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#101902 3717%
FILE
MARIE RAMSEY COURT CLERK
IN THE DISTRICT COURT OF CANADIAN COUNSANADIAN COUNTY. OKLA
STATE OF OKLAHOMA JUL 13 2012
IN RE MARRIAGE OF:
) By Hwy Cao
BARBARA ANN BUSBEE, ) erU
)
Petitioner, )
)
and, ) Case No. FD-2006-647
) (Judge Hatfield)
LANCE AARON BUSBEE, )
)
Respondent. )
RESPONDENT’S MOTION TO COMPEL AND BRIEF IN SUPPORT
COMES NOW Respondent, Lance Aaron Busbee (“Father”), through his attomeys of
record, Donelle H. Ratheal and David W. Smith Il, of RATHEAL, MAGGARD AND
FORTUNE, PLLC, and respectfully moves this Court to compel International Environmental
Corporation (“IEC”) to respond completely to the records subpoena.
PROCEDURAL BACKGROUND
1. On December 19, 2011, Father’s counsel filed a Continuing Wage Garnishment
Affidavit. The Garnishment Summons was filed January 10, 2012.
2. Petitioner (“Mother”) filed a Claim for Exemption on January 12, 2012.
3. A hearing was held on Mother’s Claim for Exemption on January 20, 2012. This
Court modified the garnishment down to $800.00 monthly.
4. On February 23, 2012, an Order to Garnishee IEC was filed.
5. Subsequent to the filing of the Order to Garnishee, IEC notified Father’s counsel
that Mother’s wages could not be garnished because she had taken sick leave,
In re Marriage of Busbee
Respondent’s Motion to Compel and Brief in Support
Page 1 of 46. On May 2, 2012, Father’s counsel mailed a Subpoena Duces Tecum to IEC,
Mother’s employer, for production of employment records, including sick leave records for
Mother.
7. On May 4, 2012, the Subpoena Duces Tecum was served upon IEC.
8. On May 17, 2012, IEC informed Father’s counsel that it would not disclose
Mother’s medical records without a court order. See “Exhibit A” attached.
ARGUMENT & AUTHORITIES
Almost all information regarding the parties is relevant in a domestic relations case,
original and post-decree. Financial information relates to child support and the ability to pay
costs, i.e., guardian ad litem fees, evaluation expenses and attorney fees. 43 O.S. § 110(E)
(2011); Jd, § 118B (2011).
Information regarding the parties’ mental and physical fitness, their parenting abilities,
work history and health relates to the issues of custody, access and visitation. 43 O.S. § 110.2
(2011).
All relevant information is discoverable under the provisions of the Oklahoma Discovery
Code (‘‘the Code”). The Code allows a party to:
[o]btain discovery regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending action, whether it relates to the claim or
defense of the party seeking discovery or to the claim or defense of any other
party . . .It is not a ground for objection that the information sought will be
inadmissible at the trial if the information sought appears reasonably calculated to
lead to the discovery of admissible evidence.
12 OS. § 3226(B)(1) (2011).
In order to claim a physician-patient privilege the communication must be confidential.
The communication is confidential if not intended to be disclosed to third persons. Petitioner
disclosed medical issues to a third party, IEC. The only exceptions to this rule are third parties
In re Marriage of Busbee
Respondent’s Motion to Compel and Brief in Support
Page 2 of 4who are present to further the interest of the patient in the consultation, are necessary for the
transmission of the communication or are participating in the diagnosis and treatment of the
patient. IEC falls into none of these exceptions. 12 O.S. § 2503(A)(4) (2011). Further, even if
the medical records were privileged between Mother and her physician, the privilege was waived
when Mother disclosed them to her employer. 12 O.S. § 2511 (2011).
Father requests the following order from this Court: (1) IEC be ordered to deliver a
complete copy of Mother’s employment records, including her sick leave records.
WHEREFORE, Respondent respectfuily requests that this Court sustain his motion and
compel IEC to respond in full to the Subpoena Duces Tecum, together with any other relief
deemed equitable and appropriate by this Court.
Donelle H. Ratheal OBA 14876
Darquita L. Maggard OBA 14917
Deborah E. Fortune OBA 3042
David W. Smith II OBA 22304
RATHEAL, MAGGARD & FORTUNE, PLLC
4045 NW 64" Street, Suite 210
Oklahoma City, OK 73116
(405) 842-6342 (telephone)
(855) 842-6342 (toll free)
(405) 842-6708 (fax)
donelle@rathealpce.com
david@rathealpc.com
ATTORNEYS FOR RESPONDENT
In re Marriage of Busbee
Respondent’s Motion to Compel and Brief in Support
Page 3 of 4NOTICE OF HEARING
A hearing on Respondent’s Motion to Compel is set for the 20 day of , 2012
at 4.0 o’clock “A_.m. before the Honorable Judge Barbara Hatfield.
CERTIFICATE OF SERVICE
I certify that on the 11™ day of July, 2012, I mailed a true and correct copy of
Respondent’s Motion to Compel and Brief in Support, United States first class mail, to the
attorney of record for Petitioner and the Guardian ad Litem, namely
Christopher A. Arledge Bridget Childers
528 W. Highway 152, Suite 101 9024 S.E. 29", Suite A
P.O. Box 355 Oklahoma City, OK 73150
Mustang, OK 73064
|
David W. Smith II OBA 22304
Mactients\busbee2\pleadings\compelmot2.doc
In re Marriage of Busbee
Respondent’s Motion to Compel and Brief in Support
Page 4 of 4VIA EMAIL (donelle@rathealmaggardfortune.com),
VIA FACSIMILE: 842-6708 and FIRST CLASS. MAIL
May 17, 2012
Donelle H. Ratheal, Esq
Ratheal, Maggard & Fortune, PLLC
4045 N.W. 64th Street, Suite 210
Oklahoma City, Oklahoma 73116
RE: Barbara Ann Busbee v. Lance Aaron Busbee
Case No, FD-2006-647, District Court, Canadian County, Oklahoma
Dear Ms. Ratheal:
In response to the Civil Witness Trial Subpoena Duces Tecum dated May 2, 2012
(“Subpoena”) issued to International Environmental Corporation (“IEC”), which such Subpoena
concerns the production of employment records of Barbara Ann Busbee (now known as Barbara
Darragh), including sick leave records of such employee, please be advised that IEC objects to
the production of the sick leave records due to the confidential nature of such documents (as
confidential medical records) pursuant to Title 12, Section 2004. 1(C)(2)(b) of the Oklahoma
Statutes.
As previously indicated to David Smith of your office, IEC will produce such documents
pursuant to a valid court order. The Subpoena was served on May 4, 2012.
Please feel free to contact me at (207) 439-7262 if you have any questions concerning
this matter.
Sincerely, Vn
Ann Muise
Associate General Counsel
AM/yq
16 South Pennsylvania Avenue
amge Ratheal 051712 Oklahoma City, Oklahoma 73107
Fax 405.236.1209
EXHIBITDonelle H. Ratheal, Esq.
Ratheal, Maggard & Fortune, PLLC
May 17, 2012
Page 3
cc: Christopher A. Arledge
Post Office Box 355
Mustang, Oklahoma 73064
Bridget M. Childers
9024 SE. 29th, Suite A
Oklahoma City, Oklahoma 73150
amge\Ratheal 051712
-™
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~ —~ (MO #101902 3717% FILE MARIE RAMSEY COURT CLERK IN THE DISTRICT COURT OF CANADIAN COUNSANADIAN COUNTY. OKLA STATE OF OKLAHOMA JUL 13 2012 IN RE MARRIAGE OF: ) By Hwy Cao BARBARA ANN BUSBEE, ) erU ) Petitioner, ) ) and, ) Case No. FD-2006-647 ) (Judge Hatfield) LANCE AARON BUSBEE, ) ) Respondent. ) RESPONDENT’S MOTION TO COMPEL AND BRIEF IN SUPPORT COMES NOW Respondent, Lance Aaron Busbee (“Father”), through his attomeys of record, Donelle H. Ratheal and David W. Smith Il, of RATHEAL, MAGGARD AND FORTUNE, PLLC, and respectfully moves this Court to compel International Environmental Corporation (“IEC”) to respond completely to the records subpoena. PROCEDURAL BACKGROUND 1. On December 19, 2011, Father’s counsel filed a Continuing Wage Garnishment Affidavit. The Garnishment Summons was filed January 10, 2012. 2. Petitioner (“Mother”) filed a Claim for Exemption on January 12, 2012. 3. A hearing was held on Mother’s Claim for Exemption on January 20, 2012. This Court modified the garnishment down to $800.00 monthly. 4. On February 23, 2012, an Order to Garnishee IEC was filed. 5. Subsequent to the filing of the Order to Garnishee, IEC notified Father’s counsel that Mother’s wages could not be garnished because she had taken sick leave, In re Marriage of Busbee Respondent’s Motion to Compel and Brief in Support Page 1 of 46. On May 2, 2012, Father’s counsel mailed a Subpoena Duces Tecum to IEC, Mother’s employer, for production of employment records, including sick leave records for Mother. 7. On May 4, 2012, the Subpoena Duces Tecum was served upon IEC. 8. On May 17, 2012, IEC informed Father’s counsel that it would not disclose Mother’s medical records without a court order. See “Exhibit A” attached. ARGUMENT & AUTHORITIES Almost all information regarding the parties is relevant in a domestic relations case, original and post-decree. Financial information relates to child support and the ability to pay costs, i.e., guardian ad litem fees, evaluation expenses and attorney fees. 43 O.S. § 110(E) (2011); Jd, § 118B (2011). Information regarding the parties’ mental and physical fitness, their parenting abilities, work history and health relates to the issues of custody, access and visitation. 43 O.S. § 110.2 (2011). All relevant information is discoverable under the provisions of the Oklahoma Discovery Code (‘‘the Code”). The Code allows a party to: [o]btain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . .It is not a ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. 12 OS. § 3226(B)(1) (2011). In order to claim a physician-patient privilege the communication must be confidential. The communication is confidential if not intended to be disclosed to third persons. Petitioner disclosed medical issues to a third party, IEC. The only exceptions to this rule are third parties In re Marriage of Busbee Respondent’s Motion to Compel and Brief in Support Page 2 of 4who are present to further the interest of the patient in the consultation, are necessary for the transmission of the communication or are participating in the diagnosis and treatment of the patient. IEC falls into none of these exceptions. 12 O.S. § 2503(A)(4) (2011). Further, even if the medical records were privileged between Mother and her physician, the privilege was waived when Mother disclosed them to her employer. 12 O.S. § 2511 (2011). Father requests the following order from this Court: (1) IEC be ordered to deliver a complete copy of Mother’s employment records, including her sick leave records. WHEREFORE, Respondent respectfuily requests that this Court sustain his motion and compel IEC to respond in full to the Subpoena Duces Tecum, together with any other relief deemed equitable and appropriate by this Court. Donelle H. Ratheal OBA 14876 Darquita L. Maggard OBA 14917 Deborah E. Fortune OBA 3042 David W. Smith II OBA 22304 RATHEAL, MAGGARD & FORTUNE, PLLC 4045 NW 64" Street, Suite 210 Oklahoma City, OK 73116 (405) 842-6342 (telephone) (855) 842-6342 (toll free) (405) 842-6708 (fax) donelle@rathealpce.com david@rathealpc.com ATTORNEYS FOR RESPONDENT In re Marriage of Busbee Respondent’s Motion to Compel and Brief in Support Page 3 of 4NOTICE OF HEARING A hearing on Respondent’s Motion to Compel is set for the 20 day of , 2012 at 4.0 o’clock “A_.m. before the Honorable Judge Barbara Hatfield. CERTIFICATE OF SERVICE I certify that on the 11™ day of July, 2012, I mailed a true and correct copy of Respondent’s Motion to Compel and Brief in Support, United States first class mail, to the attorney of record for Petitioner and the Guardian ad Litem, namely Christopher A. Arledge Bridget Childers 528 W. Highway 152, Suite 101 9024 S.E. 29", Suite A P.O. Box 355 Oklahoma City, OK 73150 Mustang, OK 73064 | David W. Smith II OBA 22304 Mactients\busbee2\pleadings\compelmot2.doc In re Marriage of Busbee Respondent’s Motion to Compel and Brief in Support Page 4 of 4VIA EMAIL (donelle@rathealmaggardfortune.com), VIA FACSIMILE: 842-6708 and FIRST CLASS. MAIL May 17, 2012 Donelle H. Ratheal, Esq Ratheal, Maggard & Fortune, PLLC 4045 N.W. 64th Street, Suite 210 Oklahoma City, Oklahoma 73116 RE: Barbara Ann Busbee v. Lance Aaron Busbee Case No, FD-2006-647, District Court, Canadian County, Oklahoma Dear Ms. Ratheal: In response to the Civil Witness Trial Subpoena Duces Tecum dated May 2, 2012 (“Subpoena”) issued to International Environmental Corporation (“IEC”), which such Subpoena concerns the production of employment records of Barbara Ann Busbee (now known as Barbara Darragh), including sick leave records of such employee, please be advised that IEC objects to the production of the sick leave records due to the confidential nature of such documents (as confidential medical records) pursuant to Title 12, Section 2004. 1(C)(2)(b) of the Oklahoma Statutes. As previously indicated to David Smith of your office, IEC will produce such documents pursuant to a valid court order. The Subpoena was served on May 4, 2012. Please feel free to contact me at (207) 439-7262 if you have any questions concerning this matter. Sincerely, Vn Ann Muise Associate General Counsel AM/yq 16 South Pennsylvania Avenue amge Ratheal 051712 Oklahoma City, Oklahoma 73107 Fax 405.236.1209 EXHIBITDonelle H. Ratheal, Esq. Ratheal, Maggard & Fortune, PLLC May 17, 2012 Page 3 cc: Christopher A. Arledge Post Office Box 355 Mustang, Oklahoma 73064 Bridget M. Childers 9024 SE. 29th, Suite A Oklahoma City, Oklahoma 73150 amge\Ratheal 051712 -™