Regan-Touhy v. Walgreen Co.

FILED
United States Court of Appeals
Tenth Circuit

May 20, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ASHLEY REGAN-TOUHY,
an individual,

Plaintiff-Appellant,

v. No. 06-6242

WALGREEN COMPANY,
a foreign corporation,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CV-05-135-VML)

Tony Gould (Ryan Leonard with him on the briefs), of Leonard & Gould, PLLC,
Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Robert D. Looney, Jr., of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.,
Oklahoma City, Oklahoma, for Defendant-Appellee.

Before HARTZ and GORSUCH, Circuit Judges, and BRIMMER, * District
Judge.

GORSUCH, Circuit Judge.

*
The Honorable Clarence A. Brimmer, United States District Judge for the
District of Wyoming, sitting by designation.
 Ashley Regan-Touhy claims that Kim Whitlock, a former Walgreen

pharmacy technician, used her position to access Ms. Touhy’s pharmacy records

and then disclosed the contents of those records to Ms. Touhy’s ex-husband,

among others. Asserting diversity jurisdiction, Ms. Touhy sued Walgreen,

alleging it is liable for the unlawful disclosure of her confidential medical

information, as well as for the emotional distress that disclosure caused her. At

the close of discovery, Ms. Touhy asked the court to compel Walgreen to produce

materials that Ms. Touhy hoped would include evidence pointing to Ms. Whitlock

as the source of the leaked information. The district court denied the motion and

granted summary judgment in favor of Walgreen. On appeal, Ms. Touhy

challenges both decisions. Because the district court acted within its discretion in

finding Ms. Touhy’s discovery requests overly broad or adequately answered, and

because the district court correctly determined that no admissible evidence could

provide a basis for a reasonable jury to conclude that Ms. Whitlock had disclosed

Ms. Touhy’s health information, we affirm.

I

A

In November 2003, Ms. Touhy learned she had a case of genital herpes.

While seeking to keep this private information private, somehow the news became

widely known in Ms. Touhy’s local community of Edmond, Oklahoma, and

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eventually made its way to her ex-husband, Bryan Abrams. Distressed that her

diagnosis was the subject of local gossip, Ms. Touhy sought to determine how it

became public and eventually surmised that Ms. Whitlock was the source. 1

How Ms. Touhy reached this conclusion is part of a larger story. After

receiving her diagnosis from a doctor at a Planned Parenthood clinic, Ms. Touhy

filled a prescription for Valtrex, an antiviral drug principally used to treat herpes,

at her local Walgreen pharmacy in late 2003. She revealed her diagnosis to only

a few close friends and family. Even so, around the beginning of February 2004,

Ms. Touhy received a phone call in the middle of the night from Mr. Abrams,

whom she had recently divorced after three years of marriage. During this

conversation, Mr. Abrams, apparently intoxicated and belligerent, claimed that he

knew about Ms. Touhy’s condition and expressed concern about whether she had

also infected him. Ms. Touhy denied that she had herpes and demanded that Mr.

Abrams tell her where he had heard otherwise. Mr. Abrams replied that someone

at Planned Parenthood leaked the information.

Several days later, the two spoke again. During the call, Ms. Touhy again

denied that she had herpes and pressed Mr. Abrams to reveal his source

contending otherwise. Mr. Abrams initially refused to name any particular

1
Because this case concerns the wrongful disclosure of private health
information, it unavoidably involves discussion of information that was intended
to be kept private but which no longer is and which, by necessity, is recounted in
Ms. Touhy’s complaint and pleadings, the district court’s decision, and here as
well.

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person, saying only that his source had been informed by someone at Planned

Parenthood, and that the person at Planned Parenthood “does not like [Ms.

Touhy].” R. at 61. When pressed, however, Mr. Abrams told Ms. Touhy that his

source was Shannon Flowers, an acquaintance of his. Id. Mr. Abrams

represented that Ms. Flowers heard the information from someone at Planned

Parenthood, but that he did not know who the source at Planned Parenthood was.

Throughout the conversation, Ms. Touhy asked whether Kim Frazier, Mr.

Abrams’s girlfriend both before and after his marriage to Ms. Touhy, was

involved in any way. Mr. Abrams told Ms. Touhy that Ms. Frazier had nothing to

do with how he found out about Ms. Touhy’s diagnosis.

Despite Mr. Abrams’s assurances that Ms. Frazier was not involved in

disseminating news of Ms. Touhy’s health condition, Ms. Touhy continued to

harbor suspicions. Adding fuel to the fire, Ms. Touhy and Ms. Frazier exchanged

a number of hostile email messages in August 2004. In one message, Ms. Frazier

disparaged Ms. Touhy for having contracted herpes. See id. at 100.

Late in 2004, Mr. Abrams and Ms. Touhy spoke again – and for the first

time since their conversations in February. Asked once more to reveal how he

heard the news of Ms. Touhy’s diagnosis, Mr. Abrams now claimed that his

source was indeed Ms. Frazier, and that Ms. Frazier received the information not

from someone at Planned Parenthood, but from her friend Kim Whitlock, who

worked as a pharmacy technician for Walgreen in nearby Oklahoma City –

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though, as best we can tell from the record, not in the same store where Ms.

Touhy filled her prescription.

B

With this information in hand, and on the theory that Ms. Whitlock had

used her position to access and divulge Ms. Touhy’s private health information,

Ms. Touhy brought suit against Walgreen in February 2005, alleging intentional

infliction of emotional distress, breach of duty of confidentiality, invasion of

privacy, and disclosure of confidential medical information (the last count a

violation of Okla. Stat. title 63 § 1-502.2(H)). Discovery ensued.

During his deposition, Mr. Abrams offered yet another account of how he

learned of Ms. Touhy’s condition, this time testifying that his source was his

friend Ernie Calderon, someone who shared mutual friends with Ms. Touhy. Mr.

Abrams further testified that, in addition to Mr. Calderon, other acquaintances

told him during a conversation at a bar that Ms. Touhy had contracted herpes.

According to Mr. Abrams, he invented the stories involving Planned Parenthood

and Walgreen only because Ms. Touhy kept denying that she had herpes; Mr.

Abrams believed she would be more forthcoming if she thought he had reliable

information rather than mere rumor and, Mr. Abrams explained, it was important

to him to find out when and how Ms. Touhy contracted herpes in order to

determine if he was at risk.

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 In her deposition, Ms. Whitlock admitted that she knew Mr. Abrams and

that she was friends with Ms. Frazier. Ms. Whitlock also admitted that, as a

pharmacy technician for Walgreen, she could have accessed Ms. Touhy’s

prescription information so long as she had Ms. Touhy’s name and area code.

Ms. Whitlock insisted, however, that she never accessed Ms. Touhy’s records and

never revealed such information to Ms. Frazier, Mr. Abrams, or anyone else.

Ms. Touhy also issued various interrogatories and document requests

seeking evidence to substantiate her hypothesis about Ms. Whitlock’s

involvement. Among these requests, a handful still remain the subject of dispute

at this advanced stage in the proceedings. They include Ms. Touhy’s request for

“log files” or other documents capable of identifying which employees had

accessed Ms. Touhy’s pharmacy account information (Doc. Requests 10-12).

They also include a request that Walgreen “[i]dentify each person(s) who have

assisted in the designing, maintenance and/or operation of any computer system

that houses Plaintiff’s records” (Interrog. 10), as well as a request for the

production of “all manuals concerning any computer system or program” that

housed information about Ms. Touhy (Doc. Request 14). The challenged requests

further include Ms. Touhy’s demand for production of: Ms. Whitlock’s personnel

file (Doc. Request 4); “all communications between [Walgreen] and Whitlock”

(Doc. Request 8); all email from Ms. Whitlock’s corporate email account (Doc.

Request 9); and “all documents . . . that relate in any way to Plaintiff, Whitlock or

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the litigation or the alleged facts and circumstances concerning the litigation”

(Doc. Request 6).

Walgreen objected to these discovery requests on various grounds,

including that they were overly broad and not reasonably calculated to lead to the

discovery of admissible evidence. The company nevertheless chose to produce

some materials in response to the challenged requests, including (1) a copy of Ms.

Touhy’s prescription; (2) sixteen pages of “purged data” from the Walgreen

computer system, listing transactions and prescription information for Ms. Touhy

at various Walgreen stores dating back to 2000; (3) Ms. Touhy’s “Confidential

Patient Information Prescription Profile,” which also listed the prescriptions Ms.

Touhy had filled at Walgreen stores; and (4) screen prints of the patient

information displayed when Ms. Touhy’s patient account was accessed on

Walgreen’s computer system. While many of these documents show the initials

of various pharmacists who filled Ms. Touhy’s prescriptions and other employees

who conducted transactions on those prescriptions, Ms. Whitlock’s initials do not

appear anywhere among them.

C

In due course, Walgreen moved for summary judgment, arguing that the

only putative evidence suggesting that Ms. Whitlock had disclosed Ms. Touhy’s

private health information was inadmissible hearsay: Ms. Touhy’s testimony that

Mr. Abrams told her that Ms. Frazier told him that Ms. Whitlock told Ms. Frazier

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about Ms. Touhy’s condition. Without some other (competent) evidence pointing

to a wrongful disclosure by Ms. Whitlock or Walgreen, Walgreen argued that

summary judgment should be entered.

Before the district court could rule on Walgreen’s motion for summary

judgment, Ms. Touhy filed a motion to compel, challenging the adequacy of

Walgreen’s responses to her discovery requests. In separate orders, the district

court denied Ms. Touhy’s motion to compel and granted Walgreen’s motion for

summary judgment. With respect to the discovery motion, the district court found

that Walgreen’s productions constituted an adequate response to most of Ms.

Touhy’s requests and held that virtually all of the contested requests were overly

broad. With respect to the motion for summary judgment, the district court

agreed with Walgreen that Ms. Touhy’s case rested on inadmissible hearsay

insufficient to establish a triable question for a jury. In this appeal, Ms. Touhy

challenges both the district court’s denial of her motion to compel and its order

granting summary judgment in favor of Walgreen. We address each in turn.

II

We review a district court’s discovery rulings, including the denial of a

motion to compel, for abuse of discretion. Soma Med. Int’l v. Standard Chartered

Bank, 196 F.3d 1292, 1300 (10th Cir. 1999). Under this standard, we will reverse

a district court only if it “exceeded the bounds of permissible choice, given the

facts and applicable law in the case at hand.” United States v. McComb, 519 F.3d

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1049, 1053 (10th Cir. 2007) (internal quotation omitted). Generally, a district

court “exceed[s] the bounds of permissible choice,” only when its “decision is

either based on a clearly erroneous finding of fact or an erroneous conclusion of

law or manifests a clear error of judgment.” Id. at 1053-54 (internal quotation

omitted). In the discovery context, the range of permissible choices available to

the district court is notably broad. This is so because discovery decisions

necessarily involve an assessment of the anticipated burdens and benefits of

particular discovery requests in discrete factual settings, while at the same time

also requiring the trial judge to take account of the amount in controversy, the

parties’ resources, the importance of the issues at stake in the action, and the

ability of the proposed discovery to shed light on those issues, among many other

things. See Fed. R. Civ. P. 26(b)(2)(C); see also, e.g., Cleveland v. Piper Aircraft

Corp., 985 F.2d 1438, 1449-50 (10th Cir. 1993); King v. PA Consulting Group,

Inc., 485 F.3d 577, 591 (10th Cir. 2007). Because few discovery matters are case

dispositive and because there is more than one way to skin the discovery cat –

getting at needed information through so many different modes, whether

document requests, interrogatories, depositions, third party subpoenas, or requests

for admission, to name but a few – by the time discovery disputes arrive in our

court, “it is difficult at that stage to show that the party has been prejudiced by”

any particular discovery order. Wright & Miller, 8 Federal Practice and

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Procedure § 2006, at 91. Even so, Ms. Touhy argues that she meets our high

standard for reversal in several ways.

First, Ms. Touhy attacks the district court’s factual finding that Walgreen

provided all relevant “access logs” related to her pharmacy account from the

Walgreen computer system, sought as part of Doc. Requests 10-12. To be more

precise, Ms. Touhy does not appear to dispute that Walgreen produced records

identifying those employees who conducted transactions on Ms. Touhy’s account;

instead, at this stage she complains only that the company has not produced logs

showing which employees merely viewed her electronic pharmacy records. The

district court’s finding that Walgreen’s production was complete rested on an

affidavit from Adam Weiner, a member of Walgreen’s technology support group,

who attested that the company’s pertinent computer systems at the time in

question generated logs tracking only those who conducted transactions on, rather

than merely viewed, pharmacy accounts. Ms. Touhy challenges the district

court’s finding by pointing us to statements from another Walgreen employee,

Michael Simko, before the National Committee on Vital and Health Statistics.

Those statements, however, do not expressly contradict Mr. Weiner’s testimony

and were made in a different proceeding and context. More fundamentally still,

Ms. Touhy failed to present Mr. Simko’s statement to the district court in

connection with her motion to compel, despite the fact it was available to her at

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the time. 2 We generally limit our review on appeal to the record that was before

the district court when it made its decision, see Boone v. Carlsbad Bancorp., Inc.,

972 F.2d 1545, 1549 n.1 (10th Cir. 1992) (“[w]e will not review [evidence that]

was not before the district court when the various rulings at issue were made”),

and on that record we cannot say that the district court clearly erred in finding

that Walgreen fully produced the access logs it had.

Second, Ms. Touhy contests the district court’s determination that

Document Request 14 and Interrogatory 10 were overly broad. The former

demanded production of all manuals for any Walgreen’s computer systems and

programs that might house information about Ms. Touhy; the latter asked

Walgreen to identify every person involved in the design and maintenance of

those systems. On appeal, however, Ms. Touhy does not attempt to defend these

requests as written. Rather, she now seeks only a (recent) computer manual and

only one person with knowledge of the Walgreen computer system.

Unfortunately, both Ms. Touhy’s actual request and her motion to compel before

the district court did not make any mention of such limitations, and we cannot say

the district court exceeded the bounds of permissible choice in denying

2
Ms. Touhy first presented the Simko statement to the district court only
in connection with a distinct and subsequent motion to continue the trial date.
She never sought to have the testimony considered in connection with her motion
to compel.

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enforcement of requests that Ms. Touhy then sought to enforce but does not now

seek to defend. 3

Third, Ms. Touhy contends that the district court abused its discretion in

refusing to enforce Document Request 4, seeking Ms. Whitlock’s personnel file,

which Ms. Touhy argues may reveal that Walgreen disciplined Ms. Whitlock for

disclosing private health information. 4 While the district court considered this

request overly broad, Ms. Touhy contends that Walgreen never objected to her

request on that basis and so, she reasons, the district court erred in denying her

motion to compel.

The major premise of this argument is faulty. Walgreen’s discovery

responses included a general objection that all of Ms. Touhy’s document requests

were overly broad, as well as a specific objection that the personnel file request

was not reasonably calculated to lead to the discovery of admissible evidence.

3
Of course, had Ms. Touhy narrowed her request before the district court
when seeking enforcement, we might have a different case. It is worth noting,
too, that Walgreen did identify one person who could testify concerning the
Walgreen computer system – Adam Weiner – and Ms. Touhy was apparently
aware of another – Michael Simko.
4
Specifically, Ms. Touhy asserts that, shortly after this lawsuit was filed,
Ms. Whitlock was “sudden[ly] transferred” and that her employment was
terminated a month later. Walgreen vehemently disputes this account, submitting
that Ms. Whitlock actually received a promotion to an administrative position at
Walgreen corporate offices, but then left for a better paying job elsewhere. We
need not decide what became of Ms. Whitlock; for purposes of our decision we,
like the district court, proceed on the assumption that the file would contain
information likely to lead to the discovery of admissible evidence.

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The district court agreed with Walgreen, and we cannot gainsay its conclusion:

personnel files often contain sensitive personal information, just as pharmacy

files do, and it is not unreasonable to be cautious about ordering their entire

contents disclosed willy-nilly. Indeed, the Supreme Court has underscored that

“the requirement of Rule 26(b)(1) that the material sought in discovery be

‘relevant’ should be firmly applied, and the district courts should not neglect their

power to restrict discovery [to protect] ‘a party or person from annoyance,

embarrassment, [or] oppression . . . .’” Herbert v. Lando, 441 U.S. 153, 177

(1979) (quoting Fed. R. Civ. P. 26(c)(1)); see also Gehring v. Case Corp., 43 F.3d

340, 342 (7th Cir. 1994) (no abuse of discretion where “privacy interests, coupled

with [the district court’s] determination to keep the trial focused . . . , justified

limiting [plaintiff’s discovery of] personnel files”). This is not to say personnel

files are categorically out-of-bounds. By way of example only, had Ms. Touhy

issued a more narrowly targeted request focused only on documents (whether

from the personnel file or elsewhere) that might indicate disciplinary action

against Ms. Whitlock after Ms. Touhy filed suit, we would face a very different

question. But the district court had to assess the discovery request Ms. Touhy put

before it for decision, and we cannot say that the court exceeded its discretion in

finding that request overly broad.

Fourth, for similar reasons, we perceive no abuse of discretion in the

district court’s holding that Ms. Touhy’s requests for “all communications

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between [Walgreen] and Whitlock” (Doc. Request 8) and “all email from

Whitlock’s Walgreen’s email account” (Doc. Request 9) were overbroad. Rather

than being tailored to ascertaining whether Walgreen disciplined Ms. Whitlock

for (allegedly) disclosing Ms. Touhy’s condition – the information Ms. Touhy

says she wanted to discover – these requests cast a much wider net, encompassing

much information irrelevant to that stated purpose, of a potentially personal

nature, or protected by attorney-client privilege. See Fed. R. Civ. P. 26(c)(1);

Herbert, 441 U.S. at 177; Crawford-El v. Britton, 523 U.S. 574, 598 (1998)

(“Rule 26 vests the trial judge with broad discretion to tailor discovery

narrowly”); Manual for Complex Litigation § 11.443, at 75 (encouraging courts to

“forbid sweeping requests” and to “direct counsel to frame requests for

production of the fewest documents possible”). Further, the burdens and costs

associated with electronic discovery, such as those seeking “all email,” are by

now well known, and district courts are properly encouraged to weigh the

expected benefits and burdens posed by particular discovery requests (electronic

and otherwise) to ensure that collateral discovery disputes do not displace trial on

the merits as the primary focus of the parties’ attention. 5

Finally, we agree with the district court that Document Request 6, seeking

from Walgreen “all documents . . . that refer to, mention or relate in any way to

5
See, e.g., Fed. R. Civ. P. 26(b)(2)(B) & (C); The Sedona Conference, The
Sedona Principles: Second Edition (2007); Institute for the Advancement of the
American Legal System, Navigating the Hazards of E-Discovery (2007).

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Plaintiff, Whitlock, or the litigation or the allegations, facts and circumstances

concerning the litigation,” is overly broad. Under our rules, parties to civil

litigation are given broad discovery privileges. But with those privileges come

certain modest obligations, one of which is the duty to state discovery requests

with “reasonable particularity.” Fed. R. Civ. P. 34(b)(1)(A). All-encompassing

demands of this kind take little account of that responsibility. Though what

qualifies as “reasonabl[y] particular” surely depends at least in part on the

circumstances of each case, a discovery request should be sufficiently definite

and limited in scope that it can be said “to apprise a person of ordinary

intelligence what documents are required and [to enable] the court . . . to

ascertain whether the requested documents have been produced.” Wright &

Miller, 8A Federal Practice and Procedure § 2211, at 415. We cannot disagree

with the district court that Ms. Touhy’s kitchen sink request failed to meet this

standard. See id. at 416-17 n.16 (collecting cases involving similar requests held

to be overbroad); Manual for Complex Litigation § 11.443, at 75 (“In overseeing

document production, the court should . . . prevent indiscriminate, overly broad,

or unduly burdensome demands . . . such as those for ‘all documents relating or

referring to’ a . . . claim . . . .”). 6

6
Of course, the district court was free to and could have chosen to work
with the parties to narrow this or other of Ms. Touhy’s discovery requests to the
point that they were no longer overbroad. But, at the end of the day, it is the
parties’ obligation to frame their own discovery requests and to seek to narrow
(continued...)

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 III

Turning to Ms. Touhy’s appeal of the district court’s entry of summary

judgment, the parties agree that all of Ms. Touhy’s claims against Walgreen hinge

on establishing that Ms. Whitlock used her position as a Walgreen employee to

access and then disclose Ms. Touhy’s health information. The dispositive

question before us, then, is whether, viewing the facts in the light most favorable

to Ms. Touhy as the non-movant, a reasonable jury could conclude that Ms.

Whitlock acted in such a way. Ms. Touhy presents two theories why we should

answer this question affirmatively.

First, Ms. Touhy contends that her own testimony suffices to raise a triable

question of fact. At deposition, Ms. Touhy repeated her claim that Mr. Abrams

told her that he learned of her health condition from Ms. Frazier, who in turn

heard the information from Ms. Whitlock. As the district court rightly observed,

however, Ms. Touhy has a serious hearsay problem. Neither Mr. Abrams, Ms.

Frazier, nor Ms. Whitlock have testified that Ms. Whitlock actually accessed and

then disclosed Ms. Touhy’s health information to Ms. Frazier, and so evidence of

Ms. Whitlock’s alleged statement comes to the court only by way of a three-link

chain: Ms. Touhy’s testimony of (1) what Mr. Abrams allegedly told her that

6
(...continued)
any disputes with opposing counsel; the district court is obliged only to rule on
the requests for enforcement or protection eventually presented to it, not to do the
parties’ work for them by editing discovery requests until they comply with the
Federal Rules of Civil Procedure.

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(2) Ms. Frazier told him about (3) what Ms. Frazier heard from Ms. Whitlock.

For hearsay within hearsay to be admitted as evidence, a hearsay exception must

apply to each link of the chain. See Fed. R. Evid. 805. Even assuming without

deciding that the link comprising Ms. Whitlock’s alleged statement to Ms. Frazier

might be non-hearsay as a party-opponent admission, Fed. R. Evid. 801(d)(2), 7

Ms. Touhy has failed to point to any hearsay exceptions for the other segments of

the chain, and we likewise discern none.

Ms. Touhy argues that Ms. Whitlock’s alleged statement should be

considered nonetheless because it could conceivably be admitted at trial to

impeach Mr. Abrams in the event he testifies that Ms. Whitlock was not his

source of information. But a prior statement offered for impeachment purposes is

admissible only to show that the speaker is not worthy of belief; it is not received

for the truth of the matter asserted. See United States v. Carter, 973 F.2d 1509,

1512 (10th Cir. 1992) (“A witness’ prior statements are admissible only to

impeach or discredit the witness and are not competent substantive evidence of

7
Because Walgreen, rather than Ms. Whitlock, is Ms. Touhy’s opposing
party in this matter, Ms. Whitlock’s statements would qualify as a non-hearsay
party-opponent admission only if: Walgreen manifested an adoption or belief in
the truth of Ms. Whitlock’s alleged statement; Walgreen had specifically
authorized Ms. Whitlock to make statements concerning Ms. Touhy’s health
condition; making statements concerning Ms. Touhy’s health condition was
otherwise a matter within the scope of Ms. Whitlock’s employment with
Walgreen; or Ms. Whitlock’s statement was made in furtherance of a conspiracy
in which Walgreen and Ms. Whitlock were co-conspirators. Fed. R. Evid.
801(d)(2)(B)-(E).

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the facts to which the former statements relate.”) (internal quotation omitted). 8

The particulars of this case demonstrate the wisdom of that rule: of the various

stories Mr. Abrams told at one point or another, Ms. Touhy would like the jury to

believe the one that implicates Ms. Whitlock but offers no reason why that

version of events is any more persuasive or credible than the others. 9

Second, even putting aside the proffered hearsay statement, Ms. Touhy

submits that there is sufficient circumstantial evidence in the record for her

claims to survive summary judgment. Among other things, Ms. Touhy notes, the

record establishes that: Ms. Whitlock and Ms. Frazier were good friends; Ms.

Frazier was Mr. Abrams’s girlfriend; Ms. Frazier herself knew about Ms. Touhy’s

condition (as revealed by her hostile email); Mr. Abrams knew Ms. Whitlock

independently because he previously worked with Ms. Whitlock’s husband and

had rented a house from Mr. Whitlock’s grandmother; and Ms. Whitlock testified

8
See also United States v. Grant, 256 F.3d 1146, 1156 (11th Cir. 2001)
(“[T]he point of admitting inconsistent statements to impeach is not to show that
they are true, but to aid the jury in deciding whether the witness is credible.”);
United States v. Graham, 858 F.2d 986, 990 n.5 (5th Cir. 1988) (“[T]he hallmark
of an inconsistent statement offered to impeach a witness’s testimony is that the
statement . . . is not offered for the truth of the matter asserted; rather, it is
offered only to establish that the witness has said both ‘x’ and ‘not x’ and is
therefore unreliable.”).
9
We of course acknowledge that, pursuant to Fed. R. Evid. 801(d)(1)(A),
prior inconsistent statements made under oath are not considered hearsay and may
be admitted both for impeachment purposes and substantive consideration where
the declarant is subject to cross-examination concerning the statement. See
United States v. Orr, 864 F.2d 1505, 1509 (10th Cir. 1988). Mr. Abrams’s
statement to Ms. Touhy, however, was not made under oath.

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that she knew Mr. Abrams told Ms. Touhy that Ms. Whitlock was his source. Ms.

Touhy contends that these facts, taken together, suggest that Ms. Whitlock was

the only person with both access to Ms. Touhy’s medical information and

motivation to disclose that information to Mr. Abrams.

As a general principle, we agree that circumstantial evidence can suffice to

defeat summary judgment in appropriate circumstances; of course a plaintiff is

not required to prove his or her case by direct proof alone. See U.S. Postal Serv.

Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3 (1983) (“As in any lawsuit, the

plaintiff may prove his case by direct or circumstantial evidence.”). Neither do

we doubt that direct evidence can often be difficult to come by in the context of

wrongful disclosure claims; the verbal transmission of private information often

leaves no paper trail, and neither the source nor the receiver of such information

generally has any incentive to admit to taking part in the disclosure. Even so, the

standard at summary judgment still requires Ms. Touhy to come forward with

evidence sufficient for “a fair-minded jury [to] return a verdict” in her favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Smith v. Maschner,

899 F.2d 940, 949 (10th Cir. 1990). The various pieces of circumstantial

evidence put forward by Ms. Touhy do not pass this threshold.

The testimony that Ms. Whitlock and Ms. Frazier were good friends and

that Ms. Frazier was Mr. Abrams’s girlfriend shows at most that communication

between the three individuals was possible or even likely; it does nothing to

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indicate the content of any communication. The same can be said of the evidence

showing various other social connections between Ms. Whitlock and Mr. Abrams.

The hostile email to Ms. Touhy revealing that Ms. Frazier knew about Ms.

Touhy’s condition indicates nothing about where Ms. Frazier acquired the

information, and Ms. Frazier’s knowledge is unsurprising given that Mr. Abrams,

her boyfriend, already knew about Ms. Touhy’s condition at that time. Finally,

Ms. Whitlock’s testimony that she knew that Mr. Abrams at some point identified

her as his source of information provides no basis to infer that she actually was

the source given that she also testified that it was counsel for Walgreen – not Ms.

Frazier or Mr. Abrams – who informed Ms. Whitlock that Mr. Abrams had

previously identified her as his source.

To be sure, the circumstantial evidence demonstrates that Mr. Abrams and

Ms. Whitlock are sufficiently connected to one another socially – primarily by

way of Ms. Frazier – so that a jury could reasonably conclude that something said

by Ms. Whitlock to Ms. Frazier would eventually find its way to Mr. Abrams.

Jurors, after all, are allowed to bring with them knowledge of how back fence

gossip works. But the claims Ms. Touhy pursues require more than that. To

prevail in this case, Ms. Touhy must prove that Ms. Whitlock accessed and then

disclosed Ms. Touhy’s confidential health information. Other than the bare fact

she worked for Walgreen, there is no competent evidence, circumstantial or

otherwise, to indicate Ms. Whitlock did anything of the sort.

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 The case on which Ms. Touhy perhaps most relies in her argument against

summary judgment actually illustrates, by comparison, the insufficiency of the

evidence she has offered. In Doe v. U.S. Postal Serv., 317 F.3d 339 (D.C. Cir.

2003), the plaintiff postal worker (referred to by the court as Mr. Doe) had been

diagnosed with HIV but did not disclose that information to anyone at the Postal

Service until he submitted a request for medical leave. When Mr. Doe eventually

returned to work, he found that news of his health condition had been

disseminated broadly among his co-workers. Although Mr. Doe lacked direct

evidence that anyone at the Postal Service disclosed information retrieved from

his leave request, the circumstantial evidence suggesting that conclusion was

strong. Co-workers identified Mr. Doe’s management-level supervisor as one

who had shared news of Mr. Doe’s HIV, and testimony indicated that this very

supervisor was the person responsible for reviewing medical leave requests like

Mr. Doe’s. See id. at 340-43. To approximate the strength of the circumstantial

evidence present in Doe, Ms. Touhy would have to show from some non-hearsay

source that Ms. Whitlock actually disseminated the news of Ms. Touhy’s

condition, that Ms. Whitlock worked at the store where Ms. Touhy filled her

prescriptions and was on duty when the Valtrex prescription was filled, or

perhaps that Ms. Whitlock had a general assignment of reviewing all prescriptions

for Valtrex. Ms. Touhy, however, has no such evidence.

* * *

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 Juries may render verdict on facts and common sense inferences from those

facts. But they may not do so with only mere gossip, speculation, or surmise.

For this reason, we require plaintiffs to present competent evidence – whether

direct or circumstantial – showing a basis from which a reasonable jury could find

the defendant liable. Ms. Touhy has failed to present any admissible evidence

indicating Ms. Whitlock’s involvement in accessing and disclosing Ms. Touhy’s

health information, and granting summary judgment was thus the only appropriate

path for the district court to take in this case. Though Ms. Touhy believes she

could have unearthed persuasive evidence had the district court granted her

motion to compel, we cannot see how the district court abused its considerable

discretion in its resolution of the parties’ discovery disputes given the nature of

the requests at issue and the state of the record before the court at the time.

Affirmed.

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