5.9Party’s Medical Information

If a party’s mental or physical condition is in controversy, medical information regarding the condition may be discoverable as long as it is discoverable under MCR 2.302(B) (scope of discovery), and the party does not assert a valid privilege to prevent discovery of the medical information. MCR 2.314(A)(1)(a)-(b).

Discoverable medical information “includes, but is not limited to, medical records in the possession or control of a physician, hospital, or other custodian, and medical knowledge discoverable by deposition or interrogatories.” MCR 2.314(A)(2). The party is considered to be in control of his or her own medical information even if the party does not have immediate physical possession of it. MCR 2.314(A)(3).

When a party is served with a request for medical information, the party must:

•make the information available,

•assert a privilege,

•object to the request, or

•provide the requesting party with the location of the information and a sufficient number of signed authorizations so that the requesting party can obtain the information from the individual or entity that possesses the information. MCR 2.314(C)(1)(a)-(d); MCR 2.314(C)(2).

A party with a valid privilege may assert it to prevent discovery of medical information regarding his or her mental or physical condition. MCR 2.314(B)(1). See also MCR 2.302(B)(1). A privilege that is not asserted in a timely manner is waived in that action only.¹ MCR 2.314(B)(1). See also MCR 2.306(D)(4). “Unless the court orders otherwise, if a party asserts that the medical information is subject to a privilege and the assertion has the effect of preventing discovery of medical information that must be disclosed or is otherwise discoverable under MCR 2.302(B), the party may not thereafter present or introduce any physical, documentary, or testimonial evidence relating to the party’s medical history or mental or physical condition.”² MCR 2.314(B)(2).

If privileged or protected information is inadvertently produced during discovery, “the party making the claim [of privilege] may notify any party that received the information of the claim and the basis for it.” MCR 2.302(B)(7). Once a receiving party is on notice, that party “must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim.” Id. If a receiving party disclosed the information before the producing party provided notice of the claim, the receiving party must take reasonable steps to retrieve the information. Id. “The producing party must preserve the information until the claim is resolved. Id.