proceeding. 45 C.F.R. § 164.512 (e). Under that subsection, health care providers and other covered entities are permitted to disclose protected health information without the patient’s consent: (1) in response to a court order, provided only the information specified in the court order is disclosed; or (2) in response to a subpoena or discovery request if the health care provider receives adequate assurance that the individual whose records are requested has been given sufficient notice of the request, or if reasonable efforts have been made to secure a protective order. 45 C.F.R. § 164.512 (e)(1)(i), (ii). Protective orders must (1) prohibit use of the protected health information outside the litigation process; and (2) require the return or destruction of the records, including copies made, at the conclusion of the litigation. 45 C.F.R. § 164.512 (e)(1)(v). In contrast to the federal regulations, the Confidentiality Act distinguishes between mental health records and medical records, affording greater protections against the unauthorized disclosure of mental health records by (1) requiring a court order prior to their disclosure, see HG § 4-307(k)(1)(iv), and further requiring that (2) only the information in the record relevant to the purpose for which disclosure is sought may be released.

See HG § 4-307(c). Additionally, the Confidentiality Act restricts “redisclosure” of medical records— 19 Where the records sought to be disclosed consist of medical records developed in connection with the provision of mental health services,11 the General Assembly has imposed additional limitations, which are set forth in HG § 4-307.12 First, unlike other types of medical records that may be disclosed to a third party by subpoena, a court order is required where the disclosure of mental health records is sought by a private litigant in a civil proceeding in which the person in interest has not authorized the disclosure. As it pertains to this case, HG § 4-307(k)(1) requires a health care provider to disclose a medical record to a court or a party to a court proceeding “in accordance with a court order[.]”13 Second, the Confidentiality Act provides that “[w]hen a medical record a restriction not contained in HIPAA. See 88 Opinions of the Attorney General 205, 216 (2003) available at [https://perma.cc/H2T7-K7C2]. 11 Under the Confidentiality Act, “mental health services” are defined as “health care rendered to a recipient primarily in connection with the diagnosis, evaluation, treatment, case management, or rehabilitation of any mental disorder.” HG § 4- 301(k)(1). 12 See HG § 4-307(b), which provides that “[t]he disclosure of a medical record developed in connection with the provision of mental health services shall be governed by the provisions of this section in addition to the other provisions of this subtitle.” 13 HG § 4-307(k) provides that: (1) A health care provider shall disclose a medical record without the authorization of a person in interest: * * * (iv) in accordance with a court order, other than compulsory process compelling disclosure, as permitted under § 9-109(d), § 9- 109.1(d) or § 9-121(d) of the Courts and Judicial Proceedings Article, or as otherwise provided by law, to: 20 developed in connection with the provision of mental health services is disclosed without the authorization of a person in interest, only the information in the record relevant to the purpose for which disclosure is sought may be released.” HG § 4-307(c).14 If medical records are authorized to be disclosed, the Act also prohibits redisclosure of the records.15 Additionally, disclosing a medical record in violation of the subtitle subjects the violator to a possible criminal fine and to actual damages in a civil suit.

See HG § 4-309. Taken together, where a private party litigant seeks the disclosure of mental health records and the person in interest has not authorized the disclosure, given the conditions and limitations imposed by the General Assembly in HG § 4-307: (1) the party seeking 1. A court; 2. An administrative law judge; 3.

A health claims arbitrator; or 4. A party to a court, administrative, or arbitration proceeding. The compulsory process provisions described in subsection (iv) are not applicable here. 14 The Confidentiality Act contains protections similar to HIPAA. 45 C.F.R. § 164.512 (e)(1)(i) permits a health care provider to disclose only the protected health information expressly authorized by court order. 15 HG § 4-302(d) provides in part: Redisclosure.—A person to whom a medical record is disclosed may not redisclose the medical record to any other person unless: (1) The redisclosure is: (i) Authorized by the person in interest; (ii) Otherwise permitted by this subtitle; . . . There is no other provision in the subtitle that would permit redisclosure of Brother Holmes’ mental health records. 21 their disclosure must file a motion requesting a court order compelling their disclosure; and (2) prior to the court authorizing the disclosure pursuant to a court order, the court must undertake an examination of the documents sought to be disclosed and any other necessary information in order to make a relevancy determination and to ensure that it limits disclosure only to the information that may be relevant.

In response to a motion seeking a court order compelling or authorizing the disclosure of mental health records, the Confidentiality Act also provides a health care provider, recipient, or person in interest with the right to object to the disclosure. See HG § 4-307(k)(6) (“This subsection may not preclude a health care provider, a recipient, or a person in interest from asserting in a motion to quash or a motion for a protective order any constitutional right or other legal authority in opposition to disclosure.”). By its plain terms, HG § 4-307(k)(6) authorizes a health care provider to assert, in a motion, a “constitutional right . . . in opposition to disclosure.” In Maryland State Board of Physicians v. Eist, 417 Md. 545, 564 (2011), we stated that this provision of the Act “grants standing to the health care provider, as well as others opposed to disclosure, to raise the patient’s constitutional rights or other grounds for nondisclosure, by filing in court a motion to quash or a motion for a protective order.” By establishing a process whereby a private party litigant may only obtain disclosure of mental health records by a court order, and granting standing to the health care provider or other authorized person to object to the disclosure by filing a motion in opposition, the provisions of the Confidentiality Act dovetail with the court’s broad discretion to enter a protective order under Maryland Rule 2-403. In Eist, we recognized 22 that where medical records were sought in connection with a licensing investigation, filing a motion to quash a subpoena under Maryland Rule 2-510 or motion for a protective order under Maryland Rule 2-403 was the “route chosen by the General Assembly for the resolution of constitutional or other objections to the subpoena[,]” id. at 565 , or in this case, a motion requesting a court order.16 The process necessarily requires a balancing of the relevance of the records and the movant’s need for disclosure on the one hand, and the patient’s privacy interests implicated by the disclosure on the other. 3.

Protective Orders Maryland Rule 2-403(a) governs the application for protective orders. It states: On motion of a party, a person from whom discovery is sought, . . . and for good cause shown, the court may enter any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had, . . . (3) that the discovery may be had only on specified terms and conditions, . . .