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Kahn v. Pony Express Courier Corp.3/14/2001
court reached the right result in this instance because, even if some of the SCF records sought by defendants were discoverable by reason of not constituting privileged records "relating to [Tabert's daughter's] history and prognosis," defendants failed to make a sufficient showing in that regard, as required under Frease. Again, in the hearing on their motion, defendants asserted that the records they sought contained information about Tabert's marriages, about her possible substance abuse problems, and about her relationship with her daughter, including information SCF may have received from out-of-state social service agencies. As discussed above, we interpret the statutory term "reports and other material relating to child's * * * history and prognosis" as applying to records containing information about a child's medical, psychological, and social (including family and personal) background and predicted future condition or status. Defendants' factual assertions in this case regarding the SCF records, if any, in the possession of plaintiff's counsel demonstrated that those records were within the category of records that are privileged under ORS 419A.255(2), rather than the category of records that are merely confidential, and therefore potentially discoverable, under ORS 409.225. Accordingly, defendants' factual showing did not entitle them to production of the privileged records.
In summary, to the extent that the trial court denied defendants' motion to compel production on the ground that all SCF records are privileged under ORS 409.225 against discovery under ORCP 36 B(1), the trial court's reasoning was incorrect. Nevertheless, because defendants failed to demonstrate that, as a factual matter, any of the records sought was outside the category of records privileged against discovery under ORS 419A.255(2), the trial court reached the right result, and we affirm its denial of defendants' motion to compel. There was no error.
We turn to defendants' second assignment of error. In that assignment, defendants argue that the trial court erred in granting plaintiff's motion in limine to exclude evidence of, or reference to, records of the Montana DFS. The records pertained to that agency's placement of Tabert's daughter in foster care during a period in the early 1990's when Tabert was hospitalized. Defendants initially sought production from plaintiff of both the DFS records and the Montana hospital records. Plaintiff responded that he did not have possession of the DFS records and that, in any event, they were confidential. Defendants then moved for an order compelling plaintiff to execute releases authorizing disclosure of the hospital records and the DFS records. The trial court ordered plaintiff to execute a release pertaining to the Montana hospital records but denied defendants' motion as to the DFS records. Nevertheless, in providing its own records to defendants, the Montana hospital inadvertently also provided the DFS records, which previously had been provided to the hospital by DFS. Legal counsel for Montana DFS immediately contacted the parties and informed them that release of the records "to third parties in connection with the pending civil proceedings was unauthorized and is prohibited by Montana statute" and that there was no "waiver" by Montana DFS of the applicable confidentiality statute.
Plaintiff thereafter filed his motion in limine to exclude from evidence the DFS records in defendants' possession and any reference to them. In support of the motion, plaintiff argued that the records were confidential under Montana Code Annotated (MCA) 41-3-205 and that no exception in the statute was applicable. In opposition to the motion, defendants argued that disclosure
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