Cupp et al v. United States Of America
Filing
87
ORDER granting in part and denying in part 75 Defendant's Motion to Compel seeking a Court order requiring Plaintiffs to provide complete responses to Defendant's discovery requests. Signed by Magistrate Judge R. Stan Baker on 2/6/2015. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION
TIMOTHY CUPP and
KATHY CUPP,
CIVIL ACTION NO.: CV512-005
Plaintiffs,
V.
UNITED STATES OF AMERICA,
Defendant.
ORDER
Presently before the Court is Defendant's Motion to Compel seeking a Court order
requiring Plaintiffs to provide complete responses to Defendant's discovery requests. (Doc. 75.)
For reasons set forth below, Defendant's Motion in GRANTED IN PART AND DENIED IN
PART.
BACKGROUND
Plaintiffs filed this action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671—
80 (2014), against Defendant on January 19, 2012. (Doc. 1, p. 1.) Plaintiffs allege that Plaintiff
Timothy Cupp ("Mr. Cupp") suffered injuries to his lower back when a National Guardsman
operating a forklift as part of a Federal Emergency Management Agency project allegedly drove
the forklift into Mr. Cupp. (Doc. 16, pp. 1-2.)
This action is set for trial before the Honorable Chief Judge Lisa Godbey Wood on
February 11, 2015. (Doc. 68, p. 1.) At a pretrial conference on November 14, 2014, the Court
reopened discovery through January 31, 2015. (Doc. 68, p. 1.) Defendant then served Plaintiffs
with supplemental interrogatories and supplemental requests for production of documents. See
Doc. 75, p. 1.) Therein, Defendant requested information and documentation regarding Mr.
Cupp's medical condition and treatment as well as documentation of lost wages. (Doc. 75, pp.
2-3.)
On January 15, 2015, Defendant filed the instant Motion to Compel arguing that despite
numerous correspondences from Defendant, Plaintiffs had largely failed to respond to the
supplemental interrogatories and requests for production. (See id. at p. 3.) On January 27, 2015,
Plaintiffs responded that they had responded to the supplemental interrogatories and requests for
production and that Plaintiffs' Motion, therefore, should be denied. (Doc. 79, p. 1.) Plaintiffs
did not argue that the supplemental interrogatories were objectionable or that they otherwise
were not obligated to respond to the discovery requests. ( ) Plaintiffs did ask the Court to
sanction Defendant and place the Motion under seal, because Defendant filed, as an attachment
to its Motion, a document displaying Mr. Cupp's social security number and birth date. (Id.)
On January 28, 2015, Defendant filed a Reply withdrawing its Motion as to certain
discovery requests because Plaintiffs had subsequently responded to those requests. (Doe. 83, p.
2.) Defendant's counsel apologized for having failed to redact Mr. Cupp's social security
number and birth date from the filed exhibit and assured the Court that the document containing
confidential information had since been placed on restricted access. (Ld. at p. 1 & n. 1.)
However, Defendant disagreed that Plaintiffs had fully responded to Defendant's Supplemental
Requests for Production of Documents and reiterated its requests that Plaintiffs provide the
requested information and documentation. (Id. at pp. 2-3.) The Court addresses these discovery
requests as well as Plaintiffs' request for sanctions for the release of confidential information in
turn.
pi
DISCUSSION
I.
Defendant's Discovery Requests
Federal Rule of Civil Procedure 26 provides that a party may obtain discovery of "any
nonprivileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1).
Upon a showing of good cause, a court may order discovery of "any matter relevant to the
subject matter involved in the action." Id. Relevant information "need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the discovery of admissible
evidence." Id. The court, however, must limit discovery when (1) "the discovery sought is
unreasonably cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive"; (2) "the party seeking discovery has had ample
opportunity to obtain the information"; or (3) "the burden or expense of the proposed discovery
outweighs its likely benefit." Fed. R. Civ. P. 26(b)(2)(C).
In its Reply, Defendant states that the only discovery issues remaining before the Court
involve its requests for the production of the following: (1) Mr. Cupp's medical records; (2) an
authorization for Defendant to obtain Mr. Cupp's medical records from his health care providers
("HIPAA authorization"); and (3) copies of Mr. Cupp's W-2 forms submitted to the Internal
Revenue Service ("IRS") during a ten-year period. (Doc. 83, p. 2); gee also Health Insurance
Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996)
("HIPAA"). The Court rules as follows:
A. Mr. Cupp's Medical Records
Defendant's First Supplemental Request for Production Number One sought
all records, charts, reports, statements, bills, radiological film, documents or other
tangible items concerning any medical examination or treatment performed by the
individuals and providers identified in [Plaintiffs'] responses to Supplemental
Interrogatory Nos. 1 and 2, including, but not limited to, any records, charts,
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reports, statements, bills, radiological film, documents or other tangible items
concerning the treatment or condition of [Mr.] Cupp's neck, back, or legs
(including knees, ankles, or feet).
(Doc. 75, p. 2.) Plaintiffs' Responses to Defendant's First Supplemental Requests for Production
stated that they "di[d] not have any of those records other than a copy of a deposition taken in
[another action] in this Court." (Doc. 79, p. 5.)
Defendant, however, explains that it has
received over 150 pages of medical records from Plaintiffs and another 1,200 pages from health
care providers but that it nevertheless has been unable to obtain records from certain providers.
(Doc. 83, p. 3.) Thus, Defendant requests that Mr. Cupp produce all medical records that are "in
his control." (Ii)
Mr. Cupp's medical records are, at a minimum, reasonably calculated to lead to the
discovery of admissible evidence concerning his alleged injuries for which he seeks
compensation through this action. Based on Plaintiffs' representations, however, it appears that
Plaintiffs have produced all of the medical records in their possession. While Plaintiffs could
request additional documents from their health care providers to provide Defendant with further
disclosures, given the time constraints imposed by the imminent trial date in this matter, this
process would likely be unproductive. Rather, it would be more convenient and efficient for
Defendant to seek any additional medical records directly from the health care providers,
pursuant to the FIIPAA authorization discussed below.
For these reasons, Defendant's Motion to Compel as to Defendant's First Supplemental
Request Number One is GRANTED IN PART AND DENIED IN PART in the following
manner: To the extent that Plaintiffs have any materials in their possession that are responsive to
Defendant's First Supplemental Requests for Production Number One that they have not
previously provided to Defendant, they are ordered to disclose those materials to Defendant as
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soon as possible and in no event later than 5:00 p.m. on Monday, February 9, 2015.
However, given the above-mentioned time constraints and the HIPAA authorization discussed
below, Plaintiffs are not required to obtain additional materials from Mr. Cupp's health care
providers to provide to Defendant.'
B. HIPAA Authorization
In its Second Supplemental Requests for Production Number One, Defendant requested
"one executed original of the medical release attached as Exhibit A to be executed by [Plaintiff]
Timothy Cupp." (Doc. 75, p. 3.) While Plaintiffs responded that Mr. Cupp "has previously
given the Defendant a HIP[A]A authorization" (Doe. 79, p. 6), Defendant avers that the previous
HIPAA authorization was limited to certain health care providers (see Doe. 75-2, p. 5,)
Accordingly, Defendant is seeking an authorization covering "all of the providers that [Mr.
Cupp] has indicated that he may potentially call as witnesses at trial" so that Defendant may
"obtain some records on which to evaluate and cross-examine their testimony." (Doe. 83, p. 3.)
There appears to be a split in authority as to whether a party, or a court, may compel
another party to sign an authorization for the release of records, on the basis of a discovery
request. McKnight v. Blanchard, 667 F.2d 477, 481-82 (5th Cir. 1982) ("[T]he
documents or authority to copy them could have been obtained by a request [for production], and
• . . since [the plaintiffs] physical condition was put at issue by his demands[,] the court upon
proper motion could have ordered him to sign. . . an authorization."); s1f. Klugel v. Clough, 252
F.R.D. 53, 55 (D.D.C. 2008) (collecting cases holding that a request for production is not the
proper vehicle by which a party, or the court, can compel another party to sign a medical
As Defendant has not moved for any sanctions in the instant Motion, the Court expresses no opinion in this Order
as to whether Plaintiffs were previously obligated to obtain and disclose such materials. The Court also issues no
opinion in this Order as to the admissibility of any of Mr. Cupp's medical records at trial, including any efforts to
exclude those records as untimely disclosed.
authorization). While the Court of Appeals for the Eleventh Circuit has not addressed this issue,
district courts in this Circuit have recognized a party's ability to request the production of a
signed HIPAA authorization and the court's ability to order compliance therewith. See
McMullen v. Charter Sch. USA, Inc., No. 09-61578, 2011 WL 56065, at *5 (S.D. Fla. Jan. 7,
2011); Rivers v. Asplundh Tree Expert Co., No. 5:08cv6l, 2008 WL 5111300, at *2 (N.D. Fla.
Dec. 3, 2008); Zaffis v. City of Altamonte Springs, No. 6:06-cv-385, 2007 WL 1796255, at *1
(M.D. Fla. June 20, 2007).
On the present facts, the undersigned joins these other district courts and finds that Mr.
Cupp must produce a HIPAA authorization that conforms to Defendant's request for production.
Plaintiffs previously agreed to sign a HIPAA authorization—albeit in limited form—and
Plaintiffs raised no objection to Defendant's use of a request for production as a vehicle to
compel such an authorization. Moreover, Plaintiffs put Mr. Cupp's physical condition at issue
by filing this personal injury action, and it appears that Plaintiffs have not otherwise provided
Defendant with all of the medical documents relevant to that claim during the discovery period.
Under these circumstances, the Court finds that the HIPAA authorization that Defendant
seeks is not only reasonably calculated to lead to the discovery of admissible evidence but also
the most convenient and least burdensome solution at this stage. For these reasons, Defendant's
Motion to Compel as to Defendant's Second Supplemental Request Number One is GRANTED.
Plaintiffs must provide Defendant with a signed HIPAA authorization complying with
Defendant's Second Supplemental Request Number One as soon as possible and in no event
later than 12:00 p.m. on Monday, February 9, 2015.
C. Mr. Cupp's IRS Form W-2s
Defendant's Second Supplemental Requests for Production Number Two asked for
"copies of Internal Revenue Service Form W-2s and any documents filed with said IRS Form W2s submitted by [Mr.] Cupp for the years 2004-2014." (Doe. 75, p. 3.) In their Responses,
Plaintiffs represented that "[Mr. Cupp] ha[d] produced all W-2 forms that he ha[d] for the
relevant period of time." (Doe. 79, p. 6.) Defendant denies having any record of receiving any
W-2 statements. (Doe. 83, p. 3.)
Notably, Plaintiffs do not object to the Form W-2s being relevant and discoverable;
rather, Plaintiffs seem to oppose Defendant's request on the basis that Plaintiffs already produced
W-2 forms pursuant to an earlier request. Because Defendant apparently has no record of having
received those forms, and the forms are relevant to Plaintiffs' damages claims, Plaintiffs must
comply with Defendant's discovery request.
The Court, therefore, GRANTS Defendant's Motion to Compel as to Defendant's
Second Supplemental Requests for Production Number Two and orders that Plaintiffs must
provide Defendant with the documents sought in that Request as soon as possible and in no
event later than 5:00 p.m. on Monday, February 9, 2015.
B.
Plaintiffs' Request for Sanctions and Sealing of the Record
A party may move for appropriate sanctions pursuant to Federal Rule of Civil Procedure
37 if another party fails to cooperate in discovery. See generally Fed. R. Civ. P. 37. In their
Response, Plaintiffs "move that the Court seal a part of the record in this case and that the Court
impose appropriate sanctions," based on Defendant's filing of a document displaying Mr. Cupp's
Social Security number and date of birth. (Doe. 79, pp. 1-2.) In response, Defendant's counsel
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As with Mr. Cupp's medical records, in this Order, the Court issues no opinion as to the admissibility of Mr.
Cupp's tax documents at trial, including any efforts to exclude those documents as untimely disclosed.
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apologizes to the Court and Plaintiffs for this inadvertent error. (Doc. 83, p. 1.) In addition,
Defendant's counsel explains that counsel took prompt action to ensure that the filing is now
under restricted access and thus accessible only to authorized persons. Consequently, the Court
does not find sanctions warranted and does not find it necessary to seal the record. However,
counsel is reminded of their important obligation under Federal Rule of Civil Procedure 5.2 to
prevent an individual's identifying information from being filed on the Court's publicly available
docket.
CONCLUSION
For the reasons and in the manner set forth above, Defendant's Motion to Compel is
GRANTED IN PART AND DENIED IN PART as to Defendant's First Supplemental Request
for Production Number One, GRANTED as to Defendant's Second Supplemental Request for
Production Number One, and GRANTED as to Defendant's Second Supplemental Request for
Production Number Two.
SO ORDERED, this 6th day of February, 2015.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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