United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING DEFENDANTS' MOTION
FOR QUALIFIED PROTECTIVE ORDER (Dkt. 47)
A. GOLDSMITH United States District Judge
KP is a minor who, by his Next Friend LaShawn Petties, brings
a § 1983 claim against workers at a residential
treatment facility, as well as the facility itself, in
connection with injuries he suffered there. In addition to
the § 1983 claim, the complaint alleges assault and
battery under Michigan law. Defendants have moved for a
Qualified Protective Order (“QPO”) permitting
them to interview KP's treating physicians ex parte (Dkt.
47). Plaintiff has signed authorizations for release of
records and has no objection to producing the treating
physicians for depositions, but objects to interviews.
See Pl. Resp. at 5-6 (Dkt. 49).
parties focus on the Health Insurance Portability and
Accountability Act (“HIPAA”), which was enacted
in 1996 and provides certain privacy measures for “any
information, whether oral or recorded in any form or medium
that is created and received by a healthcare provider and
relates to the past, present or future physical or mental
health or condition of an individual.” 42 U.S.C. §
1320d(4). The Secretary of Health and Human Services has
promulgated regulations to protect the privacy of this
information. See 45 C.F.R. § 164.500, et
seq. Two regulatory provisions are relevant to this
issue: 45 C.F.R. § 164.512(e)(1)(i) provides:
(1) Permitted Disclosures. A covered entity may disclose
protected health information in the course of any judicial or
administrative proceeding: (i) In response to an order of a
court or administrative tribunal, provided that the covered
entity discloses only the protected health information
expressly authorized by such order. . . .
And 45 CFR § 164.512(e)(1)(v) states as follows:
For the purposes of paragraph (e)(1) of this section, a
Qualified Protective Order means . . . an order of a court or
of an administrative tribunal or stipulation by the parties
to the litigation or administrative proceeding that:
(A) Prohibits the parties from using or disclosing the
protected health information for any purposes other
than the litigation or proceeding for which such
information was requested; and
(B) Requires the return to the covered entity or
destruction of the protected health information (including
all copies made) at the end of the litigation or proceeding.
(Emphasis added.) Although the HIPAA regulations do not
explicitly mention the ex parte interview, federal law in
this circuit permits this form of discovery. See,
e.g., Hancock v. Dodson, 958 F.2d 1367 (6th
Cir. 1992); Thomas v. 1156729 Ontario Inc., 979
F.Supp.2d 780 (E.D. Mich. 2013).
claims that the Michigan Supreme Court case of Holman v.
Rasak, 785 N.W.2d 98 (Mich. 2010), compels the
conclusion that “HIPAA does not preempt Michigan law
permitting defense counsel to seek ex-parte interviews with
the Plaintiff Minor's medical and mental health care
providers, provided that reasonable efforts have been made to
secure a Qualified Protective Order, ” therefore
requiring entry of the requested QPO. See Defs. Mot.
at 3-4. It has been held, however, that Holman's
conclusion - that HIPAA does not preempt state law -
“is plainly incorrect.” Thomas, 979
F.Supp.2d at 783 (collecting cases and listing reasons why,
contrary to Homan, Michigan law is not “more
stringent” than HIPAA).
that fact, however, Defendants have shown entitlement to the
QPO they request. QPOs must contain certain safeguards.
First, the protective order must prohibit the defendants from
disclosing the plaintiff's protected information outside
the scope of the litigation. Id. at 785-786 (citing
45 C.F.R. § 164.512(e)(1)(v)(A); Croskey v. BMW of
N. Am., No. 02-73747, 2005 WL 4704767, at *2 (E.D. Mich.
Nov. 10, 2005)). Second, the protective order must require
the defendants to return or destroy the protected information
when the litigation concludes. Id. (citing 45 C.F.R.
§ 164.512(e)(1)(v)(B); Croskey, 2005 WL
4704767, at *2). Third, some judges require the protective
order to contain “clear and explicit” notice to
the plaintiff's physician about the purpose of the
interview and that the physician is not required to speak to
defense counsel. Id. (citing Croskey, 2005
WL 4704767, at *5; Palazzolo v. Mann, 09-10043, 2009
WL 728527, at *4 (E.D. Mich. Mar. 19, 2009); Harhara v.
Norville, 07-CV-12650, 2007 WL 2713847, at *4 (E.D.
Mich. Sept. 18, 2007)). The proposed QPO in the instant case
meets all three of these requirements. See Proposed
QPO, Ex. B to Defs. Mot. (Dkt. 47-3).
though Defendants' proposed QPO meets the minimum
requirements for issuance, “qualified protective orders
for ex parte interviews do not issue automatically, and HIPAA
does not require a court to issue them. If a plaintiff shows
a specific reason for restricting access to her or his
treating physicians, such as sensitive medical history
irrelevant to the lawsuit, a court may restrict ex parte
interviews and disclosure of medical records.”
Thomas, 979 F.Supp.2d at 784 (quoting Pratt v.
Petelin, 09-2252-CM-GLR, 2010 WL 446474, at *7 (D. Kan.
Feb. 4, 2010)). Here, KP offers no good reason, such as
sensitive information in the medical records, why the ex
parte interview should not be permitted. See
generally Pl. Resp. Plaintiff's appeal to the
availability of depositions and document production, see
id. at 5-6, is unavailing. Although restricting a party
to formal discovery may be appropriate sometimes, such a
restriction should require justification for costly
depositions or other discovery if it is not yet known whether
such discovery will be useful. Thomas, 979 F.Supp.2d
at 785 (quoting Soto v. ABX Air, Inc., No. 07-11035,
2010 WL 4539454, at *3 (E.D. Mich. Nov. 3, 2010)); see
also Palazzolo, 2009 WL 728527, at *3 (stating, in an
identical context, that “it is ‘routine practice
to talk with each witness before trial to learn what the
witness knows about the case and what testimony the witness
is likely to give[, ] and ‘there is no justification
for requiring costly depositions without knowing in advance
that the testimony will be useful.'” (quoting
Domako v. Rowe, 475 N.W.2d 30, 36 (Mich. 1991)).
“Informality in the discovery of information is
desired.'” Thomas, 979 F.Supp.2d at 785
(quoting Cotton v. Hinton, 559 F.2d 1326, 1332 (5th
Cir. 1977)). In its discretion, the Court considers the
applicability of these general discovery principles as
establishing good cause to issue the QPO.
Defendants' motion for a qualified protective order (Dkt.
47) is granted. Defendants shall submit a separate copy of
their proposed qualified protective order (Dkt. ...