Arcelormittal Indiana Harbor LLC v. Amex Nooter LLC

Filing 85

OPINION AND ORDER denying 70 Motion to Compel Production of Korrie Griffith's Drug Testing Records but ORDERS Amex Nooter to respond to Indiana Harbor's Request No. 2. Signed by Magistrate Judge Paul R Cherry on 5/27/16. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ARCELORMITTAL INDIANA HARBOR LLC,
Plaintiff,
v.
AMEX NOOTER, LLC,
Defendant.

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CAUSE NO.: 2:15-CV-195-PRC

OPINION AND ORDER
This matter is before the Court on ArcelorMittal’s Motion to Compel Production of Korrie
Griffith’s Drug Testing Records [DE 70], filed by Plaintiff ArcelorMittal Indiana Harbor LLC
(“Indiana Harbor”) on April 18, 2016. Defendant Amex Nooter, LLC (“Amex Nooter”) filed a
response on May 6, 2016, and Indiana Harbor filed a reply on May 9, 2016.
This litigation stems from an explosion and fire on April 3, 2013, at the Indiana Harbor
facility. Korrie Griffith worked as a pipefitter for Amex Nooter. Prior to April 3, 2013, Mr. Griffith’s
supervisor put Amex Nooter management on notice of Mr. Griffith’s dangerous behavior. Mr.
Griffith was one of the Amex Nooter pipefitters working at the Indiana Harbor facility on April 3,
2013. Mr. Griffith has admitted to intentionally removing a valve from a live gas line when he knew
that the line was live on April 3, 2013. This action has been described by several Amex Nooter
witnesses as dangerous.
Based on these and other statements made during depositions, on December 9, 2015, Indiana
Harbor served on Amex Nooter a second set of requests for production of documents, including
Request No. 2: “Any and all results of any drugs test performed on Korrie Griffith as a result of the
April 3, 2013, fire at ArcelorMittal’s Indiana Harbor facility.”

On January 8, 2016, Amex Nooter objected to the request, explaining that Amex Nooter
“may not produce the results of any drug testing without ArcelorMittal’s compliance with The
Health Insurance Portability and Accountability Act of 1996, including but not limited to, 45 C.F.R.
§ 164.512(e).” Amex Nooter does not argue that the request is not relevant.
Under the Health Insurance Portability and Accountability Act (HIPAA), a covered entity
may use or disclose the protected health information of an individual without the written
authorization of the individual in certain situations covered in 45 C.F.R. § 164.512. See 45 C.F.R.
§ 164.512. Relevant to the instant dispute, the regulation provides:
(e) Standard: Disclosures for judicial and administrative 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:
(A) The covered entity receives satisfactory assurance, as described
in paragraph (e)(1)(iii) of this section, from the party seeking the
information that reasonable efforts have been made by such party to
ensure that the individual who is the subject of the protected health
information that has been requested has been given notice of the
request; or
(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.
(iii) For the purposes of paragraph (e)(1)(ii)(A) of this section, a covered
entity receives satisfactory assurances from a party seeking protected health
information if the covered entity receives from such party a written statement
and accompanying documentation demonstrating that:
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(A) The party requesting such information has made a good faith
attempt to provide written notice to the individual (or, if the
individuals location is unknown, to mail a notice to the individual’s
last known address);
(B) The notice included sufficient information about the litigation or
proceeding in which the protected health information is requested to
permit the individual to raise an objection to the court or
administrative tribunal; and
(C) The time for the individual to raise objections to the court or
administrative tribunal has elapsed, and:
(1) No objections were filed; or
(2) All objections filed by the individual have been resolved
by the court or the administrative tribunal and the disclosures
being sought are consistent with such resolution.
45 C.F.R. § 164.512(e)(1) (emphasis added); see also Belinda K. V. Balovinos, N0. C 10-02507,
2011 WL 335315, at *1 (N.D. Cal. Feb. 1, 2011)
In this case, Indiana Harbor’s March 23, 2016 letter to Mr. Griffith complied with all three
subparts of § 164.512(e)(1)(iii) as required by § 164.512(e)(1)(ii)(A). See (Def. Mot, Ex. J). First,
on March 23, 2016, Indiana Harbor provided written notice to Mr. Griffith that Indiana Harbor was
seeking his drug test records from Amex Nooter; Indiana Harbor received a green card with Mr.
Griffith’s signature confirming receipt of the letter. See § 164.512(e)(1)(iii)(A). Second, the notice
sent by Indiana Harbor included sufficient information about this litigation to permit Mr. Griffith
to raise an objection to this Court; the letter provided the case name, the cause number, and
mentioned the underlying April 3, 2013 explosion as well as Mr. Griffith’s deposition in this case.
See § 164.512(e)(1)(iii)(B). Third, the letter informed Mr. Griffith that Indiana Harbor would be
asking both the University of Chicago as well as Amex Nooter for the drug testing records “fifteen

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days from the date of this letter.” See § 164.512(e)(1)(iii)(B)-(C). More than fifty days have now
passed with no objection or correspondence from Mr. Griffith.
Nevertheless, Indiana Harbor did not comply fully with § 164.512(e)(1)(iii) in its attempt
to give satisfactory assurances to Amex Nooter that Indiana Harbor made reasonable efforts to
ensure that Mr. Griffith was given notice of the request. Indiana Harbor partially complied with §
164.512(e)(1)(iii) by giving Amex Nooter a “written statement” of its reasonable efforts in the form
of an April 8, 2016 email. See (Def. Ex. J). However, the regulation also requires that the written
statement be “accompanied” by “documentation” demonstrating each of the elements listed in
subsections (A) through (C). The email correspondence describes the March 23, 2016 letter to Mr.
Griffith, but no copy of the March 23, 2016 letter was attached to the email. Nor does the March 23,
2016 letter contain any indication that a copy was sent to Amex Nooter at the time the letter was
mailed to Mr. Griffith. Thus, it was reasonable for Amex Nooter to refuse to disclose the drug
testing results in the absence of the documentation. On this basis, the Court denies the Motion to
Compel.
In its response brief, Amex Nooter argues that Indiana Harbor’s motion should also be
denied because Indiana Harbor has not obtained Mr. Griffith’s express consent and because Indiana
Harbor has not submitted a proposed protective order for the Court to enter. However, neither
express consent nor a protective order are required when there is compliance with §
164.512(e)(1)(ii)(A). See 45 C.F.R. § 164.512 (“A covered entity may use or disclose protected
health information without the written authorization of the individual . . . or the opportunity for the
individual to agree or object as described in § 164.510, in the situations covered by this section,
subject to the applicable requirements of this section.”); 45 C.F.R. § 164.512(e)(1)(ii).

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Amex Nooter also references its internal Corporate Safety Manual, which provides,
“Information regarding individual substance test results and rehabilitation records will be released
only upon the written consent of the individual or as authorized by law.” (Def. Resp., Ex. 3).
However, if Indiana Harbor had complied with the requirements of § 164.512(e)(1)(ii)(A), the
release of the records is “authorized by law.” Regardless, the Corporate Safety Manual does not
trump the federal regulations.
Despite Indiana Harbor’s failure to give proper notice to Amex Nooter on April 8, 2016, the
Court finds that, now that Amex Nooter has seen a copy of the March 23, 2016 correspondence
through Exhibit H attached to the instant motion, Amex Nooter has received all of the necessary
assurances required to provide the health record requested in Request No. 2. And, the Court is
reassured that Mr. Griffith received the requisite notice. Subpart (e)(1)(i) allows Amex Nooter to
disclose Mr. Griffith’s protected health information without Mr. Griffith’s express consent “[i]n
response to an order of a court . . . provided that the covered entity discloses only the protected
health information expressly authorized by such order.” 45 C.F.R. § 164.512(e)(1)(i). Therefore, the
Court orders Amex Nooter to serve Indiana Harbor with the documents responsive to Request No.
2.
Based on the foregoing, the Court hereby DENIES ArcelorMittal’s Motion to Compel
Production of Korrie Griffith’s Drug Testing Records [DE 70] but ORDERS Amex Nooter to
respond to Indiana Harbor’s Request No. 2.
SO ORDERED this 27th day of May, 2016.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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