Hughes v. Wal-Mart Stores East, LP (JOINT ASSIGN)(MAG+)

Filing 66

MEMORANDUM OPINION AND ORDER directing that: (1) Wal-Mart's 58 objections are OVERRULED; (2) the 48 motion to compel is GRANTED; (3) The orders of the Magistrate Judge (Docs. # 56 , 57 ) are ADOPTED, except that the deadlines for a jo int protective order and for production are modified below; (4) on or before 10/26/2018, plf and def Wal-Mart shall file a joint motion for a protective order that will govern production of customer-patient information; (5) on or before 11/2/2018 Def endant Wal-Mart shall produce to Plaintiff the names of any people including Wal-Mart's customerpatients who were at the pharmacy counter on 7/6/2016, when the discussion between Plaintiff and Defendant Hughes occurred; and (6) This case is again REFERRED to the Magistrate Judge under 28 U.S.C. 636 for further proceedings, determinations, and recommendations as may be appropriate. Signed by Chief Judge William Keith Watkins on 10/15/18. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
TIFFANY HUGHES,
Plaintiff,
v.
WAL-MART STORES, EAST, LP;
and MICHAEL R. HARRIS,
Defendants.

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CASE NO. 2:17-CV-225-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Tiffany Hughes seeks information identifying patients who did business at the
Prattville Wal-Mart Pharmacy Counter on July 6, 2016, and who may have heard
Michael Harris’s alleged defamation of Hughes. Wal-Mart refused to turn over that
information in discovery, so Hughes filed a Motion to Compel. (Doc. # 48.) The
Magistrate Judge granted the Motion to Compel. (Docs. # 56, 57.)
Wal-Mart objects to the Magistrate Judge’s orders. (Doc. # 58.) It argues that
the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L.
No. 104-191, and the Rules of the Alabama Board of Pharmacy, Ala. Admin. Code
§ 680-x-2.22, shield the identities of Wal-Mart’s pharmacy patients from discovery.
(Docs. # 51, 58.) The court has reviewed the Magistrate Judge’s order and finds it
is not “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). In fact, the
order would survive de novo review.

Hughes seeks to discover individually identifiable health information that
federal regulations consider protected under HIPAA. See 45 C.F.R. § 160.103
(2017). And generally, Wal-Mart may not disclose protected health information. Id.
§ 164.502(a). But there are exceptions to that general rule. Id. § 164.502(a)(1).
One exception, found in 45 C.F.R. § 164.512(e), permits the disclosure of
protected health information during judicial proceedings:
(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; or
(ii) In response to a subpoena, discovery request, or other lawful
process, that is not accompanied by an order of a court or
administrative tribunal, if . . .
(B) The covered entity receives satisfactory assurance, as
described in paragraph (e)(1)(iv) of this section, from the party
seeking the information that reasonable efforts have been made
by such party to secure a qualified protective order that meets the
requirements of paragraph (e)(1)(v) of this section.
Id. § 164.512(e).
The “qualified protective order” mentioned in § 164.512(e)(1)(ii)(B) is “an
order of a court . . . or a stipulation by the parties to the litigation” that
(A) Prohibits the parties from using or disclosing the protected health
information for any purpose other than the litigation or proceeding for
which such information was requested; and

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(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.
Id. § 164.512(e)(1)(v).
The Magistrate Judge ordered Wal-Mart to produce the names of patients who
might have witnessed Harris’s alleged defamation of Hughes. (Doc. # 57.) Under
§ 164.512(e)(1)(i), the Magistrate Judge’s order alone lets Wal-Mart disclose the
requested information without violating HIPAA. Alternatively, Wal-Mart could
have disclosed the requested information under § 164.512(e)(1)(ii)(B) by having
Hughes to submit a qualified protective order to the court. That would not have been
difficult because Hughes repeatedly agreed to a protective order. (Doc. # 48, at 3,
5; Doc. # 48-4, at 2, 5–6; Doc. # 61, at 5.) Federal regulations thus make clear that
Wal-Mart may disclose the requested information. Because of the Magistrate
Judge’s orders (Docs. # 56, 57), Wal-Mart must disclose it.
The Rules of the Alabama Board of Pharmacy do not require otherwise
because the rules specifically permit pharmacies to disclose patient information
without patient authorization if “the law demands.” Ala. Admin. Code § 680-x2.22(2)(e). The Magistrate Judge’s order demands disclosure here.
It is therefore ORDERED that:
1.

Wal-Mart’s objections (Doc. # 58) are OVERRULED;

2.

The Motion to Compel (Doc. # 48) is GRANTED;
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3.

The orders of the Magistrate Judge (Docs. # 56, 57) are ADOPTED,

except that the deadlines for a joint protective order and for production are modified
below;
4.

On or before October 26, 2018, Plaintiff and Defendant Wal-Mart shall

file a Joint Motion for a Protective Order that will govern production of customer–
patient information;
5.

On or before November 2, 2018, Defendant Wal-Mart shall produce to

Plaintiff the names of any people — including Wal-Mart’s customer–patients —
who were at the pharmacy counter on July 6, 2016, when the discussion between
Plaintiff and Defendant Hughes occurred; and
6.

This case is again REFERRED to the Magistrate Judge under 28 U.S.C.

§ 636 for further proceedings, determinations, and recommendations as may be
appropriate.
DONE this 15th day of October, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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