COLLETT et al v. OLYMPUS OPTICAL CO LTD et al

Filing 113

ORDER denying 102 Motion to Compel; denying 108 Motion Permission to Disclose Confidential Information. Ordered by US DISTRICT JUDGE CLAY D LAND on 10/16/2020 (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
STEPHEN R. COLLETT and FELICITY *
COLLETT,
*
Plaintiffs,
*
vs.
*
OLYMPUS MEDICAL SYSTEMS CORP.
and OLYMPUS AMERICA INC.,
*
Defendants.

CASE NO. 3:18-CV-66 (CDL)

*
O R D E R

The parties seek a court order compelling two third-party
entities

to

disclose

information

that

could

lead

them

additional information that is privileged under Georgia law.

to
The

information the parties presently seek is not, standing alone,
probative

of

information

any

the

issue

parties

in
may

this

case,

ultimately

and

the

seek

based

additional
upon

the

initial information they presently seek is clearly privileged.
Therefore, the Court denies the parties’ motions to compel the
third parties to produce the information.
BACKGROUND
Plaintiffs
immunodeficiency
Athens
parties

allege

that

virus

(HIV)

Gastroenterology
have

a

list

of

Stephen
from

Endoscopy

a

Collett

defective

Center

approximately

contracted

(the

human

colonoscope
“Center”).

forty-five

patients

at
The
who

underwent colonoscopies with the colonoscope that was used on Dr.

Collett at around the same time.

The parties want to know the

HIV status of these other patients, arguing that this information
may be relevant as to whether the colonoscope in question was
contaminated with the HIV virus prior to Dr. Collett’s procedure.
Specifically,

Defendants

have

moved

to

compel

the

Center

to

respond to a subpoena requiring the Center to state whether any
of the patients on the Center’s list reported HIV positive status
to the Center.

And Plaintiffs have moved for an order permitting

them to present the Center’s list of patients to the Georgia
Department

of

Public

Health

and

ask

it

to

determine

anyone on the list has ever tested positive for HIV.

whether
Standing

alone, the information sought by the parties in their two pending
requests is not probative of whether the colonoscope in question
was contaminated with HIV.
seek

could

lead

to

But the information the parties now

relevant

information

if

they

are

later

permitted to identify whether a specific prior patient was HIV
positive.

The

parties

seem

to

understand

that

without

this

follow-up step, the information that they now seek is useless.
Rather than acquiesce to the parties’ suggestion that the second
step be addressed later, the Court finds it appropriate to decide
now

whether

this

identity-specific

HIV

evidence

will

ever

be

discoverable because if it is not, the first step is a waste of
time and resources even if the information sought in this first
step is not privileged.

Because the necessary

2

follow-up step

would require the disclosure of privileged information, the Court
denies Defendants’ motion to compel (ECF No. 102) and Plaintiffs’
motion for permission to disclose (ECF No. 108).
DISCUSSION
The central issue for the Court to decide is whether Georgia
law permits disclosure of the information the parties now seek
and will seek under the circumstances presented here.
Rule

of

Civil

nonprivileged

Procedure

matter.

26(b)(1)

This

is

only

a

permits

diversity

Federal

discovery

action,

and

of
the

Eleventh Circuit has observed that “[s]tate privilege defenses
have

full

force

and

effect

in

federal

jurisdiction cases by virtue of” Rule 501.
416 F.3d 1327, 1335.
the

information

court

in

diversity

Price v. Time, Inc.,

Therefore, the Court must determine whether

that

the

information that they intend

parties

currently

to ultimately

seek

seek

and

the

is privileged

under Georgia law.
In Georgia, “AIDS confidential information” is “confidential
and

shall

not

be

disclosed

O.C.G.A. § 24-12-20.

except

as”

permitted

by

statute.

“No person or legal entity which receives

AIDS confidential information . . . or which is responsible for
recording,

reporting,

or

maintaining

AIDS

confidential

information shall: (A) Intentionally or knowingly disclose that
information

to

another

person

or

legal

entity;

or

(B)

Be

compelled by subpoena, court order, or other judicial process to

3

disclose that information to another person or legal entity[.]”
O.C.G.A.

§

O.C.G.A.

24-12-21(b)(1).
§

There

24-12-21(c)-(i)

are

some

(permitting,

exceptions.
under

See

specified

circumstances, disclosure to certain government agencies; to the
patient’s spouse, sexual partner, or child; and to the patient’s
health care provider).

None of these exceptions would permit

disclosure of a person’s AIDS confidential information to third
parties who are private litigants in a civil action.
“AIDS
O.C.G.A.

§

confidential
24-12-21

information”

means

that

information

is

which

privileged
discloses

under
that

a

person:
(A) Has been diagnosed as having AIDS;
(B) Has been or is being treated for AIDS;
(C) Has been determined to be infected with HIV;
(D) Has submitted to an HIV test;
(E) Has had a positive or negative result from an HIV
test;
(F) Has sought and received counseling regarding AIDS;
or
(G) Has been determined to be a person at risk of being
infected with AIDS,
and which permits the identification of that person.
O.C.G.A. § 31-22-9.1(a)(2).
statute,

it

appears

that

Based on the plain language of the
the

legislature

intended

to

prevent

disclosure that a person tested positive for HIV, was suspected
of being exposed to or infected with the virus such that it was

4

advisable

for

the

person

to

submit

to

an

HIV

test,

or

was

determined to be at risk of becoming infected with the virus.
The parties presently want to know whether any patient who
was treated with the colonoscope shortly before October 10, 2011
was infected with HIV at the time.

If the Court were to grant

either of the parties’ pending motions, then the Center or the
health

department

forty-five

would

patients

and

reported as HIV positive.
department

has

a

record

have

to

review

determine

if

the
any

Center’s
of

them

list
had

of

been

If neither the Center nor the health
of

any

patient

on

the

list

testing

positive for HIV, then it would not be a disclosure of “AIDS
confidential

information”

to

say

so.

This

answer

would

not

reveal any AIDS or HIV diagnosis and would not disclose whether
anyone on the list had submitted to an HIV test or was determined
to be at risk of becoming infected with the virus.1
The more complicated issue is what would happen if one or
more patients on the list was reported to be infected with HIV.

Plaintiffs argue that even if the Center responded that it has no
record of any of its patients being HIV positive, it is possible that a
patient was infected with HIV before October 2011 but had not yet
tested positive. So, Plaintiffs want to know if any of the patients on
the list were ever reported as HIV positive to the health department.
Defendants assert that even if the health department received a report
that one of the patients tested positive for HIV, that does not mean
that the patient was HIV positive before October 2011 and therefore
would not establish a potential causal connection.
More discovery
would be needed.
And it is that discovery that would involve
potentially privileged information. Absent compelling circumstances, it
would be unjust to allow the admission of evidence sought in step one
but prevent the opposing party from discovering the privileged
information necessary to refute it.
1

5

The

parties’

requests,

as

currently

framed,

would

require

disclosure that someone on the patient list has been reported as
infected

with

HIV,

though

the

requests

would

not

require

the

Center or the health department to say who on the list of fortyfive patients was reported as HIV positive.

But the litigants in

this civil action would know that at least one person on a small
list of patients was reported as HIV positive. 2

And it seems

inevitable that if at least one of the patients was reported as
HIV positive, then the parties will want additional discovery to
learn when the person was infected and when the person tested
positive for HIV.

Without those crucial additional facts, the

“step one” information would either not be relevant to any issue
in the case (because the simple fact that someone on the list may
be HIV positive is not enough standing alone to be probative of
whether that person contaminated the colonoscope with the virus),
or allowing the circumstantial evidence discovered in step one
while

denying

the

would be unjust.

discovery

of

evidence

that

could

refute

it

Such a process would prevent the opportunity

for telling the proverbial other side of the story.
next step would need to be taken.

Thus, the

The parties have not provided

Plaintiffs point out that if someone on the list was reported as HIV
positive, the law would permit the health department to tell the Center
because
the
health
department
may
disclose
a
patient’s
AIDS
confidential information to a health care provider whom the patient
consulted for medical treatment.
But that exception would not permit
the health department to disclose a person’s private health information
to the Court or to the lawyers in this case.
2

6

a complete, clear path for this second step in the process, and
the

Court

can

conceive

of

no

path

that

does

not

include

identification of the HIV positive patient.
Defendants’ suggested process begins with O.C.G.A. § 24-1221(t), which permits a superior court to order disclosure of AIDS
confidential information to a party in a civil proceeding under
certain

circumstances.

department

should

be

Defendants
required

to

assert

answer

that

whether

patients on the Center’s list is HIV positive.
answer

is

yes,

Defendants

acknowledge

the

that

the

any

health
of

the

Then, if the
Court

parties would have to figure out the next steps.

and

the

Based on the

Court’s review of the statute, the next steps would require the
Court

to

determine

whether

“the

petitioner

for

disclosure

demonstrate[d] by clear and convincing evidence a compelling need
for the information which cannot be accommodated by other means.”
O.C.G.A. § 24-12-21(t)(2).

And, the statute requires that the

person whose private information is sought will receive notice
from

the

Court

disclosure.

and

an

opportunity

to

be

heard

before

any

The statute, however, does not seem to contemplate a

situation like the present one, where none of the parties knows
the “true name of the person concerning whom the information is
sought,” id. § 24-12-21(t)(3), and the true name would somehow

7

have

to

be

obtained

from

the

health

department

before

the

required notice and opportunity to be heard can be given.3
Based on the present record, the Court is not persuaded that
the

parties

have

a

compelling

need

for

obtaining

confidential information about the Center’s patients.

AIDS

This is

not a case where a person whose AIDS confidential information is
sought

is

already

known

to

the

parties

and

is

accused

of

committing a crime or a tort related to that person’s HIV status.
In this case, the parties’ private need for disclosure of AIDS
confidential information in this product liability action is far
outweighed by the privacy interest of any person whose private
information is sought and by the public interest that would be
“disserved by disclosures which may deter voluntary HIV tests.”
O.C.G.A. § 24-12-21(t)(2).

Accordingly, the information sought

is not discoverable via a court order pursuant to O.C.G.A. § 2412-21(t). And given this

finding, the

information the parties

presently seek in order to lay the foundation for obtaining this
privileged

information

is

either

irrelevant

or

its

probative

Imagine the notice. “You had a colonoscopy with Dr. Jeffrey Williams
almost ten years ago. Another patient claims that the colonoscope was
defectively designed and that they contracted HIV from it.
They
brought a product liability action in this Court.
Dr. Williams was
required to produce a list of the patients who used the colonoscope
during the same timeframe, and that list is being kept confidential by
the Court and the lawyers.
Your name was on the list.
The parties
want to know if you have HIV and, if so, when you became infected. Is
it all right with you if the public health department shares that
information, including your name, with the Court, confidentially? And
is it okay if the Court shares that information with the lawyers in the
product liability action?”
3

8

value

is

prejudice.

substantially

outweighed

by

the

risk

of

unfair

Thus, the Court will not order its production.
CONCLUSION

For

the

reasons

set

forth

above,

the

Court

denies

Defendants’ motion to compel (ECF No. 102) and Plaintiffs’ motion
for permission to disclose (ECF No. 108).
IT IS SO ORDERED, this 16th day of October, 2020.
S/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

9