G. et al v. State of Hawaii, Department of Human Services et al

Filing 111

ORDER GRANTING DEFENDANTS' MOTION FOR RETURN OF DOCUMENTS SUBMITTED FOR IN CAMERA INSPECTION re 78 . Signed by Judge BARRY M. KURREN. (eps ) -- The Court will return the documents to Counsel for Defendants.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII G., parent and next friend of K., et al., ) ) ) Plaintiff, ) ) vs. ) ) ) STATE OF HAWAII, ) DEPARTMENT OF HUMAN ) SERVICES, et al., ) ) Defendant. ) ______________________________ ) G., parent and next friend of K., et ) al., ) ) Plaintiff, ) ) vs. ) ) ) STATE OF HAWAII, ) DEPARTMENT OF HUMAN ) SERVICES, et al., ) ) Defendant. ) ______________________________ ) CIV. NO. 08-00551 ACK-BMK CIV. NO. 09-00044 ACK-BMK (Consolidated Cases)

ORDER GRANTING DEFENDANTS' MOTION FOR RETURN OF DOCUMENTS SUBMITTED FOR IN CAMERA INSPECTION Before the Court is Defendants State of Hawaii, Department of Human Services and Lillian B. Koller, Director, State of Hawaii, Department of

Human Services's (hereinafter "Defendants") Motion For Return Of Documents Submitted For In Camera Inspection.1 A hearing on this Motion was held on June 2, 2009.2 After careful consideration of the Motion, the memoranda supporting and opposing the Motion, and the arguments of the parties, Defendants' Motion is GRANTED and the Court will return said documents to the Counsel for the State of Hawaii. ANALYSIS Counsel for Plaintiffs was sent certain documents related to the above captioned consolidated cases by a third party. Defendants contend that the documents come from the Department of Human Services for the State of Hawaii and were improperly removed from the offices of the Department of Human Services. (Def. Mot. 1-2.) Defendants further aver that an individual who is believed to have been responsible for removing the documents has been identified, and that an investigation is ongoing. (Decl. of Dr. Kenneth Fink 2-3.) Counsel for Plaintiffs represents that, while he knows the identity of the person who sent him the documents, he is unaware of the source of the documents. Counsel for
Defendants United States Department of Health and Human Services and Charles E. Johnson, Acting Secretary, United States Department of Health and Human Services, and intervenors United Healthcare Ins. Co. and Wellcare Health Insurance of Arizona joined in Defendants' Motion. Defendants styled their request as an ex parte motion. However the substance of the motion is not properly dealt with on an ex parte basis. The Court therefore set a hearing on the Defendants' Motion.
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Plaintiffs argues that many of the documents may have been obtained by legitimate means. (Pl. Opp. 2.) The Court stresses that there is no evidence that Plaintiffs' counsel acted improperly with respect to these documents. Nonetheless, it is more likely than not that the documents came from the offices of the Department of Human Services and that they were removed by an individual without the authority to do so. The situation may be analogized to that of inadvertent disclosure of privileged material. Fed. R. Civ. P. 26(b)(5)(B); See also Fed. R. Evid. 502(b). Therefore, the proper course is for these documents to be returned to the State. Plaintiffs may then utilize the discovery process under the Federal Rules of Civil Procedure to gain access to any documents not protected by privilege. CONCLUSION For the foregoing reasons, Defendants' Motion For Return Of Documents Submitted For In Camera Inspection is GRANTED. The Court will return the documents to Counsel for Defendants.

IT IS SO ORDERED. Dated: Honolulu, Hawaii, June 9, 2009

/S/ Barry M. Kurren Barry M. Kurren United States Magistrate Judge

G., parent and next friend of K., et al. v. State of Hawaii Department of Human Services, et al., CV 08-00551 ACK-BMK; G., parent and next friend of K., et al. v. United States Department of Health and Human Services, et al., CV 09-00044 ACK-BMK; Order Granting Defendants' Motion For Return Of Documents Submitted For In Camera Inspection