ELSIE LEON TOOTLE, PETITIONER,
v.
SEABOARD COAST LINE RAILROAD COMPANY, A FLORIDA CORPORATION, ALFRED FOSTER GREENE, AND TERRIS CLOUD COLLINS, RESPONDENTS
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Tootle petitioned for a writ of certiorari to prevent a clinical psychologist from giving a deposition, claiming federal privilege over information obtained during a Social Security disability examination. The court denied the petition, holding that Tootle lacked standing to assert the privilege because neither the psychologist nor the federal government had raised the claim themselves.
Tootle lacks standing to assert the federal privilege because only the person being compelled to testify who enters a protest on his own or through the government has standing to challenge compulsion of testimony. Since neither Dr. Krop nor the federal government filed pleadings or appeared to raise a privilege claim, Tootle could not raise it on their behalf.
[1] A party seeking to review an order compelling testimony lacks standing to raise a federal privilege claim on behalf of the witness.
[2] Only the person compelled to testify, or the government entity on whose behalf a privilege is asserted, has standing to challenge the compulsion of testimony.
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Join FLexlaw to unlock all legal intelligence“only the person being compelled to testify who enters a protest on his own or through the government, has standing to challenge the compulsion of his testimony”
Establishes the controlling legal principle that only the witness or the government can assert a privilege to prevent testimony, not a third party.
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Join FLexlaw to unlock all legal intelligenceTootle sued Seaboard Coast Line Railroad Company after being injured in a train-automobile accident. The defendant sought to depose Dr. Harry Krop, a …
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SHARP, Judge.
Tootle files a petition for writ of certiorari to review an order of the trial court which compelled Dr. Harry Krop, a clinical psychologist who previously examined Tootle, to give his deposition. Because Tootle lacks standing to raise any federal privilege against Krop’s testifying, we deny his petition.
Tootle sued Seaboard after being injured in a train-automobile accident. Seaboard sought to depose Krop, who had examined Tootle for the Social Security Administration. Apparently, the Social Security Administration terminated Tootle’s benefits and is attempting to retrieve some benefits paid. Krop performed a consultative examination of Tootle to assist in determining Tootle’s right to benefits under the disability insurance program. Krop was selected and hired by the Social Security Administration, and he was not a treating physician.
By letter from its attorney, the Office of Disability Termination informed Seaboard that Krop’s findings and report are considered federal property and that Krop is prohibited by federal statutes and regulations from disclosing information contained therein. See 5 U.S.C. § 552(b)(3)(A) (1982); 42 U.S.C. § 1306(a) (1982); 20 C.F.R. 401.1. There are also criminal penalties for those who willfully and knowingly disclose information contrary to these provisions.
Neither the Department nor Krop has filed pleadings or appeared in this proceeding to raise any claim of privilege. The federal courts have different views on whether the privilege would apply here,1 but in any event, only the person being compelled to testify who enters a protest on his own or through the government, has standing to challenge the compulsion of his testimony. See Stiles v. Atlanta Light Company, 453 F.Supp. 798 (N.D.Ga.1978); Gilley v. Travelers Insurance Company, 298 F.Supp. 47 (S.D.Tenn.1969); In re Mengel, 201 F.Supp. 687 (W.D.Pa.1962); Hubbard v. Southern Railway Company, 179 F.Supp. 244 (M.D.Ga.1959); Texas Employer’s Insurance Association v. Marshall, 436 S.W. 2d 617 (Tex.Civ.App.1969). Accordingly, we deny this petition.
PETITION FOR CERTIORARI DENIED.
COBB and COWART, JJ., concur. . See, e.g., Schecter v. Weinberger, 506 F. 2d 1275 (D.C.Cir.1974); Stiles v. Atlanta Light Co., 453 F.Supp. 798 (N.D.Ga.1978); California v. Richardson, 351 F.Supp. 733 (N.D.Cal.1972); Gilley v. Travelers Ins. Co., 298 F.Supp. 47 (E.D.Tenn.1969); see also Texas Employer's Ins. Ass'n v. Marshall, 436 S.W. 2d 617 (Tex.Civ.App.1969).
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Tootle v. Seaboard Coast Line R.R. Co., 468 So. 2d 237 (Fla. 5th DCA 1984)…psychologist. Once again we reiterate that only the psychologist and the federal government have standing to challenge on federal privilege grounds the compulsion of the psychologist’s deposition. See Tootle v. Seaboard Coast Line Railroad Company, 447 So. 2d 1009 (Fla. 5th DCA 1984). If Tootle has no standing to assert the federal privilege then of course he has no standing to appeal any trial court ruling as to the assertion of the federal privilege by a proper party. Tootle also challenges that portion of…
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