United States District Court, M.D. Tennessee, Nashville Division
ROBERT L. CHEN, M.D., and ACACIA DERMATOLOGY, PLLC, Plaintiffs,
BEVERLY ZAK, M.D., Defendant.
WILLIAM L. CAMPBELL, JR., UNITED STATES DISTRICT JUDGE
before the Court is Defendant's Motion for Summary
Judgment (Doc. No. 22). For the reasons set forth below, the
Motion is GRANTED, in part, and
DENIED, in part. Accordingly,
Plaintiffs' claim under the Health Insurance Portability
and Accountability Act is dismissed, and, in all other
respects, the Motion is denied.
Factual and Procedural Background
Robert L. Chen, M.D. and Acacia Dermatology, PLLC, allege Dr.
Chen's former spouse, Beverly Zak, M.D., has violated the
Federal Wiretap Act, 18 U.S.C. §§ 2510, et
seq., and the Health Insurance Portability and
Accountability Act (“HIPPA”), 29 U.S.C.
§§ 1181, et seq., by making secret
recordings in Dr. Chen's home and medical office. (Doc.
No. 1). Plaintiffs allege the recordings include
conversations involving Dr. Chen, his patients, and medical
staff, and were made without their knowledge or permission.
(Doc. No. 1).
facts relevant to the issues raised by the parties are as
follows. Dr. Chen is the owner and principal
shareholder of Acacia Dermatology, PLLC, located in
Lawrenceburg, Tennessee. (Doc. No. 29 ¶ 17). In the
summer of 2015, Dr. Chen discovered several electronic
devices in the home he and Dr. Zak shared before their
separation and divorce. (Id. ¶ 18). Dr. Chen
was able to examine the contents of the recording devices in
May 2016. (Id. ¶ 20).
first recording (Summarized at Doc. No. 22-3, at 2)
(“Recording No. 1”) at issue here, Dr. Chen is
heard conversing with patients and staff, presumably at his
medical office in Lawrenceburg, Tennessee. (Id.) Dr.
Chen testified at his deposition that it appeared “the
recording device was on my person, and I was moving along. I
went from room to room, in the hallway, et cetera.”
(Doc. No. 29 ¶ 22). Dr. Chen speculated that somehow Dr.
Zak activated the iPhone he carried in his breast pocket at
work and recorded his conversation while he was walking
around the clinic talking with patients and staff.
(Id. ¶ 23). When asked how he thought the
recording happened, Dr. Chen testified:
The only explanation that makes sense, is that she was able
to turn on my - either in some manner, and I don't want
to speculate at this point, my voice and other peoples'
voices were captured on the iPhone, which I kept in my breast
pocket most of the time, if not, all the time during that
period of time.
And she was able to play the sound from my iPhone on a
speaker device, which presumably could've been a cell
phone of hers. And she then took the digital recorder up to
that - at home in Nashville and recorded the goings on of
what I was doing and all the conversations at that moment in
(Doc. No. 22-1, at 29-30). When pressed as to how he thought
the recording was made, Dr. Chen said:
Well, I can't speculate on how it was done. I would love
to know how it was done. So it's either, you know, butt
dial [pocket dial], or she might have hacked into my phone
and installed malware, which you can remotely turn on
someone's microphone on their phone in an attempt to
secretly record them.
(Id., at 30-31).
second recording (Summarized at Doc. No. 22-3, at 3-4)
(“Recording No. 2”) at issue here, Dr. Zak is
heard walking, talking to a baby, talking with an individual
the parties identify as Carly Sisk, talking with Dr. Chen,
and engaging in other activities and conversations. Carly
Sisk was an employee of Acacia Dermatology and her office was
inside the administrative office where the recording was made
by Dr. Zak. (Doc. No. 29 ¶ 21). For a period of time
during the recording, Ms. Sisk is heard giving biopsy results
to two different patients, apparently ...